A court case focused on river protection has been halted but might yet be revived
In February, Canterbury’s regional council, ECan, asked the Environment Court to decide, through a series of declarations, its role and responsibilities for water conservation orders. It was thought the case would be precedent-setting.
The court application came after a series of stories by Newsroom, beginning in November 2021 with revelations about an unpublished report by a senior ECan scientist, suggesting the Rakaia’s water conservation order had been breached and water-take consent limits exceeded.
READ MORE: * Environment Minister wades into river battle * How the Rakaia turned into a pipe for irrigators
ECan’s court application was framed negatively. It wanted the court to declare it didn’t have a statutory duty to enforce the order’s provisions.
Other parties to the proceedings – including the Environment Minister, Environmental Defence Society and North Canterbury Fish & Game Council – opposed ECan’s stance.
Iwi, irrigation companies, and fishing groups joined the case, as did NZX-listed power company Manawa Energy, which stores water at Lake Coleridge for irrigation thanks to a 2013 amendment to the Rakaia water conservation order.
Progress was made. The court employed a facilitator to help the parties decide declaration questions.
However, this past Friday ECan withdrew its application, in a bid to neuter the court action.
In its notice to the court, the regional council said the parties had shared information over the past few months in court-mandated facilitation overseen by Dunedin lawyer Stephen Christensen.
“Following the conferences and the sharing of information that has occurred, no other party disagrees that the council has at least [original emphasis] the functions, powers and duties set out in the questions that were the subject of the council’s application.
“On this basis, there is no longer any disagreement between the parties as to the council having the functions, powers and duties that the council originally identified in its application.”
In a historical irony, ECan’s notice was filed by law firm Wynn Williams, the same firm that in 2014 advised the regional council to seek an Environment Court declaration to ensure Lake Coleridge’s operating regime was consistent with the Rakaia water conservation order.
“Are water conservation orders something substantive, or are they a chimera that has no substance?” – Environmental Defence Society’s Gary Taylor
On Monday, ECan chief executive Stefanie Rixecker said in a statement questions about its responsibilities as a regulator had been resolved.
The declaration was withdrawn “as there is no longer disagreement that the Council has the functions, powers and duties under the RMA [Resource Management Act]”.
Rixecker told Newsroom the council monitored compliance with consent conditions but “we are not responsible for enforcing observance of the WCO in general”.
Environmental Defence Society (EDS) chief executive Gary Taylor is “flabbergasted” by ECan’s withdrawal, which he calls misleading and illogical.
The withdrawal wasn’t signalled in conferencing, he says, and was surprising because EDS thought the declaration questions had been agreed.
“In all my years of running litigation for EDS it’s one of the most extraordinary things that’s happened, in terms of legal process.”
ECan’s RMA responsibilities were never at issue, he says. Where there was disagreement – something confirmed in conferencing – was ECan’s obligations beyond that.
“The council’s position is that their only obligation is to give effect to or have regard to water conservation orders when they’re granting resource consents. And we say, no, you’ve got a bigger responsibility than that – and that is general oversight of the water conservation order, whether its terms are sufficient and adequate over time, to meet the objectives of the order.”
Taylor, who attended hearings in the 1980s which led to the Rakaia’s water conservation order being confirmed, asks: “Are water conservation orders something substantive, or are they a chimera that has no substance?”
The society will oppose ECan’s withdrawal.
“If the proceeding is not continued in some way, we will file fresh declarations,” Taylor says. “Water conservation orders offer very important protections for outstanding water bodies nationally, and whether their oversight is a regional council one or not needs clarification.”
North Canterbury Fish and Game Council chief executive Dr Rasmus Gabrielsson said his council, EDS, and others have been discussing with ECan who is responsible for monitoring and managing the Rakaia water conservation order for about two years.
ECan’s decision to withdraw was “disappointing and difficult to understand”. The council hasn’t consulted other parties and given no explanation, other than its media statement – which is “not accurate”.
Determining who is responsible for the conservation order is the first step in addressing the Rakaia’s environmental problems, Gabrielsson said.
