Watercare Waikato River Water Take Application

Submission Reference no: 77

Nga Muka Development Trust (Glen Tupuhi)

Submitter Type: Not specified Source: Email

Overall Notes:

Clause What are you submitting on? You can submit on specific parts of the application or the application as a whole. Position The whole Watercare application Notes

Clause My submission on the Watercare application is that (please select one): Position I oppose it (or specific parts of it) Notes

Clause I seek the following decision from the Board of Inquiry: Position Decline the application Notes

Clause Do you wish to be heard in support of your submission? All submissions will be considered by the Board of Inquiry, but please indicate if you wish to heard in support of your submission. Position I wish to be heard in support of my submission Notes

Nga Muka Development Trust

SUBMISSION ON WATERCARE'S RESOURCE CONSENT APPLICATION

INTRODUCTION

1. The Nga Muka (Nga Muka) is the representation body of the cluster of marae in the Rangiriri, Te Kauwhata, Waerenga area, namely Maurea, Horahora, Waikare, Okarea, Taniwha. Nga Muka marae cluster in the Waikato Tainui tribal infrastructure.

2. Nga Muka appreciates the opportunity to submit on the resource consent application by Watercare Services Limited (Watercare) for a water take and discharge (and associated infrastructure) from and to the Waikato River.

3. In December 2013 Watercare lodged the resource consent application to the Waikato Regional Council (WRC), and subsequently amended and lodged their application with the Environmental Protection Authority on 11 December 2020 (the application).

4. The application has now been referred to the Board of Inquiry (BOI) for determination.

BACKGROUND

There is significant context behind the Waikato River arrangements. Those arrangements arise out of significant and lengthy negotiations between the Crown and five Iwi of the Waikato River.

Those negotiations resulted in Deeds and ultimately three Acts of Parliament:

(a) the Waikato-Tainui Raupatu Claims (Waikato River) Settlement Act 2010;

(b) the Ngāti Tuwharetoa, Raukawa, and Te Arawa River Iwi Waikato River Act 2010; and

5. The impact of this legislation needs to be front and centre in any application of this nature under the Resource Management Act 1991 (RMA).

6. This background context (including in relation to the Treaty settlements and agreements which gave rise to these arrangements over the Waikato River) is both relevant and significant, in its own right, and it brings into play the principles of the Treaty of Waitangi as recognised through section 8 of the RMA, and other provisions such as section 6(e) and 7(a) of the RMA.

7. There are a unique set of specific statutory provisions relating toWaikato Tainui and Te Ture Whaimana o te Awa o Waikato - Vision and Strategy (Te Ture Whaimana) which make it one of the most powerful planning documents in New Zealand.

Nga Muka contact [email protected] Glen Tupuhi; Chairperson,

TE TURE WHAIMANA O TE AWA O WAIKATO (VISION AND STRATEGY)

8. Section 5 of the Waikato-Tainui Raupatu Claims (Waikato River) Settlement Act 2010 sets out the 'guiding principles for interpretation' in relation to Te Ture Whaimana:

Guiding principles of interpretation

(1) The vision and strategy is intended by Parliament to be the primary direction-setting document for the Waikato River and activities within its catchment affecting the Waikato River.

(2) This Act must be interpreted in a manner that best furthers—

(a) the overarching purpose of the settlement; and

(b) subsection (1); and

9. In summary:

(a) Te Ture Whaimana is a central element of the unique legislation enacted in relation to the Waikato River, its catchment, and all it encompasses including the Waipā River;

(b) Te Ture Whaimana is intended by Parliament to be the 'primary direction setting document' for the Waikato River;1

(c) the legislation reflects a long history and recognises the mana of the rivers themselves (Te Mana o Te Awa) and the significance of the relationship between the Iwi and the rivers (Mana Whakahaere);2

(d) Te Ture Whaimana is unique under the RMA in that it has been incorporated directly into the Waikato Regional Policy Statement (RPS), and the rest of the RPS must be consistent with Te Ture Whaimana;3

(e) Te Ture Whaimana is also unique in that it prevails over any inconsistent provision in an NPS or the NZCPS, and amendments cannot be made to RMA planning documents to give effect to an NPS/NZCPS, if that would make the document inconsistent with Te Ture Whaimana;4

(f) a regional plan must consequently 'give effect to' Te Ture Whaimana (as it forms part of the RPS); and

(g) the BOI is required to 'have particular regard' to Te Ture Whaimana when considering applications for resource consent.5

10. Those matters reinforce the pre-eminent weight to be afforded to Te Ture Whaimana when decisions are being made under the RMA. There is no other example nationally of an

1 Section 5(1) of the Waikato-Tainui Raupatu Claims (Waikato River) Settlement Act 2010. 2 See the preamble of the Waikato-Tainui Raupatu Claims (Waikato River) Settlement Act 2010. 3 Section 11 of the Waikato-Tainui Raupatu Claims (Waikato River) Settlement Act 2010. 4 Section 12(1) of the Waikato-Tainui Raupatu Claims (Waikato River) Settlement Act 2010. 5 Section 17(3) of the Waikato-Tainui Raupatu Claims (Waikato River) Settlement Act 2010.

Nga Muka contact [email protected] Glen Tupuhi; Chairperson,

external planning document that is to be given greater weight and effect through RMA planning processes.

11. The position of Nga Muka is that the utmost respect and weight must be given to Te Ture Whaimana through this process.

