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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

Summary of the Special Tribunal’s Findings

1 Introduction

2 Background to the Application

3 Summary of Evidence

4 Part 9 of the RMA

5 Does the Oreti River have Outstanding Values?

6 Part 2 of the Act

7 Section 207 of the Act

8 Protection of Outstanding Features and Characteristics

Water Conservation (Oreti River) Order 2007

Annex A: List of submitters

3 Summary of Evidence

55. In this section we briefly summarise the evidence presented to us at the two stages of the hearing. This summary is not intended to be exhaustive as we often refer back to this evidence in our evaluation of the application.

3.1 The Case for the Applicant

56. The applicant provided legal submissions and called 16 witnesses, all of whom bar Mr Stenning we heard in January 2007.
57. Ms Maree Baker is a resource management lawyer with Anderson Lloyd Lawyers. She presented legal submissions on behalf of the applicant, and outlined what matters would be covered by witnesses for the applicant. She also presented a draft order for our consideration.² We need not detail her legal submissions here as we cover these matters comprehensively elsewhere in this report.
58. The applicant’s case was comprehensive. We heard from scientists and technical specialists who provided evidence about the fishery, its comparative values, its management, and what characteristics of the Oreti River make it an outstanding fishery. Evidence was led on hydrology, native fisheries and wildlife values. We also heard from a number of expert anglers (both professional and amateur) who described, often very enthusiastically, why they felt the Oreti was special. In this summary we deal first with the scientific and technical evidence, and then the evidence of the expert anglers.
59. Mr Maurice Rodway is the Southland Manager of Fish and Game New Zealand and had been instrumental in preparing the application. He has a Masters degree and has been an angler for 40 years.
60. Mr Rodway detailed why he considered the upper river is an outstanding brown trout fishery and habitat for trout, and associated outstanding angling amenity. We need not detail that here – suffice to say this assertion was based primarily on both the size and abundance of trout and the challenge of fishing for them. He also provided comparative information on other trout fisheries in Southland.
61. The consultation process undertaken by the applicant was outlined. Mr Rodway had held meetings with the Lumsden Community Board, who he considered were relatively relaxed about the proposed water conservation order, and local farmers, who were generally opposed to the application. The Department of Conservation had supported the application and, by way of a letter appended to the application, stated that they would continue to be involved in the process through the submission process. Unfortunately the Department chose not to follow up this undertaking.
62. Dr John Hayes is a very experienced fisheries biologist employed by the Cawthron Institute in Nelson. He considers himself an “avid trout and salmon angler”.
63. Dr Hayes listed four factors that he considered contributed to the renowned trout fishery and large-size trout found in the upper Oreti. These were: a favourable year-round water temperature regime (relatively cool summers and warm winters); good water quality with very high clarity; an inferred good food supply (inferred because of the size to which trout grow); and a high proportion of the adult trout habitat being present at the mean annual low flow. He noted that available trout habitat does, however, decline quite steeply at flows below the mean annual low flow.
64. The brown trout found in the upper Oreti are, on average, exceptionally large by New Zealand standards. Dr Hayes considered that, based on considerations of water temperatures and trout energetics, fish would be unlikely to reach this size if they stayed permanently in the upper river. Accordingly he inferred that most fish would spend at least some time feeding in the lower river to attain these sizes. He considered that continuous passage along the river is very important to maintain the headwater fishery.
65. Once trout grow to a large size, however, it is advantageous for them to live in cool waters. This is because their efficiency at assimilating food increases with cooler water temperatures. Dr Hayes considered that the many shallow groundwater inflows to the upper Oreti buffer temperature variations, and so are very important to maintaining cool temperatures in the river.
66. Trout are visual feeders, and the exceptionally high water clarity in the upper river at base flow conditions will assist feeding. Other water quality parameters, such as high dissolved oxygen levels, also contribute to highly valued trout habitat.
67. Dr Don Jellyman, another very experienced fisheries biologist, works for the National Institute of Water and Atmosphere (NIWA). He gave evidence about the trout fishery of the river, the significance of trout movements and the relative significance of native fish. We discuss native fish when evaluating what characteristics of the river are outstanding.
68. Dr Jellyman described a comprehensive study of the brown trout fishery in the headwaters of the Oreti River carried out in 1989–1992. This work was commissioned by the New Zealand Fish and Game Council. Some comparative information was collected from 10 recognised South Island headwater fisheries, but the emphasis of the study was on the upper Oreti. Reasons for this emphasis included the river’s reputation as a trophy brown trout fishery, good access, and that the size of the river and its high clarity made it suitable for activities such as drift diving. Fish were caught by hand where possible and tagged.
