Ecan’s aborted application to the Environment Court
Readers of the New Zealand Federation of Freshwater Anglers website will be aware that the NZFFA sought donations from members in order to participate as an “interested party”, (S.274 of the RMA 1991), in the Canterbury Regional Council’s application to the Environment Court seeking a Declaration that Ecan is not accountable for enforcing the Rakaia River 1988 National Water Conservation Order.
This case has proved to have been something of a shambles caused in no small part by Environment Canterbury abruptly withdrawing its application after advising opposing co-respondents one day before the parties were due to meet following refinement of their respective applications at the direction of the Court.
This has caused the Court to end Ecan’s application and prompted the Environment Defence Society, (EDS), and F&G NZ to make fresh applications to the Environment Court seeking a Declaration that Ecan is accountable for enforcing the Rakaia WCO.
Why Ecan applied for the Declaration
The reason Ecan sought the Declaration in the Environment Court was due to Ecan recognising it has not provided for the outstanding characteristics and features of the Rakaia River identified in the NWCO;
(a) an outstanding natural characteristic in the form of a braided river:
(b) outstanding wildlife habitat above and below the Rakaia River Gorge, outstanding fisheries, and outstanding recreational angling, and jet boating features.
Ecan has only given regard to the minimum monthly flows of the Rakaia River NWCO yet even here Ecan has allowed Manawa Energy and irrigation companies to interpret the WCO and Ecan issued irrigation consents on their own terms.
Ecan has managed to monitor less than 6% of the consents it has issued for the region, and seems unable to manage the various water takes from the Rakaia River.
This was brought out in a detailed report leaked to the media two years ago, authored by an ex Ecan employee, a hydrologist who chose to resign rather than alter his report at the instruction of his managers.
A most troubling situation where refusal to accede to Ecan’s spin control resulted in an employee resigning rather than compromise his integrity.
Two years on, after issuing an incomplete Rakaia River water budget model, and after this Environment Court shambles, Ecan is still struggling to restore its credibility.
Ecan’s explanations (x 3)
1. Ecan Media Release Nov 13, in form of an email: Environment Canterbury resolves questions over its role in Rakaia Conservation Order;
2. A post on the Ecan website 16 Nov 2023: Correcting the record on the Rakaia River
3. NEWSROOM query regarding comments made by the CEO:
Tim Davie Director of Science for Environment for Canterbury
1. “Environment Canterbury has withdrawn its request for the Environment Court to clarify its role and RMA functions in upholding the 1988 Rakaia Water Conservation Order.
In February this year Ecan applied to the Environment Court for declarations that would clarify what the Council’s role is in enforcing the WCO, legislation intended to protect the outstanding natural features of the Rakaia River.
Council took the position that its role was to issue consents and monitor compliance with consent conditions in a way that was consistent with the WCO, but this did not extend to a duty to enforce observance of the WCO itself.
Chief Executive said the declaration was withdrawn on Friday as there is no longer any disagreement that the Council has the powers and functions and duties under the RMA.
“We are glad to have resolved questions about our responsibilities as a regulator”.
2. Last Friday we withdrew our application to the Environment Court to clarify our role in upholding the 1988 Rakaia Water Conservation Order (WCO).
The original declaration, which was filed in February this year, put forward three statements that outlined our understanding of the extent of its role in enforcing the provisions of the WCO, and a statement on our understanding of how the WCO relates to water storage in Lake Coleridge.
Science Director said that all parties involved in Court proceedings came to an agreement that the statements put to the Court were correct, there was no longer anything for the Court to decide.
“Given the agreement, it would be a waste of time and ratepayer money to continue the matter in Court, so we made the decision to withdraw the application”. “The court-facilitated process has confirmed our role, and there was no benefit in continuing with the declaration, so we think the withdrawal should have come as no surprise to the parties involved”
Our role is to monitor consents and ensure consent conditions are complied with.