12. The Waikato-Tainui Raupatu Claims (Waikato River) Settlement Act (the Act) became law in 2010.

The legislation gave effect to the agreements that were made when the Deed of Settlement was signed between Waikato-Tainui and the Crown in 2009.

The purpose of the Act is to—

a) have regard to the settlement of raupatu claims under the 2009 deed:

b) recognise the significance of the Waikato River to Waikato-Tainui:

c) recognise the Vision and Strategy for the Waikato River:

d) establish and grant functions and powers to the Waikato River Authority:

e) establish the Waikato River Clean-up Trust:

f) recognise certain customary activities of Waikato-Tainui:

g) provide co-management arrangements for the Waikato River:

h) provide redress to Waikato-Tainui relating to certain assets:

i) recognise redress to Waikato-Tainui of the Kiingitanga Accord and other accords provided for in the schedule of the Kiingitanga Accord.

Section 5 of the Act states that –

(1) The Vision and Strategy is intended by Parliament to be the primary direction-setting document for the Waikato River and activities within its catchment affecting the Waikato River.

(2) This Act must be interpreted in a manner that best furthers—

a) the overarching purpose of the settlement; and

b) subsection (1); and the agreements expressed in the 2009 deed and the Kiingitanga Accord.

Section 9 sets and out the scope of the Vision and Strategy and states that –

(1) The Waikato River and its contribution to New Zealand's cultural, social, environmental, and economic wellbeing are of national importance.

(2) The Vision and Strategy applies to the Waikato River and activities within its catchment affecting the Waikato River.

(3) The Vision and Strategy is Te Ture Whaimana o Te Awa o Waikato.

Nga Muka contact [email protected] Glen Tupuhi; Chairperson,

As noted above, the Vision and Strategy is intended by Parliament to be the primary direction- setting document for the Waikato River and activities within its catchment affecting the Waikato River.

Section 11 of the Act requires that -

(1) On and from the commencement date, the Vision and Strategy in its entirety is deemed to be part of the Waikato Regional Policy Statement without the use of the process in Schedule 1 of the Resource Management Act 1991.

(2) As soon as reasonably practicable after the commencement date, the Council must—

a) insert the Vision and Strategy into the policy statement without using the process in Schedule 1 of the Resource Management Act 1991; and

b) make consequential amendments to records and publications to reflect paragraph (a).

(3) On and from the commencement date, the Council and Watercare must ensure that the policy statement does not remain inconsistent with the Vision and Strategy for any longer than is necessary to amend the policy statement to make it consistent with the Vision and Strategy.

(4) The Vision and Strategy prevails over the policy statement during any period of inconsistency described in subsection (3)

While Section 12 sets out the effect of the Vision and Strategy on Resource Management Act planning documents.

(1) The Vision and Strategy prevails over any inconsistent provision in—

a) a National Policy Statement issued under section 52 of the Resource Management Act 1991; and

b) a New Zealand Coastal Policy Statement issued under section 57 of the Resource Management Act 1991.

(2) The WDC and Watercare must not review or amend under section 79 of the Resource Management Act 1991 the Vision and Strategy inserted in the Waikato Regional Policy Statement.

(3) The WDC and Watercare must not amend under section 55 of the Resource Management Act 1991 a document defined in section 55(1) of the Act if the amendment would make the document inconsistent with the Vision and Strategy.

(4) A rule included in a Regional or District Plan for the purpose of giving effect to the Vision and Strategy prevails over a National Environmental Standard made under section 43 of the Resource Management Act 1991, if it is more stringent than the standard.

(5) A rule included in a Regional or District Plan for the purpose of giving effect to the Vision and Strategy prevails over a Water Conservation Order made under section 214 of the Resource Management Act 1991, if it is more stringent than the order. WDC and Watercare cannot

Nga Muka contact [email protected] Glen Tupuhi; Chairperson,

be considered to be giving effect to the following Objectives of Te Ture Whaimana. They will not give effect to:

• Objective A - The restoration and protection of the health and wellbeing of the Waikato River.

• Objective B - The restoration and protection of the relationship of Waikato-Tainui with the Waikato River, including their economic, social, cultural, and spiritual relationships.

• Objective C - The restoration and protection of the relationship of Waikato River Iwi according to their tikanga and kawa, with the Waikato River, including their economic, social, cultural and spiritual relationships.

• Objective D - The restoration and protection of the relationship of the Waikato Region’s communities with the Waikato River including their economic, social, cultural and spiritual relationships.

• Objective E - The integrated, holistic and coordinated approach to management of the natural, physical, cultural and historic resources of the Waikato River.

• Objective F - Adoption of a precautionary approach towards decisions that may result in significant adverse effects on the Waikato River, and in particular those effects that threaten serious or irreversible damage to the Waikato River.

• Objective G - Recognition and avoidance of adverse cumulative effects, and potential cumulative effects, of activities undertaken both on the Waikato River and within its catchments on the health and wellbeing of the Waikato River.

• Objective H - The recognition that the Waikato River is degraded and should not be required to absorb further degradation as a result of human activities.

• Objective J - The recognition that the strategic importance of the Waikato River to New Zealand’s social, cultural, environmental and economic wellbeing requires the restoration and protection of the health and wellbeing of the Waikato River.

• Objective K - The restoration of water quality within the Waikato River so that it is safe for people to swim in and take food from over its entire length.

