The Board's function
2. The Board's function is to develop and approve a regional plan, [Waitaki Act, s6(1).] including objectives, policies, and methods (including rules, if appropriate), to provide for allocation of water as described in section 13 of Resource Management (Waitaki Catchment) Amendment Act 2004 (the Waitaki Act) [Set out in Section 2 of the Plan.] as if it were a regional plan developed by a regional council (except as expressly provided otherwise by the Waitaki Act). [Waitaki Act, s18(1).]
3. The purpose of a regional plan is to assist a regional council to carry out any of its functions in order to achieve the purpose of the Resource Management Act (the RMA). [RMA, s63(1).] The relevant functions of a regional council for giving effect to the RMA include integrated management of the natural and physical resources of the region; [RMA, s30(1)(a).] the control of the taking, use, damming, and diversion of water, and the control of the quantity, level and flow of water in any water body (including the setting of any maximum or minimum levels or flows of water); the control of the range, or rate of change, of levels or flows of water; [RMA, s30(1)(e).] and maintaining indigenous biological diversity. [RMA, s30(1)(ga).]
4. The purpose of the RMA is to promote the sustainable management of natural and physical resources. [RMA, s5(1).] The term 'sustainable management' is given this meaning:
In this Act, sustainable management means managing the use, development, and protection of natural and physical resources in a way, or at a rate, which enables people and communities to provide for their social, economic, and cultural wellbeing and for their health and safety while –
(a) Sustaining the potential of natural and physical resources (excluding minerals) to meet the reasonably foreseeable needs of future generations; and
(b) Safeguarding the life-supporting capacity of air, water, soil, and ecosystems; and
(c) Avoiding, remedying, or mitigating any adverse effects of activities on the environment. [RMA, s5(2).]
5. The RMA has a single purpose, and whether a particular provision serves that purpose may involve a judgement of conflicting considerations, the scale or degree of them, and their relative significance or proportion in the final outcome. [Green & McCahill Properties v Auckland Regional Council  NZRMA 519 (HC).]
6. The amendments to the RMA made by the Resource Management (Energy and Climate Change) Amendment Act 2004, which require functionaries to have particular regard to the effects of climate change, and to the benefits of the use and development of renewable energy, do not apply to the development of the Plan. [Waitaki Act, s18(2)(b).]
The prescribed process
7. Although in general the RMA applies to the Board's Plan as if it were a regional plan developed by a regional council, in some respects the Waitaki Act prescribes a different process. In particular:
- the Board has had to complete its function within 12 months after the day on which all the members of the Board were appointed; [The members of the Board were appointed on 30 September 2004.] and the normal provision to extend a specified period does not apply to the development of the Plan; [Waitaki Act, s18(2)(a).]
- the normal provision for further submissions in support of or opposition to submissions on the draft Plan was not available; [Waitaki Act, s20. The draft Plan differs from a proposed plan under the RMA, as it has no effect until approved and operative: Waitaki Act, s25.]
- the normal provision for submitters to appeal to the Environment Court in respect of provisions of the Plan or matters excluded from it, did not apply. [Waitaki Act s20; s25]
8. Several submitters were critical of the Board progressing the carrying out of its task so that it could be completed by the prescribed day; of the absence of provision for further submissions in support of or opposition to submissions; and of the absence of provision for appeals to the Environment Court on the contents of the Plan.
9. To the extent that those criticisms relate to the provisions of the Waitaki Act, the Board decided that they are beyond the scope of its function, and did not consider them further.
10. The obligation to complete development of the Plan within 12 months affected the extent of the investigations which the Board was able to make, and the procedures by which it developed the Plan. The Plan is one that could be developed in that time, not one that might have been developed over a significantly longer period. Even so, the Board considers that the Plan satisfies the relevant requirements of the law.
No presumption in favour of draft Plan
11. A difference arose between submitters on whether, in deciding on submissions, the Board should apply a presumption in favour of provisions of the draft Plan. The Board understands that it is well established in planning law that in considering submissions on a proposed plan, there is no presumption in favour of the policies or provisions contained in it. [Wellington Club v Carson NZLR 698 (SC), applied to the RMA regime in Leith v Auckland City Council NZRMA 400 and Eldamos v Gisborne District Council Environment Court decision W047/05.] The Board considers that this practice is particularly applicable to its consideration of submissions on the draft regional Plan for these reasons:
- there was no provision for further submissions;
- there was only a limited opportunity for cross-examination at the hearing of submissions;
- the Board had to make decisions on submissions on a draft plan that it had produced itself;
- there is no appeal to the Environment Court in respect of provisions of the Plan or matters excluded from it.
12. So the Board has applied no presumption in favour of the draft Plan, nor any onus on any submitter to show that any of its provisions are inappropriate. Rather the Board has understood its task as being to consider the submissions and evidence to find what are the most appropriate provisions of the Plan.
The purpose of the submission process
13. The purpose of the submission process was for submitters to propose amendments to the draft Plan; to state reasons, to make representations, and to provide evidence to show that those amendments would be appropriate; or to show that amendments requested by another submitter would not be appropriate. In essence, it was intended to be a constructive process, designed to lead to improvements to the draft Plan. The process was not an appropriate opportunity for venting grievances. The Board is grateful for the many helpful suggestions and relevant information that it received from submitters.
