Removing elected officials, replacing tried and true legal tests and processes with a non statutory, unreviewable Strategy, and changing rights of appeal half way through statutory processes - these features and more are the result of the new Act that signals a new era for the management of water in Canterbury.

Whether or not you think the  Environment Canterbury (Temporary Commissioners and Improved Water Management) Act passed under urgency last night, 31 March, is a “democratic outrage”, it certainly has huge ramifications for Canterbury, and for any New Zealander interested in the future of our waterways. The new Commissioners to be appointed to replace the ECan Councillors will have a wide range of powers and a new set of legal tests and considerations to work with.

Canterbury Water Management Strategy

The Act will give statutory weight to the Canterbury Water Management Strategy (CWMS), requiring that all decisions in respect of water have regard to the vision and principles of that Strategy.

The CWMS is a non statutory document, prepared with limited public input and not subject to the usual statutory tests or thresholds, nor the usual processes of review or appeal. This differs from other instruments that are typically considered under the RMA which are subject to well defined legal tests, strict procedural requirements for public participation, and with rights of appeal to the specialist Environment Court.

While the jury is still out on the merits of the vision and principles per se, the giving of statutory weight to a document that has not been subject to any checks and balances is concerning.

Moratoria

Subject to the approval of the Minister, the new Commissioners have been given the power to impose moratoria on applications to take water in respect of any area in Canterbury. This is not a new idea – Ecan have been asking for this power for a long time. Under the new Act such decision is to be made having regard to the vision and principles of the CWMS, the extent of allocation and demand and the purpose of the Ecan Act.

These provisions effectively elevate the CWMS to the status of a Regional Policy Statement and have the potential to freeze water take applications for an indefinite period. There is no right of review or appeal. Exercise of this power will have the effect of creating more uncertainty, not less, for those landowners who wish to advance proposals to abstract water. This will affect not only new applications, but also those applications which are currently being processed, but which have not yet been heard or determined.

Water Conservation Orders

The Ecan Act also changes the legal test to be used for the creation, amendment or revocation of Water Conservation Orders in Canterbury. Previously, priority has been given to protection of water bodies that stand out on a national basis. Although WCOs have long been recognised as an important tool this environmental safeguard is substantially weakened by the new legislation. It is arguable that the new legal test results in no meaningful difference between a WCO and a regional plan. This would significantly affect the ability to create the "national park" equivalent on Canterbury's rivers, despite the stronger statutory tool being available to other regions.

The Commissioners will be given processing and decision making powers in respect of WCO applications in Canterbury, removing that role from the Minister-appointed Special Tribunal and the specialist Environment Court.

It is important to recognise that WCOs have never been processed or decided upon by regional councils. As they were created to address issues of national importance, WCOs have always been considered outside of the regional forum (although factors such as integrated management are still relevant to the decision making process).

Accordingly, the progress of WCOs is neither aided nor hindered by a particular regional council's capabilities. For this reason it is difficult to reconcile this amendment with the Ecan review. Moreover, if the intent is to streamline Ecan's processes, it seems counter-productive to load this additional processing and decision making burden onto that organisation.

These amendments to the WCO process are particularly critical in respect of the Hurunui WCO. The Environment Court was scheduled to hear this WCO application for 6 weeks starting on 31 May. The process would have been completed by mid July, with a decision issuing soon thereafter.

However, the new legislation has removed the Environment Court from the process entirely. Instead, the new Ecan Commissioners, once appointed, will take over.

The WCO applicants will then be given a 30 working day period within which to amend the application in light of the new legal test outlined in the Act. A new public submission period will ensue, despite a full public process having already been undertaken resulting in several hundred submissions.

The Ecan Commissioners will hold a new hearing, and will not be required to take any account of the prior Special Tribunal decision despite that body sitting for 5 weeks in 2009 hearing detailed evidence from all stakeholders. Contrary to the process in other parts of the country, the decision of the Commissioners will not be appealable to the Environment Court but only to the High Court on a point of law.

Regional Plans

The ECan Act will also enable the "fast tracking" of regional plans by revoking appeal rights to the Environment Court. This will affect Canterbury's principal regional plan (the Proposed Natural Resources Regional Plan ("PNRRP")), which has been the subject of lengthy hearings over the past several years but which is not yet the subject of decisions.

Under the Ecan Act the independent commissioners who have sat through those hearings may have their decision making delegations revoked. They would then be replaced by the new Ecan commissioners, or new commissioners with delegated powers, who have the power to issue their own decisions. Although the new commissioners have powers to call a new hearing they are not obliged to do so and instead may simply reach a view based on the submissions and evidence filed to date.

Critically, the basis upon which decisions are to be made is being amended by virtue of the Act to have greater regard to the CWMS. Unless the discretion to order a new hearing is exercised submitters will have no opportunity to address the decision makers on this new criteria.

Regional plans are important policy and regulatory documents that generally cover complex technical matters. There is an inherent injustice in amending the process for determining a regional plan two-thirds of the way through the process.

Moreover, if there is no appeal right to the Environment Court the initial decision making process must be rigorous. Council hearings are prevented by the provisions of the RMA from allowing cross examination which is in our view an essential tool for testing and confirming the evidence. Accordingly there must be some uncertainty as to whether this amended decision process will result in robust decisions.

Conclusion

In summary, the Ecan Act introduces significant changes to water related matters in Canterbury. The Act has an immediate impact on anyone who has made an application for a water take or a submission on the PNRRP or the Hurunui Water Conservation Order. In addition the amendments to the WCO process and the curtailing of appeal rights will have significant long term effects throughout Canterbury and nationally.

