Adequacy of data, and further work required
37. A number of submitters questioned whether there was sufficient information available to the Board to carry out its functions, and sought that the Plan be delayed until further research had been completed.
38. In order to carry out the duties set out in the Act, the Board required sufficient information to identify:
- the resources in question,
- the requirements for water, and
- the consequential effects of the range of allocation options.
39. The Board had access to a significant body of technical information on the physical and natural resources of the Waitaki catchment, existing and proposed uses, and economic analyses of the various uses.
40. The Board found that the information available to it was sufficient to provide a sound basis for the allocation decisions, and to identify appropriate relevant matters to be addressed when considering applications under the provisions of the Plan.
Recognition of status of tangata whenua
41. Ngāi Tahu submitters requested amendment to the manner in which the tangata whenua values associated with the Waitaki catchment were identified in the Plan to reflect the matrix of interests that collectively represent Ngāi Tahu in its entirety. This requires a definition that is inclusive of all whanau, hapū and iwi who have whakapapa connection to the Waitaki catchment, and that is consistent in its recognition of the organisational framework by which Ngāi Tahu exercise their collective roles and functions.
42. The Board's response has been to adopt the statutory definition of Ngāi Tahu from the Te Rūnanga o Ngāi Tahu Act 1996 (as amended by section 9 of the Ngāi Tahu Claims Settlement Act 1998) which states that the terms 'Ngāi Tahu' and 'Ngāi Tahu Whānui' each mean the collective of individuals who descend from the primary hapu of Waitaha, Ngāti Mamoe, and Ngāi Tahu, namely Kāti Kuri, Kāti Irakehu, Kāti Huirapa, Ngāi Tuahuriri, and Kai Te Ruahikihiki. In that submitters preferred the use of 'Ngāi Tahu' instead of 'Ngāi Tahu Whānui', this request has been accepted.
43. Consequential changes were requested to insert "Ngāi Tahu values" instead of "tangata whenua values" or "cultural values", the reason being that the people who are tangata whenua is clearly known, and also defined in legislation. In addition Ngāi Tahu submitters questioned the absorption of Ngāi Tahu cultural values under the broad cover-all term of "cultural values" which in their view would cause confusion and dilute the Ngāi Tahu values.
44. Where specific values are clearly only those of Ngāi Tahu, the Board accepted that submission. Where the cultural values referred to extend to a wider interest, the Board has avoided specifically identifying the cultural interests of Ngāi Tahu.
45. Ngāi Tahu submitters requested inclusion of a range of Ngāi Tahu interests in economic, social matters, and for reference to rangatiratanga in specific parts of the Plan. Such requests fall outside of the scope of allocation of water to a class of activity, enabling the whole community to provide for their social, economic and cultural wellbeing while being subjected to a range of constraints to protect environmental and cultural values of Waitaki water bodies. Where the amendment proposed would fall outside the scope of the Plan (for example, matters of a political nature), the Board has made no change to the Plan.
Incorporation of private agreement into Plan
46. Mackenzie Irrigation Company Limited (MIC) and Meridian Energy Limited (MEL) had entered into an agreement by which, on certain conditions, MEL would make water available to holders of shares in MIC for irrigation, and allow access to its canals for that purpose. MIC and MEL submitted that the Board should take this agreement into account, and should incorporate the agreement in the Plan.
47. The Board has had regard to the agreement, but for four main reasons does not consider that it should be incorporated in the Plan.
48. First, the agreement is between private parties, following private negotiations, and to serve their perceptions of their own private interests. It may, but does not necessarily, promote the purpose of the RMA, and the parties could agree to cancel or amend it without opportunity for public participation.
49. Secondly, although the RMA contemplates that no person or class of persons has preferential entitlement to resource consents, [Except as provided by s 67 of the Resource Management Amendment Act 2005.] the agreement accords benefits for access to water for irrigation to holders of shares in MIC that would not be available to anyone else. The Board does not accept MEL's submissions that an exception to the general principle of equality is warranted on the basis that the water has already been fully allocated, and that the proposal is in the nature of a quasi-transfer or assignment of part of it. If MEL is lawfully able, and wishes, to assign part of the benefit of its water permits to MIC shareholders, an agreement to do so would not need to be incorporated in the Plan.
50. Thirdly, although the general policy of the RMA is that better substantive decision making results from public participation, [Westfield v North Shore City Council NZSC 17;  NZRMA 337; para 25 (per Elias CJ); paras ,  (per Keith J).] the agreement restrains MIC from exercising rights accorded by the RMA to apply for or support applications for take water, and obliges it to use its best endeavours to procure that none of its shareholders exercises such rights. Although, as MEL submitted, the Full Court has held [Christchurch International Airport v Christchurch City Council 1 NZLR 573;  NZRMA 145 (Tipping & Chisholm JJ).] that there is no public policy reason why a person could not surrender the right to freedom of expression, a planning instrument under the RMA should not endorse individuals bargaining away elements of the general public interest in the Act's participation processes. [Westfield(above), para  (per Tipping J).]
