Case book for Opening Submissions for the Applicants
Table of contents
1. Report of the Special Tribunal on an application to amend the Water Conservation (Buller River) Order, 20 December 2007 2. Rangitata South Irrigation Ltd v New Zealand and Central South Island Fish and Game Council Dec No. C 109/2004 3. Report of the Special Tribunal on a Water Conservation Order Application for the Oreti River, November 2007 4. Interim Decision on Application to Vary the Buller Water Conservation Order, 11 July 2007 5. Re Talley as Trustees for Majac Trust EnvC C006/06 6. Re an Inquiry into the Draft National Water Conservation (Kawarau) Order C33/1996 7. NZ Paper Mills Ltd v Otago Acclimatisation Soc [1995] NZRMA 155 8. Re Whitewater New Zealand Inc [2013] NZEnvC 131 9. Re an Inquiry into the Draft National Water Conservation (Mohaka River) Order W20/92 (PT) 10. Ashburton Acclimatisation Society v Federated Farmers [1988] 1 NZLR 78;12 NZTPA 289 CA 11. Report and Recommendation of the Inquiry into the National Water Conservation Order for the Buller River; PT Wellington, C32/96
Decision No. C I o /2004 4 IN THE MATTER of the Resource Management Act 1991
AND
IN THE MATTER of an application for a water conservation order pursuant to section 201 of the Act
BETWEEN RANGITATA SOUTH IRRIGATION LIMITED @MA 80’7102)
TIMARU DISTRICT COUNCIL (RMA 80X/02)
TRUSTPOWER LIMITED @MA 809/02)
RANGITATA DIVERSION RACE MANAGEMENT LIMITED @MA 810102)
FEDERATED FARMERS OF NEW ZEALAND INCORPORATED (RMA 812102)
CANTERBURY REGIONAL COUNCIL (RMA 815102)
Submitters
AND NEW ZEALAND AND CENTRAL SOUTH ISLAND FISH AND GAME COUNCIL
Applicant
BEFORE THE ENVIRONMENT COURT
Environment Judge J R Jackson (presiding) Environment Commissioner C E Manning Deputy Environment Commissioner R Grigg 2
HEARING at Christchurch on 13-17,20-24 October, 3-7 November 2003; at Timaru on 10. 12 November 2003 and in Christchurch on 10-14, 17-21 and 31 May and 2, 3 June 2004. River and canal inspections on 12 November 2003 and 26 May 2004. (Final submissions received 11 June 2004)
APPEARANCES Mr P J Mime and Mr J G A Winchester for Rangitata South Irrigation Limited and Timaru District Council Mr N Davidson QC and Ms Dunningham for Rangitata Diversion Race Management Limited and for TrustPower Limited Ms C English and Ms A Undorf-Lay for Federated Farmers of New Zealand Incorporated Mr M Wallace for Canterbury Regional Council Mr S W Christensen for the New Zealand Fish and Game Council and the Central South Island Fish and Game Council Ms M Baker for New Zealand Recreational Canoeing Association, New Zealand Rafting Association, W Keenan, Rangitata Instream Users Group and Save the Rivers Ms B Burt and Ms J Appleyard for Rangitata Dairies and Others Ms A Limmer for Te Runanga o Ngai Tahu Mr E Alty for the Director General of Conservation Ms E Sage for Royal Forest and Bird Protection Society Dr C D B Burt for himself Mr T Hay for Friends of the Earth Ms P Steven and Mr A Prebble for Ashburton District Council Mrs A P Grigg for herself Mr N G Black for Shepherds Bush Limited
INTERIM REPORT ON A PROPOSED RANGITATA WATER CONSERVATION ORDER
To: The Minister for the Environment The parties 3
TABLE OF CONTENTS Paragraph Part 1 Introduction 1.1 The Special Tribunal’s Report and the background Ul 1.2 The purpose of a Water Conservation Order [I31 1.3 The requirements of Part 9 and the scheme of the RMA [311 1.4 Conclusions as to the method and purpose of the inquiry [531 1.5 Which provisions of the Special Tribunal’s Report are challenged? [601 Part 2 Are certain characteristics outstanding? 2.1 Habitat for terrestrial or aquatic organisms [@I 2.2 Fishery F21 2.3 Recreational, historical, spiritual or cultural purposes t901 2.4 Other characteristics PO31 2.5 Significance under tikanga maori [IO51 Part 3 Is a water conservation order necessary? 3.1 Matters to be considered [IO91 3.2 The needs of industry t1191 3.3 The relevant statutory instruments [I271 3.4 To protect habitat for black-fronted terns? [1311 3.5 To protect the salmon fishery? [1641 3.6 To protect scientific and ecological values? [I821 3.7 To protect recreational values (salmon anglingikayakingl rafting)? WI 3.8 Other matters c2171 Part 4 What terms are recommended? 4.1 Introduction c2231 4.2 The competing flow water regimes 12251 4.3 Wetlands, tributaries and groundwater [2401 [2551
WOI 4
Part 5 Appendices 5.1 Table of flows, abstractions and residual flows below Klondyke 5.2 Draft Water Conservation Order 5.3 Hydrograph for the 1998/g year 5.4 Maps: Figure 1 Rangitata River Catchment Figure 2 Lower Rangitata River
PART 1 Introduction
1.1 The Special Tribunal’s Report and the background Ul On 21 October 2002 a Special Tribunal issued a report recommending that a water conservation order under Part 9 of the Resource Management Act 1991 (“the Act” or “the RMA”) be made in respect of parts of the Rangitata River in Canterbury. As required by the Act, this is a report on that report.
PI The issues for the Special Tribunal to report on were:
(1) What are the correct legal tests to apply when considering an application for a water conservation order? (2) Are certain characteristics of the Rangitata River outstanding? (3) Is a water conservation order necessary to sustain any outstanding characteristics? (4) What order (if any) is it appropriate to recommend?
The issues for the Environment Court are, begging the answer to (1) slightly, whether the Special Tribunal was correct in its answers, or whether in the light of further evidence on some issues we should make different recommendations.
We set out the background to this inquiry and answer question (1) in Part 1 of this ort. We report on the other three issues and on our recommendations in Parts 2 to 4. 5
Theparties to the inquiry [41 Because of their concerns about the report and the draft water conservation order, various submitters to the Special Tribunal lodged further submissions with the Environment Court under section 209 of the RMA. At the inquiry which the Environment Court is required to conduct under section 210 of the Act we heard from the following parties:
Further submitters (to the Environment Court)
l The Canterbury Regional Council (“the CRC” or “ECan”);
l Rangitata South Irrigation Limited (“RSIL”);
l The Timaru District Council (“TDC”);
l Rangitata Diversion Race Management Limited (“RDRML”);
l TrustPower Limited (“TrustPower”);
l Federated Farmers of New Zealand Incorporated (“FF”);
Applicant
l New Zealand and Central South Island Fish and Game Council (“Fish and Game”);
Primsrv Submitters
l The New Zealand Recreational Canoeing Association (“NZRCA”);
l New Zealand Rafting Association;
l Mr W Keenan;
l The Ashburton and Rangitata Instream IJsers Group;
l Rangitata Dairies Limited and the Rangitata Dairies Partnership; . Te Runanga o Ngai Tahu’(“Ngai Tahu”);
l The Director-General of Conservation (“the Director-General”);
l The Royal Forest and Bird Protection Society Incorporated (“Forest and Bird”);
l DrCDBBurt; . Friends of the Earth Incorporated; 6
l The Ashburton District Council (“ADC”); * Mrs A P Grigg; * Shepherds Bush Limited.
[51 Each of the parties has an interest in the Rangitata River, Several take, or wish to take, water from the river. In our inquiry we have had regard to the submissions of and evidence for each of those persons even if we do not specifically identify them further at each point on which they had something relevant to say. Some other persons lodged submissions and/or appeared at pre-hearing conferences but did not appear at the hearings. We give no weight to their submissions. Finally, although it appeared before us, Friends of the Earth Inc neither called evidence nor presented any submissions to the hearing.
The Rangitata River 161 The Rangitata River is 140 kilometres long, with a catchment of 1,600 square kilometres. It runs from the glaciers and snowfields of the Southern Alps, eastwards to the Pacific Ocean. The river is one of four large braided rivers (the others are the Waimakariri, Rakaia and Waitaki) that have formed the extensive gravel outwashes that are the Canterbury Plains. A map’ of the Rangitata River catchment is included as an appendix in Part 5.4 of this decision as Figure 1.
[71 The river is a very dynamic system. It has an annual mean flow* at Klondyke of 100 cubic metres per second (“cumecs’“) and a median flow at that point of 78.2 m3/sec. The mean annual flood (which occurs on average every 2.3 years) is about ten times the mean flow, Floods greater than that - more than 1,000 cumecs - carry out the major reshaping of channels and removal of weeds.
WI Aider the river is joined by its three steep and fast-flowing tributaries-the Havelock, Clyde and Lawrence - the upper Rangitata flows in a broad braided stream between the
Figure 1 is taken from the Special Tribunal’s Report. Dr MP Mosley evidence-in-chief pam 15. The~other abbreviations are “n?/sec” or ‘kn3/s”. Note also that 1 cubic metre = 1,000 litres.
__-.-~~~ ~~-_ ------__ 7 terraces of Mesopotamia and Erewhon Stations, past Mt Sunday and the shades of Edoras. Towards the eastern end of this huge upland valley it is joined by two important salmon- spawning streams - Deep Creek from the north and Deep Stream from the south, The river then flows into a narrow gorge cut through the argillite and greywacke below Whiterock and emerges at Klondyke. At Klondyke there is a water recorder and an intake for the Rangitata Diversion Race (“RDR”) which, currently, takes the largest volume of water from the river, for irrigation on the north (Ashburton District) side of the river,
PI The lower river is the remainder of the Rangitata River from Klondyke southwestwards to the sea. A map of the lower river is an appendix -Figure 2 - in Part 5.4 of this decision. For convenience we divide the lower river into four sections:
l the Arundel stretch from Klondyke to the Arundel Bridge on State Highway 72 (this stretch of the river is single-channel or semi-braided);
l the Ealing stretch between the Arundel Bridge and the State Highway 1 bridge;
l the Island stretch from the State Highway 1 bridge to the estuary (this and the previous stretch are braided);
l the estuary and mouth of the Rangitata River.
[lo] The Special Tribunal found that the upper river down to and including the gorge had various outstanding values. At our inquiry there was no challenge to those findings, or the consequent recommendations as to a water conservation order in respect of them. The recommendations which have been challenged before us all relate to the lower Rangitata, that is the river below the gorge.
[ 111 Maximum current abstractions of water from the river are usually stated as being:
Surface waterpermits . 30.7 cumecs at Klondyke (on the north bank) for the Rangitata Diversion Race Scheme (“the RDR”); . 1.007 cumecs at Cracroft for the ADC stock water supply;
-, -- __.--.. 8
. J&X8 cumecs for others from a site just above the State Highway 1 bridge; (Subtotal 31.970) Groundwuterpermits . 0.817 cumecs (26 water permits) Total 32.787 (approximately 33 cumecs)
However Mr P F Callander, a groundwater hydrologist called by the CRC, wrote that hydraulically connected water permits allow 2.8 m3/sec to be drawn from connected groundwater and that is equivalent to a 1.5 m3/sec draw down from the Rangitata River rather than the 0.817 cumecs usually tabulated. In addition RSIL has applied to take 8 cumecs from a point below Klondyke but upstream of Peel Forest on the south side of the lower river.
% [ 121 The extractions described above are maxima. Under the 1986 Rangitata River Water Management Plan adopted by the predecessors of the CRC and implemented by them and the CRC, abstractions reduce as flows at Klondyke decrease. We attach as Appendix 1 a table prepared for Mr Milne, counsel for the TIX and RSlL, at our request. The first column enumerates Klondyke flows between 29 m3/sec and 115 m3/sec. The second to fourth show the water takes increasing/decreasing as Klondyke flow increases/decreases, and the fifth column shows what is left in the river. It will be noted that the residual flow does not steadily decrease proportionately to Klondyke flow.
1.2 The purpose of a water conservation order [13] Part 9 of the Resource Management Act 1991 deals with water conservation orders. The purpose of water conservation orders and the policy for accomplishing that purpose are set out in section 199 of the RMA. As to the purpose, subsection (1) is as follows:
199 Purpose of water conservation orders - (1) Notwithstanding anythg to the contrary in Pat II, the purpose of a water conservation order is to recogniseand sustain- 9
(8.) Outstanding amenity or intrinsic values which are afforded by waters in their natural state: (b) Where waters are no longer in their natural state,the amenity or intrinsic values of those waters which in themselveswarrant protection becausethey are consideredoutstanding.
The words ofsection 199 [14] Several words or phrases in section 199(l) were the subject of submissions as to their meaning:
. ‘sustain’; . ‘outstanding’; . ‘are afforded by’; . ‘natural state’; . ‘notwithstanding anything to the contrary’; . ‘protection’.
We discuss the meanings of those terms shortly.
[15] However first we tiote that some of the words axe defined in section 2 of the Act:
“Amenity values” means those natural or physical qualities and characteristics of an area that contribute to people’s appreciation of its pleasantness,aesthetic coherence, and cultural and recreation attributes:
“Intrinsic values”, in relation to ecosystems,means thoseaspects of ecosystemsand their constituent parts which have value in their own right, including .-
(a) their biological and geneticdiversity; and (b) The essential characteristicsthat determine an ecosystem’sintegrity, form, fimctioning, and resilience:
-- 10
[I61 ‘Sustain’ is defined in The Concise Oxford. Dictionary4 as (relevantly):
1 Support,bear the weight of, esp.for B long period. 2 Give strength to; encourage, support 4 Endure,stand; bear uyagainst 9 continueto represent(a part,character, etc) adequately.
All those senses, and particularly the last, have some application to ‘sustain’ as used in section 199 of the RMA.
[17] In the first case on Part 9 of the RMA - Ra an Inquiry into the Draft National Water Conservation (Kawarau) Order’ the Planning Tribunal referred to the reports in Re Draft National Water Conservation (Matauua River) Order (C32190) and Re Draft Water Consewation (Mohaka River) Order (W20/92), and stated that the Tribunal held that:
the test as to what is outstanding is a reasonably rigorous me and that to qualzfi as outstanding a characteristic would need to be quite out of the ordinary on a national basis
[emphasisadded]
We accept Mr Milne’s submission that:
the amenitiesshould stand out on a nationalcomoarative basis. If onetakes a nationalcomvarative approachthe fact thatthe wider regionis well endowedwith similar high quality features,may well suggestthat particularwaters do notstand out whenconsidered in a nationalcontext.
There is one qualification to that which we discuss in the context of section 199(2).
[18] In passing, although we are not in this inquiry directly concerned with section 199(l)(a) we note that ‘are afforded by’ is a difficult phrase. ‘Afford’ is defined by The Concise Oxford Dictionarv” as meaning (relevantly):
Eighth Edition Ed. R E Allen (Clarendon Press, Oxford, 1990). C33/1996 atp. 5. Eighth Edition, Ed R E Allen pub. Cit. 2 yield a supplyof. 3 provide.
The use of the passive voice ‘are afforded by’ has two possible meanings7:
(1) it may express continual action as meaning ‘ . which are w afforded by waters in their natural state’; or (2) it may express the state resulting from an action.
Since the waters contemplated by section 199(l)(a) are unaffected waters, because they are ‘waters in their natural state’ we consider that it i.s the continual action - sense (1) above - which is intended by the phrase. The concept of waters flowing past as continual action is a very old metaphor8 for the state of flux in the world of humans and other natural and physical resources. The Rangitata River is certainly a very changeable part of the natural world as all the hydrologists to give evidence emphasised.
[19] Counsel for the RDRML and TrustPower, and for the TDC and RSIL submitted strongly that the waters below the Klondyke gates are not in their natural state because of the RDRML take of up to 31 m3/sec. In our view that is an artificial argument for two reasons. First the RDRML water permits have expired,and any current abstractions are authorised only temporarily under section 124 of the RMA. Secondly the RDRML abstractions are not continual. For example during the reconvened hearing the Klondyke intake gates were shut and the canals dewatered for routine maintenance. For a period of about two weeks the natural flow of the Rangitata was restored. We hold that we should consider the Rangitata flow as if the RDRML water takes were not occurring. Of course that some of the river’s qualities are alleged to be outstanding despite the nearly continual abstraction is very strong evidence that those qualities are sustained notwithstanding the water take.
Modem English Svntax CT Onions ed. B D H Miller (7th Edition, 1971, Routledge and Kegan Paul) at para 138. ‘You cannot step twice into the same river’: Heraclitus in Plato’s Craiylus. 12
[20] ‘Natural state’ means towards the pristine end of the artificial/polluted to pristine continuum,
The context of section 199 [21] It is important that section 199 does not begin ‘notwithstanding anything in Part II ’ but ‘notwithstanding anything to the contrary in Part II’ [our emphasis]. The qualifying words make it clear that not all of Part II is not to be ignored but only those aspects of Part II which are contrary to the purpose stated in section 199. As explained in New Zealand Rail Limited v Marlborough District Council9 ‘contrary’ has the sense of ‘repugnant or antagonistic to’.
[22] The phrase ‘notwithstanding anything to the contrary in this or any other Act’ was considered by the Court of Appeal in Rix v Controller and Auditor-General”. The Court stated that the phrase meant that the provisions of other Acts which were contrary to the section under consideration must be disregarded. It referred to an Australian case in BZand Brothers and Inglewood Borough Council” in which the Court stated:
As to the introductory words, the section should first be conshued without them, and then, if there is anything in. the other provisions of the Act inconsistent with the interpretation so arrived at, these other provisions must yield. This was in effect decided, as we understand, by all the Justicesof England in Sir Thomas Cecil’s case’*, where it was said that the Act otherwise was to be no impediment to the interpretation of a section containing the words ‘notwithstanding etc.’
[23] Mr Mime submitted that section 199(l) downgrades the conservation focus of the Act. We hold that it has the opposite effect - it focuses on the protection aspect of the conservation purpose by excluding consideration of matters which are opposite to that purpose.
9 [I9941 NZRMA 70 at 80 (HC). [1948] NZLR 1021. (No. 2) [1920] VLR. 522 [1597] 7 Co. Rep. 18b, 19, 20. 13
[24] Whether the application of any part of sections 5 to 8 of the MA is contrary to section 199(l) is a matter of judgement on the facts in each case. However it is more likely for example that the matters of natural importance in section 6(a) to (c) should be recognised and recommendations made as to how to provide for them in (nearly) the normal way. That is because the preservation of the natural character of the margins of the Rangitata River, the protection of any outstanding natural feature and of any significant habitat of indigenous fauna are not repugnant to the section 199 purpose but entirely consistent with it. The exception - a point reiterated frequently by some counsel - is that it is not a part of the purpose of a water conservation order to enhance characteristics so they become outstanding or even to improve them if already outstanding.
[25] We conclude that in addition to the matters we must have regard to under section 212, we must also consider those provisions of Part II which are not excluded on the facts before us as being contrary to section 199(l) of the Act.
The methods ofwater conservation orders [26] The Act provides three methods for achieving the purpose of a water conservation order13. The first is that an order may provide for the preservation14 of a water body which is both in its natural state and outstanding. The applicant did not seek such an order in respect of the entire river, so it would be unfair to persons who have not made submissions to the Special Tribunal (or to this Court) to consider that option now.
[27] The Special Tribunal did find that certain headwater tributaries of the river as well as the upper river and the gorge are outstanding under section 199(2)(a) of the Act and should be protected accordingly. No submitter to the Environment Court challenged those findings or recommendations.
In section 199(2) of the RMA. Section 199(2)(a) of the RMA. 14
[28] Secondly section 199 also authorises orders in respect of five characteristics!’ if any one or more is considered to be outstanding:
(1) as a habitat for plants or animals;
(2) as a fishery; (3) for wild scenic or other natural characteristics; (4) for scientific and ecological values; or (5) for recreational, historical, spiritual, or cultural purposes,
JYnfact that list seems to cover most of the possible non-industrial uses humans could make of a river and its water. We have some difficulty in understanding how we are to begin to make the comparative assessment required by outstandingness in relation to cultural, let alone spiritual matters.
[29] FinallyI there is a policy for achieving the purpose of a water conservation order by protecting the characteristics of a river (or lake) which are of outstanding significance in accordance with tikanga Maori. That provision leads to another difficult issue in that it was the evidence of the Ngati Huirapa hapu - the tangata whenua in whose rohe the Rangitata River runs - that it is not tikat7 to make comparisons across iwi in relation to resources. Thus the national comparison required in other parts of section 199 does not appear appropriate under section 199(2)(c).
[30] Collating the various appropriate definitions we conclude that the meaning of section 199 which is most relevant here is that the purpose of a water conservation order is to restrict the Regional Council’s.powers to the exterrt necessary for the natural but not pristine characteristics of the river (including tributaries, wetlands within its catchment, and hydraulically’connected groundwater) which are out of the ordinary on a national basis to be maintained in their current quality and quantity.
Section 199(2)(b) of the RMA. Section 199(2)(c) of the RMA. Roughly ‘correct’. 15
1.3 The requirements of Part 9 and the scheme of the MA Part 9 [31] Part 9 of the FLMA is relatively self-contained in that it largely contains its own purpose and procedures. The purpose stated in section 199 is, as we have stated, also subject to the non-contradictory aspects of Part 2, and various aspects of procedure are imported from Part 6 (resource consents). The proper approach to Part 9 of the RMA is to look carefully at the meaning of the words used in each of its sections in the light of the purpose’* as stated in section 199, and to look at the relationship between the sections,
Comparison with water and soil legislation [32] We have considered, only to dismiss, comparisons with the ‘Water Conservation Orders and. Notices’ provisions in section 20A to 201 of the (repealed) Water and Soil Conservation Act 1967 (“WSCA”). Substantively and procedurally the differences between the WSCA and Part 9 of the RMA are so great that we consider it is not useful, and indeed is probably misleading, to consider the former except as to some guide to the interpretation of identical words or phrases in the latter. The main substantive difference is that the purpose of a water conservation order is now affected by Part 2 of the MA to some extent, and , there was no equivalent (only a long title) in the WSCA. There are many procedural differences: the most important is that a Special Tribunal is now appointed to conduct a hearinglg and to make a report.
[33] Under the WSCA an Authority had a choice as to whether to hear or merely consider the application. The Planning Tribunal had a duty, if submissions were made to it on a draft order, to consider” the submissions on it and to conduct a public inquiry for that purpose. Only the Planning Tribunal had to report, and that report was ‘on the application and the draft order’21, not on an e,arlier report.
18 Section 5 Interpretation Act 1999. 19 Section ZOB(3) and (4) WSCA 1967. Section20C(2) WSCA 1961. Section 2OC(6) WSCA 1961. /
16
Context of section 199 [34] The context of section 199 is that after it defines the purposez2 of a water conservation order, Part 9 of the Act then defines”3 such an orderas one made under section 214 which imposes restrictions or prohibitions on a regional council’s power? in relation to water.
[35] Any person may appl$’ for a water conservation order if they identify the water body concerned, state their reasons, and describe the provisions which they wish to be included in the order. The Minister for the Environment maya reject the application or, after consultation with other Ministers, appoint a Special Tribunal to hear and report on it. The Special Tribunalz7 needs to ensure2’ that the application is publicly notified nationwide and served on specified persons. The notification procedures for resource consents in section 92 apply9 to the public notification of an application for a Water conservation order.
[3G] The procedures for making submissions3’ to the Special Tribunal; for its conduct of the hearing3’; consideration3’; report33and notice”4 are all specified.
[37] Any of three categories3s of persons - the applicant, a primary submitter or anyone granted leave by the Court - may then make a submission “in respect of the whole or any part of the report” to the Environment Court which is then obliged3” to “conduct a public
22 Section 199 of the RMA. 23 Section 200 of the RMA. 24 Section 30(l)(e) and (f) of the RMA. 25 Section 201 of the RMA. 26 Section 202 of the RMA. 27 Appointed under section 203 of the RMA. 28 Section 204 of the RMA. 29 Section 204(3) of the RMA. 30 Section205 of the F&IA. 3, Section 206 of the RMA. 32 Section 207 of the RMA. 13 Section 208 of the RMA. Section 208(2) of the RMA. Section 209 of the RMA. Section 210 of the RMA.
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inquiry in respect of the report to which the submissions relate”. It is of some significance that the inquiry is into the report and not merely into the application for a water conservation order for the water body concerned. That statement as to the scope of the inquiry together with the facts that a submission is in respect of the Special Tribunal’s report, and that the Court’s duty (discussed shortly) is to have regard to the Special Tribunal’s report37, entail, in our view, that the initial report is the starting point for the inquiry.
[38] The persons who have the right3* to be heard or represented at the Environment Court’s inquiry are: the applicant, the Minister for the Environment, the relevant regional council and affected territorial authorities, every person who made a submission to the Special Tribunal and any person granted leave by the Court3’.
The Minister was not represented at our inquiry but the Canterbury Regional Council and the two relevant territorial authorities were, as listed earlier with the other persons we heard.
[39] The matters to be considered by the Environment Court in its inquiry are stated in section 212 of the RMA:
In conducting its inquiry, the Environment Court shall have particular regard to the purpose of a water conservation order and the other matters set out in section 199, and shall also have regard to -
(a) The needs of primary and secondary industry, and of the community; and (b) The relevant provisions of every national policy statement, New Zealand coastal policy statement, regional policy statement, regional plan, district plan, and any proposed plan; and (c) The report of the special tribunal and any draft water conservation order; and (d) The application and all submissions lodged with the Environment Court; and (e) Such other matters as the Environment Court thinks fit. [Our emphases]
Section 212 of the MA. Section 211 of the RMA. Under section 209(l)(c) of the RMA.
-, -- - 18
Have (particular) regard to [40] Because the words “shall have particular regard to” are also used in section 7 of the RMA, it was initially tempting to look at the cases on that section. Various rather conflicting decisions of the Planning Tribunal and the Environment were cited to us: Gill v Rotoma District Council’; Marlborough District Council v Southern Oceans Seafood Limited”; and Ngati Hokopu ki Hokowhiti v Whakatane District Counci142. However, as the last case pointed out, to ‘have particular regard to’ in section 7 of the RMA is part of a hierarchy43 of weightings to be given to various factors and identified in sections 6 to 8 of the Act.
[41] Normally to have regard to a submission requires that it be given ‘genuine attention and thought’ ,but it might be rejected wholly or partly: NZ Fishing Industry Association Inc v Ministy ofAgricultural and Fisheries4”. However, the interpretation of such words always depends on the context in which they are used: Bleakley v Environmental RiskManagement Authority4’.
[42] In this case the context is very important. As Mr Davidson QC, for RDRML and TrustPower, and Mr Wallace, for the CRC, pointed. out to us in their final submissions, there is a good reason that the words used when specifying matters to be considered by the Environment Court4’ are that the Court is to ‘have (particular) regard to’. The reason is that the Court, like the Special Tribunal before it, is only conducting an inquiry and making a recommendation to the Minister for the Environment. Neither the Special Tribunal, nor the Environment Court, has any power to make a decis~ion. It would have been inappropriate for Parliament to state that the Special Tribunal or the Environment Court should ‘recognise and
40 [I9931 2 NZRMA 604. 41 [1995] NZRMA 220. 42 (2003)9ELRNZ 111. 43 We areinclined to thinkNgati Hokopuat pm [36] has the,bierarchy of the weighting3 in sections 5 to 8 wrong when it says the sections are in order of decreasing importance, because ‘to take into account’ in section 8 is more serious - or ‘heavier’ -than ‘to have particular regard to’ in section 7 of the RMA. [1998] 1 NZLR 544 at 551 (CA). [2001] 3 NZLR 213 at para [73] (HC). As stated by the heading to section 212. 19 provide for’47 the purpose of a water conservation order. Any power to provide for certain matters is vested in the Minister for the Environment.
[43] Thus in section 212 the Environment Court is to consider the identified matters. The difference between having regard to the matters in paragraphs (a) - (e) and having ‘particular regard to’ the purpose of a water conservation order is to give extra emphasis to that purpose as defined in section 199 of the Act.
[44] It is therefore unhelpful to compare the wording in section 212 - have (particular) regard to - with the various formulae in Part 2 of the Act. Those formulae still apply except to the extent they are contrary to section 199. Subject to that qualification we are, in effect, to have particular regard to (in the section 212 sense) the matters which are to be recognised in section 6 of the Act, and indeed to the purpose of the Act in section 5.
[45] After completing its inquiry the Environment Court reports to the Minister recommending that the Special Tribunal’s report be rejected or accepted with or without modifications. As we have stated, our report is on the Special Tribunal’s report, not simply on the application for a water conservation order. The Minister may OT may not make a water conservation order, and does not need to give reasons for differing from the Special Tribunal or the Environment Court. There is no time limit for the Minister to make up his or her mind.
The differences between sections 207 and 212 of the MA [46] The main differences between sections 207 (matters ‘to be considered by the Special Tribunal) and 2 12 are:
(1) the Special Tribunal’s inquiry is into “the application” whereas the Environment Court’s is on the Special Tribunal’s report;
The formula used in section 6 of the RMA.
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(2) the Special Tribunal has regard to the submissions lodged with it - and there are prescriptions for the contents of such submissions; whereas th.e Environment Court has regard only to “the application akd the submissions lodged with the Environment Court”. The Environment Court does not consider the original submissions (except jurisdictionally to ascertain the scope of its inquiry); (3) the Environment Court must have regard to the Special Tribunal’s report. In other words the Environment Court can build on the strengths it finds in the earlier report.
[47] We conclude from the format and content of Part 9 of the RMA that the Special Tribunal’s report is not intended merely to be a procedural step on the way to a complete Environment Court report. To the contrary: the report by the Special Tribunal is the primary one in time and in general importarice. The Environment Court hearing is to enable a secondary report on matters of concern to further submitters who wish to challenge findings in the Special Tribunal’s report by calling evidence and cross-examining witnesses.
Effect of a water conservation order OIZ water permits [48] Finally we need to note the effect of section 217 of the RMA. This states (relevantly):
217. Effect of water conservationorder - (1) No water conservation order shall affect or restrict any RWXUCBconsent granted OI any lawful useestablished in respect of the water body before the order is made. [Our emphasis]
[49] As Mr Davidson QC pointed out, this could mean:
(a) the Minister is prohibited from making a water conservation order which is inconsistent with existing resource consents; or (b) if a water conservation order is made on terms which happen to be inconsistent with existing resource consents then the tatter prevail until they expire. 21
Mrs A P Grigg, appearing for herself, strongly argued that (a) was correct.
[50] Based on interpretation of nearly identical words in section 20D WSCA we are inclined to think that interpretation (b) is correct for the reasons stated by the Court of Appeal in Ashburton Acclimatisation Society TVFederated Farmers of New Zealand Incorporated 48(“the Rakaia case”):
Section ZOD(7) [the equivalent of section 217 RMA] provides that nothing .+I this section or in any order made under it shall affectcx restrict atly right in respect of natural water granted or authorised before the order was made. Existing water rights and authorisationswill therefore be unaffected by the minimum flow requirementsand the other terms of the order if it is made. Subsequentrenewals, which are obtainable only in practice and not as of right, would be subject to any relevant controls imposed by the order. There could be no legitirnzkteexpectation otherwise, for it would defeat the schemeof the statutorycode.
However, since we are only reporting to the Minister and we do not have to interpret section 217 of the RMA to make our recommendations, we do nOt decide the issue here.
The scheme of the Act [51] We have already briefly discussed the role of Part 2 of the Act. We should also recognise that section 65 of the Act allows a regional water plan to be prepared which can deal with water allocation issues with more flexibility than the simple ‘plug in the bath’ approach of Part 9. A regional water plan is prepared subject to Part 2 of the Act without modification, so different, and more familiar tests apply under sections 5 to 8 of the Act. They authorise remedying of adverse effects and enhancement of resources (where appropriate). Both of those approaches to resource management appear to be largely precluded by the water conservation order regime in Part 9 of the Act.
[1988] 1 NZLR 78. 22
[52] Similarly Part 6 of the RMA (resource consents) allows water permits to take water to be granted in much more detail and with conditions to remedy or mitigate adverse effects, or even to enhance certain qualities of the river, and again, subject to49Part 2 of the RMA.
1.4 Conclusions as to the method and purpose of the inquiry [53] Substantively a water conservation order .is a plug in any unnatural outlets of water quantity and quality. It establishes the water levels which must not be lowered if the purpose of an order is to be achieved.
[54] The purpose of a water conservation order under Part 9 of the RMA is to provide a waterline (of quantity and quality) below which the river should not be drawn on. It is, as Mr R M Batty, the planner for RDRML and TrustPower, wrote, a crude (and we would add, very expensive) tool in the otherwise relatively sophisticated regulatory toolbox which is the RMA.
[55] The basic issues when considering an application for a water conservation order are:
(1) whether outstanding characteristics exist in the river; (2) if so, whether those characteristics are threatened by potential changes to flow, water quality, temperature, etc; (3) whether an order is necessary to sustain the outstanding characteristics, having regard to; (4) the matters in section 207(2) -which are in our view designed to ensure that an overly idealistic approach to the river’s waterline is not taken.
[56] Given that the Special Tribunal has already issued its report, the steps in this inquiry by the Environment Court are therefore:
(1) to identify the recommendations of the Special Tribunal which are challenged;
See the introductory wards to section 104 RMA.
( 23
(2) to report on whether the challenged values are outstanding; (3) to report on whether the Special Tribunal has correctly identified threats to the outstanding qualities of the river; (4) to have regard to the matters raised in section 212; (5) and where not contrary to section 199(l) to apply Part 2 of the Act; (6) to recommend changes to or deletion of the Special Tribunal’s report; (7) to identify the terms of a proposed water conservation order (if appropriate).
Burden and standard ofproof [57] As to the burden and standard of proof: to the extent those concepts apply to inquiries - see Shirley Primary School v Christchurch Ci& Councilso, there is a legal (or persuasive) onus on the applicant and supporting parties to put forward evidence to the Special Tribunal which would establish that the necessary judgements could be made as to outstanding qualities. That legal or persuasive burden remains on the applicant and supporting parties through the Special Tribunal inquiry and, if necessary, the Environment Court inquiry.
[58] However, once it is found that a part of the river has outstanding characteristics then the purpose of a water conservation order and the non-repugnant sections” in Part II of the Act entail that there is a presumptions2 that those characteristics should be recommended for specified protection. To that extent we are adopting (respectfully) the approach of the Court of Appeal in the Rakaia water conservation order case: Ashburton Acclimatisation Society v Federated Farmers of New Zealand Incorporatedi3. That case was about the WSCA 1967 which did not contain any provision as powerful as Part II of the RMA.
[1999] NZRMA 66 at paras [114] to [125]. Usually section 6(a) to (d). For potential complications about ‘presumptions’ see D L Mat&son Cross on Evidence (3rd New Zealand edition, Butterworths 1979) [I9881 1 NZLR78 at 88. 24
[59] As to the evidential burden, it is worth recalling that this is the second inquiry and the first should not be ignored54. Once the Special Tribunal has made its report, its conclusions and recommendations are the new starting point. In this inquiry, there is a different responsibility - an evidential burden - with any person seeking a change to those recommendations to call enough evidence to convince the Environment Court that the Special ‘Tribunal was wrong on the particular issue. Like tennis that will mean that submitters will need to call further evidence to shift the evidential burden back on to the opposing parties. There is one exception to the rule about the evidential burden. It is that the effect of the presumption in the previous paragraph is that once the evidence establishes that the river has an outstanding characteristic then there is an evidential burden on any person who seeks an order to do something other than maintain the status quo for the water’s quality and quantity.
1.5 Which provisions of the Special Tribunal’s Report are challenged? [60] The Special Tribunal conducted a painstaking and open inquiry over 27 days in 2001. Its report is 138 pages long and includes conclusions and the reasons for them. In addition its recommended draft water conservation orde? is a further three pages, and there were many more pages of further appendices. The report is, in our respectful view, comprehensive and lucid on the issues it properly identified as relevant.
[61] The Special Tribunal described its decision-making process as follows56:
The tribunal fast evaluated which, if any, of the characteristics, values OI purposes able to be protected or preserved by a water conservation order were outstanding (Part III). We also considered whether or not the waters are in their natural state (Part II). During this part of our deliberations we did not consider whether or how to recognise and provide for protection for any feature that we found to be outstanding.
Section 212(c) of the Act. Special Tribunal Report Appendix 1. Special Tribunal Report pp 8 and 9. 25
Having concludedthat there were outstanding features,the tribunal assessedthe needsof primary and secondaryindustry and the community and reviewed relevant plans and policies (Part IV and Part v).
Next the conditions required to protect the outstandingfeatures were de&mined, and then allowance given for industry and community needs that could be met while still protecting the outstanding features (Part VII). At this point the tribunal decidedthat a water conservation order was necessaryto protect or preserve the outstandingfeatures and a draft was prepared (Part VIII and Appendixl).
We consider the Special Tribunal generally applied the correct approach required by Part 9 of the Act.
[62] The Special Tribunal founds7 that the whole of the Rangitata River was outstanding in respect of the following values:
l the salmon fishery;
l the braided nature of the river;
l the macro-invertebrate population;
l spiritual cultural values; and
l tikanga Maori.
The Special Tribunal made no recommendation for an order for the whole of the Rangitata River under section 199(l)(a) of the RMA. It found that some of the waters of the river are no longer in their natural state because of various takes of water from the river, and because particularly in the lower river, there has been considerable work along the banks of the river’*. No person made a submission challenging any of those findings without also challenging the outstandingness of various parts of the river. So we consider all challenges to the report under the headings outlined in the following paragraph.
Special Tribunal Report p. 78. Special Tribunal Report p. 21. 26
[63] The Special Tribunal also founds9 that certain parts of the lower river contained outstanding features, characteristics or values which need to be protected by an order. We list these as’follows:
Arundel stretch salmon fishery water-based recreation salmon angling Tikanga Maori amenity/intrinsic values Ealing and Island stretches aquatic bird habitat fishery - salmon salmon angling spiritual / cultural Tikanga Maori
All these were challenged by one or other parties - either as to whether the values are outstanding (see Part 2 of this report), or as to whether they need protection (Part 3) by a water conservation order.
[64] In addition the Special Tribunal attached a draft water conservation order. Its terms were questioned by a number of the parties and their witnesses, and we consider these later, in Part 4 of this report.
[65] At present, it will probably suffice if we summarise the flow regime recommended by the Special Tribunal and compare that with the regimes sought by the parties, or suggested by their witnesses. The (quantitative) flow regimes have (at most) three components:
(4 minimum flows;
SpecialTribunal Report p. 78. 21
(b) flow sharing; and (cl a cap on abstraction so that no more than say 33 m3/sec can be taken.
[66] As possible improvements on the Special Tribunal regime, we have been presented with five other flow regimes. They are:
l the ECan regime;
l the DOC!/F&B regime;
l the TDURSIL B2 regime put forward by Mr Freestone;
l the RSIL 3 m3/sec additional take alternative regime; . Dr M P Mosley’s regim@‘.
1671 Whilst we found the evidence of Dr Mosley, a hydrological and environmental scientist called by the CRC, very useful and his hydrographs the best presented of all the graphic simulations of annual river flows given to us, no party argued for his flow regime so we do not consider it further, especially since he expressly acknowledged at the outset that he did not take the needs of industry into account. We attach as an appendix in Part 5.3 a copy of Dr Mosley’s hydrograph for the 1998/g year - a year which he described as average. This shows changes in natural flow throughout the year. The first and most graphic feature is the dynamism of the river: the freshes and floods regularly change the flows by factors of 10 and more. Also worth noting on this figure are the various flow regimes suggested by the parties, and compared with the water conservation order’s flow regime. The lines are:
Dark blue = naturalised flow; Red = draft water conservation order; Light blue = CRC proposal 1; Green = CRC proposal 2 (including flow sharing)
Dr Mosley was an expertwitness for the CRC. 28
The gray line is a proposal by Dr Mosley for a higher minimum flow). We note that the big danger of looking at a hydrograph like this is to think that the minimum flows do not really matter at all.
[68] A convenient table showing the Special Tribunal’s recommended regime and those of the other parties, all compared with the existing regime of abstractions was presented to us. We have amended the table to show OUTunderstanding of the parties’ ultimate positions at the end of the hearing:
Minimum Draft WC0 ECan DOC!Rlrest Rangitata TDC and Flow Month Special (MT Talbot &Bird Dairies RSIL Tribunal) Jan 20 @-- 35 20 Feb 20 30 20 20 Mar 20 25 20 20 API 20 20 20 20 MW 20115 20 20/u 20 Jun 15 15 15 15 July 15 15 15 15 AW 15 20 35 15 SeP 15120 25 35 20 00 20 25 35 20 NW 20 35 35 20 DCC 20 40 35 20 cap 0” Cl W)(d) oppose Support N/A No cap Abstraction cap of 33& at Rows cd less than 1 IO mvs Flaw Share Cl 9 Oppose Support Stepped Provision Stepped draft Order flow share between regime February to above July only minimum flow
It should however be noted that this table is approximate only. A more accurate representation of the key regimes is shown in Appendix 5.1 to this report. 29
PART 2 Are Certain Characteristics Outstanding?
2.1 Habitat for terrestrial or aquatic organisms [69] We consider the questions of outstanding characteristics generally under the headings and in the order of section 199(2) of the RMA. The Rangitata River is habitat for a number of other species in addition to salmon. It contains aquatic macro-invertebrates such as mayflies and stoneflies and several endemic fish species. Its gravel river bed, especially in the braided reaches, is home for a number of birds which have evolved to live in that special environment.
[70] The Special Tribunal found6r that the lower Rangitata from the Arundel bridge to the mouth (i.e. excluding the Arundel stretch) was ‘outstanding aquatic bird habitat’ ‘especially those adapted to unstable gravel river bedCs2. That finding was challenged by several parties led by RDRML. We consider that issue shortly. We shall also mention that the Special Tribunal considered the river as habitat for macro-invertebrates under the heading of ‘scientific and ecological values’ and so does this repo@.
Braided river birds [71] The principal braided river specialists amongst New Zealand birds are the four threatened endemic or indigenous species:
l Wrybill; * Black-fronted tern; . Black-billed gull; * Banded dotterel.
