Aotearoa Water Action (AWA) continues to push forward with its campaign to protect our human right to clean, abundant and affordable water, and to exercise community and national sovereignty over our water. In 2022 we have received a judgement from the Court of Appeal in our favour; we've presented to Parliament's Environment Select Committee seeking a moratorium on new consents to bottle water and an inquiry; and, along with many others, we've sought changes to the Water Services Entities Bill. We've also done a bit of "digging" into the lobbying efforts of the infrastructure industry and its impact on reforms.

Legal Update: Belfast Bottling

Five years ago, AWA set out to stop a bottling plant, and on 20 July 2022 we could finally say "we did it". The long-awaited Judgment of the Court of Appeal (CoA) overturned the High Court's Decision and quashed the bottling consents granted by Environment Canterbury to Cloud Ocean Water and Rapaki Natural Resources Limited.

The Court determined that because of the specific drafting of the Land and Water Regional Plan (LWRP), "the Council did not have the ability to grant a resource consent limited to the use of the water for bottling purposes separately to the authorisation to take the water to be used for that purpose". It means that in Canterbury, the taking and the using of groundwater need to be considered and consented together; a separate "use" consent cannot be granted to change the purpose of an existing water take.

So, if the bottlers want to bottle water at the old Kaputone Wool Scour and Silver Fern sites, they will need to seek new consents to take and use water for that purpose. And that's problematic because the catchment is now considered to be overallocated and new takes are prohibited. We say "problematic", rather than impossible because the Court made the following obiter (said in passing) remarks:

"The problem arising from the fact that water in the existing catchment was fully allocated with the result that no further take consent could be granted could be overcome by surrender of the existing take consent. Alternatively, application could be made for a new take and use consent, but on the basis that if it were granted the earlier consent would be surrendered, or the two would simply not be exercised together".

This decision obviously affects Cloud Ocean and Rapaki, but it also impacts all other permit holders and the management of water in the catchment. The changes it requires to current practices around re-purposing water means the judgement may well be the catalyst for a Council-led plan change. In terms of foreign control, the decision will no doubt create some uncertainty for foreign interests wanting to purchase land to gain control of its associated water permits - because, obviously, the uses to which that water can be put are now limited or less certain. It definitely puts a "spanner in the works" for the bottling industry, and not just in Canterbury - other regional councils may be impacted.

Of course, the above is subject to the decision "sticking". Cloud Ocean is the only party to have sought leave to appeal the decision. Submissions on that matter have been made and we're currently awaiting the decision of the Supreme Court. If leave is granted, AWA will seek to address issues not dealt with by the Court of Appeal decision, including the impact of selling water in plastic bottles and the adverse effects on cultural values arising from the water bottling activity.

Otakiri Bottling

AWA has assisted Sustainable Otakiri in its battle against Creswell New Zealand. We have no update at this point - a hearing was held early in 2022 and we are still waiting on the decision of the CoA. As an aside, Creswell's Overseas Investment Office (OIO) consent was set to "expire" early in 2022; we've not checked to see whether its consent conditions have been amended to extend their deadline for obtaining resource consent.

Policy: Petition

In August 2022 AWA presented to Parliament's Environment Select Committee its "Push Pause" petition. The request is "that the House of Representatives implement a moratorium on applications to take or use water for water bottling or bulk export, pending an inquiry (with Māori representation) into the industry's effects, and the ability of legislation and policy to manage those effects". Our submission and the advice (in opposition) from the Ministry for the Environment can be found here:

Relevant to this audience, our submission included recommendations with respect to NZ's free trade agreements, the work of our trade agencies, and the Overseas Investment Act (OIA) including:

• Investigating the limitations our free trade agreements place on our ability to protect our water.
• Developing policy to prevent NZTE (New Zealand Trade and Enterprise) brokering deals between New Zealanders and foreign investors wanting to develop land for water bottling.
• Including water as a new class of sensitive asset under the Overseas Investment Act or alternatively (as Treasury has acknowledged that our free trade agreements currently prevent this), deeming all land having an associated water permit above 100m3 as "sensitive" under the Act unless those permits are surrendered or reduced below 100m3 per day prior to the sale of the land.
• That when considering the benefit to NZ criteria under the OIA, the use of water is considered, and the particular "use" of the water stated in the application to the OIO becomes part of enforceable consent conditions.
• Adding conditions to all OIO consents requiring that investors must declare any water permits granted to the investor after OIO consent is granted, and that all water permits granted to an investor after OIO consent is granted must be adhered to.

We're now waiting for a response from the Environment Committee.