69. The number of large fish ranged between 6 and 8 per kilometre. In terms of biomass, the Oreti then ranked behind very productive rivers such as the Karamea or Mohikinui, but was comparable to rivers in the Inangahua catchment. Dr Jellyman noted that since that time large trout numbers in the upper Oreti have increased to about 30 per kilometre (which he attributed to the “catch-and-release policy” now in place). In terms of trout biomass this would place the Oreti at the top of the headwater rivers studied in 1989–92, and 17th out of 158 rivers studied nationally at much the same time. Of the rivers with higher trout biomass than now present in the river, eight were lake or spring-fed, which fosters high trout biomass because of stable flows. The trout biomasses now recorded in the upper Oreti would be in the top 10% of non-spring or lake-fed rivers nationally (assuming biomasses in other rivers surveyed have not changed greatly in the last 15 years or so).
70. The size of the trout present in the upper Oreti was quite exceptional. Over two thirds of fish seen were large, a proportion exceeded for the headwater fisheries studied only by the Mohikinui. In the comparative study of the 10 headwater catchments, the mean size of fish in the upper Oreti was, at 2.74 kg, over 10% greater than the next two rivers (Karamea, 2.36 kg; Wairau, 2.31 kg). The upper Oreti also had the largest mean size of trout in the 154 headwater rivers for which reasonable size data are available. The headwater fishery is dominated by male fish, which make up over 75% of the fish recorded.
71. Trout in the middle and lower reaches of the river are on average considerably smaller than in the headwaters. Tagging studies showed that large fish caught in the headwaters were more likely to remain there, while smaller fish in the middle and lower reaches of the river are more mobile. There was some evidence that the headwater fishery was maintained by recruitment from lower down the river, but this was not conclusive. Dr Jellyman did note, however, that in other rivers female trout have been shown to migrate downstream after spawning to recover condition by feeding on species characteristic of estuaries and lower river reaches. This would help explain the predominance of males in the headwater fishery, which is a common feature of headwater fisheries.
72. Ms Jan Riddell has an honours degree in hydrology and many years’ experience in professional and political roles in the Southland region. She provided detailed information on the hydrology of the Oreti catchment, and the uses to which the river is put. We have already summarised what she said in our description of the catchment.
73. Mr Jens Rekker is a consultant hydrogeologist. His evidence covered the contribution of riparian groundwater to the maintenance of flows in the Oreti River, and, associated with this, the need to protect those riparian aquifers from abstractions that could deplete surface flows.
74. Modelling studies indicated that on average at base flows, riparian groundwater contributes about 60% of the flow recorded in the upper Oreti at Three Kings. Mr Rekker provided calculations that indicated that during a sustained dry period in summer 2001, groundwater contributions may have made up 95% of the river’s flow.
75. . Abstraction of shallow groundwater that is hydraulically strongly connected to the river will deplete surface flows. Mr Rekker considered that any water conservation order should make provision to protect shallow groundwater.³
76. Ms Carmen Taylor is a qualified planner with a good deal of experience associated with water management in the Southland region. She discussed how the provisions of the water conservation order originally sought by the applicant tie in with relevant statutory policies and plans in the region. We need not detail her evidence here as we address these matters later in this report.
77. Mr Martin Unwin is a fisheries scientist with 30 years’ experience who is employed by NIWA. His evidence focused on angler surveys of the relative value of the Oreti River.⁴
78. The first such survey was the National Angling Survey of 1979–81. This was comprehensive, involving 4,692 replies providing 20,800 assessments of 817 river fisheries. The responses focused on qualitative attributes such as ease of access and size of fish.
79. The assessment for the Oreti was based on the whole length of the river, and it was identified as a possible candidate for national importance status. Other nearby headwater fisheries, such as the Greenstone, Caples, Mararoa and Eglinton were also identified as possibly being of national importance.
80. Further national angling surveys were carried out on behalf of Fish and Game New Zealand in 1994/96 and 2001/02. These were based on information collected from a percentage of licence holders, but this method generally fails to capture anglers who are not New Zealand residents. The first of these surveys treated the Oreti as one river, but the second survey divided it into reaches above and below Lumsden.
81. Trout and salmon angling shows regional trends. Based on fishing licence sales it is three times more popular in the South Island than the North Island. Participation rates are highest in the lower South Island, and in Southland one in six adult males held a season fishing licence in 2001/02. This is nearly four times the national average. Almost as many licenses were sold in Invercargill and Gore combined than in the greater Auckland area.
