Special Tribunal decision on the scope of the hearing

This page contains the Special Tribunal's decision on the scope of the hearing for the MAJAC Trust application to vary the Water Conservation (Buller River) Order 2001.

Special Tribunal appointed under section 202(1)(a) of the Resource Management Act 1991 to hear application to amend the Water Conservation (Buller River) Order 2001 and submissions: decision on preliminary legal issues (jurisdiction to determine relief sought in submissions beyond scope of application).

Explanation of where this decision fits in a process sense

1. This Special Tribunal has been appointed by the Minister for the Environment to hear an application by Majac Trust to amend the Water Conservation (Buller River) Order 2001 (WCO).

2. Following the appointment of the Special Tribunal, the notification processes required by Part 9 of the Resource Management Act 1991 (RMA), were carried out and it is unnecessary to set those out in detail here.

3. Following the notification, over 130 submissions were received. It is the relief sought in some of those submissions that is the genesis of this decision.

4. Following the closure of submissions, the Special Tribunal set about preparing the hearing process. It determined that the most efficacious way to proceed would be to commence the hearing with a 'procedural call-over' in order to ascertain and resolve the various procedural issues attendant upon a hearing of this type and scale and thereafter to adjourn before reconvening to hear the submissions and the evidence.

5. The procedural call-over took place at Nelson on 21 October 2004. One of the matters raised was whether there were any preliminary legal issues that needed to be determined. The applicant raised the legal issue the subject of this decision, and it quickly became apparent that, although all other procedural directions and issues could be determined at that procedural call-over, it would be necessary to decide this issue before commencing to hear the substantive submissions and evidence, because the outcome of the legal issue would have a very significant impact on the scope of the remainder of the hearing.

6. Accordingly, 25 November 2004, was fixed for the hearing of submissions on the legal issue, which duly occurred.

The emergence of the issue

7. The issue arises from the terms of section 205(3) of the RMA which addresses the topic of submissions to the Special Tribunal following notification of an application. It is worth setting out subsection (3) in full:

Any person who supports the making of a water conservation order, but who would prefer -

  1. That the order instead preserve a different but related water body in the same catchment; or
  2. That different features and qualities of the water body be preserved, -

shall endeavour, in his or her submission, -

  1. To make that preference known to the Tribunal; and
  2. To specify the reasons for the preference, referring, where practicable, to the matters set out in sections 119, 200 and 207; and
  3. 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.

8. What has happened here is that a large number of submissions have been filed which oppose the application (ie they oppose the particular variations to the WCO that the applicant is seeking), but a significant number of those opposing submissions then go on and:

8.1. Seek protection of different water bodies not protected by the current terms of the WCO; or

8.2. Seek to extend the terms of the current WCO as it affects this water body by adding further features or qualities not currently protected.

9. The first legal issue that has therefore arisen is whether or not the terms of section 205(3) entitle a submitter who opposes an application to vary a WCO to nonetheless seek the protection of different water bodies not currently protected, or seek to protect features or qualities not currently included within the WCO for the water body the subject of the application.

10 A second legal issue was said to arise that turned on the interpretation of section 216, which addresses revocations or variations of WCOs. Section 216(4) is worth setting out in full:

Except as provided in subsection (3), an application made under subsection (2) for the revocation or amendment of a water conservation order, shall be dealt with in the same manner as an application for such an order, and sections 201 to 215 shall apply accordingly.

11. The issue said to arise is whether in the distinct case of an application for revocation or variation under section 216, there is jurisdiction for submitters to seek any outcome beyond the ambit of the application. To put this issue another way, in the case of an application for revocation or variation of a WCO, is there jurisdiction for the Special Tribunal to consider those parts of submissions that seek to extend or enlarge upon that which has been sought.

12. We are not at all sure that this second issue is a discrete matter that should be addressed separately. In our view, once the ambit of section 205(3) is determined, it would be unlikely that section 216(4) would cut a different course by superimposing a different jurisdictional outcome.

