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Hydro

Hydro

III Hydroelectricity

New Zealand has an existing wealth of hydroelectric facilities for renewable energy generation to reduce greenhouse gas emissions. The development of such facilities has not been without controversy. Conflicts for other uses of water such as irrigation have developed testing the RMA 1991’s sustainability framework. In addition, Maori have asserted ownership of water through aboriginal title even though at common law water cannot be owned until captured. Over and above incompatible water uses, hydroelectric projects can have extensive environmental effects. It can reduce catchment water quality as well as groundwater quality, enable the growth of flora, generate predatory risks for birds, decrease the habitat of fish if not creating a barrier altogether, induce sediment build up, produce erosion and dust, change landscape, impede recreational activities, and infringe Maori values with water. Although these obstacles can be overcome, there are real challenges to the expansion of hydroelectricity in New Zealand to reduce greenhouse gas emissions.

A          History of Hydroelectric Development in New Zealand

New Zealand has a rich history of hydroelectric development. With water rights associated with gold fields,1 the first hydroelectric power station was built in 1886.2 Since then New Zealand has sought out water for electricity generation in line with Peter Hay’s comprehensive 1904 report on New Zealand’s hydroelectric potential.3 New Zealand’s venture into hydroelectricity has not been flawless and on 7 June 1930 a 2,000 feet long crack parallel to the Waikato River appeared owing to the Arapuni hydroelectric power station. Gaps appeared in the concrete where the spillway joined the intake and “the penstocks broke away from the concrete encasing their tops.”4 Undeterred, central government continued to seek hydroelectricity opportunities on the Waikato and Upper Waitaki Rivers as electricity consumption soared. The Tongariro development followed with its “complex system of river and stream diversions, tunnels and canals, lakes and power stations.”5 With the advent of the Cook Strait cable in  1965, electricity was able to flow freely between the North and South Islands.6 By 1970, New Zealand was able to boast having an 89 per cent renewable electricity portfolio.7

 

The most well-known controversies, of course, are the subsequent Manapouri and Clyde hydroelectric projects. For Manapouri, it was mooted the lake should be raised 30 metres to the same level as Lake Te Anau.8 This would “inundate 160 km of lake shoreline and drown 800 hectares of shoreline forest” not to mention the submergence of 26 of Lake Manapouri’s 35 islands.9 With the establishment of 19 “Save Manapouri” committees all over the country10 and a 265,000 signature petition,11 the lake level was not raised.12 In comparison, the Clutha River became another focus and Roxburgh was commissioned in 1956.13 Upstream the formation of a Clyde dam had a series of proposals but a high 102 metre gravity fed concrete dam began construction in 1979 with the creation of Lake Dunstan flooding the former town of Cromwell.14 This was achieved via legislation15 overruling a High Court judgment that held the Planning Tribunal was able to take into account the end use of power in determining a water right grant.16

In 2001, Meridian Energy announced a hydroelectric project for the Lower Waitaki River.17 Known as Project Aqua, it involved building a 62 kilometre canal and taking 73 per cent of the river flow through six power stations.18 In 2002, Meridian Energy “network utility operator” status requiring Councils to designate in their plans development potential and giving Meridian the power to compulsorily acquire land.19 In 2003, Meridian Energy filed 261 resource consents which included 60 environmental effects reports on the project.20 Over 6000 public submissions were received with over 96 per cent of those opposed to the project.21 Meridian urged central government to intervene which the government did through the formation of a Waitaki Catchment Regional Plan for allocation of water.22 However, Meridian wanted an affirmation of its pre-existing water rights. Simultaneously, irrigation interests who wished to use water applied for resource consents to take up to nine million cubic metres per week.23 In the High Court, Fogarty J in Star Holdings Limited v Meridian Energy refused to strike out a declaration as to the subsequent rights to water.24 Burdened with delays, challenges to its water rights, growing costs, unhelpful governmental intervention and geotechnical problems, Meridian abandoned the project in early 2004 despite spending nearly $95 million.25

B          Ownership of Water

At common law, water is incapable of ownership in its natural state as a fugacious resource until captured (res communes) which enables use (usufruct) rights.26 Water is not owned because it is difficult to possess. For instance, the water in a free flowing river moves downstream from its origins to a lake and generally to the sea. The metamorphosis from property that is not owned to property that is owned takes place when the property is captured. This is known as the rule of capture like water in a bucket. The common law also remedied the harshness of the no ownership principle with riparian rights.27 Riparian rights were rights of those adjoining a water body who traditionally owned the bed of the water body to its middle.28 The rights included access rights;29 to take water for domestic purposes;30 and to take water for extraordinary purposes where the rights of other riparian owners were protected if such use was reasonable, connected with the riparian land, and water was returned in its natural state.31 Extraordinary purposes included damming a stream for a mill.32 Different rules applied to tidal and navigable water bodies following an analogy with a highway.33 Fisher clarifies that at common law “there is no private property regime in water until the water has been [abstracted] which is inextricably linked to the ownership and occupation of land.”34

In terms of ownership, Maori have a strong affinity with water as “the wellbeing of Maori depends upon the wellbeing of water.”35 For Maori, “life of the river [is] inseparable from the life of the people.”36 Wai in Maori means water, memory and who.37 The Waitangi Tribunal report on the Whanganui River states that Maori see the water resource as a “whole and indivisible entity, not separated into beds, banks, and waters, nor into tidal, navigable and non-tidal navigable parts.”38 The “conceptual understanding of the river as a tupuna or ancestor emphasises [that rendering] native title on its own terms… what Atihaunaui owned was a river [un]dissected in parts.”39 The Whanganui River had its own “mauri [life force], mana [prestige], and tapu [sacred restrictions].”40 The Tribunal found that “the river system was possessed as a taonga of central significance to Atihaunui”41 “a manifestation of the Maori physical and  spiritual conception of life and life’s forces.”42 In this respect, the Waitangi Tribunal concluded that “what Atihaunui owned is equated with ownership for the purposes of English or New Zealand law.”43

The assertion is that aboriginal title confers ownership of water.