82. Mr Unwin then described the relative importance of the Oreti River fishery in a regional and national context. We discuss this elsewhere.
83. Ms Rachel McLellan is a graduate student at the University of Otago with several years’ previous experience in conservation management, who is investigating black-billed gull populations on the Oreti River for her doctoral studies. Ms McLellan described the distribution, breeding ecology, threats and conservation status of black-billed gulls.
84. The black-billed gull is an endemic New Zealand species and is regarded as the most threatened gull species in the world. In New Zealand it has the classification of being “in serious decline”. Breeding colonies have been observed on the Oreti River over the last 30 years between about 15 km inland from the sea and Coal Hill near the confluence of the Windley River. Ms McLellan stated that the Oreti may support as much as a quarter of the world population of black-billed gulls and some of the largest breeding colonies in the country. These colonies can establish almost anywhere along the length of the river. She considered that the Oreti provided outstanding breeding habitat for this species. We return to this matter later in our discussion of whether the Oreti has or contributes to outstanding features or characteristics.
85. In answer to questions, Ms McLellan gave anecdotal information about other bird species inhabiting the Oreti River, including pied stilt, Canada geese, black-fronted terns and oystercatchers, and noted the vulnerability of several of these species such as black-billed gulls, to threats such as predation.
86. Mr William Jarvie has worked in fish and game management for nearly 30 years, the last 17 of them for Southland Fish and Game. His evidence discussed the comparative “success” of didymo in colonising the Oreti and Mararoa Rivers. We discuss this evidence elsewhere.
87. Mr Ricky Olley and Dr Tobias Bickel are freshwater ecologists who have qualified from the University of Otago. They co-authored a report titled “Using otolith micro-chemistry to track migration of trout in the Oreti River”.⁵
88. The two main conclusions they drew from this study were:
    • Adult fish from the upper river had not spent time in the river estuary. However, the origins of all fish sampled from the estuary could be traced back upriver, many to headwater reaches. Once fish entered the estuary, they appeared to stay there.
    • Long-distance migration along the river system is common among brown trout from the Oreti. Some headwater fish had for instance spent part of their life in the Makarewa River, which is a tributary of the lower Oreti.⁶
89. Mr Olley and Dr Bickel concluded from this study that any barrier that prevents migration throughout the catchment could have a negative impact on the brown trout population of the river.
90. As explained earlier we also heard from a number of expert anglers who gave evidence on behalf of the applicant.
91. Mr Ron Todd is an angling guide based in Te Anau. He was a member of Southland Fish and Game and its antecedent organisation for 14 years. He has fished the Oreti River since he was 13.
92. The things that keep attracting Mr Todd back to the upper Oreti include the peace and solitude, the beauty of the place, the great fish, the friends that you make and the clarity of the water. He also said that the river clears very quickly after a flood, so from a guide’s point of view the Oreti is “one handy river to have”. Of his overseas clients at least half want to fish the Oreti, and about 5% come to the country specifically to fish the river. The easy access to the river, combined with being able to wade it, make it very special for older fishermen.
93. On his “best day” on the river Mr Todd landed eight trout of between 3.5 and 8 lbs.⁷ He said that on the right day this would be the best brown trout river he has fished for sighting and catching big fish. He has caught three “trophy” brown trout of over 10 lbs in the river.
94. Mr Stuart Sutherland is based in Lumsden and has worked for Southland Fish and Game and its predecessor since 1973. He has been involved in all Fish and Game’s work on the river for the last 33 years. Based on his experience Mr Sutherland considers the upper Oreti is an “outstanding internationally important brown trout fishery”.
95. In the fishing season of 2000/01 Mr Sutherland conducted an angler field survey upstream of Rocky Point. He was on the river for 42 days and interviewed 191 anglers. Of these, 59% were from overseas, 26% from Southland and 15% came from other parts of New Zealand. Of the overseas anglers 27% were from North America and 16% from Australia. Some overseas anglers have bought houses in local villages. Anglers accompanied by fishing guides made up about 10% of the use of the upper river.
96. Asked what drew them to the upper Oreti, survey respondents rated the following characteristics most highly: peace and solitude, undisturbed water (i.e. they are not fishing behind another angler), the ability to spot and fish individual trout, the environment and scenery and the challenge to their skill. Catching large fish and catching several fish rated low. Most anglers said they were satisfied or very satisfied with the experience; only three expressed dissatisfaction.
97. Asked what has changed since 2000/01 Mr Sutherland considered that the fishery in the lower river may have declined, but that it has improved in the upper river due to greater numbers of large fish being present. Numbers of overseas anglers had dropped off following the 9/11 terrorist attack in 2001, but were now increasing again. In his view anglers were “getting used to didymo” and were now returning to their old haunts.
