Case Brief: Te Runanga o Ngati Awa v Bay of Plenty Regional Council

September 8, 2021

Summary

In 2018 the Bay of Plenty Regional Council and Whakatāne District Council granted Cresswell NZ Ltd consents to take and bottle groundwater from an aquifer near Otakiri. Te Rūnanga o Ngāti Awa (Ngāti Awa), Sustainable Otakiri and several other parties sought to appeal these decisions in the Environment Court. Following an unsuccessful appeal, the High Court upheld the Environment Court’s decision to allow the granting of consents to Creswell NZ Ltd.

Background

Creswell NZ Ltd is a subsidiary company of Nong fu Springs, a Chinese water bottling giant. In 2016, Creswell entered an agreement to purchase an existing water bottling plant in Otakiri. The company intended to expand operations and significantly increase production, with much of the water being sold to China.

In 2018, the company was given approval to purchase a spring in the Bay of Plenty in order to export over one billion litres of drinking water each year. Creswell was also granted water permits from the Bay of Plenty Regional Council and consents from Whakatane District Council for expansion of the existing bottling plant. These decisions were made jointly by a panel of two independent commissioners.

Te Rūnangao Ngāti Awa is the iwi authority for Ngāti Awa, a collection of 22 hapū representatives. Ngāti Awa was supported in its appeal by other groups, including the Ngāti Pikiao Environmental Society and Te Rūnanga o Ngāi Te Rangi Iwi Trust. Sustainable Otakiri Incorporated is a group consisting of residents living near the Otakiri Springs bottling plant and was established following the decision to grant consents.

The groups were unsuccessful in their first appeal to the Environment Court under the Resource Management Act (RMA). Following this, the groups appealed to the High Court.

The Case

A key concern of the appellants was that the water was to be exported overseas in large quantities. Ngāti Awa argued this would have negative cultural impacts on the mauri and mana of the water. The High Court supported the Environment Court’s finding the cultural effects of export as the water’s end use were beyond the scope of the decision. No evidence had convinced the Environment Court that there were any metaphysical effects specific to the aquifer being used. If the taking of the water was sustainable, it was decided that its subsequent exportation should also be.

The High Court acknowledged water is a taonga, and Otakiri is an area of particular significance to Ngāti Awa. Despite this, the High Court agreed with the Environment Court that the drawing of water would “not unreasonably prevent the exercise of kaitiakitanga by Ngāti Awa.”

In addition to this, Sustainable Otakiri argued the environmental effects of the plastic bottles had not been adequately considered. Planned expansions to the bottling plant would allow Creswell to produce up to 144,000 bottles per hour. The majority in the Environment Court established that while the plastic bottles had some foreseeable impact, refusal of consent would have no effect on the wider industry. Legislative intervention would be required, as the Environment Court could not “effectively prohibit ether using plastic bottles or exporting bottled water.”

The Environment Court determined this end use of exporting bottled water went beyond the scope of consideration for an application for consent to draw from the aquifer. The High Court agreed the environmental impacts of discarded plastic bottles were too remote to warrant further consideration.

The appellants also attempted to argue Creswell’s proposal was a non-complying industrial activity under the Whakatāne District Plan. The High Court disagreed, and held the Environment Court had correctly determined Cresswell’s activity status as a discretionary “rural processing activity.” The Environment Court had correctly classified the respondent’s proposal as an extension of an existing use of the land, and therefore a discretionary activity under the RMA. This meant the planned expansions were not available for consideration as a non-complying activity.

Result

The High Court found none of the grounds were met and the appeal was dismissed. The courts have indicated that while there are public concerns raised by Creswell’s planned operations, it is a matter for Parliament to resolve.

As of 29 July 2021,Ngāti Awa and Sustainable Otakiri have been granted leave to appeal the High Court decision in the Court of Appeal. Of the fifteen grounds of appeal sought, five have been granted. These are whether the:

- environmental effects of plastic bottles were within the scope of consideration;

- Environmental Court should have sought further evidence of environmental effects,

- sustainability assessment under the RMA was sufficient to address relevant cultural effects;

- activity should be considered as a discretionary “rural processing activity” rather than anon-complying industrial activity; and

- use of the land was an extension of its current use, and not appropriate for further consideration.

This appeal will provide another opportunity to examine the extent to which councils must consider relevant environmental and cultural factors when granting consents.

To understand more about this case or similar decisions, please contact Director Brigitte Morten.

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