Consistent with the common law, the Crown has always rejected Maori ownership to water under the doctrine of aboriginal title. The dissenting opinion of Kneebone in the Waitangi Tribunal’s inquiry into the Whanganui River is enlightening. He states lucidly:44

 

[W]ater has its own energy and will, and flows as part of nature’s cycle…. Humanity has never commanded authority over natural water as it evaporates, precipitates, freezes, melts and flows… [W]ater is borrowed from nature, made use of, then returned to be cleansed and refurbished.

 

Aboriginal title to rights, control, and management of water undoubtedly exists.45 Aboriginal title covers “rights over land and water enjoyed by the indigenous or established inhabitants of a country up to the time of its colonisation.”46 At common law, ownership of the land underneath water entitles the land owner to associated water rights. Nevertheless, seeing water as “molecules” passing one by one that are capable of ownership under the rule of capture without recognising the passing is difficult.47 The opposing argument is that the common law should not be superimposed over aboriginal title.48 Yet aboriginal title is a feature of the common law and such ownership would require a rewriting of the law. To confuse matters, the Waitangi Tribunal has stipulated “[t]he issue is not about ownership of water as such but about the right to access the water.”49 Adding to the discourse, thought that this] includ[es] the right to generate electricity by harnessing water power.”50 Crown settlements with Maori for Treaty of Waitangi breaches have reiterated this inability to own water in its natural state which has seen lands which are covered in water returned. Section 64 of the Waikato-Tainui Raupatu Claims (Waikato River) Settlement Act 2010 acknowledges that the Crown and Waikato-Tainui “have different concepts and views regarding relationship with the Waikato River (which the Crown would seek to describe as including “ownership”).”51 The Crown does vest “the fee simple estates in the sites of significance…. in the [Waikato Raupatu River] Trust” as detailed.52 In a similar manner under the Ngai Tahu Claims Settlement Act 1998, there is statutory acknowledgement of the particular cultural, spiritual, historic, and cultural association of Ngai Tahu with various lakes and rivers.53 Such statements provide for consent authorities and the Environment Court to have regard to the acknowledgement in decision making.54 Such acknowledgements also are to be recorded on statutory plans.55

The RMA 1991 regulates rather than confers ownership56 over water “in all its physical forms whether flowing or not and whether over or under ground.”57 This is augmented by s 354 of the RMA 1991 which preserves the existing rights of the Crown under s 21 of the Water and Soil Conservation Act 1967 to the sole right to control access to natural water but does not confer a right of ownership.58 Under the RMA 1991, water includes “freshwater, coastal water, and geothermal water.”59 Consistent with the rule of capture, the definition of water does not include “water in any form while in any pipe, tank or cistern.”60 Section 9 of the RMA 1991 prevents land use inconsistent with a district plan, proposed district plan, resource consent or existing use. Section 13 and 14 of the RMA 1991 are key operative water provisions. Nothing must be done which contravenes a regional plan, a proposed regional plan or resource consent in relation to uses of bed of lakes or rivers61 nor can any person take, use, dam or divert any water unless otherwise authorised.62 Like the common law, a person is not prohibited for using water for “reasonable domestic needs”.63

1          Conflicts over Resource

These debates over ownership are representative of broader sustainability debates over the use of water for other purposes such as irrigation. Thus, Aoraki Water Trust v Meridian Energy followed the Star Holdings Limited v Meridian Energy strike out application64  and involved an application for declarations that pre-existing resource consents to Meridian for hydroelectricity on the Waitaki Catchment did not operate as a legal constraint on the statutory discretion to grant further resource consents for irrigation.65 Meridian’s resource consent already was “entitled to use more water than currently flows naturally into and out of [Lake Tekapo].”66 Chisholm and Harrison JJ held that the principle of non-derogration from grant applied so that there could not be a diminishment or derogation from another’s entitlement. Although the reasoning has been thoroughly criticised due to references to the property nature of resource consents despite statutory language to the contrary,67 the outcome that subsequent consents could thwart pre-existing consents “would seriously undermine public confidence in the integrity of water [resource consents]”68 is consistent with Fleetwing Farms Ltd v Marlborough District Council that resource consents are to be determined on a “first-in first-served” basis and that “the grant of one [resource consent] necessarily excludes [another].”69 However, this adherence to first-in first-served resource allocation “leads to concern with the implementation of the sustatinable principles of the RMA [1991 and t]here is a need to consider alternatives.”70 Although here the water  allocation was favourable to renewable generation, as elaborated on later, adherence to the principle of sustainability such as in water markets71   may point to a more refined outcome.72