98. Mr Dean Bell has been a fishing guide since 1994. On average he guides anglers on the upper Oreti 18 days per season. He considered he had more “fishing knowledge” of the upper river, where he knows every pool, riffle and run, than anyone else. One of the reasons overseas anglers are attracted to New Zealand is that there are no aerial predators, so fish can feed openly during the day.
99. Mr Bell has fished widely around New Zealand and indeed the world. No other New Zealand trout fishery with trophy fish present has such easy access as the Oreti – other rivers either must be accessed via long tramps or by helicopter. The only places he knew of internationally where easily accessible trout of such large size are found are in three modified environments, two in North America and one in Mexico.
100. One of the characteristics of the upper Oreti is the relative lack of fish under 2 kg. He said that his guided anglers spent 16% of their time on the upper Oreti, but it provided 76% of the trout over 8 lbs they caught. Catch rates are lower than on other rivers, but according to Mr Bell the challenge is greater on the Oreti, where fishing must be “perfect” if fish are to be caught. He felt that the Oreti River is the best single test of an angler’s ability anywhere in the lower South Island, and that its presence is paramount to his successful guiding business. Fish and Game were commended for its “catch-and-release” and “foot only” policies, which he said had enhanced the experience for anglers able to hike to the river.
101. Mr Bell considered the optimum flow for angling was between 9 and 12 m³/s. At flows below 6 m³/s fish became very wary and difficult to catch, while above 15 m³/s the river is usually discoloured and not fishable. He did note, however, that the river clears very rapidly after a moderate flood following say 20mm of rain, which is not the case in, for example, the Mataura. He attributed this to the lack of any intensive land use in the upper Oreti catchment.
102. Mr Bell takes clients to Weydon Burn early in the season, and to the lower Windley River. He noted the former is now affected by didymo, which he did not consider would become a significant issue in the upper Oreti because of the mobile bed and the frequency of freshes and floods. Asked what he thought were the main risks to the upper river, he cited angling pressure, drought and didymo.
103. Mr Rob Bowler is an American fisherman who owns a house in Balfour in Southland. He has written two books on trout fishing, and has fished widely in New Zealand and overseas. He has kept a detailed dairy; since 1992 he has visited the Oreti River 147 times, and caught and released 472 trout with an average weight of 6.16 lbs.
104. Mr Bowler ranked the Oreti as the best trout river in the country, followed closely by the Ahuriri and the upper Wairau. He also considered it outranked all the brown trout rivers in North America. Particular challenges in the Oreti include “wily and smart” trophy trout, sight fishing and the difficulties of selecting the right fly for fishing. He said that didymo did detract from the angling experience, but it had not affected the condition of trout.
105. Mr Brad Kastner is another American who works as a fishing guide and has fished the Oreti River for four years. He has also fished in Alaska, Russia, Argentina and Mongolia. He said that there is no river in North America that has brown trout fishing offering an experience remotely close to the Oreti, and in New Zealand the only comparable river is the Ahuriri. There are comparable rivers with rainbow trout in Alaska but access is only by floatplane. Rivers in the Rio Grande in South America hold larger brown trout, but access is very difficult and fishing is not by sight.
106. In two days in November 2006 he and a friend landed and released 55 trout, all but 10 over 7 lbs. He has also caught trout in the lower reaches of the Windley River.
107. Mr Paul Stenning lives in Invercargill. He has been a Southland Fish and Game councillor since 1998, and has fished widely in Southland since he was a boy.
108. Mr Stenning fishes along the entire length of the Oreti River, but prefers fishing the headwaters. Among the reasons for this are the presence of large fish and the challenge of fishing for them, the clear water and the ability to spot fish, and the “truly beautiful” natural environment. The upper Oreti meets all his criteria as the “perfect river”. As an honorary ranger he has met many anglers from overseas on the upper river, and without exception they rate the river as one of the best in the world to fish for brown trout.
109. In April we heard from Ms Phillipa Jones, another lawyer from Anderson Lloyd Lawyers as Ms Baker was not available. Ms Jones told us that the applicant and Environment Southland had met on 13 April following the release of decisions on the Variations 2–4 of the Proposed Regional Freshwater Plan late in March. As a result of that meeting Fish and Game had agreed to amend the specific protection sought in the application, as some of the concerns of Fish and Game had been met by the decisions on the variations to the regional plan. She provided an amended draft order for our consideration, which we discuss at some length later.
110. Mr Rodway provided supplementary evidence. He commented particularly on comparisons in national angling survey information presented by Dr Jellyman and Mr Unwin, and discussed the values of tributaries for which protection is sought by the water conservation order. We need not detail that evidence here as we discuss these matters later.

