Under the Resource Management Act 1991

Transcription

1 Before a Special Tribunal Under the Resource Management Act 1991 In the matter of Application for a Water Conservation Order in respect of Te Waikoropupū springs and associated water bodies (including the aquifers, Takaka River, and tributaries) Applicant opening legal submissions 17 April 2018 Applicant's solicitors: Maree Baker-Galloway Rosie Hill Anderson Lloyd Level 2, 13 Camp Street, Queenstown 9300 PO Box 201, Queenstown 9348 DX Box ZP95010 Queenstown p f maree.baker-galloway@al.nz rosie.hill@al.nz

2 May it please the Tribunal 1 This application (Application) for a water conservation order (WCO) over Te Waikoropupū springs and associated water bodies was lodged with the Minister for the Environment originally in December After a period of further refinement to the Application, it was re-lodged with the Minister for the Environment in April 2017, with significant additional information and technical evidence in its support. 2 Prior to lodging the co-applicants undertook targeted consultation gathered information and views, commissioned research, and undertook their own analysis with the support of many others in the community and further afield. 3 These legal submissions address the following matters in order to assist the Tribunal in its inquiry: (a) A general overview of Part 9 of the Resource Management Act 1991 (RMA) and the Water Conservation Order (WCO) regime it establishes; (b) (c) A description of the outstanding values of Te Waikoropupū and associated waterbodies, as advanced by the Applicants; An analysis of how those outstanding values can adequately be protected through a WCO regime, as advanced in the Applicants' evidence 4 I address in more detail specific legal points, and key matters of evidence, namely: (a) (b) (c) (d) (e) (f) (g) (h) (i) Application of the test for "outstanding" Meaning of requirements to "sustain" or "protect" Particular values natural state, water quality, amenity and intrinsic values Needs of primary and secondary industry and the community Water quality prohibitions and restrictions Water quantity prohibitions and restrictions Discharge prohibitions and restrictions Relevance of Part 2 of the RMA Consultation undertaken page 1

3 5 I provide extracts of case law and the legal framework applicable to a WCO in Appendix 1 to these submissions. The intention of this structure is to assist the Tribunal with firstly an overview and introduction of this Application and the decision making framework, whilst allowing further reading in the Appendix if a deeper understanding of specific legal points is required. Te Waikoropupū Springs 6 The iconic Te Waikoropupū in Mohua is the largest freshwater puna in New Zealand and the Southern hemisphere. It is a registered Wāhi tapū (sacred place), a taonga tuku iho (treasured resource), and is listed as a Water of National Importance for biodiversity. The water is amongst the clearest in the world. The underground Arthur Marble Aquifer (Aquifer) is like the engine room or 'factory' contributing to those outstanding characteristics seen on the surface at the Springs. The Aquifer is crucial in creating the remarkable qualities of the water, including its outstanding clarity. This application seeks to recognise and sustain the Aquifer's mauri (life force) and wairua (spirit), and its associated physical and spiritual health and wellbeing 7 The overwhelming and significant number of submissions in support of this application are evidence of its significance to the community - it has touched the lives of many people. Whether local or visiting, I submit that there is no denying the Springs are a unique and special place for those who are fortunate enough to experience them. The draft water conservation order recognises the benefit and worth of visitors being given the opportunity to respect and appreciate the iconic landforms, landscape, natural, scenic and cultural values of Te Waikoropupū, ideally preserved in perpetuity. The order will allow the public to continue to visit and enjoy Te Waikoropupū Springs. Overview of the WCO regime 8 This application is unique in that this is the first opportunity for WCO protection over an underground aquifer system. 9 The purpose of WCOs is established by section 199. In essence, what the WCO regime requires is that where there are outstanding features or characteristics (of the types described in section 199) present in a water body, then in the absence of something truly exceptional, there is a presumption that those outstanding features or characteristics should be preserved or protected, and that an Order is an appropriate mechanism to achieve this. 10 Against this background, decisions purely subject to Part 2 (i.e., not under Part 9) are to occur subject to any water conservation order. That is why the Act expressly provides that regional and district planning instruments and resource management decisions, cannot be inconsistent with any water conservation order page 2

4 (section 67(4), 75(4), 217). This also explains why water conservation orders are phrased in terms of restrictions and prohibitions on the regional council's ability to provide for matters in its plans and in resource consents issued by it (sections 200 and 217). 11 Water Conservation Orders sit high in the hierarchy of statutory instruments under the RMA. They come into force by way of Governor-General by an Order in Council, (section 214) and have the status of a Legislative Instrument. 12 In 2004 Judge Jackson's division of the Environment Court issued a substantive decision in respect of the application for a WCO on the Rangitata River. This is the most substantive decision on an applicaiton to have been issued by the Court pursuant to the RMA, (as opposed to the Water and Soil Conservation Act (WSCA), or applications to amend WCOs), and therefore assists in the interpretation and application of the water conservation order provisions of the RMA. Rangitata South Irrigation Ltd v New Zealand and Central South Island Fish and Game Council C109/04. Further detail on this case is included in Appendix His Honour determined that case law on identical phrases used in the previous WSCA regime and which are reflected in Part 9 of the RMA provide guidance The Rangitata decision confirmed there is a presumption in favour of protection/conservation once a characteristic is found to be outstanding. Therefore one matter that clearly has been imported and that binds this Tribunal, is the presumption that outstanding characteristics should be protected. Section 199(1) therefore: focuses on the protection aspect of the conservation purpose by excluding consideration of matters which are opposite to that purpose The Court, very alive to the differences between the WSCA and RMA 3, considered that the presumption previously identified under WSCA should continue under the RMA given the purpose contained in s199 and the requirement to apply only those strongly protective, non-repugnant, provisions in Part 2. 1 Rangitata South Irrigation Ltd v New Zealand and Central South Island Fish and Game Council C109/04 at [32]. 2 Rangitata South Irrigation Ltd v New Zealand and Central South Island Fish and Game Council C109/04 at [23]. 3 Rangitata South Irrigation Ltd v New Zealand and Central South Island Fish and Game Council C109/04At [32] [33] page 3

5 16 Section 199 applies "notwithstanding anything to the contrary in Part 2", which has been held by the Courts and Special Tribunals as meaning that only the provisions of Part 2 that accord with the purpose of the Order have weight. Part 2 provisions that are contrary to recognition, protection and preservation of outstanding values do not need to be applied in the standard way. Scope of this Water Conversation Order and intended effect 17 The WCO does two things: (a) (b) Recognises and specifically identifies the outstanding characteristics, imposes a set of restrictions on the unitary authority's discretion as it relates to issuing consents, and permitting activities in its regional plan, with the aim of protecting those outstanding characteristics; and 18 In respect of the first point, the outstanding characteristics and values associated with Te Waikoropupū are agreed in the planning caucusing as being appropriately described in Schedule 2 4. Although some of the planners considered that these characteristics and features may be better described in 'line with' the NPSFM values 5, the Applicants consider that the outstanding characteristics as listed are appropriately worded in both Schedule 2 and clause 4 in more detail, in a manner that is consistent with section 199 (2). There is no case law on WCOs which would suggest a preference or necessity to assimilate values of an outstanding waterbodies to generic values of water in a national policy statement existing at the time. These outstanding characteristics are further described below in section 'Outstanding' with reference to the evidence and caucusing reports where possible. Having established the outstanding values in respect of Te Waikoropupū, and as discussed further below, the presumption for conservation and protection of those values, it is then important to consider what restrictions and prohibitions will afford that protection. The draft Order consists of prohibitions and restrictions to abstraction (water quantity) and discharges (water quality) as discussed below. Water quantity limits 19 Currently the draft order prescribes a limit on water quantity through clause 8 which ensures that no resource consents may be granted that would allow for additional abstraction of groundwater from the Aquifer, from any part of the Te Waikoropupū discharge zone, or from any waters which contribute to the 4 Planning Caucus Report at [15]. 5 Ibid, at [15], [25] page 4

6 recharge of the aquifer (unless the abstraction point is downstream of the recharge zone). 20 The hydrologists agreed in caucusing that abstraction anywhere in the Arthur Marble Aquifer (AMA or Aquifer), including the full extent of the confined portion of the Aquifer, has the potential to affect the flow at Te Waikoropupū Springs. The effects will vary depending on connectivity and distance. 6 The hydrologists also considered it was beyond their expertise to comment on what allocation limit might be appropriate from an ecological point of view The draft Order essentially sets a limit for no further abstraction from the aquifer and contributing waters above and beyond the current implemented consented levels. This is a precautionary approach, which, based upon the hydrological agreement discussed above is sought given any such abstraction has the potential to affect flows at the Springs. 22 I also refer to the memorandum of Ms Cohen appended to hydrology caucusing memo, which is of assistance in supporting the status quo as the allocation regime for the AMA, for the following reasons: (a) (b) (c) (d) The suggested allocation limit from the Takaka FLAG process, based upon Cawthron's report is 766l/s. This equates to 10% MALF as an aquifer allocation limit. The current allocation is 544l/s which is beyond the current limit of 500l/s set in the Regional Plan; The complex hydrological and geological nature of this catchment does not necessarily mean the percentile method for allocation limits is applicable; Effects on Te Waikoropupū will depend on how full the Aquifer is at the time of take and where the take occurs. The location of a water take will have varying effects given the large recharge zone, ephemeral stretches of the Takaka other rivers and springs throughout the catchment and the contributing upland pressure component; If an allocation limit is set by the Tribunal that is greater than the current level being abstracted, further work would be required to determine constraints of where and when water can be taken as well as how much water can be taken as these aspects will contribute to varying degrees to how the Aquifer is able to support Te Waikoropupū Springs in its current outstanding state. 6 Hydrology caucusing report at [15]. 7 Ibid, at [21] page 5

7 23 The Applicants support Ms Cohen's comments, in particular, with respect to the uncertainties as to how further abstraction would impact upon the Aquifer itself and the Springs. 24 This is also further discussed in Dr Fenwick's summary which discusses the interconnection of ecology and flow regimes. Dr Fenwick considers how water velocities within the aquifers determine the rates of dissolved oxygen and nutrient delivery. Thus, aquifer water level regimes similar to those over the last 20 years and monitored at several upstream locations, seem warranted to sustain finescale water velocities and flow directions, thereby minimising any adverse effects on the subsurface groundwater dependent ecosystems. 25 Dr Fenwick further considers the flow regime and allocation limits proposed by Dr Young (historical flow and MALF methodology discussed at para 62 of Dr Young's evidence) is untested for subsurface groundwater dependent ecosystems and lacks detailed science and local aquifer data to be appropriately applied (as compared generally to surface water). Dr Fenwick concludes: (a) the flow regimes, abstraction allocations and minimum flows for this very substantial ecosystem should not be established based on such incomplete science. Thus, I support the draft WCO s Clause 8 because of the very high ecological values within the AMA and associated aquifers. 26 Given this, and the unwillingness generally of the hydrologists to put a figure on further abstraction, the Applicants continue to seek clause 8 as an appropriate precautionary approach to limiting further abstractions. Water quality limits 27 By setting water quality limits in Schedules 4 and 5, the WCO would prevent the unitary authority from issuing consents, or permitting activities, unless it is satisfied that on its own, or cumulatively, the consented or permitted activity would not cause (or exacerbate) a breach of Schedule 4 and The expert water quality caucusing concluded on a revised schedule 4 for water quality limits within the Springs which amends limits for prescribed toxicants as originally provided in the draft Order In respect of the revised limits, the Applicants consider, based on the advice of Dr Fenwick that additional limits should be included in Schedule 4 which are relevant to sustaining ecosystem health. Furthermore, and as discussed in the evidence of Dr Fenwick. the revised limits include those which were agreed in the ecology 8 Water Quality caucus report at [13] page 6