51. Fourthly, the purpose for which MEL has consent to take, use and divert water is for electricity generation, yet the agreement contemplates it allowing water taken or diverted for that purpose to be made available to holders of shares in MIC for agricultural or horticultural irrigation.
52. The Board considers that in those respects it would be inappropriate for the agreement to be incorporated in a plan under the RMA. Even so, the Board is making an allocation in the Plan that may enable effect to be given to the substance of the agreement.
Incorporation by reference
53. The Board considered the range of views expressed by submitters about whether the Plan should stand alone, or whether it should incorporate material by reference. Some technical matters and some material that is too large or impractical to include as part of the Plan have been incorporated by reference as provided for by clause 30 of Schedule 1 of the Resource Management Act). [RMA Sched 1 cl 30 was added by s131(10) of the Resource Management Amendment Act 2005, and applies to the development and approval of the plan by s 132(2) of that Act.]
54. Some submitters contended that it is inappropriate to incorporate material from the proposed Canterbury Natural Resource Regional Plan (NRRP) that could yet be changed in the submission and decision making process. The Board considers that incorporating material such as administrative matters from the NRRP would provide consistency on such matters between the Waitaki catchment and the rest of the Canterbury Region. It is expected that the NRRP will not be operative until more than two years after the Plan becomes operative. There would be sufficient time for the Canterbury Regional Council to make any consequential changes to the material in the Waitaki Plan if needed. Clause 31 of Schedule 1 of the Resource Management Act provides a process for such amendment or replacement of material incorporated by reference.
Interpretation of the Plan
55. Some submitters brought to the Board's attention various provisions of the draft Plan that they asserted were ambiguous, or difficult to understand. The Board has revised the wording of unclear provisions, so that each of them unmistakably expresses the intent.
Application to existing consents and extent of the principle of non-derogation
56. Meridian Energy Limited contended that the Plan cannot, as a matter of law, make provisions that would have the effect of derogating from consents that it already holds until they expire, relying on the High Court Judgment in Aoraki Water Trust v Meridian Energy & others. [ NZRMA 251; 11 ELRNZ 207 (Chisholm & Harrison JJ).]
57. The Board does not consider that the permitted activity rules derogate from existing consents, as the nature and extent of the activities permitted reflect those permitted under prior instruments.
58. Although (not having been a party to the proceedings) the Board may not be bound to apply any findings of fact in that Judgment, it is bound by the reasoning in it for the propositions of law contained in it. The statement of the non-derogation principle in the Judgment is expressed to be subject to an exception where specifically empowered by the RMA. [ NZRMA 251; 11 ELRNZ 207 (Chisholm & Harrison JJ), para  and .] The Court expressly identified the combination of sections 68(7) and 128 to 132 in that respect. [ NZRMA 251; 11 ELRNZ 207 (Chisholm & Harrison JJ), paras  and .]
59. Accordingly the Board held that to the extent that an obligation to comply with rules in the Plan relating to minimum levels or flows or rates of use of water would derogate from existing consents, the application of those rules to the exercise of those consents prior to their expiry may depend on the regional council having reviewed the conditions of those consents and changed them to enable the rule to be met. Some elements of the Plan, that are not subject to sections 68(7) and 128 to 132 of the RMA, may not be fully implemented until existing consents expire.
60. Some submitters urged that the Plan should not state that the rules are to affect the exercise of existing resource consents for activities that contravene those rules. However, as some resource consents have many years to run, the Board considered that to allow the rules no effect for so long a period would be inconsistent with Parliament's intention that the Plan be developed and approved within 12 months.
61. Other submitters urged that the times prescribed in the draft Plan when the rules are to affect existing consents were too short to allow consent holders to make preparations to comply and sought longer periods. Having considered the evidence in that regard, the Board judged that in the Maerewhenua catchment a period of 7 years would be appropriate, and elsewhere in the catchment a period of 5 years (the maximum sought by a submission) would be appropriate.
62. So, to enable the regional council to perform its review function, the Plan states those times when the rules are to affect the exercise of existing resource consents for activities which contravene the rules.
63. Some submitters sought that the Plan provide more direction of the exercise of the regional council's powers of review in sections 128 to 132 of the RMA. However the RMA entrusts the conduct of review of existing consent conditions to the judgement of the consent authority, and the Board considered that it should not itself include directions on how the consent authority is to carry out its duties in that respect.
64. Some submitters requested that the Plan prevent the processing of applications for new or replacement consents until existing consents have been reviewed and the environmental flow regimes are effective. However the Board considered that, except to the extent that section 124C(4) of the RMA applies, it has no power to provide in the Plan for a suspension of the processing of resource consent applications as sought by those submitters.
