Before the Special Tribunal for the Ngaruroro and Clive Rivers Water Conservation Order at Napier. the Resource Management Act 1991 (the Act)

Transcription

1 Before the Special Tribunal for the Ngaruroro and Clive Rivers Water Conservation Order at Napier In the matter of the Resource Management Act 1991 (the Act) And In the matter of a Special Tribunal appointed under section 202 of the Act to consider an application for a Water Conservation Order made by New Zealand Fish and Game, the Hawkes bay Fish and Game Council, Ngati Hori ki Kohupatiki, Whitewater New Zealand, Jet Boating New Zealand, and the Royal Forest and Bird Protection Society of New Zealand (the Applicants) in relation to the Water Conservation Order Memorandum on behalf of the Applicants Dated 13 September 2017 Applicant's solicitors: Maree Baker-Galloway Sarah Eveleigh Anderson Lloyd Level 2, 13 Camp Street, Queenstown 9300 PO Box 201, Queenstown 9348 DX Box ZP95010 Queenstown p f maree.baker-galloway@al.nz sarah.eveleigh@al.nz

2 May it please the Special Tribunal 1 This memorandum is filed on behalf of the Applicants for the Water Conservation Order (WCO). 2 The purpose of this memorandum is to raise three matters prior to the pre hearing conference for the Special Tribunal and parties to consider, namely: (a) (c) raise concerns in relation to public statements being made by parties in respect of the Special Tribunal process, provide some clarity as to the background and intent of the draft WCO applied for to assist with apparent misunderstandings, and to put the Tribunal and Parties on notice that the Applicants will be proposing that there be expert witness caucusing prior to the substantive hearing commencing for the lower River. Public statements and actions 3 The Special Tribunal's inquiry into the WCO application is currently receiving a large degree of media attention. In addition to independent media articles, there are both direct quotes from and opinion pieces by submitters on the application. The Applicants are also aware of a planned protest march on 19 September and erection of billboards opposing the WCO. An example of a recent typical article is attached. 4 Submissions have now closed. The matter is now sub judice. Interested parties have had the opportunity to make submissions on the application, and will have an opportunity to present their case to the Special Tribunal. The Tribunal has made submissions publicly available along with a summary of submissions, which will enable submitters to contact other like minded submitters to co-ordinate their case should they wish to do so. 5 The Applicants consider that the public statements could be perceived as being made for several purposes: (a) (c) (d) To diminish long standing community respect for the Applicants. To intimidate the Applicants into withdrawing the WCO application; To influence the Special Tribunal in its consideration of the application; or To seek political interference in the WCO process, regionally and nationally page 1

3 6 The tenor of many statements to the media is disrespectful of the process and the role and independence of the Special Tribunal. The Applicants also consider that the statements may have negative consequences for the consistency and credibility of the submitters' own cases, and place the submitters on notice that this matter may be raised in the course of the hearing with regards to their credibility. Misunderstanding/misinformation 7 The Applicants are further concerned that the public statements being made express misunderstandings or contain misinformation regarding both the intent of the draft WCO and the process. Published articles, including in Hawke's Bay Today on 6 September 2017 attached as just one example, have misrepresented or misunderstood the proposed minimum flows and allocation limits, as well as the relationship between the proposed WCO and the TANK process. 8 For the submitters' benefit, the Applicants clarify the following points: (a) Commencement of the work leading up to the application started in The application was finalised in 2015 and lodged with the Minister for the Environment on 21 December 2015, and was based on the best information available at that time. At the time the application was lodged, the TANK process was struggling due to political tensions within the Hawkes Bay Regional Council. (c) The TANK group first met in 2012 and produced an interim report in 2014 giving some high level directions for water and land management in the TANK catchments. From 2014 to 2016 the group continued to meet, but limited progress was made as the group awaited scientific investigations and modelling to inform its decisions. (d) (e) (f) The purpose of a WCO is distinct from any regional planning process such as TANK. A WCO identifies and protects water bodies that have values that are outstanding on a national basis. Regional planning processes such as TANK are primarily considered in a regional context. Having made the WCO application in 2015, the Applicants had not anticipated that it would take until 24 July 2017 to be notified. In the time between lodging and notification of the WCO application, a substantial new body of research has become available in relation to the hydrological connection between groundwater and surface water in the Ngaruroro River, and allocation generally. That new information may have implications for the drafting of the order, but does not alter the intent of the

4 application which is to recognise and protect the currently outstanding values currently supported by the rivers. (g) The draft WCO provided with the application contains the key provisions set out below, which were based on the best available knowledge when the application was prepared and lodged as to hydrological connection between groundwater and surface water, allocation and use. As stated in the application, the intent of the draft order in terms of water takes was: Preventing any new water takes during times of low river flow. Retention of the current water allocation regime through the lower river (including connected groundwaters) for existing users, for as long as this proves to be sufficient to protect the identified outstanding values. (page 94) (h) The key provisions proposed in the draft order as lodged and notified intended to give effect to the above statement (and others on page 93 and 94) are: (i) (ii) (iii) (iv) (v) (vi) (vii) Retention of the Upper Ngaruroro Waters in natural state; For existing water takes, retention of the current minimum flow of 2400L/s in the Ngaruroro River at Fernhill; For new applications to take water, a minimum flow of 4,200L/s in the Ngaruroro River at Fernhill; For takes at flows less than three times the naturalised mean at Fernhill (70,986L/s), an allocation limit of 1581L/s. [NB. The proposed instantaneous allocation limit is intended to be consistent with the allocation limit set by Policy 74 Table 9 of the RMMP. The allocation limit under the regional plan is applied to surface water and it was intended that the allocation limit proposed in the draft order would apply in the same way;] No additional abstraction from the identified section of the Clive River; No damming in the main stem of the lower Ngaruroro River or the identified section of the Clive River; and Adherence to water quality limits. (i) The Applicants were not required to provide a draft WCO as part of the application, but have done so to better enable parties to consider and present to the Special Tribunal on the provisions that might be appropriate page 3