8 caucus report, and although these are not all 'current state', In the interests of working with Submitters and seeking a pragmatic and appropriate outcome, the Applicants are satisfied those limits should protect the outstanding values. 30 The clarity limits prescribed in the Applicants' version 2 of the draft Order related to the previous measurements of 63m clarity. Given the recent NIWA clarity monitoring undertaken at the Springs, it is likely that this limit and the proposed measurement methodology will now need to be updated. The Applicants propose that further caucusing and / or expert recommendation is received in respect of suitably revised limits which will ensure the current outstanding water clarity values are retained. 31 It is further noted, that these limits are applicable to monitoring at Te Waikoropupū Springs themselves. As acknowledged in the hydrology and ecology caucusing, the Aquifer is actually the core system which ensures the outstanding water quality and clarity, which in turn is then evident at the Springs. Therefore, any water quality monitoring and prescribed limits at the Springs, rather than the Aquifer will not necessarily capture all possible degradations to those outstanding characteristics before they have occurred. This is particularly so given the lag time, and hydrologically complex connections between Aquifer and Springs. To draw a simple analogy, measuring water quality at the springs themselves is like measuring quality in the artesian water bottle after it has been bottled, rather than assuring that purity by measuring water in the factory before bottling (i.e. in the Aquifer). For these reasons, the Applicants agree with Dr Fenwick's recommendations, that the schedule 4 limits should also be applied upstream in contributing underground water sources the identification of which should ideally also be the subject of further caucusing. 32 Given this, the limits in Schedule 4 as revised through caucusing and further evidence represent a progressive limitation which will seek to preserve the current outstanding values and characteristics of the Springs. All water quality experts agreed that a precautionary approach is necessary to account for uncertainties which exist. 33 The water quality caucusing and the planning caucusing both recommended that the Schedule 5 triggers could be deleted. However the Applicant does not propose to remove those triggers as, even though no data may be available for some triggers at this stage, those may become relevant and at issue in the future (for example with an increase in sector activities such as mining). The ANZECC guidelines are best practice current guidelines. The reasoning to remove these in the WCO and instead progress through a plan change 9 is not justified as it is not 9 Water Quality caucus report at [21] page 7

9 explained why the Schedule 1 process is preferable to this community consultative process. 34 Furthermore, it is noted that the evidence of Dr Fenwick does not necessarily oppose the inclusion of Schedule 5, but rather considers that for pragmatic reasons, those limits could be monitored only when it is suspected that groundwater or downstream ecosystems could be threatened. Should this occur, Dr Fenwick considers that monitoring within the aquifer would be essential to guide timely management intervention. 35 Including the triggers in Schedule 5 in the Order does not necessarily require the implementation of long term routine monitoring by the Unitary Authority. Instead, the Council could simply ensure a consenting framework that does not allow activities that discharge those contaminants as permitted, and when considering such consent applications, Schedule 5 comes into consideration. Again, I remind the Tribunal that the specific mechanics of implementation of the Order are not the primary matter for consideration at this stage. What the Tribunal must turn its mind to is, having established on the evidence before it, that outstanding values and characteristics of Te Waikroopupu and the Aquifer exist, what protections will necessarily be implemented to ensure those remain? As discussed in Appendix 1 case law, evidence of a threat is not necessarily required to impose a restriction or limitation to protect an existing outstanding characteristic. 36 The limits and triggers in schedule 4 and 5 are relevant to all of the contributing waters (Te Waikoropupū Springs itself, the Aquifer, and hydraulically connected waters, in schedules 1-3) in that discharge of any contaminants into any of these waters must not ultimately cause a breach of the proposed limits. This is further supported by the conclusion reached by water quality experts, agreeing 'that that the complexity and interactions of the contributing water bodies to the Springs are such that based on current knowledge, we are unable to suggest any way to manage water quality from each contributing water body separately' The specific mechanisms to actually implement the WCO restrictions and bottom lines will therefore be a separate process, but would logically occur through the Schedule 1 process of detailed rules in its plan. The details and specific mechanics of that process are not things which the Tribunal needs to turn its mind to in this hearing. In respect of a land management regime for example, this is something the unitary authority would formulate separately in order to ensure it is not permitting or consenting activities that result in a breach of the limits. 10 Water Quality caucus report at [29] page 8

10 38 It is also important to bear in mind that a WCO is not the best mechanism to require enhancement of water bodies (ie improving degraded water bodies). This again is better done by the unitary authority, as it gives effect to the National Policy Statement Freshwater Management requirement to reduce degradation and over allocation A more detailed explanation of how WCOs restrict the exercise of regional councils' discretion is included in the summary at Appendix 1 to these submissions. 40 Some submitters are concerned the proposed WCO will prevent or inhibit current farming operations. This is not the intention, or ability, of the WCO regime. The intent all along from the co-applicants has been to not impact on the ability of existing consent holders to obtain new consents on similar terms for the same volumes, discharge rates, rate of take and minimum flow restrictions, on the expiry of the existing consents. If, over time it becomes apparent there are lag effects arising from existing activities causing degradation of the outstanding values (that is not yet apparent), the Tasman District Council would be required, regardless of the WCO, to implement measures to stop that degradation and restore the waters to their outstanding state, assuming the NPSFM still requires degradation to be remedied. The case law to date has the effect that WCOs cannot impose terms to enhance from the status quo - they are restricted to just sustaining, resources This exclusion clause is not permitting such takes to be 're-consented', it is simply not prohibiting them, as an environmental bottom line. So it is not grandfathering in that sense that is up to the unitary authority. On the merits of any application it may or may not grant water permits on similar terms in order to grandfather those uses. The bottom line set by the WCO as sought includes no prohibition on the granting of further consents on the same or similar terms as existing, implemented consents. Ideally, this clause would also reference consents which are implemented as at the date of the Application, so that the limit reflects currently consented and implemented abstractions. However, given the order will not take effect until it is finally determined (say 1 2 years from this hearing), this is not considered legally possible. The next best outcome is for the exclusion clause to refer to consents implemented as at the date of the commencement of the order. 11 NPSFM Objectives A2 and B2 12 Rangitata South Irrigation Ltd v New Zealand and Central South Island Fish and Game Council C109/2004, at [232] [233] page 9

11 42 It is however noted that, in order to sustain those present outstanding values of the Springs and the Aquifer, the Applicants wish to work constructively with Tasman District Council over this intervening period to have input into potential further permits. It is paramount that Tasman District Council responsibly implements its default limit on allocation in its Plan until the conclusion of this Order is reached. 43 This is also relevant to those submissions which have suggested that the WCO should be progressed after the conclusion of the FLAG process and / or that the WCO objectives are better pursued through the RMA Schedule 1 plan making regime. This is also the point made in Ms Robb's evidence for TDC. In my submission, A WCO should not be considered as being in conflict with a regional plan, or a subservient consultative process. The Tribunal are reminded that, technically, it does not have discretion to consider the draft FLAG 'decisions' as this is not yet at the stage of being a 'proposed plan' and is not one of the matters within section 207(c) to which regard must be had. This is an important point in light of the suggested increased abstraction level proposed in the FLAG submission to the WCO. 44 The Applicants have established in their application and evidence, the fact that Waikoropupū Springs and associated waters are nationally outstanding, worthy of national recognition and protection in a natural/current state. And that the contribution of Schedule 3 waters to those outstanding values also warrants recognition and protection if the prescribed limits are to be maintained. 45 In this sense, a WCO should be seen as an opportunity and an instrument which works alongside a regional plan, making up a part of a comprehensive integrated management regime for a catchment. Further changes to draft Water Conservation Order (version 3) 46 I attach as Appendix 2 to these submissions, a revised version for the Applicants' draft WCO, following further refinements as a result of expert caucusing. 47 The changes made since 'version 2' lodged with Mr Beale's planning evidence are track-changed and highlighted yellow. In summary those changes are: (a) Refined contributing water boundaries in scheduled maps (i) Figure 1 in version 3 has been further refined to Mr Thomas' Figure 7, as agreed in hydrology caucusing to appropriately capture contributing waters. (b) Amended Schedule 4 limits page 10

12 (i) (ii) The ecology joint statement assessed the Schedule 4 limits as proposed by the Applicant and revised those limits further based upon toxilogical evidence. Dr Fenwick further considers those revised limits in his summary statement, noting that he considers those to be appropriate monitors, subject to those being expanded for groundwater monitoring at several locations within the upstream aquifers, and adding further critical limits as specified in his appendix. The further limits proposed are discussed in Dr Fenwick's summary, based upon their importance to not only on the Springs' water quality, but aquifer water quality and continuing ecosystem health. This includes the recommendation for limits of water temperature, electrical conductivity, PH, flow, total dissolved nitrogen, and ecosystem health, which ideally would be populated by further expert caucusing. (c) (d) For the reasons discussed above, and in line with the precautionary approach applicable to this outstanding and significant resource, the Applicants do not propose to amend Schedule 5 as submitted in the Application. Trustpower proposed exclusion clause (i) (ii) Trustpower's proposed exclusion clause 13 was tentatively accepted by the Planner's joint statement, subject to further hydrological input. As stated in the hydrology joint statement, the hydrologists have not been able to definitely comment on the appropriateness or otherwise of this exemption. The Applicants therefore remain unconvinced that unrestricted changes to flow patterns and even water quality (sediment discharge from storage) are appropriate. However the Applicants want to resolve this difference with Trustpower and will continue to work with them towards this objective. Outstanding characteristics features and values 48 The test for outstanding in the context of section 199 was clarified and confirmed by Judge Jackson in the Rangitata ruling: [17] In the first case on Part 9 of the RMA Re an Inquiry into the Draft National Water Conservation (Kawarau) Order [C33/1996 at p 5] the Planning Tribunal referred to the reports in Re Draft National Water Conservation (Mataura River) page 11

13 Order (C32/90) and Re Draft Water Conservation (Mohaka River) Order (W20/92), and stated that the Tribunal held that: the test as to what is outstanding is a reasonably rigorous one and that to qualify as outstanding a characteristic would need to be quite out of the ordinary on a national basis... We accept Mr Milne s submission that: the amenities should stand out on a national comparative basis. If one takes a national comparative approach the fact that the wider region is well endowed with similar high quality features, may well suggest that particular waters do not stand out when considered in a national context The evidence of Dr Fenwick establishes that ecological values of the waterbodies are not only nationally out of the ordinary, but also rank internationally. Similarly, Professor Williams considers that the Springs are of national and international significance from a hydrological point of view, and in particular that the Arthur Marble Aquifer is the largest karst aquifer in New Zealand. Those conclusions have not been contested in any other expert evidence, nor in the respective joint witness statements. In respect of water clarity, the ecology caucusing statement refers to clarity as being consistently high, consistent with the recently released NIWA report on clarity, which states 'Te Waikoropupū Springs are iconic nationally and internationally, for their discharge volume, visual clarity and the blue-violet water colour, which is due to high optical water purity'. 14 The planners agreed at para 15 of their caucusing statement as to the outstanding values for Te Waikoropupū which include those values discussed further below. Natural state 50 In the Rangitata case 15, the Environment Court found that: [20] 'Natural state' means towards the pristine end of the artificial/polluted to pristine continuum. 51 The purpose of water conservation orders as set out in section 199 of the RMA makes a distinction between waters in their natural state, and waters that otherwise support outstanding characteristics. Both categories once established trigger the presumption in terms of preservation and protection. If they are in their natural state, then the purpose is to recognise and sustain the outstanding 13 Rangitata South Irrigation Ltd v New Zealand and Central South Island Fish and Game Council C109/2004, at [17] 14 Continuous Water Clarity Modelling at Te Waikoropupū Springs, Mark Gall, April 2018, at Page Rangitata South Irrigation Limited v NZ and CSI Fish and Game Councils, C109/2004 at[20] page 12

14 amenity or intrinsic values of waters. Where waters are no longer in their natural state, then the purpose of an order is to recognise and sustain the amenity or intrinsic values of those waters which in themselves warrant protection because they are outstanding. In either case the waters are to be sustained regardless of anything to the contrary in Part 2 of the Act. 52 In light of Rangiata cited above, I submit that in the context of planning for the future management and protection of water, a definition of natural state cannot be one which assumes zero interaction from humans has occurred. If natural state is water towards the pristine end of an artificial continuum, then I submit there can be no question that the Schedule 1 and 2 waters subject to this Order are indeed in a natural state. 53 The only reason why the planning caucusing has determined these rivers not to be in a natural state appears to be based on the operation of the Cobb Hydroelectric Power Scheme. In response, I submit that guidance can be taken from case law developed under section 6 of the Act. A similar concept of a continuum of natural state is also seen in case law considering natural landscapes and features under section 6 of the RMA. In that jurisprudence it is commonly accepted that 'natural' is a word indicating a product of nature which can include things such as pasture, exotic trees, domestic wildlife (as opposed to man-made structures). 16 Thus, in the landscape context, it is acceptable that the hand of human influence does not necessarily make something not 'natural'. Similar, the alteration of flows due to the Cobb Scheme should not be considered as altering natural state but for the immediate dam structure itself, this scheme does not significantly modify the natural workings of the Springs an Aquifer system. On this point, Professor Williams considers that: The net annual effect of Cobb Reservoir on Te Waikoropupū Springs is negligible, because it does not influence the amount of water coming down the Takaka River, only its timing. However, it has the potential to influence the springs, because if the reservoir held back water during wet conditions, when the aquifer is full and overflow occurs down the channel, but later released water when the middle Takaka River had become dry, then the release would recharge the aquifer and so reduce its draw-down, hence maintaining spring flow No other evidence considers that the waters are not in their natural state due to ecosystem and habitat modifications. In fact, the recent NIWA clarity report 16 Harrison v Tasman District Council [1994] NZRMA Evidence of Paul Williams at [78] page 13