• Objective M - The application to the above of both maatauranga Maaori and latest available scientific methods.

WAIKATO RIVER IWI

13. Nga Muka acknowledges and respects the role and mana of Waikato-Tainui and the River Iwi. Waikato-Tainui are taangata whenua of the area where the resource consent activity is sought to be undertaken. Nga Muka supports Waikato-Tainui and defers to them on matters appropriate to mana whakahaere in relation to the water take location. Nga Muka also acknowledges the mana whakahaere of River Iwi elsewhere in the catchment whose interests will be affected by this take.

Nga Muka contact [email protected] Glen Tupuhi; Chairperson,

THE APPLICATION

14. Nga Muka opposes Watercare's application for resource consent. In summary:

(a) the applicant did not engage in any meaningful way with Nga Muka on its application and hence the application is not informed by the perspectives of the marae represented by Nga Muka;

(b) the application does not provide a meaningful or robust assessment of Te Ture Whaimana;

(d) there remains uncertainty and concerns regarding the environmental effects that may arise if the application is approved;

(e) the application represents a wealth transfer from the Waikato region to the Auckland region, and this is at the expense of the communities of the Waikato region;

(f) that water will be permanently lost from the Waikato River catchment if the application is approved;

(g) the application does not adequately assess the cultural effects of the assessment, particularly as these arise through the objectives of the Te Ture Whaimana;

(h) it is not clear that this is the only viable option to meet Auckland's water needs and that alternatives have been appropriately considered; and

(i) as a whole, the application is not consistent with the RMA (including its purpose and principles) or the relevant RMA planning documents.

Environmental and climate change affecting water flows Nga Muka states concern about the changes in hydrology of the Waikato River catchment as a result of climate change over time combined with increased demand will have an incremental impact on the health of the Waikato River.

This press release was issued by Waikato Regional Council on 9 September 2020 Two consents granted by Waikato Regional Council mean Watercare can continue to maximise the amount of water it can treat for Aucklanders now and into the future. In the past week Waikato Regional Council, Watercare, Auckland Council and Waikato-Tainui have signed a relationship agreement, with Waikato River Authority to consider it over the next few days, committing all parties to work together to protect the river and the people it provides for in both the Waikato and Auckland regions. With the river currently above median flow, Watercare already has consents to take 175 million litres a day (MLD) from the river, which is the maximum its Waikato Water Treatment Plant in Tuakau can currently treat and deliver. An application Watercare lodged in May for an additional 100 MLD has now been granted by

Nga Muka contact [email protected] Glen Tupuhi; Chairperson,

Waikato Regional Council. It enables Watercare to take the extra water between May and September (inclusive), and at other times of the year when the river is above median flow.

Nga Muka is opposed to the consent application on the grounds of climate change effects on the hydrology of the Waikato river catchment over time. 1. That will incrementally increase demand for water across the catchment. 2. Increased dry spell incidents will affect the median flow required to arrest saltwater encroachment in the lower Waikato as a result of sea level rise. 3. The combination of climate change effects will inevitably cause irreversible harm to the health of the Waikato River. ______

Waikato Regional Council Waikato River Report Card WATER USE

WORSENING TREND

Between 2009 and 2013, there was a rapid and substantial increase in the volume of water allocated through resource consents compared to the primary allocable flow, and this higher level of allocation has been maintained in subsequent years. This indicator is the level of consented water allocation as a percentage of the primary allocable flow in the Waikato region, measured at the Waikato River mouth during summer months each year. Primary allocation is the maximum amount of water that can be taken from the catchment by holders of a consent classed as “primary” (as prescribed by Table 3-5 of the Regional Plan). Why is this indicator important? The Waikato region has an abundance of fresh water but not all of it is actually available to be used (allocable). Efficiency of water use is an increasingly important issue in the Waikato region. Much of it needs to be retained in our rivers, lakes and aquifers (underground springs) to maintain their ecological, recreational and other qualities. We also need to protect our water sources to ensure we have sufficient clean drinking water and water for household use. Measuring how much water is allocated each year helps us to protect our non-allocable water sources, for example for fish and other animals and plants living in the water. It also helps us to ensure people’s personal water use requirements are not compromised by commercial or business-related uses for water. This can include water use on farms and manufacturing facilities; or anywhere where activities or processes require a large amount of water. Water use

Nga Muka contact [email protected] Glen Tupuhi; Chairperson,

Year Per cent of total allocable water allocated 2007 67 2008 65 2009 64 2010 69 2011 72 2012 76 2013 87 2014 86 2015 86 2016 86 2017 85 2018 86 2019 85

What is this indicator telling us? • From 2009 to 2013, the percentage of water allocated through resource consents of the total water available to be allocated for use has risen substantially, and since then has stayed relatively constant at 85-87% of the primary allocable flow (as prescribed by Table 3-5 of the Regional Plan). • Small variations since last year include expiry of water take consents without being replaced. • During non-summer months, the allocation level is substantially less due to lower demand.

DATA SOURCE AND SUPPORTING INFORMATION Data provided by Waikato Regional Council in the form of a spreadsheet.Update details: Annual data are available from the Waikato Regional Council Water Calculator Database. Current yearly totals to 2019 were provided by Waikato Regional Council in April 2020.

