NORTHLAND REGIONAL COUNCIL SUPPLEMENTARY STAFF REPORT 26-03-2018

APPLICATION NO.: REQ-581172

REPORT BY: Brydon Hughes – Consultant Hydrogeologist

Catherine Reaburn – Consultant Planner

1. SUMMARY

1. We have reviewed the evidence pre-circulated by Martell Letica and Jon Williamson on behalf of the applicants. The commissioners have asked us to provide a preliminary response on the changes requested to the conditions recommended in the s42a report.

2. In summary, our preliminary position is as follows:

- Scope: Increases to daily and annual water allocation limits are not supported where the character, intensity and scale of the activity, and potentially of the consequential environmental effects, is greater than set out in the individual applications. This is as there are issues as to scope, and the principle of participation of potentially affected parties in the consenting process.

- Daily limits: We continue to support daily limits, rather than weekly limits. The recommended daily limits are consistent with those sought in the applications, and form the basis for the modelling and assessment of effects as notified. Enabling a higher rate of take would potentially result in additional localised effects beyond the scope of the applications as notified. We consider the daily limits to be conservative and able to provide for demand through most climate conditions. Applicants have the option of onsite storage to allow for relatively rare extreme drought events.

- Changes to water allocation limits: The following changes are supported as they are within the scope of the original applications; will provide for reasonable and efficient use; and will not exceed the subzone allocation limits of the proposed regional plan:

o Mapua Avocadoes Ltd (APP.038610.01.01): Increase in planted canopy area to from 160.0ha to 163.2ha as a result of property acquisition; and a consequential increase in total annual water allocation volume to 627,000m³ (compared with 624,000m³ total recommended in the s42a report, and 745,000m³ sought).

o Shine (APP.038328.01.01): Add additional property to consent (if approved). No change to overall planting area or water allocation limits.

o Candycorn Ltd – APP.039332.01.01: Increase in planted canopy area from 20ha to 21.5ha. No change to water allocation limits.

o Valadares - APP.038732.01.01: Clarify legal description in consent documentation (if approved). No change to water allocation limits.

o Honeytree Farms Ltd - APP.038471.01.01: Increase in planted canopy area from 70ha to 74ha; consequential increase in total annual water allocation volume to 285,000m³ (compared with 200,000m³ recommended in the s42a report, and 373,000m³ sought), and a daily limit of 3,000m³ (compared with 2,200m³ recommended in the s42a report, and 3,500m³ sought).

Attachment 2 to this supplementary statement provides a summary of the requested and recommended allocation limits.

- Water meters (conditions 3 and 6): We recommend no change to the requirement for all water takes to be metered (proposed condition 3). Accurate, quality records of water abstraction rates and volumes are important to assess and review efficient allocation and use of the groundwater resource, and to assist in interpretation of monitoring results including the effect of individual takes on identified environmental effects. We consider the requirement for telemetry (proposed condition 6) is not essential, provided electronic data is regularly provided to Northland Regional Council in accordance with the recommended conditions and schedule. The benefits of telemetry in this case may not justify the additional cost. Therefore, we recommend amending condition 6 to require datalogger recording for takes >10 L/s, rather than requiring telemetry. Consent holders may wish to install telemetric meters to satisfy the requirement to provide electronic data to NRC.

- Monitoring plan approval/review (condition 17): No change is recommended to this condition. It is essential NRC has the opportunity to request changes / withhold approval of the monitoring plan, to ensure it meets the requirements of the resource consent and the overall adaptive management approach taken to address residual uncertainty of environmental effects.

- Effects on existing water users (condition 18 and Schedule 1): We recommend deletion of this condition. The consents are restricted in terms of scope to the environmental effects assessed in the application. The anticipated drawdown, even in the most conservative scenario, would not affect any efficient water takes (either permitted or consented). This condition is therefore redundant. Effects on existing water takes which are greater than anticipated in the application will be managed through the Groundwater Management Contingency Plan, associated monitoring and contingency measures, and through the review condition where necessary. We recommend retention of the complaints procedure in Schedule 1 to provide clarity and transparency for consent holders, NRC and potentially affected water users as to the complaints procedures.

- Community liaison group: No changes are recommended to this condition at this stage. We wish to hear from all submitters before reaching a final view on the appropriateness of this condition.

- Water quality monitoring: We do not support deletion of the water quality monitoring requirements for pesticides in Section 5 of Schedule 1. In this case, applying a permitted baseline is not considered appropriate as the scale of horticultural activity is directly related to

the take and use of water. As a discretionary activity, all potential effects of the activity should be assessed.

- Cost of monitoring: No changes are recommended in response to concerns raised around the cost of monitoring. The proposed monitoring is considered appropriate to mitigate potential effects of the water takes. Resource consent conditions cannot impose requirements on third parties, including funding obligations. It is essential that NRC hold the monitoring data to meet its responsibilities under the RMA.

- Advice notes: We do not recommend inclusion of the additional advice notes sought by the applicants. Proposed advice notes II and III are considered unnecessary. Advice note I has legal issues, as transfer of water permits to different sites requires approval under s136 of the Resource Management Act 1991 (RMA). Further, enabling additional sites to be added to a consent raises potential issues regarding efficiency of allocation and use. Similarly, we do not support the suggested Annexure 1 which seeks to enable updates to the legal descriptions of each consent. Each water take consent, if approved, will be tied to the use and location. Changes would require additional approval from NRC.

3. We have attached tracked changes to the s42a recommended conditions in Attachment 1 to this statement. We have also provided a comparison of the recommended, requested and revised water allocation limits for each applicant in Attachment 2.

4. Further analysis is provided as follows.

2. CHANGES TO WATER ALLOCATION LIMITS AND LEGAL DESCRIPTIONS FOR APPLICANTS

2.1 Scope 5. In our view, increases to water take volumes beyond those sought in individual applications is

outside the scope of the respective application. Scope relates to the “character, intensity and scale” of the activity sought in the application, and of the associated effects on the environment. It is important that the final decision does not grant consent for an activity greater in scope than that requested in the resource consent application. Although the applications were notified and are being assessed on a comprehensive basis, each application still stands alone, and legal scope is to be determined accordingly.

6. In addition to issues of scope of the activity sought, we note that increased take rates for individual consents may increase localised effects, including drawdown effects. It is therefore incorrect to conclude that as the overall water allocation sought is less than notified, that there are no issues of scope. Localised drawdown effects in some locations may be greater than included in the notified assessments should the water extraction limits increase for specific applications. Potentially adversely affected parties who did not submit based on the modelling results as notified may have submitted were the individual application volumes, and therefore potential localised drawdown effects, would be greater than set out in the notified documents.

7. For the same reason, we consider that daily limits rather than weekly limits are appropriate. Daily extraction rates exceeding those sought in the applications would result in higher drawdown than anticipated by the model. As stated in Mr Williamson’s evidence, the model was based on the peak daily rates as applied for, abstracted over a 12-hour period. Daily volumes proposed in the applications range between 21 and 36 m³/ha/day. No changes to the daily volumes sought were recommended in the s42a report.

8. For reasons of scope, we consider that increased daily or annual volumes beyond what was sought

in each application should not be approved.

2.2 Water demand and efficiency of use

9. Although no changes to the daily volumes sought in the applications were recommended in the s42a report, we did recommend reductions in annual volumes for some applicants. This was to ensure efficient allocation of the water resource in accordance with the relevant policy framework. The basis of the annual volume reductions was a review of local actual water use for avocado farm irrigation in the Aupouri Peninsula undertaken by Northland Regional Council, and estimate crop water requirements calculated using the Council’s SPASMO tool (provided as Attachment 1 to the s42 report). In summary: • The Council undertook an assessment to ensure the proposed takes satisfy criteria for

reasonable and efficient use.

• The assessment compared volumes applied for in terms of: a. Historical water use on 5 established avocado orchards on the Aupouri Peninsula b. Estimated crop water requirements calculated using the Councils SPASMO tool

• Both approaches have acknowledged limitations: a. Historical use records can have variable data quality and not all properties are located on

equivalent soil types b. The version of SPASMO used was an early (relatively basic) version due to errors identified

in an updated version

• NRC typically determines annual irrigation volumes on the basis of water required to meet crop water demand in 9 out of 10 years (90% reliability) with an allowance of 20% for irrigation efficiency and variations in rooting depth and drought tolerance

• A range of potential water use requirements were calculated based on the average of the five farms studied; comparison of volumes sought with water use records was undertaken between sites with comparable soil types (based on NRC fundamental soils layer); and the output of the SPASMO tool.

• Water use records indicate annual usage of between 1,260 and 3,480 m3/ha on average, and maximum usage of between 2570 and 4830 m3/ha in the driest year on record (either 2009-10 or 2012-13)

• For a majority of applications the proposed annual volumes were accepted

• A reduction in annual volume was recommended for three applications (APP.038610.01.01 -

Mapua Avocados Limited, APP.038589.01.01 - Neil & Alma Violet Thompson and Steven & Josephine Suzanne Thompson and APP.039345.01.01 - Ongare Trust). The highest potential water demand from the range calculated for each application was adopted in these cases. Where applicants requested reductions in the annual allocation limits from their original applications prior to the s42a report being completed, these were also adopted.

• Seasonal volumes on the three applications where reductions in annual volume were recommended were originally close to, or slightly higher than 5,000 m3/ha/year. The recommended volumes for these applications were between 390 and 440 mm/year.

• Seasonal volumes for the remaining applications (as requested) range between 2,900 m3/year and 4,600 m3/year.

• Water use records indicate appreciable differences in daily application rates, most likely associated with differing irrigation scheduling and management, as well as differences in soil type and climate. Water use records indicated peak water demand in excess of the 25 m3/ha ‘rule of thumb’.

• Daily volumes proposed range between 21 and 36 m3/ha/day. No changes to daily volumes sought were recommended.

10. Based on this analysis, consider that the water allocations recommended in our report provide for likely irrigation requirements, based on the soil type and localised climate variability, and also allow for an additional 20% allocation to provide for greater climate variability or site specific characteristics.

11. In response to Mr Williamson’s evidence that the water use requirements are up to 50m³/ha/day (para 167), Northland Regional Council has advised that based on the water use records analysed, there were no instances of daily water use exceeding 50m³/ha/day, including during a region wide drought anticipated to be a 1 in 20 year event in Awanui (2009-10). The highest water use in one day over the 10 year records was identified as being 36m³/ha1. The Irrigation NZ reasonable use database referred to in Mr Williamson’s report appears to derive estimates significantly higher than the data obtained from orchards in the area, or with SPASMO 1.2. The estimates provided by Northland Regional Council in Appendix 1 of the s42a report are therefore considered by the reporting officers to be more directly relevant in this context.

12. We also consider that the daily limits should not be set based on relatively rare extreme drought occurrences. Setting daily limits based on these events would not result in an efficient allocation of the resource. The applicants have the ability to store water onsite to cover the unlikely event

1 We have been advised by NRC that one site south of the area of these applications approached 45-47 m3/ha/d on two occasions (in subsequent seasons) of the 10-year record, however both look like errors/faults within the irrigation system (yet to be confirmed). All other sites had highest daily water use on any single day of their respective 10 year records of no higher than 36 m3/ha/d.

that daily water use exceeds the limits sought in the application, assessed in the model, and included in our recommendations.

13. In our view, based on the evidence available, the recommended allocation limits for each applicant err on the side of likely overallocation (i.e. greater allocation being provided than needed for the intended use), rather than underallocation. This provides sufficient certainty of supply to applicants to enable investment in crops and their business. Review conditions enable the allocation to be reduced if water use records demonstrate that the water is not needed. The proposed allocation limits therefore provide an appropriate balance between providing sufficient water for avocado irrigation, without resulting in inefficient allocation of the water resource.

2.3 Comments on individual applications

Mapua Avocadoes Ltd - APP.038610.01.01

14. For the reasons of both scope and water use efficiency, as discussed above, we generally do not recommend any changes to the daily or annual water extraction volumes proposed in the s42a report. The exception is for Mapua Avocadoes Ltd, which in evidence seeks a higher volume than we recommended, but consistent with their original application (i.e. 745,000m³). Mapua have added an additional property, to bring the total property area to 204ha. Planted canopy area is therefore estimated to be 163.2ha (at 80% of total property area). Allowing for efficient use, as set out in the s42a report, an annual water allocation limit of 627,000m³ is supportable in principle (compared with 624,000m³ total recommended in the s42a report, and 745,000m³ sought in the original application). The applicant should clarify which aquifer sub-zone (i.e. Houhora or Motutangi) the additional allocation will be extracted from.

