A river has its day in court

Water conservation orders risk becoming obsolete, or being undermined, without directions about who’s responsible for overseeing them, the Environment Court has been told.
Environmental Defence Society and Fish & Game are seeking court declarations that Canterbury’s regional council, ECan, is responsible for upholding a water conservation order on the Rakaia River. A hearing was held before Judge Prudence Steven in Christchurch last week.
ECan says it’s the environment minister who has to monitor the order’s effectiveness. (The minister, Penny Simmonds, disagrees.) The council also posits the declarations aren’t within the court’s jurisdiction. The case is expected to be precedent-setting for the country’s 16 orders, which afford Aotearoa’s water bodies the highest possible environmental protection.
At the heart of the legal battle – contesting the meaning and intention of legislation, especially the Resource Management Act (RMA) – is a stressed and emaciated river, which, according to a leaked ECan report from 2021, is being “impeded and manipulated beyond what was anticipated” by the order.
The Rakaia water conservation order identifies the braided river form as an outstanding natural characteristic, with outstanding wildlife habitat above and below the river’s gorge, plus “outstanding fisheries, and outstanding recreational, angling, and jet boating features”.
The Environment Court has confirmed in previous decisions a “presumption in favour of protection/conservation” of these characteristics. Monthly minimum flows are in place to ensure the river is maintained in its natural state.
Legal submissions in the Environment Court declarations case, filed with the court and released to Newsroom, show the main arguments can be distilled to: duty versus discretion.
Fish & Game argues the council’s broad environmental monitoring duties include specific oversight of the Rakaia’s protected values, and ensuring compliance – otherwise the order’s statutory purpose would be undermined.
Corina Jordan, Fish & Game’s national chief executive, says in her affidavit active monitoring and enforcement of the order needs to be done by a “fully operational resource management agency”. That agency, in Fish & Game’s estimation, is ECan.
The logical cascade is this: without specific information about the Rakaia’s outstanding values, how can ECan be sure the consents it has granted comply with the order, and that provisions in its land and water regional plan, pertinent to the order, are being upheld?
Lawyer Maree Baker-Galloway, on behalf of the North Canterbury and national Fish & Game councils, says in her submissions the council must ensure the water conservation order’s purpose is being achieved and its provisions complied with.
The minister’s role, it’s argued, is supervisory. Baker-Galloway says the RMA does not contemplate a minister will undertake “the day-to-day and on-the-ground monitoring, enforcement or observance” of the order.
Environmental Defence Society (EDS) says if ECan isn’t responsible, and there’s no direct oversight of the state of the river, the order “risks becoming obsolete”.
Sue Simons, EDS’s lawyer, says in her submissions: “Upon scrutiny, it is apparent that historically there has been inadequate monitoring of the Rakaia River and therefore inadequate understanding of the state of the river and whether the [order] is being effective.”
(Evidence filed by ECan in previous declarations proceedings revealed there had been scant monitoring of the Rakaia.)
ECan is the only statutory body capable of monitoring and keeping records “to understand the extent to which the outstanding features and characteristics of the Rakaia River are being recognised and sustained” to achieve the order’s purpose, Simons says.
For its part, ECan denies it must monitor the Rakaia water conservation order in the way set out in the EDS and Fish & Game declarations.
“The effect of the council having a discretion in respect of how it carries out its functions under section 35 [of the RMA] means that it has no express obligation to specifically monitor the state of the outstanding characteristics and features recognised by the [order],” says ECan lawyer Philip Maw in his submissions.
That contrasts with, in ECan’s view, the minister’s “express function” to monitor the Rakaia order (RWCO). “The RWCO is the minister’s document and, therefore, it is entirely appropriate for the minister to have the function of monitoring its ongoing effectiveness.”
(Baker-Galloway pushes back: “Fish & Game fails to understand how the council could say this is all the responsibility of the minister, when council’s own evidence shows they are fulfilling certain responsibilities in respect of the RWCO, and are continuing to endeavour to improve the council’s performance in this regard.”)
The council conducts some monitoring of water quality and quantity on the Rakaia but, Maw notes, it doesn’t have unlimited resources. Even if ECan did have a monitoring obligation for water conservation orders – “which it denies” – this obligation would be flexible, he says.
Reports indicate the Rakaia is in decline, with changes including reduced river flows, increases in sediment deposition, fewer braids, increasing algae, a decline in smelt numbers and wildlife abundance. Yet the river is subject to Aotearoa’s highest level of protection.