Three Waters Entities Bill Submission

Like thousands of others, AWA submitted in opposition to the Three Waters Entities Bill. The submission includes broad recommendations and requests amendments to specific clauses in the Bill. It can be found on our Website. AWA supported the concept of co-governance and the goal of clean water. However, we made clear our many concerns about the Bill in terms of its impact over time on water sovereignty, access to clean affordable water, the protection of our wai, and the wellbeing of communities.

Of particular concern to us are the somewhat sneaky asset sale provisions in ss 116 and 118; the potential for 35-year joint arrangements with service delivery providers (including foreign providers); corporatisation and the complete removal of local control; the level of debt the Bill enables and the consequential risk of privatisation of water assets; and the lack of provisions preventing the transfer of water permits to private companies.

Transparency: Investigating Industry Influence On Policy Direction

Given the "required" expenditure and debt signalled by the Three Waters Review, AWA is concerned about, and continuing to investigate the influence of, the infrastructure industry lobbies (Infrastructure NZ [INZ] and Water NZ) on Government policy. Because their membership includes huge, international lenders (such as ICBC) and infrastructure companies.

Their lobbying to influence the policy direction of Three Waters Reform has been relentless and likely effective. While it has been done in the name of public health, there has clearly always been an eye on the prize of regionalising local government and creating a consistent infrastructure funding stream free from political, and therefore community, influence.

Infrastructure New Zealand's policies on water reform, resource management reform and local government (structural) reform are available in the "resources" section of its Website. The recommendations in its "Lessons From Scotland" report reads like a list of Labour's recent achievements and policy direction - from the establishment of Infracom to its reform programme.

The report also recommends investigating the partial or complete sale of Watercare to fund growth. Interestingly, the current Chair of INZ also happens to be the Chair of Watercare. On top of that, the number of industry lobby-connected individuals who have been appointed to public policy panels or public entities is too long for this column.

A recent response received under the OIA included an email containing the following request from Water NZ to the Department of Internal Affairs (DIA) on the Three Waters Review:

"You've signalled there will be proposals for formal engagement in early 2018. Will there be opportunities to informally engage with you on your thinking before then? Our reference group (noted below) are very keen to act as a sounding board for you, even if only informally. The individuals have been asking me about next steps".

"While a couple have met with you with their home organisation [council/CCO] 'hats' - they are keen to contribute the collective industry perspective with their Water NZ 'hats' on. We could arrange a session with them where you could bounce around your ideas under a Chatham House rules arrangement if you like? The key motivation being to share ideas early to help shape thinking... rather than rely only on formal channels" *CCO = council-controlled organisation. Ed.

The individuals referred to were (by title): Principal Advisor, Wellington Water; Unit Manager City Development, Hamilton City Council; Head of Three Waters and Waste, Christchurch City Council; someone from Watercare [tbc]; Business Director - Water, CH2M Beca. Department of Internal Affairs staff responded to the above with:

"Thanks for the offer of engaging directly with Water NZ's reference group. That group will be a great resource as we move into the development of options. But at this stage of the project our focus has been on us (central government) getting up to speed and understanding the three waters system - mostly a desk top exercise, with, as you are aware, some light-touch engagement with the sector and key industry groups".

Water Industry Just Wants To "Share Its Thinking"

In addition, the response reveals that in 2017 INZ organised private, industry-sponsored events (over lunch or dinner) for both the Havelock North Inquiry Panel and the Local Government Commission. The former was a Westpac-sponsored luncheon to introduce the Panel to experts in running and regulating alternative models for water services delivery. In our opinion, this steps slightly outside the Panel's Terms of Reference which prevented it prejudicing the outcomes of local government reform. The latter meeting with Sir Wira Gardiner from the Local Government Commission was described by INZ as follows:

"We are interested in receiving an update on the work of the Commission, progress with shared services and collaboration across Councils, and the establishment of CCOs. Infrastructure NZ would like to share it's thinking on the need for first principles review of New Zealand's planning laws and local government structures and funding. This will be a Chatham House rules conversation over dinner."

Two references to the use of the Chatham House Rules in one OIA response and the appearance of multiple "lobbyists" or industry representatives operating in the public policy space has sparked a couple of questions. What are the impacts of lobbying on our sovereignty? And does New Zealand need to grow up and regulate the behaviour of the lobbyists and the policy makers whose ear they have? That's all for this issue. AWA would like to thank CAFCA for the hard and very necessary work it does and for continuing to support our campaigns.

"When a meeting, or part thereof, is held under the Chatham House Rule, participants are free to use the information received, but neither the identity nor the affiliation of the speaker(s), nor that of any other participant, may be revealed". Ed.