Shine - APP.038328.01.01

15. Ms Martell’s evidence states that the Shine’s have obtained part of the neighbouring property, and increased their land area by 2.5ha. On this basis, an increased volume is sought. For the reasons set out above, we do not support increased water allocation limits compared with those in the s42a report.

16. The planted canopy area is not stated. Allowing for a generous canopy area of 80% of the total area, the planted area of the total 12.5ha property would be 10ha (consistent with the area originally applied for, and assessed in our report). The recommended allocation limits are therefore considered sufficient to allow for crops within the additional property acquired.

17. Adding the additional property to the consent, if approved, would not affect the scope of the activity or effects, and sufficient water would be allocated for the intended activity. In this case, we therefore agree to the addition of Lot 3 DP 22761 to this consent, if approved.

Valadares - APP.038732.01.01

18. Additional land has been acquired by this applicant, which forms the basis for seeking higher water allocation limits. However, for the reasons discussed above, increased water allocation

limits are not supported. Legal descriptions of 5 parcels of land were provided in the application. The legal description provided in Ms Letica’s evidence clarifies which of these parcels the water take and use is for. We therefore recommend including this legal description in the consent documentation, if approved.

Candycorn Ltd – APP.039332.01.01

19. This applicant requests an increased planting area from 20ha to 21.5ha. No change to the water allocation limit is sought. This would result in an application depth of 372mm compared with 400mm in the s42a report. This is considered appropriate, therefore we do not oppose this amendment.

Honeytree Farms Ltd - APP.038471.01.01

20. This applicant is seeking an increase in the planted area and water allocation limits compared with the s42a report. An annual limit of 373,000m³ is sought (compared with 200,000m³), together with a daily limit of 3,500m³.

21. As set out in paragraph 6 of the s42a report, the NRC received an email in late February 2018 reducing the amount sought by this applicant, to allow for an irrigation area of 70ha (compared with 110ha as originally sought). They also revised their water allocation limit to 200,000m³. This formed the basis of our assessment. However, the area and volume included in the notified documents were as per the original application. There is therefore no issue as to scope in relation to their request to increase the water allocation limits to allow for a total planted area of 74ha (80% of the total property area of 93ha). Based on our recommendations for efficient use, and a canopy area of 74ha, we recommend an annual allocation limit of 285,000m³ and a daily limit of 3,000m³.

3. WATER METER CONDITIONS

22. Ms Letica seeks modification of recommended condition 3 to reflect the Resource Management (Measurement and Reporting of Water Takes) Regulations 2010, which only require metering for takes of 5 L/s or more. The applicants also seek deletion of recommended condition 6 regarding telemetering for takes greater than 10 L/s.

23. The regulations provide a minimum requirement that must apply to all water takes throughout New Zealand. As the applications are discretionary activities, additional metering requirements may be imposed where reasonably necessary to meet the policy framework and/or to mitigate actual or potential effects of the abstraction. Regulation 12(2) allows for a regional rule or a condition of a water permit to be more stringent and to prevail over the regulations. There is nothing in the regulations that prevent more stringent water metering requirements being imposed on water permits.

24. Rule 25.3.1 (which seeks to achieve Policy 10.5.1) of the Regional Water and Soil Plan, under which these applicants are sought, states that:

Any resource consent granted in accordance with this rule will include a requirement to install a water meter with an accuracy of ±5% to measure the instantaneous rate and quantity of water taken from the aquifer, where: (a) The daily volume to be taken is 200 cubic metres or greater, or (b) The volume taken is likely to adversely affect an associated surface water resource, or (c) The average annual recharge of the aquifer is more than 50% allocated.

25. Most applications trigger clause (a). Should all applications be granted, all applications will trigger (c).

26. In addition, policy D.4.23 of the proposed regional plan sets out the water permits must including conditions that require that:

- the water take is metered and information on rates and total volume of the take is provided electronically to the regional council, and

- for water permits for takes equal to or greater than 10 litres per second, require the water meter to be telemetered to the regional council.

27. There is therefore a statutory planning basis for requiring metering of all water takes sought in these applications. Further, accurate records of water extraction rates and volumes are important in managing the sustainability of the aquifer. Although takes less than 5 litres per second are no substantial on their own, they contribute to the overall cumulative effect on the aquifer. This information will also assist in interpreting monitoring results, by providing accurate information about the location and extent of water takes which may be contributing to adverse environmental effects. Accurate information on water extraction rates and volumes will also assist Council’s review in ensuring efficient use and allocation of the groundwater resource.

28. As this is a proposed policy only, and there may be issues with cell phone coverage affecting telemetry of data, we consider that telemetry is not an essential requirement for these consents. Northland Regional Council has further confirmed that telemetry isn’t necessary, however, accurate, electronic datalogging of water abstraction data is, for those consents with rates >10 L/s.

29. On the basis of the above, we recommend retaining condition 3. Condition 6 may be amended to require electronic datalogging only, rather than telemetry.

4. EFFECTS ON EXISTING WATER USERS

30. Ms Letica requests a change to recommended condition 18 as follows:

The exercise of this consent shall not prevent any other person who has consent to take groundwater, which was issued prior to 26 October 2017, from fully exercising that consent lower the groundwater table below existing efficient bore takes whether a consented or permitted activity”.

31. The intention of recommending this condition was to clarify that the existing water rights of efficient bore users should not be affected by the exercise of any of the approved consents. As discussed in the s42a report, efficient takes are those where a bore extends the full depth of either the shallow sand aquifer or deeper shell bed aquifer. However, in this case, the modelled

drawdown is significantly less than would be required to affect existing efficient water takes. The Ground Management and Contingency Plan (GMCP), associated monitoring, and review condition 23 is intended to ensure that environmental effects are no greater than those assessed in the application. This condition therefore becomes redundant, as it would only apply where effects were significantly greater than the consents are otherwise limited to.

32. We therefore recommend condition 18 is deleted.

5. COMMUNITY LIAISON GROUP

33. The applicants seek deletion of conditions 20 and 21 regarding the community liaison group formation and annual meeting. We clarify that the conditions do not require the attendance or participation of any parties, only that they are invited to participate. We have yet to hear from the submitters in relation to the appropriateness of this recommended condition and therefore wish to reserve comment until the conclusion of the hearing.

34. We note that community liaison group conditions were imposed on the resource consents approved by independent commissions for two other substantial groundwater take applications from the Aupouri Aquifer, being:

- Landcorp Farming Limited and Te Runanga O Te Rawara (consent 20082099501) – Sweetwater Station, Kaitaia. An annual groundwater allocation limit of 2,317,000m² for dairy farm irrigation was approved.

- Far North District Council (consent 20102568301) – An annual groundwater allocation limit of 1,460,000m³ for Kaitaia town water supply.

35. We have a copy of these decisions and can provide them to the commissioners if requested.

36. As a consequential change, modifications to condition 22 are sought by the applicants to require the annual monitoring report to be circulated to iwi groups and DoC (i.e. this would replace the requirement for a community liaison group). Should the commissioners decide to delete conditions 20 and 21, we agree this would be an appropriate change. However, as noted above, we wish to reserve our position until we have heard from all submitters.

6. MONITORING PLAN CONDITIONS

6.1 Monitoring plan approval

37. Ms Letica requests a change to recommended condition 17 as follows:

The GCMP shall be prepared by a suitably qualified and experienced person and submitted to the Council’s Compliance Manager for written approval review”.

38. We do not support this change. The GCMP is essential in mitigating the risk of unanticipated environmental effects, and in achieving the adaptive management approach set out in our assessment and recommendations. It is therefore important that the NRC ensures that the

GCMP meets the requirements of the resource consent conditions. An approval process is therefore appropriate.

6.2 Complaint procedures

39. The applicants seek deletion of section 6 of Schedule 1 which sets out the process on assessing complaints from other water users. The GMCP is intended to be a management document agreed between the consent holder and Northland Regional Council regarding monitoring and mitigation or potential unanticipated environmental effects. We therefore consider it is appropriate for a process to be agreed and set out in the GMCP. This will provide clarity and transparency for all parties, including NRC, the consent holders, and the complainant(s).

6.3 Water quality monitoring

40. Ms Letica’s evidence seeks deletion of the requirement under Section 5 of Schedule 1 for annual sampling of any pesticides identified in the GCMP which exhibit characteristics which increase the potential to leach to groundwater. The request is on the basis that pesticide use is a permitted activity and therefore outside the scope of the current consents.

41. We disagree with the deletion of this requirement. The Council has discretion whether to apply a permitted baseline when assessing a proposed under s104. IN this case, we consider that it is inappropriate to apply the permitted baseline for pesticide use. This is as the extent of pesticide use associated with the avocado farms would not take place without the water takes. As a discretionary activity, any effects associated with the take and use of the water, including consequential pesticide use and potential leaching into the aquifer, are relevant effects. We note that after five years, the schedule provides for reviewing the benefit of ongoing water quality monitoring. Provided there are no unanticipated adverse effects on the quality of the aquifer attributed to the exercise of these consent, the frequency and/or need for ongoing water quality monitoring may be revisited at that time.

6.4 Cost of monitoring and data ownership

42. Ms Letica raises concern in her evidence about the burden of cost of monitoring the groundwater resource on the applicants, and suggest alternatives to the approach taken in the s42a report (refer para 11.10).

43. In our view, the proposed approach in the s42a is appropriate for the following reasons:

- The proposed monitoring schedule are considered reasonably necessary to mitigate potential effects of the groundwater takes, including cumulative effects, and effects of low probability which have a high potential impact (e.g. saline intrusion). In paragraph 11.8, Ms Letica does not dispute the monitoring proposed in the recommendation.

- S108(3) and (4) enable a consent authority to include as a condition of a resource consent a requirement that the holder of a resource consent supply to the consent authority information relating to the exercise of the resource consent. In our view, the proposed monitoring conditions are all related to the exercise of the resource consents. They would not otherwise be required.

- The resource consent conditions cannot impose obligations on third parties. The conditions must be able to be fully met by the consent holder(s). We therefore cannot include requirements for other parties to contribute to the costs of the GMCP.

- The consent conditions do not preclude alternative funding mechanisms being agreed. The conditions themselves do not specify how the monitoring must be funded, only that it must be undertaken if the consent is exercised. It is noted that S108(4)(g) enables the Council to require the information to be provide at the holder of the resource consent’s expense. We have not included this requirement in the recommended conditions. It is anticipated that additional water take consents in the area, should they be approved, would also be subject to monitoring due to their contribution to the cumulative effects on the environment.

- We consider that environmental monitoring data relating to effects from groundwater takes should not be held as intellectual property by resource consent holders. For Northland Regional Council to determine compliance with the resource consent conditions, monitor the effects of the activities, and to undertake reviews of the consent including in relation to assessing water use efficiency and unanticipated environmental effects, all data must be made available. This data will also be important in informing assessment of potential cumulative effects for any additional groundwater take applications.

- We note that s35(2)(d) requires NRC to monitor the exercise the resource consents that have effect in its region, and s35(3) requires NRC to keep resource consent monitoring information available to enable the public:

a) To be better informed of their duties and of the functions, powers, and duties of the local authority; and

b) To participate effectively under this Act.

44. We therefore consider that the sustainable management purpose of the RMA will be achieved through the proposed monitoring and through not limiting accessibility to this information.

7. ADVICE NOTES

45. We comment on the requested advice notes as follows:

I. The parcels of land identified on this consent where water may be used for the purpose of irrigation of horticultural and/or agricultural land may be added or changed by providing Council with Computer Freehold Register title confirming ownership of land by the consent holder or written approval from the landowner for the consent holder to use water for irrigation of horticultural and/or agricultural crop on their land. This change does not give express permission or a right to increase consented allocation amounts on this consent.

46. Transfer of water permits to different sites is not provided for as a permitted activity under either the operative or proposed regional plans. Under section 136(2)(b)(ii) of the Resource Management Act 19991 (RMA) an application to the regional council is required to undertake the transfer. The application for a transfer requires assessment as if the application were an application for a resource consent. This is to allow for variances in localised environmental effects, and efficiency of allocation and use. This advice note is therefore not consistent with the requirements of the RMA. We therefore do not support the addition of this advice note.

