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1 Introduction

  1. This report outlines the recommendations of a Special Tribunal appointed by the Minister for the Environment (“the Minister”) under section 202 of the Resource Management Act 1991 (“the RMA”, “the Act”) to hear an application for a Water Conservation Order for the Oreti River in Southland. The application was made by the Southland and New Zealand Fish and Game Councils (“Fish and Game”, “the applicant”).
  2. The Special Tribunal comprised Dr Brent Cowie (chair), Dr Paul Blaschke and Dr Gail Tipa. Between us we have expertise in resource management, freshwater ecology, conservation biology, social science, planning and tikanga Māori. One of us used to be a trout fisherman, albeit one who only ever had moderate success and who gave up long ago. Another of us is a passive member of Forest and Bird, and the third is a member of Ngäi Tahu. We did not see this as causing any conflict of interest in any case.
  3. We were very ably assisted by Mr Steve Merito in the Christchurch Office of the Ministry for the Environment (“the Ministry”), and Ms Christina Wells from the Ministry in Wellington. We record our thanks to them. We were also able to access legal advice from Philip Milne from Simpson Grierson, whom we thank for his help. In particular, the legal advice he provided us in May 2007 provided strong guidance for our recommendations, and he undertook a legal audit of our draft report and the associated draft order.
  4. The Special Tribunal inspected the upper Oreti catchment from Mossburn upstream by helicopter on 25 January 2007. We also inspected the lower part of the catchment by car on the same day, and Dr Blaschke returned to the upper catchment by car a few days later. We consider that these inspections, along with the knowledge that was imparted to us by witnesses during the hearing, gave us a very good overview of the Oreti catchment, and particularly its headwaters.
  5. We heard the application in Invercargill over six days, being 26 and 29-31 January 2007, and 19-20 April 2007. We heard legal submissions and 16 witnesses for the applicant, five parties who supported the application, one neutral party and six parties who opposed the application. We then adjourned the hearing at about 1430h on 20 April to allow for the applicant’s right of reply.
  6. We heard the application and submissions in two stages, because we wanted the submitters who opposed the application to have ample time to consider the applicant’s evidence before preparing their own evidence. In the first stage in January we heard all evidence from the applicant (except for one witness who was unavailable), and we also heard from submitters in favour of the application. In the second stage in April we heard from the remaining witness for the applicant, and all other submitters, as well as some supplementary evidence requested by us from the applicant.
  7. Unlike an application for a resource consent (which must be accompanied by an Assessment of Environmental Effects on a scale appropriate to the effects of the consents sought), an application for a Water Conservation Order is only a “triggering mechanism”: it does not have to be comprehensive. The application made by Fish and Game provided a resource description along with an outline of the protection sought by an Order. We thought about requiring either further information under s92, or requiring pre-circulation of the applicant’s evidence under s41C of the RMA. Instead, we decided on the two-stage process to give the submitters who opposed the application, time to consider and appraise the applicant’s evidence in full.
  8. There was one somewhat unusual feature of this hearing process. We had originally scheduled the second stage of the hearing for 21-23 March. At the January hearing, however, we received a request from Southland Regional Council (“Environment Southland”) to delay the second stage of the hearing until after such time as decisions on submissions and further submissions to the three relevant sections of their Proposed Regional Freshwater Plan (“the Water Plan”), as amended by variations, were available, which we were told would be late March. These three variations dealt with groundwater, water quality and water quantity respectively, and referring to those decisions would help Environment Southland prepare its case for our hearing their submissions on the application. It would also help us make our findings in the context of the best possible information and most up–to-date policy context.
  9. We asked that this request from Environment Southland be put in writing, and this was duly received on 30 January. Counsel for the applicant, Ms Baker, did not object to delaying the second part of the hearing to allow the decisions on the variations to the proposed Water Plan to be released. Environment Southland was confident those decisions would be released prior to Easter, and so we tentatively agreed to defer the second stage of the hearing to 18–20 April.
  10. Before finalising this we wanted to be certain, however, that no party opposing the application would be disadvantaged by this change, so we asked Mr Merito to contact them individually. There were no objections to this change of timetable, so the second stage of the hearing took place in April.
  11. The decisions on the variations to the three chapters of the Water Plan were duly released on 31 March. There then followed on Friday 13 April a meeting between the applicant and the regional council. That meeting resulted in the applicant putting forward an amended application to us at the recommencement of the hearing on Thursday 19 April. Environment Southland, while continuing to oppose the granting of the application, told us that if we were to find that the application should be granted, it should be on the terms that they had agreed with Fish and Game at the 13 April meeting.
  12. We detail the changes made to the application later in this decision. It will suffice to say here that due to decisions on submissions on the three variations to the Water Plan, the applicant in April sought an order on considerably more general and less restrictive terms than was the case in January. In broad terms this was because Fish and Game were apparently satisfied that the provisions of the amended plan provided sufficient protection for some matters, notably related to flows and the associated taking of groundwater hydraulically linked to the Oreti River, and that accordingly these provisions were no longer needed in a water conservation order.
  13. We had some concerns about this process for two reasons. First, submitters who appeared in support of the application in January had not had the opportunity to comment on the applicant’s amended application. Second, parties opposing the application, who were due to be heard on 19 or 20 April were not privy to this “agreement”. Accordingly, we asked Mr Merito to contact these parties, which he did by e-mail on 17 April.
  14. Several submitters who opposed the application expressed some frustration at the short notice given of this “agreement”. While we well understand that, we note that the “agreement” was for an application on much less restrictive grounds than was originally sought by Fish and Game. Submitters who opposed the application therefore had to address less substantive issues than had been the case before.
  15. We heard the applicant’s final right of reply at Mosgiel on Monday 18 June 2007. This was after the time that appeals to the decisions on relevant variations to the Water Plan had closed. We circulated that right of reply to all submitters who had attended the hearing, but no further comment was received.
  16. The right of reply was attended by Ms Baker and Mr Rodway on behalf of the applicant, and Ms Millar on behalf of Environment Southland. Mr Slowley, Counsel for Environment Southland, was not able to attend as he was indisposed.
  17. We did have one concern about the right of reply in that Ms Baker invited us, albeit somewhat indirectly, to impose a minimum flow regime for the river. Our concern was because in the amended order presented to us at the April hearing, Counsel for Fish and Game presented an amended application that did not include any provision for a minimum flow. Submitters presented evidence to us on this basis. We comment in more detail on this matter later in this report, but suffice to say here that we have not imposed any minimum flow regime on the river.

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