A court docket case centered on river safety has been halted however would possibly but be revived
In February, Canterbury’s regional council, ECan, requested the Surroundings Courtroom to resolve, via a collection of declarations, its position and duties for water conservation orders. It was thought the case could be precedent-setting.
The court docket software got here after a collection of tales by Newsroom, starting in November 2021 with revelations about an unpublished report by a senior ECan scientist, suggesting the Rakaia’s water conservation order had been breached and water-take consent limits exceeded.
ECan’s court docket software was framed negatively. It needed the court docket to declare it didn’t have a statutory obligation to implement the order’s provisions.
Different events to the proceedings – together with the Surroundings Minister, Environmental Defence Society and North Canterbury Fish & Recreation Council – opposed ECan’s stance.
Iwi, irrigation firms, and fishing teams joined the case, as did NZX-listed energy firm Manawa Vitality, which shops water at Lake Coleridge for irrigation due to a 2013 modification to the Rakaia water conservation order.
Progress was made. The court docket employed a facilitator to assist the events resolve declaration questions.
Nonetheless, this previous Friday ECan withdrew its software, in a bid to neuter the court docket motion.
In its discover to the court docket, the regional council stated the events had shared data over the previous few months in court-mandated facilitation overseen by Dunedin lawyer Stephen Christensen.
“Following the conferences and the sharing of data that has occurred, no different celebration disagrees that the council has no less than [original emphasis] the capabilities, powers and duties set out within the questions that have been the topic of the council’s software.
“On this foundation, there isn’t a longer any disagreement between the events as to the council having the capabilities, powers and duties that the council initially recognized in its software.”
In a historic irony, ECan’s discover was filed by legislation agency Wynn Williams, the identical agency that in 2014 suggested the regional council to hunt an Surroundings Courtroom declaration to make sure Lake Coleridge’s working regime was according to the Rakaia water conservation order.
“Are water conservation orders one thing substantive, or are they a chimera that has no substance?” – Environmental Defence Society’s Gary Taylor
On Monday, ECan chief govt Stefanie Rixecker stated in a press release questions on its duties as a regulator had been resolved.
The declaration was withdrawn “as there isn’t a longer disagreement that the Council has the capabilities, powers and duties underneath the RMA [Resource Management Act]”.
Rixecker instructed Newsroom the council monitored compliance with consent circumstances however “we aren’t accountable for implementing observance of the WCO basically”.
Environmental Defence Society (EDS) chief govt Gary Taylor is “flabbergasted” by ECan’s withdrawal, which he calls deceptive and illogical.
The withdrawal wasn’t signalled in conferencing, he says, and was stunning as a result of EDS thought the declaration questions had been agreed.
“In all my years of operating litigation for EDS it’s one of the vital extraordinary issues that’s occurred, by way of authorized course of.”
ECan’s RMA duties have been by no means at subject, he says. The place there was disagreement – one thing confirmed in conferencing – was ECan’s obligations past that.
“The council’s place is that their solely obligation is to present impact to or have regard to water conservation orders once they’re granting useful resource consents. And we are saying, no, you’ve obtained an even bigger duty than that – and that’s common oversight of the water conservation order, whether or not its phrases are adequate and sufficient over time, to fulfill the aims of the order.”
Taylor, who attended hearings within the Eighties which led to the Rakaia’s water conservation order being confirmed, asks: “Are water conservation orders one thing substantive, or are they a chimera that has no substance?”
The society will oppose ECan’s withdrawal.
“If the continuing will not be continued ultimately, we’ll file recent declarations,” Taylor says. “Water conservation orders provide crucial protections for excellent water our bodies nationally, and whether or not their oversight is a regional council one or not wants clarification.”
North Canterbury Fish & Recreation chief govt Rasmus Gabrielsson says some questions are but to be resolved or agreed and it’s reviewing how you can proceed the case.
Lower than a month in the past, the overall election ushered in a political lurch to the proper.
The Nationwide Occasion, senior coalition accomplice within the as-yet-unformed Authorities, has signalled it desires to kick-start the economic system, beginning within the rural sector, eradicating obstacles to funding in water storage and meals manufacturing.
