The Environment Canterbury Temporary Commissioners and Improved Water Management Act Part 2

Claire Browning makes the point about the Environment Canterbury special legislation weakening the water conservation orders in Canterbury.

The press release of EDS, Ecologic, Fish and Game, Whitewater NZ and Forest and Bird is bang on.

The legislation really cries out 'Have a go at the Canterbury water conservation orders'. If Dame Margaret's commissioners don't give economic values enough weighting, the water interests are very familiar with the courts. The lack of appeal on facts to the Environment Court is unlikely to put off the water interests. Ngai Tahu and Central Plains Water Limited took the 'priority' of water issue (the 'who is first in line' issue) all the way to the Court of Appeal.

I have been looking at the "Dame Margaret" bill to see if the additional powers in Subpart 4, sections 61 to 69, will be likely to help 'fix' the Natural Resources Regional Plan ("NRRP").

S 63 appears to say Ecan (Dame Margaret's commissioners) must have particular regard to the CWMS in deciding the NRRP. Well, okay.

S 66 appears to say that there is no right of appeal of that decision to the Environment Court, only to the High Court, if you were a submitter.

S 69 appears to say that IF hearings on submissions on the NRRP have concluded (S 69(1)(b)) AND Ecan revokes the delegation to the NRRP commissioners (S 69(1)(a)) THEN Ecan can then make an 'instant' decision with no further cross-submissions or hearings AS LONG AS submissions, evidence and officers reports are considered.

However, Ecan's decision-making for the five problematic NRRP 'chapters', which were notified in July 2004, is 'grandparented' under the version of the RMA that existed in 2004. This is provided for in S 131 of the Resource Management Amendment Act 2005, S 161 of the Resource Management (Simplifying and Streamlining) Amendment Act 2009 and S 62 of the Environment Canterbury Temporary Commissioners and Improved Water Management Bill (which specifically says S 161 still applies).

So, on the face of it, Dame Margaret can't make a quick-no-hearing-no-appeal decision on the NRRP, relying on S 63, 66 and 69. And submitters will still have rights of appeal to the Environment Court.

It appears to me that Dame Margaret can only use S 61, 63, 66 and 69 to speed up variations (amendments) to the NRRP, that she initiates AFTER the commencement of the Bill. At last count, Ecan were already up to 14 'variations' on the NRRP. I don't really see more variations cutting through the complexity. It's more likely to add to it.

However, Dame Margaret may 'withdraw' the proposed NRRP chapters under Schedule 1 Clause 8D 'Withdrawal of proposed policy statements and plans' of the RMA. That clause has not been changed since 1993, it was in the RMA when the NRRP was notified in 2004, so it can be used by Ecan/Dame Margaret.

I would favour complete withdrawal of the NRRP and starting again. I don't think the NRRP is worth saving.

For example, even if the NRRP was operative tomorrow, the rules only make groundwater consents exceeding a groundwater allocation block "non-complying" and therefore arguable at a hearing. The more rigorous 'third order' groundwater allocations that would be backed by prohibited rule status are a 'work-in-progress' And have been since 2004.

Really, this shows that Dame Margaret has a very tough job. She will need some very good planners as fellow commissioners to produce an effective regional water allocation plan for Canterbury. She is unlikely to be helped by the Ecan planners as they are stuck in Plato's cave, mistaking the world viewed through the lense of the NRRP as reality.