Limit on alterations to draft Plan
14. Submissions on the draft Plan were required to state the alterations asked for. [See form of submission made available by the Board and attached to its Guide for Submitters; and compare Resource Management (Forms, Fees and Procedure) Regulations 2003 (SR 2003/153), Form 5.] The Board was limited to considering submissions that are 'on' the draft Plan to the extent that it changes the draft Plan. [Clearwater Resort v Christchurch City Council (HC Christchurch, AP34/02; 11 March 2003 William Young J).] If the effect of accepting a submission would be to amend the draft Plan appreciably without real opportunity for participation by those potentially affected or interested, that would be a powerful consideration against finding that the submission was truly 'on' the draft Plan. [Clearwater Resort v Christchurch City Council (HC Christchurch, AP34/02; 11 March 2003 William Young J).] This was particularly valid under the Waitaki Act, where the usual provision for lodging further submissions in support of, or opposition to, the original submissions did not apply.
15. The Board's authority to amend the draft Plan was limited to making amendments which were reasonably and fairly raised by and within the ambit of the submissions [Countdown Properties v Dunedin City Council NZRMA 145; 1B ELRNZ 150 (FC).] approached in a realistic workable fashion, [Royal Forest and Bird Protection Society v Southland District Council NZRMA 408 (HC).] and taking into account the whole relief package detailed in each submission. [Shaw v Selwyn District Council 2 NZLR 277;  NZRMA 399 (HC).]
The Board's submission procedures
16. The Board was required to hold a public hearing into submissions. [Waitaki Act, s24(1).] In conducting the hearing the Board was authorised to allow cross-examination of witnesses. [Waitaki Act, s24(3)(b).]
17. Because the Waitaki Act makes provisions for making and deciding on submissions that differ from those made by the RMA, the Board adopted and published procedures for its hearing of submissions. The objectives of the Board's procedures were:
- to provide an efficient and effective opportunity for the Board to receive and probe information relevant to the Plan
- to provide a fair and orderly opportunity for everyone who made a submission on the draft Plan and stated that they wished to be heard to put their point of view before the Board and give relevant information for its consideration.
18. In setting its procedures for hearing submitters, the Board was guided by its duty to complete the hearing, consider the submissions and evidence, make its decisions, complete the Plan, and approve it within the time prescribed by law.
19. The Board's procedures included lodging statements of evidence no later than 10 working days before the start of the hearing, and publication of them; a time limit of 15 minutes for a submitter's representations and evidence, and provision for the Board to allow a longer time on application made not less than 5 working days prior to the start of the hearing. The procedures also limited cross-examination to disputed questions of primary fact, with provision for leave to cross-examine more broadly on application made not less than 5 working days prior to the scheduled time for the witness to give evidence.
20. The Board was required, during preparation of the draft Plan, to consult the Minister for the Environment, other Ministers of the Crown who may be affected, local authorities who may be affected, and the tangata whenua of the area who may be affected, through iwi authorities and tribal rūnanga. [RMA, Sched 1, cl 3.] It could also choose to consult anyone else.
21. Because of its duty to complete its function within 12 months without extension, the Board decided that it would issue a general invitation to anyone to provide information that might assist it in preparing the draft Plan, and that it would only consult directly with the persons and bodies it was obliged to consult with.
22. The Board received considerable information in response to its general invitation. The Board consulted the Minister for the Environment, and several other Ministers of the Crown. [The Ministers of Conservation, of Agriculture, Forestry and Rural Affairs, of Economic Development, of Energy, of Mäori Affairs, of Local Government, of State Owned Enterprises, and of Tourism.] The Board held consultation meetings with the affected local authorities; [The Canterbury and Otago Regional Councils; the Mackenzie, Waitaki, Waimate and Timaru District Councils; and the Dunedin City Council.] and also held public meetings at which many members of the public took active parts. [Public meetings were held at Twizel, Kurow and Glenavy.] The Board also held a consultation meeting with Māori at Waihao Marae, which was attended by representatives of the papatipu rūnanga Te Rūnanga o Arowhenua, Te Rūnanga o Waihao, and Te Rūnanga o Moeraki, and of Te Rūnanga o Ngāi Tahu.
23. Some submitters (in particular Te Rūnanga o Ngāi Tahu) complained that they had not been consulted, or that the consultation had not been adequate.
24. The Board did invite Te Rūnanga o Ngāi Tahu to meet with it for consultation, but received no response about a convenient time for the purpose. Representatives of Te Rūnanga o Ngāi Tahu were present at the meeting at Waihao Marae, but they chose not to take an active part in the discussion. That consultation meeting included an invitation from the Board for the rūnanga to subsequently provide further information or views that they thought may assist the Board in its task. Because of its obligation to complete its function within 12 months, with no extension, the Board had to continue with preparation of the draft Plan for publication, without awaiting any longer for a response from Te Rūnanga o Ngāi Tahu to its invitation. The Board then offered for its staff to meet with Te Rūnanga o Ngāi Tahu, but received no response to that offer.