“There might be some additional delay and cost due to the ECan decision but Fish and Game intend to press ahead with the court proceedings.”
Less than a month ago, the general election ushered in a political lurch to the right.
The National Party, senior coalition partner in the as-yet-unformed Government, has signalled it wants to kick-start the economy, starting in the rural sector, removing barriers to investment in water storage and food production.
Newsroom asked ECan if its move to file proceedings and withdraw its application was a cynical delay.
Rixecker, the chief executive, says the application was withdrawn on legal advice and it didn’t consult the major political parties.
“Your question about a delay is not relevant as we sought a declaration to clarify our existing approach, and no change in action is required as a result of this declaration.”
Importantly, though, the declaration was never heard as the questions weren’t finally agreed, and ECan withdrew its application.
Concerns raised for years
A water conservation order has been compared to national park status for rivers.
Such orders are designed to protect a water body’s outstanding features and characteristics.
(The list is still being added to. In September, it was announced Te Waikoropupū in Golden Bay, at the top of the South Island, would be protected by a water conservation order, after a 10-year battle.)
For the Rakaia, this means mandated monthly minimum flows, and rules for consented water takes.
Concerns have been raised for years, especially by anglers, that too much water was being taken from the Rakaia, with terrible consequences for fish, birds and other creatures.
At a conference at Lincoln University in July, ECan principal surface water scientist Dr Adrian Meredith said despite an absence of regular, quantitative monitoring of Canterbury’s braided rivers there was a “strong signal of degradation”.
He added: “We need action to reverse and improve these values.”
ECan said in evidence to the Environment Court: “Historically there has been very little dedicated water-take compliance activity undertaken on the Rakaia River, beyond that carried out in the ordinary course of compliance monitoring more generally.”
The battle over the Rakaia seemed destined for court when, in December 2021, the Environmental Defence Society threatened legal action over the unpublished scientific report written by senior hydrological scientist and data analyst Wilco Terink, who subsequently left ECan after clashing with his bosses over the report’s contentious findings.
Key to the Terink report was the action – or inaction – by ECan itself.
Manawa (then named Trustpower) adopted a new operating regime for Lake Coleridge known as warehouse-stored water, and ECan didn’t check if it complied with the water conservation order.
“It can be concluded that calculations behind this concept do not meet the conditions set out in the [WCO] amendment,” Terink’s report said.
Then, in 2015, the South Island’s largest irrigation company, Central Plains Water, which is a party to the Environment Court proceedings, adopted an “alternative strategy” for taking water, which the Terink report said had, on occasion, led to water-take rates being exceeded.
The report said ECan didn’t know at any point in time how much water was entering or flowing from Lake Coleridge, or the lake’s level.
Manawa has always said it is confident it abides by its consents and statutory obligations.
Meanwhile, after a subsequent compliance review by ECan, Central Plains Water said the company was proved to be “mainly compliant”. The same review said CPW’s water-take strategy was considered “explicit and continuous non-compliance”.
Asked for comment about ECan’s court withdrawal, Central Plains Water chief executive Susan Goodfellow said: “It would be best if you approach ECan directly on this matter.”
IrrigationNZ chief executive Vanessa Winning said: “I can’t comment on someone else’s decision.”
Goodfellow and Winning said their organisations did not discuss with ECan its potential withdrawal from the court proceedings.
Paul Ford, Manawa’s head of corporate relations, said the company supported ECan’s withdrawal.
“We’re pleased the various parties have worked together to share information and increase understanding around how the water conservation order is managed.”
In Monday’s press statement, ECan “acknowledged there is still concern from some groups as to whether the outstanding characteristics of the Rakaia River are being sufficiently protected”.
Clearly, there’s not universal agreement about the way irrigation water is stored at Lake Coleridge, Central Plains Water’s method of taking water, and whether Rakaia’s low flows comply with the water conservation order.
The question now is how far are concerned groups willing to go, and how much are they willing to spend, to answer legal questions about the order, and try to drag ECan back to court?
* This story has been corrected as it originally stated, incorrectly, Newsroom asked Susan Goodfellow about CPW’s discussions with ECan about the withdrawal.
