Summary
Te Runanga o Ngati Awa (NgatiAwa) and Sustainable Otakiri await a Supreme Court decision on their unsuccessful challenges to consents granted to a Chinese-owned water bottling company for water extraction near Otakiri.
Background
Creswell is a subsidiary company of Nong fu Springs, a Chinese water bottling giant. It was established in 2016 and entered into an agreement to purchase an existing water bottling plant in Otakiri.
In 2018, approval was given to purchase approximately 6 hectares of land at Otakiri Springs, conditional on obtaining all necessary consent. Water permits from the Bay of Plenty Regional Council and land use consents from Whakatane District Council were granted which would enable Creswell to export over one billion litres of drinking water annually.
Initial Challenges
Ngati Awa and a group called Sustainable Otakiri which consisted of residents living near the bottling plant (“Applicants”), sought to challenge the granting of these consents in the Environment Court.
The Environment Court upheld the consents, and the Applicants appealed to the High Court. The key questions on appeal included:
1. whether the “end use” of the bottles could be considered (i.e. export and use of plastic bottles);
2. whether recourse to Part 2 of the Resource Management Act 1991(“RMA”) was required;
3. whether negative effects on te mauri o te wai and the ability of Ngāti Awa to exercise kaitiakitanga (the negative tikanga effects) could be considered; and
4. whether there was an error in determining that the activity was the expansion of an existing activity rather than a new activity.
The High Court dismissed the appeal, echoing the Environment Court's view that broader public concerns about Creswell's operations are a matter for legislative, rather than judicial, resolution.
The Court of Appeal
The Applicants were then granted leave to appeal to the Court of Appeal. Five of the fifteen grounds of appeal sought, were granted. The Court dismissed the appeal, finding in favour of Creswell.
Of significance, the Court of Appeal found that “end use” is a permissible consideration, but the potential effects of plastic bottle disposal were too remote to be relevant in this case. In particular, the disposal would be occurring overseas by third parties and it would be very difficult to quantify the environmental impact.
Part 2 of the RMA outlines the purpose and principles of the RMA, which refer to Māori relationships with water and consideration of the principles of the Treaty of Waitangi. The Court found that these provisions were considered in forming the relevant planning instruments, including the regional policy statements and plans, and therefore the local authorities were not required to directly consider the Part 2 provisions in deciding to grant the consents.
The Court of Appeal disagreed with the lower courts, and did find an error in the classification of the activity (the expansion of the bottling plant) under section 127 of the RMA. In particular, it was not a change to an existing consent, but a new activity requiring a new consent. However, this error did not affect the outcome and therefore the decisions of the local authorities were upheld.
The Supreme Court
The Supreme Court granted leave to the Applicants to appeal the Court of Appeal's decision. Leave was also granted on a question the Court of Appeal had declined leave to consider. This was regarding the High Court's findings on the negative tikanga effects of the proposal.
The Supreme Court reserved its judgment in November 2023 and there have been no further updates.
The decision will be significant in understanding how tikanga Maori is integrated into resource consent processes in New Zealand but this is likely to change in the current government’s RMA reforms.
Production under the granted consents cannot begin until and unless the Supreme Court issues its decision upholding them.
To understand more about this case or similar decisions, please contact Director Brigitte Morten.