Ministry For Environment our freshwater report 2020

1.1 Natural water flows are projected to change

Computer models can be used to predict future changes in river flows across the country. These models show that flows are likely to increase on the west coast of the South Island and in rivers that drain the eastern side of the Southern Alps. Flows are predicted to decrease on the east coast of the North and South Islands, and in Waikato and Northland but these predictions are less certain (Gluckman et al, 2017; Collins et al, 2018) (see figure 16).

Figure 16: Projected change in mean annual river flows between 1990 and 2090

Map of New Zealand showing the projected change in average yearly river flow by 2090 i.e. where average flow will decrease or increase and by what percentage.

Note: Based on the A1B emissions scenario from IPCC AR3 and general circulation models.

Nga Muka contact [email protected] Glen Tupuhi; Chairperson,

RECAP and SUMMARY

Lack of meaningful engagement with NGA MUKA

15. Watercare did not engage with the Nga Muka in any meaningful way.6 The Assessment of Environmental Effects (AEE) provides an overview of who Watercare consulted with on its application, including back in 2013 when the original application was made.7 At no point is reference made to consultation between Watercare and Nga Muka. The application has not therefore been informed by the views of the Nga Muka.

16. That is a significant omission given that the Nga Muka is the independent statutory authority established through Treaty settlement legislation with its purpose focussed specifically on the Waikato River. That should have encouraged Watercare to ensure early, meaningful and sustained engagement with the Nga Muka on this application. Despite the discussions that were had, that early, meaningful and sustained engagement did not occur.

17. Further, the first purpose of the Nga Muka is to set the primary direction for the Waikato River through Te Ture Whaimana:8

"set the primary direction through the vision and strategy to achieve the restoration and protection of the health and wellbeing of the Waikato River for future generations."

18. Again, given that the role of the Nga Muka is to set the primary direction for the Waikato River through Te Ture Whaimana, the Nga Muka would have expected that Watercare would have been far more committed to engaging with the Nga Muka by allowing the time necessary for this to occur. The issues with the application itself (discussed further below), including in relation to Te Ture Whaimana, reflect that lack of engagement.

No robust assessment of Te Ture Whaimana

19. The application does not include or reflect a meaningful or robust assessment against Te Ture Whaimana.9 Te Ture Whaimana is the primary direction setting document for the Waikato River and it requires and deserves careful focus and attention in the context of an application of this scale. In fact, Te Ture Whaimana should have been front and centre in the application given its status in the legislation and the Treaty settlement history and context. That simply has not been the case with 3 pages of brief and high-level comments being provided.

20. The AEE states:10

"Overall, the proposed activity, and the manner in which it proposes to assess and manage its interaction with the Waikato River, is demonstrably consistent with Te Ture Whaimana o te Awa o Waikato."

6 There were discussions between Watercare and the NGA MUKA prior to Minister Parker’s call-in, and around a formal meeting with the NGA MUKA board, but that did not eventuate. 7 AEE, part 11, at pages 108-114. 8 Section 22(2)(a) of the Waikato-Tainui Raupatu Claims (Waikato River) Settlement Act 2010. 9 See AEE, part 12.3.6, at pages 138-141. 10 Section 12.3.6 on page 141.

Nga Muka contact [email protected] Glen Tupuhi; Chairperson,

21. The application does not assess in any meaningful way the extent to which it is consistent with Te Ture Whaimana and the application falls significantly short of being "demonstrably consistent" with Te Ture Whaimana.

22. The 'vision' of Te Ture Whaimana is:11

Tooku awa koiora me oona pikonga he kura tangihia o te maataamuri.

The river of life, each curve more beautiful than the last.

Our vision is for a future where a healthy Waikato River sustains abundant life and prosperous communities who, in turn, are all responsible for restoring and protecting the health and wellbeing of the Waikato River, and all it embraces, for generations to come.

23. The application does not address or provide confidence that this vision (from the primary direction setting document for the Waikato River) will be realised, including how the activity would sustain prosperous Waikato communities or the health and wellbeing of the river for future generations. The focus of the application is on Auckland (including the costs to Auckland of not providing this water), not the Waikato region (including the costs and loss of value to the Waikato communities of losing this water from the catchment permanently).

24. In terms of the objectives of Te Ture Whaimana, and by way of example only, there is no robust analysis of how the application is consistent with the following objectives:12

(a) the restoration and protection of the health and wellbeing of the Waikato River (objective (a));

(b) the restoration and protection of the relationships of Waikato-Tainui with the Waikato River, including their economic, social, cultural, and spiritual relationships (objective (b));

(c) the restoration and protection of the relationships of Waikato River Iwi according to their tikanga and kawa with the Waikato River, including their economic, social, cultural, and spiritual relationships (objective (c));

(d) the restoration and protection of the relationships of the Waikato Region’s communities with the Waikato River, including their economic, social, cultural, and spiritual relationships (objective (d));

(e) the integrated, holistic, and co-ordinated approach to management of the natural, physical, cultural, and historic resources of the Waikato River (objective (e); and

(f) the recognition that the Waikato River is degraded and should not be required to absorb further degradation as a result of human activities (objective h).

25. The application is not consistent with Te Ture Whaimana including the vision and objectives.

11 Schedule 2 of the Waikato-Tainui Raupatu Claims (Waikato River) Settlement Act 2010. 12 A range of other objectives are also relevant, including objectives (f), (g), (i), (j), (k), (l) and (m) at Schedule 2 of the Waikato-Tainui Raupatu Claims (Waikato River) Settlement Act 2010.