Special Tribunal Report p. 3 1. Special Tribunal Report p. 32. See pat 2.4 below.
i 30
It is important to recognise that those species have evolved to live, and particularly to breed, in the very dynamic environment of braided rivers. They are migratory - spending their winters in coastal estuaries often further north, or, in the dotterel’s case, sometimes in Australia.
[72] Two bird counts have been taken over the last 25 years in the lower Rangitata River - in 1982 and 2000. They give remarkably similar numbers of birds. While the expert witnesses could not agree over how accurate the figures were, they were all agreed that significant populations of the threatened species live in the lower river: black-billed gull : 3260 in 1982 and 2522 in 2000; and black-fronted tern : 284 in 1982 and 484 in 2000.
[73] The lower Rangitata therefore appears to support 5-8% of the national (and world) population of black-fronted terns and 2-4% of New Zealand’s population of black-billed gulls64. The ornithological expert for RDRML and Trustpower, Mr J N Jolly, pointed out that black-fronted terns occur at densities of about 18 per kilometre in the lower river (about the same as the upper river) in December, and that black-billed gulls are over ten times more numerous in the lower river65. The question for us is whether those populations make the lower river outstanding as the Special Tribunal found.
[74] In 1983 the New Zealand Wildlife Services rated sites of special wildlife interest. The survey was undertaken by Dr C F J O’Donnell, a witness before us, for the Director- General. Dr O’Donnell then rated:
0 the upper river as Outstanding; 0 the lower river tis Moderate to High, e and the estuary and mouth as Potential (the lowest category)66.
C F J O’Donnell evidence-in-chiefpara 5.7. J N Jolly evidence-in-chiefp. 15. Notes ofEvidence (2003) p. 288, 11.25-38, p. 289, 1.1. 31
However as he observed in his written evidence to us, the criteria he applied then (in 1983) were rather simplistic.
[75] Dr O’Donnell’s report for Environment Canterbury in 2000 ranked 272 Canterbury water bodies for their significance for indigenous birds. 69, or approximately a quarter of the sites considered, were ranked as nationally or internationally significant. The highest category, High I, included 33 water bodies (12% of the total). The lower Rangitata was just outside that category, and ranked as High 2.
[76] For RDRML and TrustPower, Mr Davidson QC submitted that the rigorous test for “outstanding”, articulated in Re an inquiry into the Draft National Water Conservation (Mohaka River) Order W20/92 is not met anywhere in the lower river. He stated that the mere presence of endangered species cannot be sufficient on its own, and pointed out that there may be hundreds of such water bodies in New Zealand.
[77] For RDRML and TrustPower Mr Jolly gave evidence as to his assessment. He concluded that while the upper river was outstanding as bird habitat, no part of the lower river was. We agree with Mr Alty and other counsel that there is a suggestion in Mr Jolly’s assessment that because the lower stretches were not as significant as the upper river, they could not be outstanding. In our view they are correct, the comparisons are between relevant parts of the river and other rivers, not primarily within the river itself.
Wrybills [78] There is no real suggestion that the lower Rangitata is at present particularly significant let alone outstanding as habitat for these birds. The upper river is of course another matter - it and the upper,Rakaia are apparently the breeding grounds for 80% of the New Zealand (and global) population of this small wader.
. Black-billed gulls 791 Again we have insufficient evidence to find that the population of this species on the ower river is outstanding. 32
White-fronted terns [80] Dr O’Donnell wrote that the 1,000 white-fronted terns breeding and living in the lower river - mainly in the Island stretch and in the estuary and at the mouth - are about 3- 4% of the New Zealand population. While that may be nationally and internationally
significant, we find that it is just less than outstanding. In the absence of any special factors we conclude that to qualify as outstanding the cut-off point should be a minimum of 5% of the national population.
Conclusions [Xl] We find that the upper Rangitata River is globally outstanding as native bird habitat: and that the entire lower river, not just the estuary and mouth, is outstanding habitat for one species - black-fronted terns - based on the cumulative evidence of Mr Jolly and Doctors O’Donnell, Hughey, Keedwell and Schmechel. The factors that lead us to that conclusion are that black-fronted terns:
(a) have a significant proportion (at least 5%) of their world population breeding on the lower river. (b) appear to be in decline generally (although not necessarily on the Rangitata River.- that is not known); (c) have a stronghold on the river, and the lower river should be considered as part of the whole as well as by itself;
2.2 Fishery [82] The Special Tribunal pointed out that ‘fishery’ is not defined in the RMA but includes both6’:
[the] place where fish live (batch, rear, migrate, spawned) and the occupation (commercial or recreational) of catching them.
Special Tribunal Rep&p. 33. 33
It cited dictionary definitions which supported those two meanings. We follow the Special Tribunal in considering the ‘fishery’ in the two aspects:
l salmon and their habitat; and
l salmon angling.
There are of Course other fish species in the river : tuna (eels), brown trout, and various smaller native species. However no party suggested they were outstanding as a fishery.
Salmon habitat [83] The Special Tribunal concluded that?
151. We find that the Rangitata River provides an outstanding salmon fishery in the upper Rangitata River and in the lower river (gorge to sea) because of the spawning and rearing habitat in the upper river, and the. ability provided by the flow regime and water quality that enables juveniles to migrate to sea and adult salmon to return. We find that the gorge, while being mm difficult for adults to mwe upstream, contributes to the outstanding salmon fishery.
No person challenged that conclusion. The real difficulties arose in respect of what an order needs to include to protect those characteristics. We consider that issue in Part 3 of this decision.
Salmon angling [84] The Special Tribunal found6” that salmon fishing is outstanding in the entire lower river. That conclusion was challenged by several parties who, while conceding that the estuary and mouth of the Rangitata River are outstanding, questioned whether the Island, Ealing and Arundel stretches are outstanding for angling.
Special Tribunal Report p. 43. Special Tribunal Report p. 44. 34
[85] There is no question that the mouth of the river and the estuary host the greatest number of anglers at most times in the fishing season (November to April). We heard evidence from a large number of fishers (see Appendix 5.3 to this report) which confirmed that. However, we also read (and in some cases heard) evidence from fishermen who fish other parts of the lower river and who described the angling amenity as outstanding. They prefer to get away from the shoulder-to-shoulder crowds at the river mouth and enjoy the challenge of finding fish in different kinds of water. Fishermen like Mr M Hall have a deep understanding of the river and the fish in it, as demonstrated by their remarkable catch records. A small proportion of expert anglers catch a large proportion of fish: the folk lore is that 10% of the fishers catch 90% of the fish. Further, salmon can be caught in other stretches of the lower river when they are not running at the mouth of the river. Mr Hall believes” that the middle reaches of the lower Rangitata River contain the most productive salmon fishing.
[86] The issue of outstandingness is not a matter of mere numbers. The Rangitata appears to be second only to the Rakaia out of the four large rivers -the others are the more modified Waitaki~ and Waimakariri Rivers - in the southern hemisphere as a river which provides outstanding angling for Chinook salmon, Indeed, Mr I Watson compares7’ the river’s angling favourably with other important New Zealand rivers such as the Tongariro and even the Rakaia. There is no evidence to the contrary. We find the Special Tribunal’s conclusions were justified.
[87] One of the factual issues on which there was some disagreement between experts was what river conditions made for the best salmon fishing. Whilst all were agreed that the ideal conditions were a combination of factors such as weather, time of day, water temperature etc, turbidity (‘water dirtiness’) and a :rising or falling river flow rate (before or after a fresh), there was some disagreement over whether the actual flow made a difference (at least above the summer minimum flow of 20 m3/sec).
Mr M Hall evidence-in-chief para42. Mr I Watson evidence-in-chief pp. 5 and 6.
-- -- - 35
[88] The dirtiness of the water is caused by suspended particles in the water derived from erosion or glacial fill. Turbidity is agreed to be ideal if a fisher in the river in thigh waders can just see his or her toes.
[89] Generally, the experts agreed that ideal turbidity tends to occur at flows at Klondyke of around 110-112 m3/sec maximum and 70 m3/sec minimum. However, Mr Webb’s evidence72 is that in the summer months (January to April) when most fishing in the middle reaches (the Arundel and Ealing stretches) occurs, Klondyke flows of less than 80 m3/sec may be too clear for good fishing.
2.3 Recreational, historical, spiritual or cultural purposes [90] These values are to be identified and protected under section 199(2)@)(v) of the Act. The recreational amenities identified in respect of the lower Rangitata River are kayaking and rafting, jetboating, and angling. We consider kayaking and rafting in the next part of this section. The Special Tribunal did not find that jetboating in the lower river is outstanding, and we heard insufficient evidence to establish that it is, so we consider jetboating no further.
Recreation: kayaking, rafting and outdoor education [91] After a careful and objective consideration of the evidence the Special Tribunal concluded that:
321. There are outstanding recreational values in the following sections:
. upper River: for canoeing, rafting and jet boating . Gorge: for kayaking and rafting . Gorge to Amndel: for kayaking and rafting
M Webb evidence-in-chief exhibit 30.2. 36
323. We fmd that the Rang&& River has outstanding intrinsic values in the upper river, the gorge and in the gorge to Anmdel sections that make it an exceptional place for training for canoeing and rafting and more general outdoor and life skills.
[92] The New Zealand Recreational Canoeing Association and Mr Keenan supported these conclusions. The Timaru District Council, RSIL and Federated Fanners Incorporated challenged them, but called no evidence.
[93] For the first two of those parties Mr Milne submitted first that the earlier surveys undertaken by kayakers73 had not rated the river as highly as they do now. Secondly he submitted that it is likely that any kayaker asked about the river now has an interest in overstating its importance. That is of course one of the reasons that common law courts have traditionally excluded most opinion evidence from persons with an interest in the outcome of case : Ngati Hokopu ki Hokowhitu v Whakatane District Coumd4.
[94] There is also a growing body of economic and psychological studies as to what has been called a ‘status quo bias’75 or ‘endowment effect’76 - people who have a property right or interest77value it more highly than those who do not have it. An everyday example is the ‘offer-asking gap’ in the housing market when vendors demand more for their house than they would pay for it if they did not already own it78.
[95] The endowment effect in relation to environmental degradation was demonstrated in “An Experiment on the Economic Value of Visibility”79. The survey found”:
73 G Egan and J Egan New Zealand Recreational River Survey (198 1). 74 (2003) 9 ELRNZ 111 at [54] and [SS]. W Samuelson and R Zeckhauser ‘Status Quo bias in Decision Making’ (1985) 1 Journal of Risk and Uncertain~ 7. R Thaler ‘Toward a Positive Theay of Consumer Choice’ (1980) 1 Journal of Economic Behaviour and Oreanisation 39 at 44. See section 122 WA. D Kennedy ‘Cost-Benefit Analysis ofEntitlement Problems .,_’ (1981) 33 Stan. L. Rev 387 at 401. D Kennedy ‘Cost-Benefit Analysis of entitlement Problems ..,I [19X1] 33 Stan. L. Rev 387 at 401. R Korobkin ‘The Endowment effect and legal analysis’ [ZOO3 ] 97 Northwestern Universitv L.R. 1227 at 1232. 37
that a sample of residents of the southwest [of the USA] would pay $4.75 per month, on average to maintain 75 miles of air visibility in the face of potential pollution that would reduce visibility to 50 miles. In contrast, however, people drawn from the fame pool and told that they collectively enjoyed the, right to prohibit pollution, reported that they would demand $24.47 per month before being willing to permit the pollution.
[96] That sort of research confirms the need for the usual judicial scepticism; and thus we approach the opinion evidence of the recreational witnesses - and others with a vested interest in the outcome of the inquiry such as anglers and farmers - very carefully. In particular we consider we can put more reliance (but not complete reliance) on recreationalists’ comparative assessments than on their absolute judgements of the value of the Rangitata River.
[97] We accept that Ms Baker fairly summarised the evidence that the lower Rangitata’s outstanding features are:
(a) It is one of the best examples of its type of grade 2 to 3 white water with easy acce.ss and safe boating and excellent tminingsl. (b) this type of white water is generated by the high gradient and large boulder size in the bed, which is an unusual feature in rivers of this size and type and relatively close to the coast. The white water features resulting are the relatively safe but exciting rollercoaster wave trains, as well as holes, convergence zones and eddy lir&. Cc) Only one other river has similar rollercoaster characteristics, namely the lower Cla~ence~~. (4 It is an excellent coaching and training ground for beginners and trainee instactors, because of the accessibility, predictability and comparative safe runs due to clean run outs after rapids and absence of hazards such as trees and other obstnztion?‘. (e) It receives a high level of use from a variety of user groups, for a variety of water based recreation purposes. This variety of users, and variety of water based recreation opportunities, ranging from instruction, team building, personal growth/development courses, multisport and simple recreation is an outstanding feature that is not offered by other rivers. Users range
Mr Keenan 6.1-6.3 and 7.1 and 7.2. DrRankin,para5.10-5.11,MrHay,para5.3-4. Dr Ran!&, evidence-in-chief para 11.6, cross-examination page 553. Dr Rankin at paras 11.8-9, Mr South at pams 7-9. 38
through local schools, clubs, polytechnics, families, clients of the Peel Forest Outdoor Pursuits Centre and individual kayakers from further afield.
[98] It is of interest to read the results of a ‘river use survey’ carried out in 1991 by the (then) New Zealand Canoeing Association,
[99] It ranked the lower Rangitata as “Moderately Important: a river with some unique features, although comparable alternatives exist elsewhere”. Is the upgrading by the witnesses now a result of an ,endowment effect caused by the application for the water conservation order? In fact the issue is more complicated than that. The earlier - 1981 and 1991 - surveys were canoe/kayak focussed, whereas current use of the Arundel stretch (especially between Klondyke and a takeout at Peel Forest) concentrates as much on rafting and education. That is reflected in the Special Tribunal’s findings recorded above.
[loo] Neither the extensive evidence we read for various recreational user groups nor the brief cross-examination of the witnesses substantially weakened the Special Tribunal’s conclusions. We find that there are few other rivers in New Zealand with the same qualities as the Anmdel stretch of the river - in the South Island there is only the lower Clarence River - and none as close to a bigg5 city like Christchurch.
[IO11 We accept Ms Baker’s submission that while in 1991 the Anmdel stretch may have only been “moderately important’ in accordance with the ‘River Use Survey’, since that time it has significantly increased in importance, particularly for outdoor education and recreation, personal development, outdoor experiences and training of students and instructors, to the extent that it is now important on a national scale.
By New Zealand standards. 39
Historical, spiritual or cultural purposes [102] After carefully and sensitively analysing the evidence the Special Tribunal concluded86 that the uppera and lower Rangitata River have outstanding spiritual and cultural characteristics. The upper river had outstanding historical associations also. No person questioned this, for which we are grateful because how a non-Ecclesiastical Court (or any Court) can ‘judge’ the outstandingness of spiritual qualities is beyond us. And are people who are more articulate about these matters really more spiritual, or simply better wordsmiths about the ineffable?
2.4 Other characteristics Wild and scenic characteristics [ 1031 The Special Tribunal stated that”:
We CIXICUI with the expert witnesses that below the gorge the river does not have outstanding wild and scenicor other naturalcharacteristics.
On the limited evidence we read and heard, we agree. Accordingly we do not need to consider whether the Special Tribunal’s recommended orders for the upper Rangitata River needed to be added to.
ScientiJc and ecological values [104] The Special Tribunal found that the Rangitata River has outstanding values scientifically (and intrinsically):
l as a braided river systemg9, and . as a habitat for aquatic macro-invertebrates” (such as mayflies and stoneflies)
Special Tribunal Report p. 72. But excluding the headwaters for lack of evidence. Special Tribunal Report p. 51. Special Tribunal Repoti p. 54. Special Tribunal Report p. 56. 40
Those and other findings as to scientific and ecological values were not challenged by any Party.
2.5 Significance under tikanga maori [105] The Special Tribunal considered” that the Rangitata River ‘has a range of characteristics that are of outstanding significance in accordance with tikanga Maori’. While this was questioned by the TDC and RSIL, those parties called no evidence on the issue. Because there was an evidential burden on them to displace the findings of the Special Tribunal and they failed to do that we do not have to consider this issue much further.
[106] As it happens, out of caution Te Runanga o Ngai Tahu (“TRONT”) appeared and called evidence. We had the benefit of submissions from Ms Limmer, and heard evidence of three members of Ngati Huirapa o Arowhenua. Together they confirmed the Special Tribunal’s findings.
[107] We should record that the Ngati Huirapa witness, Mr T A H Waaka, stated that TRONT was concerned that waters from the Rangitata were diverted through the Rangitata Diversion Race to the Rakaia River. We gained the impression this was an issue of some importance and accordingly pointed out that we could, if TRONT wished, and if we considered it appropriate on the evidence, recommend that the discharge into the Rakaia should cease. In her final submissions Ms Limmer indicated she had taken instructions and that TRONT did not wish to take this further.
[ 1OS] Finally, and these observations may confirm only how invidious it is to ask a Court to make spiritual assessments, we record our impression that the spiritual value of the Rangitata River is, at least to the TRONT witnesses to us, largely a matter of ancestral and historical relationship than day-to-day living with the river. That contrasted with the evidence of many of the fisherfolk and other recreators who clearly also have intense feelings that stem and braid directly from the Rangitata in all its flows and moods.
Special Tribunal Report p. 77 41
PART 3 Is a Water Conservation Order Necessary?
3.1 Matters to be considered [109] In coming to a view on whether a water conservation order is necessary, the Environment Court must have particular regardgz to the purpose of an order in the sense discussed in Part 1 of this report, and we must also have regard to the needs of primary and secondary industry93; the relevant statutory instnunents (policy statements, regional and district plan~)~~; the report of the Special Tribunal:; the application and the submissions lodged with the Courtly; and such other matters as it thinks fit97.
[llO] The characteristics of the Rangitata River which are outstanding and which may need to be protected have already been discussed. Because we examine what, if any, orders may be necessary to protect those characteristics, we look at the other matters we need to consider. We discuss the needs of industry and the relevant policy statements and plans directly; however the report of the Special Tribunal is not separately discussed as a whole since we find each of its relevant conclusions and recommendations a convenient starting place for most points of our inquiry. The submissions to the Court as amplified by the parties’ representatives and witnesses are all considered.
[I 1l] In relation to values under tikanga maori, whilst several parties disputed the lower river as being outstanding (as we have discussed), they conceded that if the Court did find the lower river to be outstanding then the Special Tribunal’s recommendation as to protection should stand.
[ 1121 The Special Tribunal concluded’*:
Section 212 RMA. Section 212(a). Section 212(b). Section 212(c). Section 212(d). section 212(e). Special Tribunal Report p. 121. 42
60. The “mountains to the sea” at&but.% can only be maintained if the flow regime in the mainstem and tbe tributaries is kept as natural as possible; there are no stmctures that act as barriers to the flow of water or the passage of makinga kai and other species. Maintaining an open river mouth and high water quality are also necessary.
As we have stated, no party challenged that recommendation.
Measuringpotential habitat [ 1131 Because protection of outstanding characteristics such as the black-fronted terns and the macro-invertebrates is a key issue in this case, we should explain that we read a considerable volume of evidence (and heard cross-examination on it) on scientific assessments of potential habitat for those and other species. A widely-used technique for computer modelling to predict potential habitat for animal species at different flows is called the Instream Flow Incremental Methodology (“IFIM”). The general methodology and its assumptions were recently described by the Environment Court (differently comprised) in Ngati Rangi Trust and others v The Manawatu- Wanganui Regional Counci199.
[ 1141 The way IFIM was used for the Rangitata River was as follows:
(1) Experts on various species of animal (birds, native fish, salmon, fishers) were asked to make detailed observations of the species and their use of the river under three variables - substrate (i.e. the material of the floor of the river) measured by size; velocity (in metres/second); and depth in metres”‘. (2) The result for each species was a set of three tables showing a weighted probability of use - one for each variable - against the most frequently observed use of substrate, velocity or depth. (3) A Mr Duncan measured the actual substrate, velocity and depth for several characteristic reaches of the river.
Decision 6712004. Other parameters such as water temperature 01 quality can be used, but vme not here.
-. 43
(4) Using the computer to sum the :results produces weighted useable area (“WUA”) curves which predict the decrease or increase of potential habitat for each species with increased flow.
The generalist scientific witnesses [ 1151 We should perhaps comment on the three most comprehensive scientific witnesses - Dr Mosley, called for the CRC, Dr K F D Hughey, called for the Director-General, and Dr H R Hudson, called for RDRML and TrustPower. Dr Mosley’s evidence was very impressive so far as it went, but was really more relevant for normal water permit considerations than the very specific tests for a water conservation order. In particular we are concerned that he was trying to enhance the existing characteristics of the Rangitata River. That is not appropriate for a water conservation order, except in very special circumstances where, for example, a rive&e species is outstanding but declining.
[116] Dr Hughey was an impressive witness, although handicapped by lack of specific data for the Rangitata River. There was a suggestion too that he was tending to lose his objectivity under the flnrry of statements of evidence from Dr Hudson. Perhaps fortunately for Dr Hughey the statement of further evidence which the Director-General wished to recall him to give at the end of the hearing, was disallowed (after we had read it) on the objection of counsel for RDRML.
[ 1171 Finally we come to Dr Hudson’s evidence. We are (mildly) concerned about several aspects of his evidence:
(1) Parts were not explained as well as we would like. For example on the relationship between number of braids and flow in the lower Rangitata River (an issue we return to under 3.4 below) it was not clear until cross-examination by Mr Alty, for the Director-General, that Dr Hudson had carried out two types 44
of transect analysis on the river - one based on aerial photographs”’ and one of four reaches in the Arundel and E!aling stretches”‘. (2) In a number of places we are concerned that Dr Hudson was not as objective and self-critical as he might be. For example, again on the relationship between flows and number of braids, Dr Hudson wrotelo3:
Dr Mosley advised me that he took “some” slices through the plots generated by Duncan &Hicks (2001) and counted the number of braids.
Dr Hudson’s score quotes are slightly pejorative - with a connotation that Dr Mosley was not being scientific. It is therefore ironic that within one page we find Dr Hudson himself writing with nearly the same impression’04:
I used more than 100 equally spaced transects
Like most of us Dr Hudson is more critical (here and elsewhere) of other work than of his own. That is a very human quality but not a scientific one. (3) On the subject of fish passage Dr Hudson was slightly dismissive of the problems of salmon passage so long as 25 centimetres depth of water is available. He wrote’05:
The 25 cm depth criteria are applied in North American rivers where river migration distances can be mm than an order of magnitude greater than the Rangitata River. Far example, the snake River, the chief tributary of the Columbia River, is 1670 km long; the Sacramento River is over 600 km long (cf. Rangitata 140 km).
That was very plausible, until we learned from Dr J W Hayesro6, who also knows some of the North American rivers referred to, that the elevation gained
101 Dr H R Hudson evidence-in-chiefpara 6.11. Dr H R Hudson evidence-in-chief para 616(b). Dr H R Hudson evidence-in-chief para 6.13(b). Dr H R Hudson evidence-in-chief para 7.5. Dr H R Hudson evidence-in-chief pm 7.5. Notes of evidence (2004) p, 579. 45
by salmon spawning above the gorge in the Rangitata (500 metres above sea level) is greater in the short length of that river than of the 2,600 kilometres of the Adams River in British Columbia where the height gain is only 36.5metres. Further, the lower Rangitata with its braids means there is plenty of opportunity
for fish to take blind alleys so that they have to return downstream and try again. It would have been comforting if Dr Hudson had been more even- handed in this discussion, to avoid the impression he was advocating a position. (4) Dr Hudson had a good deal of valuable empirical evidence which we have relied on. However at other points -- for example his Supplementary Evidence of 31 October 2003 - he starts to waffle. He moves from IFIM (which is germane) to several generalised “Habitat Evaluation Procedures” (HEP)lo7 which are of no apparent value. Further he has no real answer”a to Dr
Hughey’s criticisms’0g that maximum velocities and depths do not fully or optimally describe WUA (or useable habitat) with changing flows. Again there is a suggestion that he is being a little selective of the facts -Dr Hughey’s point here appears to be of the same kind that Dr Hudson himself has made about fish passage (see part 3.5 of this report). So we doubt Dr Hudson’s conclusion that”’ “there is nothing to be gained for black-fronted tern habitat by increasing minimum flows [our em,phasis]. We return to this in part 3.4 below.
[118] Finally, there was considerable discussion (to put it gently) between the witnesses and counsel over the application and usefulness of IFIM in general and over particular WUA curves. In the end we have not found the WUA curves particularly useful. That is not because we doubt the validity of the curves (although in some cases we do) but simply because of the nature of this inquiry. We are not concerned with optimal (and sometimes contradictory) environments for the various species in the river. Our statutory role is simply
H R Hudson Statement of 31 October 2003 para 4.7(b). H R Hudson Statement of 3 1 October 2003 para 4.6. Notes of Evidence (2003) pp. 319-322. H R Hudson Statement of 31 October 2003 para 4.6(d). 46 to recommend what protection is needed to maintain (not enhance or optimise) specific outstanding species (and other characteristics) of the river. On that issue, as most of the scientists conceded, the historical flows under the RDR scheme are maintaining current characteristics (for the most part).
3.2 The needs of industry [119] The Special Tribunal described the needs of industry in Part IV of its report”‘. It concluded1t2 that the Rangitata Diversion Race - run by RDRML - on the northern side of the Rangitata River, with an intake at Klondyke, is embedded in the local economy. It also recognised that there is a demand for fnrther water for irrigation and that the benefits to business and wider communities would be potentially large. No party challenged those findings, and we should have regard to them unless there is evidence that the needs of industry have been overstated.
[ 1201 Since water is not priced113in New Zealand, basic economics suggests that there will be a large demand for water from the Rangitata River, limited only by the expense of moving it to where consumers want it. In those circumstances we have difficulty working out what the difference is between the demand for water and the ‘needs’ referred to in section 212(a) of the Act. ‘Need’ is often an absolute concept, but it cannot be so in Part 9 of the RMA. Here it is being used loosely in the sense of ‘economic demand. ‘Need’ here relates the volumes of water industries want to obtain to the options foregone for ‘use’ of the water in-stream.
[121] What is clear is that there is nothing hypothetical about the demands (and needs) of existing users which total 33 cumecs. The TDC and RSIL also seek (now) 3 cuniecs from the Rangitata River. In case there is a difference between demand and need (although we doubt it) we find as a fact that there is a need for at least 37 cumecs from the river for
Special Tribunal Report pp 79-9 1. Special Tribunal Report pp 90 and 91. Water rates are for the cost of moving water to the comumer. 47 irrigation, stockwater and power generation. As Dr B M H Sharp, an economist called for the applicant, wrote:
19. There is no doubt that water is a limiting factor of production in many areas of the region. Irrigation has enabled farmers to break out of the constraints imposed by rainfall.
20. Evidence before the Court uses the term demand. For example, [the RSIL and TDC witness] Mr Butcher reports on the Canterbury Strategic Water Study that claims “ ~remaining demand of 79,193 ha cannot be met from the two main rivers (Orari and Opihi).” p.4). Mr Attewell provides a plot of projected monthly water demand (p.7). In both instances it would appear that water is not priced. History has shown, repeatedly, that natural resources that are not priced are over-utilised and their sustainable use compromised.
21. Estimates of increases in cash farm surplus are used as measures of economic benefit. As noted by Mr Butcher, cash farm surplus is the difference between gross revenue and cash farm expenditure. Estimates of gross ~txenue are reasonably stnightforward to obtain However, from an economic viewpoint, cash farm expenditures will undervalue inputs not purchased in the market and the contribution of fixed factors. Clearly, water is a factor of production and I have already mentioned that water is not priced. It is not clear whether owner/operator labour is priced or whether capital invested in land, buildings and equipment is priced. Cash farm surplus will over-estimate the net-benefits ofinigation to the extent that inputs are not priced at their opportunity cost to the economy.
22. Mr Butcher is correct when he notes that communities recognise the jobs and incomes associated with economic development. It is the net impact on jobs and income that is relevant. However there is no well-established relationship between the indicators of regional impact analysis (e.g. added value and employment) and economic efficiency.
[122] Dr Sharp also warned us that:
30. Regional impact models do not address the f+mdamental question of economic efficiency and shouldnot be used as a substitute for applied economic analysis viz. cost-benefit analysis.
1231 He concluded that: 48
27. I am not aware of evidence that reports on the economic efficiency of existing water use and the potential economic benefits of alternative patterns of water use. In the absence of this evidence it is would be difficult to support an economic argument that increasing water abstraction is likely to result in an increase in economic net benefits over and above that which might be achievable &y] more efficiently utilising existing water entitlements.
And:
31. I was unable to find a cost-benefit study that explicitly prices water. Failure to properly account for the opportunity costs of scarce water resources biases the results in favour of development and, furthermore, represents an uncompensated transfer !?rom those enjoying the benefits of water in its existing use.
[ 1241 Dr Sharp’14 also wrote: 11. Given the first-come-first-served basis used for initially allocating water it is highly unlikely that existing patterns of water use are economic. I am not aware of any empirical evidence that the pattern of existing water permits meets standard economic criteria for allocating a fixed allocation amongst competing uses. In principle, net benefits across all competing uses should be equalized at the margin.
12. Equalizing net benefits ~CIOSS competing uses requires an enormous amount of information to support a command-and-control approach to water allocation OI the use of a decentralised mechanism that enables water to flow to its most highly valued use. The former mechanism is the most camnon approach [to] water allocation in New Zealand. It is evident that water managers do not have access to the necessary information and even if they did there is very little prospect of even approximating an efficient allocation given varying market conditions aad changes in technology. The existing structure of property rights that attach to water permits does not allow for water transfers among existing and potential users independently of land.
13. The paucity of economic information on the value of water and the dynamic nahue of water- based industries lead me to conclude that it is quite plausible that efficiency gains exist among those with permits. In other words, gains could be achieved by re-allocating water entitlements within the set of existing USBIS. If this is the case, then the needs of pot+ntial users could be
Dr B M H Slurp evidence-in-chief. 49
satisfied by reallocating water permits. This proposition should, I submit, be empirically tested. Increasing the allocatable amount wer that recommended by the draft Conservation Order does not address this fundamental flaw in the approach to allocating scarce water.
14. The above notion of efficiency is limited. to allocating a finite quantity of water among competing out-of-stream uses. Economic efficiency analysis must also include a consideration -ideally quantification-of environmental values.
18. In summary, it appears that there is no economic evidence on the efficiency of existing patterns of water use relative to other patterns of use, including allocations to those currently not enjoying access to Rangitata River water. Furthermore, there are no quantitative estimates of the non-use values associated with different flow regimes.
[125] We read a considerable quantity of evidence from witnesses for RDRML and TrustPower as to their needs. For the reasons expressed by Dr Sharp (and agreed to by the other economists) we remain sceptical about whether the RDR is optimally efficient, although we accept that the members of the scheme have achieved real efficiency gains in the use of water for irrigation over recent years,
[126] However, we do not have to explore that issue lkrther, since the Special Tribunal’s recommended water conservation order contains at least two provisions which would give the RDR scheme a privileged position if unchanged. They are the Special Tribunal’s draft order clauses 9(2)(e) and 12(5). We discuss the first later. Clause 12(5) states:
This order does not prevent the granting of fkther wmmx consents for the [RDR] on similar terms and conditions to those imposed on the resource consents held on the date this order comes into force.
We are not clear whether this clause simply states a consequence of the terms of the order recommended by the Tribunal, or provides an exemption if some other regime decided upon were to impose more stringent limits on water take. However, no person suggested this clause was inappropriate, and so we do not recommend it should be changed. To do so ould be unfair to RDRML. 50
3.3 The relevant statutory instruments Intxxiuction [ 1271 The relevant statutory documents under section 212(b) of the Act are:
l the New Zealand Coastal Policy Statement
l the Canterbury Regional Policy Statement
l the Ashburton District Plan
l the Timaru District Plan
[128] In addition we were referred to several other documents, but consider they are so peripheral we need not consider them (although in theory we could have regard to them as ‘other matters”15).
[129] No party or witness suggested the Special Tribunal had regard to the relevant instruments incorrectly. We therefore adopt the Special Tribunal’s discussion and conclusions and have nothing useful to add.
[130] There is one issue we comment on in passing. Dr A S Meredith, a water quality scientist called by the CRC, gave unopposed evidence (discussed later) that irrigation on the plains north of the Rangitata is causing a substantial quantity - approximately 1,400 tonnes j of nitrogen - to be discharged into the sea along the coastline of the Canterbury Bight. 1 While it may be efficient to dump any increased nitrogen at sea - out of sight, out of mind until problems become visible - we are surprised that the proposed regional plan apparently does not even raise this as an issue. There are, after all, a number of species of animal including ‘some very charismatic megafauna (such as Hector’s dolphins at the small end of the scale) which may possibly be affected by eutrophication of the inshore waters over time, if the nitrates are not washed out into the Pacific Ocean.
Under section212(e). 53
3.4 To protect habitat for black-fronted terns? [131] Black-fronted terns nest on the gravel and.between stones in the braided riverbeds of the Ealing and Island stretches. They also feed by dipping onto (or below) the river surface for insects like mayflies.
[132] The Special Tribunals concluded in respect of all the braided river specialist birds that116:
39. September to Januaryare the critical months for habitat quality for threatened bird species. Excessive water takes and frequent river works (e.g. maintenance of intakes, weirs, river control) during this period are likely to have adverse effects.
40. Modelling works has suggested that higher minimum flows (35 n?/s) would produce higher densities of invertebrates, and therefore more food, but not all witnesses agreed that the higher minimum is necessary.
4 1, Maintenance of flood flows is important for maintaining the open gravel habitat.
[133] In fact the Special Tribunal’s key finding as to the effect of abstractions on nesting success is found a little earlier where it stated’17:
Although [Dr] Hughey considered tint the higher ntimum flows would improve nesting success, we note that in the range he is considering (i.e. an increase from 20-40 m’isec) there is little change in the number of braids in the river, and probably insufficient increase to seriously deter predators such as stoats.
[I341 The Director-General, and Forest and Bird, argued that dewatering of the river for irrigation caused harm to the bird species that live by and along the river, and that to protect those species it was necessary to raise the minimum flows from those recommended by the Special Tribunal to 35 m3/sec (from 20 m3/sec) during the breeding period August to the following January in its whole length from Klondyke. In view of our finding that the lower 52
Rangitata is only outstanding for one species - the black-fronted tern - the question as to appropriate flows is directed only to that species, and the insects it feeds on.
[135] In what follows we bear in mind that since the Director-General and Forest and Bird are seeking to change the recommendation of the Special Tribunal the evidential onus is on them to produce evidence to persuade us to make a different recommendation. They have this in their favour: The WUA curve produced by Mr M Duncan, a hydrologist with particular expertise in the LFIM who was called by the CRC, produced a WUA curveIt* showing how the potential habitat for black-fronted terns trended steadily upwards from a flow of about 35 m3isec at Klondyke. However, below a flow of 35 m3/sec the useable area declines more steeply as flow declines. In other words at around 35 m3/sec there is an ‘inflection’ point”‘.~ The difficulty for the experts, and for us, is knowing how significant changes in flow are, at these low flows, bearing in mind:
(1) that the river naturally changes flow frequently and on a scale much larger than the near doubling in a flow from 20 m3/sec to 35 m3/sec; and (2) that there are potentially many complicating and accumulating factors.
[I361 Dr R Keedwell, a biologist who specialises in these bird species - especially the terns - produced this diagram outlining factors potentially impacting, cumulatively, on survival of braided river birds: 53
water IeSOuCe development Surrounding land USC 1 2// I
Extreme weather e”entS 16
L Survival of I Recreational braided river 1 users 14 + bird species
Dr Keedwell explained this as being a depiction of interrelationships of some of the different species and factors occurring in the braided rivers of the South Island. She wrote that the numbers on the diagram represent examples of hypothesised interactions between the different factors as follows:
water is redirected into canals for power generation, lowering river flows and flood frequencies; water is abstracted for irrigation of farmland, lowering river flows; rabbit control on farmland lowers rabbit abundance; differing land use practices changes habitat availability for predators; predator abundance is altered by changes to rabbit abundance but also helps contiol rabbit abundance; vegetation on riverbeds provide cover for predators; predators prey on eggs, chicks and adults; 8 weeds clog up breeding habitat and alter feeding habitat; 9 vegetation provides cover and food for rabbits, but some weed species are controlled by rabbit grazing; 54
10 lowered water flows and floods allow vegetation to establish on riverbed; 11 floods destroy nests; 12 lowered water flows can alter abundance of aquatic insects and feeding areas; 13 food abundance can influence survival of young or condition of breeding adults; 14 fishers, campers and four-wheel drivers can destroy nests or disturb breeding birds; 15 ex+mme cold spells can kill eggs and chicks; 16 high rainfalls can cause. floods.
We do not necessarily accept that all the above are significant factors in the lower Rangitata River, but we mention the hypotheses because these and the diagram on the previous page show the complexity and potential accumulation of factors affecting black-fronted terns.
[ 1371 In this inquiry we read evidence and heard cross-examination as to the effects of the following on survival and breeding of black-fronted terns:
l predation by introduced pests; . nest-crushing or disturbance by fishers, jetboaters and four wheel drive vehicles;
l growth of introduced weeds in the riverbed;
l reduction of food supply; and
l the effects of water abstraction and therefore reduced river flows on each of the above.
[138] Dr Keedwell stated that predation by introduced pests such as cats, mustelids and hedgehogs is probably the primary cause of mortality in black-fronted terns (and other river bird species)t2’. She wrote that a “colon[y] of up to 70 nests can be entirely wiped out by predators in a matter of days”, and that adult terns are frequently preyed on by stoats.
[139] Dr Keedwell also gave evidence that black-fronted terns are most safe from predators when their nests or colonies are located on an island or river surrounded by flows
Dr R J Keedwell evidence-in-chief para 3.3 55
that deter many predatorslzl. Dr O’Donnell stated that if flows are reduced, that may contribute to increased mortality because the predators have (better) access to previously inaccessible islands.
[140] Weed infestation on riverbeds by willows, lupin, gorse and broom takes up breeding habita?’ and may increase predator abundance. Dr Keedwell speculated that it may also alter feeding habitat for black-fronted terns by increasing the depth and velocity of channels and by removing wide shallow feeding areaslz3.
[141] Dr Keedwell then stated her opinion that most if not all black-fronted tern populations124:
are not self-sustaining and any increase of factors impacting on survival or reproduction will increase current rates of decline.
However she conceded that lack of comprehensive survey data for the Rangitata River makes it difficult to assesswhether its black-fronted tern population is in decline.
[142] Dr Keedwell used a computer modelled population viability analysis (“PVA”) to explore the outcomes of various management actions. She wrote that12’:
PVAs are more useful for comparing the relative effects of management options, or for assessing which factors the population is most sensitive to in order to determine where management should be targeted, rather than for producing explicit predictions of population growth or extinction rates.
[ 1431 Even though Dr Keedwell used the most optimistic data available, the model predicted strong aonulation decline for black-fronted terns, She was cross-examined at
Dr R J Keedwell evidence-in-chief pan 3.4. Dr R J Keedwell pm 3.5. Dr R J Keedwell para 3.5. Dr R J Keedwell pm 3.8. Dr R I Keedwell para 5.1. 56 some length by Ms Dunningham and Mr Mime on her assumptions but her answers were careful and open and did not shake her evidence.
[144] Dr Keedwell ran the model under three hypothesised scenarios forlz6:
l implementing predator control;
l loss of feeding and/or breeding habitat; and
l varying frequency and intensity of poor years.
[ 1451 Her conclusions were that:
l predator control (intensively for the entire population!) resulted in strongly positive population growth;
l lowered food availability and habitat change (which might result from water abstraction) resulted in a negative growth rate - in fact a quasi-extinction probability of 75% for black-fronted terns;
l black-fronted terns were also sensitive to the effects of more catastrophic events such as floods a droughts.
[146] In contrast, the ornithologist called for RDRML and TrustPower, Mr J N Jolly, was of the view that”‘:
[l] there are no clear indications of declining populations of native species wm [the] 18 yea period [between the 1982 and 2000 surveys], and [Z] black-fionted terns are not suffering the same steep declines reported on other riwxs. [Our numbering]
Dr R J Keedwell evidence-jn-chiefpara 6.2. J N Jolly evidence-in-chief para 11.7. 57
Dr Keedwell’28 and other experts agreed that there is no evidence of counts for the Rangitata River which show the population is decreasing, and none that it is increasing (or stable) either.’ That means Mr Jolly’s second statement is made without any justification.
[147] Mr Jolly also criticised Dr Keedwell’s population viability analysis of black-fronted terns. He stated that’29:
I do not believe that the conclusions she draws as to declining populations on the Rangitata are justified because the relative numbers of the suite of predators, the principal cause of bird mortality, and their prey are probably different in the Mackenzie Country river compared with the lower Rangitata [and] the harsher climate of the high counhy probably results in higher chick mortality,
[148] Cross-examined about this Dr Keedwell reiterated that’30:
I make no assertion that my [PVA] model accurately replicates the breeding and survival on Rangitata River, rather I use these models to show the most likely population trends. Those factors that you suggest contribute to a difference on the river, do not feature as major factors influencing Black Fronted Tern survival, therefore I don’t believe that these models are any less applicable to the Rangitata River than to any other braided river.
Dr Keedwell also pointed out that there is more flooding in the Rangitata River than on her study area (which is flood controlled) in the upper ~Waitaki; and that the disturbance caused by vehicles is also much more prevalent in the lower Rangitata. Thus there are additional threats to black-fronted tern breeding and survival rates in the lower Rangitata River, which suggest her predictions may be understated as a population trend for this river.
The moat efSect. [149] One of the key issues in relation to predation of black-fronted terns derives from the fact that terns breeding on islands surrounded by swift, deep water suffer much less
128 R J Keedwell evidence-in-chief para 4.3; rebuttal evidence para 4. J N Jolly evidence-in-chief para 11.8. Notes of evidence (2003) p. 363.
-- 58 predation than birds on cobble peninsulas, or on islands only protected by shallow water. Dr K F D Hughey, an ecologist called by the Director General, calls this the ‘moat effect’. The issue is whether, and if SO how much, moats are affected by taking of water for irrigation.
