Whitewater New Zealand Incorporated v Pioneer Generation Ltd and New Zealand and Otago Fish and Game Councils

JurisdictionNew Zealand
CourtEnvironment Court
JudgeJ R Jackson
Judgment Date03 May 2011
Neutral Citation[2011] NZEnvC 113
Date03 May 2011

In the Matter of the Resource Management Act 1991 and In the Matter of submissions on the Nevis River in respect of proposed amendments to the Water Conservation (Kawarau) Order 1997

Whitewater New Zealand Incorporated (ENV-2010-CHC-231)
Pioneer Generation Limited (ENV-2010-CHC-232)


New Zealand and Otago Fish and Game Councils (ENV-2010-CHC-230)
Applicants and submitters

Decision No. [2011] NZEnvC 113


Environment Judge J R Jackson (sitting alone under section 279 of the Act)


Application under s281 Resource Management Act 1991 (waivers and directions) to extend deadline to allow late submissions in respect of a report to amend the Water Conservation (Kawarau River) Order 1997 for Nevis River — submitters 48 days late — Special Tribunal report recommended Order be amended to prohibit damming and diversion and to include a native fishery habitat — whether other submitters would be prejudiced — whether order was outside scope of a Water Conservation Order and out of Environment Court'ss jurisdiction.


G Baumann for New Zealand Historic Places Trust (Pouhere Taonga)

J Douglas for himself and B Patrick

K G Smith for Pioneer Generating Limited

A J Logan for the Otago Regional Council and for the Central Otago District Council

J St John for New Zealand and Otago Fish and Game Councils

  • A: Under section 281 of the Resource Management Act 1991 the Environment Court declines to waive time for lodging of submissions under section 209 of the Act by

    • (1) the New Zealand Historic Places Trust and

    • (2) J Douglas and B Patrick.

  • B: Costs are reserved, with any application to be made within 15 working days and any reply within a further 15 working days.

  • C: All the valid submissions to the Environment Court under section 209 should be set down for a further judicial conference in Queenstown (possibly on Friday 3 June 2011) so that an evidence timetable can be set and any other procedural directions given.

The issue

The issue in this procedural decision is whether a waiver of time should be granted to three persons — the New Zealand Historic Places Trust/Pouhere Taonga (“NZHPT”) and Mr Douglas and Mr Patrick — to lodge late submissions with the Environment Court in respect of a report on an application to amend the Water Conservation (Kawarau River) Order 1997 (“the WCO”) in respect of the Nevis River.


In June 2006 the New Zealand and Otago Fish and Game Council (together “Fish and Game”) jointly applied to the Minister for the Environment under section 216 of the Resource Management Act 1991 (“the Act” or “the RMA”) for a variation of the 1997 Order. The application addressed historic sites, botanical, landscape and plant habitat values 1 in additional to trout habitat and native fishery values 2.


On or about 24 August 2010 a Special Tribunal notified its report 3 on the application. By 14 September 2010 (the deadline 4) various parties lodged submissions with the Registrar under section 209 of the RMA. The submitters, and the parts of the Special Tribunal report with which the submissions are concerned, are:

Whitewater New Zealand Incorporated

  • a. The kayaking amenity.

Fish and Game

  • b. The recommendation not to provide additional recognition for the following outstanding characteristics:

    • i. The scenic characteristics of the Nevis River below Nevis Crossing;

    • ii. The wild characteristics of the Nevis River above Nevis Crossing;

    • iii. The type of outstanding angling experience the Nevis River affords, namely a backcountry angling experience; and

    • iv. The trout habitat values of the Nevis River, the productivity of which results in the development of very large (greater than 60cm in length) trout.

  • c. The application by the Special Tribunal of legal tests about:

    • i. The threshold required for a characteristic/value to be considered “outstanding” pursuant to section 199;

    • ii. The threshold required for amending a water conservation order pursuant to section 216.

Pioneer Generation Limited (“Pioneer”) and Fish and Game

  • d. The recommendation by the Special Tribunal that Gollum galaxiid be recognised as ‘outstanding’ and that the water conservation order should be amended to include:

    • i. A prohibition of damming and diversion;

    • ii. Native fishery habitat (non migratory galaxiids);

    • iii. Scientific — biogeographic river capture.