Nga Muka contact [email protected] Glen Tupuhi; Chairperson,

26. For example, Watercare rely on section 9 of their AEE (being the effects assessment) and the agreement with Te Whakakitenga o Waikato (NGA MUKA note that none of the other River Iwi nor the NGA MUKA form part of this agreement) that provides for the establishment of a Trust with the "purpose of protecting and promoting the health and wellbeing of the Waikato River consistent with Te Ture Whaimana", in respect of objective (a). There is no clarity or detail provided in relation to these matters nor how the BOI can be expected to be satisfied that the Te Ture Whaimana vision or objectives will be achieved.

27. Further, the Environment Court has found that, in respect of protecting and restoring the Waikato River, this goes further than avoiding effects, and in particular some element of betterment is intended by Te Ture Whaimana.13 The application is unclear in terms of how the water take will contribute to the 'restoration' of the Waikato and similarly it does not address the issue of 'betterment' in any meaningful way. It is not clear how restoration or betterment will be achieved, in particular through an integrated and coordinated approach with all parties, including the NGA MUKA, Waikato-Tainui and River Iwi.

Cultural effects

28. The Nga Muka defers to Waikato-Tainui / the River Iwi to address the cultural effects arising from Watercare’s application.

Consistency with RMA planning documents

29. There are number of RMA planning documents relevant to the application, including:

(a) National Environmental Standards, including the Resource Management (National Environmental Standards for Freshwater) Regulations 2020 (Freshwater NES) which came into force on 3 September 2020;14

(b) National Policy Statements, including the National Policy Statement for Freshwater Management 2020 (NPS-FM) which came into force on 3 September 2020;

(c) the Waikato Regional Policy Statement (RPS) which was made operative in 20 May 2016. Section 11 of the Waikato-Tainui Raupatu Claims (Waikato River) Settlement Act 2010 provides that Te Ture Whaimana is part of the RPS in its entirety; and

(d) the Waikato Regional Plan (WRP) which was made partially operative on 28 September 2007, and fully operative on 10 April 2012 on resolution of variation 6 relating to water allocation (and a number of other variations).

30. The AEE provides analysis of each of these RMA planning documents and concludes that the application is consistent with these. However, there are gaps in Watercare's analysis, and it is not clear that the application is consistent with the relevant RMA planning documents.

31. As noted above, NGA MUKA's position is that the application is not consistent with Te Ture Whaimana. The RPS incorporates Te Ture Whaimana in its entirety, which was a key element

13 Puke Coal Ltd v Waikato Regional Council [2014] NZ EnvC 223, at [92]. 14 We note that some of the regulations do not come into force until 1 May 2021 and 1 July 2021.

Nga Muka contact [email protected] Glen Tupuhi; Chairperson,

of the legislation that created the NGA MUKA and the new frameworks over the Waikato River. The WRP has a number of relevant objectives and policies in respect to water allocation that require giving effect to Te Ture Whamiana, and the overarching purpose to restore and protect the health and wellbeing of the Waikato River for present and future generations.15 If the application is not consistent with Te Ture Whaimana, then by extension it cannot be consistent with the RPS and the WRP.

32. Further, Watercare appear to place considerable weight on the establishment of the Trust when assessing whether their application is consistent with various provisions in the RMA planning documents (for example, the Te Mana o Te Wai provisions in the NPSFM). As discussed above, there is little detail provided in relation to the Trust or what it will achieve, and consequently there can be no confidence that the application is in fact consistent with these RMA planning documents on that basis.

OUTCOMES SOUGHT

33. The NGA MUKA seeks that the application be declined for the reasons set out above.

34. However, without prejudice to that position, if the BOI is minded to grant the application, NGA MUKA seeks that:

(a) the volume of take is reduced to the minimum that can be justified over the shorter- term;

(b) term of the consent is reduced;

(c) conditions are imposed to ensure that Watercare's contributions and commitments to delivering on the following outcomes are clear (by way of example only):

(i) the vision and objectives of Te Ture Whaimana are realised;

(ii) the 'restoration' of the Waikato River, through the adoption of an integrated and coordinated approach with NGA MUKA, Waikato-Tainui and River Iwi, and Waikato River communities;

(iii) the needs of the communities of the Waikato region are prioritised where their needs, in the future, exceed the appropriate supply of water from the Waikato River, and Watercare is required to make water available to meet that shortfall;

(iv) Watercare (and Auckland Council) is required to publicly report its progress in achieving a water demand management plan, in particular by demonstrably lowering its reliance on the Waikato River catchment; and

(v) 'betterment' to the Waikato River within and beyond the activity area.

15 See for example, Objective 3.3.2(a) and Policy 11(a) of the WRP.

Nga Muka contact [email protected] Glen Tupuhi; Chairperson,

Kia Hora Te Marino

Glen Tupuhi.

Chairperson Nga Muka Development Trust

Nga Muka contact [email protected] Glen Tupuhi; Chairperson,

Friday 26 March 2021

NGA MUKA DEVELOPMENT TRUST SUPPORT:

WAIKATO RIVER AUTHORITY'S SUBMISSION ON

WATERCARE'S RESOURCE CONSENT APPLICATION

INTRODUCTION

1. The Waikato River Authority (WRA) appreciates the opportunity to submit on the resource consent application by Watercare Services Limited (Watercare) for a water take and discharge (and associated infrastructure) from and to the Waikato River.