15 suggests that the highest recordings of 81m visibility are in fact very near to the visibility of optically 'pure water' Turning now to the specific features of the draft WCO, the following outstanding characteristics, features, and values depend on natural/current state of Schedule 1 and 2 waters: (a) (b) (c) (d) (e) (f) (g) (h) Significance in accordance with tikanga Māori Cultural and spiritual purposes values Biodiversity Habitat for stygofauna Ecosystem services Amenity and intrinsic values Recreational values Natural characteristics water quality and clarity Scientific and ecological values water quality and clarity 56 Each of these characteristics are further addressed below. Outstanding for cultural and spiritual purposes, and in accordance with tikanga Mᾱori. 57 The evidence of the three kaumatua of Ngāti Tama and the independent expert evidence of Mr Tamati Waaka establish the outstanding cultural and spiritual significance of Te Waikoropupū and associated waters, to Ngāti Tama. 58 Under section 199(2)(b) (v) and (c) of the Act, a WCO may provide for the protection of characteristics which any water body has or contributes to, and which are considered to be of outstanding significance for cultural and spiritual purposes and in accordance with tikanga Māori. 59 As discussed generally in the Appendix 1 case law, the test for 'outstanding' is considered in the Rangitata decision as that which is out of the ordinary on a national basis. This interpretation is applicable to all values under section 199, however, the Special Tribunal when considering the Rangitata application further qualified this comparative basis in the context of tikanga Māori, stating that: to suggest that this river should be compared with other rivers such as the Mohaka or Motu, valued by the other iwi, is not in accordance with tikanga Maori Continuous Water Clarity Modelling at Te Waikoropupū Springs, Mark Gall, April 2018, At page page 14

16 60 This approach was affirmed by the Environment Court on appeal (at [29]): That provision (s199(2)(c)) leads to another difficult issue in that it was the evidence of the Ngati Huirapa hapu - the tangata whenua in whose rohe the Rangitata River runs - that it is not tika to make comparisons across iwi in relation to resources. Thus the national comparison required in other parts of section 199 does not appear appropriate under section 199(2)(c) Ultimately it was found in that case that the Rangitata River has a range of characteristics that are of outstanding significance in accordance with tikanga Māori, without undertaking a national comparative approach. 62 Ms Little's evidence describes a story of the enduring battles Ngāti Tama has been involved in over the years to protect the wahi tapu and describes that the cultural wellbeing of Ngāti Tama ki Te Tau Ihu and the protection of this wahi tapu are fundamental to Ngāti Tama ki Te Tau Ihu identity. If the health of the Puna is pristine wai-ora, then it will be reflected in the health and wellbeing of the Ahi Kaa roa whanau o Ngāti Tama Ki Te Tau Ihu. Ms Little describes how Ahi kaa roa has been maintained in Mohua by Ngāti Tama for 200 years and that the occupation of lands in Mohua by Ngāti Tama, although severely affected by settlement process, continues today. As ahi ka, the Ngāti Tama iwi have continued to carry out their inherited responsibilities and obligations to uphold the cultural, spiritual and environmental integrity of the rohe for past, present and future generations, particularly in respect of the ongoing protection of Te Waikoropupū. 63 Waikoropupū, and its caverns, and its kaitiaki Huriawa have a role to play in caring for the wairua of the deceased. In her evidence Makere Chapman talks about the caverns as being a shelter for those who have passed on. Rarohenga, the home of the spirits in Māori mythology, is the Māori Underworld, where Hinenui-te-pō cares for spirits. 64 Mr Waaka concludes that Te Waikoropupū is special to Ngāti Tama ki Te Tau ihu. The iwi seek a Water Conservation Order to protect the mauri, the wairua, the mana and the tapu of the spring and its related aquifer, which it clearly views as wāhi tapu and as a taonga. This is evidence of the iwi practicing kaitiakitanga over Te Waikoropupū, Huriawa the taniwha and the manawawhenua (aquifer). All of the above is in accordance with tikanga Māori. He describes that, like mauri, the mana of the springs (mana o te waiora) and the mana of Ngāti Tama ki Te Tauihu are synonymous. Te Waikoropupū is not any spring, it is of world renown, and possesses its own mana. It is also a source of mana for Ngāti Tama, and 19 Special Tribunal Rangitata, at Rangitata South Irrigation Limited v NZ and CSI Fish and Game Councils, C109/2004 at [29] page 15

17 acts as a mana enhancing feature if cared for properly by the iwi. In turn, as explained above, the degradation of the spring, could equate to a loss of mana the very thing feared by all iwi. Therefore the mana of the two are inextricably linked. 65 In addition to the evidence of the kaumatua and Mr Waaka, the wahi tapu status of Te Waikoropupū has also been recognised, through: (a) Formal recognition by Heritage New Zealand of wahi tapu status (b) Wahi tapu status recognised in the DOC Reserve Management Plan; (c) Statutory acknowledgement; 21 (d) Recognition in the TRMP Thus, while significance can only be determined by the tangata whenua, it must still be evaluated under section 199(2)(c). In the case of Te Waikoropupū I submit you have clear, unequivocal and uncontested evidence of the central importance of protection of Te Waikoropupū to Ngāti Tama iwi. Tūpuna have been kaitiaki of these precious waters continually for generations. Central to this role is the belief that spiritual and physical survival of all living things is dependent on the maintenance of the mauri and wairua of Te Waikoropupū. Cultural traditions relate to the purity of water. Te Waikoropupū spring water was called the water of life or Wai Ora, the purest form of freshwater. Generations of whānau have used these sacred waters for cleansing and spiritual healing. These waters were central to the cultural traditions practiced by tūpuna and remain so today. 67 Maintaining the purity of the waters of Te Waikoropupū is integral to the spiritual and cultural wellbeing of Ngāti Tama ki Te Tau Ihu. The protection of this wāhi tapu is fundamental to Ngāti Tama ki Te Tau Ihu identity and the maintenance of tribal traditions. 21 A statutory acknowledgement is an acknowledgement by the Crown that recognises the mana of a tangata whenua group in relation to specified areas - particularly the cultural, spiritual, historical and traditional associations with an area. These acknowledgements relate to 'statutory areas' which include areas of land, geographic features, lakes, rivers, wetlands and coastal marine areas, but are only given over Crown-owned land. A description of the statutory area is set out within Schedules to the settlement legislation that established them. Councils must consider statutory acknowledgements when making decisions on whom to involve in resource consents and hearings. 22 Schedule 30A of the TRMP lists values for water bodies, including Te Waikoropupū specifically recognised for its cultural and spiritual values page 16

18 Biodiversity and habitat / ecosystem services 68 The Applicants have sought that the habitat afforded by Te Waikoropupū Springs and associated waters be recognised as outstanding for their diverse array of stygofauna, varied and rare aquatic plants, vast species of invertebrates, as well as particularly rare species unique to these waters. 69 Dr Fenwick's evidence concludes that the Spring basins are amongst the most biologically diverse of New Zealand s cold water springs, and its varied ecological habitat makes the Te Waikoropupū Springs main spring basin a nationally significant spring, especially when its unusual submerged flora is considered. 23 Dr Fenwick also supports the Main spring basin's biodiversity as being recognised an internationally important wetland complex and one which supports national and international biodiversity significance In respect of the contributing aquifers, Dr Fenwick acknowledges the relatively little work which has been undertaken to date in terms of biodiversity sampling. However, the Takaka valley aquifers are known to contain significant bacterial biodiversity. Sampling that has been undertaken to date in the aquifers indicates the presence of stygofauna, which is expected to also be diverse and likely unique to these waters In summary, Dr Fenwick states : Te Waikoropupü is more than the springs, that this remarkably clear water arrives after passing through what is likely to be a very substantial groundwater ecosystem, that this ecosystem is remarkable in its own right and because it underlies many of the springs special characteristics and values, and that sustaining the values of the springs requires attention to everything that could affect the groundwater before the water reaches the springs As discussed in Dr Fenwick's evidence, there is difficulty in analysing and understanding the extent of groundwater biodiversity and its contribution to the ecology of ecosystem services. However, a complex ecosystem interacts in the aquifer which essentially performs the role which photosynthetic plants would above surface. These ecosystem services in their natural state contribute to the outstanding water quality and clarity values: 23 Evidence in Chief, Dr Fenwick, at Ibid, at Ibid, at Ibid, at page 17

19 The overall effects of these SGDE processes, termed ecosystem services, include improving groundwater quality and its suitability for human uses, maintaining an aquifers ability to conduct water, and maintain its yield of water for abstraction (e.g. Sinton 1984, Datry et al. 2003, Boulton et al. 2008, Tomlinson & Boulton 2008, 2010). These effects sustain many of the human values associated with groundwater, notably human health and economic values (Fenwick 2016). These effects also contribute to the natural and human values associated with many rivers and streams, which receive smaller to larger contributions from groundwater. 27 I believe that these processes and ecosystem services underlie the remarkable clarity of Te Waikoropupü Springs water. The virtually complete removal of coloured organic matter (yellow substance; one type of dissolved organic carbon) from spring water, initially attributed to chemical adsorption on the calcite mineral surfaces of the rock (Davies-Colley & Smith 1995: 255), almost certainly involves both chemical adsorption, uptake by biofilms (Fischer 2003) and degradation by the SGDE(e.g., Boulton et al. 2008, Tomlinson & Boulton 2010, Pipan & Culver 2018) The evidence of Dr Gerbeaux for the Department of Conservation further considers the ecological significance of the springs, including for the habitat of a number of threatened and at risk native fish species. Dr Gerbeux comments on many of those species requiring fish passage and good habitat and water quality between the springs and the sea. In addition, he comments that the Reserve associated with Te Waikoropupū is covered in important successional vegetation sequences, from the edge of the springs to drier ground. While wetland delineation has not been carried out on the ground, substantial areas of freshwater wetlands around and adjacent to the springs hold ecological functions and values typically associated with wetlands such as valuable habitat for birds. 74 In respect of characteristics of the Springs which are considered 'out of the ordinary' (and therefore likely to be outstanding according to WCO case law), Dr Gerbeaux considers that: (a) (b) (c) Te Waikoropupū Springs and the aquifer are an example of a wetland type that is rare in New Zealand; the Springs are the largest in the southern hemisphere; The Sprigs support a diverse flora and invertebrate fauna, including a diversity of mosses and liverworts that is unique in New Zealand, and are 27 Ibid, at Ibid, at page 18

20 thus of special value in maintaining the genetic and ecological diversity of the region. 75 The ecology experts are in agreement as to the extensive range of flora and fauna species at the Springs and that the diversity of habitats, submerged, wetland and terrestrial around the springs is high and represents an unusual ecotonal sequence of plants and similarly diverse bird fauna In conclusion, in order to meet the criteria of being "outstanding", it has been generally accepted that it is necessary to show that a particular feature, value or characteristic is quite out of the ordinary on a national basis. That does not require you to conclude that it is unique, not found elsewhere. This would be setting the bar far too high. Even if in decline, a value can still qualify as being outstanding. It is also not necessary to show an imminent threat. Amenity and intrinsic values 77 Outstanding amenity and intrinsic values of the springs are derived from the following characteristics and values established in submissions and evidence: (a) (b) (c) (d) The Springs are a highly regarded visitor experience for national and international visitors; Exceptional water quality and clarity contributes to outstanding amenity values for those visiting and marveling at the Springs; High visitor numbers to the Springs exhibit their value for a unique recreational tourism experience; The Springs are held in extremely high regard for spiritual and cultural reasons. 78 Amenity values are defined in the RMA as: amenity values means those natural or physical qualities and characteristics of an area that contribute to people s appreciation of its pleasantness, aesthetic coherence, and cultural and recreational attributes As per the Mohaka case, discussed further in Appendix 1, the sustaining of amenity afforded by waters in their natural state must have priority. The primacy of the object of conservation should not be defeated by striving to achieve a balance for other users, and amenity should not be compromised by making 29 Ecology caucus report at [24] [25] [28]. 30 RMA section page 19

