3. Approaches
3.1 Introduction
This chapter summarises the Board's evaluation of different approaches to achieve the objectives of the Plan. The summary of the evaluation presented is in narrative form. Based on this evaluation, the Board's overall judgement, having regard to efficiency and effectiveness, of whether the approaches are the most appropriate for achieving the objectives, is recorded.
3.2 Different approaches
The different approaches available to the Board to achieve the objectives of the Plan are limited by the functions of the Board. The functions of the Board are defined in Section 6 of the Waitaki Act - the Board is obliged to develop and approve a plan.
As the Board is required to develop and approve a plan, it cannot do nothing. Similarly, allowing the planning process of the Canterbury Regional Council to allocate water in the Waitaki catchment is also not open to the Board.
Further, the Board does not have functions and powers to develop and implement approaches outside of a plan. Accordingly, the Board considers that the allocation of water by a range of potential economic and market instruments outside of the Plan is not available to it.
The implementation of this Plan is the responsibility of the Canterbury Regional Council (section 14 of the Waitaki Act). Further, any changes the Board directs to the Regional Plan: Water for Otago are implemented by the Otago Regional Council. Both the Canterbury Regional Council and the Otago Regional Council are elected bodies with the status, roles and powers prescribed under the Local Government Act 2002. In the Board's view, it is not appropriate for it to commit these bodies to actions and financial expenditure beyond the extent necessary for the Board to fulfil its function.
Given this, the Board's judgement is that the only effective and efficient approaches available to include in its plan are:
- policies and rules
- non-regulatory methods which the Canterbury Regional Council and the Otago Regional Council have committed themselves to.
In recognition of the above, the Board considers that a number of specific administrative provisions from the Proposed Canterbury Natural Resources Regional Plan should apply within the Plan. Further, provisions relating to the administrative matter of consent duration in the relevant statutory planning instruments that apply to the Waitaki catchment should remain available to be implemented by the Canterbury Regional Council.
The Board has also considered the High Court decision Aoraki Water Trust v. Meridian Energy Limited [[2005] NZRMA 251; 11 ELRNZ 207 (Chisholm & Harrison JJ).] . The Board has noted the 'non-derogation of grant' principle contained in this decision in relation to the consideration of resource consents, and in relation to the provisions of this Plan. It also noted the specific statutory provisions that enable certain alterations to existing consents (eg sections 68(7) and 128 of the RMA).
The Board believes that the 'non-derogation of grant' principle identified in the High Court decision does not prevent it from allocating water in a manner that differs from the allocation regime specified in the current consents. However, the implementation of the allocation to activities regimes established will be constrained during the term of the existing resource consents to the extent that:
- it does not derogate from the entitlements under those existing consents; or
- it is specifically provided for in the law (and in particularly by sections 68(7) and 128 of the RMA); or
- the holders of existing resource consents may agree.
Finally, the Board is mindful of a number of existing mining privileges within the lower part of the Waitaki catchment [The Canterbury Regional Council has advised that there are deemed permits in the Awakino, Kurow, Maerewhenua, Otekaieke and Otiake catchments.] . These are 'deemed permits' in accordance with section 413 of the RMA. Deemed permits exist until 1 October 2021. The Plan may only affect deemed permits with the agreement of the permit holders (section 414 of the RMA). No deemed permit holder has requested the Board include a rule in the Plan which affects their deemed permit. A regional council may acquire a deemed permit, but in doing so compensation is payable (section 415 and 416 of the RMA). Any acquisition of deemed permits, and associated compensation, is a matter for the Canterbury Regional Council or the Otago Regional Council. The Board considers that the environmental benefits gained by the Plan affecting deemed permits do not justify, and exceed, the cost of interference with long established rights, dating back to prior to 1872.
3.3 Appropriateness
After having regard to efficiency and effectiveness, the Board's judgement is that policies and rules are the most appropriate approach available to it for achieving the objectives of the Plan. Administrative matters and other methods remain available to be implemented by the Canterbury Regional Council and the Otago Regional Council. These will include non-regulatory methods the Canterbury Regional Council and the Otago Regional Council are committed to within the Waitaki catchment.
