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
(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.