Watercare Waikato River Water Take Application Submission Reference no: 77 Nga Muka Development Trust (Glen Tupuhi) Submitter Type: Not specified Source: Email Overall Notes: Clause What are you submitting on? You can submit on specific parts of the application or the application as a whole. Position The whole Watercare application Notes Clause My submission on the Watercare application is that (please select one): Position I oppose it (or specific parts of it) Notes Clause I seek the following decision from the Board of Inquiry: Position Decline the application Notes Clause Do you wish to be heard in support of your submission? All submissions will be considered by the Board of Inquiry, but please indicate if you wish to heard in support of your submission. Position I wish to be heard in support of my submission Notes Nga Muka Development Trust SUBMISSION ON WATERCARE'S RESOURCE CONSENT APPLICATION INTRODUCTION 1. The Nga Muka (Nga Muka) is the representation body of the cluster of marae in the Rangiriri, Te Kauwhata, Waerenga area, namely Maurea, Horahora, Waikare, Okarea, Taniwha. Nga Muka marae cluster in the Waikato Tainui tribal infrastructure. 2. Nga Muka appreciates the opportunity to submit on the resource consent application by Watercare Services Limited (Watercare) for a water take and discharge (and associated infrastructure) from and to the Waikato River. 3. In December 2013 Watercare lodged the resource consent application to the Waikato Regional Council (WRC), and subsequently amended and lodged their application with the Environmental Protection Authority on 11 December 2020 (the application). 4. The application has now been referred to the Board of Inquiry (BOI) for determination. BACKGROUND There is significant context behind the Waikato River arrangements. Those arrangements arise out of significant and lengthy negotiations between the Crown and five Iwi of the Waikato River. Those negotiations resulted in Deeds and ultimately three Acts of Parliament: (a) the Waikato-Tainui Raupatu Claims (Waikato River) Settlement Act 2010; (b) the Ngāti Tuwharetoa, Raukawa, and Te Arawa River Iwi Waikato River Act 2010; and (c) the Ngā Wai o Maniapoto (Waipā River) Act 2012. 5. The impact of this legislation needs to be front and centre in any application of this nature under the Resource Management Act 1991 (RMA). 6. This background context (including in relation to the Treaty settlements and agreements which gave rise to these arrangements over the Waikato River) is both relevant and significant, in its own right, and it brings into play the principles of the Treaty of Waitangi as recognised through section 8 of the RMA, and other provisions such as section 6(e) and 7(a) of the RMA. 7. There are a unique set of specific statutory provisions relating toWaikato Tainui and Te Ture Whaimana o te Awa o Waikato - Vision and Strategy (Te Ture Whaimana) which make it one of the most powerful planning documents in New Zealand. Nga Muka contact [email protected] Glen Tupuhi; Chairperson, TE TURE WHAIMANA O TE AWA O WAIKATO (VISION AND STRATEGY) 8. Section 5 of the Waikato-Tainui Raupatu Claims (Waikato River) Settlement Act 2010 sets out the 'guiding principles for interpretation' in relation to Te Ture Whaimana: Guiding principles of interpretation (1) The vision and strategy is intended by Parliament to be the primary direction-setting document for the Waikato River and activities within its catchment affecting the Waikato River. (2) This Act must be interpreted in a manner that best furthers— (a) the overarching purpose of the settlement; and (b) subsection (1); and (c) the agreements expressed in the 2009 deed and the Kiingitanga Accord. 9. In summary: (a) Te Ture Whaimana is a central element of the unique legislation enacted in relation to the Waikato River, its catchment, and all it encompasses including the Waipā River; (b) Te Ture Whaimana is intended by Parliament to be the 'primary direction setting document' for the Waikato River;1 (c) the legislation reflects a long history and recognises the mana of the rivers themselves (Te Mana o Te Awa) and the significance of the relationship between the Iwi and the rivers (Mana Whakahaere);2 (d) Te Ture Whaimana is unique under the RMA in that it has been incorporated directly into the Waikato Regional Policy Statement (RPS), and the rest of the RPS must be consistent with Te Ture Whaimana;3 (e) Te Ture Whaimana is also unique in that it prevails over any inconsistent provision in an NPS or the NZCPS, and amendments cannot be made to RMA planning documents to give effect to an NPS/NZCPS, if that would make the document inconsistent with Te Ture Whaimana;4 (f) a regional plan must consequently 'give effect to' Te Ture Whaimana (as it forms part of the RPS); and (g) the BOI is required to 'have particular regard' to Te Ture Whaimana when considering applications for resource consent.5 10. Those matters reinforce the pre-eminent weight to be afforded to Te Ture Whaimana when decisions are being made under the RMA. There is no other example nationally of an 1 Section 5(1) of the Waikato-Tainui Raupatu Claims (Waikato River) Settlement Act 2010. 