65. Some submitters sought changes to the Plan to provide for:
- recognition of the Waitaki Power Scheme, its role in the New Zealand electricity system and its operating requirements.
- recognition of existing consents for the Waitaki Power Scheme and provision for future consent renewals.
- avoidance of competing demands for water in various parts of the catchment.
- provision for new large-scale hydro-electricity generation in the Lower Waitaki River.
66. Substantial evidence was presented, from which the Board found that the Waitaki Power Scheme is nationally significant, and that potential exists for further hydro-electricity generation on the Lower Waitaki River. Accordingly, the Board has made appropriate amendments to the Plan which address the concerns raised. An allocation to hydro-electricity generation is not an endorsement by the Board that further hydro-electricity infrastructure can be constructed there. But as adverse effects of activities to which water is allocated may be able to be adequately avoided, remedied or mitigated, an allocation for hydro-electricity generation is appropriate.
67. Key provisions include:
- Minimum lake levels in Lakes Tekapo, Pūkaki, Ōhau, Ruataniwha, Benmore, Aviemore and Waitaki which are the same as those of existing resource consents.
- Provision for an extreme minimum lake level in Lake Tekapo from October to March during a national power shortage as identified by reference to the Electricity Commission's second (emergency) zone.
- No minimum flow in the Tekapo River directly below Lake Tekapo.
- A minimum flow below Waitaki Dam of 150 cubic metres per second measured as a 1 hour rolling average.
- Provision for an extreme minimum flow below Waitaki Dam during winter months following times of low summer inflows.
- Adoption of a spatial-sharing concept below Waitaki Dam, allowing for an allocation for hydro-electricity generation above Black Point.
- An allocation limit of 90 cubic metres per second below Black Point.
Takes and diversions that return water to the same water body in the same vicinity
68. A number of submitters requested changes to the way the Plan treats activities that involve the taking or diversion and return of water to a water body in the same vicinity. Examples of those activities include micro hydro-electricity generation, and fisheries and wildlife activities (such as the diversion of water to create a wetland habitat for the Black Stilt Recovery Programme).
69. The Board considered that there is merit in providing for these activities throughout the catchment outside the allocation to activities. The Board amended the Plan to exempt them from any allocation limits set within the environmental flow and level regime for a water body, provided that the water is returned to the water body in the vicinity of the take or diversion point and in the same condition and quality as when taken. Amendments to Rules 2 and 6 have been made accordingly.
70. If the water is not returned to the same water body in the vicinity of the take or diversion point, and in the same condition and quality, the water is included in the relevant allocation to activities in Table 5, micro hydro-electricity generation to "hydro-electricity generation", and fisheries and wildlife activities to "any other activities"; and the activity has to comply with the environmental flow and level regime set for the water body.
71. A new definition has been added for "Fisheries and Wildlife Activities" as "activities relating to the management and enhancement of habitats for fish and indigenous wildlife".
72. Requests by submitters to increase the capacity of generation in the definition of micro hydro-electricity generation were accepted by the Board. The capacity has been raised from 1000 watts continuous output to 50 kilowatts continuous output to better reflect the actual capacity of such schemes.
Relationship of the Plan with section 14(3) of the RMA
73. Some submitters did not appear to understand the relationship between the provisions of the Plan, including those for permitted activities, and those of section 14(3) of the RMA.
74. By section 14(3), the taking and using of freshwater for an individual's reasonable domestic needs, or for the reasonable needs of an individual's animals for drinking-water, does not require a resource consent if the taking or use does not, or is not likely to, have an adverse effect on the environment. [RMA, s14(3)(b).] Also, water for fire-fighting can be taken and used without resource consent. [RMA, s14(3)(e).]
75. The Plan cannot, and is not intended to, regulate the exercise of the rights conferred by section 14(3). Depending on the circumstances, taking water in conditions that are classified as permitted activities by the Plan may overlap with entitlements under section 14(3), or may be additional to them. An example may be providing for water taken for communal water supply systems, rather than for the individual's stock or domestic needs (to which section 14(3) applies).
Activity status for applications outside environmental flow and levels regimes, and allocation to activities
76. Some submitters sought amendments to the rules so activities that do not comply with the environmental flow regimes or the allocations to activities are either discretionary or prohibited activities. The Board did not accept either alternative. The environmental level and flow regimes, and the allocations to activities, are two key components of the allocation framework established by this Plan. They should be binding except in specific cases where it can be established that the adverse environmental effects of the proposal are minor, and where the activity is not contrary to the objectives and policies of this Plan. The Board cannot be confident that such circumstances will never arise, so it did not make these prohibited activities [Coromandel Watchdog v Ministry of Economic Development(HC Auckland; 2/09/05 Simon France J)] . It retained the non-complying activity classification, which requires that one of those conditions be satisfied before such an application can be granted.