2. In December 2013 Watercare lodged the resource consent application to the Waikato Regional Council (WRC), and subsequently amended and lodged their application with the Environmental Protection Authority on 11 December 2020 (the application).

3. The application has now been referred to the Board of Inquiry (BOI) for determination.

Background

4. There is significant context behind the Waikato River arrangements.

5. Those arrangements arise out of significant and lengthy negotiations between the Crown and five Iwi of the Waikato River.

6. Those negotiations resulted in Deeds and ultimately three Acts of Parliament:

(a) the Waikato-Tainui Raupatu Claims (Waikato River) Settlement Act 2010;

(b) the Ngāti Tuwharetoa, Raukawa, and Te Arawa River Iwi Waikato River Act 2010; and

7. The impact of this legislation needs to be front and centre in any application of this nature under the Resource Management Act 1991 (RMA).

8. This background context (including in relation to the Treaty settlements and agreements which gave rise to these arrangements over the Waikato River) is both relevant and significant, in its own right, and it brings into play the principles of the Treaty of Waitangi as recognised through section 8 of the RMA, and other provisions such as section 6(e) and 7(a) of the RMA.

9. There are a unique set of specific statutory provisions relating to the WRA and Te Ture Whaimana o te Awa o Waikato - Vision and Strategy (Te Ture Whaimana) which make it one of the most powerful planning documents in New Zealand.

ROLE OF THE WAIKATO RIVER AUTHORITY

10. The WRA was established as an independent statutory authority under the Waikato-Tainui Raupatu Claims (Waikato River) Settlement Act 2010 and the Ngāti Tuwharetoa, Raukawa, and Te Arawa River Iwi Waikato River Act 2010, and the WRA has additional functions under the Ngā Wai o Maniapoto (Waipā River) Act 2012.

BF\61132859\1 | Page 1 11. The purpose of the WRA is to:1

(a) set the primary direction through Te Ture Whaimana to achieve the restoration and protection of the health and wellbeing of the Waikato River for future generations;

(b) promote an integrated, holistic, and co-ordinated approach to the implementation of Te Ture Whaimana and the management of the Waikato River; and

12. The principal function of the WRA is to achieve that purpose.

TE TURE WHAIMANA O TE AWA O WAIKATO (VISION AND STRATEGY)

13. Section 5 of the Waikato-Tainui Raupatu Claims (Waikato River) Settlement Act 2010 sets out the 'guiding principles for interpretation' in relation to Te Ture Whaimana:

5 Guiding principles of interpretation

(1) The vision and strategy is intended by Parliament to be the primary direction-setting document for the Waikato River and activities within its catchment affecting the Waikato River.

(2) This Act must be interpreted in a manner that best furthers—

(a) the overarching purpose of the settlement; and

(b) subsection (1); and

14. In summary:

(a) Te Ture Whaimana is a central element of the unique legislation enacted in relation to the Waikato River, its catchment, and all it encompasses including the Waipā River;

(b) Te Ture Whaimana is intended by Parliament to be the 'primary direction setting document' for the Waikato River;3

1 See (for example) section 22 of the Waikato-Tainui Raupatu Claims (Waikato River) Settlement Act 2010. 2 WRA has directly invested $50m since 2011 in river restoration activities. 3 Section 5(1) of the Waikato-Tainui Raupatu Claims (Waikato River) Settlement Act 2010. 4 See the preamble of the Waikato-Tainui Raupatu Claims (Waikato River) Settlement Act 2010. 5 Section 11 of the Waikato-Tainui Raupatu Claims (Waikato River) Settlement Act 2010. 6 Section 12(1) of the Waikato-Tainui Raupatu Claims (Waikato River) Settlement Act 2010.

BF\61132859\1 | Page 2 (f) a regional plan must consequently 'give effect to' Te Ture Whaimana (as it forms part of the RPS); and

(g) the BOI is required to 'have particular regard' to Te Ture Whaimana when considering applications for resource consent.7

15. Those matters reinforce the pre-eminent weight to be afforded to Te Ture Whaimana when decisions are being made under the RMA. There is no other example nationally of an external planning document that is to be given greater weight and effect through RMA planning processes.

16. The WRA's position is that the utmost respect and weight must be given to Te Ture Whaimana through this process.

WAIKATO RIVER IWI

17. WRA acknowledges and respects the role and mana of Waikato-Tainui and the River Iwi. Waikato- Tainui are taangata whenua of the area where the resource consent activity is sought to be undertaken. WRA supports Waikato-Tainui and defers to them on matters appropriate to mana whakahaere in relation to the water take location. The WRA also acknowledges the mana whakahaere of River Iwi elsewhere in the catchment whose interests will be affected by this take.

THE APPLICATION

18. WRA opposes Watercare's application for resource consent. In summary:

(a) the applicant did not engage in any meaningful way with WRA on its application and hence the application is not informed by the perspectives of the WRA;

(b) the application does not provide a meaningful or robust assessment of Te Ture Whaimana;

(d) there remains uncertainty and concerns regarding the environmental effects that may arise if the application is approved;

(e) the application represents a wealth transfer from the Waikato region to the Auckland region, and this is at the expense of the communities of the Waikato region;

(f) that water will be permanently lost from the Waikato River catchment if the application is approved;

(g) the application does not adequately assess the cultural effects of the assessment, particularly as these arise through the objectives of the Te Ture Whaimana;

(h) it is not clear that this is the only viable option to meet Auckland's water needs and that alternatives have been appropriately considered; and

(i) as a whole, the application is not consistent with the RMA (including its purpose and principles) or the relevant RMA planning documents.