C         Assessment of Environmental Effects of Hydroelectric Development

1          Water Quality

Turning to an assessment of environmental effects of hydroelectric development, a modern case is Lower Waitaki River Management Society v Canterbury Regional Council (Lower Waitaki River).73   Meridian Energy in a complete redesign of Project Aqua created the North Bank Tunnel Concept. This was to take on average 211 cumecs from the Waitaki Dam Reservoir and return it to the Waitaki River 30 kilometres downstream through a tunnel.74 Logically as water is taken out of a river those pollutants that are discharged into the river increase in concentration which can affect existing resource consent holders.75 Therefore, there will be a “deterioration in water quality [with the associated] risk of disease through recreational contact, drinking water and the consumption of mahinga kai [food]” from lower flows.76 It was estimated, as a result, that water quality was to reduce from the high of being “very good” to the low of being “poor.”77 The Environment Court deduced that “Meridian’s [proposal] does not increase the contaminant load to the river and [others] within the catchment… are contributing [to the] contaminants of concern.”78 Hence, “good water quality is a catchment-wide management issue.”79 Meridian is, nonetheless, to support best practice for managing waterways on farms and is to fence its own waterways and wetlands.80

2          Groundwater

An associated environmental effect is on groundwater. In Lower Waitaki River, reducing the flow of the water of the river was to affect “significant aquifers which support 104 active wells supplying water for irrigation, stock water, domestic supply and dairy sheds.”81 At 300 to 600 metres from the river, groundwater levels “reflect 3 to 6 day moving averages of river levels.”82 As a condition of the consent, Meridian Energy was required to complete an Individual Mitigation Plan where measures are to mitigate the effects on groundwater quality through provision for the supply of water.83 Again it was reiterated that Meridian should not be solely responsible for “the current (deteriorating) quality of the groundwater.”84  An associated environmental effect of groundwater is on wetlands abutting the river. Expert evidence split the wetlands into riparian wetlands and terrace wetlands. For riparian wetlands, expert evidence was led that 135 hectares would be lost.85 The Environment Court held that at least 75 hectares of native terrace wetlands were to be provided. Replacement of riparian wetlands was seen as unnecessary because “ephemeral wetlands within the riverbed… could be altered or obliterated by floods at any time.”86

3          Flora

Lowering water levels also has the effect of increasing vegetation and flora. This includes periphyton (algae) and macrophytes (plants).87  Periphyton will grow in high nutrient and stagnant conditions and some species “can produce natural toxins which are a threat to people and animals.”88 Didymo is a particularly invasive periphyton species of concern. In Lower Waitaki River, vegetation was to be addressed in a Geomorphology and Riverbed Vegetation Management Plan which required fairway clearance so that “effectively all vegetation (including willow, gorse and broom)” was removed for the length of the diversion.89 Didymo and other nuisance periphyton species are to be addressed through “[f]lushing flows and adaptive management” which is a method also essential for fauna.90

4          Birds

Importantly, hydroelectric development will have an effect on wildlife. For instance, the Waitaki River is nationally and internationally recognised for its bird life.91 This includes “27 braided river bird species (species of shags, geese, ducks, oyster catchers, stilts, plovers, gulls and terns).”92 Of special importance in Lower Waitaki River were the white-fronted tern, black-fronted tern and black-billed gull.93 Decreases in flow allows for vegetation encroachment reducing “suitable sites for nesting, breeding, roosting and feeding.”94 Moreover, there is an increased predation risk as reduced flow “facilitate[s] access to bird breeding sites by mammalian predators” because the birds usually nest on islands.95 The Braided River Bird Management Plan attempts to remedy such problems by maintaining an area of suitable braided river bird habitat as large as the pre-existing area and by maintaining (and where practicable enhancing) the breeding success of the threatened species.96  Trials had been successful for habitat creation but were ultimately “a sad disappointment because… almost all the young birds died before fledging” primarily due to predation.97

5          Fish

Obvious candidates for adverse effects from hydroelectric development are fish. The first priority with reduced flows is on invertebrates which bigger fish feed on such as insects. Increase the food for fish, and the fish will follow.98 In Groome v West Coast Regional Council, there was an application for an extension of the Arnold hydroelectric scheme by increasing generation capacity from 3 MW to 46 MW.99 The effect was to hamper the velocity of the river and create significant shallow areas.100 However, the Arnold is highly ranked for its trout abundance.101 Groome contended that a year-round flow of 16 cumecs would appropriately maintain trout habitat rather than the split cumec regime consented. Judge Borthwick found that the change in flow would mean “trout [would] alter their diet depending on the availability of [the changing] invertebrate taxa.”102 What was required was “monitoring to demonstrate that there is a healthy invertebrate community.”103 In terms of brown trout, the four life stages were important including fry, juvenile, adult and spawning with different specific habitats required for each.104 Judge Borthwick concluded that “[t]he river will continue to support a sports fishery; but it will be different” due to the change in flows.105 Although different, it was “likely [to be] enhanced for many fishers.”106

While reduced flows can be an impediment to fish, hydroelectric structures on the riverbed can form a barrier to fish passage. There are two methods to get fish past the physical barrier of a dam: trap and transfer (active transfer) and constructed fish passes (passive transfer).107 In Director-General of Conservation v Marlborough District Council, the proposal was for Trustpower to develop “six new small hydro-stations within the Wariau Valley.”108  This posed a problem for “edge dwellers (such as bullies, juvenile trout and eels and galaxiids)” which could be “attracted to the intake and drawn into the canal system and injured or killed by passage through the turbines.”109 While some juvenile fish can have a high survival rate though turbines, Judge Whiting was sceptical of the survival rates quoted.110 Thus, a fish screen and a fish bypass channelare to return fish to the Wairau River.111 “Freshes” of water following long periods of low flow for fish passage upstream or downsteamare also important.112 Trap and transfer is theoretically possible but is a less favourable option due to its labour intensive nature.113

