Berry Simons represents EDS in Rakaia River WCO proceedings

Tue March 21st 2023

The declaration proceedings will determine ECan's role in monitoring and requiring compliance with the RWCO.

Kate Storer and Olivia Gunn are representing the Environmental Defence Society in Environment Court declaration proceedings concerning whether the Rakaia River Water Conservation Order is being complied with and who is responsible for monitoring and enforcing it. The RWCO was promulgated in 1988, identifying for protection the outstanding characteristics and features of the Rakaia catchment, including its braided river system, outstanding wildlife habitats, and outstanding fishing and recreation opportunities.

The declaration applications have arisen as a result of concerns regarding the decline of the health of the Rakaia River as the taking of water for out-of-stream uses, particularly as irrigation has increased. In 2020, ECan commissioned an internal report into the health of the river, which indicated that “the flow regime is being impeded and manipulated beyond what was anticipated in the RWCO 1988.” ECan disavowed the report (ostensibly for procedural reasons) but released a redacted draft version with the contentious findings removed.

This concerned EDS and other conservation interests, which resulted in engagement with ECan that ultimately led to the declarations being applied for by ECan as to whether it is required to directly monitor and enforce compliance with the RWCO - ECan’s position is that it has no responsibility to do either. EDS and other parties have sought alternative declarations.

Not only important in its own right, the RWCO has symbolic significance for the conservation movement as representing the successful outcome of a hard-fought battle between conservation and farming interests over the original application.  Indeed, the RWCO was only issued following Court of Appeal proceedings in 1987 which represented a significant victory for conservation - the Court’s decision contained the landmark ruling that, in the context of WCOs, conservation values have precedence and ”compelling reasons” are needed to provide for competing interests. This ruling reflected acceptance of the case put before the Court by EDS represented by (now Sir) David Williams and Simon Berry who, 35 years on, is also involved in the declaration proceedings.

A number of high-profile parties have joined the proceedings, including the Minister for the Environment, Manawa Energy Ltd, Te Rūnanga o Ngāi Tahu, North Canterbury Fish and Game Council, NZ Fish and Game Council, NZ Federation of Freshwater Anglers Inc., NZ Salmon Anglers Association Inc., Dairy Holdings Ltd, Barnhill Chertsey Irrigation, Rakaia Irrigation Ltd and Central Plains Water Ltd.

Partner Kate Storer says:

"We are very pleased to assist EDS with these important proceedings. The scientific and hydrological context is very complex; however, that should not create a context in which literally no-one seems to know whether the outstanding characteristics and features of the river are being sustained. The proceedings will either assign responsibility or identify that there may be a lacuna in the relevant provisions of the RMA."

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