3.2 Submitters in Support of the Application

111. We heard from five submitters who supported the application, and one neutral submitter, at the January hearing.
112. Royal Forest and Bird Protection Society were represented by Ms Sue Maturin, an experienced field officer of the Society, supported by evidence from Mr Lloyd Esler, an experienced Southland naturalist and teacher. Ms Maturin presented wide-ranging arguments in favour of a water conservation order to protect what she saw as the outstanding amenity and intrinsic values of the Oreti River. She and Mr Esler provided evidence about the value of the river as habitat for significant populations of a number of native species, including bird species that are considered to be nationally and internationally threatened with extinction, such as black-billed gulls, black-fronted and Caspian terns, and banded dotterels. She considered that Environment Southland’s current and proposed statutory plans would not protect the existing river flow and form, or water quantity and quality to the extent necessary to maintain the outstanding characteristics of the Oreti. Mr Esler backed up these assertions with a summary of natural values of the river to sections of the community other than fishers, for example the many school children and naturalists he leads on trips to the river.
113. Mr Michael Skerrett is the Manager of Te Ao Marama which represents the resource management interests of the four Ngāi Tahu papatipu rūnanga o Murihiku – Te Rūnaka o Awarua, Hokonui Rūnanga Inc Society, Te Rūnaka o Oraka-Aparima and Te Rūnaka o Waihopai. Mr Skerrett explained a number of the cultural values associated with the Oreti River, including its value as a major inland trail, as habitat for many native fish, bird and plant species that are regarded as taonga species, as a pounamu trade route, and as a source of mahinga kai and other cultural materials. This use of the catchment is evidenced by archaeological evidence that remains. The significance of such sites was also outlined by Mr Skerrett. He concluded that a water conservation order would protect Ngāi Tahu’s cultural, spiritual, historical and traditional association with the catchment.
114. Mr Niall Watson is the manager of the Otago Fish and Game Council. He has worked in fish and game management for over 25 years.
115. Mr Watson said that the Oreti River is “part of the spectrum of angling opportunity” available to many Otago anglers within a reasonable travel distance. This recreational angling opportunity spectrum falls into five categories: urban, rural, natural, back country and remote. Features of back country or remote fisheries include largely unmodified landscapes, relatively low rates of encounters with other anglers, good catch rates and/or size of fish, locations distant from population centres and limited access.
116. He considered the Oreti River to be an outstanding back-country fishery, and noted that it is managed alongside two Otago back-country fisheries, namely the Caples and Greenstone, details of which are described elsewhere in our report.
117. Mr Les Ladbrook is a local angler, who also spoke on behalf of submitters Dave Harris and Adam Cowie. He said the Oreti River is a very important fishery for both local and overseas anglers. He supported the application as he considered that while the Water Plan went a long way, he didn’t feel it “had enough teeth” to protect flows and did not prevent damming.
118. Mr John Purey-Cust is a retired forester who lives in Gore and has been a fisherman for over 60 years. He thought it was regrettable that a water conservation order had to be applied for, as he thought the river’s value should have been recognised in local authority plans. Like others, Mr Purey-Cust highlighted the river’s importance for tourism, and said that the application “spoke for the Oreti River and all of Southland.”
119. Mr Purey-Cust said opposition to the order came from only two quarters – local authorities defending their territory, and sectional interests who want to use the river for gravel supply or irrigation. He urged that we grant the application.
120. In April we also heard a submission in support of the application from Mr Ted Loose, Mrs Mariana Loose and Mr Ted Tapper, who appeared on behalf of a number of submitters. Both Mr Loose and Mr Tapper were Environment Southland councillors, but were appearing as individuals supporting the application.
121. Mr Tapper, who “retired 11 years ago to go fishing”, said that the upper Oreti is a world-class brown trout fishery, which draws anglers from all over the world. He emphasised the importance of maintaining fish passage from the lower estuarine reaches of the river to the headwaters. He has fished in many parts of the world, and regards the Oreti River extremely highly. In his experience fishing in other countries, such as Iceland, didymo will not establish in rivers which carry significant floods and which have mobile beds.
122. Mr Loose has lived in northern Southland for 45 years, He considered that a conservation order was necessary as he did not think the RMA, or the provisions of the Water Plan, would protect the river. The council’s goal of beating non-point source pollution by 2015 cannot be achieved, according to Mr Loose, unless the upper catchments are protected.
123. Mrs Loose is a JP and a member of Ngāi Tahu. She explained how Māori view creation and the linkages between their spiritual values and how Māori view natural systems, such as the Oreti River.

