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6 Part 2 of the Act

  1. We next evaluated the provisions of Part 2 of the Act, which are its Purpose and Principles. As already noted s199(1) uses the words “notwithstanding any to the contrary in Part 2, the purpose of a water conservation order …” and that in the Rangitata case, the Court held that these qualifying words “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”.
  2. Section 5 of the Act outlines its purpose, which is to promote the sustainable management of natural and physical resources. Sustainable management is then defined as managing the use, development or protection of natural and physical resources in a way, or at a rate, which enables people and communities to provide for their economic, social and cultural wellbeing, and their health and safety, while:
  1. Sustaining the potential of natural and physical resources to meet the reasonably foreseeable needs of future generations; and
  2. Safeguarding the life-supporting capacity of air, water, soil and ecosystems; and
  3. Avoiding, remedying or mitigating any adverse effects of activities on the environment.
  1. A water conservation order is obviously focused more on protection than use and development. The order we have recommended, however, will not strongly constrain use and development, apart from preventing damming the river for power generation.
  2. The order we recommend will clearly safeguard the life-supporting capacity of the Oreti River, and help avoid or mitigate adverse effects.
  3. Section 6 lists seven matters of national importance that must be provided for, all of which are broadly aimed towards the protection of conservation, cultural or historic values. Certainly none of these provisions are contrary to the purpose of a water conservation order as outlined in s199(1).
  4. The order we recommend will help protect significant habitat of indigenous native fish, including the long-finned eel and giant kokopu which are considered nationally to be “in decline”. To accommodate bicultural understandings in the meaning and interpretation of Part 2, and s6 in particular, it necessary to recognise that Ngāi Tahu cultural beliefs make no such separation between the natural world and the place of humans within it. Key factors for assessing “natural character” revolve around the health and robustness of mauri, while determining a landscape or habitat as outstanding and significant depends upon the value and importance of those landscapes and habitats to manawhenua. As previously explained we believe that Ngāi Tahu have presented an argument to recognise and provide for the relationship of Māori and their culture and traditions with their ancestral lands, waters, sites, wāhi tapu and other taonga by way of a water conservation order.
  5. Section 7 lists 11 matters to which particular regard must be had to.
  6. Ngāi Tahu in their submission and evidence presented an argument that suggests that the three subclauses 7(a), 7(c) and 7(d) are directly relevant to the protection of their cultural values and use interests in the Oreti River. Further, in presenting their evidence to the Tribunal, and supporting a water conservation order, Ngāi Tahu were exercising their responsibilities (their kaitiakitanga) to respect and protect the Oreti catchment as a resource for enjoyment by future generations.
  7. The draft order we recommend will help enhance amenity values and maintain the quality of the environment. It will certainly protect the habitat of trout in the Oreti River, and provide for the intrinsic values of the ecosystems that it supports. We consider the finite characteristics of the water resource of the river are appropriately managed through the provisions of the Water Plan.
  8. The draft order will prevent the development of the river for renewable energy generated from hydro power, but we believe that is not a practical option. No submitter put forward any possible proposals for power generation on the Oreti River. We think power generation from the river is highly unlikely for several reasons, including the shape of the Oreti valley and the relatively low flows carried by the river, as well as economic factors such as the abundance of other hydro power (and potential wind power) in Southland and the distance from major markets.
  9. The draft order will not affect possible further wind generation projects in Southland, such as that recently commissioned by Meridian Energy at White Hills near Mossburn.
  10. We heard no evidence nor received any submissions that the making of a water conservation order on the Oreti River would be contrary to the Principles of the Treaty of Waitangi. We believe that we have exercised our duty to “take into account” the Principles of the Treaty by weighing the material presented by Ngāi Tahu alongside the material presented by others, and according it due consideration within the constraints set by the sections of the Act specific to water conservation orders.

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