II. Increases to consented allocated amounts will require an application for resource consent to be lodged with the Council to assess the sustainability of the changes sought. Dependent on the scale and nature of the effects of the changes sought, Council may receive and consider the application as a change of conditions or as a new consent application. Pre-application discussions with Council are recommended in this situation.

47. This is standard process for any future increase in allocation and is therefore considered unnecessary.

III. It is the responsibility of the consent holder to assess whether any other resource consents may be necessary for activities associated with the exercise of this consent and to obtain resource consent if necessary.

48. This is standard process and is therefore considered unnecessary.

Annexure 1 – Legal descriptions

49. Ms Letica recommends addition of Annexure 1 which has legal descriptions, and also a comment stating “and other parcels to be approved by Council upon receipt of Computer Freehold Register title or landowner written evidence confirming interest in the land”.

50. Should the commissioners approve the consents, a separate consent document will be issued for each take that will specify the legal descriptions as applied for (with minor agreed additions where within the scope of the application, as set out earlier in this statement). This is standard NRC Council practice and ties the take and use of water together. The legal description is required to ensure the efficient allocation and use of the groundwater resource as assessed throughout the applications. Further, transfer of water permits to different sites requires an approval under s136 of the RMA. Addition of sites to an existing consent implies additional water use, which then brings in to question the efficiency of water as originally allocated.

51. This annexure is therefore not required or supported by the reporting officers.

8. OTHER MATTERS

8.1 Late submission – Katie Kerr

52. The s42a report did not reference a late submission received from Katie Kerr. This is attached for the commissioners information (refer Attachment 3). There are no issues raised in this submission which were not addressed in the s42a report.

8.2 Te Taumata Kaumatua o Ngati Kuri Research Unit submission

53. Ms Letica states in paragraph 6.7 of her evidence that although she has a copy of Mr Burgoyne’s submission, she does not have a copy of the Te Taumata Kaumatua o Ngati Kuri Research Unit submission.

54. For clarity, there is only one submission. It has been accepted in the name of Mr Burgoyne as a potential adversely affected party. Mr Burgoyne purports to represent the Te Taumata Kaumatua o Ngati Kuri Research Unit. However, NRC advised that they have received indication from Ngati Kuri Trust Board, the mandated iwi authority for the purposes of the RMA, that they do not consider him to represent Ngati Kuri. Further, the Te Taumata Kaumatua o Ngati Kuri Research Unit is not listed as a mandated authority in the crown database. As such, the NRC has received Mr Burgoyne’s submission as an individual property owner (along with the co-owner of the property, Hoane Karekare) with a bore lying in the potential area of effects.

ATTACHMENT 1

REQ-581172 Limited Notified New and change (Stanisich)

CONDITIONS APPLICABLE TO ALL CONSENTS:

To take groundwater on (for respective legal titles of individual applicant properties Refer Table 2 of “Groundwater Take Consent Application – Motutangai Waiharara Water User Group” dated 30 August 2017*), for the purpose of horticultural irrigation on that property: the below properties:

TBC Water Extraction Volumes 1 The rate of taking shall not exceed the limits set out in the following table:

Consent Holder

Annual Limit

(m³), being 1 July to 30 June:

Daily rate of taking

(m³/day),

being any 24 consecutive hours:

APP.038328.01.01 Bernard Kim & Sheryl Dianne Shine 40,000 268

APP.039332.01.01 Candy Corn Ltd,

C/- Bryan Candy 80,000 537

APP.038471.01.01 Honeytree Farms Limited,

C/- Tony Hayward

200,000

285,000 2,200 3,000

APP.038589.01.01 Neil & Alma Violet Thompson and Steven & Josephine Suzanne Thompson 39,350 320

APP.039345.01.01 Ongare Trust,

C/- Ian McLarnon & Jason McLarnon 23,370 200

APP.038610.01.01 Mapua Avocados Ltd,

C/- Murray Forlong 624,000 627,000 5000

APP.038591.01.01 Cypress Hills Ltd,

C/- Alan Anderson & Carolyn Dawn Smith 41,720 280

APP.038650.01.01 Tony and Diane Hewitt 40,230 270

APP.027391.01.02 Ivan Anthony Stanisich 64,070* 1150*

APP.038454.01.01 Elbury Holdings Limited, 113,700 763

Consent Holder

Annual Limit

(m³), being 1 July to 30 June:

Daily rate of taking

(m³/day),

being any 24 consecutive hours:

C/- Kevin and Fiona King

APP.038380.01.01 Daimen & Katherine Holloway 14,900 100

APP.039381.01.01 Johno and Carol Brien (Lamb Road) 14,900 100

APP.039244.01.01 Kevin and Dani Thomas 59,600 400

APP.038420.01.01 Largus Orchard Ltd Partnership,

C/- Murray Forlong (Changed from Matijevich) 193,700 1,300

APP.038513.01.01 Te Rūnanga o Ngai Takoto,

C/- Rangitane Marsden 193,700 1,300

APP.038410.01.01 Georgina Tui and Mate Nickolas Covich 223,500 1,500

APP.038732.01.01 Kathy Valadares 22,350 150

*Note to Commissioners – Stanisich application was for a change to an existing consented take to increase the

existing authorized volume from 720 m³/day to 1,150 m³/d (a change of 430 m³/day), while keeping the annual volume the same as existing (120,000 m³/annum). The volumes expressed in the application documents for the annual equivalent reflect the implied annual change associated with the daily increase for the purposes of the model in the AEE assessment.

Notification of Irrigation 2 The Consent Holder shall advise the council’s assigned Monitoring Officer in writing

when irrigation is to commence for the first time each season, at least five days beforehand.

Metering and Abstraction Reporting 3 The Consent Holder shall install a meter to measure the volume of water taken, in cubic

metres, from each production bore. Each meter shall:

(a) Be able to provide data in a form suitable for electronic storage; (b) Be sealed and as tamper-proof as practicable; (c) Be installed at the location from which the water is taken; and (d) Have an accuracy of +/-5%. The Consent Holder shall, at all times, provide safe and easy access to each meter installed for the purposes of undertaking visual inspections and water take measurements.

4 The Consent Holder shall verify that the meter required by Condition 3 is accurate. This

verification shall be undertaken prior to 30 June:

(a) following the first taking of water from each production bore; and (b) at least once in every five years thereafter.

Each verification shall be undertaken by a person, who in the opinion of the council’s Compliance Manager, is suitably qualified. Written verification of the accuracy shall be provided to the council’s Assigned Monitoring Officer by 31 July following the date of each verification.

5 The Consent Holder shall, using the meter required by Condition 3, keep a record of the

daily volume of water taken from each production bore in cubic metres, including all nil abstractions.

6 If the instantaneous rate of taking is equal to or greater than 10 litres per second, then the water meter required by Condition 3 shall have an electronic datalogger for automatic logging of meter data. be telemetered so that council can freely access the information at any point in time. The telemetry connection shall be agreed to by the council’s Hydrology Manager.

7 The Consent Holder shall measure, and keep a record of, the static water level in each

production bore at least once each month. This measurement shall be taken at least 12 hours after cessation of pumping.

8 A copy of the records required to be kept by Conditions 5, 6 and 7 for the period 1 July to 30 June (inclusive) shall be forwarded each year to the council’s assigned Monitoring Officer by the following 31 July. In addition, a copy of these records shall be forwarded immediately to the council’s assigned Monitoring Officer on written request. The records shall be in an electronic format that has been agreed to by the council. Advice Note: If no water is taken during the period 1 July to 30 June (inclusive) then the

Consent Holder is still required to notify the council’s Monitoring Manager in writing of the nil abstraction. Water use record sheets in an electronic format are available from the council’s website at www.nrc.govt.nz/wur.

9 Easy access for a water level probe shall be provided and maintained at the production

bore well head to enable the measurement of static water levels in the bore. Water Use Efficiency 10 The Consent Holder shall prepare an Irrigation Scheduling Plan (ISP) which outlines

how irrigation decisions will be made. The ISP shall be prepared by a suitably qualified and experienced person and submitted to the council’s Compliance Manager for written approval. The ISP shall, as a minimum, address:

water balance and crop water requirements; subsurface drainage; and

overall irrigation strategy. For each irrigation area, the ISP should include: (a) a description of how water requirement for each irrigation cycle is calculated; (b) method(s) for assessing current soil moisture levels; (c) method(s) for assessing potential evapotranspiration (PET) and rainfall to date; (d) assessment of other inputs such as effluent irrigation and effect on irrigation

requirement; (e) soil moisture target to be maintained in each zone by irrigation; (f) how measured data will be used to assess irrigation requirements over the next

irrigation cycle; and (g) a description of proposed method(s) for remaining within consent limits at each

borehole or group of boreholes.

Advice Note: The ISP seeks to ensure that an irrigation efficiency of a minimum 80% is achieved.

11 The Consent Holder shall not exercise this consent until approval for the ISP required to

be prepared in accordance with Condition 10 has been approved by the council’s Compliance Manager.

12 The ISP approved in accordance with Condition 11 shall be implemented prior to the first

irrigation season, unless a later date has been approved in writing by the council’s Compliance Manager.

13 The Consent Holder shall, within six months of the first exercise of this consent, undertake an audit of the irrigation system using a suitably qualified and experienced person. The irrigation system audit shall be prepared in accordance with Irrigation New Zealand’s “Irrigation Evaluation Code of Practice” (dated 12 April 2010), including recommendations on any improvements that should be made to the system to increase water efficiencies. The results of the audit and its recommendations shall be submitted in writing to the council’s assigned Monitoring Officer within one month of the audit being undertaken.

14 The Consent Holder shall, within three months of notification in writing by the council’s

Compliance Manager, implement any recommendations of the audit referred to in Condition 13.

15 The reticulation system and components shall be maintained in good working order to minimise leakage and wastage of water.

16 There shall be no significant ponding of irrigated water within any irrigated area, or

significant runoff from either surface or subsurface drainage to a water body, as a result of the exercise of these consents.

Monitoring and Contingency Measures

17 Prior to first exercise of this Consent, the Consent Holder shall submit a Groundwater Monitoring and Contingency Plan (GMCP) to the Northland Regional Council. The GCMP shall be prepared by a suitably qualified and experienced person and submitted to the council’s Compliance Manager for written approval. The GCMP shall be generally in accordance with Schedule 1 of this consent and address the following matters: The location and physical details of individual monitoring sites.

Specific details of monitoring to be undertaken at each site including the parameters to be measured and the frequency (and/or duration) of monitoring.

Methods/procedures/standards to be adopted for the collection, management, archiving and reporting of monitoring results.

Details of any arrangements in place for the collection, analysis and reporting of monitoring results by third parties.

The form, content and frequency at which monitoring results will be reported to the council.

Specific triggers for groundwater level and/or groundwater quality at each individual monitoring site. Multiple triggers may be specified for individual sites, each linked to a specific set of mitigation actions.

Requirements for the reporting of trigger level exceedances to the council.

Specific details of mitigation to be initiated in the event of a trigger level exceedance including:

- Review/evaluation of monitoring data (particularly with respect to the magnitude of anticipated environmental effects).

- Increases in the frequency and location of monitoring.

- Changes to parameters being monitored.

- Further hydrogeological, hydrological or water quality investigations to identify the potential causes of the trigger level exceedance.

- Specific reductions in the rate/volume of groundwater abstraction.

Development of strategies to avoid future trigger level exceedances.

A process for reviewing and summarising monitoring results to support the staged development approach.

A timeline and procedure for periodic review and updating of the GCMP to account for future water use, variations to prevailing environmental conditions and changes in access to monitoring sites.

Advice Note: It is anticipated that a single GCMP will be prepared and submitted on behalf of

all consent holders within the Motutangi-Waiharara Water Users Group.

18 The exercise of this consent shall not prevent any other person who has consent to take groundwater, which was issued prior to 26 October 2017, from fully exercising that consent.

Advice Note: The date specified in Condition 18 is the date that the application for this consent was notified.

19 To prevent saline contamination, the council may require the Consent Holder to cease the

exercise of this consent at all such times as the trigger levels specified in the approved GCMP are exceeded.

