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Before the Special Tribunal for the Ngaruroro and Clive Rivers Water Conservation Order

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Before the Special Tribunal for the Ngaruroro and Clive Rivers Water Conservation Order BEFORE THE SPECIAL TRIBUNAL FOR THE NGARURORO AND CLIVE RIVERS WATER CONSERVATION ORDER IN THE MATTER of the Resource Management Act 1991 AND IN THE MATTER of a Special Tribunal appointed under s202 of the Act to consider a Water Conservation Order made by New Zealand Fish and Game Council, the Hawke's Bay Fish and Game Council, the Hawke's Bay Fish and Game Council, Operation Patiki: Ngāti Hori ki Kohupatiki, Whitewater New Zealand, and the Royal Forest and Bird Protection Society of New Zealand (the Applicants) in relation to the Water Conservation Order LEGAL SUBMISSIONS ON BEHALF OF HAWKE'S BAY REGIONAL COUNCIL 1 March 2019 Hawke's Bay Regional Council's Solicitor PO Box 4341 CHRISTCHURCH 8140 DX WX11179 Tel +64 3 379 7622 Fax +64 379 2467 Solicitor: P A C Maw ([email protected]) 1 MAY IT PLEASE THE SPECIAL TRIBUNAL Introduction 1 These submissions are given on behalf of the Hawke’s Bay Regional Council (Council or HBRC) in relation to the application lodged by the New Zealand Fish and Game Council, Hawke’s Bay Fish and Game Council, Operation Pātiki: Ngāti Hori ki Kohupatiki, Whitewater New Zealand, and the Royal Forest and Bird Protection Society of New Zealand (Applicants) for a Water Conservation Order (Application) in respect of the Ngaruroro and Clive Rivers with the Minister for the Environment on 22 December 2015. 2 The hearing of the Application was split in two on a geographical basis, with the hearing of the Application in relation to the upper reaches of the Ngaruroro River being heard at the end of 2017, and the hearing in respect of the lower reaches of the Ngaruroro River and the Clive River being the subject of this hearing. However, the Applicants deferred presenting cultural evidence in respect of the upper Ngaruroro River until the second stage of the hearing. Accordingly, these submissions pertain to the Application insofar as it relates to the lower Ngaruroro River and Clive River, and the upper Ngaruroro River in respect of cultural values. The Council’s position 3 The Council opposes the making of a water conservation order on the lower Ngaruroro River and Clive River, and in the upper Ngaruroro River In the Stage 1 hearing, the Council presented its case in opposition to the making of a water conservation order in relation to the upper Ngaruroro River, except for cultural values, which are addressed in these submissions. 4 The Council accepts that many of the characteristics for which protection is sought are excellent, and indeed regionally significant; perhaps even regionally outstanding. However, the Council is not satisfied that the characteristics are outstanding on a national comparative basis, and therefore the Application does not meet the requirements of Part 9 of the Resource Management Act 1991 (RMA or Act) to warrant protection by way of a water conservation order. 5 However, if the Special Tribunal finds that there are outstanding characteristics in the lower Ngaruroro River and Clive River (and the 2 upper Ngaruroro River in respect of cultural values), the Council’s position is that a water conservation order is not necessary, or indeed adequate, to sustain and protect those characteristics. This is particularly so in light of the Council’s regional policy statement, particularly Change 5 to the regional policy statement component of the Hawke’s Bay Regional Resource Management Plan (RRMP), the National Policy Statement for Freshwater Management 2014 (amended 2017) (NPSFM) and regional planning documents, relevantly, draft Plan Change 9 (version 8) to the RRMP, referred to as the draft TANK Plan Change. 6 Accordingly, the following witnesses will be called in support of the Council’s submission on the Application: (a) Dr Forbes – ecological management of the Ngaruroro River; (b) Dr Hicks – water quality and indigenous fish; (c) Dr Jowett – hydrology; (d) Dr Smith – hydrology; (e) Dr Craig – habitat for avifauna; (f) Dr Mitchell – planning; (g) Dr Wilding – indigenous fish; and (h) Mr Palmer, Chief Executive of the Hawke’s Bay Regional Council. 