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4 Part 9 of the RMA

4.1 The Relevant Case Law

  1. Part 9 of the RMA sets out the procedure for the processing of applications for water conservation orders, and what matters we have to consider in making our report on the present application.
  2. We need not detail the process issues here. Essentially upon receiving an application to make or vary a Water Conservation Order, the Minister must appoint a Special Tribunal under s203 of the RMA to undertake an inquiry and conduct a hearing. That Special Tribunal then prepares a report, as we have done here, which makes a recommendation on the application (s208). This recommendation can be appealed to the Environment Court, who can recommend to the Minister that our recommendation be rejected, or accepted with or without modifications (s213). The Minister can make a water conservation order through an Order in Council (s214), or alternatively decline to make one (s215). Any order made is binding on the consent authority (s217) but does not affect or restrict any resource consent granted, or lawful established use in respect of the water body before the order was made.
  3. In making our decision we had the benefit of an Environment Court decision by Judge Jackson regarding an appeal to the Special Tribunal’s recommendations on an application for a water conservation order for the Rangitata River.10 This decision provides a comprehensive overview of the relevant sections of Part 9 of the Act, which we found very helpful.
  4. In saying this we note, however, that:
  1. In its middle and lower reaches the Rangitata is a much modified river compared with the Oreti, with large takes for irrigation combined with power generation; and so the considerations and competing interests there, were much more complex than they are for the Oreti River.
  2. The Court’s decision focused primarily on the conditions on which an order should be granted, as there was no serious dispute that the river had outstanding amenity and intrinsic values.
  1. 170. The Environment Court largely dismissed comparisons between the provisions made for “water conservation order and notices” under the repealed Water and Soil Conservation Act (“WSCA”) 1967 and the provisions of Part 9 of the Resource Management Act. The Court commented at paragraph 32 that:

“substantially and procedurally the differences between [them] are so great that we consider that it is not useful, and indeed probably misleading, to consider the former except as some guide to the interpretation of identical words or phrases in the latter”.

The Court noted that the main substantive difference is that the purpose of an order is now influenced by consideration of the Purpose and Principles (Part 2) of the RMA, and there was no equivalent of this in the Water and Soil Conservation Act. Of the many procedural differences, the most important is that a Special Tribunal is appointed to conduct a hearing and make a report.

  1. The Judge in the Rangitata case later at paragraph 58 qualified the above quote when he made the following comment:

However, once it is found that a part of the river has outstanding characteristics then the purpose of a Water Conservation Order and the non-repugnant sections in Part II of the Act entail that there is a presumption that those characteristics should be recommended for specified protection. To that extent we are adopting (respectfully) the approach of the Court of Appeal in the Rakaia Water Conservation Order case: Ashburton Acclimatisation Society v Federated Farmers of New Zealand Incorporated [fn53 [1988] 1 NZLR 78 at 88]. That case was about the WSCA 1967 which did not contain any provision as powerful as Part II of the RMA.

  1. The same approach has been reinforced in other case law. If protection through a water conservation order is sought for a water body, and that water body is found to have outstanding values, then there is a presumption in favour of protection. For instance, in the same case cited above Justice Bisson said that “the sustaining of the amenity afforded by the waters in their natural state must have priority”; and he referred to according primacy to that object which “should not be defeated by striving to achieve a balance for other users”; and that the amenity ”should not be compromised by making provision for other uses unless they are essential and there is a sufficient resource to serve them to some extent as well”.
  2. In the Rangitata case the Special Tribunal in paragraph 61 set out its decision-making framework as follows:

“The tribunal first evaluated which, if any of the characteristics, values or purposes able to be protected or preserved by a water conservation order were outstanding (Part III). We also considered whether or not the waters are in their natural state (Part II). During this part of our deliberations we did not consider whether or how to recognise and provide for protection for any features that we found to be outstanding.

Having concluded that there were outstanding features, the tribunal assessed the needs of primary and secondary industry and reviewed relevant plans and policies (Part IV and Part V).

Next the conditions required to protect the outstanding features were determined and then allowance given for industry and community needs that could be met while protecting the outstanding features (Part VII). At this point, the tribunal decided that a Water Conservation Order was necessary to protect or preserve the outstanding features and a draft was prepared. (Part VIII and Appendix 1).”

  1. The Environment Court held that the Special Tribunal “generally applied the correct approach required by Part 9 of the Act”. The Court, however, used a somewhat different approach, and in paragraph 55 of their decision set out the issues that it considered should be addressed in evaluating an application for a water conservation order:

a. whether outstanding characteristics exist in the river;

b. if so, whether those characteristics are threatened by potential changes to flow, water quality, temperature, etc;

c. whether an order is necessary to sustain the outstanding characteristics, having regard to;

d. the matters in section 207(2) – which are in our view designed to ensure that an overly idealistic approach to the river's waterline is not taken.

  1. We had some concerns about the applicability of step (b) of these considerations. This is because there are currently no readily identifiable threats to the outstanding values of the Oreti River that can be controlled by the provisions of a water conservation order. We return to this matter later in this decision.
  2. Section 199 of the RMA sets out the purpose of a water conservation order, which is to “recognise and sustain outstanding amenity or intrinsic characteristics” of waters. This can involve either preservation of outstanding waters that are in their natural state, or the protection of outstanding waters that are not in their natural state but which are still considered outstanding.
  3. At paragraph 30 of the Environment Court’s decision in the Rangitata case, the court said in relation to s199:

“Collating the various appropriate definitions we conclude that the meaning of s199 which is most relevant here is that the purpose of a water conservation order is to restrict the regional council’s powers to the extent necessary for the natural but not pristine characteristics of the river (including tributaries, wetlands within its catchment and hydraulically connected groundwater) which are out of the ordinary on a national basis to be maintained in their current quality and quantity.”

