Te Rūnanga o Ngāti Awa this week files arguments seeking leave to appeal a High Court judgment allowing Creswell NZ to bottle 1.1 billion litres of Otakiri Springs water, most bound for the China market. Photo: Broaden

Analysis: Putting te wai Aotearoa in a plastic bottle and distributing it around the globe is not the most beneficial use of this scarce taonga.

A new High Court decision upholds an Environment Court decision under the Resource Management Act, allowing the taking and use of water for a water bottling plant at Otakiri Springs in the Bay of Plenty. Similar issues have arisen in Canterbury, however this case added in a Maori cultural dimension. 

In summary, the key legal issues were whether the Environment Court was in error in finding that it was not required to consider the “end-use” effects in terms of:

  • exporting “far too much water far too far away”;
  • the Maori cultural effects of exporting the water internationally;
  • exporting it beyond the catchment;
  • the resulting contribution to pollution caused by plastic bottles internationally and within New Zealand.

The High Court found no errors. On the international export issue it found the Environment Court was correct in concluding that wider concern about export of water overseas was not “an adverse effect on the environment” under the Resource Management Act and was therefore beyond the scope of the Act. The concern was “too remote”.

Should resource consent decisions consider just the impact on the local environment, or also the wider impact of exporting a resource like fresh water? Click here to comment.

There is nothing contentious in this. As Environment Minister David Parker told Newsroom this week: “The focus of the Resource Management Act is on the adverse environmental effects of the taking of the water, not the end use.” 

I doubt the promised new Natural and Built Environments Act will take a different approach. Indeed, if anything, it is likely to be even more focused on direct rather than remote (down the line) environmental effects, let alone nationalistic concerns. Put simply, if the consensus is that we should not be exporting our freshwater overseas, then that is a matter to be addressed by other means. It is an emotional and political issue rather than a matter for environmental regulation.

Similarly, if NZ Inc thinks that we should not be giving away water to overseas interests (and to Kiwi commercial interests) then that is a matter of policy.  We do not need to legislate for ownership of water in order to charge for it.

Water to be returned to the land

The High Court did, however, find that the effects of exporting the water away from the catchment in terms of loss of the mauri of the water and the impacts on the exercise of kaitiakitanga  was a relevant consideration. 

It found that the Environment Court had considered the competing cultural evidence and had made a factual finding on this issue, that the High Court could not interfere with in an appeal on points of law. (The Environment Court had preferred the cultural evidence for the applicant, Creswell NZ, that the export of the water would not detract from its mauri because the water would be returned to the land).

There is nothing surprising in the approach of both Courts. The Resource Management Act requires decision-makers to “recognise and provide for … the relationship of Māori and their culture and traditions with their ancestral lands, water, sites, wāhi tapu, and other taonga”. The Environment Court, councils and independent commissioners deal with such issues on the evidence. In this case the Court was required to choose between the competing evidence of Māori cultural experts.

“Whether you say everyone owns the water or no-one owns the water doesn’t take you very far.”
– David Parker, environment minister

I doubt the proposed new legislation will adopt a radically different approach to the recognition of Māori cultural values. However, it might well address the underlying conundrum of the Māori rights to water, by increasing the existing trend of enabling direct Māori involvement through the co-management of water and other natural resources. The establishment of the Waikato River Authority  as a result of the Treaty settlement legislation is the primary example.

Other co-management models have been voluntarily utilised within some regions. A non-legislated example is Te Upoko Taiao Natural Resource Management Committee, which is Wellington Regional Council’s decision-making body comprising seven non-elected mana whenua and seven elected council members. 

As Minister Parker said: “Whether you say everyone owns the water or no-one owns the water doesn’t take you very far.”

I suspect, however, that the real point is that recognising Maori rights to water as a property right is a step too far for this, or a National-led, government. No government wants a repeat of the seabed and foreshore wrangles.

There remains a separate but related issue of whether we should be charging for rights to take water. It is an incredibly valuable resource yet we are giving it away for nothing.

In this case we have given away the right to take and use 1.1 million cubic metres of water a year for 25 years to a foreign-owned company. Go figure!