[150] Dr Hughey is of the opinion that generally in braided rivers an increase in volume of water increases both the depth of channels and the number of braids in each river. His opinion seems to be largely based on the research of others, and there is some controversy about that.
[ 1511 In 1982 and 1983 Dr Mosley carried out work on the relationship between flow and number of channels in the Ohau River. He concluded there was no relationship.
[152] Dr Mosley’s work was subsequently re-interpreted by a Mr D M Hicks13r who appears to have redefined what is meant by a ‘braid’ and concluded that the number of channels does increase with volume. It is this re-interpretation which Dr Hughey relies on, as well as some apparently less quantitative work he has undertaken in the Waimakariri and Ashley Rivers in North Canterbury. This and more recent work in the Waitaki have been summarised in a figure by Mr D M Hicks and others13’ which summarises the research on the Ohau, Waitaki and Waimakariri Rivers as showing an increase in the number of channels with increasing flow.
[ 1531 By contrast Dr Hudson carried out some research on the Rangitata River itself and found that:
(4 in one reach of the Amndel stretch the average number of braids increases from three braids at a flow below 30 m3/sec to about 3.6 braids from 30 to 80 m3/sec; and
Who did nbt give evidence to us. Figure 1 to Dr Hughey evidence-in-chiefpara 5.7 (p. 15). 59
(b) in one reach of the Ealing stretch the maximum number of braids actually decreaseswith flow between 15 to 80 m3/sec.
[ 1541 Dr Hughey was critical of this on three grounds - first he notes that Dr Hudson counted minor within-channel changes. He stated’33:
Such an approach is ecologically unsound and would lead to changes in the number of significantly separated braids being offset by changes in within-channel braidings.
Secondly he states that Dr Hudson has pooled all cross-sectional data into a summed analysis of changes - but this ignores the fact (in Dr Hughey’s view) that wildlife on braided rivers is most dense where the degree of braiding is highest. He said that such an approach masks the relationship between flow and braiding. Finally Dr Hughey states that in his opinion depth and velocity tend to increase with flow and that these factors should not be overlooked.
[155] We did not find any of the evidence particularly helpful on the ‘moat’ effect. We appreciated Dr Hughey’s concentration on cumulative effects generally, but were not persuaded that increasing minimum flows of 20 m3/sec to 35 m3/sec was a big enough change to make a difference, given (and this is crucial) the huge natural variation in flows due to tieshes and floods. These latter events almost completely obscure the minima for most of the time. On the other hand we partly accept Dr Hughey’s criticism of Dr Hudson that averaging the data is not particularly useful.
[156] What it comes down to is that in the Ealing and Island stretches of the river we do not know what minimum flows might significantly improve the moat effect. Since there is an evidential burden on the Director-General which he has not discharged on this issue, we come to the same conclusion as the Special Tribunal.
Dr K F D Hughey evidence-in-chief para 5.8.
- 60
[157] We bear in mind that the mix of predators may be different in the lower Rangitata River. For example there may be more cats and hedgehogs than stoats. If that is the case then increases in flow even in the 20 m3/sec to 35 m3/sec range may reduce predation by those animals which are more easily offput by water. However, we find that there is insufficient evidence for us to make a different finding and/or recommendation to that of the Special Tribunal on that issue.
[158] We add that small changes in flow resulting from water takes have no significant effect on spreading of weeds. Only floods of more than 1,000 m3/sec effectively strip introduced weeds from the riverbed.
[159] We note that on any application for water permits to take water from the Rangitata River, the question of whether that will have an effect on nesting success of, for example black-fronted terns, may be met, at least in part, by conditions as to trapping (or other destruction) of predators and control of disturbance by humans. Those are not matters that are relevant here.
Reduction in food supplies [160] There was considerable discussion by the experts of the effects of increased abstraction of water upon the macro-invertebrates which are a substantial part of the diet of black-fronted terns in summer. We consider the e:ffect of flow on mayflies and stoneflies in part 3.6 below.
[161] However, several parties submitted that the:rewas no evidence that black-fronted tern are limited in the Rangitata River by food supply. Dr Hudson and Mr Jolly both suggested that the black-fronted tern population is much more likely to be limited by predation (and disturbance by humans). We agree, and find it is not necessary to raise flows in order to sustain the existing population of black-fronted terns in the lower river on this ground alone.
- - .---~ I 61
Conclusion [162] Of more concern, however, is the cumulative effect of all the adverse factors on black-fronted terns. This is a species which is under threat of extinction, Dr Keedwell stated, in cross-examination,‘34 that:
the situationon the RangitataRiver would have to be hugely different for the survival rates to predictany other population trajectory than whatmy modelspredicted.
We find there is insufficient evidence to justify a flow regime different from the 1986 flow regime; but equally we are dubious about altering the existing flow share arrangements. In the circumstances we would not recommend a different water conservation order to that of the Special Tribunal for the protection of this species.
[ 1631 We remind ourselves that there is a presumption that the natural flow of the river at Klondyke - without the abstraction of 30 m3/sec o:f water under the RDRML’s now expired water permits - should be retained to protect the black-fronted terns. However, we are put sufficiently in doubt by Dr Hudson’s evidence not to change the recommendation by the Special Tribunal.
3.5 To protect the salmon fishery? [ 1641 The Special Tribunal concluded that in respect of salmon migration*35:
11. that a minimum flow of 35 m”/s during the period of salmon upstream migration would be desirable, but that the current minimum flow of 20 &is is adequate, given that it does not occur very often, or for long periods, especially during the months when sahnon are migrating.
12. At present water temperatures get sufficiently high to caue thermal stress. Therefore, new uses must not let the water temperature increase beyond acceptable limits. From the evidence presented, a maximum temperature of 20°C appears appropriate. This is consistent with the water temperature requirements in the Motueka River water conservation order.
Notes of evidence (2003) p. 362. Special Tribunal Report p. 114. 62
It made no comment on the effects of changes in river flow on downstream migration of juveniles (except in relation to damming).
[ 1651 The Special Tribunal concluded136in relation to salmon spawning:
16. Successful salmon spawning depends not only on upstream passage of the adult fish, but also on maintenance of the high water quality, gravel substrate and stable flows of spring-fed streams in the upper Rangitata, especially Deep Stream and Deep Creek. Ealing Springs Stream is also impatiant as one of the few remaining salmon spawning streams in the lower river.
[166] Indirectly the Special Tribunal’s findings were challenged by the TDC and RSIL when they argued that the flow-sharing regime could be changed to allow up to a further 8 m3/sec to be taken from the river. This issue raises the questions as to whether further abstractions may raise the temperature of the water in the lower Rangitata, and whether that is important for salmon.
[167] The ideal water temperature for salmon is less than 12.8”C. Temperatures above that have three effects - first at some temperature which probably varies with other circumstances (turbidity, time of day, weather, flow) salmon stop moving into or up (at 21’C) the river; secondly higher temperatures harm the fish by removing stored fat; and finally above water temperatures of about 25’C they die’37.
[168] Dr .I W Hayes, a freshwater fish scientist specialising in trout and salmon fisheries called for the Fish and Game Councils. wrote that13*:
Water temperature has a critical influence on all aspects of salmon life-history and behaviour in rivers
Special Tribunal Report p. 115. J W Hayes evidence-in-chiefpam 5.10 and 5.12. J W Hayes evidence-in-chief para 5.8. 63
[169] He pointed out that’39:
When adult salmon enter rivers on their upstream spawning migration they do so with a finite energy store; they stop feeding once they enter the rivers. Their life in the ocean to that point has been focussed on amassing sufficient energy to sustain them on their journey to the spawning grounds, to produce eggs and sperm, and to dig and defend redds (nest sites). .,, In addition, their spawning migration is a gamble on whether they have enough fuel on board (energy) to achieve their ultimate goal of reproduction.
[ 1701 A further significant aspect of salmon migration is that14’:
The rate at which salmon burn their energy reserves is an exponential function of water temperature and swimming speed As temperature increases salmon bum energy faster at an exponential rate and this gives them less time to reach the spawning grounds and spawn. They suffer the same consequences the more frequently they have to swim fast to pass shallow or fast water. In other words, salmon prefer cool water to minimise their metabolic energy expenditure during upstream migration.
[171] Dr Hayes summsrised’41 his discussion of salmon energetics by stating that anything that increases water temperature, increases migration time, or increases stress on salmon stacks the odds against them reaching the spawning grounds and successfully reproducing.
[172] On the question of low flows affecting salmon migration there was an interesting passage in cross-examination by Mr Davidson:
Q. .,. I take it you don’t disagree with Dr Hudson’s fundamental analysis that in general, on the evidence he has put before the Court, fish passage is maintained, if not all the times, at most times. The vast majority of the time there is sufficient depth for salmon passage. A. Yes, correct. I will add something to that, if I may.
.I W Hayes evidence-in-cbiefpara 5.9. J W Hayes evidence-in-chief para 5.9. J W Hayes evidence-in-cbiefpara 5.14. 64
Q. Yes A. If the salmon have their migration delayed even for relatively short periods of time - and I’m talking here about weeks, like a week or two - if that coincides with high water temperatures in the river, then that may have a significant effect on salmon. Although the periods over which they may be blocked may be short, in cetiain circumstances it could have quite a big effect.
[ 1731 Dr Hayes then referred to this again when the Court put the proposition that because it is freshes which cause the salmon to move upriver, it does not matter whether the residual flow14* in the lower river is 20 m3/sec or 30 m3/sec because if the flow is in that band the fish will not move anyway. Dr Hayes replied’43:
I think that view is fairly risky. I am very conscious that salmon may get stuck in the lower river as a consequence of very low flows and then get hit by high water temperatures. I always advocate, in other flow assessments in other rivers I have been involved with, to provide flows that allow fish to find the places in the river they want to find. So if they find themselves in the lower river and it gets hot then you want to provide better salmon passage so they can get the heck out of there and get into the cold water tributaries in the head waters.
[174] Dr Hayes regarded temperature as such an important issue that in his evidence-in- chief he recommended a condition in any proposed order that restricts any increase in the mean daily water temperature to no more than 2’C.
[175] On what changes in flow may do to water temperatures we heard rather little evidence. Mr I G Jowett, an engineer with particular expertise on the relationships between hydrology and in-stream biota, wrote thi~‘~~:
I modelled.water temperatures on a hot, mid-summer day in the Rangitata River using the following assumptions. The initial water temperature of 15.5”C was the mean water temperature recorded at Klondyke over 4-9 January 2001. At that time, the flow was about 115 I&S. The average climatological conditions were a daily maximum air temperature pf 23”C, mean air temperature of
i.e. after abstraction at Klondyke. Notes of evidence (2004, p. 601). I G Jowett evidence-in-cbiefpara 6.3-6.4. 65
17OC, wind speed of 2.5 m/s, 278 J/I&S of radiation, 80% relative humidity, and 10.5 hours of sunshine. Under these conditions, the daily mean water temperature at the State Highway 1 bridge was 18.4”C and the maximum between 22.23°C. I fitted a water temperature model to these data and predicted water temperature changes that would OGCUTwhen the flow was decreased from GO m’is to 30 m3/s. This showed that a 30 &is reduction in flow increased the mean daily water temperature by about I’C over a limited section of river, and that fhe daily maximum water temperature increased by between 1 and 2.YC, as shown in Figure 13.
I do not believe that temperature changes of these magnitudes would have a significant effect on stream biota. However, water temperatures would be above 20°C for longer and this would influence ~’ the feeding behaviour of brown trout and reduce angling opporhmity.
[176] Unfortunately that raises almost as many questions as it answers in our minds:
(1) bearing in mind the mean annual flow is 100 m3/sec and that we are particularly concerned with lower flows, what would a lower flow at Klondyke (say 70 cumecs) and/or at higher temperature than 15.5”C have predicted? (2) what about temperatures below State Highway 1 bridge on the very braided and shallow Island stretch? (3) what about the above average increases (i.e. events that occur more than 50% of the time)?
[177] Mr Webb in his third statement of evidence clearly showed that a major contributor to water temperatures in the lower Rangitata is the local weather conditions.
[178] On the subject of the effect of dewatering o:nwater temperatures he stated’45:
14. Over the range of flows from40 to 70 &Is on average a 1% change in flow produces a 0.48% change in surface area. In terrm of potential for heating of the residual river this means as flow reduces the potential for heating increases because surface area changes to a lesser degree than flow (water volume). In other words, river flow or the volume of water needed to be heated
M Webb Third Statement of Evidence paras 14-16 66
may be substantiallyreduced by a natural flow recessionor by abstractionbut the area of water exposedto heating reducesless and the potential for heating is increased.
15. Over the range of flows from 15 to 35 d/s at Ealing and 15 tb 25 d/s at Arundel, river channel surface area remains more or lessconstant irrespective of flow. This suggeststhere is potential for the heat energy absorbedthrough an unchanging surface area to be available to the river throughout theseflow ranges. A comparison of E&g at 20 d/s and at 35 n?/s would suggestwhile both flows may receive the sameheat energy, at 20 18s there is only 57% of the water volume to absorb and dispersethat energy. Therefore asflow decreasesbelow 35 m3/s01 if the river is artificially held at theseflows for longer through abstraction at higher flows then the potential for heating increases.
16. I conclude that water temperature in the lower river is influenced more by potential heating in the lower river than by the temperature of the water immediately below the gorge, which is in turn influenced by what happensabove the gorge.
[179] We conclude that it is not protecting the outstanding salmon fishery if we take the ‘very risky”46 steps of allowing more of the flow-sharing to be taken for irrigation, and increasing the abstraction cap. Since we prefer the evidence of Dr Hayes and Mr Webb to that of Ms Porter, an aquatic biologist called by TDC and RSIL, whose evidence we describe at paragraph 204, on what is necessary to protect the salmon fishery we conclude that the Special Tribunal’s findings are not affected, and we agree with their recommendations.
Fish passage [I801 The witnesses seemed generally agreed that a depth of 24 centimetres is necessary for (large) salmon to migrate upstream. Some of the modelling by Mr Duncan’47 suggests that passage is not shown until flows reach 40 m3/sec in the Island and Ealing stretches. However Dr Hudson pointed out’48 that these apparent blockages are an ‘artefact of
Notes of Evidence (2004) p. 601 quoted above. M Duncan evidence-in-chief para 10.8. Dr H R Hudson evidence-in-chief section 7. modelling’ in that the cell sizes measured for the purposes of IFIM are two metres wide whereas a salmon does not need anything like that for its girth to tit through.
[ 1811 Consequently we prefer Dr Hudson’s evidence that a minimum flow of 20 m3isec is enough to ensure passage, especially since, as the expert angler Mr Hall pointed out, salmon are a 1,000 times more likely to move in a fresh than at low flows. However, the fact that it is spatially possible for the salmon to move, does not affect our concerns about higher temperatures at lower flows (as expressed above).
3.6 To protect scientific and ecological values? [ 1821 In respect of the two scientific/ecological characteristics which the Special Tribunal found to be outstanding - that is its braided character and its macro-invertebrate fauna - it made no recommendations for any restrictions on the CRC’s powers in relation to the former. On the latter it concluded149:
46. The macro-invertebrate fauna is adapted to a naturally unstable flow regime and species that are found are those resilient to disturbance. Minor braids and seepages that are less swerely disturbed by floods may contain comparatively high densities of invertebrates after floods. Maintenance of the flow regime and other river processes (e.g. sediment transport) that contribute to the braided channel structure will be important in retaining these species at levels of biomass production to provide adequate food for birds and fish.
47. Water temperatures under the current regime are likely to reach the lethal limit for macro- invertebrates from time to time. Further abstractions could exacerbate this.
48. Mosley and Hughey both recommend a minimum flow of 35 m3/s during spring/summer months to maximise biomass production of macro-invertebrates as a food source, especially for birds. We concur with [the evidence of another witness] that, with current understanding, it is not possible to conclude that biomass production would be reduced by extended minimum flows of about 20 m’is.
Special Tribunal Report p. 119. 68
[183] Before us, the Director-General renewed the request for minimal flows to be 35 m3/sec during spring and early summer, primarily in order to maximise mayfly production as food for bird species.
[I841 We have already discussed (in section 3.4) whether black-fronted terns are limited by food production in the Rangitata River. We did not understand any party to suggest that a higher minimum flow was necessary to protect the density or richness of macro- invertebrates. In any event the evidence was clear that macro-invertebrates live not only in the main channels, but also in seepage channels (which do not have continuously flowing surface water) and also below the substrate surface. In fact seepages ‘support higher densities and diversities of invertebrates than . . th,emain body of the river’ 15’.
[185] We find that a higher minimum flow is not necessary to protect the outstanding
macro-invertebrate fauna of the lower river, especially since the insect experts (Mr P M Sagar, Dr J D Stark) agree that it is the flood events which have the greater effect on macro- invertebrate populations.
3.7 To protect recreational values? Salmon angling [ 1861 The Special Tribunal’s conclusions were that”‘:
30. Flow rate and flow variability (freshes), water temperature and clarity are key factors in determining desirable river conditions for angling. Although these are interrelated, management of flow rate alone will not necessarily provide the greatest number of angling days. Higher minimum flows would increase the available days for angling, but increased abstraction that reduced freshes would be detrimental.
31. Capping the maximum allowable abstraction at or about the present levels would ensure that freshes are maintained in the river system.
. Mr P M Sagar Notes of Evidence (2003) p. 383. Special Tribunal Report p. 117. 69
[187] Mr Milne for TDC and RSIL criticised the Special Tribunal’s report as vague and arbitrary on this point. The hydrologist called for TDC and RSIL, Mr H Freestone produced an alternative flow regime B2 which included th,e Special Tribunal’s summer (20 m3/sec) and winter (15 m3isec) flow but contained a more sophisticated flow sharing regime which allows an extra take for the river of :
l 8 m3/sec when Klondyke flows are between 115 m3/sec falling to 61 m3/sec;
l 5 m3/sec when Klondyke flows are between 60 m3/sec and 56 m3/sec;
l 2 m3/sec when Klondyke flows are between 55 m3/sec and 5 1 m3/sec.
[188] The effects of the B2 regime on angling were severely criticised by Mr Christensen, counsel for the applicants, on three grounds which we consider in turn. The first was:
it reducesthe angling opportunity by reducing the residual flow at which angling becomes limited by turbidity from 77 (110.33) to 70 (110-40).
He relied on the evidence of Mr F Scarf who produced a table”’ which showed the fishable days for anglers as he assessed them under the different regimes. This shows that under BZ on average the number of angling days will be 11.4 less than under the draft water conservation order. That is about a 21% loss.
[189] Mr Milne’s answer was that the range of fishable cumecs is the same under both the current (1986/Special Tribunal) regime and B2. But that is not an answer if fishability is improved simply by having more water in the river, If for example the 7 m3/sec (77-70) at the top of the turbidity range is not simply substituted by 5 or 7 cumecs at the bottom of the range -because at 30 m3/sec (70-40) the residual flow is too low for good fishing -then the number of available cumecs for fishing has been reduced by 7/32=20% approximately.
Mr F Scarf statementof evidence, Table 5 70
[190] Mr Christensen’s next criticism was that the B2 regime:
_. [I]ncreases the amount of skew in the distribu.tion of angling days towards the lower end of the acceptable range, thereby limiting the quality of the angling expaience.
Mr Milne makes two points about this - first he says that in the summertime the water is too clear at Klondyke with flows of less than 80 m3/sec anyway. Secondly he says the amount of time which would have been spent in the 50-60 residual range will now be fished in the 42-52 m3/sec range under B2. He is correct provided that the volume of residual flow is not significant for angling amenity.
[I911 Mr Christensen then submitted:
Third, the alteration to the flow sharing proportions means that the flow will recede mm quickly through the preferred range of flows because at those flows additional water is being abstracted.
[ 1921 Mr Milne says that is wrong and we agree. Under the current regime and under B2 the rate at which the river recedes through the various flows is parallel to the rate at which the river at Klondyke recedes. It is a fairly simple matter to graph the figures shown in Appendix l’s columns.
[193] Mr Christensen’s fourth and final point was that:
This further reduces both angling opportunity and the quality of the angling experience. _._ It is important to look beyond the average flow share distribution which Mr Freestone ta&z about, and instead to focus on what would actually happen at the critical angling flows in the river In assessing the impact of the different regimes it is important to bears in mind that the acceptable range of residual flows for angling is 40 to 80 cumecs and that within that range the optimal flows are between 60 and 75 cmecs.
Again this depends on the fundamental point as to whether volume is an important component of the angling amenity. The TDC and RSIL witnesses see residual flow as incidental not causative of good angling conditions. 71
Do changes in volume causally afect angling amenity? [194] It is a core part of the TDC and KSIL case that changes in flow are only coincidentally not causally related to changes :in angling amenity, or fishability. For example Mr Milne cross-examined Mr Webb, principally, and some other Fish and Game witnesses with the primary point that the optimum fishing flows of 110-70 m3/sec at Klondyke - and the more limited January to Apr:il range of 11O-82 m3/sec - are optimum simply because those are the flows in which turbidity is ideal. In other words the water is too dirty at flows above 110 m3/sec and too clear below 70 m3/sec (82 m3/sec in summer). Beyond that, it was coincidental that those flows were identified as optimum flows in themselves.
[195] Mr Webb’s evidence was that flow is important in itself becausels3:
. salmon fishing water comes and goes with change in river flow and not exclusively as a result of flood induced bed movement. This is consistent with an assumption of the (IFIM) that as flow changes the amount and spatial arrangement of suitable habitat changes. For example, as flow increases some locations that wee formerly too shallow or too slow become suitable for a given habitat use, and locations that were suitable become too deep or too fast.
[196] Mr Mime did not directly challenge that, but did challenge Mr Webb’s evidencelz4 that as flows decrease the angling amenity decreases and vice versa.
[ 1971 To see whether the second proposition was true Fish and Game asked an expert fisherman to assess lies Is5 in two reaches of the river at different flows. One reach was in the Arundel stretch above the Arundel Bridge, and the other was in the Island stretch below the State Highway 1 bridge. The survey did not unequivocally prove the hypothesis because in the largely single channel Amndel reach, the number of lies identified by the expert
153 M Webb Second Statement para 22.3. M Webb Second Statement para 21.4. The attractive, if ambiguous, name used by fishermen for the place where a salmon or trout stays stationary (more or less) in the river flow with a minimum of effort.
- .-- 72 increased with a decrease in flow. On the other hand, in the lower reach in the braided Island stretch (and this area is used about 70% more by expert anglers) the number of lies did decrease very significantly as flow fell away.
[198] We also heard the direct evidence of a number of expert anglers that the number of lies decreases with decreasing flow: Mr M C Ha11’56; Mr I H Watsonis7; Mr A D Brooksis8.
[ 1991 So we have evidence that lies decrease with flow, and an explanation for it - that less water makes the lies too shallow, or the flow of water too slow. As against that Mr Milne has only a theory : that flow is only relevant to salmon angling because of the turbidity and not for any other reason. We have considered Mr Mime’s submissions on the evidence, and we have re-read the cross-examination carefully. We are not convinced by his argument. We find that the TDC and RSIL position is too simplistic. We find that flow is relevant, at least in part, causally and not just coincidentally. Further increasing flow does generally, but not always, increase the fishing amenity up to 120 m3/sec (when turbidity becomes limiting).
[ZOO] We do not rely on the IFlM wetted useable area analysis in coming to our conclusion, because it relies on the same evidence we are taking into account.
[201] Mr Webb has produced tigures’59 which show that catch rate and angler effort both increase at Klondyke flows of 110-80 m3/sec (SO-SOm3/sec) residual. Counsel for TDC and RSIL was critical of Mr Webb’s analysis of the fishermen’s diaries from a survey carried out in the 1990 to 1993 fishing season, This analysis is, at first sight, important because it is evidence from a time before there was any suggestion of a water conservation
1% Notes of evidence (2003B) pp. 419-424. Notes of evidence (2003B) pp. 410-412. Notes of evidence (2003B) pp. 460-461. M Webb F&t Statement of evidence Figure 8 and Figure 9. 73
order, or of applications for further abstraction. Thus it avoids taints of interest in the outcome.
[202] However Mr Milne stated that Mr Webb has “. presented [the data] in a way which suits the applicant’s argument that additional abstraction will reduce fishable days, That is misleading and statistically invalid”. Mr Milne suggested that Mr Webb’s evidence as to diarist’s effort and success rate “cannot exclude the probability that these variables are largely if not wholly controlled by other facto:& for example turbidity, and turbidity coinciding with weekends or public holidays. We consider Mr Christensen is correct that there are answers to two hypotheses: first it does appear from Mr Webb’s figures 7 to 9 that greater effort and success occurred in the higher flow range (and of course that is corroborated by the independent evidence of expert fishers as we have already recorded) rather than evenly through the whole of the good turbidity range’60. Secondly, at Mr Mime’s request, Mr Webb analysed the diaries and found that angling effort was fairly evenly spread between weekends, holidays and weekdays, so that his conclusion that the spikes in effort were caused by flows was not damaged.
[203] Mr Webb’s figure 13 is quite telling ‘against the TDCiRSIL proposal in Mr Freestone’s B2 regime. Figure 13 graphs diarists fishing per day in the 1990-1993 salmon fishing season. It shows:
(a) peak effort occurred at residual flows of 61 to 77 m3/sec; (b) angling effort fell away quickly above a residual flow of 78 m3/sec; (cl as flows decline there was significant:ly less effort, but still some angling from 60 m3/sec residual down to 30 m3/sec; (d) below 30 m3/sec residual there was little angling effort.
See also notes of evidence (2003B) p. 332 and M Webb First Statement Figure 13 74
[204] Ms S E Porter claimed no expertise in assessingthe effects of abstractions on angling amenity but gave some evidence about that. Sh,e accepted in cross-examination161 that at Klondyke flows less than 87 m3/sec the river was less suitable. However she did not appear to understandt6’ that the residual flow at which water is too turbid (because more is being taken under B2) will be lower under B2 than under the current regime (the 1986 plan and, more or less, the Special Tribunal recommendation). On these issues we prefer the evidence of the other expert witnesses - Mr Webb, Dr Hayes, Dr Mosley, and that of the expert anglers Mr Watson and Mr Hall.
[205] While we were impressed with the clarity of Mr Freestone’s evidence, and his obvious understanding of the way different flow regimes work hydrologically, on some of the key issues his evidence could not help us because he was careful not to trespass beyond his expertise. When Mr Christensen asked him whether Mr Scarfs analysis of angling days lost under B2 is correct he had no opinion’63. Nor had he undertaken any quantitative analysis of the loss of angling quality’64. As Mr Christensen points out those answers rather invalidate the schedule in Exhibit 29.2 (initially put to Mr Scarf by Mr Milne) despite the fact that in extra evidence in chief given orally Mr Freestone said it was correct’65. He did not say (nor was he asked by Mr Mime to confirm) that he prepared it.
[206] The B2 regime nearly halves the available flows in category (a) above where peak effort has historically occurred, since at a Klondyke flow of 110 m3/sec (the upper limit of good turbidity fishing) the residual flow under B2 will be 70 (110-40) m3/sec. This can be seen from Mr Webb’s figure 13 : the angler effort at flows of 71 m3/sec to 77 m3/sec is lost because at those flows under regime B2 the Klondyke flows of 111 to 117 m3/sec are too dirty to fish. The extra fishing at the bottom end, of B2 is no compensation because at 30 m’isec (70-40) it is dropping into flows where anglers begin to give up altogetherr6”.
Notes of Evidence (2004) p. 804. Notes of Evidence (2004) pp. 807 and 809. Notes of Evidence (2004) p. 904. Notes of Evidence (2004) p. 9 10. Notes of Evidence (2004) p. 834 et ff. M Webb -Notes of Evidence (2003B) p, 337. 75
Turbidity [207] Mr Milne submits’67 that the assertion that optimal residual flows are between 60 and 75 m3/sec is not supported by the evidence. On its face that is incorrect: Mr Webb’s Figure 13 clearly shows maximum effort between those residual flo~s’~*. Mr Milne’s real point is that the sub-optimal flows below 60 m3/sec are less than ideal, not because of the reduced flow, but because (he asserts) the water is too clear16’:
On Mr Webb’sown evidence,in the January-Aprilperiod the river is generallytoo clear to fish at Klondykeflows below 87 (currentlyresidual 55, B2 residual47).
Accordingly, one would expect there to be lower utilisation and lower catch rates, at least in the 40-50 residual flow class.
[208] In our view Mr Milne puts far too much stress on the evidence that during one flood event in the January-April season the water at Klondyke was too clear at a flow of 87 m3/sec. Certainly that is helpful to him, but as he pointed out to Mr Webb (who agreed) it is only one event, and turbidity may vary with the size of freshes and floods’70.
[209] Mr Webb states that only three fieshes have been studied for their effects on turbidity.
[210] If we acknowledge, as we think we must:, that the understanding of turbidity and flow is very incomplete then Mr Milne’s attempted correlation of flows and turbidity falls over. It is speculation by his witnesses - Mr Freestone and Ms Porter (who have not carried out any studies on the Rangitata River) - to say that flow is & relevant because of its turbidity, and that speculation is contradicted by the angling evidence we have described.
Mr P J Milne ClosingSubmissions (received 11 Jqne 2004) para 37. Seealso M WebbFirst Statementpara 4.16. Mr P J Milm Closing Submissions(received 11 June2004) para 37. Notesof Evidence(2003B) p. 274.
- 76
Conclusion [211] We conclude from the angling evidence that the optimum fishing in the ,lower Rangitata River above the estuary is in residual flows of 60 to 77 cumecs (Klondyke 90-107 m3/sec). Mr Milne submits that the effect of the I32 regime on that is insignificant. We find that there is an effect which is more than minor: Mr Webb calculated there would be a reduction in fishing effort of 13%; and on the face of Mr Webb’s Figure 13 nearly half of the optimum range (residual flows above 110-40 = 70 m3/sec) would be eliminated under the B2 regime.
[2X2] We should also comment on the criticism by a number of witnesses (e.g. Mr Potts for RSIL) that the 1 to 1 flow sharing regime of the 1986 plan, and the draft water conservation order is arbitrary, and not justified by science. To some extent that is correct. However, it must be remembered that the flow sharing regime is a compromise, and that strict science might suggest all or more of the water should remain in the river, although we make no finding about that. What science can tell us is that:a further modification of the flow sharing regime along the lines of Mr Freestone’s B2 is that optimum flows for angling will be adversely affected.
Kayaking and rafting [213] The Special Tribunal reported thatt71 (relevantly):
54. A higher minimum flow below the RDR intake would benefit the canoeing experience
However it did not make a recommendation for such a flow.
[214] The ECan regime would significantly enhance the kayaking potential of the Arundel stretch. That is irrelevant because it is not the place of a water conservation order to enhance an amenity even if it is outstanding.
Special Tribunal Report page 120 77
[215] The B2 regime does not detract from the kayaking amenity, it simply moves the timing of the suitable range of flows. After one of the many freshes or floods which are characteristic of the Rangitata River, the river flow will drop (eventually, and usually quite swiftly) to and then below the mean annual flow. An inspection of Appendix 5.1 to this report will show that at a Klondyke flow of 115 m3/sec the draft water conservation order regime would remove 32 cumecs at Klondyke (and a little more further down) leaving a residual flow of 83, whereas the B2 regime would remove 40 cumecs, leaving a residual flow of 75 m3/sec so the flows that suit various skills will simply be reached under B2 more quickly.
[216] We find that the B2 regime would protect the outstanding kayaking/rafting amenity.
3.8 Other matters Downstreampollution [217] Because the Court was concerned it was reading evidence about the benefits of irrigation for primary industry, but little on the costs, it asked the CRC for evidence on that. We received some very interesting and unchallenged evidence from Dr A S Meredith and Mr C R Hanson. The former is a water quality ,scientist and the latter a groundwater scientist.
[218] One of the questions the Court asked was:
Does any of tlie pollution (nitrogen/faecal colifonns etc) return to the Rangitata River?
Dr Meredith broadened his answer to include whether the pollution (nitrogenifaecal colifonns etc) returns to any other important surface water bodies.
[219] Dr Meredith wrote that monitoring programmes show an increase in nitrate concentrations down the Rangitata River downstream between State Highway 72 and lower
-,~ reaches from State Highway 1 to the mouth. On average the increase is from 0.06 to 0.24 78
[220] Dr Meredith considers a significant component of the contamination derives from Ealing Springs - a wetland just upstream of the State Highway 1 bridge -which are sourced from border-dyke irrigated land to the north and northwest of the Rangitata River. He described the contamination ofthe springs as follows’72:
6.3 The outlets of Ealing Springs flow at approximately 1 cumec (1000 litres per second), and contain nitrate nitrogen concentrations meawred in the spring-heads of 4.8 to 5.8 mg per litre. These are similar to concentrations measured in the shallow groundwater. They are also approximately 100 times more concentrated than those measured upstream in the Rangitata River (0.06 mg/l; Hayward and Meredith, 2000). Eating springs alone, could therefore be expected to increase the nitrate nitrogen concentration of the Rangitata River by three to four times during surmne~ low to median flows. This is also verified by the measured average increases which also equate to a 3-4 times increase.
6.4 Ealing Springs, therefore, is one example of increased pollution from irrigated agricultural land retuning to the river. It is likely that there are additional contributions from several mox diffuse springs and upwelling zones further downstream.
[221] He continued to show that pollution is a larger issue than that. He wrote’73:
6.6 The Rangitata River itself is however, only a small geographical part of the area irrigated with water taken from the river. Therefore, significantly greater quantities of contaminants are likely to be generated and transported in or to other surface water bodies. In particular, much of the groundwater drainage from the extensive upper and mid-plains irrigation scheme areas feed the extensive numbers of spring-fed s+~eams along the Mid-Canterbury coast between the Rangitata River and the Ashburton River. These, numbering in excess of 20 recognised streams, have sighiticant flows and contajn nitrate nitrogen, in concentrations between 5 and 8 mg per litre. These concentrations characterise these streams as being highly enriched with soluble nutrients. These streams therefore receive and transport a large quantity of soluble contaminants (estimated at 1400 tonnes of nitrate nitrogen per annum under base. flows in 2001). This mass load is much greater than that carried annually by the baseflows of the Ran&ta River itself.
Dr A S Meredith Second Statement of Evidence para 6.3 and 6.4. Dr A S Meredith Second Statement of Evidence para 6.6-6.10. 79
6.7 Undoubtedly, there is also groundwater tnmpoti of such contaminants beyond the land that upwells into the marine environment.
6.8 The Ashburton River undoubtedly also receives Rangitata irrigation derived groundwater contaminants in a similar manner to the Rangitata River from springs and upwelling groundwater. Similarly, the groundwater systems north of the Ashburton River would also be enriched with contaminants derived from Rangitata irrigation water.
6.9 Therefore, when considering ‘pollution’ or contaminants arising from irrigation with Rangitata River water, a broad range of receiving environments, beyond just the Rangitata’River could, and should be considered. These include the Rangitata and Ashburton Rivers, the Mid-Canterbury coastal streams, and shallow groundwater that flows directly to the sea.
6.10 A final consideration is that all of these waterbodies are transporting most of these contaminants to the marine environment of the inshore areas of the Canterbury Bight. They are therefore collectively, contributing to the enrichment of this marine receiving environment. The marine environment is classically considered nitrogen poor, or nitrogen limited, so increased mm loads of nitrogen in particula, may eventually lead to a threshold of adverse effects such as conspicuous or toxic algal blooms, and effects on marine values. However, there is currently no evidence of significant or sustained adverse effects arising from irrigation and land uses.
[222] There are potentially important issues here which should not be lost sight of, As we have stated, while it can be efficient to dump waste and clean up later, it is worth at least raising the issue so that it is in the public arena. 80
PART 4 What Terms are Recommended? 4.1 Introduction [223] The functions of,a regional council in respect of water under section 30 of the RMA may be described in both qualitative and quantitative terms. The focus of this inquiry has been on the latter and we draw the braids together on flow issues shortly,
[224] As for water quality, the Special Tribunal made recommendations about the terms of an order including qualitative conditions. No party questioned those in any substantive way. However, the CRC suggested the proposed cond.itions should be updated to reflect more recent standards.
[225] Dr Meredith gave evidence that many of the clauses in the Special Tribunal’s proposed draft water conservation order were inconsistent with the existing national and international guidelines. He was not challenged on these aspects of his evidence, and we accept that his recommended changes should be made. They are incorporated in the draft order in Part 5.2 of this report.
4.2 The competing flow water regimes [226] As to quantitative aspects of an order, based on the various needs the Special Tribunal recommended a quantitative water management regime with four types of control:
(1) minimum flows; (2) flow sharing as flows in the river change; and (3) a ‘cap’ on abstraction; (4) restriction on abstraction points.
[227] After considering its findings as to what characteristics of the river are outstanding and what provisions are necessary to protect them, the Special Tribunal made these 81 recommendations about water flows in the riyer174 (and we note these are basically the same as in the CRC’s 1986 plan):
95. A higher minimum flow would be highly desirable to reduce the impacts of low flows on in- stream values including fish passage, macro-invertebrate production and the number of suitable fishing days, but this would have adverse impacts on the established industry and the associated communities. The present regime with minimum flows of 15 n?/s in winter and 20 n?/s in summer with flow-sharing above this level takes account of the needs of industry, and when combined with other provisions should be adequate to protect the outstandiig attributes of the river. These minimum flows should also keep the mouth open, except for short periods.
96. Changing between summer and winter regimes on September 15 and May 15 appears to be acceptable to both irrigators and fisheries advocates, but is different from the recommendations of ECan aid some others.
97. In conjunction with a minimum flow the most important flows for protecting the outstanding features are those below about 100 n?/s, providing these are complemented with appropriate flow variability and floods. This is the flow range most affected by the current abstractions, which axe primarily below the gorge. We do not consider that further abstraction can be allowed in this range without serious adverse effects on the outstanding features.
98. We consider that higher minimum flows would potentially affect the reliability of run of the river takes to a point where the economic benefits are severely reduced. We note that the Ashburton District, although opposed to a w&r conservation order, supported the flow regime proposed by the applicant, which is similar to our recommendations.
99. Therefore, we recommend a cap on abstract:ion of 33 m’is and maintenance of a 1:l flow sharing regime between in and out of river uses. We note that 33 &is is a significant proportion of the mean flow (95 m3/s).
100. Above 100 m’is there is a need to ensure that the number and sizes of fieshes and floods are not significantly reduced. However we also accept that there is significant potential to develop further tiigation using Rangitata River water. We consider that when the flow in the Rangitata River is above 110 &is at Klondyke that an additional 20 m’/s can be made available for
Special Tribunal Report pp. 126.127. 82
abstraction. The rates of rise in the river are extremely rapid, and this places a limitation on the ability to abstract significant amounts of water from the rising limb of the fresh or flood. It is not uncommon for the river to rise at rates in excess of 150 n?ls perhour during northwesterly ratid& especially when that rainfall also produces snowmelt.
101. Therefore we consider that a 1:l flow sharing regime [at flows above 100 m’isec] would not be practical. We recommend a two step allocation: 10 &Is when the natural river flow is between 111 m3/s and 120 m3/s, and 20 n?/s when the river is above this,
In fact the draft order contains three steps,
ThefIow regimes compared [228] The Special Tribunal’s draft WC0 flow provisions were supported by the applicant, Rangitata Diversion Race Management Limited and TrustPower Limited. FF was prepared to live with the Special Tribunal’s recommended minimum flows but opposed (initially at any rate) any cap on abstraction or flow sharing.
[229] As far as the ECan regime is concerned this suffers from the defect that its qualitative cap is probably (with respect) beyond the Minister’s powers to impose. It suggests that a (subjective?) judgement as to what flow will protect the outstanding characteristics can be made from time to time bv the CRC. We cannot recommend its regime on that score alone. In addition we accept the evidence of Dr Hayesi7’ that any benefits of higher minimum flows are offset by losses from having no flow share under the ECan regime.
The DOC/F&B regime [230] The DOC/F&B regime makes little difference to the salmon fishery (either as habitat or for angling), so we examine this regime primarily in relation to its effect on the habitat for black-fronted terns.
Dr J Hayes evidence-in-chief pan 10.8 and Notes of Evidence (2004) p. 594. 83
[231] Since the only fauna1 characteristics of th.e lower river which we have found to be outstanding in terms of section 199 of the RhJA are its macro-invertebrates and black- fronted terns we consider whether the proposed :DOCiF&B regime is necessary to protect those characteristics. It seems clear to us that such a regime might enhance the characteristics but that is not a matter we can cons:ider here.
[232] At this point we came up against one of the more incomprehensible aspects of Part 9 of the RMA. It is that we must first assesswhether existing characteristics of the Rangitata River are outstanding and if so we must consider how to protect those existing characteristics. Counsel for RDRML and Trusff ower, TDC and RSIL repeatedly restated that in a number of contexts. In this context they s:ubmitted and cross-examined on the basis that if the population of lower river black-fronted terns was outstanding (this was not admitted) then that was despite existing abstractions of water from the river. Thus, the argument runs, we should not consider what effect a 32 m3/sec abstraction has on the moats that protect tern colonies, only the effect of an extra abstraction of another 7-8 cumecs (maximum).
[233] In general terms that is correct because of the wording of section 199(2) of the Act. However, if a population of terns is both outstanding and, as a matter of fact, declining, we consider we are limited to examining what is needed to halt the decline. We are not to consider enhancement of the population. It is that unintended silliness that makes us question the usefulness of Part 9 of the RMA. If a species is probably in decline, possibly on the way to extinction, all this part of the Act permits is stabilisation of the local population so that it does not decline further. Section 199 reads like an environmental commandment’76:
Thou shalt not kill, but needst not strive officiously 1:okeep alive. I
AH Clough The Latest Decalowe. 84
A consolation is that no doubt this issue was looked at thoroughly when parties such as RDRML applied for a renewal of their water permits under Part 6 of the Act,
[234] Dr Hughey makes an important point thai: it is the cumulative effects of predation, reduced water flows (possibly increasing predation and weeds and reducing food supplies) and disturbance by humans which may be critical for species such as the black-fronted tern. The case for RDRML seems to be’77 that there is no evidence of decline on the Rangitata River over the last 25 years during which 30.7 m3/sec has been taken from the river.