Community Liaison Group and Meetings 20 The Consent Holder shall, for the purpose of discussing matters relating to this consent,

including the results of monitoring and input into any review of conditions, form and maintain (including providing all administrative support) a water user group (hereafter referred to as the Aupōuri Water User Liaison Group (AWULG). The AWULG shall invite representatives of consent holders/groundwater users; mandated representatives from Te Aupōuri, Ngai Takoto, Ngāti Kuri, Te Rarawa, Ngāti Kahu, Te Potahi Marae, Kaimaumau Marae, Paparore Marae and Waiora Marae; the Department of Conservation; Far North District Council; and the Northland Regional Council.

21 The Consent Holder shall hold a meeting of the AWULG not less than once every year in August. Prior to the meeting, the Consent Holder shall provide a copy of the Annual Monitoring Report required to be prepared in accordance with Condition 22 and a summary of the water use records and static water level monitoring result for the same period as the report to each representative of the group. The meeting shall be held at a time and venue convenient for the majority of the AWULG members.

Reporting 22 The Consent Holder shall prepare an Annual Monitoring Report (AMR) for the period 1

July to 30 June (inclusive) and forwarded a copy to the council’s assigned monitoring officer by the following 31 July. The AMR shall include, but not be limited to, the results, update and summary report of the monitoring undertaken as required by the GCMP. Advice Note: It is anticipated that a single Annual Monitoring Report will be prepared

and submitted on behalf of all consent holders within the Motutangi-Waiharara Water Users Group.

Review Condition

23 The council may, in accordance with Section 128 of the Resource Management Act 1991, serve notice on the Consent Holder of its intention to review the conditions annually during the month of June for any one or more of the following purposes: (a) To deal with any adverse effects on the environment that may arise from the exercise of

the consent and which it is appropriate to deal with at a later stage; or

(b) To review the allocation of the resource.

The Consent Holder shall meet all reasonable costs of any such review.

Lapsing Condition

24 This consent shall lapse on the 30 April 2023, unless before this date the consent has been given effect to. Advice Note: An application can be made to the council in accordance with Section 125 of the

Act to extend the date after which the consent lapses. Such an application must be made before the consent lapses.

EXPIRY DATE: ALL EXCEPT STANISICH 30 NOVEMBER 2033

EXPIRY DATE: STANISICH 30 NOVEMBER 2025

ATTACHMENT 2

MWWUG applications water use volumes – notified volumes, NRC recommendations, Applicant evidence requested changes, and NRC response

Application Number Applicant Name

Volumes applied for and notified NRC Recommendations Applicant’s requested changes in hearing documents NRC Response

Area to be planted

(ha) Daily (m³) Annual (m³) Daily

(m3) Annual (m3)

Area to be

planted (ha)

Daily equivalent

(m³) Weekly (m³) Annual (m³)

Agree/ disagree

Comments

APP.038610.01.01 Mapua Avocados Limited C/- Murray Forlong 160 5,000 745,000 5000 624,000 200 5000 35000 745000

Inc by 3000pa only

Additional proposed property only adds 16.1 ha. Total property area is 204ha. Using their own estimate of canopy ha in Mr Williamson’s para 83 of 80% gives canopy ha of 163.2

Using average of all existing orchards (which gives higher than SPASMO) still only gives annual of 627,000.

APP.038471.01.01 Honeytree Farms Limited C/- Tony Hayward 110 3,500 521,500 2200 200000 93 3500 24500 372000

Partial agree Inc annual by

85,000 And daily by

800 to allow for drought event

Total property area is 93ha, canopy ha is 74 ha (using 80%, not the 65-75% Tony Hayward stated in Mr Williamson’s para 83)

Recommend increase to 285000 annual, 3000 daily, based on the average of all existing water use data (which gives values higher than SPASMO).

Need to add Secs 54 and 55 to legal descriptions

APP.038410.01.01 Georgina Tui & Mate Nickolas Covich 70 1,500 223,500 1500 223,500 70 1500 10500 223500

APP.038420.01.01 Largus Orchard Limited Partnership C/- Murray Forlong

60 1,300 193,700 1300 193700 60 1300 9100 193700

APP.038513.01.01 Te Rūnanga o Ngāi Takoto C/- Rangitane Marsden 60 1,300 193,700 1300 193700 60 1300 9100 193700

APP.039332.01.01 Candy Corn Ltd C/- Logan King 20 537 80,000 537 80,000 21.5 537 3758 80000

Agree No change in volume requested. Only change to planted area. Property size is 25.6 ha.

APP.038454.01.01 Elbury Holdings Limited C/- Kevin & Fiona King 30 763 113,700 763 113,700 30 763 5342 113700

APP.038328.01.01 Bernard Kim & Sheryl Dianne Shine 10 268 40,000 268 40,000 12.5 268 1879 50184

Disagree Increased area by 2.25 with adjacent property, FNDC approved subdivision However, the increased allocation is higher than notified, and may have resulted in more

submissions, localised drawdown effects of increase not assessed in AEE. Also 12.5 ha is not canopy area. 80% of 12.5 ha is 10 ha. Therefore agree to the addition of the

property in the legal description, but same allocation should suffice.

APP.027391.01.02 Ivan Anthony Stanisich 17 430 64,070 1150 64,070 17 430 3010 64070 No change to recommendation 1150 is total to go on changed consent (existing 720 + 430)

APP.039244.01.01 Kevin & Dani Thomas 16 400 59,600 400 59600 16 400 2800 59600

APP.038589.01.01

Neil & Alma Violet Thompson and Steven & Josephine Suzanne Thompson

9 320 47,680 320 39,350 9 320 2240 39350

APP.038650.01.01 Tony and Diane Hewitt 10 270 40,230 270 40,230 10 270 1890 40230

APP.038591.01.01 Cypress Hills Ltd C/- Alan Anderson & Carolyn Dawn Smith

9 280 41,720 280 41,720 9 280 1960 41720

APP.039345.01.01 Ongare Trust C/- Ian McLarnon & Jason McLarnon

6 200 29,800 200 23,370 6 200 1400 24000 Disagree The recommended volume was already high relative to the location, soil type, and property size

(noting that total property size is 6.2 ha, therefore canopy hectare 5 ha using 80%). Increase not justified.

APP.38732.01.01 Kathy Valadares 8 150 22,350 150 22,350 12 150 1050 48000 Disagree The newly requested annual volume equates to a 320 day season at that daily rate. This volume

was not notified; there is a significantly affected neighbouring properties who may have submitted if this volume was notified.

APP.038380.01.01 Daimen & Katherine Holloway 4 100 14,900 100 14,900 4 100 700 14900

APP.039381.01.01 Johno and Carol Brien (Lamb Road) 4 100 14,900 100 14,900 4 100 700 14900

ATTACHMENT 3

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Intervention: Motutangi-Waiharara Water Users Group

(MWWUG)

22 November 2017

Application number: REQ. 5811721 Proposal: 17 Groundwater Takes For Horticultural Irrigation

“Tuhia ki te rangi, tuhia ki te whenua, tuhia ki te ngākau o te tangata,

Ko te mea nui ko te aroha – tihei mauri ora!”

(Her Excellency The Rt Hon Dame Patsy Reddy, GNZM, QSO, Governor-General of New Zealand, 20172)

GENERAL NATURE OF INTERVENTIONS

1. The general nature of our intervention is that we OPPOSE MWWUG’s applications.

PART 1 - PROCEDURAL MATTERS – GOOD

DECISION-MAKING

“[Civil society] is at a crossroads: we have the choice to either create a Utopia […] or allow a Dystopia to be created by others.”

(Chlöe Swarbrick, Green Party List MP, Community meeting, Kerikeri, 13 November 2017)

“As the leaders of their communities the Mayors and Chairs of New Zealand declare their continuing and absolute commitment to valuing and managing water as a precious resource. We want New Zealand to be world

leaders in sustainable water management and will work with our communities and partners towards that goal.”

(Signatories to the 9 October 2017 “Local Government Leaders’ Water Declaration”,

including Hon John Carter Mayor, Far North District Council)3

INCLUDING THE AFFECTED COMMUNITY - LEGAL OBLIGATIONS – DOMESTIC REGIME

2. As described below, we believe NRC’s resource consent process fails on several counts to meet the basic standards of natural justice, democracy and good decision-making, in particular with regards to meaningful inclusion of the affected community.

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The Local Government Act 2002

3. The purpose of the LGA 2002 is “...to enable democratic local decision-making and action by, and on behalf of, communities and to promote the social, economic, environmental and cultural well-being of communities, in the present and for the future.” (our emphasis).

The Resource Management Act 1991 - Part 2, sections 5-8

RMA Purpose s5

4. The purpose of the RMA 1991 is (s5(1)) “to promote the sustainable management of natural and physical resources”. Section 5(2) states that “sustainable management” means:

“managing the use, development, and protection of natural and physical resources in a way, or at a rate, which enables people and communities to provide for their social, economic, and cultural well-being and for their health and safety” (while achieving values set out in ss(5)(2)(a)-(c)) (our emphasis).

4.1. We emphasize that:

a. The RMA has only one purpose that NRC is bound to uphold: i.e. the sustainable management of natural and physical resources, which includes empowering communities to provide for our social, economic, and cultural well-being and for our health and safety; and

b. NRC must uphold this sole purpose by considering the overall impact of the applications, not merely by achieve a balance between suggested benefits and adverse effects.4

Other critical RMA considerations, ss6-8

4.2. In addition, RMA ss6-8 state the following hierarchy of considerations:

“6 Matters of national importance”: “In achieving the purpose of this Act, all persons exercising functions and powers under it, in relation to managing the use, development, and protection of natural and physical resources, shall recognise and provide for the following matters of national importance:

(a) the preservation of the natural character of the coastal environment (including the coastal marine area), wetlands, and lakes and rivers and their margins, and the protection of them from inappropriate subdivision, use, and development:

(b) the protection of outstanding natural features and landscapes from inappropriate subdivision, use, and development:

(c) the protection of areas of significant indigenous vegetation and significant habitats of indigenous fauna:

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(d) the maintenance and enhancement of public access to and along the coastal marine area, lakes, and rivers:

(e) the relationship of Maori and their culture and traditions with their ancestral lands, water, sites, waahi tapu, and other taonga:

(f) the protection of historic heritage from inappropriate subdivision, use, and development:

(g) the protection of protected customary rights:

(h) the management of significant risks from natural hazards.” (our emphasis).

a. We contend that our community has a significant interest in the proposed effects of MWWUG’s proposed activities as relates to the RMA s6, in particular, to the above ‘emphasized’ “matters of national importance”.

“7 Other matters”: “In achieving the purpose of this Act, all persons exercising functions and powers under it, in relation to managing the use, development, and protection of natural and physical resources, shall have particular regard to—

(a) kaitiakitanga:

(aa) the ethic of stewardship:

(b) the efficient use and development of natural and physical resources:

(ba) the efficiency of the end use of energy:

(c) the maintenance and enhancement of amenity values:

(d) intrinsic values of ecosystems:

(e) [Repealed]

(f) maintenance and enhancement of the quality of the environment:

(g) any finite characteristics of natural and physical resources:

(h) the protection of the habitat of trout and salmon:

(i) the effects of climate change:

(j) the benefits to be derived from the use and development of renewable energy.” (our emphasis).

b. We contend that our community has a significant interest in the effects of MWWUG’s proposed activities as relates to the RMA s7, in particular, to the above ‘emphasized’ “other matters”.