2 See the preamble of the Waikato-Tainui Raupatu Claims (Waikato River) Settlement Act 2010. 3 Section 11 of the Waikato-Tainui Raupatu Claims (Waikato River) Settlement Act 2010. 4 Section 12(1) of the Waikato-Tainui Raupatu Claims (Waikato River) Settlement Act 2010. 5 Section 17(3) of the Waikato-Tainui Raupatu Claims (Waikato River) Settlement Act 2010. Nga Muka contact [email protected] Glen Tupuhi; Chairperson, external planning document that is to be given greater weight and effect through RMA planning processes. 11. The position of Nga Muka is that the utmost respect and weight must be given to Te Ture Whaimana through this process. 12. The Waikato-Tainui Raupatu Claims (Waikato River) Settlement Act (the Act) became law in 2010. The legislation gave effect to the agreements that were made when the Deed of Settlement was signed between Waikato-Tainui and the Crown in 2009. The purpose of the Act is to— a) have regard to the settlement of raupatu claims under the 2009 deed: b) recognise the significance of the Waikato River to Waikato-Tainui: c) recognise the Vision and Strategy for the Waikato River: d) establish and grant functions and powers to the Waikato River Authority: e) establish the Waikato River Clean-up Trust: f) recognise certain customary activities of Waikato-Tainui: g) provide co-management arrangements for the Waikato River: h) provide redress to Waikato-Tainui relating to certain assets: i) recognise redress to Waikato-Tainui of the Kiingitanga Accord and other accords provided for in the schedule of the Kiingitanga Accord. Section 5 of the Act states that – (1) The Vision and Strategy is intended by Parliament to be the primary direction-setting document for the Waikato River and activities within its catchment affecting the Waikato River. (2) This Act must be interpreted in a manner that best furthers— a) the overarching purpose of the settlement; and b) subsection (1); and the agreements expressed in the 2009 deed and the Kiingitanga Accord. Section 9 sets and out the scope of the Vision and Strategy and states that – (1) The Waikato River and its contribution to New Zealand's cultural, social, environmental, and economic wellbeing are of national importance. (2) The Vision and Strategy applies to the Waikato River and activities within its catchment affecting the Waikato River. (3) The Vision and Strategy is Te Ture Whaimana o Te Awa o Waikato. Nga Muka contact [email protected] Glen Tupuhi; Chairperson, As noted above, the Vision and Strategy is intended by Parliament to be the primary direction- setting document for the Waikato River and activities within its catchment affecting the Waikato River. Section 11 of the Act requires that - (1) On and from the commencement date, the Vision and Strategy in its entirety is deemed to be part of the Waikato Regional Policy Statement without the use of the process in Schedule 1 of the Resource Management Act 1991. (2) As soon as reasonably practicable after the commencement date, the Council must— a) insert the Vision and Strategy into the policy statement without using the process in Schedule 1 of the Resource Management Act 1991; and b) make consequential amendments to records and publications to reflect paragraph (a). (3) On and from the commencement date, the Council and Watercare must ensure that the policy statement does not remain inconsistent with the Vision and Strategy for any longer than is necessary to amend the policy statement to make it consistent with the Vision and Strategy. (4) The Vision and Strategy prevails over the policy statement during any period of inconsistency described in subsection (3) While Section 12 sets out the effect of the Vision and Strategy on Resource Management Act planning documents. (1) The Vision and Strategy prevails over any inconsistent provision in— a) a National Policy Statement issued under section 52 of the Resource Management Act 1991; and b) a New Zealand Coastal Policy Statement issued under section 57 of the Resource Management Act 1991. (2) The WDC and Watercare must not review or amend under section 79 of the Resource Management Act 1991 the Vision and Strategy inserted in the Waikato Regional Policy Statement. (3) The WDC and Watercare must not amend under section 55 of the Resource Management Act 1991 a document defined in section 55(1) of the Act if the amendment would make the document inconsistent with the Vision and Strategy. (4) A rule included in a Regional or District Plan for the purpose of giving effect to the Vision and Strategy prevails over a National Environmental Standard made under section 43 of the Resource Management Act 1991, if it is more stringent than the standard.