The TDC and RSIL regimes [235] As we have shown the Special Tribunal recommended a cap on abstraction-that is a limitation on the amount of water taken from the river. The draft water conservation order provides for a 33 cumec cap. However, the water regime proposed by Mr Freestone for the TDC and RSIL -which he called ‘B2’ (and so shall we) - is based on a 40 cumec cap. That is, when the Klondyke flow is 110 cumecs the minimum left in the river would be 77 cumecs under the draft water conservation order, and 70 cumecs under regime B2.
[236] We are also conscious that removing more water may have an effect on the temperature of the remaining water.
[237] The Special Tribunal recommended that there be a maximum of three places”* on the lower river from which water may be taken directly from the river. As we have stated, there are three in-river points of take now:
e the RDR at Klondyke;
l the ADC stockwater take at Cracroft; . the Rangitata Dairies take at Ealing.
See for example the cross-examination of Dr Hughey at p, 309 Notes of Evidence (2003) Special Tribunal draft water conservation order clause 9(2)(f). 85
Two issues arise:
(a) should there be any more in-river points of take; and @I what is the effect of this clause on groundwater abstraction?
[238] On the first issue, we consider one more should be added so that if a regional plan or resoume consent ever authorises abstraction on the south side of the river, there will be a point to take from.
[239] As to the second issue: the reason for placing a limit on in-river takes is to minimise works and disturbance in the riverbed. Thus there is no need to include groundwater takes (if they are included) in any limit which may be placed on in-river takes. If we recommend a water conservation order, that finding should be reflected in its terms.
4.3 Wetlands, tributaries and groundwater [240] The definition of “water” in section 2 of the RMA is very wide. It states: “Water” - (a) Means water in all its physical forms whether flowing or not and whether over or under the ground; (b) Includes fresh water, coastal water, and geothermal water; (c) Does not include water in any form while in any pipe, tank, or cistern:
“Water body” means fresh water or geothermal water in a river, lake, stream, pond, wetland, or aquifer, or any part thereof, that is not located within, the coastal marine area:
Accordingly the Special Tribunal needed to consider whether its recommended water conservation order covered tributaries of the Rangitata River, and associated wetlands and connected groundwater.
[241] Issues have been raised as to: 86
l Ealing wetland
l Un-named tributaries * Hydraulically connected groundwater
l Usage of seepageby Shepherds Bush Limited.
Caps on abstraction [242] The Special Tribunal proposed a series of caps on abstraction:
(i) maximum take of 33 m3/sec ‘unless the naturally occurring flow at Klondyke exceeds 110 m3/sec”79; (ii) maximum take of 43 m3/sec at Klondyke flows above 120 m3/sec; (iii) maximum take of 53 m3/sec at Klondyke flows above 130 m3/sec.
No party argued for retention of caps (ii) and (iii), and in our opinion there should be no prohibition on takes at Klondyke flows above 110 m3/sec. Restrictions on takes when the river is flowing above that rate are an issue that s,hould be left for a regional water plan, or for individual water permit conditions.
[243] However, whilst we have concluded that, at Klondyke flows below 110 m3/sec, there should be a cap on abstraction, the wording in the Special Tribunal’s clause 9(d)(i) provides problems especially for groundwater abstraction, One difficulty is that the Special Tribunal’s draft wording is apt for instantaneous abstraction but not for flows an hour or more downstream, and certainly not fork groundwater takes that have much delayed drawdown on the river flows.
onservation order clause 9(2)(d)(i). 87
[244] This issue arises directly for groundwater which is hydraulically connected to the Rangitata River because the Special Tribunal’s draft clause 9(2)(d)(i) is proposed to apply to’XO:
Shallow groundwater within 15 m below the ground and less than 1000 m either side of [the lower Rangitata].
There are also some practical problems with the groundwater clause, and we turn to that issue now.
Groundwater [245] The CRC raised an issue as to groundwater takes, and their hydraulic connection to the river. The issue arises because the Rangitata River flows across a thick alluvial fan of gravel deposits. Groundwater occurs within these gravel strata. Groundwater pumped from bores to provide domestic, stockwater and irrigation supplies, can draw water from the river.
[246] The draft conservation order plans’s’ to manage groundwater effects on river flow by only considering the separation distance between the pumping bore and the river. We read evidence from Mr P F Callander, the groundwater specialist called for the CRC, that from a technical point of view, this is not an accurate assessment of the effect of groundwater pumping on flows in the river.
[247] Mr Callander described the drawdown effect as depending on the following factors:
l the rate and duration of pumping;
l the permeability and water storage characteristics of the aquifer;
l the separation distance between the pumping bore and the river;
l the permeability of the riverbed. 88
[248] He wrote that the effect of current groundwater abstraction consents on the Rangitata River system are in the order of 1.5 m3/sec over a 150 day irrigation season. These are divided between banks of the river as follows’82:
North bank 0.6 m3/sec South bank 0.9 m3/sec Total 1.5 m3/sec
He subsequently confirmed that the Rangitata Dairies wells are included in the south bank figures.
[249] Mr Callander recommended against the Special Tribunal’s “1,000 m wide, 15 m deep” rule because it does not reflect the actual effects of the groundwater abstraction on the surface flow. The approach set out in Table 1 of his evidence is based on a more realistic representation of the actual effects that groundwater abstractions have on river flow. We have derived the following suggested rules:
(a) If the calculated river depletion effect from groundwater abstraction is equal or greater than 90% of the bore pump rate after seven days continuous steady pumping, then: (i) it shall be managed as though it is a surface water abstraction; and (ii) the maximum instantaneous pumping rate from the bore should be included in the surface water allocation total.
(b) If the calculated river depletion effect is less than 90% of the bore pump rate after seven days continuous steady pumping but greater than or equal to 50% of the bore pump rate after 150 days continuous steady pumping, then: (i) it shall be managed so that any calculated river depletion effect which is greater than 5 L/s is subject to surface water allocation rules; and
MI P F Callander Exhibit 10.1 89
(ii) the effect on river flow after 150 days of pumping at the continuous rate required to deliver the seasonal volume should be included in the surface water allocation total.
(c) If the calculated river depletion effect is less than 50% but greater than or equal to 25% of the pump rate after 150 days continuous steady pumping, then: (i) the abstraction should not,be su~bject to any surface water restriction rules; and (ii) the effect on river flow after 150 days of pumping at the continuous rate required to deliver the seasonal volume should be included in the surface water allocation total for those consents where the effect is greater than 5
LIS.
[250] If that table or something similar is not included in a notified draft Regional Water Plan before a water conservation order is made, (if and when it is made) then we recommend that it is included in the water conservation order.
Concerns of Shepherds Bush Limited [251] Shepherds Bush Limited (“SBL”) is a dryland farming company which owns land on the northern side of the Rangitata,River. Our inspection showed that its land is on two terraces, one a little above the Arundel stretch, and the other stepping up over 100 metres above the river. The Mayfields-Hinds canal diverges from the RDR canal about one kilometre northwest and runs through the SBL land on the southern edge of the upper terrace.
[252] Like all open irrigation canals the RDR scheme loses a significant amount of water, some by evaporation and some by seepage. SBL is interested in the seepage from the canal because there are springs at the foot of the terra&e below the canal which if tapped by SBL might enable it to irrigate some of its currently unirrigated lower terrace. At present the ngs run across SBL and then disappear into the gravels. 90
[253] SBL seeks two changes to the Special Tribunal’s draft water conservation order:
(1) a change to the groundwater rules that would not prohibit abstraction from the springs;
(2) a change to the map of the RDR “catcbment” so that the boundary follows the Mayfields-Hinds canal rather than the Ealing Montalto Road two kilometres to the north.
[254] As to the first change, we consider that is taken care of by our suggestions for groundwater above. The second change appears to be redefining what is basically a question of fact. We read no evidence that the Special Tribunal was wrong, so we do not recommend a change.
4.4 Drafting changes [255] Clause 9(2)(c) and (d) are amended so that the effects of drawdown of hydraulically connected groundwater can be taken into account.
[2.56] Clause 9(2)(e) of the Special Tribunal’s draft water conservation order provided that at least 28 m3/sec be available for one continuous take. We do not see how that achieves the protection of any characteristic of the river so we do not include such a clause in our recommended water conservation order.
[257] The former clause 9(2)(f) is now clause 9(2)(d) in our draft water conservation order. We see no need to state that the points of take should be stated to be in-river take because the clause is expressed to apply to the live river and tributaries in the Second Schedule to the water conservation order, n& to groundwater in the Third Schedule.
[258] The applicants, Fish and Game, recommended a clearer way of wording the flow regime in clause 9(3) and (4) of the Special Tribunal’s draft water, conservation order. No arty opposed its changes and accordingly we have altered clause 9 as follows: 91
(a) Clause 9(3)(b) should be amended to read:
when the flow at Klondyke is greater than 20 n?/sec but less than 40 m’/sec all flow in excess of 20 m’/sec is available to be taken.
(b) Clause 9(3)(c) should be amended to read:
when the flow at Klondyke is greater than 40 n?/sec but less than 66 x?/sec, up to 33 m3/sec may be taken on the basis of a 1 :l sharing between instreamretention and water abstraction.
When the flow at Klondyke is greater than 66 m3/sec and less than 110 m’isec all water in excess of the cap of 33 n?/sec shall be retained instream.
[259] Similarly, clause 9(4)(c) should be amended to read:
When fhe flow at Klondyke is greater than 30 n?/sec but less than 66 n?/sec up to 33 m3/sec may be taken, pn the basis of a 1: 1 sharing between instream retention and water abstraction.
When the flow at Klondyke is greater than 66 n?/sec and less than 110 &/sec all water in excess of the cap of 33 n?/sec shall be retained instream.
4.5 Conclusions [260] In making the following recommendations we are not expressing an opinion that the recommended flows are sustainable management under Part 2 of the Act. We are simply making recommendations as required by Part 9 of the Act as to the minimum waterline that should be set.’ Our findings as to the minimum standards are not necessarily the same as might be set in a Regional Water Plan, or on a resource consent application especially if there was further evidence.
[261] In particular we have concerns about the effects of abstraction from the river on all braided river bird species (not just black-fronted terns), on the salmon fishery, and on on angling. Our findings here should not be regarded as in any way conclusive on what tainable management of those resources (and others including the river water) requires. 92
The fact that we have recommended there should be orders prohibiting water abstractions beyond certain levels, does & mean we are in any way hinting that we approve, let alone endorsing, takes to those limits.
[262] In addition there are issues raised by witnesses such as Dr Hayes in relation to the salmon fishery which suggest that on any applications for water permit to take from the river, a condition that restricts any increase in the mean daily temperature to no more than 2°C may be useful.
[263] We recommend that a water conservation order is made in the terms set out in appendix 5.2 to this report. However, our report is an interim one in that we wish to give the parties an opportunity to respond on the precise wording of the draft water conservation order. Consequently we reserve leave to any party to make written submissions on changes or corrections to appendix 5.2 which, in that party’s view, are necessary:
(a) to ensure the draft order meets the spirit and intent of our substantive findings; and/or (b) to deal with any matter which we may have inadvertently omitted.
This leave reserved is not an invitation to re-open the inquiry into any substantial issue.
[264] Accordingly we w:
(1) Any written submissions under the leave reserved above are to be lodged and served by 29 October 2004; and (2) Any response by any other party is to be lodged and served by 12 November 2004; (3) the Court will then resolve the issue on the papers.
e note that a fairly generous time has been allowed for lodging submissions since we wish parties to have time to look at and digest the report. More importantly, we are trying to 93
assist any party who wishes to carry out further research (in the light of our findings) into the scientific characteristics of the river and its fauna because we hope there could be fuller and more up-to-date data when the Court is considering the extant appeals the RDRML water permits.
[265] In case we have power to order costs, they are reserved. We note our preliminary view is that any orders for costs would be inappropriate.
[266] Finally we wish to report our concern that the current system of allocation of water permits on a ‘first come first served’ basis does seem to lead to possible unfairness and to potential inefficiency. The unfairness and inefficiency is that a party like RSIL cannot compete for the existing water takes. One answer to the unfairness issue to RSIL may have been for it to apply first (before RDRML applied for its renewals) but then the unfairness simply moves to RDRML. Another answer may be a regional water plan, although we foresee the potential for highly politicised decisio,ns and across-the-river animosities. No doubt there are more efficient solutions which rely on mechanisms such as tradeable water permits, but that is not for us to recommend or comment on here. /
94
PART 5 Appendices 5.1 Table of flows, abstractions and residual flows
Klondykc RDR Other Total Current B2 B2 B2 flow abstraction residual total abst residual extra
29 0 0 0 29 0 29 0 30 0 0 0 30 0 30 0 31 0 0 0 31 0 31 0 32 0 0 0 32 0 32 0 33 10.9 1.1 12 21 12 21 0 34 10.9 1.1 12 22 12 22 0 35 12.9 1.1 14 21. 14 21 0 36 12.9 1.1 14 22 14 22 0 37 14.9 1.1 16 21. 16 21 0 38 14.9 1.1 16 22 16 22 0 39 16.9 1.1 18 21~ 18 21 0 40 16.9 1.1 18 22. 18 22 0 41 18.9 1.1 20 21 20 21 0 42 18.9 1.1 20 22 20 22 0 43 18.9 1.1 20 23 20 23 0 44 21.8 1.2 23 21 23 21 0 45 21.8 1.2 23 22 23 22 0 46 21.8 1.2 23 23 23 23 0 41 21.8 1.2 23 24 23 24 0 48 21.8 1.2 23 25 23 25 0 49 21.8 1.2 23 26 23 26 0 50 21.8 1.2 23 27 23 27 0 51 26.2 1.3 27.5 23.5 30 21 2.5 52 26.2 1.3 27.5 24.5 30 22 2.5 53 26.2 1.3 27.5 25.5 30 23 2.5 54 26.2 1.3 27.5 26.5 30 24 2.5 55 26.2 1.3 27.5 27.5 30 25 2.5 56 26.2 1.3 27.5 28.5 32.5 23.5 5 51 26.2 1.3 27.5 29.5 32.5 24.5 5 58 26.2 1.3 27.5 30.5 32.5 25.5 5 59 26.2 1.3 27.5 31.5 32.5 26.5 5 60 26.2 1.3 27.5 32.5 32.5 21.5 5 61 30.7 1.3 32 29 40 21 8 62 30.7 1.3 32 30 40 22 8 ‘63 30.7 1.3 32 31 40 23 8 64 30.7 1.3 32 32 40 24 8 65 30.7 1.3 32 33 40 25 8 66 30.7 1.3 32 34 40 26 8 67 30.7 1.3 32 35 40 27 8 68 30.7 1.3 32 36 40 28 8 69 30.7 1.3 32 37 40 29 8 70 30.7 1.3 32 38 40 30 8 71 30.7 1.3 32 39 40 31 8 95
72 30.7 1 .J 32 40 40 32 8 73 30.7 1.3 32 41, 40 33 8 74 30.7 1.3 32 41 40 34 8 75 30.7 1.3 32 43 40 35 8 76 30.7 1.3 32 44. 40 36 8 77 30.7 1.3 32 4.5 40 37 8 78 30.7 1.3 32 46 40 38 8 79 30.7 1.3 32 47 40 39 8 80 30.7 1.3 32 48 40 40 8 81 30.7 1.3 32 49 40 41 8 82 30.7 1.3 32 50 40 42 8 83 30.7 1.3 32 51 40 43 8 84 30.7 1.3 32 52 40 44 8 85 30.7 1.3 32 53 40 45 8 86 30.7 1.3 32 54 40 46 8 87 30.7 1.3 32 55 40 47 8 88 30.7 1.3 32 56 40 48 8 89 30.7 1.3 32 57 40 49 8 90 30.7 1.3 32 58 40 50 8 91 30.7 1.3 32 59 40 51 8 92 30.7 1.3 32 60 40 52 8 93 30.7 1.3 32 61 40 53 8 94 30.7 1.3 32 62 40 54 8 95 30.7 1.3 32 63 40 55 8 96 30.7 1.3 32 64 40 56 8 97 30.7 1.3 32 65 40 57 8 98 30.7 1.3 32 66 40 58 8 99 30.7 1.3 32 67 40 59 8 100 30.7 1.3 32 68 40 60 8 101 30.7 1.3 32 69 40 61 8 102 30.7 1.3 32 70 40 62 8 103 30.7 1.3 32 71 40 63 8 104 30.7 1.3 32 72 40 64 8 105 30.7 1.3 32 73 40 65 8 106 30.7 1.3 32 74 40 66 8 107 30.7 1.3 32 75 40 67 8 108 30.7 1.3 32 76 40 68 8 109 30.7 1.3 32 77 40 69 8 110 30.7 1.3 32 78 40 70 8 111 30.7 1.3 32 79 40 71 8 112 30.7 1.3 32 80 40 72 8 113 30.7 1.3 32 81 40 73 8 114 30.7 1.3 32 82 40 74 8 115 30.7 1.3 32 83 40 75 8 / ,
96
5.2: Environment Court’s Draft Order
Water Consehation (Raneitata River) C)rder
1 TITLE
This order is the Water Conservation (Rangitata River) Order 2005.
2 COMMENCEMENT
This order comes into force on the 20th working day after the date of its notification in the Gazette.
3 INTERPmTATION
In this order, unless the context otherwise requires:
“Act” means the Resource Management Act 1991,
“Biomass” in relation to weed or periphyton means “of the exposed substrata (tops and sides of stones) averaged over the full width of a channel run or reach”
“Reasonable mixing” means the mixing that occurs:
(a) Within a maximum radius of 200 metres from a discharge into a still water body; or (b) Within a maximum distance of 100 metres downstream from a discharge into the river including all tributaries (both named and unnamed on the NZS 260 maps) and in particular including the Ealing Springs and McKinnons Creek.
“River” means the mainstem of those waters identified in the Schedules to this Order. The mainstem shall be the river with that name on the Infomap 260 series topographical maps between specified lower and upper limits as defined by map references in the Schedules to this Order.
“Tributaries” means all the tributaries of the rivers or sections of rivers identified in Schedules I,2 and 3.
“Klondyke” means the site of the water level recorder on the Rangitata River at or about J36 666149. 97
4 OUTSTANDING CHARACTERISTICS AND FEATURES
The waters specified in either Schedule 1, 2 or 3 include or contribute to, to the extent identified in Schedule 1, 2 or 3, the following outstanding characteristics, features, and values:
(4 amenity and intrinsic values; (b) habitat for terrestrial and aquatic organisms; (c) fishery values; (4 wild, scenic and other natural characteristics; scientific and ecological values; i;;’ recreational, historical, spiritual or cultural characteristics; (g) significance in accordance with tikanga Maori. I
5 WATERS TO BE RETAINED IN NATURAL STATE Because of the outstanding characteristics, features, and values identified in clause 4, the quality, quantity, level and rate of flow of the waters specified in Schedule 1 are to be retained, as far as possible, in their natural state.
6 WATERS TO BE PROTECTED Because of the outstanding characteristics, features, and values identified in clause 4, the waters specified in Schedule 2 are to be protected in accordance with the relevant conditions in clauses 8 to 11, as specified in Schedule 2.
1 I WATERS TO BE PROTECTED AS CONTRIBUTING TO OUTSTANDING FEATURES
Because of their contribution to outstanding characteristics and features identified in clause 4, the waters specified in Schedule 3 are to be protected in accordance with the relevant conditions in clauses 8 to 11, as specified in Schedule 3.
! 8 RESTRICTIONS ON DAMMING OF WATERS
(1) No resource consent may be granted or rule included in a regional plan permitting the damming of the waters specified in Schedule 3. For the purposes of this clause, damming does not include any intake or deflection structure that does not -
(a) prevent the passage of any salmon; or reduce the use of the waters for rafting or canoeing; or reduce the aquatic bird habitat; or
-- - -- ___.--. 98
(4 intrude visually to the extent that it reduces wild and scenic values. (2) No resource consent may be granted or rule included in a regional plan permitting the damming of the waters specified in Schedule 3, whenever that Schedule refers to this clause, if that will cause, either by itself or in combination with any other existing consents or rules -
(4 material alteration of the naturally occurring sediment delivery to the mainstem Rangitata River; or reduction of the aquatic bird habitat. @) (3) This clause does not apply to the maintenance authorised by the CRC of existing rock weirs and river works to the same level and extent as occurring as at 1 January 2000 or to the placing of raw rock works and the carrying out of authorised river engineering works necessary for flood and asset protection purposes.
9 RESTRICTIONS ON ALTERATIONS OF RIVER FLOWS AND FORM
(1) No resource consent may be granted or rule included in a regional plan -
(a) that will cause the material alteration of the channel cross-section, or meandering pattern, or braided river channel characteristics of the form of any river specified in Schedule 2; (b) the restriction in clause (l)(a) does not apply in respect of dams, weirs, roads, fords, bridges, access ways, or fish passes lawfully existing on the date this order comes into force.
(2) No resource consent may be granted or rule included in a regional plan -
(a) permitting the abstraction of water from any part of the Rangitata River specified in items 1,2, 3 and 6 of Schedule 2; (b) that will cause, either by itself or in combination with any other existing consents or rules, alteration of the naturally occurring instantaneous flow of water at Klondyke - (i) by more than 2% when the naturally occurring flow at Klondyke is less than or equal to 110 m3/s; or (ii) by more than 12% when the naturally occurring flow at Klondyke is greater than 110 m3/s. (c) that will cause, immediately or within 150 days, and either by itself or in combination with any other existing consents or rules, alteration of the naturally occurring instantaneous flow of water in any river specified in item 2 of Schedule 3 - (i) by more than 15% when the naturally occurring flow at Klondyke is less than or equal to 110 m3/s; or 99
(ii) by more than 30% when the naturally occurring flow at Klondyke is greater than 110 m3/s. (d) that will cause, immediately or at least within 150 days, either by itself or in combination with any other existing consents or rules, total abstraction from all parts of the Rangitata River specified in Schedules 1,2 or 3 - (i) to exceed a maximum of 33 m3/s unless the naturally occurring flow at Klondyke exceeds 110 m3/s; or (e) if the effect is that the number of takes from those parts of the Rangitata River specified in items 4 and 5 of Schedule 2 is greater than a maximum of four.
(3) For the period from 15 September to 14 May in the following year, there shall be a flow management regime in respect of the main stem of the Rangitata River comprising -
(4 a minimum flow of 20 m3/s; and (b) when the flow at Klondyke is greater than 20 m3/s but less than 40 m3/s all flow in excess of 20 m3/s is available to be taken; and (c) when the flow at Klondyke is greater than 40 m3/s but less than 66 m3/s, up to 33 m3/s may be taken on the basis of a 1:1 sharing between instream retention and water abstraction; and
when the flow at Klondyke is greater than 66 m3/s and less than 110 m3/s all water in excess of the cap of 33 m3/s shall be retained instream.
(4) For the period 15 May to 14 September each year, there shall be a flow management regime in respect of the main stem of the Rangitata River comprising -
a minimum flow of 15 m3/s; and ;; yhen the flow at Klondyke is greater than 30 m3/s but less than 40 m3/s up to 15 m3/s shall be available to be taken, increasing incrementally to a maximum of 25 m3/s when the flow reaches 40 m3/s; or (cl when the flow at Klondyke is greater than 30 m3/s but less than 66 m3/s, up to 33 m3/s may be taken, on the basis of a 1:l sharing between instream retention and water abstraction.
When the flow at Klondyke is greater than 66 m3/s and less than 110 m3/s all water in excess of the cap of 33 m3/s shall be retained instream.
(5) All applications for water permits to take groundwater shall be assessedas if:
(a) all surface abstractions are being exercised; and (b) the Rangitata River flow never exceeds 110 m3/sec at Klondyke. 100
(6) No resource consent may be granted or rule included in a regional plan that will cause, either by itself or in combination with other existing consents or rules, including existing surface and groundwater takes, reduction of the naturally occurring instantaneous flow in McKinnons Creek at Wallaces Bridge (map reference K38:887-716) below a minimum flow of 300 l/s.
(7) The restrictions in clauses (2) - (5) do not apply in respect of any waters specified in item 3 of Schedule 6 that are not hydraulically connected to the Rangitata River or its tributaries.
(8) (a) If the calculated river depletion effect from groundwater abstraction is equal or greater than 90% of the bore pump. rate after seven days continuous steady pumping, then: (i) it shall be managed as though it is a surface water abstraction; and (ii) the maximum instantaneous pumping rate from the bore should be included in the surface water allocation total.
(b) If the calculated river depletion. effect is less than 90% of the bore pump rate after seven days continuous steady pumping but greater than or equal to 50% of the bore pump rate after 150 days continuous steady pumping, then: (i) it shall be managed so that any calculated river depletion effect which is greater than 5 L,/s is subject to surface water allocation rules; and (ii) the effect on river flow after 150 days of pumping at the continuous rate required to deliver the seasonal volume should be included in the surface water allocation total.
(cl If the calculated river depletion effect is less than 50% but greater than or equal to 25% of the pump rate after 150 days continuous steady pumping, then: (i) the abstraction should not be subject to any surface water restriction rules; and (ii) the effect on river flow after ~150days of pumping at the continuous rate required to deliver the seasonal volume should be included in the surface water allocation total for those consents where the effect is greater than 5 L/s.
REQUIREMENT TO MAINTAIN FISH PASSAGE
(1) No resource consent may be granted or rule included in a regional plan relating to the waters identified in Schedule 2, that will adversely affect the passage of salmon, where Schedule 2 identifies salmon passage or salmon spawning as an outstanding characteristic or contributing to an outstanding characteristic. 101
(2) No resource consent in relation to an intake site may be granted for the waters specified in Schedule 2 unless that resource consent prohibits fish from entering the intake as far as is reasonably practicable.
11 RESTRICTIONS ON ALTERATION OF WATER QUALITY
(1) No resource consent may be granted or rule included in a regional plan permitting a discharge into any of the waters identified in Schedules 2 or 3 at any time, if, afier allowing for reasonable mixing of the discharge with the receiving waters, the discharge will alter the natural temperature of the receiving water by more than 3 degrees Celsius provided that:
(a) the alteration does not increase the water temperature to more than 12 degrees Celsius during the months May to September (inclusive); and (b) the alteration does not increase the water temperature to more than 20 degrees Celsius during the months October to April.
(2) No resource consent may be granted or rule included in a regional plan permitting a discharge into any of the waters identified in Schedule 2 or Schedule 3, unless, after allowing for reasonable mixing of the discharge with the receiving waters, any change in the acidity or alkalinity in the receiving waters, attributable to that discharge, maintains the pH within the range of 6 to 9 units.
(3) No resource consent may be granted or rule included in a regional plan permitting a discharge into any of the waters identified in Schedule 2 or Schedule 3, unless, after allowing for reasonable mixing of the discharge with the receiving waters -
(a) there will be no undesirable biological growths attributable to the discharge; (b) in particular there will be no: (i) bacterial and/or fungal slime growths that are visible to the naked eye; and/or (ii) maximum covers of streams or river beds by: I periphyton as tilamentous growth (longer than 20 millimetres) exceeding 30%; and/or II periphyton as mats (more than 3 millimetres average thickness) covering more than 60% of the riverbed; and/or III biomass of periphyton as tilamentous algae; and/or IV biomass of diaforms or filamentous mats exceeding 200 milligrsms per square metre; and/or V 35 grams ash-free dry weight per square metre of exposed surface area; and 102
(c) aquatic organisms shall not be rendered unsuitable for human consumption through the accumulation of contaminants; and/or (d) the water is not made unsuitable for contact recreation by: (i) the presence of contaminants; or (ii) a single sample ofbacterial values exceeds 500 E. coli per 100 ml.
(4) No resource consent may be granted or rule included in a regional plan permitting a discharge into sny of the waters identified in Schedule 2 or Schedule 3 if, after allowing for reasonable mixing with the receiving waters, the discharge will reduce the concentration of dissolved oxygen below 80% of saturation.
12 SCOPE OF ORDER
(1) This order does not limit section 14(3)(b) and (e) of the Act relating to the use of water for domestic needs, for the needs of animals, and for, or in connection with, fire-fighting purposes.
(2) This order does not restrict or prevent grant of water or discharge permits to the Department of Conservation or rules being included in a regional plan that will permit minor water uses if those minor uses are necessary for the management of land administered by the Department.
(3) This order does not restrict or prevent the grant of resource consents for the purpose of -
(4 research into, and enhancement of, fisheries and wildlife habitats; or (b) hydrological or water quality investigations; or (c) the construction, removal, maintenance or protection of any road, ford or bridge, or the maintenance and protection of any network utility operation (as defined in section 166 of the Act); or (d) the construction and maintenance of soil conservation and river protection works undertaken pursuant to the Soil Conservation and Rivers Control Act 1941.
(4) This order does not prevent the management of flow abstractions above the minimum flow in a stepped manner according to published operating schedules.
(5) This order does not prevent the granting of further resource consents for the Rangitata Diversion Race on similar terms and conditions to those imposed on the resource consents held on the date this order comes into force. 103
13 EXEMPTIONS
(1) Nothing in this order prevents the grant of a resource consent that would otherwise contravene the conditions set out in Clauses 8 to 11 if -
(4 a consent authority is satisfied that - (i) there are exceptional circumstances justifying the grant of the permit; or (ii) the permit is for a discharge that is of a temporary nature; or (iii) the permit is for a discharge that is associated with necessary construction and maintenance work relating to works and structures not otherwise prohibited by this Order; and
(b) the exercise of any such resource consent would not compromise the preservation and protection of the outstanding characteristics and features identified for the waters specified in the Schedules. 104
Schedule 1 Waters to be retained in natural state
All map references are to Infomap 260 series
Outstanding characteristics or features Amenity and intrinsic values Indigenous plant communities Wild and scenic and other natural characteristics I Significance for Ngai Tahu 2 Havelock River and all tributaries Amenity and intrinsic values Indigenous plant communities Wild and scenic and other natural characteristics Significance for Ngai Tahu 105
Schedule 2 Protected waters
All map references are to Infomap 260 series
Item Waters Outstanding Characteristic or Features Conditions to apply 1 Rangitata River main stem from confluence with Clyde and Waters in a natural state Clauses 6, Havelock Rivers to the top of the gorge (at or about Amenity and intrinsic values 8(l), 8(3), J36:636-174) “upper Rangitata” Habitat for aquatic birds 9(l), W)a, Aquatic macro-invertebrates 10, and 11. Salmon spawning and salmon passage Salmon fishing Wild, scenic and other natural characteristics Indigenous plant communities Spiritual, cultural and historical values Rafting, canoeing and jet-boating Significance for Ngai Tahu 2 Rang&ta River main stem from the top of the gorge (at or Waters in a natural state Clauses 6, about 536~636-174) to the water level recorder at Klondyke Amenity and intrinsic values g(l), g(3), (at or about J36:666-149) “the gorge” Wild, scenic and other natural characteristics 9(l), W)a, Indigenous plant communities 10, and 11 Rafting, canoeing Significance for Ngai Tahu Contributes to salmon spawning and salmon passage 106
Schedule 2 Protected waters (continued) kern Waters Outstanding Characteristic or Features Conditions to apply j Unnamed tributaries of the Rangitata River and other water Salmon spawning Clauses 6, i bodies adjacent to the Rangitata River joining the Rang&ta 8(l), 8(3), River at or about 9(1X W-h, J36 390316 and known as Brabazon Fan; 10, and 11. J36 348379 and known as Black Mountain Stream; J36 414330 and known as Deep Creek (Mt Potts); 336 460242 and known as Deep Stream (Mesopotamia) t Rangitata River from map reference (at or about J36:666- Salmon fishing Clauses 6, 149) to SH 72 bridge at Arundel Salmon passage 8(l), 8(3X Water-based recreation 9(l), W)(d),(e),(i), Significance for Ngai Tahu 9(3), 9(4), 10, and 11. 5 Rang&ta River from SH 72 bridge at Anmdel to coast Aquatic bird habitat Clauses 6, Salmon passage 8(l), 8(3X Salmon fishing 9(1X %2XdMeMfl, Spiritual and cultural values 9(3), 9(4), Significance for Ngai Tahu lOand 11. 5 Unnamed tributary known as Ealing Springs Stream joining Salmon spawning Clauses 6, Rangitata River at or about K37 824831 Significance for Ngai Tahu W: 8(3), 9(l), 9(2)a, 10 and 11. 1 Unnamed tributary known as McKinnons Creek joining Salmon spawning Clauses 6, Rangitata River at or about K38 893702 Significance for Ngai Tahu 8(l), 8(3)> 9(l), W)(d)k+ 9(3), 9(4), 9(5), 10 and 11 107
Schedule 3 Waters to be protected for their contribution to the above mentioned outstanding features
All map references are to Infomap 260 series
Item Waters To maintain Conditions to apply 1 All tributaries of the Ran&&a River from the Adequate water of sufficient quality for the outstanding Clauses 7, Clyde/Havelock confluence to the water level aquatic bird habitat; braided river characteristics, salmon 8(2), 8(3), recorder at Klondyke (at or about J36:666-149) spawning &juvenile habitat, rafting and canoeing, W)(bLtWe), 9(3), except those otherwise refewzd to in Schedules aquatic macro-invertebrates, indigenous riverbed plants._ and 11 1,2or3. and significance for Ngai Tahu 2 All tributaries of the Rangitata River from the Adequate water of sufficient aualitv for the outstandinn Clauses 7, water level recorder at Klondyke (at or about aqua&c bird habitat; braided I&W characteristics, salmon 8(2)> 8(3), J36:666-149) to the sea except those otherwise fishery, rafting and canoeing, aquatic macro- Q)t4(U4, referred to & Schedules 1,2 br 3. invertebrates, and significance for Ngai Tahu 9(3), 9(4), and 11 3 Shallow moundwater within 15 m below the Adequate water in the Rangitata River and tributaries for Clauses 7, ground aid less than 1000 m either side of the outstanding aquatic bird habitat; braided river 9@)Mt4,t4, W), (a) the main river downstream from Klondyke characteristics, salmon fishery, rafting and canoeing, 9(‘%9(5), ami 9(6) (at or about 536:666-149) aquatic macro-invertebrates, and significance for Ngai (b) the unnamed tributary known as Tahu - McKinnons Creek joining Rang&ta River at or about K38 893702 (c) the unnamed tributary known as Ealing Springs Stream ioininf: Ran&& River at or about-K37 824i31 - - 108
5.3 HYDROGRAPH FOR THE 1998/9 YEAR 5.4 MAPS : Figure 1 - Rangitata River Catchment Figure 2 -The lower Rangitata River
DATED at CHRISTCHURCH 5 August 2004 For the Court:
Environment Judge
C E Manning Environment Commissioner
RGrigg d Deputy Environment Commissioner
Issued? -__ - - 5-4
__-- -- - Figure 2 Lower Rangitata River N (Locations are approximate only) ++- Report by a Special Tribunal Appointed by the Minister for the Environment to Consider an Application for a Water Conservation Order for the Oreti River
November 2007
Published in November 2007.
This document is available on the Ministry for the Environment’s website: www.mfe.govt.nz
Contents
Summary of the Special Tribunal’s Findings v
1 Introduction 1
2 Background to the Application 4 2.1 The Application 4 2.2 Notification 4 2.3 Description of the Catchment and its Management 5 2.3.1 The Setting 5 2.3.2 Catchment Hydrology 6 2.3.3 Water Quality and the Invertebrate Fauna 7 2.3.4 The Regional Planning Context 8 2.3.5 Use of the Catchment 8 2.3.6 Management of the Brown Trout Fishery 9
3 Summary of Evidence 10 3.1 The Case for the Applicant 10 3.2 Submitters in Support of the Application 18 3.3 Neutral Submitters 20 3.4 Submitters Opposing the Application 21 3.5 Other Submitters 25
4 Part 9 of the RMA 27 4.1 The Relevant Case Law 27 4.2 Decision-Making Framework 31
5 Does the Oreti River have Outstanding Values? 33 5.1 Wild and Scenic Values 33 5.2 Native Fisheries 34 5.3 The Brown Trout Fishery 35 5.3.1 The Comparative Value of the Brown Trout Fishery 35 5.3.2 The Value of the Fishery to Anglers 36 5.3.3 The Extent to Which the Fishery is Affected by Didymo 39 5.3.4 Conclusions re the Brown Trout Fishery 42 5.4 Wildlife Values 42 5.5 Values in Accordance with Tikanga Māori 44
6 Part 2 of the Act 46
7 Section 207 of the Act 48 7.1 The Application and Submissions 48 7.2 The Needs of Primary and Secondary Industry and the Community 48 7.3 Statutory Planning Matters 50
Special tribunal report on a water conservation order application for the Oreti River iii
8 Protection of Outstanding Features and Characteristics 53 8.1 Protection of Minimum Flow 54 8.2 A Prohibition on Damming and Maintenance of Fish Passage 55 8.3 Maintenance of Water Quality 56 8.4 Scope of the Order and Exemptions 58
Water Conservation (Oreti River) Order 2007 59 1 Title 59 2 Interpretation 59 3 Outstanding Characteristics 59 4 Waters to be Protected 60 5 Waters to be Protected as Contributing to Outstanding Features 60 6 Restriction of Damming of Waters 60 7 Requirement to Maintain Fish Passage 60 8 Restriction on the Alteration of Water Quality 60 9 Scope of Order 60 10 Exemptions 61 Schedule 1 – Protected waters with outstanding characteristics 62 Schedule 2 – waters to be protected for their contribution to the above mentioned outstanding features: 62
Annex A: List of submitters 63
iv Special tribunal report on a water conservation order application for the Oreti River
Summary of the Special Tribunal’s Findings
1. In May 2005 the New Zealand Fish and Game Council and Southland Fish and Game Council (the applicants) applied to the Minister for the Environment for a water conservation order for the Oreti River under Section 216(2) of the Resource Management Act 1991 (the Act).
2. The Oreti River rises in mountainous country to the south of Lake Wakatipu, and flows some 200 kilometres to enter an estuary just to the west of Invercargill. The middle and lower reaches of the river are lined with stopbanks. Here the river is used for many purposes, including dilution of discharges, gravel extraction, irrigation from both surface water and hydraulically linked groundwater, and domestic water supply to Invercargill.
3. The headwaters of the river upstream of Rocky Point (near Mossburn) are very little used, with no authorised discharges. The river flows through a broad U-shaped valley formed by a glacier. Headwater reaches have exceptionally clear water, and low flows are buffered by water entering the river from many small spring seepages.
4. The application sought protection of flows and water quality in the main stem of the river and its tributaries from Rocky Point upstream. The application also sought a prohibition of damming of the full flow of the river downstream of Mossburn, and a full prohibition of damming the main stem upstream of Mossburn.
5. A Special Tribunal comprising Dr Brent Cowie (chair), Dr Paul Blaschke and Dr Gail Tipa was appointed by the Minister to hear the application.
6. The application was publicly notified in accordance with Section 204 of the Act on 30 September 2006. Seventy-seven submissions were received, of which 63 supported the application, 13 opposed it and one was neutral.
7. The Special Tribunal inspected the catchment by helicopter and by car in January 2007.
8. The Tribunal heard the application in Invercargill over six days, being 26 and 29-31 January 2007, and 19-20 April 2007. The second stage of the hearing was delayed, with the approval of the applicant and submitters appearing, until decisions on the Southland Proposed Regional Freshwater Plan (“Water Plan”) as amended by variations were available. This enabled the remainder of the application process and the Tribunal’s findings to be made in the context of the best possible information and most up-to-date policy context.
9. The applicant’s right of reply was heard on 18 June 2007.
10. The legal framework for considering applications for water conservation orders is in Part 9 of the Resource Management Act. The purpose of a water conservation order, set out in Section 199, is to “recognise or sustain outstanding amenity or intrinsic characteristics” of waters.
Special tribunal report on a water conservation order application for the Oreti River v
11. The Tribunal relied in large part on the Environment Court decision on an application for an order on the Rangitata River in Canterbury for its decision- making framework.
12. To qualify for protection by a water conservation order, a water body must have or contribute to outstanding characteristics. The Environment Court has determined that “to qualify as outstanding, a characteristic would need to be quite out of the ordinary on a national basis”.
13. After careful consideration the Tribunal has determined that at least parts of the Oreti River provide for or contribute to four outstanding characteristics: (a) The river supports an outstanding brown trout fishery, particularly in its upper reaches above Rocky Point. The fishery is outstanding because of the size of brown trout in the upper river: the largest of any South Island headwater fishery; and because the number of large trout present is also comparatively very high. (b) The headwaters of the river upstream of Rocky Point provide outstanding angling amenity. Characteristics that contribute to this amenity include the presence of many large brown trout, peace and solitude and the very clear water which allows anglers to “spot” and fish to particular trout. Although the Oreti is the third most heavily fished trout river in the country, there was insufficient evidence that the entire river supports outstanding angling amenity. (c) At least some parts of the river provide outstanding habitat for endemic black-billed gulls (Larus bulleri) which is regarded as a threatened species in serious decline in New Zealand. About 70–80% of the national population of 80,000 to 100,000 black-billed gulls breed in Southland, where the Oreti River, along with Aparima River to the west, carry the greatest numbers of breeding birds. Most gull colonies are found in the middle reaches of the Oreti. (d) The river, at least in the reach upstream of Rocky Point, is of outstanding significance in accordance with tikanga Māori. The presence of taonga species (both fish and wildlife), the relatively unmodified upper catchment, evidence of past occupation in the form of archaeological sites and remains, the continuity of flow in the waterway from its source to coast, and high water quality are factors that help determine that the mauri of the Oreti River is robust and vibrant.
14. The Tribunal considered that the presence of the invasive diatom Didymosphenia geminata (“didymo”) may at times detract from the outstanding angling amenity of the upper river. This would, however, only be for short periods as the cobble bed of the river is very mobile during freshes or floods. As a result of this, didymo appears unable to establish itself in the Oreti River to the extent that it has in more embedded rivers such as the Mararoa and lower Waitaki. Indeed the comparative value of the Oreti may increase, given the likely more adverse effects of didymo on angling amenity in some other valued South Island river fisheries.
vi Special tribunal report on a water conservation order application for the Oreti River
15. The applicants presented evidence about other values which they considered to be outstanding, including wild and scenic values and native fisheries. While these values are significant and may contribute to the values which the Tribunal considered were outstanding, the evidence did not establish that in the Oreti River they were outstanding in a national context.
