An independent Hearing Committee appointed by Environment Canterbury ("ECan") has recommended the approval of an application by TrustPower Limited ("TrustPower") to amend the National Water Conservation (Rakaia River) Order 1988 ("Order").1  The Order, which was first introduced in 1988, recognises and protects the Rakaia River's outstanding natural characteristics and features by placing a series of prohibitions and restrictions on the taking, use, damming, diversion and discharge of water within the wider Rakaia River system. 

TrustPower sought amendments to the Order to enable the future consenting, construction and operation of the Lake Coleridge Project.  The project involves changing the current operation of the Coleridge Power Station in order to store water in Lake Coleridge that could then be released to downstream irrigators at times when taking or diverting water from the Rakaia River would have been otherwise prevented by the Order. 

This case is unique from a legal perspective because, in Canterbury, water conservation orders ("WCOs") are dealt with under the Environment Canterbury (Temporary Commissioners and Improved Water Management) Act 2010 ("ECan Act") rather than Part 9 of the Resource Management Act 1991 ("RMA") which applies to water conservation orders in the rest of the New Zealand.  Under the ECan Act, it is ECan rather than a Special Tribunal which makes a recommendation to the Minister on the WCO and the right of appeal is limited to appeals to the High Court on points of law only (rather than a full right of appeal to the Environment Court).  

There are three other key differences between the two regimes which the Committee commented on in the Coleridge case:

  • Section 50 of the ECan Act sets out matters that ECan must have particular regard to when considering an application for a WCO.  Section 50 requires ECan to have "particular regard to" the vision and principles of the Canterbury Water Management Strategy ("CWMS").  This gives statutory weight to a document that was not developed through a formal process. 
  • Section 199(1) of the RMA states that the purpose of a WCO is to "recognise and sustain" the outstanding amenity or intrinsic values of the relevant water body.   The overriding objective of section 199(1) is the protection and preservation of outstanding features and that conservation is to be the overarching consideration for WCO applications unless there is "a strong, really compelling case…to displace it". The ECan Act expressly did not import this purpose statement in s199(1).  The reason for that must be that under the ECan Act, a  Canterbury WCO is subject to Part 2 (see below) and hence the purpose of a WCO in the ECan Act is found in Part 2 of the RMA.
  • ECan's consideration of a WCO is "subject to Part 2" of the RMA.3  In comparison, section 199(1) of the RMA makes it expressly clear that a recommendation is to be made "notwithstanding anything to the contrary in Part 2".  The practical effect of the inclusion of Part 2 into the assessment of a Canterbury WCO is that the Committee was able to broaden the range of matters to which it had regard (including both positive and negative effects of the variation).  By expressly including Part 2 in the consideration of a Canterbury WCO, the ECan Act provides decision makers with the ability to weigh the broader countervailing Part 2 matters against the need to recognise and sustain certain outstanding natural characteristics. In addition, the applicant has an obligation to demonstrate how the proposed amendment would ensure that any effect would be appropriately avoided, remedied or mitigated.  The Committee also acknowledged that in the event of conflict, the provisions of Part 2 must be given primacy.4

As noted, this is a significant departure from the usual regime under Part 9 of the RMA as sustainable management, rather than conservation, is the primary consideration in determining whether to recommend that a WCO should be made.  In comparison, Part 9 is a self-contained code, excluded from any assessment against the overarching purpose of sustainable management, which is unusual considering that every other action or instrument that is promulgated under the RMA must be assessed against Part 2. 

After considering the relevant matters under the ECan Act and weighing the application against the broader Part 2 matters, the Committee recommended that the application be approved, subject to additional conditions to address issues raised by submitters and the Committee during the course of the hearing. A copy of the decision is available here.