David Parker intervenes in an Environment Court case over a water conservation order
The Environment Minister features in an expanded cast heading to court over the role regional councils play with protected rivers.
In February, Canterbury’s Regional Council (ECan) applied to the Environment Court for declarations over its role and responsibilities for the Rakaia River, which is governed by a water conservation order – likened to national park status for rivers.
READ MORE: * ECan moves over ‘explicit and continuous breaches’ * How the Rakaia turned into a pipe for irrigators
The application follows a series of stories by Newsroom about a leaked ECan report, still unpublished, which found evidence the Rakaia’s water conservation order was being breached, and water takes from the river were exceeding consent limits.
One of its major findings was the river was being impeded and manipulated beyond what was anticipated. Lower flows can be hugely damaging to the ecology and natural character of braided rivers, which are considered to be one of the globe’s critically threatened ecosystems.
In its application, ECan asked the court to rule on a series of questions, including to declare it has no statutory duty to enforce the water conservation order provisions. It also seeks a ruling on the water storage regime at Lake Coleridge, operated by NZX-listed power company Manawa Energy, which sends irrigation water down the Rakaia.
The Environmental Defence Society (EDS) and the North Canterbury Fish & Game Council, named as respondents by ECan, have accused the council of trying to shirk its responsibilities.
(In court evidence, ECan admits there has, until recently, been “very little dedicated water-take compliance” on the Rakaia River.)
Eleven other entities have asked to join or be parties to the proceedings, including Ngā Rūnanga, Manawa Energy, recreational fishing groups, the country’s biggest corporate dairy farmer, Dairy Holdings Ltd, and irrigation companies, including the South Island’s biggest, Central Plains Water.
In late March, Crown Law filed a notice of Environment Minister David Parker’s intention to be a party to the proceeding. The notice makes it clear the power of the state will be brought to bear against the regional council’s arguments.
Parker’s office said this past Thursday the minister joined the court action because it concerns provisions of the Resource Management Act relating to the functions and responsibilities of councils, and of the minister himself.
“It is too early to say whether and to what extent the proceeding might set a precedent for other WCOs [water conservation orders].”
In other news, the court has appointed the veteran Dunedin lawyer Stephen Christensen, an environmental specialist, to lead an expert conference of lawyers to refine the declarations.
We asked the main players in the case for comment about Christensen’s appointment.
ECan’s general counsel Robyn Fitchett confirms it understands Christensen has been appointed to such a role. “Other than that, Environment Canterbury can’t comment further.”
Manawa Energy head of corporate relations Paul Ford says: “As we have said before we support getting a declaration to provide everyone with clarity on this potential issue and Stephen Christensen’s involvement is all part of that process.”
“Pleased with progress being made,” quips Environmental Defence Society chief executive Gary Taylor.
“The minister intends to provide evidence and submissions to assist the court in its declaration.” – Crown Law, on behalf of David Parker
Parker swings behind most of the alternative declarations being sought by the Environmental Defence Society and Fish & Game.
The notice says: “The minister supports the relief sought on the following grounds – a declaration that Canterbury Regional Council has a duty to enforce the provisions of the National Water Conservation (Rakaia River) Order 1988.”
This accords with three of the alternative declarations sought.
Digging deeper into the reasons, the notice refers to various sections of the Resource Management Act to justify why the council has obligations regarding the water conservation order, including ensuring its regional plan is consistent, and, when it grants resource consents, conditions must maintain the order’s provisions.
The minister also supports a declaration that ECan has a duty to gather information and keep records under the water conservation order.
(The aforementioned leaked Rakaia report, written by Wilco Terink, a senior hydrological scientist and data analyst, said ECan was shut out of real-time data, and data gaps made monitoring “very difficult if not impossible”.)
In its notice to the court, Manawa Energy says local authorities aren’t required to enforce or monitor compliance with a water conservation order. “Rather it is a function of the Minister for the Environment to monitor the effect and implementation of water conservation orders.”
In response, Parker supports a declaration that says the minister’s functions relate to “monitoring and investigating the exercise or performance of Canterbury Regional Council’s functions, powers or duties ... and taking appropriate action”.
Another party seeking alternative declarations is the Federation of Freshwater Anglers.
It wants the court to declare that ECan must be satisfied the grant or renewal of a consent doesn’t breach environmental bottom lines set out in the water conservation order. “And it cannot be so satisfied without obtaining sufficient information as to the state of the relevant environment.”
Parker’s brief says he’ll abide by the court’s decision on this point, but reiterates the regional council is required to gather information to effectively carry out its functions.
The water conservation order was altered in 2013, allowing water from Lake Coleridge to flow down the Rakaia to intake points, where it would be diverted for farm irrigation. (Water is diverted into Coleridge from the Wilberforce, Harper, and Acheron Rivers.)
Within the lake’s operating range, the stated plan was to classify some water as “stored” and some “normal”, for hydroelectricity generation.