16. The Tribunal next considered matters listed in Part 2 – the Purpose and Principles of the Act. The Environment Court has determined that those sections and sub-sections of Part 2 that are contrary to the Purpose of Water Conservation Orders are not to be considered. The application was consistent with many elements of Part 2, particularly those listed in Section 6, Matters of National Importance.
17. Section 207 of the Act lists three matters that decision makers must have regard to, while at the same time having particular regard to the purpose of a water conservation order. This distinction is important because it raises the purpose above the matters listed in Section 207.
18. The first of these Section 207 matters are the application and all submissions. The Tribunal read all individual submissions. They heard legal submissions and 16 witnesses for the applicant, five parties who supported the application, one party who was neutral and six parties who opposed the application at the hearing. This process covered all aspects of the application and submissions, and the Tribunal took these fully into account in decision making.
19. After discussions with the regional council (Environment Southland), the applicants amended the application at the resumption of the hearing in April. The amended application was on more general and less restrictive terms than were sought in the original application or at the January hearing. The Tribunal was told that the applicant was now satisfied that decisions released on variations to the Water Plan in March 2007 covered matters such as flows and taking of groundwater hydraulically linked to the Oreti River, and that these no longer need be included in the order sought.
20. Environment Southland still submitted in opposition to the making of an order, but did not call technical evidence, and further submitted that if an order were to be made it should be along the lines of the amended application. The order drafted by the Tribunal is indeed along these lines.
21. The next Section 207 matter is the “needs of primary and secondary industry and the community”. The Tribunal agreed with counsel for the applicant that these should be “needs, and not merely hopes or aspirations for the future.” The needs considered included community water supplies, gravel extraction, river protection and erosion control, the maintenance of infrastructure such as bridges, and potential use of the water resource for irrigation and/or power development.
22. The order drafted by the Tribunal has very little or no effect on these needs apart from potential hydro-electric development of the river. Given, however, the wide U-shaped valley through which the Oreti River flows the potential opportunity for power development is low. Certainly no such possible development was foreshadowed by any party.
Special tribunal report on a water conservation order application for the Oreti River vii
23. The Tribunal concluded that there are no needs of primary or secondary industry that weigh against making a water conservation order for the Oreti River.
24. The third Section 207 matter is the relevant planning instruments, and particularly the Water Plan prepared by Environment Southland. This Plan already offers a substantial level of protection to water quality and flows in the Oreti River.
25. Several submitters expressed strong frustration that having been through a very extensive consultation process around the Water Plan, a water conservation order could override the Plan in what they saw as an arbitrary way and with little consultation. Many submitters contrasted the strong and robust consultation process engaged in by the regional council in preparing the Water Plan and its variations, with the very limited consultation undertaken by applicants about the water conservation order application. Concerns were also raised about the relative inflexibility of water conservation orders.
26. The Tribunal had considerable sympathy for these views. Certainly the Water Plan is a robust document with a high level of community buy-in. But the law requires the Tribunal to have particular regard to the purpose of water conservation orders, and only regard to the provisions of the Plan. This means that as, in the Tribunal’s view, the Oreti River has or contributes to outstanding characteristics, and the Plan does not offer sufficiently strong protection for those outstanding characteristics, a water conservation order has to be made.
27. As the final step in the process the Tribunal had to determine what waters be covered by the draft order, what provisions the draft order should include to protect outstanding characteristics or features, and what exemptions should be allowed for.
28. The first determination was that the Oreti River and its tributaries upstream of Rocky Point near Mossburn deserved the greatest level of protection. This area, which includes the Windley River and Weydon Burn, is where the outstanding brown trout habitat and angling amenity is. The measures deemed necessary to protect the outstanding features comprise a prohibition on damming, a requirement to maintain fish passage, and a requirement that no discharge affect water quality after reasonable mixing.
29. In the remainder of the river, the only restriction imposed by the order is a requirement to maintain fish passage. This is because of evidence presented that the population of very large brown trout in the headwaters of the Oreti relies on migration from downstream reaches of the river.
30. The order as drafted will help protect the outstanding contribution the Oreti River makes to tikanga Māori. It will do little, however, to protect the outstanding habitat of black-billed gulls provided by the river. This is because the order can do little to protect those gulls against threats such as predation, flooding or disturbance. The order does, however, complement the Water
viii Special tribunal report on a water conservation order application for the Oreti River
Plan which will help protect those gull colonies by providing for flows in the river.
31. Importantly the draft order has a number of exemptions that allow particular activities to occur as of right on any part of the river. These include maintenance of roads, bridges and other network utilities, works undertaken for river control and soil conservation purposes, protection or enhancement of fisheries and wildlife habitats, and the protection of human or animal health.
32. The Tribunal considers that the order as drafted will make little difference to the competent day-to-day management of the water resources of the Oreti River exercised by Environment Southland. The order drafted will, however, alongside the flow-related provisions of the Water Plan, help protect the outstanding characteristics of the river. And that is what the purpose of water conservation orders is.
Special tribunal report on a water conservation order application for the Oreti River ix
1 Introduction
1. This report outlines the recommendations of a Special Tribunal appointed by the Minister for the Environment (“the Minister”) under section 202 of the Resource Management Act 1991 (“the RMA”, “the Act”) to hear an application for a Water Conservation Order for the Oreti River in Southland. The application was made by the Southland and New Zealand Fish and Game Councils (“Fish and Game”, “the applicant”).
2. The Special Tribunal comprised Dr Brent Cowie (chair), Dr Paul Blaschke and Dr Gail Tipa. Between us we have expertise in resource management, freshwater ecology, conservation biology, social science, planning and tikanga Māori. One of us used to be a trout fisherman, albeit one who only ever had moderate success and who gave up long ago. Another of us is a passive member of Forest and Bird, and the third is a member of Ngäi Tahu. We did not see this as causing any conflict of interest in any case.
3. We were very ably assisted by Mr Steve Merito in the Christchurch Office of the Ministry for the Environment (“the Ministry”), and Ms Christina Wells from the Ministry in Wellington. We record our thanks to them. We were also able to access legal advice from Philip Milne from Simpson Grierson, whom we thank for his help. In particular, the legal advice he provided us in May 2007 provided strong guidance for our recommendations, and he undertook a legal audit of our draft report and the associated draft order.
4. The Special Tribunal inspected the upper Oreti catchment from Mossburn upstream by helicopter on 25 January 2007. We also inspected the lower part of the catchment by car on the same day, and Dr Blaschke returned to the upper catchment by car a few days later. We consider that these inspections, along with the knowledge that was imparted to us by witnesses during the hearing, gave us a very good overview of the Oreti catchment, and particularly its headwaters.
5. We heard the application in Invercargill over six days, being 26 and 29-31 January 2007, and 19-20 April 2007. We heard legal submissions and 16 witnesses for the applicant, five parties who supported the application, one neutral party and six parties who opposed the application. We then adjourned the hearing at about 1430h on 20 April to allow for the applicant’s right of reply.
6. We heard the application and submissions in two stages, because we wanted the submitters who opposed the application to have ample time to consider the applicant’s evidence before preparing their own evidence. In the first stage in January we heard all evidence from the applicant (except for one witness who was unavailable), and we also heard from submitters in favour of the application. In the second stage in April we heard from the remaining witness for the applicant, and all other submitters, as well as some supplementary evidence requested by us from the applicant.
Special tribunal report on a water conservation order application for the Oreti River 1
7. Unlike an application for a resource consent (which must be accompanied by an Assessment of Environmental Effects on a scale appropriate to the effects of the consents sought), an application for a Water Conservation Order is only a “triggering mechanism”: it does not have to be comprehensive. The application made by Fish and Game provided a resource description along with an outline of the protection sought by an Order. We thought about requiring either further information under s92, or requiring pre-circulation of the applicant’s evidence under s41C of the RMA. Instead, we decided on the two-stage process to give the submitters who opposed the application, time to consider and appraise the applicant’s evidence in full.
8. There was one somewhat unusual feature of this hearing process. We had originally scheduled the second stage of the hearing for 21-23 March. At the January hearing, however, we received a request from Southland Regional Council (“Environment Southland”) to delay the second stage of the hearing until after such time as decisions on submissions and further submissions to the three relevant sections of their Proposed Regional Freshwater Plan (“the Water Plan”), as amended by variations, were available, which we were told would be late March. These three variations dealt with groundwater, water quality and water quantity respectively, and referring to those decisions would help Environment Southland prepare its case for our hearing their submissions on the application. It would also help us make our findings in the context of the best possible information and most up–to-date policy context.
9. We asked that this request from Environment Southland be put in writing, and this was duly received on 30 January. Counsel for the applicant, Ms Baker, did not object to delaying the second part of the hearing to allow the decisions on the variations to the proposed Water Plan to be released. Environment Southland was confident those decisions would be released prior to Easter, and so we tentatively agreed to defer the second stage of the hearing to 18–20 April.
10. Before finalising this we wanted to be certain, however, that no party opposing the application would be disadvantaged by this change, so we asked Mr Merito to contact them individually. There were no objections to this change of timetable, so the second stage of the hearing took place in April.
11. The decisions on the variations to the three chapters of the Water Plan were duly released on 31 March. There then followed on Friday 13 April a meeting between the applicant and the regional council. That meeting resulted in the applicant putting forward an amended application to us at the recommencement of the hearing on Thursday 19 April. Environment Southland, while continuing to oppose the granting of the application, told us that if we were to find that the application should be granted, it should be on the terms that they had agreed with Fish and Game at the 13 April meeting.
12. We detail the changes made to the application later in this decision. It will suffice to say here that due to decisions on submissions on the three variations to the Water Plan, the applicant in April sought an order on considerably more general and less restrictive terms than was the case in January. In broad terms this was because Fish and Game were apparently satisfied that the provisions of the amended plan provided sufficient protection for some matters, notably related to flows and the associated
2 Special tribunal report on a water conservation order application for the Oreti River
taking of groundwater hydraulically linked to the Oreti River, and that accordingly these provisions were no longer needed in a water conservation order.
13. We had some concerns about this process for two reasons. First, submitters who appeared in support of the application in January had not had the opportunity to comment on the applicant’s amended application. Second, parties opposing the application, who were due to be heard on 19 or 20 April were not privy to this “agreement”. Accordingly, we asked Mr Merito to contact these parties, which he did by e-mail on 17 April.
14. Several submitters who opposed the application expressed some frustration at the short notice given of this “agreement”. While we well understand that, we note that the “agreement” was for an application on much less restrictive grounds than was originally sought by Fish and Game. Submitters who opposed the application therefore had to address less substantive issues than had been the case before.
15. We heard the applicant’s final right of reply at Mosgiel on Monday 18 June 2007. This was after the time that appeals to the decisions on relevant variations to the Water Plan had closed. We circulated that right of reply to all submitters who had attended the hearing, but no further comment was received.
16. The right of reply was attended by Ms Baker and Mr Rodway on behalf of the applicant, and Ms Millar on behalf of Environment Southland. Mr Slowley, Counsel for Environment Southland, was not able to attend as he was indisposed.
17. We did have one concern about the right of reply in that Ms Baker invited us, albeit somewhat indirectly, to impose a minimum flow regime for the river. Our concern was because in the amended order presented to us at the April hearing, Counsel for Fish and Game presented an amended application that did not include any provision for a minimum flow. Submitters presented evidence to us on this basis. We comment in more detail on this matter later in this report, but suffice to say here that we have not imposed any minimum flow regime on the river.
Special tribunal report on a water conservation order application for the Oreti River 3
2 Background to the Application
2.1 The Application
18. In May 2005 the New Zealand Fish and Game Council and Southland Fish and Game Council applied to the Minister for a water conservation order for the Oreti River under Section 216(2) of the Act.
19. The application was supported by further information that described the catchment and its values, and outlined the detail of the order sought. In essence Fish and Game sought protection of flows and water quality in the main stem of the river and its tributaries from Rocky Point, which is near Mossburn, upstream. We have called this the upper Oreti catchment. The protection sought would also restrict the taking of hydraulically connected shallow groundwater in the upper catchment. The applicant also sought a prohibition of damming of the full flow of the river downstream of Mossburn (which we have called the lower Oreti catchment), and a full prohibition of damming the mainstem upstream of Mossburn. No water quality or quantity provisions were sought in the lower catchment.
20. In August 2005 the Minister sought additional information to better define what was meant in the application by “hydraulically connected groundwater”. Solicitors for the applicant forwarded a definition from a policy in Proposed Variation 2 (Groundwater) to the Proposed Freshwater Plan. We need not detail that here as we return to this matter later .
21. We were appointed by the Minister by letter dated 6 September 2006.
2.2 Notification
22. The application was notified pursuant to s204 of the Act on 30 September 2006. This included notification in each of the major metropolitan dailies and the local media. Copies of the application could be viewed at offices of the Ministry, at the offices of local authorities in Invercargill, Gore or Queenstown, and at libraries at Te Anau, Lumsden and Winton.
23. The Ministry received 77 submissions by the time they closed on 15 November 2006. Of those submissions, 63 supported the application, 13 opposed it and one was neutral. There was one late submission which we accepted. A full list of submitters is provided in Annex A. One submitter (the Royal Forest and Bird Protection Society of New Zealand, Southland Branch) originally did not ask to be heard but later requested to be so. We granted this request.
4 Special tribunal report on a water conservation order application for the Oreti River
2.3 Description of the Catchment and its Management
2.3.1 The Setting
24. The Oreti River rises between the Thompson and Eyre mountains to the south of Lake Wakatipu. It is bounded to the north by the Von River, a tributary of Lake Wakatipu, to the east by the Mataura River catchment, and to the west by the Mararoa River catchment. In its headwaters the Oreti runs approximately southwest, before turning south near the junction of the Windley River and then running southeast or south across the undulating Southland Plains to enter the coast west of Invercargill. The gradient of the river is steepest upstream of Lumsden.
25. The Oreti River, which is approximately 200 km long, has the third-largest mean annual flow of rivers in Southland. In the upper catchment the river is predominantly single thread, but it becomes a little braided downstream of about Rocky Point, with flow generally in two or three channels. The river becomes single thread downstream of about Winton to the coast.
26. The headwaters of the Oreti River lie in highly dissected mountains up to about 2000 metres high. From here the upper river flows across a wide, U-shaped outwash plain valley formed by one of the tongues of the Wakatipu Glacier. The upper valley is characterised by tussock grasslands on the river flats, through which many small, spring-fed seepages run. The channel is dominated by quite long pools or runs up to about two metres deep separated by short riffles. The bed of the river is characterised by gravels and cobbles which would move freely during floods. Importantly, the river is not at all embedded.1 There are a few locations, such as at Lincoln Hill, where the river flows between rock buttresses, but the valley is generally very open and, we were assured, often windswept.
27. The largest tributary, the Windley River, rises in the Eyre Mountains and enters from the east or true left. The other main tributaries in the headwaters are the Ashton River, another high-country sourced river that enters from the east, and meandering Weydon Burn, which enters from the west near State Highway 94.
28. The headwaters of the river are generally in the tenure of the Department of Conservation (DOC), with the Eyre Mountains having been gazetted in 2005 as the Eyre Mountain Ecological Reserve. The river then enters public land in the tenure of Mount Nicholas Station, and the riverbed is used for extensive summer grazing of cattle in particular. Further downstream the upper catchment is largely in the tenure of Landcorp on the true right, and other
1 This is important in so far as the unstable bed limits the opportunity for extensive growths of Didymo. We discuss this matter at some length later.
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private landowners (including two submitters: Andrew Morris and Peter Lawson) on the true left downstream of the Windley River. In this reach much of the river is fenced off from stock, but stock access is certainly possible higher up on Mount Nicholas. Land use is generally extensive, with some production forestry stands also present.
29. As the river crosses the Southland Plains, land use changes to more intensive sheep, dairying and cropping.
30. Access to the upper catchment is via a well formed gravel road that leads from State Highway 94 along the west bank of the river to the upper reaches of the catchment on Mount Nicholas station. There are a number of points where anglers can park and walk fairly easily to the river. There are no high bluffs that impede access to or along the river, and during normal flows the river can readily be waded.
2.3.2 Catchment Hydrology
31. Hydrological information for the catchment was summarised by Ms Jan Riddell, appearing as a witness for the applicant. She had obtained the relevant records from the regional council.
32. There are three main hydrological recording stations on the river. These are at Three Kings in the upper catchment about 30 kilometres upstream of Mossburn, Lumsden (close to the middle of the catchment) and Wallacetown, near the mouth of the river. Their catchment areas are 271, 1,125 and 2,141 square kilometres respectively. The latter two sites have been operational for about 30 years and that at Three Kings for over 20 years.
33. Mean annual flows in cubic metres per second (m3/s) are 8.65, 29 and 41.3 m3/s at Three Kings, Lumsden and Wallacetown respectively. Seven- day mean annual low flows (MALF) at the three sites are 2.5, 5.7 and 8.3 m3/s respectively.
34. The Three Kings site shows a somewhat unusual hydrological feature in that the MALF is almost 30% of the mean flow. This reflects the extent to which low flows are buffered by shallow groundwater inflows in the upper catchment. According to Mr Rekker, a witness for the applicant, groundwater makes up about 60% of the base flow at Three Kings. As a result, flow variations, particularly at low flows, are less marked in the upper catchment than at sites further downriver.
35. Mean annual rainfall at Three Kings is 1,196 mm per year. Rainfall is reasonably consistent and reliable on both a monthly and annual basis, with annual rainfalls varying from about 800 mm to 1,500 mm. Spring is typically a little wetter than other periods, and winter a little drier. Rainfall is generally quite reliable. In the 20 years of record at least 0.5 mm of rain has fallen on average on 166 days per year. In most years of record there are between six and nine periods of more than eight days with rain of less than 1 mm. Periods of 20 or more days with less than 1 mm of rain have occurred once in May,
6 Special tribunal report on a water conservation order application for the Oreti River
June, September and December and twice in March and July in the 20 years of record.
36. Mean monthly flows at Three Kings vary from 6.25 m3/s in February to 12.87 m3/s in October. The lowest flow mean daily flow recorded of 1.39 m3/s occurred in March 1990, and the highest flow recorded was estimated to be 171 m3/s. The upper river is subject to reasonably frequent and reliable freshes and floods. The longest periods of sustained low flows occurred in February and March of 1990 (34 days), and 1999 (31 days).
37. Under sustained low-flow conditions water is apparently lost from the Oreti River downstream of Lumsden. Such losses are inferred to be to shallow groundwater.
2.3.3 Water Quality and the Invertebrate Fauna
38. In the upper catchment water quality is high, and water clarity can be exceptionally high. A study compiled by NIWA scientists of 190 observations in 96 rivers at base flow showed the upper Oreti to have water clarity in the top 20% of those rivers. Other parameters are also indicative of high water quality. For instance, recorded levels of dissolved oxygen are always high, whereas levels of nutrients and ammonia are always low. There has been no recorded decline in water quality in the upper river.
39. In Māori conceptualisations, water quality is vital to sustaining a healthy and vibrant mauri – the life principle.
40. In the headwater reaches of the river the invertebrate community is dominated by species such as mayflies, stoneflies and caddisflies, which are indicative of high water quality. These insects form a major part of trout diets. The invertebrate community remains indicative of high water quality as far downstream as Lumsden, but in the lower reaches of the river is indicative of possible mild pollution.
41. Environment Southland has collected water temperature data in the upper river continuously at Three Kings since 1998. The highest spot temperature recorded was 25 degrees centigrade, but the highest daily average temperature was only 17.5 degrees. The average water temperature seldom dropped below 4 degrees for more than several days in winter.
42. The invasive alga Didymosphenia geminata (“didymo”) is present in the river. This is the first application for a water conservation order heard at a time that didymo was present in a river. We discuss this in detail later in this report.
Special tribunal report on a water conservation order application for the Oreti River 7
2.3.4 The Regional Planning Context
43. Management of the water resources of the Oreti catchment are the responsibility of the Southland Regional Council, which has branded itself as “Environment Southland”. The regional council is responsible for managing all of the surface water and groundwater resources in the region, along with discharges to water and to land where they may enter water. At our request Ms Millar, the council’s Senior Resource Planner primarily responsible for water resource planning, gave us a very good outline of the council’s management regime in the catchment, which we summarise here.
44. The principal document that sets the framework for the management of the water resources of the Oreti River is the Proposed Regional Fresh Water Plan (“the Water Plan”). Other plans of some relevance, in so far as they place controls on discharges to land and water in the catchment, are the Regional Solid Waste Management Plan and the Regional Effluent Land Application Plan.
45. The Water Plan was originally notified in October 2000. Since that time, however, both the demand for water and the understanding of the water resources of the region have increased substantially. As a result of this the council has notified five variations to the plan between 2003 and 2006. It has now heard submissions, and made decisions on all these variations. The decisions relating respectively to groundwater, water quantity and water quality were released on 31 March 2007, and the remaining variations were released on 14 July 2007.
46. Appeals on the March decisions closed on 16 May 2007. One of the appeals was from Fish and Game and related specifically to the Oreti catchment. We discuss this later in this report. We also discuss later the provisions of the plan as they relate to the water conservation order application.
47. The water planning process, and the associated extensive consultation that had been undertaken by Environment Southland, was widely commended by many participants to the hearing, be they primarily interested in conservation or in development. We consider that this is a credit to the council and its staff.
2.3.5 Use of the Catchment
48. Ms Riddell said that according to regional council databases, consents exist for 94 land use consents, 266 discharge permits, 109 groundwater takes and 16 surface water takes in the catchment upstream of Wallacetown. Although permits have been granted to dam some small tributary streams, no current permit authorises damming of the main stem of the river at any point.
49. Only eight of those permits apply to the river upstream of Mossburn. Three are land use consents held by Environment Southland for river control purposes. Another consent held by the regional council is for aerial spraying
8 Special tribunal report on a water conservation order application for the Oreti River
of herbicides to control plant pests. The other consents are either for river control or bridge construction/maintenance purposes, and one consent authorises the taking of up to 100,000 cubic metres of gravel from the river.
50. There are no consented point source discharges to the upper catchment, nor are there any consents to dam or take water (including hydraulically connected groundwater) upstream of Rocky Point. The only present consent in the upper catchment upstream of the confluence of the Weydon Burn is held by Environment Southland who, in exercising their powers under the Soil Conservation and Rivers Control Act 1941, undertake occasional river control works to prevent the river from eroding towards farmland on the east downstream of the Ashton River confluence.
51. As indicated by the consents database, the river downstream of Mossburn has many more uses. It supplies water treated to a standard suitable for domestic supplies in Invercargill, and through (at least partly) hydraulically connected groundwater, to communities such as Mossburn and Lumsden. Gravel is taken from the middle reaches of the river, and there is some use of surface water and hydraulically connected groundwater for seasonal irrigation. Water quality declines downstream, primarily due to the effects of non-point source runoff from intensively farmed land.
2.3.6 Management of the Brown Trout Fishery
52. The brown trout fishery of the Oreti River is managed, in what we consider to be a very competent fashion, by Southland Fish and Game, whose region closely coincides with that of Environment Southland. Native fisheries are the responsibility of the Department of Conservation. The trout fishing season on the upper Oreti is from October to April inclusive.
53. Because of concerns about angling pressure in the upper river, Fish and Game introduced a mandatory “catch-and-release” policy in a reach of approximately 15 km downstream of the Mt Nicholas Bridge in the early 1990’s. This reach is also a “walk only” zone. The success of this policy may be reflected in average numbers of large trout per kilometre in the upper river increasing from 6-8 about 15 years ago to close to 30 per kilometre today.
54. Anyone with a fishing licence can presently fish this reach of the river. Two other nearby headwater fisheries, the Greenstone and the Caples in Fiordland National Park, have ballot systems operating, but there is no proposal at present to introduce a similar system on the upper Oreti.
Special tribunal report on a water conservation order application for the Oreti River 9
3 Summary of Evidence
55. In this section we briefly summarise the evidence presented to us at the two stages of the hearing. This summary is not intended to be exhaustive as we often refer back to this evidence in our evaluation of the application.
3.1 The Case for the Applicant
56. The applicant provided legal submissions and called 16 witnesses, all of whom bar Mr Stenning we heard in January 2007.
57. Ms Maree Baker is a resource management lawyer with Anderson Lloyd Lawyers. She presented legal submissions on behalf of the applicant, and outlined what matters would be covered by witnesses for the applicant. She also presented a draft order for our consideration.2 We need not detail her legal submissions here as we cover these matters comprehensively elsewhere in this report.
58. The applicant’s case was comprehensive. We heard from scientists and technical specialists who provided evidence about the fishery, its comparative values, its management, and what characteristics of the Oreti River make it an outstanding fishery. Evidence was led on hydrology, native fisheries and wildlife values. We also heard from a number of expert anglers (both professional and amateur) who described, often very enthusiastically, why they felt the Oreti was special. In this summary we deal first with the scientific and technical evidence, and then the evidence of the expert anglers.
59. Mr Maurice Rodway is the Southland Manager of Fish and Game New Zealand and had been instrumental in preparing the application. He has a Masters degree and has been an angler for 40 years.
60. Mr Rodway detailed why he considered the upper river is an outstanding brown trout fishery and habitat for trout, and associated outstanding angling amenity. We need not detail that here – suffice to say this assertion was based primarily on both the size and abundance of trout and the challenge of fishing for them. He also provided comparative information on other trout fisheries in Southland.
61. The consultation process undertaken by the applicant was outlined. Mr Rodway had held meetings with the Lumsden Community Board, who he considered were relatively relaxed about the proposed water conservation order, and local farmers, who were generally opposed to the application. The Department of Conservation had supported the application and, by way of a
2 Noting that the application was much amended by the applicant at the second stage of the hearing.
10 Special tribunal report on a water conservation order application for the Oreti River
letter appended to the application, stated that they would continue to be involved in the process through the submission process. Unfortunately the Department chose not to follow up this undertaking.
62. Dr John Hayes is a very experienced fisheries biologist employed by the Cawthron Institute in Nelson. He considers himself an “avid trout and salmon angler”.
63. Dr Hayes listed four factors that he considered contributed to the renowned trout fishery and large-size trout found in the upper Oreti. These were: a favourable year-round water temperature regime (relatively cool summers and warm winters); good water quality with very high clarity; an inferred good food supply (inferred because of the size to which trout grow); and a high proportion of the adult trout habitat being present at the mean annual low flow. He noted that available trout habitat does, however, decline quite steeply at flows below the mean annual low flow.
64. The brown trout found in the upper Oreti are, on average, exceptionally large by New Zealand standards. Dr Hayes considered that, based on considerations of water temperatures and trout energetics, fish would be unlikely to reach this size if they stayed permanently in the upper river. Accordingly he inferred that most fish would spend at least some time feeding in the lower river to attain these sizes. He considered that continuous passage along the river is very important to maintain the headwater fishery.
65. Once trout grow to a large size, however, it is advantageous for them to live in cool waters. This is because their efficiency at assimilating food increases with cooler water temperatures. Dr Hayes considered that the many shallow groundwater inflows to the upper Oreti buffer temperature variations, and so are very important to maintaining cool temperatures in the river.
66. Trout are visual feeders, and the exceptionally high water clarity in the upper river at base flow conditions will assist feeding. Other water quality parameters, such as high dissolved oxygen levels, also contribute to highly valued trout habitat.
67. Dr Don Jellyman, another very experienced fisheries biologist, works for the National Institute of Water and Atmosphere (NIWA). He gave evidence about the trout fishery of the river, the significance of trout movements and the relative significance of native fish. We discuss native fish when evaluating what characteristics of the river are outstanding.
68. Dr Jellyman described a comprehensive study of the brown trout fishery in the headwaters of the Oreti River carried out in 1989–1992. This work was commissioned by the New Zealand Fish and Game Council. Some comparative information was collected from 10 recognised South Island headwater fisheries, but the emphasis of the study was on the upper Oreti. Reasons for this emphasis included the river’s reputation as a trophy brown trout fishery, good access, and that the size of the river and its high clarity made it suitable for activities such as drift diving. Fish were caught by hand where possible and tagged.
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69. The number of large fish ranged between 6 and 8 per kilometre. In terms of biomass, the Oreti then ranked behind very productive rivers such as the Karamea or Mohikinui, but was comparable to rivers in the Inangahua catchment. Dr Jellyman noted that since that time large trout numbers in the upper Oreti have increased to about 30 per kilometre (which he attributed to the “catch-and-release policy” now in place). In terms of trout biomass this would place the Oreti at the top of the headwater rivers studied in 1989–92, and 17th out of 158 rivers studied nationally at much the same time. Of the rivers with higher trout biomass than now present in the river, eight were lake or spring-fed, which fosters high trout biomass because of stable flows. The trout biomasses now recorded in the upper Oreti would be in the top 10% of non-spring or lake-fed rivers nationally (assuming biomasses in other rivers surveyed have not changed greatly in the last 15 years or so).
70. The size of the trout present in the upper Oreti was quite exceptional. Over two thirds of fish seen were large, a proportion exceeded for the headwater fisheries studied only by the Mohikinui. In the comparative study of the 10 headwater catchments, the mean size of fish in the upper Oreti was, at 2.74 kg, over 10% greater than the next two rivers (Karamea, 2.36 kg; Wairau, 2.31 kg). The upper Oreti also had the largest mean size of trout in the 154 headwater rivers for which reasonable size data are available. The headwater fishery is dominated by male fish, which make up over 75% of the fish recorded.
71. Trout in the middle and lower reaches of the river are on average considerably smaller than in the headwaters. Tagging studies showed that large fish caught in the headwaters were more likely to remain there, while smaller fish in the middle and lower reaches of the river are more mobile. There was some evidence that the headwater fishery was maintained by recruitment from lower down the river, but this was not conclusive. Dr Jellyman did note, however, that in other rivers female trout have been shown to migrate downstream after spawning to recover condition by feeding on species characteristic of estuaries and lower river reaches. This would help explain the predominance of males in the headwater fishery, which is a common feature of headwater fisheries.
72. Ms Jan Riddell has an honours degree in hydrology and many years’ experience in professional and political roles in the Southland region. She provided detailed information on the hydrology of the Oreti catchment, and the uses to which the river is put. We have already summarised what she said in our description of the catchment.
73. Mr Jens Rekker is a consultant hydrogeologist. His evidence covered the contribution of riparian groundwater to the maintenance of flows in the Oreti River, and, associated with this, the need to protect those riparian aquifers from abstractions that could deplete surface flows.
74. Modelling studies indicated that on average at base flows, riparian groundwater contributes about 60% of the flow recorded in the upper Oreti at Three Kings. Mr Rekker provided calculations that indicated that during a sustained dry period in summer 2001, groundwater contributions may have made up 95% of the river’s flow.
12 Special tribunal report on a water conservation order application for the Oreti River
75. Abstraction of shallow groundwater that is hydraulically strongly connected to the river will deplete surface flows. Mr Rekker considered that any water conservation order should make provision to protect shallow groundwater.3
76. Ms Carmen Taylor is a qualified planner with a good deal of experience associated with water management in the Southland region. She discussed how the provisions of the water conservation order originally sought by the applicant tie in with relevant statutory policies and plans in the region. We need not detail her evidence here as we address these matters later in this report.
77. Mr Martin Unwin is a fisheries scientist with 30 years’ experience who is employed by NIWA. His evidence focused on angler surveys of the relative value of the Oreti River.4
78. The first such survey was the National Angling Survey of 1979–81. This was comprehensive, involving 4,692 replies providing 20,800 assessments of 817 river fisheries. The responses focused on qualitative attributes such as ease of access and size of fish.
79. The assessment for the Oreti was based on the whole length of the river, and it was identified as a possible candidate for national importance status. Other nearby headwater fisheries, such as the Greenstone, Caples, Mararoa and Eglinton were also identified as possibly being of national importance.
80. Further national angling surveys were carried out on behalf of Fish and Game New Zealand in 1994/96 and 2001/02. These were based on information collected from a percentage of licence holders, but this method generally fails to capture anglers who are not New Zealand residents. The first of these surveys treated the Oreti as one river, but the second survey divided it into reaches above and below Lumsden.
81. Trout and salmon angling shows regional trends. Based on fishing licence sales it is three times more popular in the South Island than the North Island. Participation rates are highest in the lower South Island, and in Southland one in six adult males held a season fishing licence in 2001/02. This is nearly four times the national average. Almost as many licenses were sold in Invercargill and Gore combined than in the greater Auckland area.
82. Mr Unwin then described the relative importance of the Oreti River fishery in a regional and national context. We discuss this elsewhere.
3 Such provision was sought in the original application and expanded upon in Ms Baker’s opening submissions. At the April hearing, however, the applicant provided an amended application that relied upon the provisions of the Proposed Regional Fresh Water Plan to protect hydraulically connected groundwater.
4 We should point out here that fishing licenses are necessary to fish for acclimatised trout and salmon in fresh waters in NZ, but are not necessary for fishing coastal waters. Apart from the Taupo Conservancy, which is administered by the Department of Conservation, all other parts of the country are administered by local Fish and Game councils.
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83. Ms Rachel McLellan is a graduate student at the University of Otago with several years’ previous experience in conservation management, who is investigating black-billed gull populations on the Oreti River for her doctoral studies. Ms McLellan described the distribution, breeding ecology, threats and conservation status of black-billed gulls.
84. The black-billed gull is an endemic New Zealand species and is regarded as the most threatened gull species in the world. In New Zealand it has the classification of being “in serious decline”. Breeding colonies have been observed on the Oreti River over the last 30 years between about 15 km inland from the sea and Coal Hill near the confluence of the Windley River. Ms McLellan stated that the Oreti may support as much as a quarter of the world population of black-billed gulls and some of the largest breeding colonies in the country. These colonies can establish almost anywhere along the length of the river. She considered that the Oreti provided outstanding breeding habitat for this species. We return to this matter later in our discussion of whether the Oreti has or contributes to outstanding features or characteristics.
85. In answer to questions, Ms McLellan gave anecdotal information about other bird species inhabiting the Oreti River, including pied stilt, Canada geese, black-fronted terns and oystercatchers, and noted the vulnerability of several of these species such as black-billed gulls, to threats such as predation.
86. Mr William Jarvie has worked in fish and game management for nearly 30 years, the last 17 of them for Southland Fish and Game. His evidence discussed the comparative “success” of didymo in colonising the Oreti and Mararoa Rivers. We discuss this evidence elsewhere.
87. Mr Ricky Olley and Dr Tobias Bickel are freshwater ecologists who have qualified from the University of Otago. They co-authored a report titled “Using otolith micro-chemistry to track migration of trout in the Oreti River”.5
88. The two main conclusions they drew from this study were:
• Adult fish from the upper river had not spent time in the river estuary. However, the origins of all fish sampled from the estuary could be traced back upriver, many to headwater reaches. Once fish entered the estuary, they appeared to stay there.
• Long-distance migration along the river system is common among brown trout from the Oreti. Some headwater fish had for instance spent part of their life in the Makarewa River, which is a tributary of the lower Oreti.6
5 Otoliths are found in the inner ears of fish. They show growth rings, somewhat comparable to those found in trees, from which information about fish growth and migration patterns can be determined.
6 This appears to be a common life history strategy among brown trout in NZ rivers, as similar migration patterns have been recorded from the Tairei, Clutha and Motueka rivers.
14 Special tribunal report on a water conservation order application for the Oreti River
89. Mr Olley and Dr Bickel concluded from this study that any barrier that prevents migration throughout the catchment could have a negative impact on the brown trout population of the river.
90. As explained earlier we also heard from a number of expert anglers who gave evidence on behalf of the applicant.
91. Mr Ron Todd is an angling guide based in Te Anau. He was a member of Southland Fish and Game and its antecedent organisation for 14 years. He has fished the Oreti River since he was 13.
92. The things that keep attracting Mr Todd back to the upper Oreti include the peace and solitude, the beauty of the place, the great fish, the friends that you make and the clarity of the water. He also said that the river clears very quickly after a flood, so from a guide’s point of view the Oreti is “one handy river to have”. Of his overseas clients at least half want to fish the Oreti, and about 5% come to the country specifically to fish the river. The easy access to the river, combined with being able to wade it, make it very special for older fishermen.
93. On his “best day” on the river Mr Todd landed eight trout of between 3.5 and 8 lbs.7 He said that on the right day this would be the best brown trout river he has fished for sighting and catching big fish. He has caught three “trophy” brown trout of over 10 lbs in the river.
94. Mr Stuart Sutherland is based in Lumsden and has worked for Southland Fish and Game and its predecessor since 1973. He has been involved in all Fish and Game’s work on the river for the last 33 years. Based on his experience Mr Sutherland considers the upper Oreti is an “outstanding internationally important brown trout fishery”.
95. In the fishing season of 2000/01 Mr Sutherland conducted an angler field survey upstream of Rocky Point. He was on the river for 42 days and interviewed 191 anglers. Of these, 59% were from overseas, 26% from Southland and 15% came from other parts of New Zealand. Of the overseas anglers 27% were from North America and 16% from Australia. Some overseas anglers have bought houses in local villages. Anglers accompanied by fishing guides made up about 10% of the use of the upper river.
96. Asked what drew them to the upper Oreti, survey respondents rated the following characteristics most highly: peace and solitude, undisturbed water (i.e. they are not fishing behind another angler), the ability to spot and fish individual trout, the environment and scenery and the challenge to their skill. Catching large fish and catching several fish rated low. Most anglers said they were satisfied or very satisfied with the experience; only three expressed dissatisfaction.
7 Most anglers talk about fish in terms of pounds (lbs) rather than kilograms, so we have largely done the same. A trout of over 10 lbs is regarded as a “trophy fish” by some; others say a trophy fish is over 8 lbs.
Special tribunal report on a water conservation order application for the Oreti River 15
97. Asked what has changed since 2000/01 Mr Sutherland considered that the fishery in the lower river may have declined, but that it has improved in the upper river due to greater numbers of large fish being present. Numbers of overseas anglers had dropped off following the 9/11 terrorist attack in 2001, but were now increasing again. In his view anglers were “getting used to didymo” and were now returning to their old haunts.
98. Mr Dean Bell has been a fishing guide since 1994. On average he guides anglers on the upper Oreti 18 days per season. He considered he had more “fishing knowledge” of the upper river, where he knows every pool, riffle and run, than anyone else. One of the reasons overseas anglers are attracted to New Zealand is that there are no aerial predators, so fish can feed openly during the day.
99. Mr Bell has fished widely around New Zealand and indeed the world. No other New Zealand trout fishery with trophy fish present has such easy access as the Oreti – other rivers either must be accessed via long tramps or by helicopter. The only places he knew of internationally where easily accessible trout of such large size are found are in three modified environments, two in North America and one in Mexico.
100. One of the characteristics of the upper Oreti is the relative lack of fish under 2 kg. He said that his guided anglers spent 16% of their time on the upper Oreti, but it provided 76% of the trout over 8 lbs they caught. Catch rates are lower than on other rivers, but according to Mr Bell the challenge is greater on the Oreti, where fishing must be “perfect” if fish are to be caught. He felt that the Oreti River is the best single test of an angler’s ability anywhere in the lower South Island, and that its presence is paramount to his successful guiding business. Fish and Game were commended for its “catch-and- release” and “foot only” policies, which he said had enhanced the experience for anglers able to hike to the river.
101. Mr Bell considered the optimum flow for angling was between 9 and 12 m3/s. At flows below 6 m3/s fish became very wary and difficult to catch, while above 15 m3/s the river is usually discoloured and not fishable. He did note, however, that the river clears very rapidly after a moderate flood following say 20mm of rain, which is not the case in, for example, the Mataura. He attributed this to the lack of any intensive land use in the upper Oreti catchment.
102. Mr Bell takes clients to Weydon Burn early in the season, and to the lower Windley River. He noted the former is now affected by didymo, which he did not consider would become a significant issue in the upper Oreti because of the mobile bed and the frequency of freshes and floods. Asked what he thought were the main risks to the upper river, he cited angling pressure, drought and didymo.
103. Mr Rob Bowler is an American fisherman who owns a house in Balfour in Southland. He has written two books on trout fishing, and has fished widely in New Zealand and overseas. He has kept a detailed dairy; since 1992 he has visited the Oreti River 147 times, and caught and released 472 trout with an average weight of 6.16 lbs.
16 Special tribunal report on a water conservation order application for the Oreti River
104. Mr Bowler ranked the Oreti as the best trout river in the country, followed closely by the Ahuriri and the upper Wairau. He also considered it outranked all the brown trout rivers in North America. Particular challenges in the Oreti include “wily and smart” trophy trout, sight fishing and the difficulties of selecting the right fly for fishing. He said that didymo did detract from the angling experience, but it had not affected the condition of trout.
105. Mr Brad Kastner is another American who works as a fishing guide and has fished the Oreti River for four years. He has also fished in Alaska, Russia, Argentina and Mongolia. He said that there is no river in North America that has brown trout fishing offering an experience remotely close to the Oreti, and in New Zealand the only comparable river is the Ahuriri. There are comparable rivers with rainbow trout in Alaska but access is only by floatplane. Rivers in the Rio Grande in South America hold larger brown trout, but access is very difficult and fishing is not by sight.
106. In two days in November 2006 he and a friend landed and released 55 trout, all but 10 over 7 lbs. He has also caught trout in the lower reaches of the Windley River.
107. Mr Paul Stenning lives in Invercargill. He has been a Southland Fish and Game councillor since 1998, and has fished widely in Southland since he was a boy.
108. Mr Stenning fishes along the entire length of the Oreti River, but prefers fishing the headwaters. Among the reasons for this are the presence of large fish and the challenge of fishing for them, the clear water and the ability to spot fish, and the “truly beautiful” natural environment. The upper Oreti meets all his criteria as the “perfect river”. As an honorary ranger he has met many anglers from overseas on the upper river, and without exception they rate the river as one of the best in the world to fish for brown trout.
109. In April we heard from Ms Phillipa Jones, another lawyer from Anderson Lloyd Lawyers as Ms Baker was not available. Ms Jones told us that the applicant and Environment Southland had met on 13 April following the release of decisions on the Variations 2–4 of the Proposed Regional Freshwater Plan late in March. As a result of that meeting Fish and Game had agreed to amend the specific protection sought in the application, as some of the concerns of Fish and Game had been met by the decisions on the variations to the regional plan. She provided an amended draft order for our consideration, which we discuss at some length later.