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“8 Treaty of Waitangi”: “In achieving the purpose of this Act, all persons exercising functions and powers under it, in relation to managing the use, development, and protection of natural and physical resources, shall take into account the principles of the Treaty of Waitangi (Te Tiriti o Waitangi).”

c. We contend that our community has a significant interest in the effects of MWWUG’s proposed activities as relates to the RMA s8, particularly with respect to:

i. Our community members who are of Te Hiku iwi descent, particularly those who whakapapa to Ngāti Kuri and Te Rarawa who are two of six iwi claimants to the WAI 262 Flora and Fauna/ Mātauranga Māori Waitangi Tribunal claim5 (which made findings and recommendations in Volume One of its 2011 report6 concerning the Crown’s obligation to uphold te Tiriti rights concerning the taonga of water); and

ii. Our community members who, due to their tangata whenua status, are awaiting:

The findings and recommendations of the Waitangi Tribunal WAI 2358 Freshwater Inquiry (regarding Māori commercial interests in water),7 and therefore would not wish to see NRC prejudicing their tangata whenua rights by over-allocating the resource to the extent that they could not in the future exercise their water rights; and

Development of the new Labour Government policies regarding freshwater management and protection of Māori rights to freshwater.8

RMA s6(e): “the relationship of Maori and their culture and traditions” with their ancestral lands, water, sites, waahi tapu, and other taonga

4.3. To further elaborate on s6(e), the National Iwi Chairs Forum9 has undertaken considerable consultation with Māori constituencies across New Zealand (including Te Hiku iwi) between 2010 and 2017 concerning freshwater management and allocation.10 We emphasise the following Māori values and perspectives that emerged clearly from these years of consultation11 which we contend NRC “shall recognise and provide for” as “a matter of national importance”:

Tangata whenua values

a. Wai Māori/ freshwater is a taonga.

b. Tangata whenua are connected to water not just through our mana whenua (authority derived from our whakapapa/ genealogy to the land), but also through our mana Atua (authority derived from our whakapapa/ genealogy to the Gods), and therefore our subsequent and corresponding kaitiaki (stewardship/ guardianship) obligations;

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c. Protecting water integrity (Te Mana o te Wai) and whānau, hapū and kāinga access to clean drinking water must be top priority - with the implication that economic and industrial uses of water must come second. The balance between these values currently favours industrial use. This is unacceptable and must be corrected;

d. Each water catchment is unique, and should be treated as such (i.e. there is no “one size fits all”);

Tangata whenua perspectives

4.4. The violation of Māori values by failed resource management policy and procedure is already at critical levels:

a. Some whānau living in their traditional rohe (areas) are already unable to access clean drinking water;

b. Regional Councils are perceived to implement a “first come first served” allocation approach to our taonga wai which perversely results in inequitable distribution and over-allocation of our water;

4.5. Our concerns are emphasized by the Ministry for the Environment (August 2017) 12:

“We acknowledge that the complexity of Northland iwi relationships makes engagement a challenge for NRC. We are also aware that capacity and capability issues can prevent iwi and hapū from taking full advantage of the opportunities presented by NRC to be involved. Nevertheless, while not all iwi and hapū in the region participated in the review hui, those that did had strong views about what they see as a negative approach of NRC toward Māori, in particular, a lack of capability, desire or effort to understand Māori values.”

4.6. Therefore, Māori seek effective freshwater management, including better local governance that13:

Engagement in decision-making

a. Provides for tangata whenua participation in governance and decision-making – including setting robust natural resource use/allocation limits;

b. Recognizes iwi rights and values in decision-making, including hapū and iwi inalienable customary / te Tiriti ‘catchment-based’ right to water;

Environmental and human rights14

c. Ensures full realisation of:

i. Te Mana o te Wai – the right that wai Māori /freshwater itself has, as a living entity with its own mauri (energetic life force), to be respected and protected from violation (such as pollution or depletion by anthropogenic causes to unsustainable levels); and

ii. The human right of all natural persons to, among other things:

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An environment and natural habitat that is healthy enough to support human life; and

Clean drinking water, including whānau and communities’ free (i.e. no financial payment required) access to the same to meet their basic health and sustenance needs as both individuals and collectives of individuals;

Management standards

d. Recognizes that a paradigm shift is required, including acknowledgement that all standards need to be reviewed to ensure they are ‘fit for purpose’ to radically develop resilience in these times of increasing climate crisis uncertainty and environmental shocks;

e. Should NRC over-allocate our water (despite best efforts to mitigate and avoid that outcome), enforces a reduction of all users’ water take – including industrial users – with the proviso that the human rights and environmental wellbeing needs are given top priority;

f. Prohibits the practice of “grand-parenting” (i.e. preference given to existing users);

User assessments

g. Adopts, in partnership with tangata whenua, a threshold for user historical compliance with environmental and human rights standards that applicants are required to meet; and

h. Implements a transparent and effective assessment of industrial water users in particular, as regards their:

i. History of compliance with (or, as the case may be, violation of) recognized environmental and human rights standards; and

ii. Capacity (e.g. necessary systems and infrastructure) to fulfil all consent conditions (e.g. utilizing the natural resource responsibly), bearing in mind that determining “thresholds” as such is a more nuanced exercise in these times of increasing climate crisis uncertainty where previous standards may no longer be ‘fit for purpose’;

i. Meaningfully-weights the abovementioned user assessment in every resource consent decision-making process, with the expectation that applicants who fail to meet the prerequisite threshold will be required to take corrective action before a consent may be granted;

Monitoring & compliance

j. In partnership with affected hapū and iwi, (a) accurately measures and monitors our water use, and (b) only allocates what is demonstrably needed for priority purposes (i.e. excludes allocation of ‘buffer’ volumes to industrial users); and

k. Ensures, with particular regard to industrial users, that the costs of water use (i.e. the environmental, social and other externalized costs of production) is borne by the user.

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RMA Part 5: Mana Whakahono a Rohe Provisions

5. The Resource Legislation Amendment Act 2017 (RLAA) came into effect in April 2017. One of the key changes of the RLAA was the introduction of a new Subpart 2 to Part 5 of the RMA.15 This part provides broad scope for iwi involvement in resource management matters,16 most notably through a new Mana Whakahono a Rohe (MWR) mechanism.

5.1. The purpose of MWR17 is to:

a. Provide a mechanism for iwi authorities and local authorities to discuss, agree, and record ways in which tangata whenua may participate in resource management and decision-making processes under the RMA; and

b. Assist local authorities to comply with their obligations under the RMA.

5.2. It’s further noted that: “A MWR may specify when and how a local authority is to notify iwi authorities or hapū about new resource consent applications or consult with them on applications. A MWR may also describe circumstances (eg, what constitutes an “adverse effect”) for when an iwi authority or hapū is given limited notification as an affected party.”18

5.3. Some notable guidelines include19 that, in initiating, developing, and implementing a Mana Whakahono a Rohe, the participating authorities must use “their best endeavours”:

“(b) to enhance the opportunities for collaboration amongst the participating authorities, including by promoting—

(i) the use of integrated processes:

(ii) co-ordination of the resources required to undertake the obligations and responsibilities of the parties to the Mana Whakahono a Rohe:

(c) in determining whether to proceed to negotiate a joint or multi-party Mana Whakahono a Rohe, to achieve the most effective and efficient means of meeting the statutory obligations of the participating authorities:

(d) to work together in good faith and in a spirit of co-operation:

(e) to communicate with each other in an open, transparent, and honest manner:

(f) to recognise and acknowledge the benefit of working together by sharing their respective vision and expertise”

5.4. The MWR mechanism is an expression of Aotearoa’s ongoing efforts to meet its te Tiriti and internationally recognized obligations to Māori, especially in terms of ensuring meaningful tangata whenua engagement in decision-making that affects their rights and interests.

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5.5. We acknowledge that Te Hiku iwi have yet to establish MWR mechanisms with NRC. However, the MWR is part of the national backdrop of where Aotearoa as a nation is trending in terms of freshwater management under the RMA with respect to protecting and progressively realizing Māori rights and interests. Therefore, we contend that the inevitability of this new MWR approach (and the expectations it creates among iwi Māori), means that NRC is duty bound under the current application process to show true leadership in this space and be proactive in its decision-making approach by:

a. Giving significant weight these developments; and

b. Showing good faith by recognizing the imperative for better Māori engagement, and voluntarily improve its efforts now to achieve the same (it just makes good governance sense).

National Policy Statement for Freshwater Management

6. Local Government Leaders, including FNDC Mayor John Carter, remind us of the obligation on NRC to respect Māori value in decision-making and the importance of working in partnership with communities regarding freshwater management issues that affect them20:

“Water is a taonga and our lifeblood. Iwi have a special relationship with freshwater and this is reflected in the statutes and in the National Policy Statement for Freshwater Management (NPSFM). Specifically, the NPSFM requires that freshwater is managed to give effect to Te Mana o te Wai, an integrated approach to freshwater management that recognises the association of the wider community with the rivers, lakes and streams but also the relationship of iwi and hapū and their values with freshwater bodies.” (our emphasis).

6.1. We call on NRC to join FNDC’s Mayor, John Carter, in signing up to, and committing to the urgent implementation of, the Local Government Leaders’ Water Declaration (2017).

Regional Policy Statement for Northland

7. We contend NRC’s resource consent process has failed to meet community consultation standards as contained in the Regional Policy Statement for Northland (RPS). The RPS provides “a broad direction and framework for managing Northland's natural and physical resources. These include land, water, air, soil, minerals, plants, animals and all built structures”.21

“Integrated management”

7.1. The RPS is about the integrated management of Northland’s natural and physical resources. This means “considering the environment as a whole” (as per the very broad definition of “environment” in the RMA s222).

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7.2. By failing to meaningfully consult the affected community in all the ways covered in this intervention, NRC has failed to include and give serious consideration to (among other matters)23:

a. The full range of “amenity values and social, economic, aesthetic, and cultural dimensions” – and “their interactions”24 which only the affected community can authentically comment on;

b. “the various sets of understanding about resources and how they should be managed” including sufficient engagement and integration of “kaitiakitanga and matauranga Māori methodologies”; and

c. “the policies, plans and actions of all those involved in resource management (government agencies, regional and district councils, iwi, and the community)” and how these ought to be co-ordinated.

7.3. NRC must complete quality consultation that complies with its RPS “integrated management” obligations before determining the MWWUG application.

Pukenui-Houhora Community Development Plan25

7.4. With Far North District Council assistance, extensive community consultation produced this planning instrument looking 15-20 years out. It includes the Vision Statements and detail on the following matters:

a. GENERAL: Pukenui-Houhora is a safe place where friendly people of diverse backgrounds value the special attributes and opportunities provided by their unique climate and environment.

b. ZONING AND DEVELOPMENT: Zoning and permitted development in the village and its hinterland occurs in a sensitive and controlled manner, so as to conserve the atmosphere of a seaside village and its surrounding countryside. All development recognises and balances environmental, social and cultural values of the community.

c. HARBOUR AND ENVIRONMENT: We preserve and enhance the unique character of the harbour and its catchment, while balancing commercial and recreational interests in an ecologically sustainable way:

i. Goal 2.4 in particular states: “Development in catchment and hinterland managed in a sustainable way”; and

ii. Actions that include: “1) Ensure development and management practices of primary and secondary industry reflect best practice”, a “High” priority with milestone “Local industries follow best practices as in Commissioner for Environment’s report “Growing for Good.” (with NRC, FNDC, DoC and community as “Key” partners);

d. TRANSPORT AND INFRASTRUCTURE: Planning takes account of present and foreseeable increases in demand on infrastructure that threaten conservation of the special attributes of the area, in particular in the areas of roading, water supply and waste disposal:

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i. Goal 3.2 in particular states: “Conserve aquifers (underground water sources); and

ii. Actions that include: “1) Continue to monitor size and quality”, a “High” priority with milestone “Regular reporting required” (NRC as “Key partner”).

e. ECONOMIC AND COMMERCIAL: We recognise the ever-increasing opportunities for employment in primary industries, adding value to local produce; and in boutique industries and tourism.

f. HEALTH AND RECREATION: We encourage the creation and maintenance of a clean, healthy environment in which there are abundant opportunities for leisure and recreation. We ensure that people of all ages and abilities have access to facilities that promote personal development and good health.

7.5. This existing planning instrument clearly establishes that the whole community has an interest in all of these aspects of community development, particularly as pertains to water which obviously is critical for human health and community wellbeing. Therefore:

a. NRC’s “affected parties” definition should include any/every local community member; and

b. NRC is bound to have regard for the priorities and matters as expressed in this community plan.

Legal Personhood of Rivers

8. Reinforcing the imperatives mentioned above for protection of Te Mana o te Wai and human rights, we remind NRC of the ground-breaking legal precedent created in March this year wherein the Government granted the Whanganui River the same legal rights as a human person. 26 Therefore:

8.1. We invite NRC to imagine the most severe legal consequences of abusing or harming (or worst case scenario, “murdering”) our aquifer, given the growing jurisprudential support for treating freshwater as a ‘legal person’.

INCLUDING THE AFFECTED COMMUNITY - LEGAL OBLIGATIONS – INTERNATIONAL REGIME

9. Following are a number of international human rights standards which we contend NRC ought to give meaningful consideration of when deliberating on resource consent applications.

