Special Tribunal first decision on preliminary issues for Fish and Game amendment application

This page has the first decision of the Special Tribunal on preliminary issues in respect of the New Zealand and Nelson Marlborough Fish and Game Councils application to amend the Water Conservation (Buller River) Order 2001.

Special Tribunal
Buller WCO
Fish and Game Application

In the matter of the Resource Management Act 1991 and in the matter of an application to amend the Water Conservation (Buller River) Order 2001 pursuant to section 216 of the Act by New Zealand Fishing Game Council and Nelson Marlborough Fishing Game Council Applicants

Introduction

1. The Water Conservation (Buller River) Order 2001 (“WCO”) applies to numerous rivers specified in Schedules 1, 2 or 3 and to the tributaries of the rivers or sections of rivers identified in those schedules. The waters identified in those schedules include to the extent identified in the schedules certain outstanding characteristics, features and values. Schedules 1 and 2 identify waters for a variety of outstanding characteristics, features and values; including “trout fishery”.

2. MAJAC Trust (“MAJAC”) applied under section 216 RMA to amend clause 8 of the WCO in relation to the flow regime permitted in the Gowan River.

3. Some submitters in opposition on the MAJAC application sought preferences under section 205(3) RMA.

4. Justice Fogarty in Talley & Ors v Fowler & Ors CIV-2005-485-000117 (18 July 2005) held that submitters in opposition could not seek preferences under section 205(3).

5. The applicants in these proceedings (“Fish and Game”) or a related body had sought a preference in a submission on the MAJAC application which Justice Fogarty held was outside the scope of the right in section 205(3). Consequently Fish & Game made its own section 216 application to amend the WCO and that application is the subject of these proceedings.

6. The Fish and Game application was notified and served in accordance with section 204(1)(a)(c) and (2).

7. Some submissions on the Fish and Game application sought preferences under section 205(3). Those submissions included submissions by:

(a) The acting Director-General of the Department of Conservation (submission B25);

(b) Royal Forest and Bird Protection Society of New Zealand Incorporated Central Office which expressed a preference that the WCO apply to the Black Valley Stream, Lake Matiri and the Matiri River (Submission B43);

(c) WJ and BA Butters who expressed a preference that the WCO apply to the Black Valley Stream and the Howard River (Submission B9);

(d) Anthony Roderick White and Jean Sillars who expressed a preference for the WCO to apply to the Black Valley Stream (Submission B16).

8. The following submissions were received after the cut off time for filing submissions:

(a) B51 Forest and Bird Golden Bay Branch;

(b) B52 Nelson Trout Fishing Club;

(c) B53 Dr David Leadbetter;

(d) B54 Marlborough Fresh Water Anglers Inc;

(e) B55 LM and AR Tapper;

(f) B56 William Keith Darling.

Hearing

9. When the time for submissions ended the Special Tribunal had not received any applications on preliminary matters so it issued a notice of hearing.

10. Subsequently MAJAC applied for an adjournment and for orders for sequential exchange of evidence. Fish & Game requested the Special Tribunal to issue witness summonses to 2 witnesses and this was opposed by MAJAC.

11. Consequently the Special Tribunal issued a supplementary notice that at the hearing on the 20th of November all preliminary applications would be dealt with and the hearing would then be adjourned to a later date.

New Zealand Energy Limited

12. After the notice of hearing had been issued the Special Tribunal received an application from New Zealand Energy Limited (“New Zealand Energy”) to appear and be heard. New Zealand Energy has an interest in respect of Lake Matiri and the Matiri River which are the subject of a submission by Forest & Bird seeking a preference under section 205(3). The application was on the basis that New Zealand Energy did not and could not have become aware of the request for the preference (which has the potential to affect it) until after the time for submissions had closed.

Late Submissions and New Zealand Energy’s Application

13. The Special Tribunal heard the submissions by Ms Owen, Counsel for New Zealand Energy and the requests made by the late submitters who were present.