Water-takes from the Rakaia have increased over the years, including for the South Island’s largest irrigation scheme, Central Plains Water. The river is now “fully allocated”.
At a braided rivers conference in July last year, ECan principal surface water scientist Dr Adrian Meredith said there was an absence of regular, quantitative monitoring of Canterbury’s braided rivers, but there was still a “strong signal of degradation”. “We need action to reverse and improve these values,” he said at the time.
In Maw’s jurisdictional challenge, he says the first of EDS’s and Fish & Game’s four declarations is an attempt to scrutinise the council’s exercise of statutory powers, rights or duties, rather than the extent of them. He says if the court made the declaration it would “unlawfully fetter” ECan’s executive discretion over its monitoring duties.
Crown Law’s Amy Hill made submissions on behalf of Environment Minister Simmonds.
A core feature of the RMA, Hill says, is the decentralisation of power, and devolution of decision-making to local government. Indeed, at the second reading of the Resource Management Bill, Geoffrey Palmer said: “The bill encourages decisions on resource use to be made at the level of community that is most appropriate.”
Hill says the minister’s monitoring role is “system-wide, supervisory oversight”. “The minister sets the direction, and councils implement it. Their respective monitoring functions should be interpreted in light of this division of responsibility.”
It is up to ECan to monitor the characteristics and features recognised in the Rakaia water conservation order (WCO), Hill says. By incorporating the order into its land and water plan “the council is empowered to enforce observance and compliance with the order”.
However, Hill doesn’t agree with EDS and Fish & Game the RMA requires the council to monitor, gather information about, or keep records in the way described, saying the declarations are “overly rigid”.
An important subplot to the legal drama is the storage, in Lake Coleridge, of irrigation water, which is released into the Rakaia and diverted, downstream, by irrigators. Fish & Game argues ECan is responsible for ensuring this regime complies with a 2013 amendment to the Rakaia’s water conservation order.
The regime is run by NZX-listed Manawa Energy, previously known as Trustpower. The company implemented a new water accounting system, “storing” irrigation water below the lake’s minimum operating level, in 2015.
As part of the sweep of declarations, there’s an attempt to clarify who’s responsible for monitoring the Lake Coleridge regime.
Simons, of EDS, says because there’s no associated consent, no statutory body has oversight of the new storage system. Maw, meanwhile, says ECan can monitor the regime if it chooses to but it’s not a requirement.
Manawa Energy, through counsel Bal Matheson, says it’s the minister’s statutory obligation to monitor the effect and implementation of the water conservation order. “Manawa says that the declaration proceedings are misconceived and that they represent an attempt to amend the plain wording of the RMA.”
Matheson’s submissions state ECan is obliged to monitor: stored water flowing into Lake Coleridge; how much is ordered by downstream users; and whether stored water is classified correctly. “But this obligation arises because of ECan’s obligations to monitor downstream users’ consent conditions.”
The Environment Court declarations have had as many twists and turns as a braided river.
In 2014, ECan, through its lawyer, Maw, urged Trustpower to seek a declaration to ensure its water storage regime at Lake Coleridge didn’t breach the order, but no declaration was sought by the company, and few checks were done by the council itself.
The situation simmered in the background until 2021, when Newsroom broke the news of a leaked report, written by senior hydrologist and data analyst Wilco Terink, which said there was evidence the order was being breached, and consent limits for water-takes were occasionally exceeded. ECan was accused of hiding the damning report.
(The council published a new Rakaia water balance model a fortnight ago. EDS lawyer Simons says: “This information is, obviously, critical to understanding whether consented activities are operating beyond or within the minimum flows.”)
ECan filed declaration proceedings in the Environment Court early last year – 11 months after promising to do so. But then, about a year ago, it withdrew, claiming there was no longer disagreement between the parties. That claim collapsed a few months later, as EDS and Fish & Game took their own case.
The Rakaia water conservation order, which came into force in 1988, was the country’s second. The battle for the order – pitting environmental interests, recreational users and iwi on one side, and farming interests on the other – went to the Court of Appeal.
Says Baker-Galloway, for Fish & Game: “The tension between water abstraction and environmental protection in the Rakaia catchment continues to this day.”
Shay Schlaepfer, EDS’s chief operating officer, says right of reply submissions have to be filed with the Environment Court by December 20. “Assuming the court doesn’t require anything further, the hearing will be closed and a decision will follow.”