Comments (12)

by Simon on April 01, 2010
Simon

Maree,

Thats an eloquent post.

I agree totally that the bill is an affront to due process for the Hurunui WCO and it moves the goalposts for amendments to the other Canterbury WCOs.

However, do the planning "fast tracking" provisions of the Bill apply to the the proposed Natural Resources Regional Plan ("NRRP") chapters notified in July 2004?

Isn't Ecan's decision-making for NRRP chapters 'grandparented' under the version of the RMA that existed at the time of notification,  2004?

Or in other words, does S 62 of the Environment Canterbury Temporary Commissioners and Improved Water Management Bill
(http://www.legislation.govt.nz/bill/government/2010/0130/latest/DLM2850452.html") override S 131 of the Resource Management Amendment Act 2005 (http://www.legislation.govt.nz/bill/government/2010/0130/latest/DLM28504...)?

by Ian MacKay on April 02, 2010
Ian MacKay

Tried very hard to take it all in. It seems to mean that an application could be processed and approved or not, very quickly without appeal. Does this mean that a huge amount of water could be diverted to irrigation at the potential cost to Christchurch users and/or the recreational rights of fishers, without any checks and balances? If so WOW!

by Maree Baker on April 02, 2010
Maree Baker

Simon - the interpretation you put forward of section 62 is a valid one, but seems to contradict or frustrate the Minister's intention that Canterbury has an operative regional plan ASAP.  The interpretation would only allow the fast tracking of plans and policy statements notified between October 2009 to commencement of the Ecan Act.  This would not give Canterbury an operative regional plan in a quick timeframe as there are several substantive parts of and variations too the PNRRP (proposed Natural Resources Regional Plan) that have been notified, and been through the hearing process, but for which decisions have not yet issued.  So section 62 is either a mistake, or meant to be interpreted more narrowly, (with the effect that policy statements and plans notified before October 2009 are determined by RMA pre Simplify and Streamline Act provisions, rather than post Simplify and Streamline) or does have the effect you suggest. 

by Maree Baker on April 02, 2010
Maree Baker

Ian - resource consent applications to take and use water are only affected by the provisions in respect of moratoria.  In all other respects applications for resources consents are not addressed by the new Act.  There is no fast tracking provision, no alteration of the legal test and no alteration of rights of appeal in respect of resource consent applications.  So applications for irrigation takes for example will be subject to the standard test of sustainable management and the relevant plan, and decisions on them can be appealed to the Environment Court.  So its not quite as bad as you think thankfully!

by Simon on April 02, 2010
Simon

Maree,

Given that this legislation has been very rushed  with no select committee process, I thought a drafting mistake in S 62 could not be ruled out!

I have learnt over the last couple of years to always carefully check the transitional provisions in each act amending RMA. If it (S 62) is a mistake, then, yes, it certainly does frustrate the intention of the Minister! But as I recall Peter Skelton saying of Simon Upton - it is up to the courts to decide what the words mean, not the Minister.

The NRRP was always going to attract appeals to the Environment Court. This lack of clarity in meaning does seem to invite further litigation.

 

by JohnR24 on April 06, 2010
JohnR24

Maree ~ I was interested your point that the provisions of the new Act in regard to WCO's cannot be justified in terms of any deficiencies that ECan may or may not have had.

Also it seems to me section 58(2)(a)(i) of this new Act gives the Minister the power to approve any variation of a WCO based on his opinion alone without submitting it to any public process whatsoever.

Further section 46(4) of the new Act seems to mean that any public right to dispute a WCO decision in the Environment Court is gone for ever - ie beyond 2013!

If so then subversion of WCO's and their relevance in Resource Management seems complete.  I would appreciate your view on the meaning of these 2 sections of the Act.

by Maree Baker on April 07, 2010
Maree Baker

John.  In respect of section 58 (2) (a) (i) it actually has the same effect as section 216 (3) of the RMA, which as far as I am aware, has never been utilised.  So the power to amend a WCO without a public process on the grounds that the amendment has minor effect and has been consented to by the original WCO applicant, has always existed.

In terms of how long the Act has effect, on "resumption day"  when the people of Canterbury get to vote for Councillors again, most provisions of the Act cease to have effect.  This includes most of the WCO related provisions.  Specifically, any WCOs applied for after "resumption day" go through the normal, unamended Part 9 RMA process with the standard section 199 legal test, and will be heard by a Special Tribunal.  And, any WCOs that have been applied for prior to resumption day, but for which a hearing have not been had, also get referred back to the Minister to be dealt with under the unamended Part 9.  Sections 52 to 55 removing the Environment Court's jurisdiction only apply specifically to decisions made by Ecan on WCOs, not to decisions made by Special Tribunals.  So my interpretation is that it is only WCO applications that have been subject to an Ecan hearing before resumption day, that have appeal rights restricted to the High Court.

by Marcus Langman on April 08, 2010
Marcus Langman

In my reading of s62, the key point is “other than provided for in this subpart[4]” (which goes on to set out the fast-tracking provisions) the RMA applies.  S62(2) just notes that there are savings provisions in s161 of the Amendment Act which provide for the RMA as of date of notification of a particular plan.  The savings provisions of the RMA Amendment Act are in relation to the version of the RMA to be considered when making decisions. 

It does not over-ride the provisions of S64-68 which say explicitly that appeals on decisions can only be made on points of law, and that the additional criteria relating to the vision and principles of the CWMS apply.

Therefore the fast-tracking provisions do apply to the NRRP.

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