In relation to d. : Fish and Game supports the Special Tribunal's conclusions and suggested outcome whereas Pioneer opposes them.

The applications for waiver


On 30 November 2010 the NZHPT and Mr Douglas independently lodged applications for waiver of time to lodge submissions with the court regarding the Special

Tribunal's report on the application to amend the Water Conservation (Kawarau) Order 1997 in respect of the Nevis River. The matters which these parties wish to raise in their late submissions to the Environment Court are heritage characteristics and various terrestrial faunal and floral characteristics. None of these matters relate to parts of the Special Tribunal referred to this court by timely submitters — summarised in the previous paragraph — so in the absence of their own submissions the late submitters may have no right to call evidence on these different characteristics

Three parties, Otago Regional Council (“ORC”), Central Otago District Council and Pioneer lodged notices of opposition, although the district council now abides the decision of the court on whether or not waivers are granted. Pioneer opposes the applications on several grounds. First, it claims it would be prejudiced in having to call substantial amounts of extra evidence; secondly it claims that the relief sought is outside the scope of a WCO and therefore beyond the jurisdiction of this court. It and the ORC argue that the terrestrial features for which NZHPT and Mr Douglas and Mr Patrick seek protection have no, or insufficient, connection to the waters of the Nevis River and are beyond the ambit of Part 9 of the Act. For its part Fish and Game support the applications for waiver of time. It says it is the applicant seeking to have the WCO amended, and says it has not been prejudiced.


To assist resolve some of the issues that arose at the hearing of the applications for waiver, I will first set out the regime governing applications for water conservation orders 5 under the RMA.

Part 9 of the RMA : Water Conservation Orders
Water conservation order procedures

Part 9 of the Act deals with water conservation orders. The purpose 6 of a water conservation order is:

… to recognise and sustain –

  • (a) outstanding amenity or intrinsic values which are afforded by waters in their natural state:

  • (b) where waters are no longer in their natural state, the amenity or intrinsic values of those waters which in themselves warrant protection because they are considered outstanding.

A water conservation order may preserve any outstanding water body that is considered to be outstanding in its natural state, or protect characteristics of a water body which are considered to be outstanding as a habitat for terrestrial or aquatic organisms; as a fishery; for its wild, scenic, or other natural characteristics; for scientific and ecological values; for recreational, historical, spiritual, or cultural purposes; or protect characteristics which are of outstanding significance in accordance with tikanga Maori 7.


In Rangitata South Irrigation Limited v New Zealand Central South Island Fish and Game Councils 8 (“Rangitata South”) the Environment Court described the procedures governing applications for water conservation orders as follows:

Any person may apply 9 for a water conservation order if they identify the water body concerned, state their reasons, and describe the provisions which they wish to be included in the order. The Minister for the Environment may 10 reject the application or, after consultation with other Ministers, appoint a Special Tribunal to hear and report on it. The Special Tribunal 11 needs to ensure 12 that the application is publicly notified nationwide and served on specified persons. The notification procedures for resource consents in section 92 [of the RMA] apply 13 to the public notification of an application for a water conservation order.

The procedures for making submissions 14 to the Special Tribunal; for its conduct of the hearing 15; consideration 16; report 17 and notice 18 are all specified.


Section 209 of the Act then gives a kind of appeal to the Environment Court. It states (relevantly):

209 Right to make submissions to Environment Court

  • (1) Any of the following persons may make a submission to the Environment Court in accordance with subsection (2) in respect of the whole or any part of a report of a special tribunal under section 208:

    • (a) the applicant for the proposed water conservation order to which the report relates:

    • (b) any person who made a submission to the special tribunal under section 205:

    • (c) any other person to whom the Environment Court grants leave to make a submission on the grounds that the person could not reasonably have been expected to know that the report of the special tribunal would affect the person or an aspect of the public interest which that person represents.

  • (2) A submission shall be lodged with the Environment Court within 15 working days of receipt of the notification of the decision in accordance with section 208(2).

So any of three categories 19 of persons — the applicant, a submitter to the Special Tribunal (whom I shall call a “ST submitter”), or anyone granted leave by the court — may make a submission “in respect of the whole or any part of the [Special Tribunal] report” to the Environment Court. They must do so within 15 working days of receipt of the...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT