A Great Legal Victory

- Peter Richardson

Aotearoa Water Action

After six years of legal proceedings the Supreme Court has ruled that consents granted by Environment Canterbury to take more than eight billion litres of water annually, from aquifers deep underneath Christchurch, were issued unlawfully. The Supreme Court agreed with the Court of Appeal that the Rules within the Canterbury Land and Water Regional Plan did not permit the "repurposing" of consents to take water for specified industrial uses, into consents to use the same volumes of water for water bottling.

In the context of those Rules, the Court held that new "take and use" consents were required, for which the bottling companies would need to be able to show (amongst other things) that the volume of water proposed to be taken was appropriate for the proposed activity of export water bottling. The decision strikes a blow against the concept that a resource consent to take and use water is akin to a private property right in the resource, and reiterates that it is merely a permit to use the resource for a particular specified purpose.

Aotearoa Water Action (AWA) sees this decision as helping to provide a legal and philosophical framework for a system of water allocation that prioritises community benefits ahead of private economic interests. The nature of the water allocation system we ultimately land on, both at a national level and at local levels, is yet to be known, with Resource Management Act reforms a political football.

But it is important that local communities continue to advocate for the most equitable and beneficial allocation system to be adopted at every level of the planning hierarchy. It is to be expected, however, that there may be a push for a more market-based system, which would ultimately, in AWA's view, lead to the resource being owned or controlled by the privileged few.

Another Water Bottling Court Case

Starting on 22 November, 2023, an appeal by Sustainable Otakiri Inc. and Ngati Awa against the grant of water rights to enable a large water-bottling operation in Whakatane was heard in the Supreme Court. Documents obtained by AWA earlier, revealed that the offshore-owned company behind the proposed bottling operation was introduced to the "opportunity" by the Ministry of Trade and Enterprise.

The Supreme Court in the Sustainable Otakiri case is also expected to rule on whether or not decision-makers are able to (and must) consider the effects of plastic production in considering the environmental effects of an application of this sort. Surprisingly, this is an issue which is not only contentious, but so far legally unresolved.


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