Cultural concerns behind decline of water application

An independent commissioner has declined an application by a Northland company to take extra water from Whangarei’s Poroti Springs, citing an inability to properly monitor its effects on the springs and the impact of that on Maori cultural values.

Zodiac Holdings Limited had asked the Northland Regional Council for permission to take up to 2500 cubic metres of water daily between May and December each year, telling the council it wished to provide “investment certainty for the marketing and distribution of bottled water in South East Asia and China”.

However, in a just-released decision, independent commissioner Rob van Voorthuysen declines the consent, but signals the door may still be open for Zodiac, if it can resolve the three “quite narrow” key matters that led to his decision.

The application centred on Zodiac’s wish to take an extra 1500 cubic metres of water a day, increasing its maximum daily take to 2500 cu m.  It was heard by the Napier-based commissioner on the regional council’s behalf in Whangarei in late August.

In his decision, Mr van Voorthuysen noted that all iwi submitters on Zodiac’s application had raised the issue that the groundwater involved was subject to a Treaty of Waitangi claim.

But he noted it was “well settled law” that the Resource Management Act and Treaty of Waitangi Act 1975 were distinct legal regimes and Treaty claims “are not to impede legitimate RMA processes”.

“In that regard, I find that the matter of a claim to the Waitangi Tribunal is not a relevant consideration in this case.”

Instead, Mr van Voorthuysen’s decision to decline the consent is based on the “absence of a proven to be fit-for-purpose, implementable and enforceable means” of monitoring a suggested minimum flow at a historical flow measuring site known as “Fig Tree”.

The Fig Tree site is owned by local Whatitiri hapu, Te Uriroroi, which refused permission for Zodiac to install a monitoring weir and water level recorder there.

There was also a lack of evidence to show the suggested 40 litres per second continuation flow rate would be adequate to recognise and provide for “the cultural use of, and Maori interests and values in, the water emanating from the Poroti Springs and thereafter in the unnamed tributary of the Waipao Stream…”

Mr van Voorthuysen also took into account the potential adverse effects of the proposed Zodiac abstraction and suggested 40 l/s flow on an existing intake structure owned by another consent holder, “and how any actual such adverse effects might be avoided remedied or mitigated”.

However, he noted that the other matters raised by submitters were either of little determinative weight or could be addressed by existing or amended consent conditions.

“Consequently, in my opinion if the three matters (that led to his rejection of the application) were able to be resolved then any future application might well lead to a more favourable outcome for the applicant”.

Mr van Voorthuysen’s decision can now be appealed to the Environment Court for 15 working days.