6          Sediment

Hydroelectric development which dams a river to form a lake rather than relying on diversion is prone to sediment build up and flooding. Due to the barrier of a dam, sediment is unable to travel downstream, building up causing a greater risk of flooding. This poses a problem on the Clutha River as examined in Alexandra District Flood Action Society v Otago Regional Council (Alexandra District Flood).114 In this case, Contact Energy sought renewal of its resource consents for its Clutha River hydroelectric facilities.115 In simple terms, sediment build up at Lake Roxburgh creates a backwater effect ultimately causing “flood levels to rise at Alexandra to a point five metres higher (for the same flow) than before the dam was built.”116 Hence during 1994, 1995 and 1999 businesses and properties were flooded in Alexandra with the result that a stopbank had to be built along the river at Alexandra.117 Judge Jackson found that “a flood at Alexandra has increased by at least 250 [per cent] as a consequence of the construction of the Roxburgh dam.”118 While raising stopbanks, drawing down Lake Roxburgh, and dredging were all possibilities, Judge Jackson held that the Contact Energy should “remedy any damage caused by more frequent floods by paying for replacement and other reasonable costs.”119 Although distressing to residents, efficiency required “dealing with any problem when it arises.”120 This was additional to any common law remedy that had not otherwise been excluded.121 

7          Erosion and Dust

The frequent changing in lake levels will also accelerate the related erosion and dust nuisances. Drawing down a lake will cause dust. Flooding a lake will cause shoreline erosion and vegetation loss. These issues were analysed in Alexandra District Flood with reference to Lake Hawea which is upstream from Roxburgh and Clyde dams. Lake Hawea is on average kept at 15.3 metres above its natural level with an operating range of 6.5 metres compared to a natural fluctuation of around 1.5 metres.122 Contact Energy had dealt with erosion by purchasing affected land “to ensure that it is Contact’s land which is being eroded.”123 Nonetheless, in various plans, Contact Energy is now required to monitor erosion prone areas124 on the foreshore and is to remove “remnant trees and scrub on the bed of Lake Hawea.”125 Furthermore, there is to be a record of “concentrations of ambient dust in the air for five years” at specified locations.126 Evidence relating to the dust of the fine alluvial silt of Lake Hawea was conflicting because lake levels tend to be highest over summer (when dust is more of a problem elsewhere) and lowest over winter due to electricity demand.127

8          The Existing Environment

Where there is existing hydroelectric power station, this will be part of the existing environment so any proposal for removal will be an adverse environmental effect.128  In Alexandra District Flood, the hydroelectric facilities “are operating now.”129 This is different from the environment for a new activity which is usually “the application site as it is at the date of the hearing.”130 This is because it is normally “necessary only to look forward at the possible effects of the proposed activity on [the] environment.”131 ].)) However, with pre-existing facilities there may be a need to look to “past effects” of the existing activity in order to “add conditions to control future adverse effects [which may include] clean[ing] up of the effects of past activities by the consent-holder which were not covered before.”132  Thus, on rare occasions “the consent authority will need to consider a past environment before modifications were made to it.”133 In Alexandra District FloodJudge Jackson did not need to consider the adverse effect of flooding Lake Dunstan from scratch but did need to consider “flooding of land owned or occupied by other persons [as] an adverse effect.”134 In addition, the positive effects of existing environment needed to be considered such as “the contributions the Clutha hydro scheme makes to the New Zealand and Otago economies.”135

9          Landscape

The visual aesthetics of landscape and natural character are a predominantly subjective adverse environmental effect. This is because natural character has both “a perceptual and biophysical component.”136  In Director-General of Conservation with six hydroelectric power stations planned for the Wairau River, on the one hand “the manipulation of flow for electricity generation… must by definition… diminish the natural character of the river.”137 Water abstraction “is a significant human modification to the river.”138 Furthermore if a river is difficult to access, relative isolation is an attribute.139 Obviously, a hydroelectric development may also ruin existing archaeological and historic heritage.140 On the other hand, the Wairau river was already substantially modified “due to historical river catchment and flood protection works.”141 Notably, “[t]he conversion of pastoral land to more intensive uses of viticulture and dairying adds to the industrialisation of this working landscape.”142 Casual users “are unlikely to be aware of difference in the flows / volumes of the river under the propos[al].”143 The river consequently was able to accommodate the scheme.144

If a water conservation order is in place, the potential for hydroelectric development is limited. Talley v Minister for the Environment attempted to challenge a water conservation order in respect of the Gowan River as a tributary of the Buller River.145  The order was made in 1987, with a recommendation to the Minister for the Environment in 1996 and the gazetting of that order in 2001.146 Prior to the gazetting, Talley applied to the Tasman District Council for a run of the river power scheme.147 He also applied to the High Court for a setting aside of the order because he argued that it was unreasonably granted due to delay and that the order was ultra vires for protecting any change in the natural flow from being greater than 15 per cent.148 Ronald Young J held that although s 21 of the RMA 1991 protects against unreasonable delay, such rights were not personal to Talley.149  Nor was the granting of the order ultra vires. Rather Talley had the opportunity to apply for a variation of the order under s 216.150 The Minister, however, declined to amend to the water conservation order and the proceedings were referred to the Environment Court.151 In Re Talley, Judge Smith found that the concessions needed “to achieve the level of abstraction to provide for the availability and reliability of supply sought… would compromise the conservation purpose of the order.”152

