Cantabrians should prepare for more weak, business-friendly water consent decisions, David Williams warns.

ANALYSIS: Initiating an investigation into Environment Canterbury in 2009, the then National-led government told the public that the regional council’s poor performance was holding Canterbury back.

The review was pinned, rather feebly, on inefficient processing of resource consents but was widely seen as a water grab – a way for irrigators to get greater access to water and use it, generally speaking, for agricultural intensification. To this end, a Crown fund was set up to give irrigators access to Government grants and loans. That fund helped give birth to Central Plains Water, the country’s largest privately-funded infrastructure project.

Environment Minister Nick Smith said nine years ago that ECan, Canterbury’s regional council, only processed 29 percent of consents on time, and he had serious concerns about the effectiveness of the council’s “broader environment management”.

The following year, when the review landed, the public was told government-appointed commissioners were needed to “fix Canterbury water”. Smith said Canterbury, which has more than half the country’s irrigation water and hydro storage, needed a water allocation plan, better water quality and more water storage.

Led by ubiquitous bureaucratic fixer Dame Margaret Bazley, the commissioners would step aside “no later than in 2013” when they’d completed their task. Well, they’re still not finished. Commissioners won’t completely disappear from around the council table until next year’s local body elections.

As the nine-year anniversary approaches of the government’s ECan takeover, Cantabrians should be given a firm indication of how the organisation has changed and improved. Yesterday’s water bottling decision in the High Court might have been a small win for an environmental lobby group but there is little sign that ECan has suddenly turned a corner.

Consent use challenged

A judicial review taken by environmental lobby group Aotearoa Water Action Inc challenged an ECan (CRC) decision to issue new consents, to take and use water for commercial water bottling, to Cloud Ocean Water Ltd and Rapaki Natural Resources Ltd. The companies occupy a property at Belfast, just north of Christchurch, that had previously been used by a wool scour and freezing works. Cloud Ocean argued that should the court find its consents were invalid, it could rely on prior water-takes granted to the property’s previous owners.

Central to the High Court’s preliminary decision was whether water take consents are somewhat generic. Is an ambiguous “industrial” consent able to be used for water bottling for export? If the same quantity of water is extracted, what’s the harm in it being used for something else?

Justice Peter Churchman’s judgment, released publicly yesterday, found the consents held by the two companies can’t be used for large-scale water bottling operations.

“As a matter of jurisdiction, the purpose specified in the application defines the scope of the application and the CRC had no jurisdiction to grant more than what was applied for,” the judgment said. The judge added that a water bottling plant “could be said” to be an industrial activity. “However, this finding does not alter the fact that the bottling of water for export is a very different sort of activity from operating a freezing works or wool scour.”

The water able to be taken from the Belfast property is a puddle compared to the vast amount of Canterbury’s water used for irrigation of pasture, stockwater and irrigation schemes.

Job done, world saved, let’s all go home. Right?

Well, not quite. Not at all, in fact. An appeal is still possible and the companies may lodge new consents that are ultimately approved. Yes, it seems the “little guy” won in this case, but there are broader and much more important issues at stake.

While the environmental concerns raised were legitimate, I fear some of the reason this case shot to prominence is because it involves a Chinese-owned company. A bit of the old “they’re taking our water” xenophobia.

Also, the water able to be taken from the Belfast property is a puddle compared to the vast amount of Canterbury’s water used for irrigation of pasture, stockwater and irrigation schemes. (As evidenced by Stuff’s excellent ‘Uncharted waters’ investigation.)

This court decision could be chalked up as a win if the authority in question, ECan, which has spent thousands of ratepayers’ money defending its decision in court, learned something. But decisions like this could very well be made again.

Bungling, divided, mismanaging

Back in 2009, ECan was maligned as a bungling and divided organisation that was mismanaging Canterbury’s water.

It became plain that one of the main drivers for the government review was a push from other councils. The region’s mayors pressured Local Government Minister Rodney Hide to act. And the minutes of a November 2009 meeting with the ECan review team was released to The Press newspaper.

At the meeting, Hurunui District Council chief executive Andrew Dalziel called ECan “zealot-driven at times” and Selwyn Maor Kelvin Coe called the regional council “arrogant, combative, litigious”. Kaikoura District Council chief executive Stuart Grant said the group wanted “ECan gone by lunchtime. This is a chance to gut the organisation. If water is staffed by ECan, it is doomed.”

But why would ECan suddenly get brave and start enforcing consent breaches now? It has had the shot across its bow. It has been told to knuckle down and be collaborative, or central Government will step in.

Who did those comments represent? Were they justified?

That’s history now. But the public are entitled to ask of ECan if installing commissioners has led to better water managed water in overallocated catchments and improved water quality. It certainly seems to have led to more water being available to irrigators.

And what of ECan’s much-maligned resource consent processing numbers? In its latest annual report, from 2016-17, ECan says it missed a 21-day target of the “median total time” for all resource consent applications being received. Happily, 95 percent of applications were processed “satisfactorily or better” – whatever that means. The report shows ECan is very good at making water quality data available but is less descriptive about whether water bodies are declining or improving.

Step-change during a crime wave

Two years ago, ECan launched its Land and Water Regional Plan, lauding a step-change in water management through collaboratively developed environmental limits.

Yet, that same year, Forest & Bird spoke out about what it called an “environmental crime wave” of water-stealing by irrigators, who received only limp warnings from ECan. The Green Party worried that ECan only monitored 3200 of its 20,000 consents in the 2014/15 season. The council’s water zone committees have been criticised as being too farmer-friendly and contributing to continuing biodiversity loss.

But why would ECan suddenly get brave and start enforcing consent breaches now? It has had the shot across its bow. It has been told to knuckle down and be collaborative, or central Government will step in.

That debilitating experience has turned it into a process-driven, conflict-avoiding council that seems too afraid to do its job; too afraid to offend companies by telling them that the environment is more important than their commercially-driven enterprises. It has embraced the worst principle-killing behaviour – pragmatism.

Enabling policies combined with weak-kneed leadership can only lead to more consent decisions like that in the water bottling case, that was scrapped by the High Court. (It could be argued it hasn’t covered itself in glory by allowing irrigation on Kaitorete Spit, either, and its approvals in the Mackenzie Basin has upset environmental groups.)

Unfortunately, there isn’t a stack of well-financed watchdogs willing to keep an eye on ECan and challenge the worst decisions. It’s time the Canterbury public demanded more of its regional council. In echoes of 2009, its poor performance is holding the province back.

* This story has been corrected to state the High Court decision centred on new consents to take and use water, not a reliance on existing water takes.

David Williams is Newsroom's environment editor, South Island correspondent and investigative writer.

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