The Environment Canterbury (Temporary Commissioners and Improved Water Management) Act 2010 (the
ECAN Act) provides for the replacement of the elected members of the Canterbury Regional Council (
Council) with commissioners appointed by the Government. The ECAN Act has implications for several processes under the RMA, most notably those relating to water conservation orders (
WCO). The ECAN Act confers powers on the Commissioners to make transitional regulations in relation to the application of provisions of the RMA.
Water Conservation Orders
Applications for WCO in Canterbury are to be processed under subpart 3 of Part 3 of the ECAN Act instead of Part 9 of the RMA. The Environment Court no longer has jurisdiction and the Minister instead refers accepted applications to the Council.
In considering whether to recommend a WCO be made the Council, subject to Part 2 of the RMA, is to have particular regard to the following matters:
- The vision and principles of the Canterbury Water Management Strategy;
- Outstanding amenity or intrinsic values that are afforded by waters in their natural state;
- Where waters are no longer in their natural state, the amenity or intrinsic values of those waters that in themselves warrant protection because they are considered outstanding;
- The application and all submissions;
- The needs of primary and secondary industry, and of the community; and
- The relevant provisions of every national policy statement, regional policy statement, regional plan, district plan and any proposed plan.
The Council will prepare a report recommending the WCO application be declined or that it be made on conditions. Certain parties may appeal in respect of the whole or part of a report to the High Court on a point of law only. There are no appeal rights to the Environment Court.
If an application for a WCO is received and the Council has commenced a hearing on or before the resumption day (likely to be in October 2013) but has not completed the process then the provisions of subpart 3 of Part 3 still apply as if they were in force (see Clause 4, Schedule 2 of the Act).
If an application for a WCO is received by the Council but by the day before the resumption day (when the commissioners are replaced by elected councillors which is likely to be in October 2013) the Council has not commenced to hear the application then it must be returned to the Minister. It is then to be heard by a special tribunal in the normal manner under Part 9 of the RMA.
Hurunui Water Conservation Order
On 30 August 2007 the New Zealand Fish and Game Council, the North Canterbury Fish and Game Council and the New Zealand Recreational Canoeing Association made an application for a WCO in respect of the Hurunui River.
Part 2 of Schedule 2 of the ECAN Act outlines the new procedure for hearing the Hurunui WCO application. The Environment Court no longer has jurisdiction. The Minister for the Environment must send a copy of the Hurunui WCO application and all submissions to the Council no later than 20 working days after the commencement day. The Council will then be responsible for processing the application.
The Council must give notice in writing to the applicant and submitters that the applicant may submit a revised application to take into account the matters that must be considered under sections 50 and 57 of the Act. The applicants have 30 working days after the date of the notice to submit a revised application.
On the expiry of that 30 working day period submitters may make a submission on any revised application. The Council must conduct a hearing into the Hurunui WCO application or revised application. The Council will consider the submissions and report on either the revised or original application
Implications for RMA policies and plans
When considering any proposed regional policy statement or plan the Council must have particular regard to the vision and principles of the Canterbury Water Management Strategy in addition to the matters relevant under the RMA. Click here to view the Strategy.
There is no right to appeal to the Environment Court in respect of a decision of the Counciil. There is only a right to appeal questions of law to the High Court.
Moratorium on applications under the RMA
Section 34 of the ECAN Act provides that the Council may, with the prior approval of the Minister, impose a moratorium on specified applications in relation to one or more areas of the Canterbury region. These can be applications for water or discharge permits.
The Council and the Minister must have regard to the vision and principles of the Canterbury Water Management Strategy. The environment is a first order priority consideration and irrigation is a second order priority consideration for the planning of natural water under the Strategy. The Council and the Minister must also consider the extent to which the fresh water of the area is subject to high or increasing demand or to diminishing quality, or is fully allocated, nearing full allocation or over-allocated (Section 34(2)).
The Council must give public notice of a moratorium and specify the area of the Canterbury region to which the moratorium applies, the date on which it commences and the date on which it ends.
If a specified application is made while a moratorium is in force then the Council must not begin to process the application (section 37(2)). If applications have been made before a moratorium comes into force then these must not be continued to be processed or determined any earlier than the end of the period that ends 6 months after the end of the moratorium (section 38(1). However, section 38(2) of the Act provides that the Council must continue to process and determine the application if, before a moratorium comes into force, the Council has decided in respect of the application that a hearing must be held and the hearing has commenced or been completed.
The Commissioners have placed a moratorium on applications relating to the Hurunui River, click here for further details.
Conclusion
The ECAN Act introduces a new regime for the consideration of WCOs in the Canterbury region. The Council will consider accepted applications for water conservation orders and make recommendations to the Minister of the Environment. This is a change from the process under the RMA where Boards of Inquiry consider applications in the first instance and there is a right to make a submission to the Environment Court. The removal of the jurisdiction of the Environment Court means there are no longer any rights to cross-examine witnesses.
The most fundamental change is that the Council's recommendation to the Minister is now subject to Part 2 of the RMA. This is a significant difference from the usual regime where the protection of outstanding amenity or intrinsic values is afforded priority over other considerations. Part 2 includes, amongst other matters, enabling people to provide for their economic wellbeing and having particular regard to the efficient use of resources.
In considering whether to recommend that a WCO be made and any proposed regional policy statement or plan the Council is also to have particular regard to criteria included in the RMA and to thevision and principles of the Canterbury Water Management Strategy. This effectively gives statutory weight to what has previously been a non-statutory process.
The ECAN Act does also introduce the ability for the Council, with the prior approval of the Minister, to impose a moratorium on specified applications in relation to one or more areas of the Canterbury region. These can be applications for water or discharge permits.