5 The draft WCO provided with the application is a starting point as with any statutory planning document, and based on new information and the evaluation of the merits of those provisions and alternative provisions the provisions could change through the process if an Order is recommended. Caucusing 9 The Applicants consider that it would benefit all parties and the Special Tribunal if expert witness caucusing was conducted prior to the hearing, specifically in relation to hydrology initially, to reach a common understanding of facts and issues, and to narrow issues where possible. The Applicants will therefore be seeking the Tribunal and the parties' views on the benefits of expert witness caucusing on matters prior to the commencement of the hearing, particularly hydrology of the lower Ngaruroro River, hydrologically connected groundwater and existing allocation and abstraction as a matter of first priority. 10 It is submitted that in respect of this request, after initial discussion of the proposal at the pre hearing conference, a timetable be set addressing the following matters, along with other steps that may arise out of the pre hearing conference discussion: (a) (c) (d) (e) Confirmation of the general topics that will benefit from expert witness caucusing; Determination of questions/issues in respect of which the Tribunal and Parties seek the expert witnesses caucus; Proposed sequence for expert witness caucusing; Whether caucusing should be facilitated by an independent commissioner; and Whether caucusing is proceeded by "will say" statements or exchange of information. 11 Just prior to lodging this memorandum the request from HBRC for the WCO Inquiry into the Lower Ngaruroro to be put on hold until May 2018 was received. The Applicants will confirm their position on this in due course, however note that general discussions as to timing and interim processes could be integrated with the suggestion for caucusing. Directions and guidance sought 12 At the Pre-Hearing conference the applicants will be seeking directions in respect of:

6 (a) Timetable for formal responses from parties to the HBRC application for the WCO in respect of the lower River to be placed on hold till May 2018; and Timetable for confirmation of process for expert witness caucusing. 13 The Applicants also invite the Tribunal to provide the parties to the Special Tribunal process with strong guidance on appropriate conduct in the public arena, including the proposed public rally, while the application is under consideration to ensure the process is fair, respectful of all interests, and is able to follow due process. Dated this 13 th day of September 2017 Maree Baker-Galloway/Sarah Eveleigh Counsel for the Applicant page 5

7 Anti-WCO billboards sprout up ahead of protest rally 6 Sep, :00am Hawke's Bay Today: READY TO FIGHT: Jerf Van Beek and Brian McClay started putting up billboards up around Hawke's Bay yesterday ahead of a planned anti-wco rally later this month. The fight to stop a controversial Water Conservation Order (WCO) on two of Hawke's Bay's largest rivers is gaining momentum ahead of a protest rally in two weeks. Yesterday hundreds of businesses, residents, environmentalists, iwi and growers put up billboards throughout the region to raise awareness and gain support in the attempt to stop the WCO going ahead on the Ngaruroro and Clive Rivers. Twyford Irrigators Group spokesperson Jerf Van Beek said the community needed to be educated about the devastating impact the WCO would have on the local economy. "It will impact hugely on both the urban and rural communities. We believe as a region we can look after the river and we are working through a consultative TANK process to do this." He said the WCO would keep Hawke's Bay "in the dark ages" and argued those who didn't support it thought the region should be in charge of its own destiny. "The WCO will be detrimental to our economy and hundreds of jobs will be lost. We think we can achieve the environmental balance with the processes we have in place." page 6

8 A rally is planned for September 19 where it's expected hundreds of Hawke's Bay residents will hit the road, alongside tractors and plenty of heavy machinery. The rally is planned to start at the Hawke's Bay Showgrounds in Hastings and move through to Clive. "We are also expecting crowds to come from Napier and Hastings with everyone congregating in Clive. It's important that Hawke's Bay stands up for Hawke's Bay because this WCO will impact our whole region," Mr Van Beek said. Despite an existing consultative process called TANK that involves councils, growers, environmentalists, iwi and other groups, the New Zealand Fish and Game Council, along with four others lodged the WCO application with the Minister of the Environment. Hawke's Bay Regional Council Chairman Rex Graham said he was disappointed outsiders had interfered with the TANK process, which had been underway for about four years. "We have been working to achieve a balance between farming and the environment. But the WCO will decimate horticulture on the Heretaunga Plains, "If the WCO goes ahead it will be the death of business in the region. Let's not under estimate this we will be fighting it to the end." All the water use linked to the Ngaruroro River WCO must be consented; including rural, urban and industrial takes. Roughly two thirds of actual water use is urban and industrial use and one third is irrigation. According to the WCO application, the consented volume must drop from the current 55,475 litres per second to 1581 litres per second; a 97 per cent reduction. The application also proposed to increase the minimum flow at Fernhill bridge, when restrictions on irrigation kick in, from 2400 litres per second to 4200 litres per second. Mr Graham said under this plan there would be an average of 27 irrigation ban days, and in a dry year there could be up to 90 irrigation ban days. That lack of confidence in water being available when needed was said to see growers deciding not to plant crops and processors being unable to secure supply to keep factories running. "This is not just about the growers and farmers. It is about everyone in Hawke's Bay. We need to get everyone understanding that if the WCO goes ahead it will have devastating consequences," Mr Graham said. Submissions closed on August 24 and a pre-hearing conference is set to be held on the September 15.