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Animal Law, Animal Welfare, Animal Welfare Act 1999, Farming Practices

Cubicle (Factory) Farming and Ministerial ‘Call-Ins’ of Resource Management Consents

Late last year, I posted on the euphemistically-named ‘cubicle’ farming of dairy cows proposed in the South Island’s pristine McKenzie Basin.

The Parliamentary Commissioner for the Environment has today recommended that Environment Minister, Nick Smith use his call-in powers under the Resource Management Act 1991 (the RMA) to make a decision on the consents. The Act states:

Section 141B – Minister’s power to call in matters that are or are part of proposals of national significance
In deciding whether a matter is or is part of a proposal of national significance, the Minister may have regard to any relevant factor, including whether the matter—

(a) has aroused widespread public concern or interest regarding its actual or likely effect on the environment

Why is this of interest in a blog about animal law?

Well, although about 75% of the large number of submissions received by the Canterbury Regional Council mentioned deleterious effects on the cows, the question has been raised as to whether animal welfare issues can be legitimately considered as an ‘effect’ of dairy farming for the purposes of resource management consents.

The Council has received legal advice that they can not, nor can they provide grounds for a ministerial call-in.

The Council’s Chief Executive, Dr Bryan Jenkins, has said that the animal welfare issue is more appropriately dealt with under the Animal Welfare Act 1999 (the AWA). He also suggested that a stronger argument can be made for damage to New Zealand’s reputation in international dairy markets being an ‘effect’.

This is all the more incredible if we look at the statutory definition of “environment” in the RMA:

Section 2 – Interpretation

environment includes—

(a) ecosystems and their constituent parts, including people and communities; and

(b) all natural and physical resources

By this rationale animals are not a ‘constituent part’ of ‘ecosystems’ nor even a natural or physical resource, but international reputation could be!

It is not altogether surprising that a certain narrow, black-letter interpretation of the ‘environment’ can exclude animals. Although my own perspective is that this is a rather false and problematic distinction; Parliament appears to have made that distinction by enacting one piece of legislation for animals and another for the rest of non-human nature. What is remarkable is that effects on New Zealand’s economic interests overseas can plausibly be shoe-horned into a definition of ‘environment’. It is certainly in keeping with the popular media portrayal of the economy as some kind of force of nature beyond human control replete with terms such as ‘economic climate’ and predictions that are more akin to weather forecasts than the scientific analysis they puport to be.

The more significant point here, though, is the fact that it appears that a development cannot be stopped before it is built on the basis of the AWA.

As the AWA contains criminal sanctions, it can not operate prospectively. That is, even if – as in this case – we can see an animal welfare disaster waiting to happen, there is nothing that can be done until the commission of the offence. What is more, industrial dairying falls under the ambit of the Ministry for Agriculture and Forestry (MAF). Given recent examples of their approach to prosecutions, this is not particularly reassuring.

About Vernon Tava

Barrister. Lives in Auckland, New Zealand.


5 thoughts on “Cubicle (Factory) Farming and Ministerial ‘Call-Ins’ of Resource Management Consents

  1. It seems to me that the key issues WRT the cubicles are taking water and dumping pooze. Thats what the consents appear to be about. I hope someone with expertise can get a website up and running that presents solid science as to why saturating these soils with pooze is detrimental (in a way that can be undeniably argued at the hearings), as thats the only way we can stop these consents. Theres no hope in Nick Smith, hes just not that kind of guy. We got the government we deserve.

    Posted by AaronC | 15 January 2010, 12:09 pm
  2. The point of this post was to focus on the exclusion of the interests of animals from discussions of the ‘environment’ while noting that economic concerns do by a rather strained interpretation make it in. The other issue is that we have to wait until an animal welfare offence is committed before anything can be done about it.

    As I’ve pointed out in the previous post on this topic, there have been myriad scientific submissions about the negative effects of spreading effluent over the surrounding land.

    The Parliamentary Commissioner for the Environment has recommended a call-in for the same reason. She has issued a detailed report entitled: Change in the high country: Environmental stewardship and tenure review. Following the hyperlink in the post above will take you to her comments on this:
    “I am particularly concerned about the effect of these dairying operations on the water quality of the Ohau and Ahuriri catchments,” she said. “The combined effluent of these operations would be similar in quantity to a city the size of Christchurch being located in the Mackenzie Basin.”
    ‘A recent report from NIWA suggests that if the amount of nutrients entering Lake Benmore was to substantially increase, then the water quality of the lake and lower Waitaki River would be likely to seriously deteriorate.’

    Perhaps we can hold on to some hope as to the government position on this; John Key has publicly opposed the scheme. Even Fonterra is against it.

    Posted by Vernon Tava | 15 January 2010, 4:12 pm
  3. Hi Vernon, I’m aware of the “city the size of Christchurch” comparison, but I was thinking of demonstrating accurate models of soil structures saturated in poo that could accurately demonstrate that this plan can only pollute, as the soil at a cellular level cannot contain this effluent, so rather than a general comparison, a deep scientific one. Also along these lines a way of predicting the pollution as it spreads from the proposed areas to the lake and then into the surrounding waterways- a stage by stage prediction of the pollution, including of course the worst case scenario-Where I imagine it could ruin major waterways and surrounding tributaraies all the way to the east coast- thats a masive gouge in the midsection of the South Island. Although the regional councils are not at all obliged to consider impacts upon the sea, it could possibly be argued that the currents may move the pollution up to Christchurch beaches thus this plan could immediately effect the environmental quality of the South Islands largest city. I dont stand by that statement until Its researched, but if this proposal was to have such far reaching effects, the regional council needs to hear about it, and perhaps so too the people of Chch- if my theory has any validation. Getting all this info into one specialised website would be very useful for all opponents of the plan, although at this point I personally lack the specific understanding of such variables in full detail.

    Posted by AaronC | 17 January 2010, 1:16 pm


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