In 2015, the company, formerly known as Trustpower, implemented a new regime which allowed water to be “stored” below the lake’s minimum operating range, and reclassified at the top level when needed. This tripled the theoretical storage to more than 300 million cubic metres.
ECan asked the Environment Court to make several declarations related to Lake Coleridge: the water conservation order enables water to be stored below the minimum operating level, and doesn’t prescribe a maximum volume of stored water.
This seems somewhat of a backflip for the regulator, which asked Trustpower – several times, and as far back as 2014 – to seek a court declaration to ensure its storage regime didn’t breach the water conservation order.
(In an affidavit to the Environment Court, ECan principal consents planner Richard Purdon said because new consents weren’t sought after the 2013 amendments to the water conservation order, “the council’s ability to monitor Manawa Energy’s actions in this regard is limited”.)
In the current proceedings, the Environmental Defence Society and Fish & Game seek alternative declarations from the court, that, under the water conservation order, “stored water” can’t extend to the whole lake, or water being stored below the minimum operating level.
Parker will abide the court’s decision on this, his notice says, adding: “The minister intends to provide evidence and submissions to assist the court in its declaration.”
It’s not all one-way traffic.
The minister’s notice says there doesn’t appear to be a direct ability for the regional council to obtain enforcement orders related to the Rakaia water conservation order (RWCO).
He opposes an alternative declaration that “any reference to the ‘Act’ within the RMA includes secondary legislation made under the Act, and the RWCO.” This “will result in unintended consequences and/or duplication”, the minister’s brief says.
Twenty-seven farms owned or leased by Dairy Holdings – a 4.7 percent shareholder in Central Plains Water – get water from the Rakaia, and its notice says stored water is critical.
“Dairy Holdings is concerned to ensure this reliability is maintained in the long-term and it wished to have confidence in future consent renewal applications being granted and continuing provision made in relation to ‘stored water’.”
(This line is repeated in the notice from Barrhill Chertsey Irrigation. (Both are represented by the same law firm.)
The company has consent to take up to 17 cubic metres of water per second from the Rakaia. The water generates electricity and irrigates about 25,000 hectares of land.
“BCI considers the provision of stored water is critical to irrigation reliability.”
Te Rūnanga o Ngāi Tahu, Te Rūnanga o Arowhenua, and Te Taumutu Rūnanga oppose ECan’s declarations, and support those of the Environmental Defence Society and Fish & Game. Te Ngāi Tūāhuriri Rūnanga is reserving its position.
What’s at stake?
This isn’t some abstract legal bunfight confined to wads of legal papers, referring to obscure passages of legislation. There are real-world effects on a protected river to consider.
A bundle of documents released to Newsroom by the Environment Court includes the affidavit of Rasmus Gabrielsson, chief executive of the North Canterbury Fish & Game Council, who is a qualified freshwater ecologist.
He paints a picture of a nationally outstanding river being potentially degraded, despite supposed protections.
“For the last four years I have had a close involvement with the Rakaia River and its sea-run salmon and trout fishery, including dealing with public feedback about the deteriorating condition of the Rakaia River environment, and the degradation of the natural, fisheries, wildlife and recreational values the river sustains.”
Concerns include: reductions in river flow; changes in flood flows; increased sediment deposits; a reduction in braids; sediment build-up in the hapua (coastal lagoon) area and river mouth closures; increasing algae, a decline in smelt, brown trout, and Chinook salmon; and reduced wildlife populations, especially black-billed gulls.
(Another party to the proceedings, NZ Salmon Anglers Association, sets out a much longer list of environmental grievances. Its notice to the court says the Rakaia is unhealthy, and “runs below the minimum flows with a greater frequency since the WCO was granted”.)
Gabrielsson refers to the hearing committee recommendation report for the water conservation order amendment 10 years ago. The application was expected to “continue to preserve and protect the outstanding natural characteristics, habitats and features of the Rakaia River”.
The intent was repeated by ECan staff in a presentation to regional councillors in June last year; stating the amendment was granted on the basis there would be “no change to maintaining outstanding characteristics of a braided river”.
What was modelled and agreed at the hearing is different to what’s happening now.
Gabrielsson says he understands the leaked Rakaia report was a well-advanced draft that had undergone internal and external reviews, but hadn’t completed the full internal review.
ECan has distanced itself from the report.
“However, in my view and based on what I have learned in the time since its release, the key issues of concern raised in the report are generally well-founded,” Gabrielsson says in his affidavit.
He reveals ECan held a “stakeholder” meeting in February of this year, at which presentations were made on Rakaia-related hydrology and compliance.
“The compliance presentation covered ECan’s aspirations for compliance monitoring and the planned move to a holistic compliance system.”
Yet, days later, it would file its application to the Environment Court, asking it whether it’s responsible for enforcing the water conservation order – a legal instrument that’s been in place since 1988.
Gabrielsson says Tim Davie, ECan’s director of science, made introductory remarks at February’s meeting about the Rakaia being a river “under stress”.
“[He] posed the question as to whether the river had a ‘water allocation regime problem or a non-compliance problem’.”