Human rights - General

9.1. Citizens have recognized universal human rights27 to the necessities that would enable them to freely live healthy, safe, dignified lives – including the human right to water and sanitation. For example:

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International Covenant on Civil and Political Rights28

a. Article 1:

“1. All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence.”

3. The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations.”

b. Article 47: “Nothing in the present Covenant shall be interpreted as impairing the inherent right of all peoples to enjoy and utilize fully and freely their natural wealth and resources.”

Water rights29

c. “In November 2002, the Committee on Economic, Social and Cultural Rights adopted General Comment No. 15 on the right to water. Article I.1 states that "The human right to water is indispensable for leading a life in human dignity. It is a prerequisite for the realization of other human rights". Comment No. 15 also defined the right to water as the right of everyone to sufficient, safe, acceptable and physically accessible and affordable water for personal and domestic uses”; and

d. “On 28 July 2010, through Resolution 64/292, the United Nations General Assembly explicitly recognized the human right to water and sanitation and acknowledged that clean drinking water and sanitation are essential to the realisation of all human rights. The Resolution calls upon States and international organisations to provide financial resources, help capacity-building and technology transfer to help countries, in particular developing countries, to provide safe, clean, accessible and affordable drinking water and sanitation for all.”

Tangata whenua/ indigenous peoples’ rights

9.2. As an elaboration of te Tiriti o Waitangi, New Zealand also has obligations to protect tangata whenua rights as protected under the United Nations Declaration on the Rights of Indigenous Peoples 2007.30 In particular:

a. Article 19: “States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to

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obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them”;

b. Article 25: “Indigenous peoples have the right to maintain and strengthen their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands, territories, waters and coastal seas and other resources and to uphold their responsibilities to future generations in this regard”;

c. Article 28:

“1. Indigenous peoples have the right to redress, by means that can include restitution or, when this is not possible, just, fair and equitable compensation, for the lands, territories and resources which they have traditionally owned or otherwise occupied or used, and which have been confiscated, taken, occupied, used or damaged without their free, prior and informed consent.

2. Unless otherwise freely agreed upon by the peoples concerned, compensation shall take the form of lands, territories and resources equal in quality, size and legal status or of monetary compensation or other appropriate redress”;

d. Article 29: “1. Indigenous peoples have the right to the conservation and protection of the environment and the productive capacity of their lands or territories and resources. States shall establish and implement assistance programmes for indigenous peoples for such conservation and protection, without discrimination”; and

e. Article 32:

“2. States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.

3. States shall provide effective mechanisms for just and fair redress for any such activities, and appropriate measures shall be taken to mitigate adverse environmental, economic, social, cultural or spiritual impact.”

Little or no iwi consultation

10. In addition to that mentioned above, several data points indicate that NRC has not only failed to consult with tangata whenua who may be affected by the harmful effects of aquifer water allocation (especially over-allocation), but have arguably impeded such consultation. For example:

10.1. NRC Group Manager Regulatory Services, Colin Dall, advises 10 October 2017 that no consultation had yet occurred with iwi31;

10.2. The Ngāti Kuri Trust Board on 14 November 2017 advised “Ngati Kuri entities and marae were not notified” about the MWWUG application32; and

10.3. Waiora marae members say that they were not consulted on this application.33

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Business and Industry

10.4. The “Guidelines on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework” (2011)34 are “a set of 31 principles directed at States and companies that clarify their duties and responsibilities to protect and respect human rights in the context of business activities and to ensure access to an effective remedy for individuals and groups affected by such activities.” 35 These principles relate to such matters as:

a. The relationship between responsible States and companies;

b. The State duty to protect;

c. Corporate responsibility; and

d. Groups vulnerable to adverse impact and human rights abuses.

10.5. The United Nations states that:

“Protecting human rights against business-related abuse is expected of all States, and in most cases is a legal obligation through their ratification of legally binding international human rights treaties containing provisions to this effect. The State duty to protect in the Guiding Principles is derived from these obligations.”36

10.6. On this basis (i.e. being that such protection is not just voluntary, but an obligation on States), it is incumbent on NRC to actively give effect to these obligations in its resource consent processes – for example, by supporting meaningful engagement with the affected community, including supporting resource consent applicants to engage meaningfully with said affected communities.

10.7. There also exists the “Best Practice Guidelines for Engagement with Māori”37 which NRC might overlay on the Business and Human Rights Guidelines and otherwise adapt to offer advice to resource consent applicants.

INCLUDING THE AFFECTED COMMUNITY – SOCIAL LICENSE

Freshwater Rescue Plan (2017)

10.8. Moreover, we agree with:

a. The Royal Forest and Bird Protection Society of New Zealand,38

b. Greenpeace,39

c. The World Wildlife Fund,40

d. The Tourism Export Council of New Zealand,41

e. Pure Advantage,42

f. Numerous Freshwater ecology, cultural and public health experts, and

g. The growing number of other Supporters of the “Freshwater Rescue Plan” (launched 8 June 201743):-

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who advocate that:

“Healthy rivers, lakes and fresh water that is safe for people and wildlife can be achieved with meaningful regulation supported by science and puts the health of people and the environment as its first priority”;44 and

“irrigation is a direct pre-cursor to more intensive agricultural systems and there is a direct link between irrigation and increased adverse effects on water bodies”, including “multi-dimensional” effects for groundwater levels, with the result that “the potential risks” to the health of citizens can outweigh “the probable financial benefits to a few people.” Further, that “Taxpayer money must not be spent on subsidising irrigation schemes which will make New Zealand’s freshwater problems worse.”45 (our emphasis46).

10.9. These and other reasons are why our new Government has committed to the following policy47:

“Existing Crown investments in irrigation will be honoured, but government support for irrigation will not grow.”

10.10. In other words, given the significance of this matter that affects us, environmental and social justice groups, experts and wider civil society agree that all members of our affected community have the right to have a say about this resource consent. Activities that have significant implications for our environment and human rights (including the human right to water and health) shall only proceed with our free, prior and informed consent.

INCLUDING THE AFFECTED COMMUNITY – NRC ENGAGEMENT

11. Bearing in mind all of the above, the following table compares and contrasts NRC engagement with the applicants, as opposed to the affected community. The table demonstrates a lack of good faith engagement by NRC which we contend:

11.1. With respect to community engagement, violates:

a. NRC’s LGA, RMA and international obligations; and

b. The social license of the affected community; and

11.2. Has prejudiced the affected community’s ability to meaningfully engage in NRC’s resource consent process:

# NRC Engagement with Applicants NRC Engagement with Community

1. The resource consent application process began in mid-201648 when NRC received 17 MWWUG applications to abstract groundwater for irrigation of avocado orchards on the Peninsula.

Engagement with the affected community began September 2017 when affected community members heard unofficially about the applications. Those community members then instigated engagement with NRC by mobilizing the community and requesting information. NRC then gave

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limited notification on 27 October 2017 about the resource consent (some affected parties received notification as late as 30 October 2017). NRC acknowledged it held incomplete “information about permitted activity takes” and that its “bore log database is not complete”.49 Therefore it sent out over 1,000 notification letters to ensure wide property owner notification, despite NRC’s ‘limited notification’ status meaning many of those contacted will be ineligible to make submission on this application.

2. Since the resource consent began in 2016, the applicants engaged with NRC to secure advice about how to successfully lodge their applications, including having access to NRC staff and technical expertise. This resulted in MWWUG’s consultants, Williamson Water Advisory (WWA), lodging with NRC an assessment of environmental effects (AEE) and supporting documentation in June 2017.50

The affected community sought to obtain information about the applications and the resource consent process from NRC so that they were empowered to engage meaningfully, including making fully informed interventions on the applications. However, the quality of engagement has been very mixed: sometimes helpful, but other times staff have been unhelpful or not responded to requests at all. We add that it is negligent and borderline passive-aggressive NRC behaviour (towards citizens seeking to engage) for NRC to approve annual leave for their Consents Manager during this critical MWWUG submissions period with apparently no back-up official in place to cover resource consent inquiries and other business while that Consents Manager is absent.51

3. According to NRC’s website,52 NRC gave limited notification about MWWUG’s resource consent application on 27 October 2017.

How can NRC have sufficient information on defining “affected parties” when: As one resident points out, “[t]here

may be many members of the community who will or are considering putting down domestic bores that are at this point in time a permitted activity under both the operative and proposed plan”, and

We, so many of the informed wider affected communities, tangata whenua, residents and citizens are feeling so strongly and legitimately upset and prejudiced by NRC’s

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exclusion of us?

4. In its limited notification, NRC advises that the due date for submissions is 24 November 2017.

The due date for interventions on the applications gives too short a time (especially when compared to the time the great length of time applicants have had to prepare their case) for the affected community to: mobilize affected community

awareness and action about the resource consent process (including our own community engagement meetings, use of social media and other communications);

educate themselves and do our own research on the process and all the application materials; and

draft and send in to NRC our comprehensive interventions.

5. NRC engaged with all 17 applicants. NRC limited the number of community members who had standing to engage as “affected parties” in applications submissions process. NRC did this by defining “affected persons” with standing to make interventions as “property owners and occupiers within the Houhora, Motutangi and Waiharara areas who have an existing water take from either a bore or surface water body.”53 The result is that as “the general public and other interested persons cannot make a submission on these applications”. This is effectively suppressing democracy.

Official Information and miscellaneous requests to engage the community

12. Several affected ratepayers requested information and sought wider community engagement on this application. NRC and/or the applicants either failed to provide satisfactory answers, failed to reply in a timely way,54 failed to reply at all,55 and /or refused to accommodate community calls to be included (i.e. NRC refused to budge on its limited notification status of the resource consent application).

Obligation of NRC despite permissive nature of RMA

12.1. NRC’s standards, policy and practice in terms of community consultation are somewhat contradictory. On the one hand, NRC implies it has a high standard of consultation where it argues that it only makes its decisions on “all affected persons and notification of an application” once it’s satisfied that “it has sufficient information”.56

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12.2. On the other hand, indications are that NRC seems to accept a low RMA standard of consultation, for example: “Consent authorities and, for that matter, consent applicants are not required to consult with other persons about resource consent applications under the Resource Management Act 1991.”57

12.3. To complicate matters, NRC seems to none the less acknowledge it has a duty to do better and exercise its power to improve upon weak RMA consultation provisions – for example: “the Northland Regional Council encourages applicants to consult with persons potentially affected by their applications as this is good practice.”58 Acknowledging it has a higher duty beyond the RMA strictly speaking is perhaps NRC realizing that it also has community consultation obligations under other triangulating instruments such as the LGA and the Pukenui-Houhora Community Development Plan (at least, we’d like to think so – and if NRC doesn’t, it should).

12.4. In any event, despite a weak RMA that (in our view) sets an unacceptably low consultation standard, NRC should not use such weak regulatory provisions as an excuse to do the absolute minimum required to meet that low standard. That’s just institutional laziness on NRC’s part, and cherry-picking NRC’s legal obligations as is convenient to accommodate whatever its priorities and agenda of the day might be. What NRC ought to be doing is upholding its legal and moral meaningful consultation obligations with the affected community (“affected” in the wider sense of the word, not just in terms of an NRC limiting definition of “affected” party to a resource consent matter).

12.5. We contend that, regarding our right to be consulted on the MWWUG aquifer application, NRC:

a. Demonstrably failed to correctly determine who should be “affected parties”; and

b. Ought to take urgent action to correct and bring integrity back to its decision-making process by, for example widening (not limiting) the application notification to include the wider community.

Legal risk

13. We reinforce that violating the legal obligations mentioned above creates a contingent reputational and financial risk for NRC. This is a risk we imagine any reasonably-minded, competent Council would want to avoid or at least mitigate, lest it incur the wrath of ratepayers and the wider affected community.

13.1. We would like to know who actually bears the legal and financial risk of compensating citizens should NRC make a bad resource consent decision (e.g. one that leads to over-allocation with a worst-case scenario of our community running out of clean freshwater, as has happened in other parts of Aotearoa and the world)? The obvious way for NRC to avoid/ mitigate such risk is to fully comply, in good faith, with its legal obligations.

