Extinguishment of Hurunui litigation rights recalls the Foreshore and Seabed Act, and it is breathing life into the embers of green activism

The damned Hurunui has lit a fire that will not be put out…

The Environment Canterbury (Temporary Commissioners and Improved Water Management) Act 2010 (the ECan Act), passed under urgency before the Easter recess, changed Canterbury’s water conservation landscape. It handed power to administer water conservation orders (WCOs) to the newly appointed ECan commissioners, on the grounds that to do their job properly, the commissioners need a fresh start and a free hand.

Water conservation orders are the national parks of water management. They recognise and protect outstanding water body values. There is a national interest in them. They are not normally governed by regional councils.

The Act included special provisions for the Hurunui WCO. Recreational NGOs (Fish and Game, et al) had applied for a WCO to counter the Hurunui Water project— a damming and irrigation project. They were exercising their Resource Management Act right to make submissions to the Environment Court.

The government cut this litigation process off at the knees. The ECan Act ousts Environment Court jurisdiction on the Hurunui WCO, and gives it to ECan instead: see part 2 of Schedule 2. Chances are, this condemns the Hurunui, converting it to rural working purposes.

The government hasn’t finished cleaning up Labour’s legacy mess on the Foreshore and Seabed Act (which fellow Pundit Andrew Geddis described as a “stain on New Zealand's Parliament”), before making another one of its own.

I write this warily, with the spectre of holocaust analogies hovering over the keyboard. Make no mistake: there are some very important and sensitive respects in which the two legislative Acts are not at all similar. They cannot be classed as equivalents; the foreshore and seabed issue had a scale and significance all of its own. It was discriminatory, extinguishing only Māori customary title, not European forms of title, and it undermined the Treaty partnership.

So I’m not belittling that. And yet, there are enough points of similarity to make a grubby fingerprint, or some sort of nasty reflux.

The Foreshore and Seabed Act, too, extinguished a litigation right. The Court of Appeal had held that the Māori Land Court had jurisdiction to hear Māori claims to customary title of the foreshore and seabed. The right to return to court to test that case has been the Māori Party’s refrain, and bottom line.

Both Acts conjured out of expediency some quite novel administrative arrangements. In the ECan Act, this takes the form of the commissioners, and their unprecedented responsibility for managing WCOs. Under the Foreshore and Seabed Act, the court was able to make a preliminary finding about the veracity of Māori grievances, which would then be handed over for negotiation between Māori and the Crown.

Both instances spiked goodwill, on bedrock issues of national importance, by forcibly and unilaterally ripping away the bone of contention. This joint media statement from five NGOs charges the government with breaching the Land and Water Forum’s collaborative good faith process.

The Land and Water Forum was supposed to be the basis for a durable national solution on New Zealand’s next big policy challenge. But as with the foreshore and seabed, the government, by jumping pre-emptively, has poisoned the well.

And the Foreshore and Seabed Act gave the Māori Party its mission statement and ticket to Parliament. The Greens already exist, of course, with a loyal five-percentish base. And as I noted on the comments thread of Tim’s post here, they may find their 2011 ticket on another bandwagon Coromandel mining, rather than the Hurunui.

But Quentin Duthie, conservation advocate for Forest & Bird, says that the government’s recent serial attacks on the environment have reinvigorated the environment movement, and a public environmental consciousness. Miscellaneous NGOs, that were always broadly friendly, but with somewhat random agendas, have coalesced. (And I am living it: I thought, when I started writing for Pundit, I would prattle on quite a lot about my garden, but the politics has not stopped.)

Duthie also says this can work for good or bad. It’s unfortunate, he says, because it draws energy away from positive individual and community initiatives, and critical global challenges like climate change, into defence of what New Zealanders thought was protected.

Labour underestimated the power of the foreshore and seabed issue; or at least, they recognised its power, but overestimated their own curative capability. They are ruing it to this day, as they try to find a way to spike the Māori Party’s guns.

And similarly, we never could have expected, in electing this National government, that the environment movement would have so much to thank them for. National may go down in the annals of Green history as a better, greener government than we knew, or they intended.

Comments (9)

by Ian MacKay on April 15, 2010
Ian MacKay

Claire:"Chances are, this condemns the Hurunui, converting it to rural working purposes."

Does this mean that the new ECan can bypass the process so that rights to access water in the Hurunui can be granted regardless of anyone else's needs or concerns?

Does it mean that other Canterbury River water rights can be given to the farmers in spite of the concerns of anyone else?

I have asked this before and get contradictory answers.

by Paul McMahon on April 16, 2010
Paul McMahon

Great post Claire.