7 The Council has produced evidence in response to all aspects of the Applicants’ evidence, with the exception of cultural and recreation evidence, which I intend to address in these submissions. The legal framework 8 Part 9 of the Act outlines the statutory framework relevant to water conservations orders. In particular, the purpose of a water conservation order is articulated in section 199: (1) Notwithstanding anything to the contrary in Part 2, the purpose of a water conservation order is to recognise and sustain – (a) 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 3 waters which in themselves warrant protection because they are considered outstanding. (2) A water conservation order may provide for any of the following: (a) The preservation as far as possible in its natural state of any water body that is considered to be outstanding: (b) The protection of characteristics which any water body has or contributes to, and which are considered to be outstanding,- (i) As a habitat for terrestrial or aquatic organisms: (ii) As a fishery: (iii) For its wild, scenic, or other natural characteristics: (iv) For scientific and ecological values: (v) For recreational, historical, spiritual, or cultural purposes: (c) The protection of characteristics which any water body has or contributes to, and which are considered to be of outstanding significance in accordance with tikanga Māori. 9 ‘Water conservation order’ is defined in section 200 of the Act, as follows: In this Act, the term water conservation order means an order made under section 214 for any of the purposes set out in section 199 and that imposes restrictions or prohibitions on the exercise of regional councils’ powers under paragraphs (e) and (f) of section 30(1) (as they relate to water) including, in particular, restrictions or prohibitions relating to– (a) The quantity, quality, rate of flow, or level of the water body; and (b) The maximum and minimum levels or flow or range of levels or flows, or the rate of change of levels or flows to be sought or permitted for the water body; and (c) The maximum allocation for abstraction or maximum contaminant loading consistent with the purposes of the order; and (d) The ranges of temperature and pressure in a water body. 10 Further, section 207 of the Act provides that when considering an application for a water conservation order, regard shall be had to:1 (a) The application and all submissions; and 1 Resource Management Act 1991, s 207(a)-(c). 4 (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]. 11 The interplay between sections 199 and 207 means that when considering an application for a water conservation order, the Act requires particular regard to be given to the purpose of a water conservation order and the other matters set out in section 199, and regard given to the matters in section 207. 12 Section 199 does not require Part 2 of the RMA to be completely ignored, rather only those aspects of Part 2 that are contrary to the purpose as articulated in section 199. Decision-makers must still consider those provisions of Part 2 which are not excluded as being contrary to section 199.2 13 The Environment Court in Rangitata South Irrigation Ltd v NZ and Central South Island Fish and Game Council summarised what it referred to as “the basic issues” when considering an application for a water conservation order:3 (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) [now section 207(a)-(c)] – which are in our view designed to ensure that an overly idealistic approach to the river’s waterline is not taken. 14 Furthermore, it is not the purpose of a water conservation order to enhance the characteristics of a water body so that they become outstanding, or to improve them if they are already outstanding.4 Rather, as the Environment Court in Rangitata stated:5 2 Rangitata South Irrigation Ltd v NZ and Central South Island Fish and Game Council EnvC C109/04 at [21]-[25]. 3 Rangitata South Irrigation Ltd v NZ and Central South Island Fish and Game Council EnvC C109/04 at [55]. 4 Rangitata South Irrigation Ltd v NZ and Central South Island Fish and Game Council EnvC C109/04 at [24]. 5 Rangitata South Irrigation Ltd v NZ and Central South Island Fish and Game Council EnvC C109/04 at [54]. 5 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. 15 In light of this framework, I will address you further on the following matters: (a) The test of outstanding for the purposes of section 199, the burden of proof, and whether the Applicants have satisfied the burden of proof in this regard. (b) Each of the characteristics for which protection is sought and an assessment of whether each characteristic is outstanding on a national comparative basis.
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