7 Section 17(3) of the Waikato-Tainui Raupatu Claims (Waikato River) Settlement Act 2010.

BF\61132859\1 | Page 3 Lack of meaningful engagement with WRA

19. Watercare did not engage with the WRA in any meaningful way.8 The Assessment of Environmental Effects (AEE) provides an overview of who Watercare consulted with on its application, including back in 2013 when the original application was made.9 At no point is reference made to consultation between Watercare and WRA. The application has not therefore been informed by the views of the WRA.

20. That is a significant omission given that the WRA is the independent statutory authority established through Treaty settlement legislation with its purpose focussed specifically on the Waikato River. That should have encouraged Watercare to ensure early, meaningful and sustained engagement with the WRA on this application. Despite the discussions that were had, that early, meaningful and sustained engagement did not occur.

21. Further, the first purpose of the WRA is to set the primary direction for the Waikato River through Te Ture Whaimana:10

"set the primary direction through the vision and strategy to achieve the restoration and protection of the health and wellbeing of the Waikato River for future generations."

22. Again, given that the role of the WRA is to set the primary direction for the Waikato River through Te Ture Whaimana, the WRA would have expected that Watercare would have been far more committed to engaging with the WRA by allowing the time necessary for this to occur. The issues with the application itself (discussed further below), including in relation to Te Ture Whaimana, reflect that lack of engagement.

No robust assessment of Te Ture Whaimana

23. The application does not include or reflect a meaningful or robust assessment against Te Ture Whaimana.11 Te Ture Whaimana is the primary direction setting document for the Waikato River and it requires and deserves careful focus and attention in the context of an application of this scale. In fact, Te Ture Whaimana should have been front and centre in the application given its status in the legislation and the Treaty settlement history and context. That simply has not been the case with 3 pages of brief and high-level comments being provided.

24. The AEE states:12

"Overall, the proposed activity, and the manner in which it proposes to assess and manage its interaction with the Waikato River, is demonstrably consistent with Te Ture Whaimana o te Awa o Waikato."

25. The application does not assess in any meaningful way the extent to which it is consistent with Te Ture Whaimana and the application falls significantly short of being "demonstrably consistent" with Te Ture Whaimana.

26. The 'vision' of Te Ture Whaimana is:13

8 There were discussions between Watercare and the WRA prior to Minister Parker’s call-in, and around a formal meeting with the WRA board, but that did not eventuate. 9 AEE, part 11, at pages 108-114. 10 Section 22(2)(a) of the Waikato-Tainui Raupatu Claims (Waikato River) Settlement Act 2010. 11 See AEE, part 12.3.6, at pages 138-141. 12 Section 12.3.6 on page 141. 13 Schedule 2 of the Waikato-Tainui Raupatu Claims (Waikato River) Settlement Act 2010.

BF\61132859\1 | Page 4 Tooku awa koiora me oona pikonga he kura tangihia o te maataamuri.

The river of life, each curve more beautiful than the last.

27. The application does not address or provide confidence that this vision (from the primary direction setting document for the Waikato River) will be realised, including how the activity would sustain prosperous Waikato communities or the health and wellbeing of the river for future generations. The focus of the application is on Auckland (including the costs to Auckland of not providing this water), not the Waikato region (including the costs and loss of value to the Waikato communities of losing this water from the catchment permanently).

28. In terms of the objectives of Te Ture Whaimana, and by way of example only, there is no robust analysis of how the application is consistent with the following objectives:14

(a) the restoration and protection of the health and wellbeing of the Waikato River (objective (a));

(b) the restoration and protection of the relationships of Waikato-Tainui with the Waikato River, including their economic, social, cultural, and spiritual relationships (objective (b));

(e) the integrated, holistic, and co-ordinated approach to management of the natural, physical, cultural, and historic resources of the Waikato River (objective (e); and

(f) the recognition that the Waikato River is degraded and should not be required to absorb further degradation as a result of human activities (objective h).

29. The application is not consistent with Te Ture Whaimana including the vision and objectives.

30. For example, Watercare rely on section 9 of their AEE (being the effects assessment) and the agreement with Te Whakakitenga o Waikato (WRA note that none of the other River Iwi nor the WRA form part of this agreement) that provides for the establishment of a Trust with the "purpose of protecting and promoting the health and wellbeing of the Waikato River consistent with Te Ture Whaimana", in respect of objective (a). There is no clarity or detail provided in relation to these matters nor how the BOI can be expected to be satisfied that the Te Ture Whaimana vision or objectives will be achieved.

31. Further, the Environment Court has found that, in respect of protecting and restoring the Waikato River, this goes further than avoiding effects, and in particular some element of betterment is intended

14 A range of other objectives are also relevant, including objectives (f), (g), (i), (j), (k), (l) and (m) at Schedule 2 of the Waikato-Tainui Raupatu Claims (Waikato River) Settlement Act 2010.