11        Recreational Activities

The adverse environmental effect of the proposed flow regime on the recreational activities of canoeing, kayaking and rafting was a key issue in the variation to the Buller River water conservation order in Re Talley. Judge Smith found that it was erroneous to assume “that the rafting characteristic relates only to, water volume [and] by restoring that temporarily, the outstanding rafting characteristic is protected.”153  Rather, the “intake and tailrace structures [of the hydroelectric scheme] are likely to compromise the rafting experience, even if there was a minimal effect on the flows in the river.”154 This was because the “intake or deflection structures [have the potential to] intrude into the river visually to the extent it reduces wild and scenic values.”155 Additionally, any rapid change in river flows had the potential to compromise recreational safety.156 Reducing the usual flow would have “significant impacts”157 which would “include effects on the channel cross-section, meandering pattern and braided river channel”158 with a corresponding “reduction and narrowing of the various river channels”159 as the “lower flows [would have difficulty] transport[ing] bed material.”160 The Court was cautious to vary an order that had been the subject to extensive evidence.161

12        Maori

Lastly, the adverse environmental effect of hydroelectric development on Maori spirituality presents a challenge. In Ngati Rangi Trust v Manawatu Wanganui Regional Council, Genesis Power applied for renewal of its resource consents for the Tongariro development.162  Its Western Diversion diverts water “from five tributaries and the headwaters of the W[h]anganui River.”163 For the Whanganui iwi “the River cannot be separated from the people nor the people from the River [as the two are tied] physically, spiritually and culturally.”164  This means that the “severing of the headwaters of their rivers is sacrilege.”165 Moreover, for Maori “[private] management of their headwaters is in direct conflict with their claim… upheld by the Waitangi Tribunal.”166 Judge Whiting in the Environment Court found himself in a difficult position because “[n]o witness [could explain], other than full restoration of flow, [how] to ameliorate the spiritual loss.”167  Thus, Judge Whiting decided to reduce the term of the resource consents from 35 to 10 years “[t]o enable a proper assessment of cultural effects and determine appropriate [mitigation] measures [and to] enable the consents to be fully reassessed, following a settlement… of their Waitangi Tribunal claim.”168

Genesis Power appealed to the High Court.169  Genesis Power submitted that “the meeting of the minds” requirement that both parties “explore the variety of options… that will assist in addressing values requir[ing] protection” amounted to an improper purpose.170 Wild J allowed the appeal. His Honour found that the Environment Court “saw the 10 year term as a means of drawing the opposing parties together [as] mitigating [adverse] effects.”171 This was illegitimate because the impact of the development on the environment was understood.172 For Wild J, “Maori culture and spiritual values will… remain constant over the next 35 years.”173 The submission was that “the Environment Court had abdicated its decision making role and, effectively, had directed a mediation.”174 What occurred was “a flawed decision” resulting Maori not participating.175 The Court “should not permit a party to take advantage of either its own wrong or its own default.”176 This was upheld in the Court of Appeal. Chambers J held that there would be no “unpredictable future change in the relevant Maori values [as] the Maori values… are entirely historical.”177

In the author’s view, the decisions take an inadequate view of Maori values. Despite the constraints of High Court review,178 the wide resource consent term discretion,179 and the explicit protection of Maori values180 the High Court entered into factual disputes as to the need to protect Maori values.181 For instance, Wild J found contrary to the Environment Court182 the fact that only Maori “refus[ed] to engage in th[e RMA 1991] process.”183 The High Court, therefore, was simply challenging a discretion and this does not constitute a reviewable error of law.184 Importantly, any adverse environmental effect of the future can only be determined through adverse environmental effects of the past. That is, in order to predict the future it is necessary to consider the past. Grievances do not exist in a historical vacuum and will often change dramatically over time. Time heals. Contrary to Wild J’s contention, the adverse environmental effects were uncertain because the effect on Maori spirituality was uncertain.185  As Judge Whiting noted the diversion of waters “has had and continues to have deleterious effects on the cultural and spiritual values of [Maori].”186 Finally, statements that no consultation is required187 paints a distorted picture of civil procedure because each party must submit clear and separate pleadings refining the issues for determination. If lacking, more explicit pleading may be required.188 This is all that was meant with the “meetings of the minds” construct.189

The High Court and Court of Appeal found an abdication of discretion when in reality at issue was a jurisdictional clash between the Environment Court’s review powers and a Waitangi Tribunal report.

D         Conclusion

Pre-existing hydroelectric facilities form the bulk of New Zealand’s renewable electricity generation. The development of these facilities has been contentious. Alternative use of water is increasingly seeing conflicts over the rights to such water. These rights to water are based on the premise that ownership of water in its natural state at common law is impossible but Maori have asserted ownership under the doctrine of aboriginal title anyway. When these conflicts are tied to the modern assessment of environmental effects, hydroelectric development has fallen into disfavour. Hydroelectric facilities can reduce groundwater and surface water quality, allow the growth of objectionable flora, risk bird life through increased predation, destroy fish habitat and processes, create sediment build up, generate erosion and dust, transform landscapes, obstruct recreational activities, and violate Maori values connected to water. Even though these adverse environmental effects can be overcome, in light of the increased use of water conservation orders for the protection of existing water bodies any extension of hydroelectricity in New Zealand is limited.