  1. As Ms Baker pointed out to us, the High Court in New Zealand Paper Mills Ltd v Otago Acclimatisation Society11 (decided under the WSCA) considered whether a threat needed to be identified before a water conservation order could be recommended:

“Some time was spent in argument as to whether a Water Conservation Order should be recommended if there was no immediate need for preservation or protection and no evidence of such a need in the reasonably foreseeable future. That is answered first by the recognition that existing water rights cannot be affected, but secondly by the need to declare that a river, lake or stream, or its outstanding characteristics or features was worthy of protection or preservation in accordance with s20D(2) and 20B(6) of the [WSCA]. Those issues were issues of fact for the [Planning] Tribunal and again I have not been persuaded that any error of law has been made by the Tribunal in its consideration.”

  1. The High Court’s decision was that a threat is not required for a water conservation order to be granted. The critical consideration is whether the outstanding characteristics or features are worthy of protection or preservation.
  2. While the precise language used in the WSCA and the RMA differs, the scheme for water conservation orders is similar. In the RMA a water conservation order also has no effect on existing use rights.12
  3. While on a first reading step (b) of the framework used by the Environment Court suggests that potential threats to any outstanding characteristics of the river need to be identified as being likely before making an order, we think a more appropriate consideration is whether a change could potentially threaten those characteristics.
  4. Accordingly we think the relevance of considering threats relates more to the conditions to be contained in a water conservation order, rather than whether there should be an order at all. This is consistent with the purpose of water conservation orders prescribed in s199 of the Act. We think that this approach reconciles the High Court’s reasoning in the NZ Paper Mills case and the Environment Court’s statement of considerations in the Rangitata case.
  5. We were also required to consider Part 2 RMA matters. Uniquely in the context of the Act, the purpose of water conservation orders is stated in s199(1) that “notwithstanding anything to the contrary in Part 2, the purpose of a water conservation order ….”
  6. In the Rangitata case, the Court held that the qualifying words in s199(1):

“make it clear that not all of Part II is to be ignored, but only those aspects of Part II that are contrary to the purpose stated in section 199” (emphasis added). The Court expanded on this by stating that “[Section 199] focuses on the protection aspect of the conservation purpose by excluding consideration of matters which are opposite to that purpose”, and “in addition to the matters we must have regard to in section 212, we must also consider those provisions of Part II which are not excluded on the facts before us as being contrary to section 199(2) of the Act”.

  1. This is the test we have applied in our consideration of Part 2 matters. In saying this we observe that much of Part 2 is actually in accord with the conservation purpose of s199 of the RMA.
  2. Section 207 of the Act states that in terms of matters we must consider we must have particular regard to the purpose of a water conservation order and the (other) matters set out under s199, but that we also must have regard to:

(a) The application and all submissions; and

(b) The needs of primary and secondary industry, and of the community; and

(c) The relevant provisions of every national policy statement; New Zealand coastal policy statement, regional policy statement, regional plan, district plan and any proposed plan.

  1. We have added the emphasis. We agree with Ms Baker that the Act clearly elevates the purpose of a water conservation order, as outlined in s199, above the matters in s207. This was reinforced by the Environment Court in paragraphs 40–44 of the Rangitata decision.
  2. Ms Baker also submitted that under (b) what we must weigh are “needs, and not merely hopes or aspirations for the future, or principled opposition to a statutory instrument that will not in reality affect the reasonable needs of primary or secondary industry or of the community.” We accept that submission also.

4.2 Decision-Making Framework

  1. Our review of the relevant case law led us to the following decision-making framework.
  2. The first two questions we asked were:
  1. Whether all or part of the Oreti River provides either outstanding amenity or intrinsic values from waters in their natural state, and if so, what those values are.
  2. Where the waters of the Oreti River are not in their natural state, whether there are any amenity or intrinsic values that require protection because they are outstanding.

As with the Rangitata Special Tribunal, in this part of our deliberations we did not consider how to protect any features that we found to be outstanding.

  1. In making our assessment as to what amenity or intrinsic values of the river were outstanding, we were also guided by the Environment Court’s decision in the Rangitata case, where they cited previous case law under the WSCA:

“the test as to what is outstanding is a reasonably rigorous one and that to qualify as outstanding a characteristic would need to be quite out of the ordinary on a national basis” (emphasis added by the Court).

  1. The Court also accepted Mr Milne’s submission that:

“the amenities should stand out on a national comparative basis. If one takes a national comparative approach, the fact that the wider region is well endowed with similar high-quality features may well suggest that particular waters do not stand out when considered in a national context.”

  1. It is relevant insofar as comparisons go that the Mataura River, the catchment immediately to the east of the Oreti River, is protected by a National Water Conservation Order made under the provisions of the WSCA 1967. The Mataura was found to have “outstanding fisheries and angling amenity features”.
  2. We next considered the relevant matters under Part 2 of the RMA.
  3. We then addressed the relevant provisions under s207. None of these matters outweighed the emphasis placed in Part 9 of the Act on sustaining the outstanding characteristics of the river.
  4. Having decided there are outstanding values associated with the Oreti River, we weighed whether they were threatened by potential changes to parameters such as flow and water quality. From this, we determined the conditions in the draft order.

10 Rangitata South Irrigation Ltd v NZ and South Island Fish and Game Council. C109/04.

11 [1995] NZRMA 155

12 s217 RMA and s20D(7) WSCA

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