14. The Special Tribunal inquired whether any party opposed the extension of time to allow the submissions received late to be accepted and for New Zealand Energy to file electronically a submission by 21 November 2006. No parties opposed such an order being made.

15. Accordingly the Special Tribunal extends the time for filing submissions by those parties to the extent required for their submissions to be deemed to be filed within time and waives their failure to comply with the original time limit for filing submissions. Consequently those who filed late submissions and New Zealand Energy are parties to these proceedings.

Section 205(3) Preference By the Director-General: No Jurisdiction Application

16. Ms Owen, Counsel for New Zealand Energy, applied for an order that the Special Tribunal decline jurisdiction in respect of the Forest and Bird submission which sought a preference under section 205(3) that the WCO apply to Lake Matiri and the Matiri River.

17. This application raised similar legal issues in respect of other submissions which had sought preferences under section 205(3). In particular it raised issues in relation to submissions which sought preferences under section 205(3)(a).

18. Section 205(3) is as follows:

“(3) Any person who supports the making of a water conservation order but who would prefer-

(a) That the order instead preserve a different but related water body in the same catchment; or

(b) That different features and qualities of the water body be preserved,- shall endeavour, in his or her submission-

(c) To make that preference known to the tribunal; and

(d) To specify the reasons for the preference, referring, where practicable, to the matters set out in sections 199, 200, and 207; and

(e) To describe the provisions which, in the person’s opinion, should be included in the water conservation order and the effect that those provisions would have on the water body“.

19. The respective counsel for Forest and Bird and the Director General of Conservation wished to be heard in opposition to this application. Mr Butters, Mr White and Ms Sillars did not wish to be heard on this jurisdictional issue (but do wish to be heard in due course when the submissions are heard). Fish and Game was more concerned about the delay consideration of the preferences may cause since it wants its application to be decided by the Special Tribunal as soon as practical.

20. First, we record the finding on a similar issue by the Special Tribunal in the MAJAC application.

Preliminary Determination by the MAJAC Special Tribunal on Section 205(3) Jurisdiction Issue

21. A number of opposing submissions on the MAJAC application sought to preserve different water bodies. The Special Tribunal in that case decided in a preliminary decision:

“(18) The first question concerning these other four water bodies then becomes whether they form part of the same catchment as the Gowan River? While in a broad sense they are part of the same catchment in that they feed into the main stem Buller River, they clearly do not form part of the Gowan catchment and therefore our finding is that they be excluded from our deliberations

(19) The second question then is, whether they can be said to be “related” to the Gowan River? If the word “related” is interpreted in this context as being “hydraulically connected” as was suggested at the hearing, we would be comfortable on the face of the papers and the information provided thus far to rule that they are not directly “related”. It was suggested on behalf of some recreational submitters, that water bodies could be “related” if they could be utilised for multiple runs. In our view, it is a human construct and the words “related” in section 205(3)(a) would import some natural or hydrological relationship rather than one premised upon a human construct.

(20) We therefore hold that insofar as any submissions seek to extend or enlarge the WCO to the … Matiri River… or the Black Valley Stream, they are beyond the scope of the hearing.”

The Director-General’s Submission seeking a section 205(3) preference

22. Ms McLeod, counsel for the Director-General submitted that the Director-General’s submission sought to protect different features of the same water bodies that are subject of the Fish and Game application and meets the requirements of section 205(3)(b). Ms McLeod submitted in her reply that Ms Owen had accepted that the Director-General’s preference came within the provisions of section 205(3)(b) and Mr Crosby had not made any submission to the contrary. We agree.

23. Consequently there being no application that we decline jurisdiction in respect of the Director-General’s preference we do not need to make a decision in respect of it. We note that Ms Owen’s argument was directed at Section 205(3)(a) and in particular at the Forest and Bird submission which sought a preference in relation to Lake Matiri and the Matiri River and we turn to that matter next.

Forest and Bird Submission seeking a preference under section 205(3)

24. Forest and Bird in its submission sought a number of preferences under section 205(3) including that the WCO apply to the Matiri sub-catchment (including Lake Matiri) and to the Black Valley Stream sub-catchment.