3.3 Neutral Submitters

124. At the January hearing, Mr Craig Evans spoke on behalf of the Oreti Irrigation Water Users Group. Mr Evans is a senior hydrologist with MWH New Zealand Ltd based in Dunedin, and has 16 years’ relevant experience. He has been involved in work in Southland since 2001.
125. The water users group comprises the eight major irrigators downstream of Mossburn. These users have a total groundwater allocation of over 8.8 million cubic metres of water per year if water were taken for 180 days per year. In answer to a question, however, Mr Evans said most users would only take water for about 10–20 days per annum.
126. Most of these consents are for a term of 10 years, and expire from 2012 on. One is for a take that is of groundwater with a direct hydraulic linkage to the Oreti River, but the other seven takes are from the confined Lumsden and North Range aquifers with no known hydraulic link to the river, apart from sharing the same recharge area. Water management guidelines prepared by Environment Southland indicate that no further water will be allocated from the North Range Aquifer at present, while members of the group hold most of the allocation from the Lumsden aquifer. The users wish to ensure that their consents will be able to be “renewed” once they do expire, and do not want any water conservation order to affect that.
127. The water users group did not oppose a prohibition of damming on the river, but were concerned about a possible provision to protect fish passage. This is in part because of difficulties caused in the management of the Mataura River by the provisions of the water conservation order made there in 1997. They sought clear and unambiguous wording in any order made.
128. Mr Shane Roberts, a resource management planner employed by Opus International Consultants, gave evidence to the April hearing on behalf of Transit New Zealand. In Southland, Opus is Transit’s network management consultant.
129. The State Highway network in Southland closely follows parts of the Oreti River. There are crossings of the river at Wallacetown, Winton, Lumsden and Mossburn; additionally SH 94 crosses Weydon Burn and its tributaries at several points north of Mossburn. Regular maintenance and occasional repair works are necessary at these bridges. This includes removing debris and accumulated gravel following floods, installation and maintenance of protective rip rap and gabion baskets, and repairs to the base of piers.
130. 130. Transit sought that any water conservation order made, provides for protection and maintenance of state highway assets. Mr Roberts noted that the amended draft order circulated to us in April differed from the original application and now makes provision for the activities that Transit could forseeably undertake. We have included those provisions in the draft order.