13.2. Given NRC’s resource consent process falls short of fair democratic decision-making in the aforementioned ways (both severally and in the aggregate) which equates to

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suppression of democracy and violating NRC’s legal and moral obligations, both domestic and international, we therefore call on NRC to:

Extension of application process

a. Extend the public consultation period to provide the affected parties with a fair amount of time, all things considered, to produce fully informed interventions on the application; and

b. Widen the definition of “affected parties” to be inclusive of all who have a significant interest in the application, i.e. all (a) Te Hiku peninsular ratepayers and (b) affiliated tangata whenua;

VALUES FRAMEWORK, SYSTEMIC BIAS

14. NRC needs to be actively aware of risks that undermine the integrity of its decision-making, and to be responding meaningfully to mitigate those risks. As with conflicts of interest, even the perception of a lack of procedural integrity detracts from the public acceptability and support for the decision. When the lack of trust hits critical levels, public demands for accountability of decision-makers will escalate causing social disharmony and conflict, and certainly result in consequences for elected council representatives. So the best preventative measure NRC can take is to ensure a ‘fair and level playing field’ in all respects right from the outset, as between the business and industry applicants (who are seen to have the lion’s share of money and influence) and the affected community (the ‘under-dogs’, the ‘little guys’).

Economic bias

“Anyone who believes in indefinite growth on a physically finite planet is either mad, or an economist.”

(Sir David Attenborough, 201159)

14.1. Yesterday’s myopic economic GDP-centric60 values around what a country’s “success” looks like are no longer fit for purpose in an uncertain world of converging climate, environmental, socio-economic and other crises. Yet these and other outdated economic values are obviously still driving policy development and decision-making.

14.2. The problem with GDP is that while it recognizes metrics that can be measured in monetary terms (like consumables, and means of production), it fails absolutely to account for ‘the things money can’t buy’61:

“Too much and for too long, we seemed to have surrendered personal excellence and community values in the mere accumulation of material things. Our gross national product, […] if we judge the United States of America by that — counts air pollution and cigarette advertising, and ambulances to clear our highways of carnage. It counts special locks for our doors and the jails for the people who break them. It counts the destruction of the redwood and the loss of our natural wonder in chaotic sprawl. It counts napalm and counts nuclear warheads and armored cars for the police

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to fight the riots in our cities and the television programs which glorify violence in order to sell toys to our children. Yet the gross national product does not allow for the health of our children, the quality of their education or the joy of their play. It does not include the beauty of our poetry or the strength of our marriages, the intelligence of our public debate or the integrity of our public officials. It measures neither our wit nor our courage, neither our wisdom nor our learning, neither our compassion nor our devotion to our country, it measures everything in short, except that which makes life worthwhile.” — (Senator Robert Kennedy, 1968).

14.3. This destructive mentality ‘trickles down’ to express itself at the corporate level also, but with even more bad news:62 a 2013 United Nations study found that if companies took environmental externalities into account, none of those companies would be profitable.63 In other words, the environment and wider society are basically subsidising business and industries’ profits. And if a full accounting was done including societal externalities, the situation would be even worse.

14.4. Indexes and models of different varieties exist that take a more comprehensive account of the metrics for overall wellbeing,64 including the now famous “doughnut” model65 (image right), and even our New Zealand Treasury Department’s own “Improving Living Standards” model (2012).66

A full assessment of effects and accounting?

14.5. We have yet to see a comprehensive accounting by the applicants of the full range of environmental, social, cultural and economic effects. In the absence of this accounting, there can only be a partial assessment of effects of the proposed activity. This is insufficient to make a fully informed decision about whether the proposed activity meets the necessary LGA, RMA and international standards.

a. NRC needs to recognize (a) that systemic economic-related bias in decision-making exists, and (b) the real risk that bias presents for NRC’s ability to meet its LGA, RMA and other legal and moral good governance responsibilities regarding protection of the environment and human rights; and

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b. Take active steps to neutralize that bias to ensure uncontaminated, objective decision-making of integrity.

Money’s excessive influence over decision-making

14.6. In 2014 Princeton University studied the relative influence in the United States of the average citizen compared with the wealthy elite class on public policy. The study revealed that “average citizens only get what they want if economic elites or interest groups also want it.” In other words, "economic elites and organized interest groups play a substantial part in affecting public policy, but the general public has little or no independent influence."67 I.e.68:

““the preferences of the average American appear to have only a miniscule, near-zero, statistically non-significant impact upon public policy”. Corporate opinion, in contrast, had a direct impact: if the vast majority of the top 10 percent of income earners opposed a policy, it had a near-zero chance of passing. The paper concludes that the U.S is a “civil oligarchy” where money-interests dominate policy.”

14.7. The trend exposed in this study is replicating itself all around the globe at both local and central government level. As with many other socio-economic trends, there is every reason to believe that the same phenomenon could easily take root here in Aotearoa, and indeed there is ample evidence to show that the influence of money in decision-making69 is already eating away at the foundations of Aotearoas central and local democratic institutions.

14.8. As concerns the current application process, this insidious influence of money manifests in at least two ways:

Consent application process

a. In the case of substantially-sized corporations or wealthy applicants, they are able to finance access to expert legal, technical, cultural or other advice, and human resources to (a) produce their applications, and (b) counter any public objections. An opposing public, on the other hand, generally and in comparison has significantly fewer resources with which to make their compelling case.

Promises of economic benefit

b. Applicants often woo councils into focusing on the isolated data around significant economic (monetary) benefits that will accrue for the affected community and/or region. However as mentioned above,70 the important metric is whether an activity provides NET benefits to affected communities – and the MWWUG applicants have not demonstrated net benefits. Therefore, we must assume MWWUG’s activities will produce quite the opposite, i.e. a NET loss. This is consistent with companies externalizing hidden environmental and social costs onto affected communities and wider society. Perversely, this equates to financial corporate and private profit-making welfare subsidised by ratepayers, taxpayers and all citizens (i.e. protecting corporate and private profit-making privilege ahead of the environment and human rights).

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14.9. Therefore, NRC needs to be absolutely certain it is meeting its LGA and RMA obligations by ensuring:

a. Applicants prove net environmental, social, cultural and economic benefits will result from the proposed activity; and

b. The affected community have sufficient time and effective access to technical assistance to develop their interventions in response to the applications (at least on an equitable footing with time and technical assistance afforded to the applicants).

PART 1 - SUMMARY

15. To summarise, given the significance of this matter that affects us, under the LGA and the RMA, all members of our affected community have the right to have a say about this resource consent. Activities that have significant implications for our environment and human rights (including the human right to water and health) shall only proceed with our free, prior and informed consent.

15.1. This imperative was emphasised recently by the New Zealand Governor-General71:

“There are other environmental challenges to be faced. This government is conscious of increasing pressure on our natural resources, as environmental pressure points are reached. It is clear New Zealand needs to improve the way it manages natural resources.

Our lakes and rivers need to be protected and restored, which can only happen if all water users and the government work together.” (our emphasis).

1 https://www.nrc.govt.nz/Consents/Notified-resource-consents/limited-notification-motutangi-waiharara-

water-users-group-mwwug/. 2 Delivered by Her Excellency The Rt Hon Dame Patsy Reddy, GNZM, QSO, Governor-General of New Zealand,

on the occasion of the State Opening of Parliament, 8 November 2017. Full speech accessible at https://www.beehive.govt.nz/speech/speech-throne-2017. Translation is as follows: “Write it in the sky, write it in the land, write it in the hearts of the people: the greatest thing (in this world) is love - Behold there is Life!” 3 Full copy available at http://www.lgnz.co.nz/assets/Uploads/LG-Leaders-Water-Declaration-25-October-

2017.pdf. 4 Local Government New Zealand and Ministry for the Environment, “Making Good Decisions – A Resource for

RMA decision-makers”, pp32-33. 5 See “Ko Aotearoa Tēnei: Report on the Wai 262 Claim Released” at

https://waitangitribunal.govt.nz/news/ko-aotearoa-tenei-report-on-the-wai-262-claim-released/. 6 Downloadable at

https://forms.justice.govt.nz/search/Documents/WT/wt_DOC_68356416/KoAotearoaTeneiTT2Vol1W.pdf. 7 See Māori Law Review (September 2012), “Māori rights in water – the Waitangi Tribunal’s interim report”,

accessible at http://maorilawreview.co.nz/2012/09/maori-rights-in-water-the-waitangi-tribunals-interim-report/. 8 See “HortNZ sees both positives and negatives for the sector under new government” (1 November 2017), at

http://www.freshplaza.com/article/184179/HortNZ-sees-both-positives-and-negatives-for-the-sector-under-

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new-government; and “Where the water wars will go next” (25 October 2017) at https://www.newsroom.co.nz/2017/10/24/55556/where-the-water-wars-will-go-next. 9 See website here: http://iwichairs.maori.nz/.

10 For more information on the Iwi Chairs Forum’s work in this area, see their Freshwater website at

http://iwichairs.maori.nz/our-kaupapa/fresh-water/. 11

See also Forum Agenda for the Iwi Chairs Forum meeting at Te Manuka Tutahi, Whakatane, 3-4 August 2017: “Allocation” section, beginning p29 and “Mana Whakahono a Rohe” section, p32. 12

See NPSFM “Implementation Review: Northland – Te Tai Tokerau” (August 2017), p26. 13

These values and perspectives continue to evolve, but we communicate the gist of them here in the spirit of good faith information-sharing. Some items we’ve added to, to provide a Te Hiku-community specific perspective. 14

See below for more on human rights. 15

See RMA link here: http://www.legislation.govt.nz/act/public/1991/0069/latest/DLM7236238.html?search=qs_act%40bill%40regulation%40deemedreg_resource+legislation+amendment+act_resel_25_h&p=1. 16

See New Zealand Local Government Magazine, “15 things you need to know about the Resource Legislation Amendment Act & iwi participation” (1 June 2017), at https://localgovernmentmag.co.nz/lg-magazine/legal/mana-whakahono-a-rohe/. 17

RMA, s58M: http://www.legislation.govt.nz/act/public/1991/0069/latest/DLM7236257.html?search=qs_act%40bill%40regulation%40deemedreg_resource+legislation+amendment+act_resel_25_h&p=1. 18

See New Zealand Local Government Magazine, “15 things you need to know about the Resource Legislation Amendment Act & iwi participation” (1 June 2017), at https://localgovernmentmag.co.nz/lg-magazine/legal/mana-whakahono-a-rohe/. 19

See RMA s58N “Guiding Principles”, at http://www.legislation.govt.nz/act/public/1991/0069/latest/DLM7236258.html?search=qs_act%40bill%40regulation%40deemedreg_resource+legislation+amendment+act_resel_25_h&p=1. 20

See Local Government Leaders Water Declaration (9 October 2017) - full copy available at http://www.lgnz.co.nz/assets/Uploads/LG-Leaders-Water-Declaration-25-October-2017.pdf. 21

See NRC website, https://www.nrc.govt.nz/Your-Council/Council-Projects/New-Regional-Policy-Statement/. The RPS is downloadable at https://resources.nrc.govt.nz/upload/23198/May%202016%20Regional%20Policy%20Statement%20for%20Northland%20-%20operative%20(except%20GE)%20(Web).pdf. 22

Section 2 states “environment includes—

(a) ecosystems and their constituent parts, including people and communities; and (b) all natural and physical resources; and (c) amenity values; and (d) the social, economic, aesthetic, and cultural conditions which affect the matters stated in paragraphs (a) to (c) or which are affected by those matters” 23

RPS, p7. 24

RPS, p7. 25

February 2007, downloadable at https://www.fndc.govt.nz/your-council/strategic-planning/community-development-plans/Pukenui-Houhora-CD-Plan.pdf; with appendices downloadable at https://www.fndc.govt.nz/your-council/strategic-planning/community-development-plans/P-H-CDP-Appendices.pdf. 26

New Zealand Parliament, “Innovative bill protects Whanganui River with legal personhood” (28 March 2017), at https://www.parliament.nz/en/get-involved/features/innovative-bill-protects-whanganui-river-with-legal-personhood/. 27

See the Universal Declaration of Human Rights, accessible at http://www.un.org/en/universal-declaration-human-rights/index.html. 28

ICCPR accessible at http://www.ohchr.org/EN/ProfessionalInterest/Pages/CCPR.aspx. 29

See United Nations page for the International Decade for Action ‘Water for Life’ 2005-2015, at http://www.un.org/waterforlifedecade/human_right_to_water.shtml.