25. Ms Owen for New Zealand Energy submitted that the preference in respect of the Matiri sub-catchment was not within the ambit of section 205(3)(a). In essence she submitted that neither Lake Matiri nor the Matiri River is a related water body in the same catchment. Thus submissions were heard on the meaning of the words “related water body” and “same catchment” and related issues.

26. Ms McLeod for the Director-General distinguished the MAJAC application from the Fish and Game applications. She submitted that the MAJAC application sought only amendments to clause 8 of the WCO relating to the flow regime for the Gowan River and it was in that context that the Special Tribunal determined that the Matiri River and Black Valley Stream were not sufficiently related water bodies to meet the requirements of section 205(3)(a). Ms McLeod submitted that the Fish and Game application is broader as it seeks also amendments to other clauses of the WCO, including clause 10 which applies to all the water specified in Schedule 2.

27. Ms McLeod submitted that the Special Tribunal may require evidence in order to determine whether the different water bodies are sufficiently related to and in the same catchment as the waters that are the subject of the Fish and Game application.

28. Ms Martin for Forest and Bird submitted that Lake Matiri, the Matiri River and Black Valley Stream are different but related water bodies in the Buller River Catchment and that Forest and Bird’s evidence would help to establish this.

29. She submitted that the WCO applies to the Buller Catchment so the “catchment” for the purpose of section 205(3)(a) is the Buller Catchment.

30. Ms Martin submitted also that Fish and Game’s application is different to the MAJAC application in that it applies to water bodies other than the Gowan River. She referred us to parts of the application and the public notice in support of this submission.

31. Ms Martin pointed out that:

(a) The Buller River is included in Schedule 2 to the WCO, from its commencement at Lake Rotoiti down to Te Kuha;

(b) The Black Valley stream discharges into Lake Rotoiti and is therefore connected to the Buller River which is item 1 of Schedule 2 to the WCO;

(c) The Matiri Catchment flows directly into the Buller River above the Mariua confluence of Map reference M29 528 364 and is thus directly connected to Item 3 of Schedule 2 to the WCO;

32. Ms Owen for New Zealand energy submitted that the Gowan and Matiri form separate catchments in their own rights. She said that the scope of Fish and Games application to amend the WCO is limited to the Gowan River and makes no mention of Lake Matiri or the Matiri River. She reiterated that the application by Fish and Game deals with the Gowan River and not the wider Buller River system (of which the Matiri forms a part). She submitted that what constitutes a different but related body in the same catchment one would expect to be limited to water bodies which relate to the Gowan River itself. From this she concluded that the proposed relief should be limited to the sub-catchment of the Gowan or water bodies which may have an impact on the Gowan and thus the issues raised in these proceedings. Ms Owen said it cannot be said for the purposes of the Fish and Games application that the Gowan and Matiri are “related water bodies” in any meaningful sense. She went on to make further submissions based on natural justice and related matters.

33. We consider that Fish and Game’s application to amend clauses 7 and 10 in the WCO potentially affects a very extensive catchment. Clause 7 applies to 19 of the 20 water bodies identified in Schedule 2. Clause 10 applies to all of the 20 water bodies identified in clause 2. Consequently, on the face of the papers we cannot conclude that thecatchment in this case is limited to the catchment of the Gowan River as it was held to be by the Special Tribunal in the MAJAC application. When we have heard all the evidence we will be in a position to determine whether the preferences come within section 205(3)(a) and if so whether they should be granted.

34. For example, since the Buller River at its confluence with the Matiri River is included in Schedule 2 we consider that on the face of it the Matiri sub-catchment may be said to be within the same catchment for the purposes of the Fish and Game Application. Whether or not it is a matter to be determined after all the evidence has been heard.

35. Similarly, whether the waters in the Matiri sub-catchment come within the expression related water body is a matter which will need to be determined after all the evidence has been heard. It cannot be said on the face of the documents alone that the Matiri sub-catchment is not a related water body.