  1. Nicola Wheen “A Natural Flow – A History of Water Law in New Zealand” (1997) 9 (1) Otago L Rev 71 at 94. []
  2. John Martin People, Politics and Power Stations: Electric Power Generation in New Zealand 1880-1998 (2nded, Bridget Williams Books Limited, Wellington, 1998) at 19. []
  3. At 41; Peter Hay “New Zealand Water-Powers Etc” [1904] II AJHR D-1A []
  4. At 94. []
  5. At 220 []
  6. At 181 []
  7. Geoffrey Bertram and Doug Clover “Kicking the Fossil Fuel Habit: New Zealand’s Ninety Percent Renewable Energy Target for Electricity” in Fereidoon Sioshansi (ed) Generating Electricity in a Carbon-Constrained World (Burlington, Elsevier, 2010) 369 at 385 []
  8. Philippa Mein Smith A Concise History of New Zealand (Cambridge University Press, New York, 2005) at 195 []
  9. Michael King The Penguin History of New Zealand (Auckland, Penguin Books, 2003) at 441. []
  10. At 442. []
  11. Mein Smith, above n 31, at 195. []
  12. Manapouri–Te Anau Development Amendment Act 1981. []
  13. Martin, above n 25, at 269. []
  14. At 276. []
  15. Clutha Development (Clyde Dam Empowering) Act 1982. []
  16. Gilmore v National Water and Soil Conservation Authority (1982) 8 NZTPA 298 (HC); Nicola Wheen “A History of New Zealand Environmental Law” in Eric Pawson and Tom Brooking (ed) Environmental Histories of New Zealand (Melbourne, Oxford University Press, 2002) 261 at 268 []
  17. Claire Kilner “Project Aqua: Lessons for the Resource Management Act ?”(MA Thesis, University of Otago, []
  18. At 1. []
  19. RMA 1991, ss 166-167 []
  20. Kilner, above n 40, at 11. []
  21. At 80. []
  22. Resource Management (Waitaki Catchment) Amendment Act 2004, part 3. []
  23. Star Holdings Limited v Meridian Energy Limited HC Timaru CIV 2003-476-000732, 23 March 2004 at [4]. []
  24. At [44]. []
  25. Kilner, above n 40, at 1. []
  26. For water: Williams v Morland (1824) 107 ER 620 (KB) at 621; Liggins v Inge (1831) 131 ER 263 (Comm Pleas) at 268; Mason v Hill (1833) 110 ER 692 (KB) at 701; Wood v Waud (1849) 154 ER 1047 (Exch) at 1058; Embrey v Owen (1851) 155 ER 579 (Exch) at 583; Race v Ward (1855) 119 ER 259 (KB) at 261; Glenmark Homestead Limited v North Canterbury Catchment Board [1975] 2 NZLR 71 (SC) at 81; Attorney-General v Holland (2007) 8 NZCPR 282 (HC) at [33]; See generally Wayne Morrison (ed) Blackstone’s Commentaries on the Law of England: Book II (Oxford, Cavendish, 2001) at [14]; Derek Nolan (ed) Environmental and Resource ManagementLaw (4th ed, Lexis Nexis NZ, Wellington, 2011) at 523; Anthony Scott The Evolution of Resource Property Rights (Oxford University Press, Oxford, 2008) at 63- 126. []
  27. Scott, above n 49, at 63 []
  28. Laws of New Zealand Water (online ed) at [57]. []
  29. At [46]. []
  30. At [53]. []
  31. At [54]. []
  32. At [54]. []
  33. At [256]. []
  34. Douglas Fisher “Rights of Property in Water: Confusion or Clarity” (2004) 21 EPLJ 200 at 215. []
  35. Jacinta Ruru “The Right to Water as the Right to Identity: Legal Struggles of Indigenous Peoples of Aotearoa New Zealand” in Farhana Sultana and Alex Loftus (ed) The Right to Water: Politics, Governance and Social Struggles (Earthscan, New York, 2012) 110 at 120. []
  36. Michael King Te Puea: A Biography (Hodder & Stoughton, Auckland, 1977) at 50 as cited by Linda Te Aho “Indigenous Challenges to Enhance Freshwater Governance and Management in Aotearoa New Zealand – The Waikato River Settlement” (2010) 20 Journal of Water Law 285 at 286. []
  37. Ruru “The Right to Water”, above n 59, at 110. []
  38. Waitangi Tribunal The Whanganui River Report (Wai 167, 1999) at 261 []
  39. At 337. []
  40. At 261; See generally: Waikato-Tainui Raupatu Claims (Waikato River) Settlement Act 2010, preamble []
  41. At 261. []
  42. At 280. []
  43. At 33. []
  44. At 345-346. []
  45. See generally: Tom Bennion “Water Issues: Part 1 of 2” (March 2007) Maori L Rev 1; Tom Bennion “Water Issues: Part 2 of 2” (April 2007) Maori L Rev 1; Meredith Gibbs and April Bennett “Maori Claims to Ownership of Freshwater” (August 2007) RMJ 13; Rachel Kennard “The Potential for Maori Customary Claims to Freshwater” (LLB(Hons) Dissertation, University of Otago, 2006);Jacinta Ruru “Maori Legal Rights to Water: Ownership, Management or Just Consultation?” (paper presented to the Annual Resource Management Law Association of New Zealand Conference, 1 October 2010); Jacinta Ruru The Legal Voice of Māori in Freshwater Governance: A Literature Review (Landcare Research, Lincoln, 2009); Jacinta Ruru “Undefined and Unresolved: Exploring Indigenous Rights in Aotearoa New Zealand’s Freshwater Legal Regime” (2010) 20 Journal of Water Law 236;Jacinta Ruru “Property Rights and Maori: A Right to Own a River?” in Klaus Bosselmann and Vernon Tava (ed) Water Rights and Sustainability (vol. 3, New Zealand Centre for Environmental Law Monograph Series, Auckland, 2011) 51; Mark Schroder “On the Crest of a Wave: Indigenous Title and Claims to the Water Resource” (2004) 8 NZJEL 1; Maia Wikaira “Maori Ownership of Freshwater: Legal Paradox or Potential?” (LLB(Hons) Dissertation, University of Otago, 2010). []