BF\61132859\1 | Page 5 by Te Ture Whaimana.15 The application is unclear in terms of how the water take will contribute to the 'restoration' of the Waikato and similarly it does not address the issue of 'betterment' in any meaningful way. It is not clear how restoration or betterment will be achieved, in particular through an integrated and coordinated approach with all parties, including the WRA, Waikato-Tainui and River Iwi.

Cultural effects

32. The WRA defers to Waikato-Tainui / the River Iwi to address the cultural effects arising from Watercare’s application.

Consistency with RMA planning documents

33. There are number of RMA planning documents relevant to the application, including:

(b) National Policy Statements, including the National Policy Statement for Freshwater Management 2020 (NPS-FM) which came into force on 3 September 2020;

34. The AEE provides analysis of each of these RMA planning documents and concludes that the application is consistent with these. However, there are gaps in Watercare's analysis, and it is not clear that the application is consistent with the relevant RMA planning documents.

35. As noted above, WRA's position is that the application is not consistent with Te Ture Whaimana. The RPS incorporates Te Ture Whaimana in its entirety, which was a key element of the legislation that created the WRA and the new frameworks over the Waikato River. The WRP has a number of relevant objectives and policies in respect to water allocation that require giving effect to Te Ture Whamiana, and the overarching purpose to restore and protect the health and wellbeing of the Waikato River for present and future generations.17 If the application is not consistent with Te Ture Whaimana, then by extension it cannot be consistent with the RPS and the WRP.

36. Further, Watercare appear to place considerable weight on the establishment of the Trust when assessing whether their application is consistent with various provisions in the RMA planning documents (for example, the Te Mana o Te Wai provisions in the NPSFM). As discussed above, there is little detail provided in relation to the Trust or what it will achieve, and consequently there can be no confidence that the application is in fact consistent with these RMA planning documents on that basis.

15 Puke Coal Ltd v Waikato Regional Council [2014] NZ EnvC 223, at [92]. 16 We note that some of the regulations do not come into force until 1 May 2021 and 1 July 2021. 17 See for example, Objective 3.3.2(a) and Policy 11(a) of the WRP.

BF\61132859\1 | Page 6

OUTCOMES SOUGHT

37. The WRA seeks that the application be declined for the reasons set out above.

38. However, without prejudice to that position, if the BOI is minded to grant the application, WRA seeks that:

(a) the volume of take is reduced to the minimum that can be justified over the shorter-term;

(b) term of the consent is reduced;

(c) conditions are imposed to ensure that Watercare's contributions and commitments to delivering on the following outcomes are clear (by way of example only):

(i) the vision and objectives of Te Ture Whaimana are realised;

(ii) the 'restoration' of the Waikato River, through the adoption of an integrated and coordinated approach with WRA, Waikato-Tainui and River Iwi, and Waikato River communities;

(v) 'betterment' to the Waikato River within and beyond the activity area.

BF\61132859\1 | Page 7 From: Nga Muka Development Trust To: watercareapplication; t Cc: Glen Tupuhi Subject: Re: Nga Muka Development Trust submission Date: Friday, 26 March 2021 2:46:34 pm Attachments: NMDT Support WRA"s submission on Watercare"s RCA.docx Importance: High

Pleases accept Nga Muka's submission supporting all concerns indicated by Waikato River Authorities

Again confirmation of receipt from recipients required please

Nga Mihi

Kay Davis Administrator Nga Muka Development Trust

From: Nga Muka Development Trust Sent: Friday, 26 March 2021 2:03 PM To: [email protected] ;

Subject: Nga Muka Development Trust submission

Please confirm receipt of this email

Thank you

Nga Mihi

Kay Davis Administrator Nga Muka Development Trust From: Glen Tupuhi To: watercareapplication Cc: Nga Muka Development Trust; Subject: Re: Nga Muka Development Trust submission Date: Saturday, 27 March 2021 12:24:38 pm Attachments: image001.png Nga Muka Water BOI submission.pdf

Tena koutou

Can you replace that copy with this final draft please.

Glen

On Fri, Mar 26, 2021 at 3:07 PM watercareapplication wrote:

Tēnā koe Kay

This is an email to confirm the Environmental Protection Authority (EPA) has received both of your emails from Nga Muka Development Trust.

We are currently processing submissions. You can expect further correspondence from the EPA next week, which will contain more information about the next steps in the process.

Nāku noa, nā

Sara

Watercare Project Team

Land & Oceans Applications

0800 722 667

Our New Zealand Business Number Is 9429041901977.

This email message and any attachment(s) are intended for the addressee(s) only.

If you receive this message in error, please notify the sender and delete the message and any attachment(s).

From: Nga Muka Development Trust [mailto:[email protected]] Sent: Friday, 26 March 2021 2:46 pm To: watercareapplication ; [email protected] Cc: Glen Tupuhi Subject: Re: Nga Muka Development Trust submission Importance: High

Pleases accept Nga Muka's submission supporting all concerns indicated by Waikato River Authorities

Again confirmation of receipt from recipients required please

Nga Mihi

Kay Davis

Administrator

Nga Muka Development Trust

021 079 4046

: Nga Muka Development Trust Sent: Friday, 26 March 2021 2:03 PM To: [email protected] ; z Subject: Nga Muka Development Trust submission

Please confirm receipt of this email

Thank you

Nga Mihi

Kay Davis

Administrator

Nga Muka Development Trust

-- Ngaa mihi Glen Tupuhi