36. We record that there is no evidence that trout do not move between the relevant water bodies so arguably making the water bodies related for the purpose of section 205(3)(a). Ms Owen said she could not say trout do not swim from the Gowan to the Matiri River.

37. Ms Owen argued that for the preference relating to the Matiri sub-catchment to come within section 205(3)(a) there would have to be a hydraulic connection. This submission was made in reliance on the decision of the MAJAC Special Tribunal referred to above.

38. However in the context of this application, it is not clear on the papers that a direct hydraulic connection is necessary and consequently that we should decline jurisdiction in respect of the Matiri sub-catchment. Depending on the evidence, different water bodies which are not directly connected may be related water bodies in the same catchment if, for example, trout swim between those water bodies. Whether the waters of the Matiri sub-catchment are related in the relevant sense will depend on the evidence to be heard.

39. We reject the application by New Zealand Energy to decline jurisdiction on the material before us.

Submission by Mr White and Ms Sillars and by Mr and Mrs Butters

40. Applications to decline jurisdiction were not received in respect of the preferences sought in these submissions so we do not make any decision in respect of them.

41. Also we record that since we have refused the application by New Zealand Energy that we decline jurisdiction in respect of the preference in the Forest and Bird submission relating to the Matiri sub-catchment there are no flow oneffects in respect of the section 205(3)(a) preferences sought by the other submitters. Had we granted New Zealand Energy’s application that may have had consequences for the other submitters who sought preferences, but that is not the case.

Public Notification of Section 205(3) Preferences

42. Mr Crosby, Counsel for MAJAC, in particular argued that the procedure for the hearing would be unfair if public notice were not given of the section 205(3) preferences expressed in submissions. He submitted that if there were not such further notification then parties who may be affected by the section 205(3) preferences would not have an opportunity to participate in the proceedings before the Special Tribunal. He said it would not be an answer to say that such an adversely affected person could appear at the appeal because there might not be an appeal.

43. Mr Crosby referred us to section 39(1) which provides that where a consent authority holds a hearing in relation to an application:

“The authority… shall establish a procedure that is appropriate and fair in the circumstances.”

44. He also referred us to Justice Fogarty’s observation at paragraphs [29] in Talley & Ors v Fowler & Ors (supra):

“There is no requirement that the Tribunal advertise the receipt of such an indication of preference but section 204(1)(b) gives the Tribunal the discretion to do so.”

45. Section 204(1)(b) requires the Special Tribunal to ensure that:

“(b) Such other public notification of the application as the Tribunal considers appropriate is given.”

46. Ms McLeod counsel for the Director-General submitted that the single public notification which has taken place is in fact contemplated by the RMA and no further notification is required. She referred to section 204(2)(d) which requires the public notice to state that the matters to be considered by the Tribunal may be wider than the matters raised in the application and section 209(1)(c) which allows any person who was neither the applicant nor a submitter before the Special Tribunal to appeal with the leave of the Environment Court on the grounds that the person could not reasonably have been expected to know that the report of the Special Tribunal would affect the person or an aspect of the public interest which that person represents.

47. We think that despite the valid point made by Ms McLeod, the process is inherently unfair. In response to the submissions made to us and in reliance on the statement by Justice Fogarty we propose to notify section 205(3) preferences to give people an opportunity to make submissions in support or opposition to those preferences only.

Further Information

48. Mr Crosby argued that the Special Tribunal should seek further information from Fish and Game and the submitters who sought preferences under section 205(3).

49. It was accepted that the Special Tribunal has power to seek further information under section 41C.

50. We asked Mr Crosby to submit a draft of his request for further information by 27 November 2006 and said we would allow other parties affected to have the right to comment on it by 4 December 2006. We have received Mr Crosby’s request for particulars and submissions from Ms McLeod and Ms Martin in opposition.

51. We started from the premise that the Fish and Game application and the requests for preferences should contain sufficient particulars to enable all parties to address the issues and for the relief sought to be clear. We have also had regard to the need to have a process which is both fair and reasonably informal.