25. The Board is satisfied that it complied with its consultation obligations to the full extent practicable in the time available.
26. Some submitters criticised provisions of the Plan on the ground that they are not 'science-based', or that judgements underlying them are not transparent.
27. Rules and other methods of implementation of policies for achieving the objectives of the Plan call for evaluative judgements [See Murphy v Rodney District Council(2004) 10 ELRNZ 353 (per Baragwanath J at para 11).] on conflicting considerations, and their relative significance or proportion in the final outcome. [NZ Rail v Marlborough District Council 2 NZLR 641.] They are not generally the result of computation, or application of scientific principle or method, but are judgements on which reasonable and informed people (including members of the Board) might reasonably differ. In making those judgements, the Board has considered all the submissions, and all the representations and evidence presented at the public hearing.
Significance of previous rights
28. Some submitters sought that the Plan be amended to assure them of continued benefit of rights or expectations previously given under earlier statutes (such as the Water and Soil Conservation Act 1967) or other instruments (such as the Order in Council of 1969 [NZ Gazette, 21 August 1969, No 6, p1560.] ).
29. The Board's function is to develop a plan under the RMA, with the purpose of assisting the regional councils to carry out their functions to achieve the purpose of that Act. The functions of authorities under, and the purposes of, the previous legislation and instruments were different. The Board is to have regard to existing natural and physical resources (including for instance electricity generation and irrigation works), but is to develop the allocation plan in terms of the RMA and the Waitaki Act. Rights, consents and expectations previously given under earlier regimes would not necessarily qualify in terms of the current legislation.
Departure from status quo
30. Some submitters urged that the evaluation should show that the status quo is departed from only where the benefits of doing so are shown to exceed the costs. The Board does not understand that there is a presumption in favour of the status quo, particularly where it reflects the previous statutory regime. Rather the Board's task is to consider the submissions and evidence and find what are the most appropriate provisions of the Plan in the current regime.
The relevance of existing alterations to natural resources
31. Some submissions were based on acceptance of the existing alterations to the natural environment, including hydro-electricity generation and irrigation structures. The Board understands that the Plan should manage the use, development and protection of natural and physical resources in a way that avoids, remedies or mitigates adverse effects on the environment that would be cumulative on those adverse effects of existing development and activities, sustains their potential to meet reasonably foreseeable needs of future generations, and safeguards the life-supporting capacity of air, water, soil and ecosystems. [RMA, s5(2).]
Section 32 evaluation
32. Some submitters raised concerns about the approach the Board took to fulfilling its duties under section 32 of the RMA. The Board’s duties are defined in sections 32(3) and (4) of the RMA (by section 19 of the Waitaki Act), as amended by the Resource Management Amendment Act 2003 [Section 11 of the Resource Management Amendment Act 2003 (2003 No 23).], and remain unaffected by the Resource Management Amendment Act 2005.
33. The Board’s duties under section 32(3) of the RMA are to form overall judgements about the extent to which each objective is the most appropriate to achieve the purpose of the RMA, and whether having regard to their efficiency and effectiveness, the policies, rules, or other methods are the most appropriate for achieving the objectives. The Board understands that the judgements required are, for objectives, relative to the purpose of the RMA, and for policies, rules, or other methods, relative to the regional plan objectives. The Board considers that, in forming those judgements, it is not necessary or helpful to undertake a comparative analysis of other means or principal alternative means.[A previous requirement to do so was repealed by the 2003 Amendment Act.] However, in evaluating the benefits and costs, and consequently efficiency, comparison with a reference point is required. This reference point is the current environment, including effects that are cumulative with the adverse effects of the existing development and activities.
34. The Board fulfilled its section 32 duties when preparing the draft Plan and in publishing a Section 32 Report. Some submitters misunderstood the nature of that report. It is a report summarising its evaluation and providing reasons. The Board considered all the information available to it during the preparation of the Plan. This included the reports received by the Board relevant to the development of the Plan (listed at the end of Annex 1); information provided to it by the public in the Board’s consultation process; all the submissions lodged on the draft Plan; and all the material presented and produced as part of the hearing process.
35. Some submitters criticised the Board’s evaluation as not conforming with the expectations of a cost-benefit analysis in economics. The Board does not understand that the evaluation required by section 32 of the RMA has necessarily to conform with cost-benefit analysis. It is to meet the prescription in the section, in the context of an instrument that has to conform with the requirements of other provisions of the Act and made for the purpose stated in section 5 of the RMA.
36. Some submitters requested that the Plan make no allocation among activities, on the ground that a more efficient allocation could be achieved through other mechanisms, such as a water trading regime or effects-based consent decisions. However by section 13 of the Waitaki Act, the Board is required to allocate water to activities, as appropriate. The Board considered that the appropriate approach for the Waitaki catchment is to make allocations between the activities listed in Objective 2. The Board acknowledges that making such allocations may not match current and future market demand, but it does not accept that an alternative mechanism would necessarily provide an improved outcome or ability to meet the purpose of the RMA.