Other water bodies

13. Reverting to the first issue, the applicant urged a construction of section 205(3) that there is no jurisdiction for an opposing submitter to seek to expand the scope of the enquiry to include the protection of other water bodies or features. Needless to say, the opposing submitters argued that there was such jurisdiction that at least covered some of the 'expansion/enlargement' that opposing submitters were seeking. (The multiplicity of submitters' positions meant that distilling a common stance on this was impossible: some opposing submitters did not seek to include other water bodies within the ambit of the hearing and some did.)

14. However, when one considers the terms of section 205(3), whichever of the competing interpretations is taken over the introductory words of the subsection, one thing is quite clear: if the 'expansion/enlargement' that is sought relates to a different water body, it must be a 'related water body in the same catchment'.

15. A number of opposing submissions sought to preserve different water bodies, namely:

15.1. The Matakitaki River.

15.2. The Matiri River.

15.3. The Grenroy Stream; and

15.4. The Black Valley Stream.

16. If on the face of the submissions and the material before the Tribunal, it can be conclusively demonstrated that none of these water bodies can be said, other than to be a few of the many tributaries of the mainstem Buller River, to be in the same catchment and related, then it would seem that they would lie outside the permissible scope of the hearing and that such a ruling can be made irrespective of the ruling on the first legal issue. Accordingly, the position of those other water bodies will be addressed next.

17. It was suggested that the omission of the Black Valley Stream from the current WCO was an error. The applicant disputed that and referred to passages in the decision of the Planning Tribunal. Whether or not it was an error is irrelevant however, as a jurisdictional gateway. We do not therefore propose to treat the Black Valley Stream any differently in that regard.

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 mainstem 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 or not 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, that is a human construct and the word '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 Matakitaki River, the Matiri River, the Grenroy Stream or the Black Valley Stream, they are beyond the scope of the hearing.

Section 205(4): a side-alley

21. Before we return to face the first legal issue, we should make a brief observation concerning section 205(4), which reads:

Any submission that does not contain all the matters referred to in subsection (3) may nevertheless be considered by the Tribunal.

22. No party sought to argue that that subsection enabled the Tribunal to elasticise the jurisdictional limits in subsection (3). Neither do we and we consider that subsection simply enables the Special Tribunal to still consider submissions that would otherwise be defective in omitting to include the matters required by subsection (3), rather than to effect any change to the jurisdictional ambit of subsection (3). We merely record the position and move on.

The first legal issue: different features - same water body

23. A number of submissions that were opposed to the application, nonetheless sought to enlarge the existing WCO to different features of the same water body. These different features covered such matters as the trout fishery, the eel fishery, ecological values and the wild and scenic values and some other 'down stream' features.

24. These different features covered such matters as the trout fishery, the eel fishery, ecological values and wild and scenic values. Sustaining in-stream values such as the trout and eel stocks together with their food sources in the Gowan Rover catchment and downstream was also a matter raised in a number of submissions. The importance of ensuring connectivity between various parts of the river system supporting these values was noted by this group.

25. To determine whether these requests are within the scope of the hearing, collides directly with the legal issue set out in paragraph 9 above to which we now return.

Discussion

26. There is a fundamental and well entrenched instinctive abhorrence on the part of decision-makers in the RMA jurisdiction to situations where a would be applicant who defines the scope of his application by the fact of what he is seeking, to then find that he is facing a different contest altogether, well beyond the scope of what he was seeking simply by reason of what a submitter subsequently seeks. There are good reasons founded in natural justice principles for that abhorrence and it is discernible in the case law principles developed under at least two statutory regimes prior to the RMA. In accordance with those principles, Mr Crosby for the applicant quite appropriately pointed out that such enlargements are not the subject of an extra round of statutory public notification, which might ordinarily address this as is the case with the cross submission process for plan changes, for example, and that the enlargements can even contradict the Planning Tribunal decision in respect of the current WCO for this water body - and indeed, some do.

27. We are acutely conscious of those principles. Notwithstanding that, on our analysis it appears that the statutory language is such that this is one of those instances where the provisions do permit the scope of the hearing to include such enlargements.