Newsroom requested ECan if its transfer to file proceedings and withdraw its software was a cynical delay.
Rixecker, the chief govt, says the appliance was withdrawn on authorized recommendation and it didn’t seek the advice of the key political events.
“Your query a few delay will not be related as we sought a declaration to make clear our present strategy, and no change in motion is required because of this declaration.”
Importantly, although, the declaration was by no means heard because the questions weren’t lastly agreed, and ECan withdrew its software.
Issues raised for years
A water conservation order has been in comparison with nationwide park standing for rivers.
Such orders are designed to guard a water physique’s excellent options and traits.
(The record remains to be being added to. In September, it was introduced Te Waikoropupū in Golden Bay, on the high of the South Island, would be protected by a water conservation order, after a 10-year battle.)
For the Rakaia, this implies mandated month-to-month minimal flows, and guidelines for consented water takes.
Issues have been raised for years, particularly by anglers, that an excessive amount of water was being taken from the Rakaia, with horrible penalties for fish, birds and different creatures.
At a convention at Lincoln College in July, ECan principal floor water scientist Dr Adrian Meredith stated regardless of an absence of normal, quantitative monitoring of Canterbury’s braided rivers there was a “robust sign of degradation”.
He added: “We want motion to reverse and enhance these values.”
ECan stated in proof to the Surroundings Courtroom: “Traditionally there was little or no devoted water-take compliance exercise undertaken on the Rakaia River, past that carried out within the abnormal course of compliance monitoring extra usually.”
The battle over the Rakaia appeared destined for court docket when, in December 2021, the Environmental Defence Society threatened legal action over the unpublished scientific report written by senior hydrological scientist and information analyst Wilco Terink, who subsequently left ECan after clashing together with his bosses over the report’s contentious findings.
Key to the Terink report was the motion – or inaction – by ECan itself.
Manawa (then named Trustpower) adopted a brand new working regime for Lake Coleridge often called warehouse-stored water, and ECan didn’t test if it complied with the water conservation order.
“It may be concluded that calculations behind this idea don’t meet the circumstances set out within the [WCO] modification,” Terink’s report stated.
Then, in 2015, the South Island’s largest irrigation firm, Central Plains Water, which is a celebration to the Surroundings Courtroom proceedings, adopted an “different technique” for taking water, which the Terink report stated had, once in a while, led to water-take charges being exceeded.
The report stated ECan didn’t know at any cut-off date how a lot water was getting into or flowing from Lake Coleridge, or the lake’s degree.
Manawa has all the time stated it’s assured it abides by its consents and statutory obligations.
In the meantime, after a subsequent compliance overview by ECan, Central Plains Water stated the corporate was proved to be “primarily compliant”. The identical overview stated CPW’s water-take technique was thought-about “explicit and continuous non-compliance”.
Requested for remark about ECan’s court docket withdrawal, Central Plains Water chief govt Susan Goodfellow stated: “It will be greatest should you strategy ECan immediately on this matter.”
IrrigationNZ chief govt Vanessa Profitable stated: “I can’t touch upon another person’s choice.”
Newsroom requested Goodfellow and Profitable if their organisations mentioned with ECan its potential withdrawal from the court docket proceedings. Solely Profitable replied, confirming it hadn’t.
Paul Ford, Manawa’s head of company relations, stated the corporate supported ECan’s withdrawal.
“We’re happy the assorted events have labored collectively to share data and improve understanding round how the water conservation order is managed.”
In Monday’s press assertion, ECan “acknowledged there’s nonetheless concern from some teams as as to whether the excellent traits of the Rakaia River are being sufficiently protected”.
Clearly, there’s not common settlement about the way in which irrigation water is saved at Lake Coleridge, Central Plains Water’s methodology of taking water, and whether or not Rakaia’s low flows adjust to the water conservation order.
The query now could be how far are involved teams prepared to go, and the way a lot are they prepared to spend, to reply authorized questions in regards to the order, and attempt to drag ECan again to court docket?