3.4 Submitters Opposing the Application

131. In April we heard from five groups who opposed the application. All bar Environment Southland had prepared at least part of their substantive evidence prior to the hearing at a time when they were unaware of the “agreement” reached on 13 April between the regional council and the applicant.
132. Environment Southland was represented by their solicitor, Mr Barry Slowley, and a Senior Resource Planner Ms Rachael Millar.
133. Mr Slowley said that, as a result of the understanding reached with Fish and Game on 13 April, Environment Southland would not be leading technical evidence opposing the way the application had been drafted. The regional council never intended to lead evidence contesting that the Oreti River had outstanding characteristics; rather their view was that this was for the applicant to establish.
134. The council was particularly concerned that a water conservation order is, in the words of the Environment Court in the Rangitata case, “a crude and very expensive tool in an otherwise relatively sophisticated toolbox”. He noted particularly that a water conservation order is not responsive to changes in technology or a greater understanding of water resources.
135. The council’s concerns about water conservation orders stem particularly from the wording of the Mataura order, which was made in 1997. Since that time dairying has expanded greatly north of Gore, with demands for large water takes, particularly from hydraulically linked groundwater. The order on the Mataura has meant the river is now managed differently from others in Southland through the Water Plan. A recent Environment Court case was described that Mr Slowley claimed showed the difficulties of interpreting the Mataura order given the more recent development of water resources in that catchment. Mr Slowley contrasted the process for making a water conservation order with the extensive expert and public input into the Water Plan, and questioned the utility of another level of regulation.
136. In answer to a question, Mr Slowley agreed that Environment Southland’s position could be summarised in three points.
     • It is up to the applicant to show that the Oreti River qualifies for protection by a water conservation order.
     • Even if it does qualify, the Tribunal needs to carefully consider s207 matters, and particularly the provisions of the Plan.
     • If an order is to be made, then it should be along the lines of the amended application.
137. Ms Millar has been responsible for coordinating all staff work on the council’s Water Plan and its variations. She holds a degree in resource studies and has lived most of her life in Southland.
138. Ms Millar did not duplicate material covered by Ms Taylor, who was the planning witness for the applicant, but did disagree with her on two matters. First, she noted that both the Regional Solid Waste Management Plan and the Regional Effluent Land Application Plan were relevant to the application in so far as any discharge permit applications cannot be contrary to a water conservation order. Second, she noted that s207 of the Act does give weighting to a proposed plan, such as the Regional Fresh Water Plan.
139. We discuss the provisions of the Plan in our evaluation of s207 matters, so we need not detail the balance of Ms Millar’s evidence here.
140. Two witnesses gave evidence opposing the application on behalf of the Southland province of Federated Farmers. They were Ms Fiona Young, an environmental scientist employed by Sinclair Knight Merz who used to work as a senior policy analyst for Federated Farmers, and Mr David Rose, the president of the Southland province. In Southland the federation has about 1,400 members and represents the majority of landholders in the region.
141. Ms Young said that water conservation orders by their nature do not provide for the community to make decisions. Federated Farmers opposed the original application and they also opposed the amended application put forward on 19 April. She reminded us of the provisions of s207 of the Act in relation to “the needs of primary and secondary industry and of the community”. Ongoing access to the river for stock water is important.
142. A perceived lack of consultation by the applicant was criticised. Ms Young compared this with the extensive consultation carried out by Environment Southland over the Regional Water Plan. She said that as a result of this, “landowners in general support the practical effects-based approach that the Water Plan has taken to achieving water quality and quantity outcomes in the Oreti catchment”. She pointed out that some of the provisions of the water conservation sought would duplicate, or nearly duplicate, those in the Water Plan.
143. Mr Rose runs a sheep farm of about 200 ha on the banks of the Oreti River. He has lived in the area all his life, chaired the Oreti River Liaison Committee for over eight years and has coordinated submissions on the Water Plan since the process started in 1999. He expressed frustration that after all the work carried out on the Water Plan, the outcomes reached may be overruled by the water conservation order.
144. Mr Rose had contacted farmers along 27 km of river frontage, all but two of them upstream of Rocky Point. He said there are generally good relationships between anglers and farmers, with many of the latter giving permission for access over their land.
145. Some farmers commented that the berm land was full of gorse and broom, and that the river contains didymo. Fertiliser inputs occur well back from waterways, and farmers support the requirement for a three-metre buffer for intensive winter grazing being promoted by Environment Southland.⁸
146. Mr Rose also read a statement of behalf of the Butson family (who were not submitters) who farm Mt Nicholas Station. The station, which is Crown leasehold, covers 100,000 acres. This includes 30,000 acres of the headwaters of the Oreti River, with 22 km of boundary with both branches of the head of the river. These lands provide grazing for a large number of stock, being grazed at times by merino sheep and beef cattle, and used for calving.
147. There is no fencing so stock have access to the river, but numbers are kept low to minimise impacts on the river. Care is taken not to spread fertiliser close to water. Anglers have open access to the property.
148. The Butsons concluded by saying that they considered they have achieved a sustainable balance between environmental values and their farming practices. They cited the quality of the fishery and the spectacular scenic values as testament to this.
149. Mr Grant Hubber gave evidence on behalf of the Oreti River Liaison Group. This is a consultative/advisory group that works alongside the regional council and represents landowners along the length of the river. The liaison group influences the budget for river control works, and is actively involved in commenting on proposed works programmes and resource consent applications.
150. The liaison group totally opposes the application for a water conservation order, and asked that we recommend it be declined. Mr Hubber contrasted the extensive consultation undertaken by the regional council during the preparation of its Water Plan with that undertaken about the proposed conservation order, which he asserted has landowners, particularly in the upper reaches, feeling “left out of the process”. He said the proposed order would be another cost imposed on the community for no benefit whatsoever, and noted that the protection sought was little over and above that provided by the Water Plan.
151. Mr Peter Lawson owns a farm of some 1,250 ha on the left bank of the Oreti River starting about 3 km upstream of Rocky Point. He runs sheep and beef, and does not irrigate his land. He said the argument put forward by Fish and Game that the river is in its natural state is strongly flawed because of the presence of noxious plants, pests and now didymo.
152. Farming is carried out in conjunction with high conservation values. Among other things Mr Lawson has fenced off the river boundary, controls pests and has tight controls on fertiliser application. Ms Rachel McLellan has studied a black-billed gull colony on his property, and pest control is carried out to protect gull colonies.
153. Anglers are allowed access across his property. Like some other submitters Mr Lawson criticised the lack of consultation by Fish and Game about the water conservation order application, and contrasted this to the Water Plan, which is said was a “living document administered by a democratically elected body”. He asked us to reject the application.
154. Mr Andrew Morris owns a farm on the true left bank of the upper Oreti downstream of the confluence of the Windley River, and immediately upstream of Mr Lawson’s property. The farm covers 980 ha, and runs sheep, deer and beef cattle. Mr Morris said that the property has been developed to its potential, and most work now is maintenance.
155. Mr Morris said that it was hard to see “outstanding values” associated with the river when it is covered in gorse, which he considered Fish and Game should control. He did not see the need for a water conservation order. Anglers are allowed access over his property. He owns land beside the lower reaches of the Windley River, which he said lies in “a beautiful valley”, but noted that didymo is already present and that, as the river is relatively stable, it is likely to become more infested.
156. We asked if any resource consents are needed from the regional council to manage his property. He said that a consent had been sought to maintain the Oreti River in its channel to prevent erosion on his and his neighbours’ properties, but he said this had been opposed by Fish and Game and to his knowledge no consent had been granted.⁹
157. Mr Brydon Hughes gave evidence on behalf of Landcorp Farming Limited. Mr Hughes is presently a senior hydrogeologist at Sinclair Knight Merz. Prior to that he was employed by Environment Southland for six years as an environmental scientist where he specialised on groundwater in the region.
158. Landcorp owns about 7,000 ha on the true right (west) bank of the Oreti catchment. This is about 11% of the catchment upstream of Mossburn, with frontages of 9.8 km along Weydon Burn and 22.5 km of the Oreti River (although much of the land immediately beside the river is a marginal strip managed by DOC). The company has a commitment to sustainable resource management through a “balanced scorecard”.
159. Mr Hughes considered that the variations to the Water Plan are a more appropriate mechanism to achieve outcomes for the community as a whole. He compared the provisions sought in the amended order with those in the plan, and concluded that they were little different. He said water conservation orders are a restrictive instrument that are not capable of responding to changing conditions in a timely way, as they are difficult to change. This contrasts with regional plans, which are subject to regular review and so are more flexible. For these reasons, Landcorp requested that the application be declined in its entirety.