52. Having read the relevant documents we have decided not to request further particulars. The relevant documents are reasonably clear and the relief sought is reasonably specific. The particulars sought extend into matters of evidence. Requesting further particulars would add unjustifiably to the cost and complexity of the proceedings.

Severance

53. Fish and Game, while not opposed to the section 205(3) preferences by submitters, expressed concern that they would delay our final decision on the Fish and Game application. This concern is in the context of Fish and Game wanting its application to catch up with the MAJAC application currently before the Environment Court.

54. Our role is to determine the Fish and Game application in an efficient and proper manner. Even if we had power to sever the section 205(3) preferences from the Fish and Game application itself we would not place weight on the catch up factor. In any event we were not persuaded that we have such power.

Witness Summonses

55. Fish and Game applied to the Special Tribunal to exercise its powers pursuant to section 41(1)(d) of the RMA and section 4D(1) of the Commissions of Inquiry Act 1908 to issue a summonses requiring Ian Jowett of NIWA, and Dr John Hayes of the Cawthron Institute to give evidence on specified matters if they are not called by other parties, and to produce any reports, studies, etc they have in respect of the Gowan Trout Fishery itself, and the contribution it makes to the outstanding fisheries of the Buller River and surrounds.

56. Ms Baker for Fish and Game explained that Fish and Game was involved in collecting some of the original data for the work done by Messrs Jowett and Hayes; that collecting this data takes years; they are the two key experts from the two primary institutions that hold the majority of the research records, reports and information in respect of in-stream habitat requirements.

57. This application was opposed my MAJAC on the grounds that the issue of the witness summonses would be unfair to MAJAC. MAJAC has engaged the two prospective witnesses, and says if they were summoned to appear it would have to engage other expert witnesses at substantial cost and there are numerous other experts who Fish and Game could retain to address the relevant matters.

58. Mr Crosby accepted that there is no property in a witness. Mr Crosby did not argue that there is some privilege which should have priority over the principle that there is no property in a witness.

59. He did not argue that we do not have power to issue the witness summonses, but said that it would be unfair to do so. Mr Crosby did not cite any authority to support his argument that we should not exercise the power in this case.

60. Mr Crosby said MAJAC will call Ian Jowett and it has not yet made up its mind whether to call Dr Hayes. Thus, on the basis of the current information, the issue is whether a witness summons should be issued for Dr Hayes to appear.

61. We are proceeding on the basis that we have the power to issue the witness summonses, there is no issue of privilege which should cause us not to issue a witness summons and that we should do so if we consider that it would assist the Special Tribunal to reach its decision on the Fish and Game application.

62. We have no doubt that it would assist us to receive evidence from Mr Jowett and Dr Hayes. Accordingly we will issue the witness summonses unless they are called by MAJAC.

63. We will allow MAJAC until 2 February 2007 to advise the Special Tribunal that it intends to call Dr Hayes as a witness in these proceedings and to confirm that it intends to call Mr Jowett. The Special Tribunal will issue a witness summons to such of those witnesses which MAJAC does not so advise us it will call.

Conclusion

64. We conclude by summarising these preliminary matters as follows:

(a) Time is extended/waived to allow late submissions already filed as at the 20th of November 2006 and also the late submission filed by New Zealand Energy;

(b) We refuse the application by New Zealand Energy to decline jurisdiction in respect of the preference under section 205(3)(a) in the Forest and Bird submission relating to the Matiri sub-catchment;

(c) We will publicly notify the preferences under section 205(3) on the basis that submissions may be made on those preferences only and no further preferences may be sought in any new submissions;

(d) We will not seek further information in respect of the Fish and Game application or the section 205(3) preferences;

(e) We refuse the Fish and Game application to sever the section 205 preferences from its application;

(f) We will issue witness summonses to Dr John Hayes and Mr Ian Jowett unless MAJAC informs us by 2 February 2007 that it will call them as witnesses in these proceedings.

Dated this 18th day of December 2006.

J D Lynch
Chairman

Reviewed:
27/08/14