  46. Te Runanganui O Te Ika Whenua Inc Society v Attorney-General [1994] 2 NZLR 20 (CA) at 23. []
  47. Waitangi Tribunal Whanganui River, above n 62,at 50. []
  48. Ruru “Undefined and Unresolved”, above n 69, at 242 []
  49. At 337. []
  50. Te Runanganui O Te Ika Whenua Inc Society v Attorney-General [1994] 2 NZLR 20 (CA) at 24. []
  51. Waikato-Tainui Raupatu Claims (Waikato River) Settlement Act 2010, s 64. []
  52. Waikato-Tainui Raupatu Claims (Waikato River) Settlement Act 2010, s 66. []
  53. Ngai Tahu Claims Settlement Act 1998, s 206. []
  54. Ngai Tahu Claims Settlement Act 1998, ss 208-210. []
  55. Ngai Tahu Claims Settlement Act 1998, s 220. []
  56. RMA 1991, s 122. []
  57. RMA 1991, s 2, definition of “water”. []
  58. RMA 1991, s 354; Water and Soil Conservation Act 1967, s 21. []
  59. RMA 1991, s 2, definition of “water”. []
  60. RMA 1991, s 2, definition of “water”. []
  61. RMA 1991, s 13. []
  62. RMA 1991, s 14 []
  63. RMA 1991, s 14(3)(b). []
  64. Star Holdings Limited v Meridian Energy Limited HC Timaru CIV 2003-476-000732, 23 March 2004 []
  65. Aoraki Water Trust v Meridian Energy Limited [2005] 2 NZLR 268 (HC). []
  66. At [15]. []
  67. Laura Fraser “Property Rights in Environmental Management: The Nature of Resource Consents in the Resource Management Act 1991” (2008) 12 NZJEL 145 at 169-175; RMA 1991, s 122. []
  68. Aoraki Water Trust v Meridian Energy Limited [2005] 2 NZLR 268 (HC) at [41]; See also: Re MacKenzie Irrigation Company Ltd HC Wellington CIV-2005-485-2192, 27 June 2006 at [9] []
  69. Fleetwing Farms Ltd v Marlborough District Council [1997] 3 NZLR 257 (CA) at 261. []
  70. Barry Brunette “Freshwater Management and Allocation under the Resource Management Act 1991: Does First-In First-Served Achieve Sustainable Management Principles?” (2006) 10 NZJEL 169 at 213; See also: Ian Williams “The Waitaki River” (2005) NZLJ 177 at 178. []
  71. Andrew Hayward “Freshwater Management: Water Markets and Novel Pricing Regimes” (2006) 10 NZJEL 215; Olivia Nyce “Water Markets under the Resource Management Act 1991: Do They Hold Water? (2008) 14 Cant LR 123 []
  72. Brunette, above n 94, at 212 []
  73. Lower Waitaki River Management Society Incorporated v Canterbury Regional Council EnvC Christchurch C 80/2009, 21 September 2009 []
  74. At [1]. []
  75. Bay of Plenty Regional Council v Fonterra Co-Operative Group Limited [2011] NZEnvC 73. []
  76. Lower Waitaki River Management Society Incorporated v Canterbury Regional Council EnvC Christchurch C 80/2009, 21 September 2009 at [279]. []
  77. At [280]. []
  78. At [414]. []
  79. At [412]. []
  80. At [413] and [419]. []
  81. At [36]. []
  82. At [37]. []
  83. At [421]. []
  84. At [421]. []
  85. At [274]. []
  86. At [433]. []
  87. At [65]. []
  88. At [68]. []
  89. At [409]. []
  90. At [440]. []
  91. At [87]. []
  92. At [87]. []
  93. At [90]. []
  94. At [332]. []
  95. At [333]. []
  96. At [442]. []
  97. At [449]. []
  98. Groome v West Coast Regional Council [2010] NZEnvC 399 at [45]. []
  99. Groome v West Coast Regional Council [2010] NZEnvC 199 at [36]. []
  100. At [44]. []
  101. At [68]. []
  102. At [96]. []
  103. At [98]. []
  104. At [78]. []
  105. At [157]. []
  106. At [183]. []
  107. Mokau Ki Runga Regional Management Committee v Waikato Regional Council EnvC Hamilton A 046/2006, 10 April 2006 at [16] []
  108. Director-General of Conservation (Nelson-Marlborough Conservancy) v Marlborough District Council [2010] NZEnvC 403 at [1]. []
  109. At [434]. []
  110. At [438]. []
  111. At App 2, Condition 20. []
  112. At [539]. []
  113. Mokau Ki Runga Regional Management Committee v Waikato Regional Council EnvC Hamilton A 046/2006, 10 April 2006 at [23]. []
  114. Alexandra District Flood Action Society Incorporated   v Otago Regional Council EnvC Christchurch C 102/2005, 20 July 2005 []
  115. At [5]. []
  116. At [14]. []
  117. At [14]. []
  118. At [184]. []
  119. At [184]. []
  120. Alexandra District Flood Action Society Incorporated v Otago Regional Council (No.2) EnvC Christchurch C 34/2007, 29 March 2007 at [30]. []
  121. Randle v Contact Energy Ltd HC Dunedin CP 44/98, 25 September 2000; Randle v Contact Energy Ltd CA 258/00, 19 November 2001. []
  122. Alexandra District Flood Action Society Incorporated v Otago Regional Council EnvC Christchurch C 102/2005, 20 July 2005 at [75]. []