3.5 Other Submitters

160. Many parties who made submissions to the original application did not appear at the hearing.
161. The large majority of those submitters supported the making of an order. In essence, these submitters asserted that the Oreti River, particularly the upper river, is an outstanding brown trout fishery. A significant number were from overseas, and either owned property in Southland or regularly visited the region to fish for trout. Apart from angling amenity, the main reasons these submitters gave for supporting the application included scenic values, and to preserve the peace and serenity of the area and protect it from development.
162. We think the submission points that they made were all well covered by the witnesses for the applicant, or submitters in support of the application.
163. Ms Baker told us in January that as the submissions provide overwhelming support for the protection of the Oreti River, this “represents an expression of community needs as perceived by those who comprise the community”. We do not entirely concur with this interpretation. While these submissions no doubt represent the views of significant sections of the Southland community, they do not represent the views of the entire community. A substantial proportion of those submissions were from overseas, and we have no doubt that Fish and Game strongly encouraged their members to make submissions on the application. We also note that the two local authorities who do represent the entire community through the electoral system – Environment Southland and the Southland District Council – both opposed the application.
164. Of the 13 submitters who originally opposed the application seven did not appear at the hearing. One of these was Southland District Council, who had told us in January that they would appear at the second stage of the hearing but did not do so. The district council’s main concerns about the application included that:
     • it did not provide sufficient evidence that that the Oreti River had or contributed to outstanding characteristics in accordance with s199 of the Act;
     • there was insufficient evidence of any threats to the river such that a conservation order was necessary;
     • alternative options to a water conservation order were not assessed in the application; and
     • there had been insufficient consultation with the local community.
165. Other submitters who did not appear at the hearing were opposed to the application for reasons such as:
     • The water conservation order was unnecessary as the provisions of the Water Plan and its proposed variations sufficiently protected the values sought to be protected by the order.
     • The consultation undertaken by the applicant was flawed and insufficient, particularly compared with the robust consultation process undertaken over a long time by Environment Southland regarding the Water Plan.
     • The order sought was inflexible and did not allow for potential development options in the future.

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