21 provision for other users unless they are essential and there is a sufficient resource to serve them to some extent as well In terms of outstanding scenic values, which contribute to amenity, the evidence of Ms Martin for Forest and Bird provides analysis of recent studies on section 6 Outstanding Natural Landscapes and Features undertaken in Takaka Golden Bay. This concludes that the final report from this work assessed the areas of the Upper Takaka Valley to be ONL, and that the rivers play a key defining force in the shape of the landscape, and are sometimes in and of themselves, and outstanding feature. 81 The Te Waikoropupū Springs Scenic Reserve, surrounding the Springs is administered under the Reserves Act 1977, section 19(1)(a), for the purpose of protecting and preserving in perpetuity for their intrinsic worth and for the benefit, enjoyment, and use of the public, suitable areas possessing such qualities of scenic interest, beauty, or natural features or landscape that their protection and preservation are desirable in the public interest. 82 The Reserve provides boardwalks to visit and enjoy the amenity of the springs in a natural setting, while respecting and learning their cultural, spiritual and scientific significance. 83 The outstanding intrinsic values of Te Waikoropupū are established in the expert and kaumatua evidence, attesting to their scientifically interesting and unique values and their cultural significance. I submit there is no evidence before the Tribunal that contests the outstanding amenity and intrinsic values of the Springs and Aquifer. Recreational values 84 As stated in the evidence of Mr Beale, and relying on the Te Waikoropupū Springs Management Plan, the Springs are a popular tourist attraction in Golden Bay for domestic and international visitors which is attributed to the high degree of interest in the natural, scenic, cultural and historic values of the Springs, ease of access and proximity to a tourism highway. 85 Mr Beale comments that Visitor statistics provided in the Te Waikoropupū Springs Management Plan 2009 shows that over 50,000 people visited the springs between July 2006 and June 2007, but that more recent figures are likely to be nearer double that figure. 31 Re Draft Water Conservation (Mohaka River) Order W20/92 (PT) at page page 20

22 86 The evidence of Ms Little comments on the ongoing applications that have been received over the years for increased commercialisation (including recreational activities) at the Springs. Although some such activities have in the past been in conflict with the mana and wai ora of this wahi tapu (such as diving and swimming), it is shared by all who visit the Springs, that this is a significant place for wonder and quiet reflection. 87 The evidence of DOC and the NZ Conservation Authority both reference the importance of sustaining recreational native fisheries, which include the Springs system. The Takaka River and its tributaries will have the added benefit of enhancing and protecting habitats in these river and stream systems. 88 Recreational importance of Te Waikoropupū to DOC is evidenced in its Management Plan, and the significant investment into upgrading visitor facilities at the Springs while ensuring that the protection of natural character, biodiversity, and cultural values as paramount. Natural characteristics water quality and clarity 89 Many of the values associated with Te Waikoropupū Springs are attributable to the quality of their water, especially its clarity. This water comes from a hydrologically and ecologically linked system of three aquifers. These aquifers include high surface-area, epikarstic formations and permeable gravels, which together appear to comprise very significant habitat, both in volume and physical habitat diversity, for a natural aquifer ecosystem 90 Not only is this feature outstanding in its own right, it makes an essential contribution to most of the other values of note: cultural and spiritual values, scenic and natural characteristics; ecological habitat; recreation and amenity. 91 Te Waikoropupū Springs are internationally remarkable for the clarity of their water (Davies-Colley & Smith 1995), as well as being the largest cold-water spring in the Southern Hemisphere. The springs water quality is generally high, containing low concentrations of bacteria and other contaminants (Michaelis 1976, Stevens 2010, Young et al. 2017). The more recent water clarity analyses from NIWA shows that water clarity at the Springs has not decreased over recent years, and that clarity remains exceptionally high, close to 'optically pure water'. 92 The factors contributing to the outstanding water quality of the Springs are addressed from para 34 of Dr Fenwick's evidence. It is also the unique and diverse combination of different microbial communities which affect groundwater quality by transforming dissolved substances into different chemicals, depending on oxygen availability. Dr Fenwick states that if natural bioremediation processes are disrupted. Water quality in Te Waikoropupū Springs could be compromised as a consequence of such changes in the aquifers page 21

23 Threats to outstanding characteristics 93 The Applicants have assessed likely threats to the above outstanding characteristics in the application and this is reflected in the schedule limits in the draft order. One of the critical threats to water quality and associated values is the increase in nitrogen as a result of intensified land use activities in the Takaka Catchment. As stated at para 41 of the ecology caucus report, Dr Fenwick considers there is clear evidence as to a long term and continuing increase in nitrate nitrogen concentrations within Main Spring Water and within contributing groundwater. 94 Dr Fenwick believes there is clear evidence of a long-term and continuing increase in nitrate nitrogen concentrations within Main Spring water, and within contributing groundwaters Dr Fenwick noted that available data do indicate an overall decline in water quality in Te Waikoropupū Main Spring water and in groundwater from at least one of the contributing aquifers. He considered that, in combination, these increased nitrate nitrogen concentrations, increased ph, and decreased dissolved oxygen concentrations and, possibly, reduced water clarity, indicate reduced water quality. Dr Young agrees that there has been an increase in nitrate nitrogen concentrations over the last 48 years and possible reductions in dissolved oxygen concentrations. 33 I submit therefore that something in the current management regime is clearly not working to protect the receiving waters, and without intervention, that trend will otherwise continue. 96 The ecology experts agreed that monitoring water quality and ecosystem health upstream of Te Waikoropupū Springs is recommended for both groundwaters and surface waters to provide early warnings of any potential contamination of aquifer water. Ideally, monitoring would be frequent and at multiple locations to facilitate identifying source areas of contaminants for management action. This is further discussed in Dr Fenwick's summary statement: [27] Te Waikoropupu Springs water can be managed successfully only by timely monitoring of water quality and ecosystem health at several locations within the upstream aquifers to protect the SGDE and its ability to deliver remarkably clear, high quality water to Te Waikoropupu. [28] Monitoring water quality within the spring basin is inadequate for this purpose. It is complicated by incomplete mixing of groundwater with variously re-oxygenated surface water in the spring basin. Also, the 32 Ecology caucus report at [41]. 33 Ecology caucus report at [43] page 22

24 resulting data are inadequate for timely, location-specific management intervention. Hence, my deliberate focus on groundwater within the aquifers, rather than the springs. 97 Dr Fenwick will discuss further in his summary evidence for the Tribunal, his recommendations as to what Schedule 4 limits should be applicable to the Springs as well as for groundwater in upstream contributing aquifers to ensure no unacceptable effects on groundwater-dependent ecosystems. 98 In conclusion, threats from contaminants, abstraction and land use activities on the Aquifer and Te Waikoropupū could be small on their own, but could have significant consequences on what is a pristine and finely balanced ecosystem. Furthermore, the complex hydrological connection of underground and surface waters means there are uncertainties about lag time between increased abstractive and land use activities, and consequential effects on the Springs. All of these threats lead to a conclusion that a precautionary approach to the management of resources is necessary. The limits specified in Schedule 4 as revised in version 3 are not even the most precautionary of approaches because they are not all 'status quo'. Therefore overall the draft WCO should be seen as an entirely reasonable instrument for protection of what is unequivocally a national and internationally outstanding taonga. "Sustain" and "protect" 99 Effectively there are two forms of protection available for WCOs. The highest form is preservation of the waters in their natural state, for the purpose of sustaining outstanding amenity and intrinsic values (s 199 (1) (a) and (2) (a)). The second form of protection is for water bodies that are no longer in their natural state, and this requires protection of the various features identified. 100 In the Rangitata WCO decision the Environment Court considered the application of some of the key words of section 199. In terms of "sustain" the Court stated: [16] Sustain is defined in The Concise Oxford Dictionary as (relevantly): 1 Support, bear the weight of; esp. for a long period. 2 Give strength to; encourage, support... 4 Endure, stand; bear up against... 9 continue to represent (a part, character, etc) adequately. All those senses, and particularly the last, have some application to sustain as used in section 199 of the RMA Rangitata South Irrigation Limited v NZ and CSI Fish and Game Councils, C109/2004 at [16] page 23

25 101 And in terms of the application of the requirement to "protect", which becomes relevant if the water body is not to be preserved in its natural state, the Court stated: [30] Collating the various appropriate definitions we conclude that the meaning of section 199 which is most relevant here is that the purpose of a Water Conservation Order is to restrict the Regional Council's powers to the extent necessary for the natural but not pristine characteristics of the river (including tributaries, wetlands within its catchment, and hydraulically connected groundwater) which are out of the ordinary on a national basis to be maintained in their current quality and quantity. 35 Threats to Te Waikoropupū 102 There is no requirement to establish there is an immediate or impending threat to the outstanding features to justify a WCO, however when determining what the appropriate protections are, a good understanding of potential threats to those values is important. The case law summarised in Appendix 1 considers the High Court decision of NZ Paper Mills Ltd v Otago Acclimatisation Soc. Where (under the previous WSCA regime) the Court addressed the question of whether a WCO should be recommended if there is no immediate need for preservation or protection and no evidence of such a need in the foreseeable future Ultimately, the Court found that the fact a WCO does not purport to restrict or affect existing consented rights and where outstanding values and characteristics have been adequately established, then those are by consequence worthy of preservation or protection. 104 The Courts have gone on to consider that finding that outstanding values are threatened is not a prerequisite to the grant of a WCO, but that the recognition of particular threats is extremely helpful when the ensuring provisions in the WCO will achieve the desired protection outcome by setting appropriate restrictions and prohibitions. 105 So a threat to the water body is not a prerequisite for a WCO, but potential threats are a relevant consideration when determining what prohibitions and restrictions should apply. In the case of Te Waikoropupū, a number of submissions oppose a WCO on the basis they seek to protect existing farming, commercial, and industrial operations 37 to not restrict the potential for further 35 Rangitata South Irrigation Limited v NZ and CSI Fish and Game Councils, C109/2004 at [30]. 36 Paper Mills Ltd v Otago Acclimatisation Soc [1995] NZRMA 155, at page Table 5, Appendix 2, EPA Summary of Submissions page 24

26 abstraction 38, prevent land use practices which could cause exceedance of proposed schedule limits 39 and could restrict future development and industries The evidence of Ms Robb at considers the existing operations in the catchment reliant on water take permits, which concludes that current water takes have reached the allocation limit of 500l/s adopted in the TRMP. Ms Robb further states that there is a 'waiting list' for further abstractions, however does not detail where that demand is originating for, or the nature of any further intensification of existing operations. As discussed in Dr Fenwick's evidence, further land use intensification can change the quantities of and types of dissolved substances and fine particulate matter entering groundwater, and these substances and fine particles may have important effects on groundwater quality 41 This is a potential threat to the Te Waikoropupū and associated waters. As the application does not seek to affect existing farming practices, it should be remembered that existing consent holders are not affected by the proposed Order. Refined clause 12(b) specifically anticipates the granting of new consents afte the expiry of existing consents, which will not be affected by the Order. Section 207 considerations Needs of primary and secondary industry 107 In my submission there are three aspects in respect of which the needs of primary and secondary industry and the community may be relevant: (a) Is there an overwhelming need which displaces the presumption of protection; (b) Consideration of the needs as relevant to crafting of the terms of the order: what needs or uses can be catered for to the extent they do not frustrate the protection aspect of the conservation purpose; (c) What industries are currently reliant on sustaining water quality and quantity at the present levels. 108 Case law in Appendix 1 in respect of the first point provides findings that the term in section 207 "should be confined to quantifiable physical needs for the 38 Reilly submissions 1260, 1261, 1262, 1263, 1455 seek that FLAG recommendations of 10% MALF be included in clause 8; Langford 1480; Takaka FLAG Reilly submissions, Federated Farmers 1481, Upper Takaka Irrigators Trustpower Evidence in Chief of Dr Fenwick, at page 25