3. COMMENT FROM STEFANIE RIXECKER:
We withdrew our application because we were satisfied that the questions we asked about our role with the Rakaia WCO had been clarified. Under the circumstances, it would be a poor use of ratepayer money to continue with the court process – we need to be respectful of public funds.
We acknowledge that other organisations had their own matters they wanted resolved and we’re happy to work constructively with them on these.
These organisations can still submit applications seeking a court declaration on any outstanding disagreement, and there is every possibility that we would join in that process.
We can’t comment on the conversations that took place during the conferencing, as this would be a breach of court protocols – it’s confidential information.
We’re not interested in engaging in public disagreement on a complex process concerning an important matter like this. We are always interested in sitting down with stakeholders and working out any disagreements or misunderstandings. Ultimately, our focus is on the health and management of the Rakaia River.
Of note, we believe there has also been a misunderstanding that requires clarification:
While EDS and Fish & Game NZ together, and the NZ Federation of Freshwater Anglers, made separate applications for their own declarations, they used Environment Canterbury’s case number and name on the cover sheets of their applications.
This means that the court combined these applications with our own. We were not aware of this. When we withdrew our application, the other applications were withdrawn as well.
Environement Canterbury’s CEO Stefanie Rixecker
Putting the record straight.
i) There was no ruling was made by the Court
Environment Judge P A Steven, perhaps anticipating Ecan’s spin, in a RECORD OF TELEPHONE CONFERENCE 21 November 2023 wrote;  Obviously, as the Regional Council has now withdrawn its application, the court’s decision-making powers in determining that application cannot be invoked.
[Invoked = cited as an authority in response to an argument.]
ii) There was no agreement between all parties.
There was no agreement achieved in the Environment Court between Ecan and the co-respondents EDS and F&G. (There was some refinement in what matters should be determined by the Court).
Both EDS and F&G have decided to file fresh applications in the Environment Court and NZFFA and NZSAA are still to consider whether to reapply under S.274 to be interested parties, comments about not wanting to waste time and tax payer money appears somewhat premature.
iii) Ecan must have been aware that the Court combined the various applications
The Court documents make it extremely difficult to accept the CEO’s claim that Ecan was not aware of the Court’s attempt to combine the declarations.
iv) It has not been determined who gives effect to WCOs
It still has not been determined who gives effect to WCOs. Both Ecan and the Minister for the Environment are saying “its not me”.
This is the reason why EDS and F&G NZ are making fresh applications to the Environment Court.
v) Manawa Energy’s water storage and use remains unresolved.
Spin Control and Science
As a registered veterinarian for nearly fifty years, I am very conscious that scientific integrity is fundamental to my profession.
My profession is bound by a Code of Professional Conduct backed by the Veterinarian’s Act 2005, (an Act to protect the public interest by regulating Veterinarians), enforced by the Veterinary Council of New Zealand.
This is to stop members of my profession unfairly using our specialized knowledge in our dealings with members of the public. This system works.
I have never been asked by a senior veterinarian to alter a certificate for political purposes or to produce a partial certificate. While acting as the senior veterinarian I have never asked the same of a colleague.
This is why I believe spin control has no place in science based professions.
It is therefore disappointing that Ecan’s Director of Science, a hydrologist by training, should have allowed Ecan managers to pressure a hydrologist employed by Ecan to change a detailed report which the NZFFA has received independent advice that the report was of a high standard.
The NZFFA has found this whole affair to be most unsatisfactory in terms of time and money spent for no return.
Since the Rakaia River Water budget report was leaked, Ecan has spent two years getting nowhere in its attempt to clarify water storage and irrigation takes other than to propose a superficial conceptual model using a mix of real and estimated water use data.
The NZFFA has watched the ongoing degradation of the Rakaia River catchment with dismay and does not accept Environment Canterbury has truly given regard or effect towards preserving the values the Rakaia River NWCO 1988 seeks to preserve. Ecan has not given effect to the WCO itself.
It appears the Council has become so compromised by its focus on irrigation, that it is simply no longer able to enforce the Rakaia River 1988 National Water Conservation Order.
Dr Peter Trolove