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

 
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Decision No. [2011] NZEnvC 113

BEFORE THE ENVIRONMENT COURT

Court:

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

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

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

and

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

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

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.

The issues were: whether a waiver order was outside the scope of a Water Conservation Order and therefore out of the Court's jurisdiction; whether the timely submitters would suffer prejudice and whether an extension of time should be granted under s281 RMA.

Held: Allowing the late submitters to make submissions on new issues not considered by the Tribunal would make s209 RMA (submission to the Environment Court in respect of the whole or any part of a report of a special tribunal) otiose. The words “in respect of the whole or any part of a report” in s209 RMA were important, because they indicated that a submitter could choose to circumscribe the Court's inquiry. That was reinforced by s210 RMA (Environment Court to hold inquiry) and s212 RMA (matters to be considered). Thus the inquiry was not a general inquiry into the application for a water conservation order or variation, but an inquiry into the Tribunal's report. Section 212 RMA directed the Court to have regard to the original application and the submissions to the Court. If timely submissions to the Court under s209 only related to part of the Tribunal's report, either directly or indirectly, then the Court's inquiry was only into those aspects of the report.

Factors for determining prejudice included:

  • • the length of delay;

  • • reasons for the delay; and

  • • the amount of money involved;

  • • procedural steps that may already have been completed; and

  • • any actions already taken by another party in reliance on the decisions appealed.

The applications for waiver were 48 days late, which was not a minor delay, but given the misleading words of s211 RMA (who may be heard at inquiry) that was a reasonable excuse. There was no evidence that any investment was at risk, but any delay increased opportunity costs. So far there had not been any hearings and only very preliminary evidence preparation by the parties. There had not been undue prejudice to the timely submitters in respect of those matters.

If a party sought the Court's indulgence in the form of a waiver, it should call evidence to establish that the Court had jurisdiction, since the Special Tribunal found that it had not. In determining the scope of its inquiry, the Special Tribunal had correctly pointed out that there must be a connection between a characteristic which a party claimed to be worth protecting and the relevant water body. The issue was not whether each aspiring submitter sought to widen the scope of the inquiry beyond the scope of the other in-time submitters. The issue was whether the characteristics raised in the proposed submissions were beyond the scope of a Water Conservation Order.

There was insufficient evidence to overturn the Tribunal's decision on the jurisdictional issue. Whether or not the Order was varied, the various heritage characteristics of the Nevis catchment had some protection as the New Zealand Historic Places Trust had registered the Lower Nevis Historic Area under its Act. This went against the grant of a waiver. If Pioneer ever applied to dam the river it would have to deal with the heritage listing of the land it wished to flood. It should not have to fight the issue twice.

Applications for waiver refused.

FIRST (PROCEDURAL) DECISION
  • 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.

REASONS
Introduction
The issue
1

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.

Background
2

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.

3

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

4

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.
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