27 water resource" 42 and that amenity should not be compromised by making provision for other uses unless they are essential and there is a sufficient resource to serve them to some extent as well 43. Both of those references were established under the WSCA. In my submission, both remain useful statements of the law. 109 There are clearly potential and at least contemplated uses of the catchment, including the aquifer, that have the potential to undermine the outstanding values. Whether one describes these as "threats" which is a very value laden word that implies some sort of proactive intention to harm, or simply "uses" that would as a consequence (although not intentionally) undermine or reduce the outstanding values, the crafting of the terms of any WCO needs to cater for such uses, but only to the extent that they do not undermine the outstanding values and render them not protected, not safe from harm. Such contemplated uses, as evidenced in submissions, include: (a) (b) Intensification of land use and therefore increase nutrient and sediment discharge; Further abstraction of water from the aquifer. 110 If we can quantify and be precise about the current or anticipated use, the terms can be crafted with appropriate precision to both allow for the use (to be evaluated on its merits on application for consent) and protect the outstanding values. Based on the evidence that has been provided to date, there is not sufficient specific information to undertake this exercise, except potentially (and with further consideration as to refinement of wording) exceptions relevant to the Cobb Hydroelectric Power Scheme. 111 It is submitted that potential uses of water identified by submitters, including further abstraction for irrigation do not fall under the heading of "quantifiable physical need". In most cases, those potential uses are not designed primarily to meet the existing needs of existing land uses, which is a quantifiable physical need. They are instead a potential use for the future, which would arise from landowners' policy decisions to manage their land differently, and to change the pattern of land use, for the greater profit of one group of landowners and sector of the community. Proposals to change farming practices which would not increase current allocations and proposed water quality limits would be consistent with the proposed Order. 42 Ashburton Acclimatisation Society v Federated Farmers [1988] 1 NZLR 78, at page Re Draft Water Conservation (Mohaka River) Order W20/92 at page page 26

28 112 Finally, 'needs' are not in this case just attributable to those industry opposing the order, or seeking protection of future uses which might be in conflict with the limits and triggers in the draft Order. The submission from New Zealand King Salmon Company evidences the needs of an industry reliant on the continued high water quality and quantity to its successful operations. The Salmon Company's hatchery currently provides all of the ova requirements that are then hatched and on grown in freshwater at the Tentburn and Waiau hatcheries to the smolt stage, before being transported to the seafarms. The Takaka hatchery has been operating for over forty years and in that time NZ King Salmon has worked to build a strong relationship with local iwi and the wider community. As discussed at paragraphs 112 and 113 of the application, the Takaka hatchery is a user of the freshwater resource, and its commercial operation is dependent on the high natural quality of Te Waikoropupū Springs. NZ King Salmon supports the granting of the Water Conservation Order, subject to suggested amendments to clause 12. The Applicants consider that version 2 of the Order provided in Mr Beale's evidence, and the updated clause 12(b) will adequately address this submission. 113 If you do make findings that there are outstanding characteristics, then the presumption in favour of conservation and extra emphasis in section 199 on the non-contrary provisions of Part 2 should heavily weigh your recommendation towards protection/preservation of the characteristics, in the face of competing needs or wants from primary and secondary industry. 114 In summary therefore, for the needs of primary and secondary industry to be considered under this section, it must first be established as a quantifiable, realistic, current need. Secondly, if this need is established, it should only be allowed for if it can be accommodated after protection is afforded to the outstanding values. If it can't be accommodated while still ensuring the level of protection required by section 199, it must be verging on an essential, overwhelming matter of public, arguably national interest, to displace the priority in favour of section It is submitted that the purpose of section 199 will only be met by retaining the outstanding Schedule 1 (confined and unconfined aquifer) in their natural state, and by preserving the Scheduled 2 (Te Waikoropupū) in its natural state. The "needs" that will be described by opponents to the Order, while potentially of some merit, do not reach the statutory threshold required to displace the purpose of section 199. Needs of the community section 207 (b) 116 When you come to consider the needs of the community I submit you are best guided by paying close attention to the submissions before you. They represent page 27

29 an expression of community needs as perceived by those that comprise the community. Those submissions provide overwhelming support for the protection of Te Waikoropupū and associated waters' outstanding features and characteristics from both the Golden Bay community as well as nationwide. 117 When considering an issue of national significance, such as is in this instance for Te Waikoropupū, it is submitted that the "community" needs that should be had regard to are not just the needs of the local community, but also the needs of the national community with an interest in that outstanding resource. This is evidenced by the fact there are submissions from individuals from throughout New Zealand in support of the application. Therefore the needs of the national recreation, cultural and spiritual, and scientifically interested communities who value the springs, and the communities that support the conservation interests of the Applicants, are relevant to consideration of this issue for this WCO. 118 The needs of primary and secondary industry are not given more weight or importance than other needs of the community in section 207. Case law set out in Appendix 1 establishes that the needs of the community are to be interpreted broadly in the context of section 5 of the Act, and include non-economic matters. In cases discussed in Appendix 1, community was also considered to extend broadly further than just the immediate local community of a particular catchment. In this instance, I submit given the national interest which is evident in the breadth of submissions lodged, the community benefiting from the cultural, spiritual, scientific, and recreationally values of Te Waikoropupū extend much further than the Golden Bay region. 119 Evidence that you will hear in respect of the scientific appreciation, cultural and spiritual associations, and general recreational use of, and appreciation for, Te Waikoropupū are all relevant to your consideration as to what the needs of the community are. These matters are also relevant in the context of section 5, and other Part 2 provisions which are consistent with section 199's purpose. Part Case law set out in Appendix 1 addresses the practical implication of the reference to Part 2 in section 199. This considers that, whether the application of any part of sections 5 to 8 of the RMA is contrary to section 199(1) is a matter of judgement on the facts in each case. However, the likely outcome is that section 6 matters of national importance should be recognised and protected in the normal way as would be under Part 2, given such a result is unlikely to be contradictory to section Therefore, the Tribunal must consider specifically, those matters within Part 2 which are not excluded on the facts as being contrary to section page 28

30 122 Another way the Courts have framed this is that sub-sections of Part 2 that are contrary to the purpose of Water Conservation Orders are not to be considered. 123 In a sense, Part 9 of the Act sets a bottom line. The Order must achieve protection of the outstanding values. Then, over and above this, Part 2 is relevant, and other matters can arguably be addressed or allowed for in the Order, as long as that bottom line is not breached, and the purpose of the Order is achieved. 124 Looking then at the values that Te Waikoropupū and associated waters support, there are Part 2 matters that are relevant, and should be applied in the same manner the Environment Court in the Rangitata decision did: 125 The relevant Part 2 matters for you to bear in mind are: (a) The section 5 (2) provision relating to enabling people and communities to provide for their social, economic, and cultural wellbeing and for their health and safety The application of this provision that is consistent with section 199 relates to the use of Te Waikoropupū by people for recreating, relaxing, learning, appreciating cultural and spiritual connections; (b) The recognition and protection of the section 6 matters of national importance in respect of: (i) (ii) Section 6 (a) - preserving the natural character of the springs, aquifer, and its margins, and the protection of them from inappropriate subdivision, use, and development: Section 6 (c) - protecting areas of significant indigenous vegetation and significant habitats of indigenous fauna: (c) And particular regard must also be had to the relevant section 7 matters: (i) (ii) (iii) (iv) (v) Section 7 (c) - The maintenance and enhancement of amenity values: Section 7 (d) - Intrinsic values of ecosystems: Section 7 (f) - Maintenance and enhancement of the quality of the environment: Section 7 (g) - Any finite characteristics of natural and physical resources: Section 7 (h) - The protection of the habitat of trout and salmon page 29

31 Consultation 126 Several submitters have raised issues with the consultation undertaken. In particular Federated Farmers in relation to consultation with land owners. 127 We note that an applicant for a WCO is not required to undertake consultation. Regardless the Applicants maintain that consultation was undertaken to gather relevant information and consider other peoples' views, and that the Application documents contain a fair and accurate summary of that consultation It is noted that s 207 sets out matters to be considered when making a recommendation on a WCO, and that applications are to make reference to these matters where practicable (s 201(b)). The application has been clear from the outset that primary and secondary industries are better placed to identify their needs than the Applicants. The submission and hearing process ensures all information relevant to the decision, from all parties who wish to participate, can be considered. 129 Ngāti Rarua has also raised the issue of consultation in its submission. The Applicants wish to clarify, as stated in the evidence of Mr Beale and Mr Yuill, that consultation between all three manawhenua iwi was undertaken in the initial stages of preparation of the application. At the time of the process, Te Atiawa and Ngāti Rarua declined to be involved further in the process, and requested that any application individually identify Ngāti Tama as the iwi responsible. 130 Because of this decision in accordance with the standard kaupapa of Manawhenua ki Mohua, (which is if one iwi does not agree, it may pursue its own point of view independently) Ngāti Tama continued to pursue the application, and accordingly incurred great costs, time and resources to the iwi in preparing it for submission to the Minister for the Environment. Ngāti Tama has never asserted that other iwi do not have a special connection with Te Waikoropupū, or that those iwi should not be named in the Order as also being iwi to whom the waters are also significant. 131 What Ngāti Tama has done, is continued to undertake its kaitiaki role to establish what values of Te Waikoropupu are particularly important in terms of Ngāti Tama ki Te Tau Ihu history and culture, and continue to implement measures to protect those values. 132 It is also noted that the submission and evidence from Ngāti Rarua and evidence opposes the draft order, and seeks in the alternative that it aspires to a model like Te Awa Tupua over the Whanganui River, which gives mana to the wai ora, 44 WCO Application at Section D page 30

32 indicating that Ngāti Rarua support the protection of the waters as a matter of principle. The Applicants acknowledge that the relief sought by Ngāti Rarua is not something which is within the jurisdiction of this process for the Tribunal to grant. Furthermore, the Applicants do not consider that the Te Awa Tupua model would be contrary to this WCO, in fact, the grant of the WCO would support such a model, if that were to be pursued through a separate process in the future. What the Applicants therefore seek, is that this WCO process be completed and confirmed first, before any further exploration towards additional protection and alteration of legal status and recognition in the future. Evidence 133 After questioning, I will introduce the witnesses appearing for the Applicant as follows: (a) Leanne Manson (i) Provides and introduction to Ngāti Tama ki Te Waipounamu Trust, Ngāti Tama iwi, and the journey towards the submission of this application for a Water Conservation Order. Ms Manson also reflects on a history of the involvement if the iwi in protection of Te Waikoropupū. (b) Andrew Yuill (i) Provides an introduction to the application and an overview of the preparation and consultation which went on behind the final submission of the application. Mr Yuill provides a particularly succinct summary of the scientific significance of Te Waikoropupū through an overview of its hydrological, ecological, and clarity characteristics. (c) John Ward-Holmes, Makere Chapman, Margaret Little (i) These three kaumatua of Ngāti Tama iwi will provide their own account of the significance of Te Waikoropupū to Ngāti Tama ki te tau ihu values and history. This evidence discusses the wai ora, wahi tapu, and kaitiakitanga values associated with Te Waikoropupū. (d) Paul Williams (i) Professor Williams provides a technical explanation of the origin, nature and workings of the groundwater system sustaining Te Waikoropupū Springs. He provides explanations as to why Te Waikoropupū Springs and the aquifer that feeds them are nationally page 31

33 and internationally significant and discusses management implications of those significant values. (e) Graham Fenwick (i) (ii) Dr Fenwick has been called as a joint witness, appearing for both the Applicants and Tasman District Council as submitter. Dr Fenwick has been jointly instructed by both parties and is being called as part of the Applicants' case due to his centrality to ecological issues and his ability to set the scene for coming parts of the hearing. Dr Fenwick provides joint evidence for both the Applicants and TDC to assess the ecosystems of Te Waikoropupū Springs and contributing aquifers. Dr Fenwick considers water quality, ecosystem biodiversity, ecological stressors and threats and key interactions within the aquifer system. (f) Simon Beale (i) Provides legislative and planning context for the Application, including through an overview of the relevant Part 9 RMA considerations, a policy assessment under the requisite planning instruments, and an assessment of submissions. Mr Beale's evidence provided an amended version of the draft Order, however as discussed in these submissions, a further version 3 is provided here as Appendix Additionally I note that Mr Tamati Waaka is unable to present for the Applicant today, and will be appearing on Friday 11 May before the Tribunal. Mr Waaka has provided independent expert evidence on Tikanga Maori. His evidence in particular discusses tikanga concepts which are addressed in the evidence of the three kaumatua. Mr Waaka draws on these concepts and the specific relationship of Ngāti Tama with Te Waikoropupū in considering that this relationship, his conclusion is that Te Waikoropupū far exceeds the requirements of the RMA s199 (2)(c) with respect to being a water body that has, or contributes to, and considered to be of outstanding significance in accordance with tikanga Māori. More than any other waterway, lake, spring or aquifer that he knows of personally, he considers there are greater grounds for the protection of its characteristics. It is waiora. It is wairua. Dated this 17 th day of April page 32

34 Maree Baker-Galloway/Rosie Hill Counsel for the Applicants page 33

35 Appendix 1 detailed case law The restrictions on Regional Council's discretion as a result of a WCO 135 In accordance with section 217, resource consents cannot be granted that are contrary to or breach the terms of the WCO. The restrictions and prohibitions of a WCO are restricted to those set in section 200. That 217 restriction on discretion is absolute and functions the same way as a prohibited activity status. In the section 217 sense a WCO prevents a council from authorising an activity once it crosses a particular threshold or bottom line. 136 There are also the restrictions on the discretion of district and regional councils when it comes to the content and implementation or effect of plans and other statutory documents. A WCO that is more stringent than a National Environmental Standard prevails over the NES (section 43C). 137 If and when "national planning standards" are implemented, they are required to be "consistent with" water conservation orders (section 58C(1)(iii)). Subsequently any local authority planning document must incorporate national planning standards in the manner directed to do so in section 58I. 138 Through sections 62(3), 67(4) and 77(4) district and regional plans and regional policy statements cannot be inconsistent with a WCO. If a WCO recognises particular characteristics as outstanding for example, the relevant statutory plan cannot make an inconsistent finding, but must at least identify those outstanding values. If a WCO sets particular water quality limits, (as a regional plan must also now include limits) any limits that are for the same parameters must be the same as (or more stringent than) the limits contained in the WCO. Section 217 applies the WCO limits prohibiting breach of them by discharges as per the scope of the Orders direct effect under section 200. But in addition to this, it is otherwise for the regional council to determine the provisions of the plan to achieve the integrated management of natural and physical resources within the not inconsistent limits brought through the regional plan. WCO regime general overview 139 The Court considered the differences between the WSCA and the RMA, as referred to previously, and His Honour Judge Jackson said at paragraph 32 of the Rangitata decision (emphasis added): [32] We have considered, only to dismiss, comparisons with the 'Water Conservation Orders and Notices' provisions in section 20A to 20I of the repealed Water and Soil Conservation Act 1967 ("WSCA"). Substantively and procedurally the differences between the WSCA and Part 9 of the RMA are so great that we consider it is not useful, and indeed is probably misleading, to consider the former except as to some guide to the interpretation of identical words or phrases in page 2

36 the latter. The main substantive difference is that the purpose of a water conservation order in now affected by Part 2 of the RMA to some extent, and there was no equivalent (only a long title) in the WSCA. 140 His Honour separately qualified his statement above, at paragraph 58, when he stated (emphasis added): [23] Mr Milne submitted that the s 199(1) downgrades the conservation focus of the Act. We hold it has the opposite effect it focusses the protection aspects of the conservation purpose by excluding consideration of matters which are opposite to that purpose. [58] However, once it is found that a part of the river has outstanding characteristics then the purpose of a Water Conservation Order and the non-repugnant sections in Part II of the Act entail that there is a presumption that those characteristics should be recommended for specified protection. To that extent we are adopting (respectfully) the approach of the Court of Appeal in the Rakaia Water Conservation Order case: Ashburton Acclimatisation Society v Federated Farmers of New Zealand Incorporated [fn53 [1988] 1 NZLR 78 at 88]. That case was about the WSCA 1967 which did not contain any provision as powerful as Part II of the RMA. (citations ommitted) 141 Therefore, in any instance when we turn to apply case law developed under the previous regime, we must first assess if we are using it to assist in the interpretation of words and phrases that are identical between the two statutes, or for some bigger picture/higher level of interpretation. If it is the former, chances are it is appropriate, if it is the latter, it must be approached with care. 142 The Minister's Special Tribunal appointed to hear the application for a WCO over the Oreti River in 2007 relied in large part on the Environment Court's decision in respect of the Rangitata 45 as did the Special Tribunal appointed to hear the application for an amendment to the Buller WCO in respect of the Gowan 46, and the Environment Court's decision in respect of Majac Trust's application to amend the Buller WCO Re Talley as Trustees for Majac Trust EnvC C006/ Para 11, page vi, and para 168, page 27, Special Tribunal Report, November Para 40, page 10, Interim Decision on Application to vary the Buller Water Conservation Order page 3

37 143 While the Special Tribunal decisions do not have the same weight or precedent effect as a Court judgment, they are of assistance when trying to interpret and apply the law and I will be referring to them throughout these submissions. Sustain and protect establishing threats 144 In NZ Paper Mills Ltd v Otago Acclimatisation Soc [1995] NZRMA 155 the High Court rejected an argument that a water conservation order should not be made if there was no immediate need for preservation or protection and no evidence of such need in the reasonably foreseeable future. The Court stated at page 16: Some time was spent in argument as to whether a Water Conservation Order should be recommended if there was no immediate need for preservation or protection and no evidence of such a need in the reasonably foreseeable future. That is answered first by the recognition that existing water rights cannot be affected, but secondly by the need to declare that a river, lake or stream or its outstanding characteristics or features was worthy of preservation or protection in accordance with ss20d (2) and 20 B (6) of the Act. Those issues were issues of fact for the Tribunal and again I have not been persuaded that any error of law has been made by the Tribunal in its consideration. 145 On this point, under the RMA instead of WSCA provisions, the Environment Court's report on the Rangitata identified steps in the Court's inquiry as including "(3) did the Special Tribunal accurately assess the threat to the outstanding qualities of the river?" 146 The Special Tribunal considering Fish and Game's application to amend the Buller WCO in respect of the Gowan stated: [40] The Environment Court's Rangitata Report has been most helpful in our deliberations as our references to it demonstrate. There is one aspect of the decision which, with respect, we are not following. In paragraph [55] the Court said that a step in the process of determining whether a water conservation order should be made was whether the outstanding values were threatened. We think finding that the outstanding values are threatened is not a prerequisite to make a water conservation order. 147 In Re Whitewater New Zealand Inc [2013] NZEnvC 131 (an amendment the Kawarau WCO in respect of the Nevis), the minority report of Judge Jackson clarified that statement, noting: [20] I agree with the second sentence: indeed the High Court has said as much, at least in the context of water conservation orders under the Water and Soil Conservation Act 1967 ("the WSCA 1967"): see New Zealand Paper Mills Ltd v Otago Acclimatisation Society. I consider the same approach is appropriate under page 4

38 Part 9 of the RMA. However, the first sentence in the Second Gowan Report is, in an otherwise thoughtful report, incorrect. The court in the Rangitata Report identified (3) in the previous paragraph as a "basic issue when considering an application for a water conservation order". It did not say that (3) was a "step in" the process of determining whether an order should be made. I consider that the court was pointing out that it is not enough to identify the outstanding characteristics of the river. If there are such characteristics, it is also necessary to assess any threats to them so that a report can recommend particular restrictions or prohibitions. That is part of what a water conservation order means, and without such particular restrictions or prohibitions it would be toothless. Outstanding significance in accordance with Tikanga Maori 148 The Rangitata WCO Special Tribunal Report relevantly addressed the concept of dealing with tikanga Maori values, stipulating as follows: 325. We note that spiritual and cultural purposes are criteria that were not part of the previous legislation (Water and Soil Conservation Act), and therefore there is little experience from previous orders that we can draw on The special tribunal was told that for Māori every waking action is experienced as spiritual. Every mountain, every river, every person, every relationship, every human activity has a spiritual dimension: the taha wairua To Ngāti Huirapa o Arowhenua, the Arowhenua people, who have the manawhenua and are the kaitiaki of the Rangitata River, the river is a taonga, a wāhi tapu area and an area of special values and relationships. The Ngāti Huirapa o Arowhenua look to the mountain Tarahaoa (Mt Peel) situated on the southern side of the Rangitata River as part of their take", their mountain of traditional, authentic significance The tribunal was told that the Rangitata River was sometimes used by Ngāi Tahu parties from Canterbury as part of a trail to Te Tai Poutini (the West Coast). A Ngāti Huirapa member spoke of a traditional story of a woman bringing greenstone over to the east coast. The tūpuna (elders) of Ngāi Tahu had an intimate knowledge of navigation, river routes, safe harbours and landing places (tauranga waka), and the mahinga kai (locations of food and other resources) on the river. A list of traditional names given to physical features, settlement places and special food gathering sites within the river system was provided in the written submission, and attested to Ngāi Tahu s use of the whole Rangitata River. Lists of plants used for food, fish and birds sourced in the Rangitata catchment were given, emphasising the cultural importance of the River to Ngāi Tahu. Many of these are taonga species recognised in Schedule 97 of the Ngāi Tahu Claims Settlement Act page 5

39 The tribunal also notes that in the report prepared for Environment Canterbury by Members of Te Rūnanga o Arowhenua and Gail Tipa, and entitled Rangitata River Tangata Whenua Values, Te Rūnanga o Arowhenua was reluctant to include sitespecific information In Ngāi Tahu tikanga (the right way of doing things) it is necessary to consider the catchment in its entirety: ki uta ki tai or mountains to the sea approach is the correct one, and so a water conservation order over the whole Rangitata system is supported by Ngāi Tahu The mauri (or 'life-force') of the Rangitata River represents the essence that binds the physical and spiritual elements of all things together, generating and upholding all life. All elements of the natural environment possess a life-force, and all forms of life are related. Mauri is a critical element of the spiritual relationship of Ngāi Tahu Whänui with the river. The continuity of the flow of water, from the mountains to the sea, is essential for ensuring the well being of the mauri of the waterway. A waterbody with an intact mauri will sustain healthy ecosystems and support mahinga kai. The loss of mauri is recognised by the degraded nature of the resource and the loss of its life supporting capacity. Activities that have been identified as potentially eroding the mauri of water bodies include the damming of rivers, abstracting water from rivers and streams, and the diverting of waters. Ngāi Tahu believes that every effort should be taken to ensure that the mauri of a resource should not be desecrated. The integrity of the waterways on which their survival and their cultural identity depends must be protected. The protection of mauri is vitally important to Ngāi Tahu Because water is a taonga that has been left for the life sustaining use of their descendants, Ngāi Tahu, as the descendants of tūpuna and the Tangata Tiaki, are Kaitiaki who are responsible for ensuring that this taonga is passed on in as good a state, or indeed better, to the generations that follow Mahinga kai remain a cornerstone of Ngāi Tahu culture and identity. Although the number of sites available to Ngāi Tahu has been reduced today, and the abundance and diversity of mahinga kai species are also reduced, mahinga kai continue to play a vital role in the health and well-being of Ngāi Tahu. Seasonal activities that were specifically referred to by members of Te Rūnanga o Arowhenua include: eels, taken in the greatest numbers during the heke (migration) and whitebait; eggs which were taken at Labour Weekend and birds; and plant resources for food, medicines and materials John Wilkie mentioned that the food in the swamps on the lowlands was no longer available as these areas had been drained. He said that seepage streams and backwaters were important feeding areas for maintaining the traditional eel fishery. The Rangitata River was a great area for eels, especially in the many page 6

40 backwaters of the well braided river. The reduced water flow has reduced the number of braids and backwaters and consequently reduced the number of eels. In traditional times the Rangitata River had huge eel weirs. He also added that the freshwater from the Rangitata River, while stimulating the salmon movement upstream also has an important effect on the breeding of the marine elephant fish along the shore from the river mouth In their submissions Ngāi Tahu clearly signalled their concerns with regard to further water abstractions, reduced water levels, and other demands on the use of surface waterways. Ngāi Tahu were impressed by the pragmatism and sensibility of the applicant s proposal;...particularly by the manner in which it acknowledged existing water abstractions from the Rangitata, and did not seek to turn back the clock.... Ngāi Tahu also appreciated that the applicant, in seeking to establish adequate protection of the Rangitata River, extended this protection to include the cultural values associated with the river and its catchment. Ngāi Tahu identified that a water conservation order as proposed to this special tribunal, would be acceptable and appropriate for ensuring Ngāi Tahu's cultural interests and aspirations were safeguarded. By their measure, the Rangitata River is of outstanding significance, particularly in terms of its immense cultural, traditional and spiritual significance to Ngāi Tahu Whānui The Ngāi Tahu submission was challenged by Ms Undorf-Lay on behalf of Federated Farmers and by counsel for Ashburton District Council and Timaru District Council, the latter without evidential support. The tribunal considers that it is inappropriate to try to compare the Ngāi Tahu contention that the Rangitata river is outstanding with the nature and standing of Aoraki - Mount Cook. Similarly, to suggest that this river should be compared with other rivers such as the Mohaka or Motu, valued by other iwi, is not in accordance with tikanga Māori The values that Ngāi Tahu consider are outstanding in the Rangitata River are wide-ranging. They include: the history as seen in place names (settlements & food gathering sites) the physical features of the catchment (rivers, ranges etc) wāhi tapu / wāhi taonga trails mahinga kai mauri page 7

41 360. We note, too, that the Rangitata River has previously been acknowledged to be of special significance to Ngāi Tahu, through its statutory acknowledgement in the Ngāi Tahu Claims Settlement Act The evidence given demonstrates that the river is outstanding not only to Te Rūnanga o Arowhenua but also to the much larger and more widely representative Te Rūnanga o Ngāi Tahu We consider that the Rangitata River as a whole has a range of characteristics that are of outstanding significance in accordance with tikanga Māori. 149 In the Nevis Special Tribunal Report August 2010, the Tribunal made a number of comments that are worth repeating there. First, in terms of the test to be applied, it was stated at paragraph [70] that: Kai Tahu submitted (inter alia) that the significance of the Nevis ('Papapuni') in tikanga Maori terms can only be determined by the tangata whenua. We accept that. But that does not mean our overall obligation to make a determination under section 199(2)(c) is somehow abrogated. Indeed, we can and must take that evidence of significance conveyed to us by the tangata whenua and then still evaluate it in terms of section 199(2)(c). Primary and secondary industry 150 In Re Draft Water Conservation (Mohaka River) Order W20/92 (PT), the statements of the Planning Tribunal are of assistance. The Planning Tribunal in that case was considering the application of the similar section under the Water and Soil Conservation Act Section 20 B (6) (c) required that the Minister take into account "the needs of primary and secondary industry and of the community". 151 The Tribunal cited the Court of Appeal in Ashburton Acclimatisation Society v Federated Farmers [1988] 1 NZLR 78;12 NZTPA 289 CA, when considering at the outset, what even qualifies as "needs", at page 23: 152 Concerning the reference in section 20 B (6) (c) to the "needs" of primary and secondary industry and of the community, the Tribunal had said in its report: "In our opinion, the term "needs", in the context here being considered, should be confined to quantifiable physical needs for the water resource. Matters of farm economics, for example, which involved changing patterns of corporate and individual policy decision making, cannot be weighed adequately. Even to attempt to do that fairly would require placing economic values on the competing features" page 8

42 The Court of Appeal held that the Tribunals approach to the questions of competing needs and economic evidence was in conformity with the Water and Soil Conservation Act 1967." 153 Later in the conclusions chapter, the Mohaka Planning Tribunal considered whether the quantifiable need for the additional electricity overrode the conservation objective of sustaining the waters' amenity in their natural state (page 94): We have considered therefore whether the need for the additional electricity, the potential for which would be forgone by protecting the gorges, or avoiding the additional unit cost of what would be produced, qualifies to override the ordinarily dominant conservation objective of sustaining the waters' amenity in their natural state. The test was expressed in various ways by the Court of Appeal Judges in the Rakaia River case. The learned President, Sir Robin Cooke, (at page 88) referred to needs that "demonstrably outweigh the goal of conservation"; and to protection " unless clear and clearly sufficient reason is shown to the contrary. The ultimate criterion must be the public interest. The presumption is in favour of conservation. A strong, really compelling case is needed to displace it." Later the president said that "truly and sufficiently weighty reasons can displace it in particular cases". Mr Justice Bisson (at page 94) said that "the sustaining of the amenity afforded by the waters in their natural state must have priority"; and at page 95 he referred to according primacy to that object which "should not be defeated by striving to achieve a balance for other users"; and that the amenity "should not be compromised by making provision for other uses unless they are essential and there is a sufficient resource to serve them to some extent as well". The learned Judge observed that "conservation is not to be pursued to the entire exclusion of other worthy uses under section 20 B where they can be accommodated to some extent without endangering the essential feature of the protection Order". It is our judgment that there is not clear and clearly sufficient reason, nor a strong, really compelling case, nor truly and sufficiently weighty reasons, for the additional electricity from the higher dams and for avoiding the extra cost of electricity from the lower dams, to displace the presumption which Parliament enacted in favour of conservation. Hydro-electricity generation can be accommodated to some extent without endangering the gorges. There is sufficient resource to serve that use of page 9

43 the river's waters as well. However, to allow for the higher dams at Raupunga and Te Hoe would be to compromise the natural waters' amenity in a way that would fail to honour the legislature's stated objective. There is a cost. It is considerable indeed. It is the price of achieving Parliament's objective of protection the amenity. 154 That decision related to the previous legislation, but the RMA takes it a step further. 155 The statements quoted by the Mohaka Planning Tribunal from the Ashburton Acclimatisation case are still relevant, given the similarity of words of the two statutes on this point (being the respective requirements to "take into account" or "have regard to" the "needs of primary and secondary industry and the community"). 156 However, given that the WSCA did not include the explicit hierarchy expressed in section 207, and, in accordance with Judge Jackson's statements in Rangitata on the relationship between the two Acts, the weighting in favour of protection and preservation is potentially even greater under the RMA than it was previously. The implication of Part 9 of the RMA putting even more weight on the conservation purposes raises the bar higher. 157 Judge Jackson in the Rangitata (supra) decision addressed this question in the context of the RMA. The starting point are the introductory words of section 207 "In considering an application for a water conservation order, a special tribunal shall have particular regard to the purpose of a water conservation order and the [other] matters set out in section 199 and shall also have regard to (b) the needs of primary and secondary industry " : [40] Because the words "shall have particular regard to" are also used in section 7 of the RMA it was initially tempting to look at the cases on that section. Various rather conflicting decisions of the planning Tribunal and the Environment were cited to us: Gill v Rotorua District Council; Marlborough District Council v Southern Oceans Seafood Ltd; and Ngati Hokopu ki Hokowhiti v Whakatane District Council. However as the last case point out, to "have particular regard to" in section 7 of the RMA is part of a hierarchy of weightings to be given to various factors and identified in sections 6 to 8 of the Act. [41] Normally to have regard to a submission requires that it be given "genuine attention and thought' but it might be rejected wholly or partly: NZ Fishing Industry Association Inc v Ministry of Agriculture and Fisheries. However, the interpretation of such words always depends on the context in which they are used: Bleakley v Environment Risk Management Authority page 10

44 [42] In this case the context is very important. As Mr Davidson QC for RDRML and TrustPower and Mr Wallace for the CRC pointed out to us in their final submissions, there is a good reason that the words used when specifying matters to be considered by the Environment court are that the Court is to "have (particular) regard to ". The reason is that the Court, like the Special Tribunal before it, is only conducting an inquiry and making a recommendation to the Minister for the Environment. Neither the Special Tribunal, nor the Environment Court has any power to make a decision. It would have been inappropriate for Parliament to state that the Special Tribunal or the Environment Court should "recognise and provide for" the purpose of a water conservation order. Any power to provide for certain matters is vested in the Minister for the Environment. [43] Thus in section 212 the Environment Court is to consider the identified matters. The difference between having regard to the matters in paragraphs (a) (e) and having 'particular regard to "the purpose of a water conservation order" is to give extra emphasis to that purpose as defined in section 199 of the Act. [44] It is therefore unhelpful to compare the wording in section 212 have (particular) regard to with the various formulae in Part 2 of the act. Those formulae still apply except to the extent they are contrary to section 199. Subject to that qualification we are, in effect, to have particular regard to (in the section 212 sense) the matters which are to be recognised in section 6 of the Act, and indeed to the purpose of the Act in section 5. [120] Since water is not priced in New Zealand, basic economics suggests that there will be a large demand for water from the Rangitata River, limited only by the expense of moving it to where consumers want it. In those circumstances we have difficulty working out what the difference is between the demand for water and 'needs' referred to in section 212(a) of the Act. 'Need' is often an absolute concept, but it cannot be so in Part 9 of the RMA. Here it is being used loosely in the sense of 'economic demand'. 'Need' here relates to values of water industries want to obtain to the options foregone for 'use' of the water in-stream. 158 The Court provided for actual quantified need, finding that there was [121] nothing hypothetical about the demands (and needs) of existing users which total 33 cumecs. The TDC and RSIL also seek (now) 3 cumecs from the Rangitata River. In case there is a difference between demand and need (although we doubt it) we find as a fact that there is a need for at least 37 cumecs from the river for irrigation, stockwater and power generation page 11

45 159 In Talley 47 the Court considered an application to vary the Buller WCO in respect of the Gowan River to enable an application to be made for a hydro-electric power scheme (HEP). In respect of the needs of industry, the Court acknowledged that there is a demand for electricity and a need for a reliable power supply. The Court noted that "works would involve limited damage to the river. Nevertheless they do involve one of the few rivers in New Zealand subject to a water conservation order and a system that is currently not subject to any HEP" 48. In declining the application, the Court concluded that: [242] the compromises that would need to be undertaken to achieve the level of abstraction to provide for the availability and reliability of supply sought by the applicant would compromise the conservation purpose of the order. 160 The Special Tribunal's report on an application for a WCO for the Oreti River found 49 : [282] As we have already said in this regard, we agree with Ms Baker that what we must weigh are "needs, and not merely hopes or aspirations for the future, or principled opposition to a statutory instrument that will not in reality affect the reasonable needs of primary or secondary industry or of the community" [287] No party convincingly foreshadowed to us any significant development opportunities for the water resources of the Oreti River Put simply, no such "need" was demonstrated to us by any party [290] The main concerns we heard revolved around providing for existing opportunities, and allowing activities such as soil conservation, occasional river control works and the maintenance of bridges to be able to continue. These are all provided for in the draft order, as are the needs of stock and domestic supplies. [291] We have concluded that there are no needs of primary or secondary industry or the community that weigh against the making of a water conservation order on the Oreti River. 161 In respect of the Nevis 50, Judge Jackson adopted the approach of the Planning Tribunal for the Mohaka WCO 51 that needs were "confined to quantifiable physical needs for the water resource". He found (as the minority): 47 M A Talley and others (as Trustees for the Majac Trust) C102/ At [186] [188] 49 Report by a Special Tribunal Appointed by the Minister for the Environment to Consider an application for a Water Conservation Order for the Oreti River, November Whitewater New Zealand Inc and others [2013] NZEnvC 131 at [158] [160] page 12

46 [234] The principal negatives are the effect on kayakers on the landscape and amenity values and on the symbolic value of the river. While the Lower Nevis Gorge is outstanding for kayaking and for its wilderness and scenery which must therefore be "sustained" I consider that in the particular circumstances of this case those factors are outweighed by the vital importance of renewable energy as a factor allowing those values to be reduced to a relatively small effect.... [239] I assess that the conservation of the river's outstanding characteristics in their current state should not be pursued to the entire exclusion of a possible worthy use of some of the water for hydroelectricity from a run of the river dam below the Nevis Crossing. In my view that can, to adopt the words of Bisson J in Ashburton Acclimatisation Society v Federated Farmers (quoted earlier) be accommodated without endangering the essential wild and scenic characteristics of the Lower Nevis Gorge. Or to use the words of Cooke P in the same case I find that a strong and compelling case for allowing the possibility of such a small scale hydroelectricity scheme to be kept open has been made. 162 The evidence included an assessment of a proposal for a hydro-dam. In identifying positive reasons to allow the possibility of a dam, the Judge's reasoning focusses on his assessment of limited effects, the possible economic benefits, achieving the objectives and policies of the NPSREG and the effects of a contribution to reducing global warming, rather than the specific needs of primary and secondary industry and the community. 52 Judge Jackson concluded the white water kayaking values might be compromised, but that the essential wild and scenic values would remain. 163 Meanwhile, the majority, in recommending that no amendment be made to allow the possibility of a dam, concluded: [204] We do not find that a strong or compelling case has been made that the limited potential for electricity generation on the Nevis River should override the protection of those outstanding characteristics. There are alternative sources of renewable energy whereas three is a limited supply of wild and scenic rivers with outstanding recreational characteristics. Any contribution which a hydro dam or diversion would make to preventing global warming would be extremely limited and could be met elsewhere 51 Re Draft Water Conservation (Mohaka River) Order W20/92 52 At [235] [239] page 13