Perhaps the real political problem is that if we charge for water, Māori may expect a share. Oh, and what about all those dairy farmers who have invested millions on the back of “free water”. (Yes, yes, I know they have pumping costs and infrastructure costs).

The end result of the consent will be 1.3b bottles a year for 25 years

Now we come to the vexed question of whether environmental decision makers under the Resource Management Act or its replacement should be taking into account the “end use of water” … in this case billions of plastic bottle destined to take up valuable space in landfills, be littered on land and sea  and eventually to remain as microplastic particles in the oceans and the animals which inhabit and rely on it (including ultimately ourselves).  

I can hear most of you saying: “if that is not an adverse effect on the environment then what is?” I am with you on that!

But is this an issue for the Resource Management Act or its replacement? The High Court upheld the Environment Court’s decision that generation of plastic bottles and the fate of the same were effects which were “too remote” from the activity that required consent – the taking and use of the water.

“I am not saying that as a matter of law the effects of plastic bottle or other plastic waste disposal will always be too remote to warrant consideration (nor suggesting that Councils cannot address such effects in their planning documents).”
– Justice Ian Gault

It agreed that there was insufficient “causal nexus” between the activity requiring consent and the detrimental effects of plastic bottles.

Before you start beating me or the Court around the head with a plastic bottle, let’s put that in context. The appellant had not raised this issue (plastic waste) in its grounds of appeal to the Court which meant that the Environment Court did not hear evidence on this issue.

The High Court did not rule this effect out as being relevant in other cases. Justice Gault noted: “I am not saying that as a matter of law the effects of plastic bottle or other plastic waste disposal will always be too remote to warrant consideration (nor suggesting that Councils cannot address such effects in their planning documents).”

Justice Gault has deliberately (and correctly, in my humble view) left the door open. He has also identified an important point. Councils could have policies around this issue in their planning documents both in terms of regional water take and use policies, and district land use planning.

However, planning documents are guided by the purpose and principles enshrined in the Resource Management Act and by National Policy Statements. Those can outline Government policy as to how the purpose and principles of the Act are to be implemented. 

The Supreme Court has found that National Policy Statements may be directive and that local authorities must implement them, rather than weaseling out of them by reliance on the nefarious concept of balancing economic and social wellbeing against environmental bottom lines. (Forgive me for paraphrasing the most significant Resource Management Act decision we have ever had, also known as the King Salmon decision). 

As with most criticisms of the Resource Management Act, the problem is not so much the legislation but rather the unwillingness of central and local government to take the hard decisions by the horns.

Let’s be clear, I am not saying that plastic packaging should be dealt with by the Resource Management Act or its spawn – but it can be if needs be.

Better to use targeted regulation

In my view, a targeted approach would be more sensible. We do not need new legislation to deal with this issue. The ban on single-use plastic bags is by regulation under the Waste Minimisation Act 2008.

Good on you Te Rūnanga o Ngāti Awa for highlighting this issue and the associated issue of Māori input into water management. Come on Government, the first of these issues is not that hard and from recollection you had a policy on this. Time to move. Fewer plastic bottles, not millions more.

Don’t leave this issue to councils or the Courts – they cannot deal with global issues.

A last word if I may: the current buzzword coming from the Government spin doctors seems to be “pivot” – which I note by definition can be a 180 or 360 degree turn or anything between.

The Resource Management Act replaced in one part the Water and Soil Conservation Act 1967. Under that Act the Courts developed an allocation principle of considering “the most beneficial use of water”.

Despite its plethora of purpose and principles, there is no such equivalent under the Resource Management Act beyond the amorphous direction to have particular regard to “ the efficient use and development of natural resources”.

Now to my mind giving away water and putting it in a plastic bottle and distributing it around the globe is most surely not the most beneficial use of this scarce taonga!

However, I am sure that an economist can offer an expert opinion (and probably did) that it bottling water and thereby generating some jobs in New Zealand is more efficient than leaving the water in the ground.

Philip Milne is a barrister specialising in resource management issues, who has been involved in water and waste management issues. He is an accredited RMA commissioner.

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