110. Mr Rodway provided supplementary evidence. He commented particularly on comparisons in national angling survey information presented by Dr Jellyman and Mr Unwin, and discussed the values of tributaries for which protection is sought by the water conservation order. We need not detail that evidence here as we discuss these matters later.
Special tribunal report on a water conservation order application for the Oreti River 17
3.2 Submitters in Support of the Application
111. We heard from five submitters who supported the application, and one neutral submitter, at the January hearing.
112. Royal Forest and Bird Protection Society were represented by Ms Sue Maturin, an experienced field officer of the Society, supported by evidence from Mr Lloyd Esler, an experienced Southland naturalist and teacher. Ms Maturin presented wide-ranging arguments in favour of a water conservation order to protect what she saw as the outstanding amenity and intrinsic values of the Oreti River. She and Mr Esler provided evidence about the value of the river as habitat for significant populations of a number of native species, including bird species that are considered to be nationally and internationally threatened with extinction, such as black-billed gulls, black-fronted and Caspian terns, and banded dotterels. She considered that Environment Southland’s current and proposed statutory plans would not protect the existing river flow and form, or water quantity and quality to the extent necessary to maintain the outstanding characteristics of the Oreti. Mr Esler backed up these assertions with a summary of natural values of the river to sections of the community other than fishers, for example the many school children and naturalists he leads on trips to the river.
113. Mr Michael Skerrett is the Manager of Te Ao Marama which represents the resource management interests of the four Ngāi Tahu papatipu rūnanga o Murihiku – Te Rūnaka o Awarua, Hokonui Rūnanga Inc Society, Te Rūnaka o Oraka-Aparima and Te Rūnaka o Waihopai. Mr Skerrett explained a number of the cultural values associated with the Oreti River, including its value as a major inland trail, as habitat for many native fish, bird and plant species that are regarded as taonga species, as a pounamu trade route, and as a source of mahinga kai and other cultural materials. This use of the catchment is evidenced by archaeological evidence that remains. The significance of such sites was also outlined by Mr Skerrett. He concluded that a water conservation order would protect Ngāi Tahu’s cultural, spiritual, historical and traditional association with the catchment.
114. Mr Niall Watson is the manager of the Otago Fish and Game Council. He has worked in fish and game management for over 25 years.
115. Mr Watson said that the Oreti River is “part of the spectrum of angling opportunity” available to many Otago anglers within a reasonable travel distance. This recreational angling opportunity spectrum falls into five categories: urban, rural, natural, back country and remote. Features of back country or remote fisheries include largely unmodified landscapes, relatively low rates of encounters with other anglers, good catch rates and/or size of fish, locations distant from population centres and limited access.
116. He considered the Oreti River to be an outstanding back-country fishery, and noted that it is managed alongside two Otago back-country fisheries, namely the Caples and Greenstone, details of which are described elsewhere in our report.
18 Special tribunal report on a water conservation order application for the Oreti River
117. Mr Les Ladbrook is a local angler, who also spoke on behalf of submitters Dave Harris and Adam Cowie. He said the Oreti River is a very important fishery for both local and overseas anglers. He supported the application as he considered that while the Water Plan went a long way, he didn’t feel it “had enough teeth” to protect flows and did not prevent damming.
118. Mr John Purey-Cust is a retired forester who lives in Gore and has been a fisherman for over 60 years. He thought it was regrettable that a water conservation order had to be applied for, as he thought the river’s value should have been recognised in local authority plans. Like others, Mr Purey- Cust highlighted the river’s importance for tourism, and said that the application “spoke for the Oreti River and all of Southland.”
119. Mr Purey-Cust said opposition to the order came from only two quarters – local authorities defending their territory, and sectional interests who want to use the river for gravel supply or irrigation. He urged that we grant the application.
120. In April we also heard a submission in support of the application from Mr Ted Loose, Mrs Mariana Loose and Mr Ted Tapper, who appeared on behalf of a number of submitters. Both Mr Loose and Mr Tapper were Environment Southland councillors, but were appearing as individuals supporting the application.
121. Mr Tapper, who “retired 11 years ago to go fishing”, said that the upper Oreti is a world-class brown trout fishery, which draws anglers from all over the world. He emphasised the importance of maintaining fish passage from the lower estuarine reaches of the river to the headwaters. He has fished in many parts of the world, and regards the Oreti River extremely highly. In his experience fishing in other countries, such as Iceland, didymo will not establish in rivers which carry significant floods and which have mobile beds.
122. Mr Loose has lived in northern Southland for 45 years, He considered that a conservation order was necessary as he did not think the RMA, or the provisions of the Water Plan, would protect the river. The council’s goal of beating non-point source pollution by 2015 cannot be achieved, according to Mr Loose, unless the upper catchments are protected.
123. Mrs Loose is a JP and a member of Ngāi Tahu. She explained how Māori view creation and the linkages between their spiritual values and how Māori view natural systems, such as the Oreti River.
Special tribunal report on a water conservation order application for the Oreti River 19
3.3 Neutral Submitters
124. At the January hearing, Mr Craig Evans spoke on behalf of the Oreti Irrigation Water Users Group. Mr Evans is a senior hydrologist with MWH New Zealand Ltd based in Dunedin, and has 16 years’ relevant experience. He has been involved in work in Southland since 2001.
125. The water users group comprises the eight major irrigators downstream of Mossburn. These users have a total groundwater allocation of over 8.8 million cubic metres of water per year if water were taken for 180 days per year. In answer to a question, however, Mr Evans said most users would only take water for about 10–20 days per annum.
126. Most of these consents are for a term of 10 years, and expire from 2012 on. One is for a take that is of groundwater with a direct hydraulic linkage to the Oreti River, but the other seven takes are from the confined Lumsden and North Range aquifers with no known hydraulic link to the river, apart from sharing the same recharge area. Water management guidelines prepared by Environment Southland indicate that no further water will be allocated from the North Range Aquifer at present, while members of the group hold most of the allocation from the Lumsden aquifer. The users wish to ensure that their consents will be able to be “renewed” once they do expire, and do not want any water conservation order to affect that.
127. The water users group did not oppose a prohibition of damming on the river, but were concerned about a possible provision to protect fish passage. This is in part because of difficulties caused in the management of the Mataura River by the provisions of the water conservation order made there in 1997. They sought clear and unambiguous wording in any order made.
128. Mr Shane Roberts, a resource management planner employed by Opus International Consultants, gave evidence to the April hearing on behalf of Transit New Zealand. In Southland, Opus is Transit’s network management consultant.
129. The State Highway network in Southland closely follows parts of the Oreti River. There are crossings of the river at Wallacetown, Winton, Lumsden and Mossburn; additionally SH 94 crosses Weydon Burn and its tributaries at several points north of Mossburn. Regular maintenance and occasional repair works are necessary at these bridges. This includes removing debris and accumulated gravel following floods, installation and maintenance of protective rip rap and gabion baskets, and repairs to the base of piers.
130. Transit sought that any water conservation order made, provides for protection and maintenance of state highway assets. Mr Roberts noted that the amended draft order circulated to us in April differed from the original application and now makes provision for the activities that Transit could forseeably undertake. We have included those provisions in the draft order.
20 Special tribunal report on a water conservation order application for the Oreti River
3.4 Submitters Opposing the Application
131. In April we heard from five groups who opposed the application. All bar Environment Southland had prepared at least part of their substantive evidence prior to the hearing at a time when they were unaware of the “agreement” reached on 13 April between the regional council and the applicant.
132. Environment Southland was represented by their solicitor, Mr Barry Slowley, and a Senior Resource Planner Ms Rachael Millar.
133. Mr Slowley said that, as a result of the understanding reached with Fish and Game on 13 April, Environment Southland would not be leading technical evidence opposing the way the application had been drafted. The regional council never intended to lead evidence contesting that the Oreti River had outstanding characteristics; rather their view was that this was for the applicant to establish.
134. The council was particularly concerned that a water conservation order is, in the words of the Environment Court in the Rangitata case, “a crude and very expensive tool in an otherwise relatively sophisticated toolbox”. He noted particularly that a water conservation order is not responsive to changes in technology or a greater understanding of water resources.
135. The council’s concerns about water conservation orders stem particularly from the wording of the Mataura order, which was made in 1997. Since that time dairying has expanded greatly north of Gore, with demands for large water takes, particularly from hydraulically linked groundwater. The order on the Mataura has meant the river is now managed differently from others in Southland through the Water Plan. A recent Environment Court case was described that Mr Slowley claimed showed the difficulties of interpreting the Mataura order given the more recent development of water resources in that catchment. Mr Slowley contrasted the process for making a water conservation order with the extensive expert and public input into the Water Plan, and questioned the utility of another level of regulation.
136. In answer to a question, Mr Slowley agreed that Environment Southland’s position could be summarised in three points.
• It is up to the applicant to show that the Oreti River qualifies for protection by a water conservation order.
• Even if it does qualify, the Tribunal needs to carefully consider s207 matters, and particularly the provisions of the Plan.
• If an order is to be made, then it should be along the lines of the amended application.
137. Ms Millar has been responsible for coordinating all staff work on the council’s Water Plan and its variations. She holds a degree in resource studies and has lived most of her life in Southland.
Special tribunal report on a water conservation order application for the Oreti River 21
138. Ms Millar did not duplicate material covered by Ms Taylor, who was the planning witness for the applicant, but did disagree with her on two matters. First, she noted that both the Regional Solid Waste Management Plan and the Regional Effluent Land Application Plan were relevant to the application in so far as any discharge permit applications cannot be contrary to a water conservation order. Second, she noted that s207 of the Act does give weighting to a proposed plan, such as the Regional Fresh Water Plan.
139. We discuss the provisions of the Plan in our evaluation of s207 matters, so we need not detail the balance of Ms Millar’s evidence here.
140. Two witnesses gave evidence opposing the application on behalf of the Southland province of Federated Farmers. They were Ms Fiona Young, an environmental scientist employed by Sinclair Knight Merz who used to work as a senior policy analyst for Federated Farmers, and Mr David Rose, the president of the Southland province. In Southland the federation has about 1,400 members and represents the majority of landholders in the region.
141. Ms Young said that water conservation orders by their nature do not provide for the community to make decisions. Federated Farmers opposed the original application and they also opposed the amended application put forward on 19 April. She reminded us of the provisions of s207 of the Act in relation to “the needs of primary and secondary industry and of the community”. Ongoing access to the river for stock water is important.
142. A perceived lack of consultation by the applicant was criticised. Ms Young compared this with the extensive consultation carried out by Environment Southland over the Regional Water Plan. She said that as a result of this, “landowners in general support the practical effects-based approach that the Water Plan has taken to achieving water quality and quantity outcomes in the Oreti catchment”. She pointed out that some of the provisions of the water conservation sought would duplicate, or nearly duplicate, those in the Water Plan.
143. Mr Rose runs a sheep farm of about 200 ha on the banks of the Oreti River. He has lived in the area all his life, chaired the Oreti River Liaison Committee for over eight years and has coordinated submissions on the Water Plan since the process started in 1999. He expressed frustration that after all the work carried out on the Water Plan, the outcomes reached may be overruled by the water conservation order.
144. Mr Rose had contacted farmers along 27 km of river frontage, all but two of them upstream of Rocky Point. He said there are generally good relationships between anglers and farmers, with many of the latter giving permission for access over their land.
145. Some farmers commented that the berm land was full of gorse and broom, and that the river contains didymo. Fertiliser inputs occur well back from
22 Special tribunal report on a water conservation order application for the Oreti River
waterways, and farmers support the requirement for a three-metre buffer for intensive winter grazing being promoted by Environment Southland.8
146. Mr Rose also read a statement of behalf of the Butson family (who were not submitters) who farm Mt Nicholas Station. The station, which is Crown leasehold, covers 100,000 acres. This includes 30,000 acres of the headwaters of the Oreti River, with 22 km of boundary with both branches of the head of the river. These lands provide grazing for a large number of stock, being grazed at times by merino sheep and beef cattle, and used for calving.
147. There is no fencing so stock have access to the river, but numbers are kept low to minimise impacts on the river. Care is taken not to spread fertiliser close to water. Anglers have open access to the property.
148. The Butsons concluded by saying that they considered they have achieved a sustainable balance between environmental values and their farming practices. They cited the quality of the fishery and the spectacular scenic values as testament to this.
149. Mr Grant Hubber gave evidence on behalf of the Oreti River Liaison Group. This is a consultative/advisory group that works alongside the regional council and represents landowners along the length of the river. The liaison group influences the budget for river control works, and is actively involved in commenting on proposed works programmes and resource consent applications.
150. The liaison group totally opposes the application for a water conservation order, and asked that we recommend it be declined. Mr Hubber contrasted the extensive consultation undertaken by the regional council during the preparation of its Water Plan with that undertaken about the proposed conservation order, which he asserted has landowners, particularly in the upper reaches, feeling “left out of the process”. He said the proposed order would be another cost imposed on the community for no benefit whatsoever, and noted that the protection sought was little over and above that provided by the Water Plan.
151. Mr Peter Lawson owns a farm of some 1,250 ha on the left bank of the Oreti River starting about 3 km upstream of Rocky Point. He runs sheep and beef, and does not irrigate his land. He said the argument put forward by Fish and Game that the river is in its natural state is strongly flawed because of the presence of noxious plants, pests and now didymo.
152. Farming is carried out in conjunction with high conservation values. Among other things Mr Lawson has fenced off the river boundary, controls pests and has tight controls on fertiliser application. Ms Rachel McLellan has studied a black-billed gull colony on his property, and pest control is carried out to protect gull colonies.
8 This is through Proposed Variation 5 to the Regional Freshwater Plan, but decisions on submissions to this provision have yet to be notified.
Special tribunal report on a water conservation order application for the Oreti River 23
153. Anglers are allowed access across his property. Like some other submitters Mr Lawson criticised the lack of consultation by Fish and Game about the water conservation order application, and contrasted this to the Water Plan, which is said was a “living document administered by a democratically elected body”. He asked us to reject the application.
154. Mr Andrew Morris owns a farm on the true left bank of the upper Oreti downstream of the confluence of the Windley River, and immediately upstream of Mr Lawson’s property. The farm covers 980 ha, and runs sheep, deer and beef cattle. Mr Morris said that the property has been developed to its potential, and most work now is maintenance.
155. Mr Morris said that it was hard to see “outstanding values” associated with the river when it is covered in gorse, which he considered Fish and Game should control. He did not see the need for a water conservation order. Anglers are allowed access over his property. He owns land beside the lower reaches of the Windley River, which he said lies in “a beautiful valley”, but noted that didymo is already present and that, as the river is relatively stable, it is likely to become more infested.
156. We asked if any resource consents are needed from the regional council to manage his property. He said that a consent had been sought to maintain the Oreti River in its channel to prevent erosion on his and his neighbours’ properties, but he said this had been opposed by Fish and Game and to his knowledge no consent had been granted.9
157. Mr Brydon Hughes gave evidence on behalf of Landcorp Farming Limited. Mr Hughes is presently a senior hydrogeologist at Sinclair Knight Merz. Prior to that he was employed by Environment Southland for six years as an environmental scientist where he specialised on groundwater in the region.
158. Landcorp owns about 7,000 ha on the true right (west) bank of the Oreti catchment. This is about 11% of the catchment upstream of Mossburn, with frontages of 9.8 km along Weydon Burn and 22.5 km of the Oreti River (although much of the land immediately beside the river is a marginal strip managed by DOC). The company has a commitment to sustainable resource management through a “balanced scorecard”.
159. Mr Hughes considered that the variations to the Water Plan are a more appropriate mechanism to achieve outcomes for the community as a whole. He compared the provisions sought in the amended order with those in the plan, and concluded that they were little different. He said water conservation orders are a restrictive instrument that are not capable of responding to changing conditions in a timely way, as they are difficult to change. This contrasts with regional plans, which are subject to regular review and so are
9 This is not actually the case. Mr Slowley provided to us a resource consent granted to the Catchment Management Division of Environment Southland in May 2006 for a term of six years allowing works associated with a realignment channel to take place.
24 Special tribunal report on a water conservation order application for the Oreti River
more flexible. For these reasons, Landcorp requested that the application be declined in its entirety.
3.5 Other Submitters
160. Many parties who made submissions to the original application did not appear at the hearing.
161. The large majority of those submitters supported the making of an order. In essence, these submitters asserted that the Oreti River, particularly the upper river, is an outstanding brown trout fishery. A significant number were from overseas, and either owned property in Southland or regularly visited the region to fish for trout. Apart from angling amenity, the main reasons these submitters gave for supporting the application included scenic values, and to preserve the peace and serenity of the area and protect it from development.
162. We think the submission points that they made were all well covered by the witnesses for the applicant, or submitters in support of the application.
163. Ms Baker told us in January that as the submissions provide overwhelming support for the protection of the Oreti River, this “represents an expression of community needs as perceived by those who comprise the community”. We do not entirely concur with this interpretation. While these submissions no doubt represent the views of significant sections of the Southland community, they do not represent the views of the entire community. A substantial proportion of those submissions were from overseas, and we have no doubt that Fish and Game strongly encouraged their members to make submissions on the application. We also note that the two local authorities who do represent the entire community through the electoral system – Environment Southland and the Southland District Council – both opposed the application.
164. Of the 13 submitters who originally opposed the application seven did not appear at the hearing. One of these was Southland District Council, who had told us in January that they would appear at the second stage of the hearing but did not do so. The district council’s main concerns about the application included that:
• it did not provide sufficient evidence that that the Oreti River had or contributed to outstanding characteristics in accordance with s199 of the Act; • there was insufficient evidence of any threats to the river such that a conservation order was necessary; • alternative options to a water conservation order were not assessed in the application; and • there had been insufficient consultation with the local community.
Special tribunal report on a water conservation order application for the Oreti River 25
165. Other submitters who did not appear at the hearing were opposed to the application for reasons such as:
• The water conservation order was unnecessary as the provisions of the Water Plan and its proposed variations sufficiently protected the values sought to be protected by the order.
• The consultation undertaken by the applicant was flawed and insufficient, particularly compared with the robust consultation process undertaken over a long time by Environment Southland regarding the Water Plan.
• The order sought was inflexible and did not allow for potential development options in the future.
26 Special tribunal report on a water conservation order application for the Oreti River
4 Part 9 of the RMA
4.1 The Relevant Case Law
166. Part 9 of the RMA sets out the procedure for the processing of applications for water conservation orders, and what matters we have to consider in making our report on the present application.
167. We need not detail the process issues here. Essentially upon receiving an application to make or vary a Water Conservation Order, the Minister must appoint a Special Tribunal under s203 of the RMA to undertake an inquiry and conduct a hearing. That Special Tribunal then prepares a report, as we have done here, which makes a recommendation on the application (s208). This recommendation can be appealed to the Environment Court, who can recommend to the Minister that our recommendation be rejected, or accepted with or without modifications (s213). The Minister can make a water conservation order through an Order in Council (s214), or alternatively decline to make one (s215). Any order made is binding on the consent authority (s217) but does not affect or restrict any resource consent granted, or lawful established use in respect of the water body before the order was made.
168. In making our decision we had the benefit of an Environment Court decision by Judge Jackson regarding an appeal to the Special Tribunal’s recommendations on an application for a water conservation order for the Rangitata River.10 This decision provides a comprehensive overview of the relevant sections of Part 9 of the Act, which we found very helpful.
169. In saying this we note, however, that:
(a) In its middle and lower reaches the Rangitata is a much modified river compared with the Oreti, with large takes for irrigation combined with power generation; and so the considerations and competing interests there, were much more complex than they are for the Oreti River.
(b) The Court’s decision focused primarily on the conditions on which an order should be granted, as there was no serious dispute that the river had outstanding amenity and intrinsic values.
170. The Environment Court largely dismissed comparisons between the provisions made for “water conservation order and notices” under the repealed Water and Soil Conservation Act (“WSCA”) 1967 and the provisions of Part 9 of the Resource Management Act. The Court commented at paragraph 32 that:
10 Rangitata South Irrigation Ltd v NZ and South Island Fish and Game Council. C109/04.
Special tribunal report on a water conservation order application for the Oreti River 27
“substantially and procedurally the differences between [them] are so great that we consider that it is not useful, and indeed probably misleading, to consider the former except as some guide to the interpretation of identical words or phrases in the latter”.
The Court noted that the main substantive difference is that the purpose of an order is now influenced by consideration of the Purpose and Principles (Part 2) of the RMA, and there was no equivalent of this in the Water and Soil Conservation Act. Of the many procedural differences, the most important is that a Special Tribunal is appointed to conduct a hearing and make a report.
171. The Judge in the Rangitata case later at paragraph 58 qualified the above quote when he made the following comment:
However, once it is found that a part of the river has outstanding characteristics then the purpose of a Water Conservation Order and the non-repugnant sections in Part II of the Act entail that there is a presumption that those characteristics should be recommended for specified protection. To that extent we are adopting (respectfully) the approach of the Court of Appeal in the Rakaia Water Conservation Order case: Ashburton Acclimatisation Society v Federated Farmers of New Zealand Incorporated [fn53 [1988] 1 NZLR 78 at 88]. That case was about the WSCA 1967 which did not contain any provision as powerful as Part II of the RMA.
172. The same approach has been reinforced in other case law. If protection through a water conservation order is sought for a water body, and that water body is found to have outstanding values, then there is a presumption in favour of protection. For instance, in the same case cited above Justice Bisson said that “the sustaining of the amenity afforded by the waters in their natural state must have priority”; and he referred to according primacy to that object which “should not be defeated by striving to achieve a balance for other users”; and that the amenity ”should not be compromised by making provision for other uses unless they are essential and there is a sufficient resource to serve them to some extent as well”.
173. In the Rangitata case the Special Tribunal in paragraph 61 set out its decision-making framework as follows:
“The tribunal first evaluated which, if any of the characteristics, values or purposes able to be protected or preserved by a water conservation order were outstanding (Part III). We also considered whether or not the waters are in their natural state (Part II). During this part of our deliberations we did not consider whether or how to recognise and provide for protection for any features that we found to be outstanding.
Having concluded that there were outstanding features, the tribunal assessed the needs of primary and secondary industry and reviewed relevant plans and policies (Part IV and Part V).
Next the conditions required to protect the outstanding features were determined and then allowance given for industry and community needs
28 Special tribunal report on a water conservation order application for the Oreti River
that could be met while protecting the outstanding features (Part VII). At this point, the tribunal decided that a Water Conservation Order was necessary to protect or preserve the outstanding features and a draft was prepared. (Part VIII and Appendix 1).”
174. The Environment Court held that the Special Tribunal “generally applied the correct approach required by Part 9 of the Act”. The Court, however, used a somewhat different approach, and in paragraph 55 of their decision set out the issues that it considered should be addressed in evaluating an application for a water conservation order:
a. whether outstanding characteristics exist in the river;
b. if so, whether those characteristics are threatened by potential changes to flow, water quality, temperature, etc;
c. whether an order is necessary to sustain the outstanding characteristics, having regard to;
d. the matters in section 207(2) – which are in our view designed to ensure that an overly idealistic approach to the river's waterline is not taken.
175. We had some concerns about the applicability of step (b) of these considerations. This is because there are currently no readily identifiable threats to the outstanding values of the Oreti River that can be controlled by the provisions of a water conservation order. We return to this matter later in this decision.
176. Section 199 of the RMA sets out the purpose of a water conservation order, which is to “recognise and sustain outstanding amenity or intrinsic characteristics” of waters. This can involve either preservation of outstanding waters that are in their natural state, or the protection of outstanding waters that are not in their natural state but which are still considered outstanding.
177. At paragraph 30 of the Environment Court’s decision in the Rangitata case, the court said in relation to s199:
“Collating the various appropriate definitions we conclude that the meaning of s199 which is most relevant here is that the purpose of a water conservation order is to restrict the regional council’s powers to the extent necessary for the natural but not pristine characteristics of the river (including tributaries, wetlands within its catchment and hydraulically connected groundwater) which are out of the ordinary on a national basis to be maintained in their current quality and quantity.”
178. As Ms Baker pointed out to us, the High Court in New Zealand Paper Mills Ltd v Otago Acclimatisation Society11 (decided under the WSCA) considered
11 [1995] NZRMA 155
Special tribunal report on a water conservation order application for the Oreti River 29
whether a threat needed to be identified before a water conservation order could be recommended:
“Some time was spent in argument as to whether a Water Conservation Order should be recommended if there was no immediate need for preservation or protection and no evidence of such a need in the reasonably foreseeable future. That is answered first by the recognition that existing water rights cannot be affected, but secondly by the need to declare that a river, lake or stream, or its outstanding characteristics or features was worthy of protection or preservation in accordance with s20D(2) and 20B(6) of the [WSCA]. Those issues were issues of fact for the [Planning] Tribunal and again I have not been persuaded that any error of law has been made by the Tribunal in its consideration.”
179. The High Court’s decision was that a threat is not required for a water conservation order to be granted. The critical consideration is whether the outstanding characteristics or features are worthy of protection or preservation.
180. While the precise language used in the WSCA and the RMA differs, the scheme for water conservation orders is similar. In the RMA a water conservation order also has no effect on existing use rights.12
181. While on a first reading step (b) of the framework used by the Environment Court suggests that potential threats to any outstanding characteristics of the river need to be identified as being likely before making an order, we think a more appropriate consideration is whether a change could potentially threaten those characteristics.
182. Accordingly we think the relevance of considering threats relates more to the conditions to be contained in a water conservation order, rather than whether there should be an order at all. This is consistent with the purpose of water conservation orders prescribed in s199 of the Act. We think that this approach reconciles the High Court’s reasoning in the NZ Paper Mills case and the Environment Court’s statement of considerations in the Rangitata case.
183. We were also required to consider Part 2 RMA matters. Uniquely in the context of the Act, the purpose of water conservation orders is stated in s199(1) that “notwithstanding anything to the contrary in Part 2, the purpose of a water conservation order ….”
184. In the Rangitata case, the Court held that the qualifying words in s199(1):
“make it clear that not all of Part II is to be ignored, but only those aspects of Part II that are contrary to the purpose stated in section 199” (emphasis added). The Court expanded on this by stating that “[Section 199] focuses on the protection aspect of the conservation purpose by excluding consideration of matters which are opposite to that
12 s217 RMA and s20D(7) WSCA
30 Special tribunal report on a water conservation order application for the Oreti River
purpose”, and “in addition to the matters we must have regard to in section 212, we must also consider those provisions of Part II which are not excluded on the facts before us as being contrary to section 199(2) of the Act”.
185. This is the test we have applied in our consideration of Part 2 matters. In saying this we observe that much of Part 2 is actually in accord with the conservation purpose of s199 of the RMA.
186. Section 207 of the Act states that in terms of matters we must consider we must have particular regard to the purpose of a water conservation order and the (other) matters set out under s199, but that we also must have regard to:
(a) The application and all submissions; and (b) The needs of primary and secondary industry, and of the community; and (c) The relevant provisions of every national policy statement; New Zealand coastal policy statement, regional policy statement, regional plan, district plan and any proposed plan.
187. We have added the emphasis. We agree with Ms Baker that the Act clearly elevates the purpose of a water conservation order, as outlined in s199, above the matters in s207. This was reinforced by the Environment Court in paragraphs 40–44 of the Rangitata decision.
188. Ms Baker also submitted that under (b) what we must weigh are “needs, and not merely hopes or aspirations for the future, or principled opposition to a statutory instrument that will not in reality affect the reasonable needs of primary or secondary industry or of the community.” We accept that submission also.
4.2 Decision-Making Framework
189. Our review of the relevant case law led us to the following decision-making framework.
190. The first two questions we asked were:
(a) Whether all or part of the Oreti River provides either outstanding amenity or intrinsic values from waters in their natural state, and if so, what those values are.
(b) Where the waters of the Oreti River are not in their natural state, whether there are any amenity or intrinsic values that require protection because they are outstanding.
As with the Rangitata Special Tribunal, in this part of our deliberations we did not consider how to protect any features that we found to be outstanding.
Special tribunal report on a water conservation order application for the Oreti River 31
191. In making our assessment as to what amenity or intrinsic values of the river were outstanding, we were also guided by the Environment Court’s decision in the Rangitata case, where they cited previous case law under the WSCA:
“the test as to what is outstanding is a reasonably rigorous one and that to qualify as outstanding a characteristic would need to be quite out of the ordinary on a national basis” (emphasis added by the Court).
192. The Court also accepted Mr Milne’s submission that:
“the amenities should stand out on a national comparative basis. If one takes a national comparative approach, the fact that the wider region is well endowed with similar high-quality features may well suggest that particular waters do not stand out when considered in a national context.”
193. It is relevant insofar as comparisons go that the Mataura River, the catchment immediately to the east of the Oreti River, is protected by a National Water Conservation Order made under the provisions of the WSCA 1967. The Mataura was found to have “outstanding fisheries and angling amenity features”.
194. We next considered the relevant matters under Part 2 of the RMA.
195. We then addressed the relevant provisions under s207. None of these matters outweighed the emphasis placed in Part 9 of the Act on sustaining the outstanding characteristics of the river.
196. Having decided there are outstanding values associated with the Oreti River, we weighed whether they were threatened by potential changes to parameters such as flow and water quality. From this, we determined the conditions in the draft order.
32 Special tribunal report on a water conservation order application for the Oreti River
5 Does the Oreti River have Outstanding Values?
197. In this section of our report we systematically evaluate the intrinsic and amenity values of the Oreti River to determine which of these are “outstanding”.
198. It is pertinent to note here that although we consider that relatively few intrinsic or amenity values of the river are outstanding, many of the other values that we appraise here would be protected by the provisions of the water conservation order that we have recommended. For example we consider the native fishery values of the catchment to be significant but not outstanding, but the order we recommend will help protect those native fishery values by retaining flows and providing for passage through the river system.
5.1 Wild and Scenic Values
199. We endeavoured to assess whether the upper Oreti has outstanding wild and scenic values. In saying this we acknowledge that none of us are expert in judging such values, and we heard no real expert evidence that did so. Accordingly our conclusions are primarily subjective.
200. The upper Oreti is certainly a visually impressive valley. Formed by a glacier, it is conspicuously U-shaped, surrounded by mountains that are clad by beech forest at lower altitudes giving way at higher altitudes to sub-alpine vegetation and bare tops. The river itself is visually quite striking, particularly with regard to its classic pool-riffle-run reaches and for its remarkably clear waters. We can well imagine that to a trout angler or other visitor the river and its valley may for very good reason appear to be scenically outstanding. Indeed, many of the anglers who spoke to us said as much.
201. We do not consider that the upper Oreti catchment can be described as “wild”. There are several reasons for this. Much of the upper valley is easily accessible by road. Many of the flats beside the river are farmed, albeit extensively, and the riverbed is in places accessed by grazing stock and encroached upon by introduced weed species such as gorse and broom. The river itself is an unconfined single-thread channel, with no rapids or waterfalls between narrow rock buttresses that make river channels appear “wild”13 (the upper Mohaka, Rangitikei and Motu rivers being very good examples).
202. In a comparative context we also consider that the scenic values are nothing particularly out of the ordinary. There are many similar headwater river
13 There is one short area at Three Kings where the river flows briefly between rock buttresses.
Special tribunal report on a water conservation order application for the Oreti River 33
systems to the east of the main divide of the South Island that in our view have greater wild and scenic values than those of the upper Oreti. Many of these river valleys are already protected in perpetuity by being part of National Parks (good examples being the headwaters of the Waimakariri Catchment in Arthur’s Pass National Park, the Travers, D’Urville and Sabine Rivers in Nelson Lakes National Park, and the Greenstone and Caples Rivers in Fiordland National Park).
203. Accordingly we do not find the upper Oreti catchment to have outstanding wild and scenic values as, to quote the Environment Court, it is not in our view “quite out of the ordinary on a national basis”.
204. The lower river certainly has no notable scenic values. It is a typical semi- braided river running across the relatively flat Southland Plains. It is like many other similar rivers in the south and east of the South Island.
5.2 Native Fisheries
205. Dr Jellyman provided the substantive evidence on native fisheries values. He said that 14 native fish species, of which 10 are migratory, have been recorded from the river. Two of the migratory species – long-finned eel and giant kokopu – are considered to be in decline nationally. Apart from long- finned eels most migratory species are confined to the lower 50–60 kilometres of the river. Passage to the sea is necessary to maintain populations of migratory fish.
206. The Oreti River provides very important habitat for long-finned eel and several galaxid species, two of which are endemic to Southland. Dr Jellyman described the Oreti’s characteristics that offer long inland range penetration and unimpeded upstream access (the best in Southland), both very important for the long-finned eel in particular, and probably also for the migratory galaxid species.
207. Upstream reaches are dominated by relatively high densities of non- migratory southern flathead galaxias. Dr Jellyman said their food supply could potentially be threatened by didymo.
208. Because the information about freshwater fish is incomplete, and because long-finned eel and some of the galaxid species are so widely distributed, it is difficult to be definitive about the national significance of the Oreti River’s habitat values for freshwater species. However, there are no known features of the native fish populations of the river that we consider make it “outstanding” in a national context. While both long-finned eels and giant kokopu are “in decline”, both species are widespread throughout much of the country. The Oreti is important as a habitat for these species and others, but this does not make it outstanding.
209. Mr Skerrett explained the significance of native fish species to Ngāi Tahu who regard them as a taonga. This cultural significance has also been recognised by the Crown in Schedule 97 of the Ngāi Tahu Claims Settlement Act 1998 which lists taonga species. Our conclusion is that, at the very least,
34 Special tribunal report on a water conservation order application for the Oreti River
the quality of the Oreti River as habitat for long-finned eel strongly contributes to the river’s outstanding values in accordance with tikanga Māori, which we discuss later.
5.3 The Brown Trout Fishery
210. The nub of the applicant’s case was that the brown trout fishery, and the associated recreational opportunities that it provides, are outstanding and so merit protection by a water conservation order. We agree on both counts for the reasons now discussed.
5.3.1 The Comparative Value of the Brown Trout Fishery
211. We have already summarised compelling evidence that both the size and numbers of brown trout in the upper Oreti make it exceptional on a national basis. In particular, the average size of brown trout, at just over 6 lbs, is over 10% greater than in ten other highly valued South Island headwater fisheries studied by NIWA in 1989–92.14 The numbers of large trout now being recorded, at some 30 per kilometre, make the upper river one of the most productive trout fisheries nationally that are not fed by a lake or springs.
212. Evidence was also provided that trout densities and biomass in the upper river have increased nearly four-fold in the last 15 years or so. This was attributed in large part to the “catch-and-release policy” imposed by Southland Fish and Game in the early 1990s. While we have no quantitative evidence to support this assertion, it seems probable that the policy has been an important factor in the recorded increase.
213. Some of the submitters who opposed the application questioned the value of the brown trout fishery of the upper Oreti, saying for instance that while the fishery was good it was not exceptional for Southland. No evidence was led to lend any significant substance to this view.
214. Referring back to the case law, the Environment Court concluded “that to qualify as outstanding a characteristic would need to be quite out of the ordinary on a national basis.” We think that this is clearly the case for the upper Oreti. Both the average size of the brown trout present, and their numbers and biomass, place the river quite out of the ordinary nationally. Accordingly, we find that the upper Oreti does support outstanding habitat for brown trout, and as such qualifies for protection by a water conservation order.
14 While this study only compared South Island rivers, we suspect the comparative results would be no different if North Island headwater brown trout fisheries were included. This is because generally North Island rivers do not sustain populations of large brown trout as their waters are on average too warm. Rather, headwater fisheries are dominated by rainbow trout, sometimes supplemented by smaller numbers of brown trout.
Special tribunal report on a water conservation order application for the Oreti River 35
215. Both the original and amended applications also sought protection of named tributaries of the upper Oreti. These included the Weydon Burn, the Windley River and all other tributaries upstream of a point near Lincoln Hill.
216. We consider that all these tributaries contribute to the outstanding brown trout fishery. In particular we note that shallow groundwater and small stream flows are very important for maintaining flows and water quality in the river, and that the lower reaches of the Windley River hold some large trout.
217. We carefully considered whether the above reasoning also applied to the Weydon Burn, for which the evidence was initially less clear. This catchment enters from the west further downstream of the other significant headwater tributaries, and much of it is farmed. The stream does hold some brown trout, but is relatively stable and already affected by didymo.
218. In his second brief of evidence, Mr Rodway presented information from nine electric fishing surveys carried out in Weydon Burn and a tributary, Starvation Creek, between 1980 and 1997. These showed often high numbers of juvenile brown trout, resident galaxids, bullies and long-finned eels in both streams. Mr Rodway also said there are some resident brown trout in deep pools in the lower reaches, and that the stream is an important trout spawning and juvenile rearing habitat.
219. We have decided that Weydon Burn contributes sufficiently to the outstanding brown trout fishery of the Oreti River to merit protection by a water conservation order. This is primarily because of its value as trout spawning habitat and as a nursery for juvenile trout.
5.3.2 The Value of the Fishery to Anglers
220. In broad terms we heard two streams of evidence from witnesses for the applicant about the value of the brown trout fishery of the upper Oreti to anglers. Mr Unwin put the values of the Oreti River in a national context using national survey data that ranked the Oreti fishery in comparison with others around the country. Individual anglers spoke, often passionately, about what makes the upper Oreti special for them. We heard relatively little evidence, however, about the angling amenity of the river downstream of Rocky Point.
221. As we have already outlined in summarising Mr Unwin’s evidence, angling participation rates are highest in the lower South Island, and in Southland in particular. The two national angling surveys carried out for Fish and Game in 1994–96 showed that of the 152,900–157,400 angling days in the Southland region, about a third were spent on the “world class” Mataura River, 16-20% of days were spent on lake fisheries, and 13–18% of days were spent on the Oreti River. This represents 20,600–27,200 angler days per year.
222. Nationally the Oreti River is well established as New Zealand’s third most heavily fished trout river, and is headed as a trout fishery only by the internationally renowned Mataura and Tongariro Rivers. It was also the seventh most heavily fished river nationally, with others ranking more highly
36 Special tribunal report on a water conservation order application for the Oreti River
being the major Chinook salmon rivers of Canterbury – the Waimakariri, Waitaki and Rakaia Rivers – and the Clutha River.
223. The estimated use of the upper Oreti in 2001/02 was 2,700 plus or minus 800 anglers per year. This estimate, based on a survey of fishing licence holders in New Zealand, very likely underestimates the contribution made by overseas anglers who were not included in the survey and who are about 12 times more likely to fish the upper Oreti than their New Zealand counterparts. This was supported by the evidence of Mr Sutherland, who during an extensive survey of the river in 2000/01 spoke to 191 individuals, of whom 59% were visiting from overseas.
224. The upper Oreti ranks 10th for usage of the 218 back country and headwater fisheries nationally. Its use is very similar the Ahuriri, which is already protected by a National Water Conservation Order (for its wildlife habitat as well as fisheries values). The ranking is likely to be higher if overseas anglers are taken into account, as they are known to favour high-quality back-country fisheries, such as provided by the Greenstone, Caples, Ahuriri and Oreti.
225. We have summarised the evidence of those anglers and fishing guides who spoke about why they rate the upper Oreti so highly. The characteristics that they spoke so enthusiastically of include:
• The peace and solitude of the area, along with the scenic qualities of the environment and the relatively low numbers of anglers present.
• The presence of substantial numbers of large brown trout, including trophy fish.
• The extremely clear water, associated with being able to spot, stalk and fish to individual fish.
• Relatively easy access to and along the upper river.
226. The Southland and Otago Fish and Game regions are blessed with some very highly rated trout fisheries, of which the Oreti River is one. Other highly rated rivers include:
• The Mataura River immediately to the east. It is protected by a National Water Conservation Order made in 1997. The river holds only brown trout, which are much smaller on average than in the Oreti, but provides high-quality angling along much of its length. It is the most heavily fished brown trout river in the country.
• The Mararoa River immediately to the west of the Oreti has been badly affected in it upper reaches by didymo. According to Mr Rodway it remains a good trout fishery, mainly for rainbow trout, below about Key Bridge.
• The Greenstone and Caples rivers, which form a tributary entering the south west of Lake Wakatipu. Both hold predominantly rainbow trout, access is by foot and the rivers are true wilderness fisheries, being much
Special tribunal report on a water conservation order application for the Oreti River 37
more remote than the Oreti. A ballot system is in place. Some witnesses said the fishery has declined in recent years.
• The Eglinton River which runs alongside State Highway 94 north of Te Anau. Access is quite easy, and the river contains mainly brown trout with some rainbow trout. The river is usually clear, and to use Mr Bell’s words, has “scenic grandeur”.
• The Waiau River, which is the outlet of Lake Manapouri. The river is highly rated but access is limited and the river cannot be waded.
227. On a national basis we heard evidence from witnesses such as Mr Bowler and Mr Kastner that the river most comparable with the Oreti is the Ahuriri.
228. We also heard that the Oreti River ranks highly on an international basis. Several anglers with wide experience of fishing rivers in some of the more remote and challenging parts of the world said there was no brown trout river that matched their experience of the upper Oreti.
229. In her closing submissions Ms Baker also submitted that there are economic reasons for the Oreti River to be protected, saying it is logical to assume it receives a significant proportion of the “fishing dollar” spent nationally. While this may be a reasonable assumption, no expert evidence was provided on this matter and so we make no finding about it.
230. In conclusion, we find the weight of evidence strongly supports the applicant’s assertion that the upper Oreti provides outstanding angling amenity as a brown trout fishery. The river has a national and international reputation as a challenge to skilled anglers, providing very large fish that can be spotted and fished to.
231. The evidence also indicates to us that the entire Oreti River brown trout fishery is outstanding in a national context. While it is the value of the headwater fishery that was strongly emphasised by the applicant and their supporters, the whole river undoubtedly supports a highly valued trout fishery, as indicated by its status as the third most popular trout fishery nationally. However, evidence about angling amenity focused on the upper river above Rocky Point, and we have insufficient evidence to determine if the entire river provides outstanding angling amenity.
38 Special tribunal report on a water conservation order application for the Oreti River
5.3.3 The Extent to Which the Fishery is Affected by Didymo
232. The impact of the recently introduced diatom Didymosphenia geminata (didymo) on the outstanding angling amenity of the upper Oreti was discussed by several witnesses, most notably Mr Jarvie, and we asked questions of a number of others. This is because we wanted to ascertain the extent to which the outstanding brown trout habitat and the outstanding angling amenity could be adversely affected or degraded by didymo.