  123. At [75]. []
  124. Alexandra District Flood Action Society Incorporated v Otago Regional Council(No. 3) EnvC Christchurch C67/2007, 24 May 2007, Exhibit A, Hawea Water Permit to Dam No 2001/283, Condition 10. []
  125. At Condition 11 []
  126. At Condition 10. []
  127. Alexandra District Flood Action Society Incorporated v Otago Regional Council EnvC Christchurch C 102/2005, 20 July 2005 at [85] – [92]. []
  128. For the complexity of jurisdiction as to which regulatory body regulates hydroelectric facilities see: The Exercise of Powers by a Regional Authority and Two Territorial Authorities Regarding Dams at the Deem Stream Hydro Development located at Black Rock Road, Outram, DepBH, Determination 2011/084, 13 September 2011; Whether a Building in Close Proximity to a Dam is an Appurtenant Structure, and which Regulatory Body has Jurisdiction in Respect of a Building Consent to Re-Roof the Building, DepBH, Determination 2009/014, 6 March 2009. []
  129. Alexandra District Flood Action Society Incorporated v Otago Regional Council EnvC Christchurch C 102/2005, 20 July 2005 at [51]. []
  130. At [59]. []
  131. At [66]. []
  132. At [68]. []
  133. At [66]. []
  134. At [73]. []
  135. At [74]. []
  136. Director-General of Conservation (Nelson-Marlborough Conservancy) v Marlborough District Council [2010] NZEnvC 403 at [587]. []
  137. At [564]. []
  138. At [564]. []
  139. At [609]. []
  140. Alexandra District Flood Action Society Incorporated v Otago Regional Council EnvC Christchurch C 102/2005, 20 July 2005 at [273]-[277]; Alexandra District Flood Action Society Incorporated v Otago Regional Council (No. 3) EnvC Christchurch C67/2007, 24 May 2007, Exhibit A, Hawea Water Permit to Dam No. 2001/283, Condition 16; Hawea Discharge Permit to Discharge Permit No. 2001/392, Condition 15; Clyde Water Permit to Dam No. 2001/385, condition 16; Clyde Discharge Permit to Discharge Water No. 2001/393, Condition 12; Roxburgh Water Permit to Dam No. 2001/386, Condition 15; Roxburgh Discharge Permit to Discharge Water No. 2001/394, Condition 14. []
  141. Director-General of Conservation (Nelson-Marlborough Conservancy) v Marlborough District Council [2010] NZEnvC 403 at [604]. []
  142. At [617]. []
  143. At [612]. []
  144. At [617]-[619]. []
  145. Michael Anthony Talley v Minister for the Environment HC Blenheim CP 5/01, 27 February 2002 []
  146. Nolan, above n 49, at 581. []
  147. Michael Anthony Talley v Minister for the Environment HC Blenheim CP 5/01, 27 February 2002 at [17]. []
  148. At [4]. []
  149. At [42]; RMA 1991, s 21. []
  150. RMA 1991, s 216. []
  151. Re Talley EnvC Christchurch C 106/2006, 11 August 2006 at [3]. []
  152. Re Talley EnvC Christchurch C 102/07, 3 August 2007 at [242 []
  153. At [234]. []
  154. At [238]. []
  155. At [243]. []
  156. At  [231]. []
  157. At [243]. []
  158. At [243]. []
  159. At [235]. []
  160. At [236]. []
  161. At [244]. []
  162. Ngati Rangi Trust v Manawatu-Wanganui Regional Council EnvC Auckland A 067/2004, 18 May 2004 []
  163. Martin, above n 25, at 222 []
  164. Ngati Rangi Trust v Manawatu-Wanganui Regional Council EnvC Auckland A 067/2004, 18 May 2004 at [88]. []
  165. At [93]. []
  166. At [86]. []
  167. At [437]. []
  168. At [442]. []
  169. Ngati Rangi Trust v Genesis Power Limited HC Wellington CIV 2004-485-1139, 29 August 2006 []
  170. Ngati Rangi Trust v Manawatu-Wanganui Regional Council EnvC Auckland A 067/2004, 18 May 2004 at [459]. []
  171. Ngati Rangi Trust v Genesis Power Limited HC Wellington CIV 2004-485-1139, 29 August 2006 at [27]. []
  172. At [41]. []
  173. At [41]. []
  174. At [50]. []
  175. At [57]. []
  176. At [71]. []
  177. Ngati Rangi Trust v Genesis Power Limited [2009] NZCA 222 at [64]. []
  178. RMA 1991, s 299. []
  179. RMA 1991, s 123. []
  180. RMA 1991, ss 5, 6(e), 7(a) and 8. []
  181. Ngati Rangi Trust v Genesis Power Limited HC Wellington CIV 2004-485-1139, 29 August 2006  at [86]-[87]. []
  182. Ngati Rangi Trust v Manawatu-Wanganui Regional Council EnvC Auckland A 067/2004, 18 May 2004 at [466]. []
  183. Ngati Rangi Trust v Genesis Power Limited HC Wellington CIV 2004-485-1139, 29 August 2006 at [62]. []
  184. RMA 1991, s 299. []
  185. Ngati Rangi Trust v Genesis Power Limited HC Wellington CIV 2004-485-1139, 29 August 2006 at [40]. []
  186. Ngati Rangi Trust v Manawatu-Wanganui Regional Council EnvC Auckland A 067/2004, 18 May 2004 at [331]. []
  187. RMA 1991, sch 4 cl 1(h). []
  188. High Court Rules 2009, r 5.21; District Court Rules 2009, r 1.6; RMA 1991, s 278; Andrew Green “Pleadings in the Environment Court” (2007) 7 BRMB 49. []
  189. Ngati Rangi Trust v Genesis Power Limited [2009] NZCA 222 at [30]. []