28. The applicant pointed to the fact that section 205(3) bestows the ability to seek such enlargements only upon a supporting submitter. The problem with that is that the full statutory wording is somewhat prescriptive in that it reads:

Any person who supports the making of a water conservation order…

29. The applicant argues that section 205 is not a discrete provision for revocation or variation, but is one of the broad sections directed to the making of a WCO in the first place. On that interpretation, the words 'the making of a water conservation order' should transmute into 'an application for revocation or variation' or some meaning to the like effect that would confine the submitter wishing to enlarge to anyone who supports the application. It is further argued on behalf of the applicant, that the position of opposing submitters is explicitly dealt with in section 205(5) devoid of any reference to the ability to seek enlargement. That subsection reads:

Any person who makes a submission opposing the making of an order, shall specify the reasons why he or she considers the proposed order is not justified in terms of section 199 and section 207.

30. We do not read section 205(5) as of any particular assistance. It seems to us that that subsection simply requires specification of reasons on the part of opposing submitters. It would not of itself prevent a submitter seeking an enlargement of the WCO.

31. But the biggest impediment to the applicant's position is the plain wording of the subsection in referring to 'the making of a water conservation order'. The phrase 'water conservation order' is explicitly defined in section 200, in terms that would appear to include an application for variation.

32. Furthermore, while the applicant rightly points to the fact that under the scheme of the RMA, a WCO is simply a restriction on resource consent applications and that broader issues can be contested at that stage, it seems to us that the better view is that the statutory scheme of the RMA for creating and changing WCOs is very broad and enabling. A WCO is, after all, a statutory instrument once it is fully evolved. When a WCO is sought in the first instance (ie not a variation), section 205(3) unquestionably gives supporting submitters the ability to extend the scope of the hearing. In other words, the applicant and other parties are in no better and no worse a position than they otherwise would be if the WCO was being sought for the first time. It is significant that section 204(2)(d) requires that the public notification of an application shall state:

  1. The effect of section 205(3); and
  2. That the matters to be considered by the Tribunal may be wider than the matters raised in the application.

33. It is, we presume, possible that in the event that the Special Tribunal was faced with requested enlargements in submissions that raised serious issues of natural justice or non participation of affected parties, the provisions of section 204(1)(b) could be utilised to remedy that.

34. The plain wording of section 205(3) directs that the position of qualifying support is the support for the protection of a WCO. There is some force in the point that logically that means those who favour protection and it would seem improbable that conversely those who seek to diminish protection (ie by supporting a variation of the WCO to that effect), would be likely to seek the enlargement of protection on the same water body or elsewhere. Perhaps another way of expressing the same point is to make the more simple observation that had the legislature intended to exclude the application of section 205(3) to applications for variations, it would have been easy enough to do so.

35. We further note that the Tribunal's task under section 202 is to 'report on the application'. As mentioned earlier, a WCO already in place is a statutory instrument and those aspects would suggest there is some ability on the part of the Tribunal to range beyond the confined scope of what is sought in the application or, to put the matter another way, the application is not determinative of the scope of the hearing and therefore what is reported on. In that sense, we would not read section 216(4) (and in particular the use of the word 'accordingly') quite as narrowly as the applicant suggests, but we do not place a great deal in store on the argument either way concerning section 216(4) for the reasons above stated.

36. It is also worth noting that the Planning Tribunal in its approach to making the Buller WCO, considered the merits of each individual river (or parts thereof) over which protection was sought, rather than looking at the whole catchment notwithstanding the fact that the Special Tribunal making the draft order had considered the whole catchment warranted a WCO, but then went on to essentially exclude stretches of river that did not contribute to the values justifying protection.

Result

37. It follows from the above, that:

37.1. We would exclude from the scope of the hearing all submissions that have sought any form of protection under part 9 RMA in respect of the Matakitaki River, the Matiri River, the Grenroy Stream or the Black Valley Stream.

37.2. That we would treat as within the scope of the hearing, the submissions that seek to enlarge the present WCO in respect of the same water body, in this instance the Gowan River.

A final observation

38. All members of the Tribunal wish to state that regardless of the route of the matter from here, they were greatly assisted by the very skilful arguments presented by counsel for the parties in an efficient and efficacious manner.

 

Date: 2004

R J B Fowler

M R Johnston

L Teirney

Reviewed:
06/01/09