233. First recorded in New Zealand in 2004 in the Mararoa River, the catchment immediately to the east of the Oreti River, didymo has now been recorded in over 50 South Island rivers. Further incursions are being recorded regularly. Didymo has been present in the Oreti since October 2005.
234. We asked a number of witnesses for the applicant and submitters how didymo affected the angling experience in the upper Oreti. A typical answer was given by Mr Todd, who said that it affected the angling experience, but not the catch rate. Overseas anglers, particularly those from the USA where didymo has become a major problem, were particularly sensitive to its presence.
235. In early stages of colonisation, the microscopic diatom cannot be detected with the naked eye. Didymo aggregations grow rapidly, however, and at their worst, form dense brown mats up to 20 cm thick in the beds of the rivers; these are aesthetically disgusting, and reduce habitat for the benthic invertebrates on which trout (and many native fish) predominantly feed. At such levels of infestation didymo could affect trout growth rates and carrying capacity, affect the angling experience and success by fouling gear and reducing aesthetic values, and potentially affect water quality parameters such as pH and dissolved oxygen levels.
236. Unlike many other algae, notably filamentous green algae, didymo does not need significant levels of plant nutrients present in the water to form dense growths. This is part of the reason it has been so “successful” in colonising pristine headwater rivers, which generally have very good water quality, with low levels of nutrients present. The Oreti is one such river. According to Mr Sutherland the Oreti does occasionally have filamentous green algae growths during spring, but these are quickly removed by floods or freshes.
237. Like other algae, didymo is sloughed off its substrate during high flows. In broad terms, the more stable the substrate and the more stable the flow, the greater the potential for didymo to form the large mats that are so degrading of natural habitat values. This is because stable substrates do not become mobile during freshes and moderate floods, and is why didymo has caused the greatest concern in rivers with stable, strongly embedded substrates. Notable examples include the Mararoa, Clutha, lower Waitaki and upper Buller Rivers. All these river catchments are at least part-fed by lakes and so flows tend to be relatively stable and the substrate becomes very embedded. In two cases – the lower Waitaki and the Clutha – flows are also regulated by
Special tribunal report on a water conservation order application for the Oreti River 39
hydro-electric power schemes and so floods occur much less frequently than they would if these rivers were unmodified.
238. Fortuitously the upper Oreti does not have a stable bed. Rather it is the opposite – the bed comprises largely cobbles that would move easily during freshes and floods. Mr Jarvie told us that didymo did form extensive cover in a number of reaches of the upper Oreti during extended periods of stable low flows in 2005 and 2006. However, in January 2007 the riverbed was largely devoid of didymo (at least at levels discernable to the naked eye) due to a series of minor to medium flood events that occurred between August and November 2006. For instance at Centre Hill in the upper catchment, visual assessments of didymo showed that it decreased from covering 60–70% of the bed in winter 2006 to covering less than 1% in January 2007. Similarly, the thickness of the mats decreased from 6–8.5 mm to less than 1 mm.
239. In the much more stable Mararoa River (where flows are buffered by the influence of the Mavora lakes), 100% cover was measured at the monitoring site in winter 2006, and 86% coverage in January 2007, at which time the thickness of the infestation was estimated to be 18.5 mm.
240. After invasion it appears that the diatom will always remain in its microscopic presence, so there is always potential for further rapid growth. However, Mr Jarvie said that even following floods in the Mararoa River strips of didymo have remained intact against bank margins, which allows rapid recolonisation. In contrast, in the Oreti River remaining didymo only occurs as very small remnants, and so recolonisation is much slower.
241. We did hear that Weydon Burn, which in its lower reaches has a meandering channel and a relatively stable bed, has recorded significant biomasses of didymo.
242. Dr Hayes told us about provisional studies carried out in April 2006 by the Cawthron Institute, for Biosecurity New Zealand, on the impacts of didymo at two sites in the Oreti River and one in the Mararoa River. Didymo was rare to absent in the upper Oreti, present at moderate biomass in the lower Oreti and present at moderate to high biomass at the Mararoa site.
243. The studies focused on invertebrate drift, which is an indicator of the density of invertebrates in a reach of river. Invertebrates such as mayflies and stoneflies are a primary source of trout food, and so their density in the drift is an indicator of food availability. Other important trout food sources include young fish, terrestrial invertebrates blown on to the surface of the water and, on occasions, mice.
244. The results – albeit from only one limited study – did not support the hypothesis that didymo alters drift sufficiently to have negative impacts on trout growth. Indeed moderate infestations did increase invertebrate densities in drift, although insects were on average smaller. However, Dr Hayes did consider that trout would find it difficult to feed directly on invertebrates in reaches of river heavily infested by didymo.
245. NIWA have been undertaking work on possible chemical controls to reduce levels of didymo infestation. Some of these have shown good potential for
40 Special tribunal report on a water conservation order application for the Oreti River
control in trial situations. However, given that the colonising forms of the diatom are microscopic, and given the already very wide (and increasing) range of infestation, we think it very unlikely that didymo can be eradicated from New Zealand, at least using current methods and technology. In our view it is now, regrettably, a feature of rivers such as the Oreti River for the foreseeable future.
246. We have reached the following conclusions about the potential effects of didymo on the outstanding brown trout fishery of the upper Oreti:
• In the foreseeable future didymo will always be present in the Oreti catchment.
• Infestations are likely to be on average relatively light and generally of short duration in the upper river due to the unstable and mobile nature of the cobble-dominated river bed, which is readily mobile during freshes and floods. The greatest infestations will occur during periods of stable low flows.
• More stable tributaries, such as Weydon Burn, are likely to become more heavily infested at times, with potential adverse effects upon fishery values.
• In the upper river infestations appear unlikely to have significant or lasting adverse effects on trout habitat, growth or abundance. Infestations may, however, have temporary, potentially adverse effects on recreational angling values following periods of stable flows.
247. In summary, we strongly believe that the outstanding brown trout habitat and associated outstanding angling amenity of the upper Oreti will not be affected by didymo to the extent where they could no longer be considered as outstanding. Its presence in the river is no reason not to make a water conservation order for the Oreti.
248. We also suggest that the regrettably rapid spread of didymo throughout the South Island, and we think inevitably the North Island also, means that rivers such as the Oreti will become relatively more important in future. This is because many rivers with more stable flow regimes and embedded substrates will become more strongly affected by the diatom species. By way of example we note that didymo has recently been recorded in the Hurunui River in Canterbury. This is another highly valued headwater trout fishery, but as it is primarily lake fed and has a relatively stable bed, it seems likely that those values will be substantially eroded by the presence of didymo. In other words, we think the widespread incursions of didymo in our rivers will in future make the Oreti relatively more outstanding in a national context, than it would be without the diatom being so “successful” in many otherwise pristine or high-value environments.
Special tribunal report on a water conservation order application for the Oreti River 41
5.3.4 Conclusions re the Brown Trout Fishery
249. We have drawn three main conclusions about the brown trout fishery of the Oreti River and its headwater tributaries:
• The river, along its length but particularly in its upper reaches, provides outstanding habitat for brown trout. We draw this conclusion because of both the very large average size, and the high densities of brown trout in the upper river. The essential elements of protecting this outstanding habitat include maintaining existing high water quality, maintaining flow characteristics including shallow groundwater inputs, maintaining the cobble-based bed of the river and maintaining fish passage throughout the river (as it is evident that migration through the river system helps sustain the headwater fishery).
• The upper river provides outstanding angling amenity. This amenity is provided primarily by the presence of large numbers of large brown trout, with the very high water clarity allowing individual fish to be “spotted” and fished to. The amenity values present also include the relative isolation and scenic values of the upper catchment, and the limited amount of modification of the landscape that has taken place there.
• The outstanding brown trout habitat of the river is unlikely to be significantly affected by the presence of didymo in the river. Angling amenity may be somewhat affected, albeit for only generally short periods. The comparative value of the river may increase given the adverse affects of didymo on many other highly valued trout fishing rivers in the South Island.
5.4 Wildlife Values
250. The applicant presented relatively little evidence on the native wildlife values of the Oreti River. We heard evidence from Ms McLellan regarding black- billed gulls and from Dr Jellyman regarding native fish (which we have already discussed). This evidence was supplemented to some extent with evidence from Ms Maturin and Mr Esler for Forest and Bird.
251. We were disappointed that the Department of Conservation, who in a letter included as part of the application had indicated their support for a water conservation order, did not submit on the application. We did, however, write to the department on 9 March 2007 seeking more information on the wildlife values of the Oreti River. A helpful response was received on 28 March, and was made available to all interested parties at the hearing.
252. There are some significant populations of native species, some of which are endangered, living and breeding on and in the Oreti River. The variability of these populations in both space and time makes it difficult to judge whether
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the presence of these populations gives the Oreti River outstanding characteristics as habitat for terrestrial or aquatic organisms, which is the relevant criterion under s199(2).
253. The species for which most evidence was led was the endemic black-billed gull (Larus bulleri) which is listed as a threatened species in serious decline in the New Zealand threat classification system. The evidence presented to us is that currently there are about 80,000–100,000 breeding black-billed gulls nationally, and that the numbers of these gulls have dropped significantly over the last 20–30 years. It is estimated that 70–80% of these birds breed in Southland, with the greatest numbers being recorded from the Aparima and Oreti Rivers. Numbers of birds and colonies on each river vary substantially from year to year. On the Oreti River, colonies are found along much of its length apart from the lowest reaches and the upper headwaters.
254. Clearly, the Oreti River (along with the Aparima River) provides critical habitat for the threatened endemic black-billed gull. Regardless of all the variability of numbers over time, the river bed contains some of the largest breeding colonies nationally and a very sizeable proportion of the breeding population nationally, quite possibly more than 30% in some years. Significantly, some of the Oreti breeding sites are not only large but relatively secure from threats, a most important characteristic for a declining national population.
255. We accept the submission of Ms Baker that case law supports the assertion that at least some parts of the Oreti River provide outstanding wildlife habitat. In particular the 5% “threshold” of the national population of an endangered species suggested by the Environment Court in its findings on the Rangitata water conservation order, is far exceeded in the case of the black-billed gull population in the Oreti.
256. Ms McLellan told us that over the last 30 years, colonies of black-billed gulls have been recorded on the river between about 15 km of the mouth to close to the confluence of the Windley River. The colonies known to Ms McLellan from the last ten years’ observations were mostly located between Centre Bush (about 40 kilometers inland) and Mossburn, with one “outlier” at Coal Hill (about 130 kilometers inland). However, neither the applicant nor supporting submitters established exactly how important the river upstream from Mossburn was for black-billed gull habitat.
257. The significance of the Oreti River for other native birds is more difficult to establish. The black-fronted tern is a nationally endangered species for which the Oreti appears to offer significant habitat, judged by Mr Esler’s estimate of “several hundred birds” seen nesting by him, and some survey information from the 1990s cited by Ms Maturin. However, there is not enough specific information to support Ms Maturin’s assertion that “it is possible that the Oreti still provides habitat for a significant proportion of the Southland population of black-fronted tern, and possibly the New Zealand population”, to the extent of our agreeing that the Oreti is nationally outstanding habitat for black-fronted tern.
258. It is very likely that the Oreti River provides good habitat for populations of several other native birds, some of them endangered, but again there is not
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enough information to show that the Oreti provides nationally outstanding habitat for these species.
259. We have concluded that the Oreti River provides outstanding habitat for black-billed gulls, at least in the section downstream of Rocky Point. The outstanding habitat may extend further upstream than Rocky Point, but there was insufficient evidence to determine this.
260. We note also that, as discussed in the section of native fisheries above, many of the species identified in the evidence of Forest and Bird are identified in Schedule 97 of the Ngāi Tahu Claims Settlement Act as taonga species – in other words the species are culturally significant and valued by Ngāi Tahu.
5.5 Values in Accordance with Tikanga Māori
261. We heard evidence from Mr Skerrett and Mrs Loose on the value of the river to tangata whenua. This put into context how the natural characteristics and outstanding values of the river, as discussed above, complement Māori perspectives.
262. Mr Skerrett explained that Ngāi Tahu has a long association and involvement with the Oreti catchment and it remains culturally significant. The Crown recognised this significance in the Ngāi Tahu Claims Settlement Act 1998. Schedule 50 of the Act is the Statutory Acknowledgement for the Oreti River.
263. In describing the significance of the Oreti River to Ngāi Tahu, Mr Skerrett explained the importance of the entire catchment and the waters of the Oreti from its source to the coast before emphasising the importance of the upper parts of the catchment.
264. Continuity from the mountains to the sea (ki uta ki tai) is essential for ensuring the well-being of a waterway. This is particularly important because, as Mrs Loose explained, Ngāi Tahu conceptualisations recognise that water is the provider and sustainer of life, and the condition of waterways reflects the health of Papatūānuku (Earth Mother) and consequently the health of the ecosystems.
265. We note that in terms of significance it is difficult and not really possible to undertake a comparative analysis examining the relative significance of the Oreti with other rivers. While it is generally agreed that the Waitaki, as the ancestral river of Ngāi Tahu, is paramount to them, concepts of national and regional significance are difficult to apply to cultural settings where significance is accorded by the respective whānau, hapū and rūnanga. With respect to this application for a water conservation order, it is important to note that Mr Skerrett presented on behalf of all four papatipu rūnanga in Murihiku and was supported in his submissions by Te Rūnanga o Ngāi Tahu, the iwi authority for Ngāi Tahu as recognised in the Te Rūnanga o Ngāi Tahu Act 1996. Mrs Loose, as a member of Ngäi Tahu Whanui, presented similar evidence.
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266. Mr Skerrrett emphasised that protection of the mauri of a resource is the fundamental management principle for Ngāi Tahu. The presence of taonga species (both fish and wildlife), the relatively unmodified upper catchment, evidence of past occupation in the form of archaeological sites and remains, the continuity of flow in the waterway from its source to coast, and high water quality are factors that enable us to conclude that the mauri of the Oreti River, especially in the upper catchment, is robust and vibrant. We note that, at least in part, all of these factors are able to be protected by the provisions of a water conservation order. While each of these factors when considered individually may fail to pass the test of being outstanding, collectively they represent grounds for our deciding that the main stem of the Oreti is outstanding for values in accordance with tikanga Māori.
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6 Part 2 of the Act
267. We next evaluated the provisions of Part 2 of the Act, which are its Purpose and Principles. As already noted s199(1) uses the words “notwithstanding any to the contrary in Part 2, the purpose of a water conservation order …” and that in the Rangitata case, the Court held that these qualifying words “make it clear that not all of Part II is to be ignored, but only those aspects of Part II that are contrary to the purpose stated in section 199”.
268. Section 5 of the Act outlines its purpose, which is to promote the sustainable management of natural and physical resources. Sustainable management is then defined as managing the use, development or protection of natural and physical resources in a way, or at a rate, which enables people and communities to provide for their economic, social and cultural wellbeing, and their health and safety, while:
(a) Sustaining the potential of natural and physical resources to meet the reasonably foreseeable needs of future generations; and
(b) Safeguarding the life-supporting capacity of air, water, soil and ecosystems; and
(c) Avoiding, remedying or mitigating any adverse effects of activities on the environment.
269. A water conservation order is obviously focused more on protection than use and development. The order we have recommended, however, will not strongly constrain use and development, apart from preventing damming the river for power generation.
270. The order we recommend will clearly safeguard the life-supporting capacity of the Oreti River, and help avoid or mitigate adverse effects.
271. Section 6 lists seven matters of national importance that must be provided for, all of which are broadly aimed towards the protection of conservation, cultural or historic values. Certainly none of these provisions are contrary to the purpose of a water conservation order as outlined in s199(1).
272. The order we recommend will help protect significant habitat of indigenous native fish, including the long-finned eel and giant kokopu which are considered nationally to be “in decline”. To accommodate bicultural understandings in the meaning and interpretation of Part 2, and s6 in particular, it necessary to recognise that Ngāi Tahu cultural beliefs make no such separation between the natural world and the place of humans within it. Key factors for assessing “natural character” revolve around the health and robustness of mauri, while determining a landscape or habitat as outstanding and significant depends upon the value and importance of those landscapes and habitats to manawhenua. As previously explained we believe that Ngāi Tahu have presented an argument to recognise and provide for the relationship of Māori and their culture and traditions with their ancestral
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lands, waters, sites, wāhi tapu and other taonga by way of a water conservation order.
273. Section 7 lists 11 matters to which particular regard must be had to.
274. Ngāi Tahu in their submission and evidence presented an argument that suggests that the three subclauses 7(a), 7(c) and 7(d) are directly relevant to the protection of their cultural values and use interests in the Oreti River. Further, in presenting their evidence to the Tribunal, and supporting a water conservation order, Ngāi Tahu were exercising their responsibilities (their kaitiakitanga) to respect and protect the Oreti catchment as a resource for enjoyment by future generations.
275. The draft order we recommend will help enhance amenity values and maintain the quality of the environment. It will certainly protect the habitat of trout in the Oreti River, and provide for the intrinsic values of the ecosystems that it supports. We consider the finite characteristics of the water resource of the river are appropriately managed through the provisions of the Water Plan.
276. The draft order will prevent the development of the river for renewable energy generated from hydro power, but we believe that is not a practical option. No submitter put forward any possible proposals for power generation on the Oreti River. We think power generation from the river is highly unlikely for several reasons, including the shape of the Oreti valley and the relatively low flows carried by the river, as well as economic factors such as the abundance of other hydro power (and potential wind power) in Southland and the distance from major markets.
277. The draft order will not affect possible further wind generation projects in Southland, such as that recently commissioned by Meridian Energy at White Hills near Mossburn.
278. We heard no evidence nor received any submissions that the making of a water conservation order on the Oreti River would be contrary to the Principles of the Treaty of Waitangi. We believe that we have exercised our duty to “take into account” the Principles of the Treaty by weighing the material presented by Ngāi Tahu alongside the material presented by others, and according it due consideration within the constraints set by the sections of the Act specific to water conservation orders.
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7 Section 207 of the Act
279. We have previously reviewed the context of Section 207. It states that in terms of matters we must consider we must have particular regard to the purpose of a water conservation order and the (other) matters set out under s199, and that we also must have regard to:
(a) The application and all submissions; and (b) The needs of primary and secondary industry, and of the community; and (c) The relevant provisions of every national policy statement, New Zealand coastal policy statement, regional policy statement, regional plan, district plan and any proposed plan.
7.1 The Application and Submissions
280. We have already discussed the application, both in its original form and as amended. We have summarised the evidence presented to us by submitters at the two hearings, and in Section 3.4 above we have discussed the other submissions.
7.2 The Needs of Primary and Secondary Industry and the Community
281. We considered a number of needs in this part of our evaluation. These included community water supplies, gravel extraction, river protection and erosion control, existing and future use of the Oreti River water resource for irrigation and possible power development. We have discussed the latter above when reviewing the provisions of Part 2 of the Act.
282. As we have already said in this regard, we agreed with Ms Baker that what we must weigh are “needs, and not merely hopes or aspirations for the future, or principled opposition to a statutory instrument that will not in reality affect the reasonable needs of primary or secondary industry or of the community.”
283. In its lower reaches, the Oreti River provides water for community supply in Invercargill; communities such as Lumsden and Winton rely on groundwater, which has some hydraulic linkage to the river, for their domestic supplies. None of these community water supplies will be affected in any way by the order we have drafted.
284. Significant amounts of gravel are taken from the river, consistent with river management purposes. We heard favourable comment about a recent
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agreement between the operations arm of Environment Southland and gravel extractors. The operations of those extractors will not be affected by the draft order as the conditions that they work under now mean the effects of taking gravel upon water resources are minimised.
285. Downstream of about Lumsden stopbanks on both sides of the river protect communities and highly productive farmland from flooding. More minor works are undertaken upstream to prevent the river eroding, and to protect community assets such as bridges. The future maintenance or enhancement of any of these works upstream of Rocky Point has the potential to be affected by the order we have drafted, so we have made specific provision for such works as necessary upstream of Rocky Point.
286. In relation to primary industry, we heard from several landowners alongside the river, from Federated Farmers, and from a group of water users who have resource consents to take groundwater. Only one of that latter users group takes groundwater that is hydraulically linked to the river, and that take is downstream of Mossburn. Concerns were raised by this group about any provision to provide for fish passage through the river. We think, however, that this is an essential part of the order and will be protected in any case by the Mean Annual Low Flow (MALF) “default” flow regime in the Water Plan. We certainly do not think this provision will affect the possibility of the one user who takes hydraulically connected groundwater from the river, of having their consent “renewed”.
287. No party convincingly foreshadowed to us any significant development opportunities for the water resources of the Oreti River. Demand for irrigation water is not high in Southland, and nor does it appear likely to increase significantly in the Oreti catchment in at least the foreseeable future. Put simply, no such “need” was demonstrated to us by any party.
288. Regardless, the minimum flow provisions provided for in the Mataura Water Conservation Order have caused administrative difficulties for the regional council which have had to be resolved in the Environment Court. The wording of that order has also caused associated practical difficulties for landowners seeking consents for irrigation to support development in the middle and upper reaches of that catchment. As already noted, however, we have not recommended that any minimum flow regime be set for the river, and so these practical difficulties will not occur, at least in the context of the water conservation order, on the Oreti River. Rather, the applicant is satisfied by relying on the minimum flow provisions in the Water Plan, which we discuss in more detail in the next section.
289. Similarly no significant concerns were raised about protecting existing water quality. There are no point-source discharges in the catchment above Rocky Point at this time, nor were any foreshadowed to us. Regardless, the order we have recommended allows point source discharges to the river provided they do not have adverse effects after reasonable mixing.
290. The main concerns we heard revolved around providing for existing opportunities, and allowing activities such as soil conservation, occasional river control works and the maintenance of bridges to be able to continue.
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These are all provided for in the draft order, as are the needs of stock and domestic supplies.
291. We have concluded that there are no needs of primary or secondary industry or the community that weigh against the making of a water conservation order on the Oreti River.
7.3 Statutory Planning Matters
292. There are no National Policy Statements that cover the management of the Oreti River, and the provisions of the New Zealand Coastal Policy Statement are not applicable.
293. Ms Taylor, one of the witnesses for the applicant, outlined what she considered to be the relevant provisions of the Regional Policy Statement for Southland, which became operative in December 1997. None of the objectives or policies she listed weighs against the making of a water conservation order on the Oreti River. Rather it could be argued that some support, at least in general terms, the protection of the waters of the Oreti. An example is Policy 4.8, which is “to support water conservation orders where these will assist in achieving the objectives and policies of this regional policy statement.”
294. The provisions of the Proposed Regional Fresh Water Plan, as amended by decisions on submissions, are open to several appeals including one from Fish and Game. We discuss this below.
295. The parts of the Water Plan particularly relevant to this discussion are those in Variation 2 (groundwater), Variation 3 (water quantity) and Variation 4 (water quality).
296. Takes of groundwater with a direct or high hydraulic connection with surface water resources are managed as part of a river’s flow. While the original application made by Fish and Game sought to restrict takes of hydraulically connected groundwater, the amended application presented to us in April did not do so. We understand that this is because the applicant was satisfied that those provisions in the amended plan adequately protected surface water resources from takes of hydraulically connected groundwater.
297. The flow provisions provided in Variation 3 of the Water Plan set a default minimum flow of MALF. If takes in a catchment total more than 10% of MALF, the flow provisions require more detailed habitat analysis to support further applications to take water. As we think those provisions appropriately protect the flow regime of the Oreti River, we have decided that there is no need for a minimum flow in the order (noting that there are also strong process reasons not to make a minimum flow in the draft order).
298. We also discuss the water quality provisions in the Plan below. Suffice to say here that we are satisfied that in the upper Oreti, to protect outstanding
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characteristics, no discharge should be allowed that reduces water quality beyond the zone of reasonable mixing.
299. The Water Plan makes any damming of the main stem of the Oreti River a non-complying activity. However, the “policy hurdles” one would have to pass in order to be granted an application to dam the river are so high as to be, for all practical purposes, impassable. The draft order effectively prohibits such damming as we think this is necessary to protect the outstanding brown trout habitat and outstanding angling amenity provided by the river.
300. In summary, there is nothing in the Proposed Regional Fresh Water Plan that weighs against the making of a water conservation order on the Oreti River.
301. A strong concern expressed to us by submitters was that given the provisions of the Water Plan, and the protection that plan offers the Oreti River, making an order was unnecessary. We had considerable sympathy with this view.
302. Environment Southland and many other submitters contrasted the strong and robust consultation process engaged in by the regional council in preparing the Water Plan and its variations with the very limited consultation undertaken by Fish and Game about the water conservation order application.
303. A number of submitters who opposed the application, such as Federated Farmers and the Oreti River Liaison Group, expressed frustration or dismay that having worked so long on the Water Plan, they now find agreements reached during that process potentially subsumed by a possible water conservation order. This was particularly so in the present circumstances where the Water Plan process, and associated community engagement undertaken by Environment Southland was praised and there was strong support voiced for the outcomes reached.
304. We certainly understand that frustration. However, the application made by Fish and Game for a water conservation order is entirely consistent with all the legal requirements set out in Part 9 of the Act. The applicant is not required to undertake extensive consultation.15
305. Strong concerns were also expressed about the inflexibility of water conservation order procedures versus regional plans. This was highlighted by Judge Jackson of the Environment Court in the Rangitata case where he called water conservation orders “a crude and very expensive tool in an otherwise relatively sophisticated toolbox”. Again we have sympathy for the concerns expressed by submitters about the inflexibility of water conservation orders.
15 We think that this is a failing in Part 9 that should be remedied. Applicants for water conservation orders should, in our view, have to undertake more extensive consultation and assess alternatives. Arguably an inquiry such as ours fills that gap, but it does so in a more adversarial “winners and losers” context. In this regard also, the regional planning and water conservation order processes are out of step.
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306. We have thought carefully about these matters, and have come to two main conclusions:
• Although the Water Plan does offer a significant level of protection for the water resources of the Oreti River, we must have particular regard to the purpose of water conservation orders and only regard to the provisions of the regional plan. In other words, a water conservation order is a superior legal instrument, and no matter how much a regional plan protects a water resource, if there is a case for an order to be made it takes precedence.
• As water conservation orders are quite inflexible and difficult to change compared with a regional plan (which itself is very time-consuming to change) the order should be drafted in terms that allows some flexibility beyond what is essential to protect the outstanding values of the Oreti River. We consider the order we have recommended, which is very much along the lines “agreed” by Fish and Game and Environment Southland, retains that flexibility where appropriate.
307. Accordingly the draft order only goes further than the regional plan in three ways. First, the draft order prohibits damming of the upper river. Second, it allows no exemptions to the provision that any discharge should not affect water quality after reasonable mixing. Third, the draft order requires fish passage be provided for throughout the river.
308. We do not think that these provisions will make any effective difference to the current day-to-day management of the river, and probably little difference to its long-term management. But they will, when considered alongside the flow related provisions of the plan, sustain the outstanding characteristics of the river. And that is what the purpose of water conservation orders is.
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8 Protection of Outstanding Features and Characteristics
309. Having decided that the Oreti River provides outstanding habitat for brown trout along with outstanding angling amenity, outstanding habitat for black- billed gulls, and values in accordance with tikanga Māori; and having considered the matters in Part 2 and s207, we next had to decide how those values can appropriately be protected through the provisions of a water conservation order.
310. The original application sought protection of the brown trout fishery through four main measures. These were a prohibition on damming, restrictions on any alteration of river flow, a requirement to maintain fish passage, and restrictions on the alteration of water quality. We are now not being asked to make any determinations in relation to some of these matters, but we do consider that the original application was drafted in a cumbersome, and we think rather impractical, way.
311. At the April hearing Ms Jones presented us with an amended application that had previously been discussed with Environment Southland. The amended application contained three main elements – a restriction on damming, a requirement to maintain fish passage and restrictions on the alteration of water quality. The latter provision was drafted in much more simple terms than the original application, and no restrictions were sought on flows or on the water that can be allocated from the river.
312. It is this amended application that the submitters who opposed the application commented on. One – Ms Young on behalf of Federated Farmers – went as far as to strike out previously prepared evidence relating to flows.
313. The main reason an amended application was provided to us in April was because in late March Environment Southland had released their decisions on submissions to the Proposed Regional Fresh Water Plan. Ms Jones told us that this had meant that the application could be simplified, as the applicant could rely on the provisions of the Plan to cover some of the matters included in the original application. Mr Slowley said that although Environment Southland still opposed the application, the agreement reached with Fish and Game meant that they would not lead technical evidence against the application.
314. Following the second stage of the hearing, but prior to the right of reply, Fish and Game lodged an appeal against some of the provisions of the plan as they relate to the Oreti catchment. Part of that appeal read:
“Fish and Game have applied for a Water Conservation Order on the Oreti. If the Order is granted on the terms sought by Fish and Game, there will be no need for the majority of this Appeal, particularly in respect of water quality
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and damming provisions relating to the Oreti. If the Order is gazetted on terms satisfactory to Fish and Game, there will be no need to pursue this Appeal as it relates to the Oreti. However, in case the Water Conservation Order is not granted, Fish and Game must pursue similar relief through the Plan process.”
315. All but one of the appeal points raised by Fish and Game are addressed by the Order that we have drafted. That outstanding appeal point is “insert a new rule that makes water takes that breach the minimum flow as calculated by Appendix I a prohibited activity.”
8.1 Protection of Minimum Flow
316. At the right of reply, Ms Baker inferred to us that we should consider making a minimum flow on the Oreti River consistent with Appendix I in the Water Plan which sets out methods for determining minimum flows and levels. This appendix sets a “default” minimum flow of MALF which applies if the total quantity of water allocated is less than 10% of MALF (which is currently the case in the Oreti). However, in the Water Plan, this provision can be changed if detailed studies, such as through habitat analysis, show that another minimum flow will protect specified in-stream values. In a river the size of the Oreti, those specified values include trout spawning and rearing, and the habitat of large adult trout. On the other hand, if this provision were applied in the order, there would not be the same flexibility.
317. We heard no substantive evidence on what flows are necessary to protect trout habitat in the upper Oreti. Environment Southland, however, commissioned expert studies in setting a default minimum flow of MALF in rivers such as the Oreti.
318. More importantly, submitters who opposed the application did not comment specifically on flow regimes at the April hearing. This is because the amended application made no mention of minimum flows. Those submitters were speaking to the amended application, not to the original application.
319. We think for both evidential and process reasons there are no grounds for including minimum flow provisions in the draft order. In our view it was regrettable that the applicant, having amended the application to take out any provisions relating to flows, inferred at the right of reply that we should subsequently include them in the draft order.
320. The position taken at the applicant’s right of reply also somewhat contradicts what Ms Baker said in her opening submissions. It was claimed that the order sought to provide a “win/win” outcome with the values of the river protected while “at the same time a major portion of the Oreti’s natural flow will continue to be available for agriculture through the resource consent process in accordance with the water plan”.
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8.2 A Prohibition on Damming and Maintenance of Fish Passage
321. There was reasonably compelling evidence provided to us that brown trout in the Oreti migrate long distances, and so unimpeded passage along the river is critical for maintaining the fishery.
322. There were two streams to this evidence. Dr Hayes analysed trout energetics, and concluded that headwater trout could not grow to the size that they do in the relatively cool waters there. Accordingly he considered that most large trout in the upper river must spend some time feeding on fish and other food sources in the lower river or its estuary. Similarly Mr Olley and Dr Bickel found from their otolith studies that trout present in the headwaters of the river had migrated long distances.
323. We accept the evidence of these experts, which was not contested by any other party. Accordingly we have decided that passage for brown trout along the length of the river system is a vital component of maintaining the outstanding brown trout fishery in the headwaters.
324. We also note the value Ngāi Tahu accord continuity from the mountains to the sea, consistent with their conceptualisation of Ki uta ki tai, which they contend is vital to ensuring the wellbeing of the Oreti River.
325. In the amended application, the applicant sought two means of protecting fish passage. The first is a clause seeking fish passage be maintained along the length of the Oreti River, and in Weydon Burn, the Windley River and other headwater tributaries.
326. The second provision sought, is a prohibition on any damming of the main stem of the Oreti River or specified tributaries upstream of Rocky Point. Such damming is presently a non-complying activity under the Water Plan. As we have already discussed, in practical terms any proposal for a permanent dam is highly unlikely – the river valley is too wide and the flows in the river are too low to make such a proposal economically viable, at least in the foreseeable future.
327. Both these provisions were part of the “agreement” reached between Environment Southland and Fish and Game in April, and were included in the amended application commented on submitters at the April hearing.
328. In order to protect the outstanding characteristics we have identified, we consider that the water conservation order should prohibit damming of the upper Oreti and specified tributaries, and should ensure fish passage be maintained along the river and its headwater tributaries. This is what we have recommended. In combination these two provisions will ensure that brown trout (and migratory native species) continue to have unimpeded access along the length of the river, and in itself this will make a major contribution to the maintenance of the outstanding brown trout fishery of the Oreti River.
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329. We note here that structures such as stopbanks are, in legal terms, dams. The requirements preventing damming and maintaining fish passage will not prevent consents being sought or granted for such structures, nor will it prevent consents being granted for temporary structures such as coffer dams in the bed of the river to divert flows while construction or maintenance activities are being carried out. This is made clear in the exemptions to the ambit of the draft order that we outline below.
330. The prohibition on damming and the requirement to maintain fish passage will also have some limited benefit for the outstanding black-billed gull habitat provided by the Oreti River. However, the management of the water resource of the river, whether it be through the auspices of the water conservation order and/or via the Water Plan, cannot alone provide for the protection of that habitat.
331. Ms McClellan listed in her evidence the main threats to black-billed colonies on the river. The three most important were weed encroachment (such as broom and lupins) on to river bed gravels reducing habitat availability, predation by introduced mammals and floods wiping out breeding colonies. Other threats included disturbance (such as by gravel extractors, four-wheel drive vehicles or motorbikes, people and dogs), river modification works and water abstraction for irrigation reducing potential food availability. We consider the same threats would have potential to affect other breeding river bed birds found on the Oreti river bed, such as black-fronted terns.
332. Of these threats the amended order sought by the applicant will only help prevent weed encroachment on to the riverbed by ensuring no damming occurs and so floods pass unimpeded down the river. The provisions of the Water Plan will protect flows, and so help provide for the “moat effect” which can limit predation and help protect in-stream food availability. However, any continuing success of breeding black-billed colonies on rivers such as the Oreti will require much more than this, and these are matters we have no control over.
8.3 Maintenance of Water Quality
333. The original application sought the inclusion of some very prescriptive water quality standards in the upper river. These were subsequently taken out of the amended application put to us, after discussions between Fish and Game and Environment Southland on 13 April.
334. The amended provision sought by the applicant was that in the main stem of the Oreti River upstream of Rocky Point no discharge permit be granted, nor rule made in a regional plan that will result in a reduction of water quality beyond the zone of reasonable mixing.
335. This differs subtly from the present provision in the Water Plan, which does not allow a discharge permit to be granted that will result in a reduction of water quality beyond the zone of reasonable mixing unless it is consistent with the purpose of the Act to do so. We note here that the ambit of the
56 Special tribunal report on a water conservation order application for the Oreti River
exception is not very clear, and that it would have to be applied on a case-by- case basis.
336. There are presently no consented discharges to water in the upper catchment. Given the extensive nature of the farming undertaken, it seems rather improbable that discharge permits will be sought in the foreseeable future.
337. The very high water quality of the upper Oreti, and particularly its very high clarity, contribute strongly to the outstanding angling amenity. Individual fish can be spotted and fished to, and this is a major part of the challenge of fishing the river for skilled anglers.
338. The high water quality is also highly valued by Ngāi Tahu and is seen as a vital contributor to protecting the mauri of the Oreti River.
339. We think protecting the existing water quality in the upper catchment from the effects of point source discharges is an important component of protecting the outstanding brown trout habitat and angling amenity of the upper Oreti. It will also help protect the values of the river for Ngāi Tahu. Accordingly, we have included the provision sought by the applicant in the draft order.
340. We did think about limiting the scope of the protection of water quality in the upper catchment by using numerical standards for parameters such as water clarity and colour that are most important to the maintenance of outstanding features. This would, however, have added complexity to the draft order for what we think would be very little tangible benefit to any possible resource user.
341. We think it important to note here that this provision will not protect existing water quality in the upper river from the effects of any non-point source discharges. Clearly, however, existing land use in the upper catchment is compatible with existing high water quality. It seems that for the foreseeable future land use in the upper catchment will remain extensive.
342. We can not, however, predict a long time forward. Factors such as farm economics, change of ownership and climate change could conceivably change the nature of land use in the upper catchment. If this occurs, such land use may be less compatible with the maintenance of high water quality in the river. A water conservation order cannot make provisions to control land use, however, so any such controls would be the responsibility of local authorities and will have to go through robust consultative procedures.
Special tribunal report on a water conservation order application for the Oreti River 57
8.4 Scope of the Order and Exemptions
343. A water conservation order in a catchment like the Oreti must provide for certain activities and make exemptions for possible future activities. These activities include:
• the taking of water for domestic or stock use and for fire-fighting;
• research into fisheries or wildlife;
• the use of measures to control organisms such as didymo;
• the maintenance of roads, bridges and other infrastructure;
• soil conservation and river protection works (such as the construction and maintenance of stopbanks where necessary);
• protection of human or animal health.
344. All these matters are provided for in the order we have recommended. We have also recommended exemptions be provided for other unforeseen activities associated with matters such as temporary works or construction or maintenance. The exemptions are consistent with the provisions of s107(2) of the Act.
345. Such provisions are “standard practice” in water conservation orders made over reaches of river not in their natural state. Transit NZ was satisfied that the wording of these provisions in the order would allow them to undertake necessary construction and maintenance works.
346. We consider such provisions are essential if the water conservation order is to be managed effectively and pragmatically.
Dated this 28th day of November 2007
Dr Brent Cowie CHAIR OF THE SPECIAL TRIBUNAL
58 Special tribunal report on a water conservation order application for the Oreti River
Water Conservation (Oreti River) Order 2007
1 Title
This order is the Water Conservation (Oreti River) Order 2007.
This order comes into force on the of after the date of its notification in the Gazette.
2 Interpretation
In this order, unless the context otherwise requires:
“Act” means the Resource Management Act (1991).
“Damming” means the impounding of all or part of the natural flow of any water that may involve an associated temporary or permanent structure.
“River” means the main stem of those waters identified in the Schedules to this order. The main stem shall be the river with that name on NZMS260 series topographical maps between specified lower and upper river limits as defined by map references in schedules to this order.
“Tributaries” means all the tributaries of rivers or sections of the rivers identified in schedules to this order.
3 Outstanding Characteristics
The waters specified in Schedule 1 and 2 include or contribute to, to the extent identified in Schedule 2, the following outstanding characteristics, features and values:
(a) habitat for brown trout; (b) angling amenity; (c) habitat for back-billed gulls; and (d) significance in accordance with tikanga Māori.
Special tribunal report on a water conservation order application for the Oreti River 59
4 Waters to be Protected
Because of the outstanding characteristics, features and values identified in clause 3, the waters specified in Schedule 1 are to be protected in accordance with the relevant conditions in clauses 6–8 as specified in Schedule 1.
5 Waters to be Protected as Contributing to Outstanding Features
Because of their contribution to outstanding characteristics and features identified in clause 3, the waters specified in Schedule 2 are to be protected in accordance with Clauses 6–8 to the extent specified in those clauses and in Schedule 2.
6 Restriction of Damming of Waters
Subject to Clauses 9 and 10, no water permit may be granted or rule included in a Regional Plan authorising the damming of waters specified in Schedule 1 item 1.
7 Requirement to Maintain Fish Passage
Subject to Clauses 9 and 10 no water permit may be granted or rule included in the Regional Plan relating to the waters identified in Schedule 1 and item 1 of Schedule 2 authorising an activity that will adversely affect the passage of fish.
8 Restriction on the Alteration of Water Quality
Subject to Clauses 9 and 10 no discharge permit may be granted or rule included in a Regional Plan authorising a discharge into any of the waters identified in item 1 of Schedule 1 that will result in a reduction of water quality beyond the zone of reasonable mixing.
9 Scope of Order
(1) This order does not limit section 14(3)(b) and (e) of the Act relating to the use of water for domestic needs, for the needs of animals, and for, or in connection with, fire-fighting purposes.
(2) This order does not restrict or prevent the grant of resource consents for the purpose of:
(a) research into, and protection or enhancement of, fisheries and wildlife habitats; or
60 Special tribunal report on a water conservation order application for the Oreti River
(b) the construction, removal, maintenance or protection of any road, ford or bridge, or the maintenance or protection of any network utility (as defined in section 166 of the Act); or (c) the construction and maintenance of soil conservation and river protection works undertaken pursuant to the Soil Conservation and Rivers Control Act 1941; or (d) the protection of human or animal health.
10 Exemptions
Nothing in this order prevents the grant of a discharge or water permit that would otherwise contravene conditions set out in clauses 6, 7 and 8 if:
(a) a consent authority is satisfied that –
(i) there are exceptional circumstances justifying the grant of a permit; or (ii) the permit is for an activity that is of a temporary nature; or (iii) the permit is for an activity that is associated with necessary construction and maintenance work; and
(b) the exercise of any such resource consent would not compromise the protection of the outstanding characteristics and features identified for the waters specified in the schedules.
Special tribunal report on a water conservation order application for the Oreti River 61
Schedule 1 – Protected waters with outstanding characteristics
Item Waters Outstanding Characteristics or Conditions to Apply Features
1 Oreti River main stem at Rocky Habitat for brown trout Prohibit damming (cl 6) Point at NZMS 260 E44 373946 upstream to the forks at E42 Angling amenity Maintenance of fish passage (cl 7) 345450. Value in accordance with tikanga Maintenance of water quality (cl 8) Māori
2 Weydon Burn, Windley River and Habitat for brown trout Maintenance of fish passage (cl 7) all other tributaries upstream of the Oreti River at E43 305210 near Lincoln Hill.
