High Court Dismisses Water Bottling Appeals
Topics covered in this article: RMA, RMA & Local Government, Sustainability & Climate Change
Case Summary: Te Rūnanga o Ngāti Awa v Bay of Plenty Regional Council
On 17 December, the High Court (Justice Gault) issued its decision in Te Rūnanga o Ngāti Awa v Bay of Plenty Regional Council dismissing appeals from an Environment Court decision granting consent to the expansion of an existing water bottling operation near Otakiri in the eastern Bay of Plenty.
This case has attracted much attention given the business will be owned and operated by Creswell NZ, a wholly owned subsidiary of Chinese water bottling company Nongfu Springs. This has given rise to sensitivities around foreign companies controlling and exporting NZ water resources, and rising concerns around plastic waste.
We acted for Bay of Plenty Regional Council in these proceedings, which raises some important legal issues. We provide a summary of these below.
Creswell entered into an agreement to purchase land and an existing water bottling operation at Otakiri, with plans to expand operations which involved building a new purpose-built plant to significantly increase water bottling production capacity. To this end Creswell applied for and was granted, by a joint Independent Hearing Committee:
(a) Water permits from Bay of Plenty Regional Council to take ground water from the Otakiri aquifer for the water bottling operation (along with various other consents which were not at issue); and
(b) Land use consents from Whakatane District Council to allow for the expansion of the existing bottling plant.
The Commissioners’ decision was appealed to the Environment Court by various parties including local iwi Te Rūnanga o Ngāti Awa, and a group of local residents - incorporated as Sustainable Otakiri Inc. Ngāti Pikiao Environmental Society and Te Rūnanga o Ngāi Te Rangi Iwi Trust supported Ngāti Awa’s appeal.
The Environment Court issued a combined interim decision dealing with all appeals. The Court granted all consents to Creswell subject to conditions. That decision was appealed to the High Court by Ngāti Awa (in respect of the regional consents) and by Sustainable Otakiri (in respect of the district consents). Appeals to the High Court under the RMA are limited to questions of law. Ngāti Pikiao and Ngāi Te Rangi joined Ngāti Awa in support, and Sustainable Otakiri and Ngāti Awa applied to join each other’s appeals.
Jurisdictional issue: Standing
The first issue for the Court was whether Sustainable Otakiri and Ngāti Awa had what is known as “standing” to become a party to each other’s appeal.
The High Court agreed with the Regional Council’s position that just because the two appeals were heard together (sequentially) in the Environment Court, with some flexibility as to process, it did not follow that the parties to one appeal were “heard” in the other proceedings. In this case, the proceedings were not consolidated and therefore remained separate. This meant that neither party had standing to become a party to the other’s appeal in the High Court.
Considering the End Use of Water
Another key jurisdictional issue before the High Court was whether the Environment Court was wrong in deciding it did not have jurisdiction to consider the “end use” of the water take, ie the fact that the water would was to be exported overseas. The Environment Court had observed:
…while there is public debate about export of water from New Zealand, there is no legal basis on which we might restrict that activity…
When focussing on the key effects raised by Ngāti Awa, which were cultural and related to the “mauri” or life force of the water, the High Court found that the cultural effects of the export of water from the Otakiri aquifer occurred in New Zealand. On that basis the effects were not too remote or disconnected from the activity to be discounted. The High Court limited its findings to the facts of this case, noting that in each case the test of remoteness will be one of fact and degree.
Despite its finding on remoteness in this case, the High Court considered that the Environment Court’s conclusion that “exporting bottled water is beyond the scope of consideration in an application for resource consent to take water” went too far.
Nevertheless, the High Court agreed with the Regional Council that this conclusion did not matter, because the Environment Court did in fact consider the cultural effects of export of the water. Therefore, there was no material error of law on this issue.
The adverse effects of discarding plastic water bottles was a key concern of Sustainable Otakiri and the wider community. However, the High Court found that the effects of water bottles discarded overseas were too remote and outside the scope of the RMA.
For plastic water bottles discarded in NZ, the High Court found that such adverse effects may potentially be taken into account, but subject to questions of fact and degree.
In this case, the High Court found that the adverse effects of consumers discarding plastic bottles were too indirect or remote to require further consideration.
Planning and Part 2
The High Court found that the relevant regional planning instruments fully provided for assessment of tangata whenua vales and tikanga (custom), therefore there was no need for the Environment Court to have recourse to Part 2 of the RMA which relates to the wider purpose and principles of the Act.
In making its findings in relation to Part 2, the High Court did not accept that High Court authority relating to Part 2 of the Act in the context of consent applications (the RJ Davidson case) was distinguishable simply because it did not concern section 8 of the RMA relating to the principles of the Treaty of Waitangi, or that the Supreme Court’s decision in the King Salmon case requires every resource consent decision maker to consider section 8. The Court observed that the principles of the Treaty can be expressly incorporated into the operative planning framework. The High Court noted with approval the RJ Davidson test, which is whether the provisions of the plan have been prepared in a manner that appropriately reflect the provisions of Part 2 of the RMA.
Challenges the to the District Consents
The High Court also dismissed the challenges to the district consents agreeing that the water extraction in question had a functional need for a rural location, was a primary productive use, and fit within the definition of a rural processing activity. It also held that the application was appropriately processed as a variation to an existing land use consent rather than as a new activity.
The outcome of this case represents a fair application of current resource management law to a specific application by Creswell. However, it is fair to say that the public attention and concern surrounding the case reflects real concerns about foreign control and export of water, and the continuing place of single use plastics in our society. We suggest that such issues will need to be considered and resolved by Parliament.
If you have any questions about this case or the issues it raises, do not hesitate to contact a member of our resource management and local government team.
Last Updated: 23 Dec 2020