Lake Rotoroa, in the Sweetwaters area of the Far North, near Kaitāia.
A recent Environment Court case in Northland has underscored the legal and ecological complexities of wetland protection.
The case comes amid a national debate over wetland definitions as the Government pushes ahead with controversial changes to how wetlands are defined under the Resource Management Act.
The case, brought last year by the Environmental Protection Authority (EPA) on behalf of Northland Regional Council, involved vegetation clearance and drainage works covering about 8ha near Lake Rotoroa, northwest of Kaitāia.
The central question: did the works occur within a protected natural wetland?
Earlier this month, the Environment Court approved an out-of-court agreement requiring the landowner – farming company Elbury Holdings – to undertake a detailed remediation plan but stopped short of ruling definitively on whether the site was a natural wetland.
The agreement in the Elbury case avoided the need for the court to examine the evidence in detail or decide the legally and scientifically complex question of whether the cleared area contained protected wetland.
That issue remains unresolved. Elbury has not admitted any wrongdoing.
The Environment Court applauded the parties for reaching a “sensible and pragmatic solution” that benefits both the landowner and the wider environment.
The case was separate but related to the environmental watchdog’s court proceedings against Far North District Council (FNDC) and its contractor Ventia NZ Operations Limited, who have pleaded not guilty to allegations they discharged more than 90 million litres of abstracted groundwater within 100m of the Sweetwater Bore Wetland and undertook earthworks or vegetation clearance within a 10m setback from the wetland.
The Elbury case has emerged at a time of national debate over wetland definitions.
The Government’s proposed Resource Management Act (RMA) reforms – currently open for public consultation – aim to simplify wetland rules, particularly for farmers.
One proposed change would reclassify pasture-based wetlands to allow grazing, even in areas with threatened native species.
While that might ease compliance for landowners, it could create new hurdles for infrastructure developers, such as those involved in roading upgrades, who may now require consents for areas previously excluded from protection.
In the Elbury case, the dispute centred on whether the company had created a new drain or cleared an existing one, and whether the work occurred within a protected wetland.
The land lies in the Sweetwater area, which has a long history of land use, including gum digging, kauri stump removal and drainage works dating back to the early 1900s.
The court acknowledged the site’s complex hydrology and the difficulty of applying current legal definitions, noting the influence of perched dune lakes, redirected rivers, shared aquifers and recent extreme weather events.
“We acknowledge ... that it is arguable that at least some of the site in question is wetland and vegetation removal was therefore not permitted,” the court said.
The agreement focuses on restoring ecological value regardless of the land’s legal classification.
Under the enforcement order, Elbury will hire an independent ecological expert to develop a remediation plan for the affected area, marked as “indigenous vegetation cleared”.
The plan includes restoring native vegetation, protecting watercourses, fencing to exclude livestock, pest control and five years of monitoring and reporting to the EPA and Northland Regional Council.
“The solution is a pragmatic one but provides a positive ecological outcome not only for the landowners but for the wider district,” the court said.
“For Elbury Holdings, it gives a chance to improve the farm by naturalising a little-used part. For the wider district, it will reinforce the ecological value of the remnant wetlands already present.”
Experts estimate that New Zealand has lost 90% of its original wetlands to development – mostly farming.
EPA general manager of compliance, monitoring and enforcement Gayle Holmes said that while councils are the primary enforcement agencies under the RMA, the EPA may intervene where it deems necessary to promote the act’s purpose.
“We will continue to perform our responsibilities and assist councils and enforce actions where we are satisfied it is necessary or desirable,” Holmes said.
She declined to comment further, citing the continuing proceedings against the FNDC and Ventia.
A spokeswoman for Elbury said she did not want to comment at this stage.
Sarah Curtis is a news reporter for the Northern Advocate, focusing on a wide range of issues. She has nearly 20 years’ experience in journalism, much of which she spent court reporting. She is passionate about covering stories that make a difference.