Schedule 2 – waters to be protected for their contribution to the above mentioned outstanding features:
Item Waters Outstanding Characteristics or Conditions to Apply Features contributed to:
1 Oreti River downstream of Rocky Habitat for brown trout Maintain fish passage (cl 7) Point at E44 373946 to the Wallacetown Bridge at E46 455208 Habitat for black-billed gull
2 Groundwater hydraulically Habitat for brown trout connected to the surface water of the Oreti River from Rocky Point at Angling amenity E44 373946 upstream to the forks at E42 345450. Value in accordance with tikanga Māori
62 Special tribunal report on a water conservation order application for the Oreti River
Annex A: List of submitters
No. Name/Organisation Place
O1 Wyndham Angling Club Invercargill
O2 Steve Gerard Methven
O3 Bruce Lambie Dunedin
O4 Southland Recreational Whitebaiters Ass. Inc Invercargill
O5 Warren Davis Mossburn
O6 Southland District Council Invercargill
O7 Waimate Rod & Gun Club Waimate
O8 David Haynes Auckland
O9 Tinaka Enterprises Timaru
O10 The Professional Fishing Guides Assn Inc, Queenstown Branch Queenstown
O11 Richard Mayes Wanaka
O12 John Purey-Cust Gore
O13 Lindsay Withington Invercargill
O14 Christopher Rundle Methven
O15 Andrew Altman Dunedin
O16 Peter Dixon Australia
O17 Thomas Hayes Australia
O18 Gore & District Angling Society Gore
O19 Adam Cowie Invercargill
O20 R Blackbeard Nelson
O21 F Blackbeard Richmond
O22 Richard Weaver Australia
O23 Dean Riphagen South Africa
O24 Peter Ophuis Christchurch
O25 John Kent Christchurch
O26 Dr Sheralyn Hume Te Anau
O27 Silvio Caldelari Te Anau
O28 Transit New Zealand Dunedin
O29 Marc Cohen Southland
O30 Phil Neylon Invercargill
O31 Fraser McGarvie Gore
O32 Daniel Agar Auckland
O33 Te Ao Marama Inc. Invercargill
O34 Eugene Decker United States of America
O35 PJ Jacobs South Africa
O36 Arthur Henderson Invercargill
O37 Peter Stowe Rotorua
Special tribunal report on a water conservation order application for the Oreti River 63
O38 The Wildfowlers Assn of NZ inc Taupo
O39 Tor Skarpodde Karamea
O40 Environment Southland Invercargill
O41 Norman Kidd Invercargill
O42 Teviot Angling Club Inc Central Otago
O43 David Harris Invercargill
O44 Andrew Morris Mossburn
O45 Nancy Tapper Invercargill
O46 Peter Williams Nelson
O47 Herbert Taylor Gore
O48 James Plunkett Invercargill
O49 Christopher Hutchison Southland
O50 Rex & Megan Carter Te Anau
O51 George Taylor Mossburn
O52 Royal Forest & Bird Protection Society, Southland Branch Invercargill
O53 Granville Holmes Christchurch
O54 Oreti Irrigation Water Users Group Dunedin
O55 Glenys Dickson Gore
O56 Mereana Loose Te Anau
O57 William Stewart Te Anau
O58 Trevor Halford Te Anau
O59 Michael Molineux Manapouri
O60 Arthur Gray Te Anau
O61 Oreti River Liaison Committee Invercargill
O62 Robert Cravens Dunedin
O63 Federated Farmers NZ Hamilton
O64 New Zealand Federation of Freshwater Anglers Auckland
O65 Russell Graham Invercargill
O66 Josh Polan Southland
O67 Upper Clutha Angling Club Wanaka
O68 Kevin Christie Mossburn
O69 Fraser Anderson Lumsden
O70 Wakatipu Anglers Club Queenstown
O71 Peter Lawson Lumsden
O72 Otago Fish & Game Council New Zealand Dunedin
O73 Landcorp Farming Limited Christchurch
O74 The Aggregate and Quarry Association of New Zealand Inc Auckland
O75 Stephen Cullen Lumsden
O76 Les Ladbrook Invercargill
O77 Michael Colombo Dunedin
64 Special tribunal report on a water conservation order application for the Oreti River
Decision No C 106 /2006
IN THE MATTER of the Resource Management Act 1991 (the Act)
AND
IN THE MATTER of the Water Conservation (Buller RIver) Order and an appeal pursuant to section 209 of the Act
BETWEEN MA TALLEY AND OTHERS (AS TRUSTEES FOR THE MAJAC TRUST)
(ENV C 23/06)
Applicants
BEFORE THE ENVIRONMENT COURT
Environment Judge JA Smith (presiding) Envrronment Commissioner SJ Watson Environment Comrmssioner DH Menzies
Hearing at Nelson on 2 and 3 August 2006
Appearances Mr RD Crosby for M A Talley and Others (as Trustees for the Majac Trust) (Majac) Mr KO Beckett for the Tasman Distnct Council (the Council) Ms B Arthur and Ms A Speir for the Mimstry for the Environment (present at the request ofthe Environment Court) Ms P M Rutledge for the DIrector-General ofConservation (DOe) Ms MA Baker for New Zealand and Nelson-Marlborough FISh and Game Councils (Fish and Game) and for Council of Outdoor Recreation ASSOCIations of New Zealand (CORANZ) and for the New Zealand Recreational Canoeing ASSOCIatIOn (NZCA) Ms D J Martin for Royal Forest and BIrd Protection SOCIety of New Zealand Incorporated (Forest and Bird) and herself Ms H Campbell for herself, G Pollock and E MacDonald Mr DC Honeybone for himself Mr T Marshall for himself Ms C J Win for herself Mr PW Pierce for himselfand Rapid River Rafting Ms L Buss for P&L Buss Ms J J Bieleski for herself Mr L Davey for himself 2
PRELIMINARY DECISION
Introduction
[1] Majac has applied to vary the Water Conservation (Buller RIver) Order (2001). Tills IS the first such application to be dealt WIth under Part 9 of the Act and, as such, is without precedent.
[2] As a result of a review m the HIgh Court', It IS now clear that the Majac application to amend the Water Conservation (Buller River) Order by the abstraction of water from the Gowan River does not permit the opposmg submrtters to seek to strengthen the Conservation Order and further restnct the use of the Gowan RIver. Many ofthose opposing the amendment to the Conservation Order had also sought that the terms of the Conservation Order be extended by mcludmg more restnctions (particularly eel and trout, canoemg and other recreational charactensncs), and also by extendmg the nver reaches and tnbutanes (includmg tnbutanes to the Gowan and Lake Rotoroa) subject to the Water Conservation Order.
[3] Consequent upon the HIgh Court deCISIOn, FIsh and Game made application to the Minister to extend the Order on the Gowan RIver to mclude the trout fishery. It was ongmally envisaged by Fish and Game that this application might be approved by the Minister and considered at the same time as the special tnbunal considered the amendment sought by Majac. The Munster's decision on the FIsh and Game application has not eventuated to date and the special trIbunal has Issued a deCISIOn on the Majac application. The tnbunal declined the amendment sought, which was then submitted by Majac to tills Court. In the meantime, the Minister has accepted the application by FIsh and Game but the special tnbuna1 had not been appomted although we were advised that the announcement was imminent at the time of our heanng. We understand that the announcement appointing J Lynch, G Prone and Dr G Gloss as the special trIbunal has since been made around 4 August 2006 The tribunal members are not the same persons as heard the Majac application,
Talley et ors (as Trustees for Majac Trust) v J B Fowler, MR Johnston and L Terrney, crv 2005 485-000117, Fogarty J, 18 July 2005 3 Matters before the Court
[4] The Court convened a heanng to:
(a) record all parties who would be participatmg In the proceedings, whether on their own behalfor through counsel;
(b) obtain a report from the MInistry for the Environment as to progress III respect ofthe special tnbunal relating to the FISh and Game application, (c) consider any applications for special status under section 209(1)(c) of the Act WhICh identifies: (1) Any of the followzng persons may make a submission to the Environment Court in accordance with. subsectzon (2) m respect of the whole or any part of a report of a speczal tribunal under section 208
(c) Any other person to whom the Envtronment Court grants leave to make a submission on the grounds that the person could not reasonably have been expected to know that the report of the speczal trzbunal would affect the person or an aspect of the publzc znterest which. that person represents (d) consider the jurisdiction of the Court and the scope of the heanng In respect ofthe Majac application to amend, (e) consider an application by FISh and Game, supported by other parties opposing Majac, to defer the current proceedings until such time as the special tribunal has released ItS deCISIOn on the apphcation for amendment
We WIll consider each of these matters In turn Several can be dealt WIth very quickly; others WIllrequire detailed consideration
------4
Background to theseproceedings
[5] These proceedmgs anse through Part 9 of the Act, WhICh relates to water conservation orders The provisions contain several ambiguous provisions, not the least of which IS section 205(3), the subject of the apphcatron for review to the HIgh Court A conservation order appears to achieve objectives smular to those which might be incorporated m a regional plan objectives, policies and rules, but uses a different mechanism and procedure. The overall procedure IS stand-alone. Although It does have parallels with other areas (1 e designations), there are significant distinctions.
[6] There IS also the questIon as to whether or not the water conservatIOn order fits withm the over-archmg purpose ofthe Act as Identified m McGuire v Hastings District Council2 or whether It forms a mini-code For example, the HIgh Court m the Talley decision noted at paragraphs 18-20:
18 By contrast, m the absence ofa WCD the question ofwhether there should be a water permit falls to be considered against the customary standard
under the RMA ofexamtnmg adverse effects on the environment ThIS IS an open ended znqUlry taking tnto account numerous factors and not constrained by rules, tn the absence of specific rules established by regionalplans
19 In that sense WCDs are not under the umbrella ofPart 2 ofthe Act Part 9 IS tn that respect a special or exceptional code This IS Illustrated most notably by s 199 which starts wuh. these words
Notwithstanding anything to the contrary 111 Part 2, the purpose of a water
conservationorder IS
20 The provtstons of Part 9 are adapted from those tn the Water and SOlI Conservation Amendment Act 1981 (W & SCA), which providedfor both nattonal and local water conservation orders Indeed the Buller WeD was
[2002] 2 NZLR 577 5 gazetted under the RMA but emerged out ofan applzcatzon made under the W&SCA
[7] It IS not necessary at this time to determme what, ifany, residual effect the smgle purpose of the Act of sustamable management would still have. The matter has been discussed m detail m the deCISIOn of the Environment Court m Rangitata South Irrigation Limited et al v New Zealand and Central South Island Fish and Game Council', It IS clear that the mterrelationship with Part 2 ofthe Act IS a matter that will need to be considered by the Court m the context of the submissions and evidence and the Court's conclusions If the Court needs to consider whether the application of any parts of Part 2 are contrary to section 199(1) then that may be a matter ofjudgment on the facts ofthe case [see para [24] Rangitata]. The role ofthe Court ISpnmanly set out m section 212 ofthe Act, which notes
In conducting its Inquzry, the Environment Court shall have particular regard to
the purpose of a water conservatzon order and the other matters set out In sectzon 199, and shall also have regard to -
(a) The needs ofprzmary and secondary Industry, and ofthe community, and (b) The relevant provisions ofevery natzonal policy statement, New Zealand coastal polzey statement, regzonal polzey statement, regzonal plan, district plan, and any proposedplan; and (e) The report ofthe special trzbunal and any draft water conservatzon order, and (d) The applzeatzon and all submissions lodged wzth the Environment Court, and (e) Such matters as the Environment Court thinks fit
[8] Section 199 m turn notes-
3 C135/2005 at paras [21] to [25] 6
Purpose ofwater conservation orders (1) Notwzthstandzng anythzng to the contrary zn Part 2, the purpose ofa water conservatzon order zs to recognzse and sustazn - (a) Outstandzng amenity or tntrtnstc values whzch are afforded by waters zn thezr natural state (b) Where waters are no longer zn their natural state, the amenity or zntrznszc values of those waters whzch in themselves warrant I protectzon because they are conszdered outstandzng.
(2) A water conservatzon order may providefor any ofthe followzng. (a) The preservatzon as far as possible zn zts natural state ofany water body that is considered to be outstandzng (b) The protectzon of charactensttcs whzch any water body has or contrzbutes to, and which are considered to be outstanding, - (z) As a habitatfor terrestrial or aquatic organisms. (zz) As a fishery (ui) For zts wild, scenic, or other natural characterzstzcs (zv) For sctenttfic and ecologzcal values (v) For recreational, historical, sptntual, or culturalpurposes (c) The protectzon of characteristics whzch any water body has or contrzbutes to, and which are conszdered to be of outstandzng significance zn accordance wzth tzkanga Maon
[9] Revocation or vanation ofan order IS dealt with under section 216(4):
Except as provided zn subsection (3), [not relevant here] an applzcatzon made under subsectzon (2) for the revocation or amendment ofa water conservatton order shall be dealt wzth zn the same manner as an applzcatzon for such an order, andsections 201 to 215 shall apply accordzngly
The application for amendment
[10] In this case Majac are seeking an amendment to the Order to allow for the possibility of a hydro-electric scheme to divert flows above 9 cumecs to a maximum of
------~. 7 something in the order of 35 cumecs from a point approximately 2.2 kilometres downstream from the out-flow of Lake Rotoroa. The diverted water would be used to generate hydro-electricity before discharging into the Gowan River 5 kilometres downstream, around 3.5 kilometres above its confluence with the BuIler River.
[11] The Gowan River is protected under Schedule 2 of the Water Conservation (Buller River) Order 2001 for rafting characteristics.
[12] Majac's proposal is that the canal system would use a remotely-operated gate. Majac propose to provide a system ofreinstating river flows for a certain duration in the Gowan on request from river rafters. The details ofthese proposals have not been given to the Court at this point and we cite the outline only in order to understand the nature of the application and amendment sought in broad terms.
[13] To permit even the possibility of such an activity, the Water Conservation Order would need to be amended so that provision 8 in particular was addressed and especially 8(3)(c):
any change in flow permitted in the Gowan River, item 11.ofSchedule 2, must not he- (i) greater than 15%. of the naturally occurring instantaneous flow whenever thatflow is 9 cumecs or more; or (ii) ... [not relevantfor currentpurposes).
[14] The diverted flow would be over 15% of natural flow when the river flow exceeded 10.S cumecs. Thus the applicant proposes an alternative regime for the Water Conservation Order:
• restricting the points of diversion and discharge to a minimum of two kilometres from Lake Rotoroa or the confluence of the Buller and Gowan Rivers; • minimum instantaneous flow of9 cumecs in the river; • flow releases ofnatural flow for 1Yz hours (minimum) for rafting;
-~.
------8
• maximum diversion and discharge of35 cumecs; and • flushing requirements as consent condition
The matters to he considered (1) The partzes to the proceedzngs
[15J The Court In several wntten directions to the parties Indicated Its Intent to commence the heanng and record all parties involved In the proceedings. It was made clear that only those parties who made an appearance, either on their own account or through agents, would be entitled to participate. At this heanng the Court recorded all the parties present. All those present were persons who had been involved In the earlier stage ofthe proceedings. Many persons who had been Involved In the earher stage had either advised the Court they did not wish to participate or otherwise did not make an appearance at the heanng, either on their own behalf or through agents A number of parties were represented by either legal counsel or by other participants, notwithstanding that they WIshed to grve evidence on their own behalfat an appropriate stage There was no objection to this procedure by any other party and the Court considers that this was entirely appropnate at the Initial heanng.
[16J The Court has compiled a list of all those parties A number of the representatives appeared for more than one party The list IS annexed and marked "A". Where a party appeared as an agent, that IS indicated. Several parties appeared but did not Wish to participate. That IS recorded In the appropnate columns Address for service was also given. The end result IS that all those parties listed as particrpatmg intend, either on their own behalf or through counsel, to participate In the heanng. All those parties listed as not participatmg are those who either were not present or who indicated to the Court that they did not WIsh to participate further.
[17J The Tasman DIStnCtCouncil (a combmed regional and drstnct council) indicated that It abided the Court decision on the prehmmary Issues
[18J We also deal WIth the question of section 209(1)(c) The meamng of this clause IS not clear The wording may Intend that a subnutter for the purposes of an appeal 9 before the Court is a person who files within 15 working days after the decision of the special tribunal is made available (see section 209(2». However, it is not necessary to determine the point as no party appeared and sought status under section 209(l)(c). All persons participating had taken part in the special tribunal hearing and now sought to be heard at the inquiry under section 211(a),(b),(c) and (d). No special leave was sought or granted under section 211(e).
The reportfrom the Ministry for the Environment
[19] The Ministry for the Environment confirmed that they did not wish to participate in the substantive hearing. They recorded that they were present at the request of the Court and provided assistance when requested. The Ministry advised that the membership ofthe special tribunal for the Fish and Game application had been decided and approved by Cabinet and that the announcement was imminent.
[20] Once the special tribunal is appointed, it will need to approve any advertisements, set a time-line for responses, issue notices o~~earing to all submitters, arrange for a hearing (its length will depend on the number of parties and issues), convene a hearing, deliberate on the matter and issue a decision. The appeal periods in terms ofthe Act will then apply.
[21] The Ministry confirmed that this is the first case to deal with an amendment to a water conservation order and application ofthe various sections in these circumstances.
The issues remaining
[22] There are two key issues that were addressed by the parties for the purpose of this hearing:
• the scope ofthe hearing; and • the question ofdeferral. 10 All the parties agreed that the Fish and Game and Majac applications dealt with the same water body and similar issues will arise in both applications. For example, rafting characteristics will be relevant to both. On the other hand, there are matters which may not overlap, such as the extensions sought to the Order which go beyond the Gowan River. There is also an argument as to how much of the evidence on various aspects (i.e. the eel fishery in Lake Rotoroa) would be relevant to the Majac application.
(23] The question of the scope of the hearing and what matters the Court needs to take into account under sections 212 and 199, are relevant not only to the jurisdictional question but the question of the deferral sought. Majac have not sought a declaration from this Court, rather that the Court make directions. As such, the matter is at the Court's discretion, which sets its own procedure within verybroad parameters.
(24] Having heard extensive argument, this Court has concluded:
(a) not to make specific directionslimiting the scope of evidence at this point (however we make some general commen.ts as torelevance); (b) that it should not defer the proceedings in the exercise ofits discretion.
Our reasoning for these conclusions follows.
Rafting characteristics
(25] It is Mr Crosby's key submission for Majac that the hearing before this Court on the amendment to the Conservation Order must relate to whether or not the changes proposed will affect the rafting characteristics of the Gowan River. These are the matters that have been protected in terms of the Water Conservation Order on the Gowan, Other parties argue that the wider scope of the Water Conservation (Buller River) Order must be relevant and, to the extent that there are consequential effects on other aspects ofthe Order (i.e. the Buller River and Lake Rotoroa), then these must also be relevant to the consideration ofthe application to amend.
[26] The objectors say that the contribution of the Gowan River to the outstanding characteristics recognised in the Water Conservation Order must also be a matter of
~. 11 relevance in considering the application to amend. Particular examples ofthis related to the fisheries. Arguments followed that while the fishery was not a recognised characteristic in the Gowan, the contribution of the Gowan trout habitat and the outstanding population it supports was significant to Lake Rotoroa and the Buller River.
[27] Furthermore, we were told that Lake Rotoroa had an important long-finned eel population, rare both nationally and internationally, and that the Gowan River was the pathway for migrating eels and elvers. Other issues such as canoeing, recreational use and safety ofthe water areas are matters on which parties wished to give evidence.
[28] Mr Crosby says that ifevidence is given about eel and trout populations and the wider characteristics of the Conservation Order, Majac would need to have further witnesses and take, at least, an additional week ofhearing time.
Application of' section 212
[29] The Court had some difficulty understanding h?w it c~':lld not have regard to the interests ofthe general community and particular aspects ofthat, due to the application of section 212(a). Mr Crosby's response was that these matters of general interest would need to be addressed as part of the resource consent process. However, if that were the case, then one would not expect to see the amendment procedure requiring the Court to have regard to
the needs ofprimary and secondary industry and ofthe community.
[30] An example ofthis was raised by Ms Buss for the Gowan River Holiday Camp. Apparently persons use the river for rafting, canoeing and small children use part of the river margins for paddling and general recreation. Mr Crosby accepted that safety of rafters was clearly a matter for consideration and that the release of water down the natural water course and its impact upon rafts that might already be in the area (but have entered downstream ofthe diversion point) is a matter the Court would need to consider. .The Court struggles to understand how it is not relevant to consider the impact upon . safety of canoeists or young children who may be in or near the river. Such a clinical approach would ignore section 212(a) (the needs ofthe community) which must include,
~. 12 among others, canoeists and small children, and the general discretion of the Court to take mto account such other matters as It thmks fit under section 212(e).
Overlapping evidence at hearings
[31] Whilst we accept that there IS a significant overlap between water conservation orders and regional plans (even possibly distnct plans), that IS not a matter of the Court's creation. If the consequence of this IS that exactly the same matters must be considered twice, then so be It. Clearly raftmg characteristics are matters that are as relevant for consents under distnct and regional plan consideration as they are under a water conservation order.
[32] In reaching 11s conclusions on the facts, the Court will need to consider the question ofrelevance and junsdiction. The heanng is not an opportunity to obtam a de facto conservation order for values not recognised under the water conservation order Nor IS It an opportunity to address wider resource management considerations which are not affected by a water conservation order.
[33] The relevance of evidence addressing matters which mayor may not Impact upon rafting IS more problematic. For example, Mr Pierce for Rapid Rrver Rafting mdicated that It was an Important element ofthe raftmg business for people to see trout on their rafting tnps as part of the natural environment through WhICh they were travellmg, Smnlarly, he indicated that It was another Important part of the expenence for people to see the long-finned eels in Lake Rotoroa near the departure point for his rafts Aquatic and terrestrIal flora may contribute significantly to the rafting expenence We were told that the rafting IS generally graded at 2+ but can be as high as 4 because of the potential for entrapment from trees along the nver margins. Therefore, the overall expenence may be affected by the mterrelanonslup WIth the flora We cannot know unnl we have had evidence tested m the Court. We cannot assume the evidence or postulate where It may lead us.
[34] We accept Mr Crosby's proposition that there IS likely to be evidence given by all parties which IS irrelevant to the Court's final decision. This can be the result of a number of factors. Examples include parties (uncertam as to what the Court may 13 consider relevant) going beyond the evidence necessary to address their case; expert witnesses not complying with the Practice Note and straying outside their area of . expertise; or presentation ofunnecessary long, general background information. In all cases, we consider clear, succinct and focussed evidence on relevant matters to be the most effective.
The evidence
[35] We have asked each party to identify the witnesses they intend to call so as to examine the possible implications ofscope for this case. We were told by the applicant they would call witnesses to describe the hydro-electric scheme, hydrology, river morphology, energy (including the needs of primary and secondary industry), rafting use, economic (primary and secondary industry), and conditions and relevant environmental issues - a total ofsix witnesses. We were told by Mr Crosby that, in the event that all issues were at large, he would also seek to call another seven witnesses (relating to various aspects of the fisheries and landscape), making a total of 16 witnesses.
[36] The Council is planning to call one witness to address water resource issues.
[37] Fish and Game advised that they proposed to call five or six witnesses, relating to Fish and Game statutory functions, angling, fisheries, freshwater biology, and hydrology.
[38] The DOC evidence from three witnesses would relate to eel habitat contribution, hydrology and planning.
[39] Ms Martin for Forest and Bird advises that there would be three witnesses addressing rafting, natural values, and hydrology. Ms Martin would also give evidence on rafting, education, community values, safety and geomorphology on her own behalf
.[40] Ms Campbell advised that there would be two witnesses for herself and the other party she was representing: one on intrinsic values of the valley, the other on community values of the river. Mr Honeybone advised he would give evidence on 14 safety issues, river fluctuations, river characteristics and uniformity issues. Mr Marshall for himself and Ultimate Descents New Zealand (a rafting company) intended to give evidence on rafting, amenity, fisheries wilderness context, safety and call another witness on the same issues.
[41] Ms Win advised that she intended to call one hydrologist and herself on safety, secondary industry and community needs. Messrs Murray, Dernilliac, Baigent and Higgins all intended to give evidence on a combination offishing, community, and land owner values and safety. Mr Pierce for Rapid River Rafting advised that he intended to give evidence himselfon safety, and the whole rafting experience. Ms Buss advised that two witnesses were intended, herself and Mr Buss, on issues relating to safety and rafting uses of the river. Ms BieIeski intended to give evidence for herself on community issues, the Gowan area as a whole and environmental values.
[42] Mr Davey intended to give evidence on fishing amenity and safety. CORANZ intended to call one witness on recreational values of the Gowan, NZCA could call three witnesses on kayaking values, and recreation per~eption...
[43] This makes a total of48 witnesses with approximately 20 lay witnesses who are likely to be relatively focussed on particular issues. Neither the size of evidence nor number of witnesses appears untoward. However, it is important that all witnesses carefully consider the scope of their evidence so as to present focussed and relevant statements to the Court.
Conclusions as to scope
[44] Our view is that issues as to scope are mixed matters of law and of evidence. The interconnection between rafting characteristics and other characteristics may be greater than is suggested by Mr Crosby. We do not know - we have not heard the evidence. We suspect that some of the evidence intended to be given may, at best, be marginally relevant.
[45] It was argued by the objectors that the High Court had not precluded the special tribunal from hearing evidence on other values, merely that it could not make a decision 15
extendmg the Water Conservation Order at that time. Even If It was withm our junsdiction to hear evidence seekmg to extend the Water Conservation Order in circumstances where we could not do so, the Court would still have a discretion as to what weight it would give such evidence m light ofits conclusions
[46] Overall we found Mr Crosby's approach to be overIy legalistic and narrow. The work of the Environment Court, particularly in such an area as this, cannot be neatly categorised as conclusions offact and law. Most Issues that we ate drrected to consider under sections 212 and 199 involve normatrve decisions. They also mvolve the application in a practical and pragmatic way of the provisions of Part 9 withm the context ofthe Resource Management Act. In such CIrcumstances we recognise that the Act, including Part 9, envisages a public and participatory process. It is not intended to be overIy legahstic. The general approach of the Court IS to admit a very WIde range of evidence and then to undertake an idennficanon and sifting process as to what evidence IS relevant to the matters before It It IS highly unusual for the Court to predicate the type of evidence it may recerve pnor to the evidence having been filed We cannot preclude an apphcation for stnke-out of certain evidence being made m due course If necessary. That, in our conclusion, IS the proper approach
[47] We do not believe It IS appropnate m this case to make directions as to the exact form of evidence when we have not heard the legal submissions of the parties. Nor do we have a factual baSIS on which to fully understand the nature of the appeal Usually these matters are addressed by way ofsubmissions before the Court as to the weight we should give to certain evidence, rather than any reliance upon questions ofadnnssibihty per se. Several of the WItnesses expressed concern that the memorandum of the applicant had dissuaded people from participatmg m the process. We thmk there IS the possibility that any conclusion ofthis Court Inmtmg admissibilrty at this stage might be seen by some as oppressrve 16
[48] Overall our conclusion is not to limit evidence at this stage of the proceedings. We recognise a tendency for witnesses to become involved in general philosophical discussions rather than the specific matters being considered. We believe there is significant merit in counsel and witnesses' constraining their evidence to the matters before the Court. and, particularly, for expert witnesses to comply with the Practice Note. For example, ifthe expert witness is not able to express a clear opinion on an issue, then the question must, be asked as to why they are giving evidence before the Court. Ifthey are merely giving background information, then this is a matter that could be better covered by simple reference to the relevant publications.
[49] Accordingly, we have concluded that there should be no particular constraint on the evidence to be given by the parties beyond these general indications. The Court will only allow evidence to be filed by parties for the witnesses identified in this decision. An application by other parties for supplementary evidenceorfor further witnesses or to correct any error in our identification of the witnesses will need to be filed within five working days ofthe receipt ofthis decision.
Deferral
[50] There was significant argument as to whether or not a delay would create any particular injustice. There was reference.to the Privy Council decision on Boodhoo v 4 Attorney General of Trinidad and Tobag0 ;. Unlteclt Institute of Technology v Attorney General, and even to the decision ofthe High Court in respect ofdelays in: the issuing ofthe original Water Conservation Order - Talley & Others v Minister for the Environment',
[51] Having considered those decisions, we are of the view that it cannot be argued that, either to date or for any reasonable period (say 12-24 months), a delay in these proceedings could be said to be a breach of the Bill of Rights. In the context of the amendment we recall that the original Water Conservation Order took some 12 years to
4 [2004] UKPC 710. 5 [2005] 1 NZLR 65. CP5/01, R Young J.
~. 17 be put in place in 2001, with the Planning Tribunal Report being completed in 1996. Some five years later the proceedings we have referted to (Talley & Others v Minister for the Environment) were not successful on the basis that there was not an unreasonable delay.
[52J We keepin mind that notwithstanding any report from this Court, it is still for the Minister to consider and issue a decision on any application for amendment. We accept the submissions of several parties in opposition that water conservation orders are, by their nature, problematic and involved careful consideration. On the other hand, we do not agree with the parties in opposition that the decision in Attorney-General v Waitaki Catchment Commission and Regional Water Board7 is directly relevant and applicable in this case. In that situation a hearing before the authority was due to take place only a week or so after the date set by the Board for hearing the water right applications. In that case a balance ofconvenience allowed for an interim order.
[53J The possibility ofsuch an approach was tested with counsel by suggesting that in this case an interim deferral for perhaps three to six mo.nt~s m~&ht be appropriate ifthere was clear evidence that such a deferral would resolve the issue. Ms Baker and others in support accepted that there could be no certainty that the special tribunal would have heard the matter or made its report available within that time, or even within a significantly longer period. Furthermore, they accepted that at this stage the application had not even been advertised and that there could be a number of circumstances which might delay the issuing ofa decision by the special tribunal.
[54J The Court has a general preference to dealwith cases before it promptly and to avoid unreasonable delays (section 21). After questioning as to the witnesses involved, it appears that the only extra witnesses that would be necessary if we proceeded at this time would be those ofMr Crosby, relating to the eel and trout and fishing issues. Since we have concluded that we should not preclude or limit the scope of evidence, it seems that the Court may hear the same type of evidence, or perhaps exactly the same evidence, on two occasions. The matter is thus finely balanced, with the Court having a .general discretion.
7 4 NZAR 175.
~. 18
[55] In this regard there are two particular pomts that have convmced us that the matter should proceed:
(a) There IS no certainty that there will necessarily be an appeal from the special tnbunal decision Depending on the outcome of the report of the special tnbunal, the parties may either not appeal, or If they have appealed by the time the Court's report to the Mmister IS available, they may not proceed further. (b) The decision IS the Munster's and this Court should undertake ItS duties under the Act as promptly as is reasonable.
[56] If there IS a concern as to possible confhctmg outcomes, that IS a matter that the Minister will need to take into account m reachmg a final deciston. ThIS Court's role IS more Imuted. It IS to report to the Mmister and, If appropnate, make recommendations with a draft conservation order.
[57] The matter IS one wrthm the Court's discretion, and m the CIrcumstances of this case we can see no compellmg reason not to proceed with the matter in a timely fashion
[58] It was accepted by the parties that they will need the balance of this year to exchange evidence, and in the event that the special tnbunal procedure progresses more rapidly than anticipated, an application to consider joinder of the cases or sequential heanng could be made In due course Ifan appeal is filed
[59] Having reached this conclusion, we now conclude that we can make dIrectIOns for the exchange ofevidence as follows
(a) All evidence-in chief of parties is to be exchanged on or before 24 November 2006; (b) All evidence in rebuttal is to be exchanged on or after 15 December 2006; 19 (c) The matter will be set down for hearing on or after 13 February 2007;
(d) Any interlocutory applications are to be filed 110 later than 29 January 2007. \I J- . DATED at CHRISTCHURCH this \ day of August 2006
J A Smith Environment JUdg~ --~ 8 Issued 2 1 AUG 2006
SnuthjelJud_RulelD/C 2306 doe
-r-r-r------~ Persons participating in Hearings:
Appearances Organisation FirstName LastName Postal Address Filed Notice Present Participating Comments Submissions # cI- Gascoigne Wicks, POBox2, Mr RD Crosby Majac Trust Blenheirn Subrnltter Ves Ves Applicant , PO Box10-362, Ms B Arthur/Ms A Spier Ministry forEnvironment Wellington No Ves Ves Appearing for limited purposes, underCourtdirections CI~ Fletd1er Vautie Tasrnan Moore, PO Box90. Mr KO Becketl District Council Nelson No Ves Ves
Tasman Environment & Dennis C Bush 22 District Council Planning Manager King As above Ves
NelsonI Marlborough Director-General PrivateBag5, 109 Ms PM Rulledge for F McLeod Conservancy ofConservation Hugh Logan Nelson Yes Ves Ves cl Anderscn Uoyd .~. ' Fish & Game New Caudwell, Private 113 Ms MA Baker Zealand Neil Deans Bag 1959, Dunedin Ves Ves Yes. Fishing values
NZ Recreationai Conservation 111 Canoeing Assn Officer A$ above No Ves Ves
5 Wilson . Council of Outdoor Recreation Assn ofNZ PO Box1676. 125 Inc Hugh Barr Wellington No Agent Yes and as agent for: NZ Professional Fishing PO Box1245 34 GuidesAssn Gisbome No Agent Yes -: 96 Ms DJ Martin DeborahJane Martin cJ-Box266, Nelson No Ves Ves
RF & B Protection Sac NZ Box 266. 17 lnc- WaitakereBranch Secretary Ken Catt Nelson No Agent Yes
RF & B Protection Sac of 53 NZ Inc.- Northern Branch Secretary BevWoods /J.$ above No Agent Yes
RF & B Protection Sac NZ Stuart- 103 Inc - Nth Canterbury BJ Menteath /J.$ above No Agent Ves
RF & B Protection Soc NZ Jo-Anne 104 ~h't\\f\N3 Inc - Golden Bay Branch Secretary Vaughan As above No Agent Ves .. g >\:~. - ~ ~'\ RF & B Protection Sac NZ Environmental 112 (v: Inc - Central Office Lawyer Teall Crossen /J.$ above No Yes Ves ~ g .. -,_ ~rrt RF & B Protection Sac NZ C)( . Inc- Nelson-Tasman 90 > ~ '.(!t~(\>IJl. ~ Branch As above No Agent Ves
..... ~%t~..l,...~~. -=.-- "" J ~
1lAND ~--- - i 80 GowanValley -\ East BankRoad,RD 62 MsCJWin , Christine June Win 3, Murchison No Yes Yes and as agent for. Gowan Valley East Garry Ronald & Clal1 / 19 Appleby Highway. 64 Jason Jon Osborn Richmond, Nelson No Agent Yes PO Box22, 68 Helen J Chambers Chaneston. Buller No Agent Yes / ~\I\N3 79 e JulieLynn Demilliac PO Box180;Takaka No Agent Yes 50 MamaStr, 61 Ken Chung Tapawera No Agent Yes (i% GowanValleyEast (l' "~~~ Bank Road, RC3. 63 ~~ I} Rapid River Rafting Peter Pierce Murchison No Agant Yes r-, '»'l: MainRoad.Spring ~ Gr, RD1,Wakefield, 66 "~4l.AND Michael John Higgins Nelson No Agent Yes POBox3227, 86 Chris Baigent Richmond No Agent Yes . 15 WatsonStr, 93 James Walker Nelson No Agent Yes Gowan Valley East BankRoad.RD 3, 106 Susan McKeown Murchison No Yes Yes cI- LakeRotoroa Lodge, R03. 60 MrSW Murray ScotiWilliam Murray Murchison / No Agent Yes and as agent for. cI- LakeRetoroa Lodge, RD3. 11 David Joseph Granese Murchison No Agent Yes cl- LakeRotoroa , lodge, R03, 13 Paul vander Loo Murchison No Agent Yes Gowan River Holiday ValleyRd, RD 3, 7 Mr & Mrs Buss Camp Peter & Unda Buss Murchison No Yes Yes , 161 Princes Or, 47 Ms Bieleski Jocelyn Jill Bieleski Nelson No Yes Yes Timothy William 51 Fairfax Str, 67 Mr Marshall Denis Marshall Murchison No Yes Yes GowanValleyEast BankRoad,RD 3, 101 Mr Honeybone Denis Honeybone MurChison No Yes Yes 2 , cI- HelenCampbell, PO Box 56, St 122 Mr MacDanald Eric Mac Donald Amard No Yes Yes 9 Greenhill Rd. 133 Ms Williamsan Faith Chriatlne Wiliamson Stoke.Nelson No Yes Yes . Lindsay Mile,;; 111 wener su; 24 NZ Kayaking School Baxter White Murchison No Agent No a- 41 WalnutAve. 99 Gilllan Pollock Ashburton No Agent Yes PeterF & 279 Hampton Str QueenieA Sallance East.Nelson No Agent Yes Ms H Campbell Helen Campbell anci as agent for: G Pollock G Pollock 108 Mr Wilsan Davey Wi/son Davey Persons not participating further: Member of St Amaud 74 Ms J Sillar Community Association Jean Sillars No Agent No Wrthdraw and as agent for: St Arnaud Community 12 Association Chairperson No Agent No Wrthdraw . Member of St Amaud 7S Community Association MR Rainey No Agent No Wrthdraw Member of St Amaud 76 Community Association MH Bolton No Agent No Wrthdraw Member of St Amaud ~~\f\N3 ~ Community Association B&R Chapman No Agent No Wrthdraw 77 Member of St Amaud 78 o~~ -,,~,~ Community Association P Cuthbert No Agent No Withdraw .q:, . {t\ ~ >1 .'" \ ~.\ Te Runanga 0 Ngai Tahu No No No §l~~i ~ r- '--H . I n FMichael Patrick Nb No No Filed email 1 \ .~~~-- -':~ I ~ R&I Blackbeard No No No Filed email 2 ~~ /'Y Graham Carter No No No 3 ~"'NIJ ./' Roger Radcliffe No No No 4 6 Ngati Rarua lwi Trust Chairman No No No 8 Lake Rotoroa Lodge Lld Brent Hyde No No No RlI SquirelNewton No No No 9 10 Richard Boyden No No No 3 JohnMichael No 14 ./1<;;"':1 <, Gornall No No #'~~ ::---.. ~ Peter & Anna Bourke No No No 15 ((I~~\%\ Wimam & Betty Butters No No No 16 o ... ~ ~ § ~li, r Steve & Wendy Wood No No No 18 Geoffrey , ·1:..15, Raymond Bonar No No No rs Roger George ~~ Emery Winter No No No 20 /0/ .. ~LAND / Paul Broady No No No . 21 Fred Braxton No Ni:> No 23 Mick Hopkinson No No No 25 John Keith Irvine No No No 26 27 "1',- Sarah McMurray No No No Ohrtstopher Barrie Jackson No No No 28 Lindsay Megan Graeme No No No 2' Susan lindsay No No No 30 Heinz Reber No No No . 31 Betty Reber No No No 32 Fiona Grubb No No No 33 Hutt Valley Canoe Club (HVCC) Alan Bell No No No 35 Mark Neumann No No No 36 Eric Parker No No No 37 Shrimpton Hardie Mackay No No No 38 Jim (John Edward) Butler Np No No 39 Society Incorporated 41 . rEDS") Eloise Gibson No No No Peter Stephen Boyes No No No 42 WaitiikiRiver Users Liaison GroupInc. President AR Holmquist No No No 43 Paul Dixon-Didier No No No 44 4 , Motueka Trout Fishing ~\I\N3 <, Club No No No 45 (4 46 ~~~ Joanna Piekarski No No No > \ (J>\ 48 [5 . l"-'c . rn RonaLoraine Spencer No No No c: .;:0 Kathy Mayo No No No 49 -4 . - / (~~ 50 ·0\"t' Comelia Pike No No No ~ i'~~' ~.~'-./ Jj}J 51 ~ Zella Grarnrner No No No ~l.AND ./ Tim Vailings No No . No 52 Louise S Anthony Tapper No No No 54 Andrew Gibson No No No 55 ME Gibson No No No 56 .... MS Wearing No No No 57 Aaron Tapper No No No 58 Mark Unden No No No 59 60 Marcia Oberg No No No Jacqui Hicks No No No 61 Carol A Hicks No No No 62 JohnAH Grey Power- Motueka President Krammer No No No 63 Patricia Anne & Monahan & NeilJohn Thomas No No No 65 Ritchie & Dave & Clare Cosson No No No 66 Robin John Blackmore No No No 69 Ciive Philip Skilton No No No 70 Zane Mirfin f\!o No No 71 Rosemary Jorgensen No No No 72 Norman Marsh No No No 73 Steven Kenneth McCullough No No No 84 Simon 60ag No No No 87 Alka Fowler No No No 88 William .: ~()'O~ ~, 89 ; Alexander Hill No No No 91 .~~'\~\ Charlotte Orinkwater No No No 92 John Pryer No No No . ~ , BulletConservation ({( . 0 GroupInc. Secretary JillMate No No No 94 , .' 1; The NelsonTroutFishing , -~~;J 95 '- ~.$;! Club John Willis No No No • . ~A 97 ~ ~lAND .7. Edfth Carolyn Smith No No No 98 Motueka Tramping Ciub Secretary No No No Geoffrey R Smith No No No 100 Donald Mckenzie Harcourt No No No 102 Russell Edwin Kiddle No No No 105 Heather .~, ' Christine Wallace No No No 107 Universfty otCanterbury 110 Canoe ClubInc. Timothy Sikma No No No Te Runanga 0 Ngati TeWhe Waewae Kaiarahi Weepu No No No 114 115 Bemard Bowden No No No 116 Ross Gigg No No No 11-7 Kaimai Canoe Club Joe Anderson No No No Ngati Apa Ki Te Waipounamu Trust No No No 118 lan Roger No No No llS Tony Entwistle's Fly 120 Fishing Anthony Entwistle No No No Environment and . 121 Conservation Org of NZ No No No 123 James Anderson No No No . 124 Brian Amies No No No 126 Tony Orman No No No Whitewater Canoe Club 127 ine Sarah Barnes No No No 128 Kimber& Lois Woods No No No 129 Alan Ballard No No No 130 Nelson Canoe Club ine C/oR Garden No No No 131 Stephen Kirner No No No 132 Jean Willis No No No 6 ~ '!-