47 [209] This is not a situation where the needs of industry or other community needs or planning documents demonstrably outweigh the presumption and goal of conservation. Neither can other worthy uses, such as hydro dam or diversion, be accommodated without endangering the essential features of the protection order. The potential for electricity generation is so limited, and the values the Order seeks to protect are so significant, that the scales are clearly in favour of the changes to the Order that we recommend. Needs of the community section 207 (b) 164 The Special Tribunal considering Fish and Game's application to amend the Buller WCO in respect of the Gowan had this to say about the needs of the community (page 9): 35. Section 207 (b) also requires a special tribunal to have regard to the needs of the community. We interpret the community as having a broad meaning in this context. Such an interpretation is consistent with the use of the word in section 5 RMA. It is also consistent with the requirement to have regard to the needs of the community being much broader than the reference in the long title to the WSCA to the needs of community water supplies, all forms of water based recreation 36. We are proceeding on the basis that section 207 (b) means that we are to have regard to a wide range of needs of industry and the community. This includes the need for industry to have water to generate electricity and the need for the community to have electricity. The needs of the community may also extend to non-economic matters, although a number of the conservation related needs of the community are already matters which we are required to have particular regard to because they are matters set out in section 199 RMA. 165 The Environment Court considering the Majac Trust's application to amend the Buller WCO in respect of the Gowan stated: [189] this Court must also consider the needs of the community, which consists not only of power consumers but those who live, work, raft, recreate and enjoy the river. Thus the rafting, fishing and amenity effects are relevant as aspect of needs of the community. The community can be regarded to include the local Gowan community, many of whom depend to some extent on tourism, particularly fishing, as a source of income. It seems likely there will be an impact on them. The community might also include the regional community which might extend as far as Nelson. For this community and their needs, the effects would be mixed. The benefit may be improved electricity supply security; the impacts may be effects on recreation page 14

48 Part The practical implication of the reference to Part 2 in section 199 was addressed by Judge Jackson in the Rangitata case: The context of section 199 [21] It is important that section 199 does not begin notwithstanding anything in Part II... but notwithstanding anything to the contrary in Part II [our emphasis]. The qualifying words make it clear that not all of Part II is not to be ignored but only those aspects of Part II which are contrary to the purpose stated in section 199. As explained in New Zealand Rail Limited v Marlborough District Council [fn9 [1994] NZRMA 70 at 80 (HC)] contrary has the sense of repugnant or antagonistic to [23] Mr Milne submitted that section 199(1) downgrades the conservation focus of the Act. We hold that it has the opposite effect it focuses on the protection aspect of the conservation purpose by excluding consideration of matters which are opposite to that purpose. [24] Whether the application of any part of sections 5 to 8 of the RMA is contrary to section 199(1) is a matter of judgement on the facts in each case. However it is more likely for example that the matters of natural importance in section 6(a) to (c) should be recognised and recommendations made as to how to provide for them in (nearly) the normal way. That is because the preservation of the natural character of the margins of the Rangitata River, the protection of any outstanding natural feature and of any significant habitat of indigenous fauna are not repugnant to the section 199 purpose but entirely consistent with it. The exception a point reiterated frequently by some counsel is that it is not a part of the purpose of a water conservation order to enhance characteristics so they become outstanding or even to improve them if already outstanding. [25] We conclude that in addition to the matters we must have regard to under section 212, we must also consider those provisions of Part II which are not excluded on the facts before us as being contrary to section 199(1) of the Act. 167 When the Tribunal assessing the Oreti application turned its mind to the relevance Part 2 it stated: 16. The Tribunal next considered matters listed in Part 2 the Purpose and Principles of the Act. The Environment Court has determined that those sections and sub-sections of Part 2 that are contrary to the purpose of Water Conservation Orders are not to be considered. The application was consistent with many elements of Part 2, particularly those listed in Section 6, matters of National Importance page 15

49 168 The Environment Court when considering the Majac Trust application to amend the Buller WCO in respect of the Gowan, made the following statement in respect of the purpose of WCOs and Part II (Re. Talley, Supra): [42] We adopt the general discussion as to the meaning of section 199 outlined in the Rangitata decision at paragraphs [13] to [30]. In particular, we conclude that the effect of section 199 (1) is to focus on the protection aspect of the conservation purpose by excluding consideration of matters which are inconsistent with that purpose page 16

50 Appendix 2 revised order (version 3) page 17

51 Third Draft Te Waikoropupū Springs and the Arthur Marble Aquifer Water Conservation Order v1 April 2017 v2 March 2018 v3 17 April 2018 Comment [AL1]: Version 3 changes shaded in grey 1. Title This order is the Water Conservation (Te Waikoropupū and the Arthur Marble Aquifer) Order Commencement This order comes into force on the 28th day after the date of its notification in the New Zealand Gazette. 3. Interpretation In this order, unless the context otherwise requires: Act means the Resource Management Act Waters means the aquifers, springs, rivers and tributaries identified in Schedules 1, 2 and 3 and any hydraulically connected groundwaters and wetlands. Arthur Marble Aquifer means the aquifer identified in Schedule 1 underlying the Takaka Valley, South Island, New Zealand. Te Waikoropupū Springs means the Main Spring, Dancing Sands Spring and Fish Creek Springs identified in Schedule 2. Takaka River and its Tributaries means the Takaka River and all its tributaries within the catchment identified in Schedule 3. Comment [AL2]: Schedule 3 references Figure 1, which is now amended to include a reduced catchment area, and excludes the Takaka north catchment /

52 4. Outstanding characteristics, features and values The waters identified in Schedules 1, 2 or 3 include or contribute to, to the extent specified in Schedules 1, 2 or 3, the following outstanding characteristics and features: a. significance in accordance with tikanga Māori in respect of Ngāti Tama ki Te Tau Ihu history, kaitiakitanga, mahinga kai, wahi tapu, wahi whakahirahira and customary protection of flora and fauna b. cultural and spiritual purposes c. visual clarity values d. scientific and ecological values e. biodiversity values f. habitat for indigenous stygofauna g. habitat for indigenous fauna h. habitat for indigenous flora i. recreational values j. wild, scenic and natural characteristics 5. Waters to be preserved in natural state Because of the outstanding characteristics, features and values identified in Schedule 1 and the contribution made to waters supporting outstanding characteristics, features and values, to the waters identified in Schedule 2, the waters specified in Schedule 1 are to be retained as far as possible in their natural state, including but not limited to the clarity and quality of the waters, and in accordance with the relevant conditions in clauses 8 and 9, subject to clauses 10, and 11 and 12. Comment [AL3]: Cross referencing corrected 6. Waters to be protected for their outstanding characteristics, features and values Because of the outstanding characteristics, features and values identified in Schedule 2, the waters identified in Schedule 2 are to be protected so far as is possible in their natural state and in accordance with the relevant conditions in clauses 8 and 9, subject to clauses 10, and 11 and /

53 7. Waters to be protected for contribution to outstanding characteristics Because of their contribution to outstanding characteristics, features and values identified in Schedules 1 and 2, the waters specified in Schedule 3 are to be protected in accordance with the relevant conditions in clauses 8 and 9 subject to clauses 10, and 11 and Restrictions on alterations of aquifer depth and form No resource consent may be granted or rule included in a regional plan that a. Will result in reduction of the cause the flow of groundwater from Te Waikoropupu Springs discharge zone to fall below its natural mean annual low flow width of the active floodplain of the Arthur Marble Aquifer or any other hydraulically connected aquifer. Comment [AL4]: Amendments to clause 8 based on advice from Professor Williams. b. Will authorise any additional abstraction of groundwater from any part of the Arthur Marble Aquifer as specified in Schedule 1 not already authorised by an implemented resource consent at the time this Order comes into force. c. Will authorise any additional abstraction of groundwater from any part of the Te Waikoropupū Springs discharge zone as specified in Schedule 2 not already authorised by an implemented resource consent at the time this Order comes into force. d. Will authorise any additional abstraction of water from any river or stream that contributes to the recharge of the Arthur Marble Aquifer, unless the abstraction point is downstream of the recharge zone part of the Takaka River and its tributaries as specified in Schedule 3, not already authorised by an implemented resource consent at the time this Order comes into force. 9. Requirement to protect water quality No resource consent may be granted or rule included in a regional plan relating to the point or diffuse discharge of contaminants into water, or onto land in instances where it may enter waters that recharge the Arthur Marble Aquifer and contribute to the flow of Te Waikoropupu Springs, specified in Schedules 1, 2, and 3, that will cause, either by itself or in combination with any existing consents, activities or rules, Comment [AL5]: For clarity Comment [AL6]: To make it clear the waters that the clause applies to /

54 the limits specified in Schedule 4 after reasonable mixing or concentration values or the triggers specified in Schedule 5 to be exceeded. Comment [AL7]: The limits apply at the springs, so no reference to reasonable mixing required 10. Scope of order a. This order does not limit sections 14(3)(b) and (e) of the Act relating to the use of water for an individual s reasonable domestic needs, or for the reasonable needs of an individual s animals for drinking water, or taken or used for fire-fighting purposes. b. Subject to sub-clause (10)(c), this Order does not restrict or prevent the grant of resource consents or inclusion of a rule in a regional plan for the purpose of: i. research into, and protection or restoration, rehabilitation or enhancement of, water quality, cultural, spiritual and tikanga Māori values, wildlife and wildlife habitats; or ii. iii. the removal, maintenance or protection of any road, ford or bridge, the maintenance or protection of any network utility operation (as defined in section 166 of the Act); or the protection of human or animal health. c. No resource consent may be granted or rule included in a regional plan that would allow activities specified in sub-clause (10)(b) if exercise of any such resource consent or rule would compromise the protection of the outstanding characteristics and features identified for the waters specified in the Schedules. 11. Exemptions Nothing in this Order prevents the grant of a resource consent that would otherwise contravene conditions set out in this Order if: a. a consent authority is satisfied that: i. there are exceptional circumstances justifying the grant of a permit; or ii. the consent is for an activity that is associated with necessary maintenance works for works and structures not otherwise prohibited by this Order; or /

55 iii. the consent is for discharge of herbicides for control of pest plants, excluding herbicides that might give rise to a breach of the Schedule 5 limits; and b. the exercise of any such consent would not compromise the protection of the natural state, outstanding characteristics and features identified for the waters specified in the Schedules. 12. Existing consents a. Nothing in this Order shall affect or restrict any resource consent granted and implemented prior to this Order coming into force in respect of the protected waters. a.b. In respect of resource consents to take water held at the date this order comes into force (existing consents) this order does not prevent the granting of further resource consents (further resource consents) for the same volumes, discharge rates, rate of take and minimum flow restrictions, on the expiry or surrender of the existing consents. The same exclusion applies on the expiry or surrender of the further resource consents. Comment [AL8]: To address concerns raised by some submitters about ongoing operations post expiry of existing consents /

56 Schedule 1 Waters to be retained in Natural State Waters Outstanding Characteristics or Features and contribution to outstanding characteristics and features Conditions to apply Confined and Unconfined Arthur Marble Aquifer, refer to map below Intrinsic values afforded by natural state Significance in accordance with tikanga Māori Cultural and spiritual purposes values Biodiversity Habitat for stygofauna Habitat for indigenous wildlife Ecosystem services Wild characteristics Natural characteristics water quality and clarity Scientific and ecological values water quality and clarity Natural state No abstraction with the exception of cl12 cl 8 (existing consents) Water quality (cl 109) Comment [AL9]: Cross reference error corrected Comment [AL10]: Cross reference error corrected /

57 Schedule 2 Protected waters Waters Outstanding Characteristics or Features Conditions to Apply Te Waikoropupū Springs, refer map below Significance in accordance with tikanga Māori Cultural and spiritual purposes values Amenity and intrinsic values Biodiversity Habitat for indigenous wildlife Recreation Scenic characteristics Scientific and ecological values water quality Abstraction (cl 8) Maintain Spring flow form quantity(cl 8) Spring water quality (cl 9) /

58 Schedule 3 Waters to be protected for their contribution to outstanding characteristics Waters Contribution to Outstanding Characteristics or Features Conditions Apply to Takaka River to its headwaters; and its the surface water tributaries as shown in the Takaka River Basin on Figure 1,tributaries, including the Waingaro, Anatoki, and Waikoropupū Rivers, refer map below Contribution to: significance in accordance with tikanga Māori cultural and spiritual purposes values habitat for wildlife recreation scientific and ecological values water quality, and clarity Abstraction (cl 8) Flood plain form (cl 8) Spring water quality (cl 9) /

59 Hydraulically connected groundwater to the waters specified in Schedule 2 not identified in Schedule 1 including those parts of the Takaka Limestone Aquifer and Takaka Unconfined Gravel Aquifer that lie in the recharge zone of the Arthur Marble Aquifer, being upstream of the artesian boundary ( refer maps below ) Contribution to: significance in accordance with tikanga Māori cultural and spiritual purposes habitat for wildlife recreation scientific and ecological values water quality, and clarity abstraction (cl 8) Spring water quality (cl 9) /

60 Second Draft to be deleted /

61 /

62 Old figure 1 below to be deleted. Figure /

63 Figure /

64 Figure /

65 Figure /

66 Figure /