I was at a public meeting tonight with 300 other people in Canterbury - there was a lot of anger and energy in the room. The water and democracy issues seem to be mobilising a broad cross-section of people.

I think/hope National have bitten of far more than they can chew.

 

by Claire Browning on April 16, 2010
Claire Browning

Ian, I'm by no means expert. Where is Simon when I need him?

But my (second hand) understanding is that no, ECan would not be entitled to act "regardless of anyone else's needs or concerns". If they did, I should think there would be grounds for judicial review. However, this press release, which includes Gary Taylor, whose expertise I trust, explains how the decision-making grounds have changed, to give more weight to economic values:

The criteria for deciding WCOs were previously set out in Part IX of the Resource Management Act and the key test was whether the water body had ‘outstanding amenity or intrinsic values’. Now the test to be applied both to new applications and to proposals to amend existing WCOs is no longer the matters in Part IX, but whether the protection of a water body promotes ‘sustainable management’, while also considering the previously non-statutory Canterbury Strategic Water Study. The effect of the change is to give economic values a prominent role in the decision process, treating the river not as the equivalent of a national park, but rather as a ‘working river’.

by Claire Browning on April 16, 2010
Claire Browning

Paul, was that this meeting? I am very jealous -- want to tell more about it?

by Claire Browning on April 16, 2010
Claire Browning

I should also say that, as far as the National Party is concerned, it might have behaved badly in principle, and stupidly politically, but at least it is not wholly inconsistent. It voted against F&S for two main reasons: one of those is not applicable here (the canard that it gave too much to Maori -- 'iwi/kiwi'); the other was bureaucratic confusion, which in the ECan context, is one of the justifications for opening up the WCOs.

The ACT party, on the other hand, said it supported citizens' right to have their day in court. And yet here we have Rodney Hide, one of the architects of the ECan legislation. If nothing else, he ought to be asked to explain how and why his party's philosophy has changed.

I rise on behalf of the ACT party to oppose the foreshore and seabed legislation. ACT is a party that believes in private property rights, the rule of law, the citizen’s right to go to court, and one law for all. This bill violates all of those principles. ... Let me make it quite clear that in opposing this bill I am upholding the rights of all citizens to go to court ... Having decided not to appeal, the Government should have simply allowed this matter to proceed through the courts ... -- Hon Richard Prebble, Hansard, vol 617, p 12718.

by Simon on April 19, 2010
Simon

Claire,
You are too kind. Here is my five cents worth.
Ian MacKay asks:
"Does this (the sections concerning water conservation orders ("WCOs") and the Hurunui River water conservation order in particular in the Environment Canterbury (Temporary Commissioners and Improved Water Management) Act 2010) mean that the new ECan can bypass the process so that rights to access water in the Hurunui can be granted regardless of anyone else's needs or concerns?"

No the special legislation doesn't bypass the process, it completely rewrites the process!
Specifically, it inverts the old decision making criteria so that development of water resources is more important in the decison on a WCO than preserving rivers in their natural state.

In a tribunal decision on a WCO (under Section 207 of the RMA) environmental criteria ("outstanding amenity or intrinsic values which are afforded by waters in their natural state" s 199 RMA) have predominance over resource development criteria, which were still a matter the tribunal "shall also have regard to" (S 207(b) http://www.legislation.govt.nz/act/public/1991/0069/latest/DLM236761.html).

The Hurunui River WCO application, even though it was applied for and had it's tribunal stage prior to the Ecan Act, is now to be decided by the new Ecan/Dame Margaret. See Section 46 of "the Ecan Act". (http://www.legislation.govt.nz/act/public/2010/0012/latest/DLM2850426.html)

Dame Margaret/Ecan's decision on the Hurunui WCO is to guided by Section 50 of "the Ecan Act"
(http://www.legislation.govt.nz/act/public/2010/0012/latest/DLM2850432.html

The decision must have particular regard to the vision and principles of the Canterbury Water Managment Strategy (S 50(2)(a)(ii). The "vision" is now Schedule 1 to the Ecan Act. (http://www.legislation.govt.nz/act/public/2010/0012/latest/DLM2850463.html)

I am afraid when I see the "vision and principles of the CWMS", it just seems a rehash of "resource management" apple pie mantras, just like sections 5, 6 and 7 of the RMA.

The decision must also have particular regard to the old WCO criteria; "outstanding amenity or intrinsic values that are afforded by waters in their natural state" (S 50(2)(a)(i) and S 50(3)(a)).

But the decision must be made foremostly "subject to Part 2 of the RMA" (S 50(2)). That wording is from s 104 of the RMA (the section about how to consider the granting of resource consents). It means that ultimately the decision on a WCO should 'promote sustainable management' of resources as defined by court interpretations of Section 5 of the RMA. Just like a consent decision.

The MfE and Court-approved interpretation of "sustainable management" is the "broad overall judgment" weighing all matters. In other words, it is a balancing exercise. So what will this sort of decision look like in practice?

I suggest it will look exactly like the recent decision to grant consents to dam the Mokihinui River for hydro electric power within a conservation area. See the article 'Watchdogs explain giving dam go-ahead' 8 April 2010 in the Herald (http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10636980).

The three-person hearing panel made a split 2 vs 1 decision to grant the consents. The civil engineer and the west coast councillor outvoted the specialist freshwater ecologist, who considered the dam should not go ahead due to significant adverse effects on freshwater ecosystems.

We may ask "how did the Hearing Panel "have regard to" the adverse effects of the dam on freshwater ecosystems?". The answer is that one of the three panel members recognised and documented the importance of the freshwater ecology in their decision and the other two considered the instream values worth sacrificing for the power.

To me that is a perfect example of what is wrong with the "broad overall judgment" approach to sustainable management  It is "weak sustainability" writ large.

The definitions section of the Ecan Act also defines the term 'WCO application' to include an application to revoke or vary an existing WCO. Applying to revoke or vary a WCO is provided for in S 216 of the RMA. But there is a high threshhold as it's still the same S 207 decision-making criteria "outstanding amenity or intrinsic values" of water in it's natural state.

For example, the Majac Trust (the Talley family) tried to vary the Buller River WCO to allow a hydro dam on the Gowan River. That application was declined. http://www.mfe.govt.nz/issues/water/freshwater/water-conservation/buller...

The Ecan Act now means that Canterbury's WCOs, which were established against criteria of "outstanding intrinsic values", can now be varied or revoked by appications that will be considered against a criteria of fairly weak sustainability.

It is no wonder Chris Hutchings of the NBR decribes the Ecan Act as a major victory for the irrigators.

by Ian MacKay on April 20, 2010
Ian MacKay

Thanks Simon and Claire. It will remain to be seen just how the rules are interpreted. Sounds a bit ominous to me and if the worst happens in spite of valid concerns, then we should be very afraid no matter where we live.

by Simon on May 19, 2010
Simon

Sorry to come back to an old post, but, well, just in case any one still has any doubt what the removal of Fish and Game's right to its appeal of the Hurunui River water conservation order is all about ...um is anyone actually still in doubt?

NBR journo Chris Hutching, has wriiten a helpful "Questions and Answers for Irrigators" in the National Business Review of 18 May 2010. (http://www.nbr.co.nz/article/qa-the-environment-canterbury-saga-123099 'The Ecan Saga').

Q/ Why were democratically elected Environment Canterbury councillors replaced with government-appointed commissioners chosen by Environment Minister Nick Smith?

A/ To speed up water allocation to irrigators and electricity generators by making it easier to overturn water conservation orders that set minimum flows...

The preamble to the legislation specifically says that speeding up the process is aimed at facilitating planned irrigation dams and canals harnessing water from the Hurunui River. Background briefing papers to the cabinet also describe plans for hyrdro electric generation and irrigation schemes using the Rakaia River and other main braided rivers in the region

Hutching says also look out for a move by Central Plains Water (http://en.wikipedia.org/wiki/Central_Plains_Water) to amend the Rakaia River water conservation order (http://www.legislation.govt.nz/regulation/public/1988/0241/latest/DLM126...) so they can raise the level of Lake Coleridge (http://en.wikipedia.org/wiki/Lake_coleridge) to use it as a storage reservoir for their irrigation scheme.

I just hope they don't mess with "Lakey".

by Simon on May 19, 2010
Simon

Actually, it seems the plan to lift the WCO protection from Lake Coleridge as a tributary of the Rakaia River seems to have been on the agenda from October 2009. Have a look at 'Lake seen as water answer' (http://www.stuff.co.nz/the-press/news/2980256/Lake-seen-as-water-answer) David Williams, The Press 20/10/2009.

Hundreds of millions of dollars might be spent transforming Canterbury's Lake Coleridge for hydro power and irrigation storage, TrustPower says.

The plan has been discussed by the Government, and Cabinet ministers will be briefed further this week.

Discussions have included the obstacle of a water conservation order on the Rakaia River that bans water takes above the Rakaia Gorge.

Fish & Game says any threat to the order will be vigorously opposed.

It look like that obstacle is out of the way, then.

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