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30

New Zealand endorsed this instrument in 2010. The declaration is downloadable at http://www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf. 31

Ref email from concerned citizen dated 9 November 2017 advising that NRC CEO Colin Dall notified on 5

October 2017 that his reply to said citizen’s MWWUG query would be delayed another week as the consents

manager was “away on annual leave”. 32

Ref email to C Murupaenga-Ikenn. 33

Ref conversations with marae members at a Ngāti Kuri conservation wānanga 15-17 November 2017.

Several prominent members voiced concern regarding the MWWUG application. 34

Downloadable at http://www.ohchr.org/Documents/Publications/GuidingPrinciplesBusinessHR_EN.pdf. 35

United Nations Office of the High Commissioner for Human Rights, “FREQUENTLY ASKED QUESTIONS ABOUT THE GUIDING PRINCIPLES ON BUSINESS AND HUMAN RIGHTS” (2014), p5: document downloadable at http://www.ohchr.org/Documents/Publications/FAQ_PrinciplesBussinessHR.pdf. 36

United Nations Office of the High Commissioner for Human Rights, “FREQUENTLY ASKED QUESTIONS ABOUT THE GUIDING PRINCIPLES ON BUSINESS AND HUMAN RIGHTS” (2014), p9: document downloadable at http://www.ohchr.org/Documents/Publications/FAQ_PrinciplesBussinessHR.pdf. 37

Te Rūnanga o Ngati Ruanui Trust, August 2014: document accessible at 38

http://www.forestandbird.org.nz/about-us. 39

http://www.greenpeace.org/new-zealand/en/. 40

https://www.worldwildlife.org/about. 41

http://www.tourismexportcouncil.org.nz/about/. 42

http://pureadvantage.org/about/. 43

For official launch livestream, see https://www.freshwaterrescueplan.org/press-conference-live-stream. 44

The Freshwater Rescue Plan advocates seven steps. The quote is taken from Step 1. “Protect the health of people and their waterways by setting strict and enforceable water quality standards, based on human and Ecosystem health limits.”: see https://www.freshwaterrescueplan.org/the-plan. 45

These quotes are taken from the Freshwater Rescue Plan’s Step 2. “Withdraw all public subsidies of irrigation schemes, As they increase pressure on waterways.”: see https://www.freshwaterrescueplan.org/the-plan. The quotes relate in particular to the Canterbury water crisis. 46

A similar argument may be made that ratepayer money should not be misused in this way. 47

Her Excellency The Rt Hon Dame Patsy Reddy, GNZM, QSO, Governor-General of New Zealand, on the occasion of the State Opening of Parliament, 8 November 2017. Full speech accessible at https://www.beehive.govt.nz/speech/speech-throne-2017. 48

According to the “SUMMARY DOCUMENT FOR COMBINED APPLICATIONS FOR NEW GROUNDWATER TAKES FROM THE AUPOURI AQUIFER SUBZONES: HOUHORA, MOTUTANGI AND WAIHARARA” downloadable at https://www.nrc.govt.nz/contentassets/214dbdaa2cf84b9692fdf35b135485b3/nrc-summary-of-applications.pdf. 49

17 Nov 2017 email from Angela Stride, ‘Water & Wastes Management Officer, Regulatory Services’, to S Ferens titled, “Information request re MWWUG applications REQ.581172”. 50

According to the “Land Water People” (LWP) peer review report (19 September 2017), downloadable at https://www.nrc.govt.nz/contentassets/214dbdaa2cf84b9692fdf35b135485b3/document-4---lwp-peer-review-report-for-mwwug_aupouri-gw-applications-17-october-2017-website.pdf. 51

Ref email from concerned citizen dated 9 November 2017 advising that NRC CEO Colin Dall notified on 5

October 2017 that his reply to said citizen’s MWWUG query would be delayed another week as the consents

manager was “away on annual leave”. 52

https://www.nrc.govt.nz/Consents/Notified-resource-consents/limited-notification-motutangi-waiharara-

water-users-group-mwwug/.

53 NRC limited notification page.

54 E.g. concerned Ngāti Kuri tangata whenua resident in Te Hiku emailed 7 November for information regarding

iwi consultation. NRC never responded, and on 14 November the MWWUG representative responded that

he’d forward the request on to NgāiTakoto’s representative, Rangitane Marsden. At the time of drafting these

interventions, the requestor is still waiting for a response.

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55

For example Facebook post by concerned community member dated 31 October 2017 states her requests

for information to both FNDC and NRC were not answered. 56

Ref 13 November 2017 email from NRC Colin Dall to S King. 57

Ref 13 November 2017 email from NRC Colin Dall to S King. 58

Ref 13 November 2017 email from NRC Colin Dall to S King. 59

Broadcaster and Naturalist (Royal Society of the Arts, 16 March 2011 – presentation, “People and Planet” at https://www.youtube.com/watch?v=1sP291B7SCw). 60

Gross Domestic Product. ‘GDP’ is shorthand for the size of the economy, and represents the total monetary value of all goods and services produced over a specific time period. 61

Daniel Christian Wahl, “GDP as an insufficient economic indicator & some more systemic alternatives” (17 February 2017), at https://medium.com/@designforsustainability/gdp-as-an-insufficient-economic-indicator-some-more-systemic-alternatives-91d2e8c093df. 62

See “None of the world’s top industries would be profitable if they paid for the natural capital they use” (17 April 2013) at http://grist.org/business-technology/none-of-the-worlds-top-industries-would-be-profitable-if-they-paid-for-the-natural-capital-they-use/. 63

The report by Trucost, “Natural capital at risk: the top 100 externalities of business” (April 2013) states at p7

that “water use” is 25% of the majority of all unpriced natural capital costs on the planet which were included

in the study, second only to greenhouse gas emissions at 38%. The ‘cost’ value of the three “most significant

impacts” was US$4.7 trillion - being GHGs (36%), water use (26%) and land use (25%). This indicates great

uncertainty around the true ‘price’ of industrial water use, and correspondingly an area which has huge

potential to make efficiency gains. Trucost’s report is accessible at http://naturalcapitalcoalition.org/wp-

content/uploads/2016/07/Trucost-Nat-Cap-at-Risk-Final-Report-web.pdf. 64

Many are included in Daniel Christian Wahl, “GDP as an insufficient economic indicator & some more systemic alternatives” (17 February 2017), at https://medium.com/@designforsustainability/gdp-as-an-insufficient-economic-indicator-some-more-systemic-alternatives-91d2e8c093df. 65

See presentation by Kate Raworth, “Doughnut Economics” (18 October 2012), at https://www.thersa.org/discover/videos/event-videos/2012/10/doughnut-economics. 66

http://www.treasury.govt.nz/publications/media-speeches/speeches/livingstandards/sp-livingstandards-paper.pdf. 67

Vox, “Study: Politicians listen to rich people, not you” (28 January 2015), at https://www.vox.com/2014/4/18/5624310/martin-gilens-testing-theories-of-american-politics-explained. The full study is accessible at https://www.cambridge.org/core/journals/perspectives-on-politics/article/testing-theories-of-american-politics-elites-interest-groups-and-average-citizens/62327F513959D0A304D4893B382B992B. 68

Counter Punch, “The Case For Not Voting: In Defense of the Lazy, Ungrateful, and Uniformed” (17 June 2016), at https://www.counterpunch.org/2016/06/17/the-case-for-not-voting-in-defense-of-the-lazy-ungrateful-and-uniformed/. 69

See for example the “Mining, Drilling, Arresting, Imprisoning – Simon Bridges” commentary regarding the National Government’s controversial legislation (dubbed the ‘Anadarko Amendment’ by environmental groups) which criminalises protesting at sea (23 May 2013) at https://fmacskasy.wordpress.com/tag/simon-bridges/, and Scoop’s “The dangers of deep sea oil drilling” (1 October 2013) at http://www.scoop.co.nz/stories/HL1310/S00008/the-dangers-of-deep-sea-oil-drilling.htm. 70

See “None of the world’s top industries would be profitable if they paid for the natural capital they use” (17 April 2013) at http://grist.org/business-technology/none-of-the-worlds-top-industries-would-be-profitable-if-they-paid-for-the-natural-capital-they-use/. 71

Her Excellency The Rt Hon Dame Patsy Reddy, GNZM, QSO, Governor-General of New Zealand, on the occasion of the State Opening of Parliament, 8 November 2017. Full speech accessible at https://www.beehive.govt.nz/speech/speech-throne-2017.

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Intervention: Motutangi-Waiharara Water Users Group

(MWWUG) Cont’d

19 November 2017

PART 2 – SUBSTANTIVE MATTERS – GOOD

DECISION-MAKING

“[A] cluster of interconnected environment-related risks – including […] water

crises– has consistently featured among the top-ranked global risks for the past seven editions of The Global Risks Report.”

(World Economic Forum, 20171)

1. To the extent that they relate to substantive matters concerning the MWWUG application, we repeat our interventions in Part 1 regarding the LGA, RMA, International and other standards.

1.1. Further, we reinforce that the bigger backdrop of global trends and experience warns that most decision-makers across all levels of governance are failing to sufficiently understand the complexities of sustainable freshwater water management. The world-wide pattern of water depletion and degradation, particularly connected with business and industry use, is so evident you’d have to be deliberately turning a blind eye not to see it.

1.2. NRC needs to recognize the real likelihood that it too will, in similar fashion, is on a path of failing to adequately comprehend the full complexities of sustainable, long-term freshwater management, especially in this time of game-changing climate crisis that creates unprecedented levels of uncertainty.

1.3. Therefore, we contend generally that NRC must:

a. Implement an aggressive precautionary approach regarding water allocation, (particularly where the proposition is to allocate for industrial and private business use ahead of environmental and human rights protection);

b. Implement a moratorium on further aquifer water allocations until the NRC application process meets the basic standards of natural justice, democracy and good decision-making; OR (and only as a last resort)

c. Extend the application process as outlined in decisions sought by Council at the end of this intervention.

LOCAL GOVERNMENT LEADERS’ WATER DECLARATION

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“Water is a taonga and our lifeblood. […] Protecting our freshwater - lakes, rivers, streams and groundwater - is important because it ensures there is

enough clean and safe water for all of our uses, now and into the future […] Achieving this will require a collaborative effort from many parties – councils,

communities, central government, Māori/Iwi, business and the primary sector.”

(Signatories to the 9 October 2017 “Local Government Leaders’ Water Declaration”,

including Hon John Carter Mayor, Far North District Council)2

2. On 9 October 2017, the Far North District Council Mayor, John Carter, joined 14 other local government Mayors and Chairs around the country to sign the Local Government Leaders’ Water Declaration.

2.1. That Declaration makes a number of commitments regarding sustainable water management priorities, including recognizing Te Mana o te Wai, improving how everyone values water, working with communities, using better information to inform decision-making on water management, taking an integrated approach to water management, increasing water management standards, and being clear about the true cost of sustainable water management.

2.2. We call on NRC to join as a signatory to this Declaration.

RMA SS5(2)(a)-(c)

4. We repeat our commentary regarding the RMA, in particular ss5(2)(a)-(c) below:

(a) sustaining the potential of natural and physical resources (excluding minerals) to meet the reasonably foreseeable needs of future generations; and

(b) safeguarding the life-supporting capacity of air, water, soil, and ecosystems; and

(c) avoiding, remedying, or mitigating any adverse effects of activities on the environment.

…and state further:

NATIONAL POLICY STATEMENT FOR FRESHWATER MANAGEMENT3

5. As Local Government Leaders, including FNDC Mayor John Carter, remind us4:

“Iwi have a special relationship with freshwater and this is reflected in the statutes and in the National Policy Statement for Freshwater Management (NPSFM). Specifically, the NPSFM requires that freshwater is managed to give effect to Te Mana o te Wai, an integrated approach to freshwater management that recognises the association of the wider community with the rivers, lakes and streams but also the relationship of iwi and hapū and their values with freshwater bodies.” (Our emphasis).

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5.1. In addition, the Ministry for the Environment5 has identified risks for implementation of the NPSFM in our region such as:

a. “NRC’s approach to water quantity limits and allocation is highly permissive. Although new takes from fully or over-allocated water bodies are designated non-complying activities, the draft plan sets allocation limits such that no water bodies would be considered as over allocated. The draft plan does not appear to have provisions to phase out existing over allocation as required under Policy B6 of the NPS-FM”;

b. “We are also concerned about the possible inequalities in representation and resourcing and how this may lead to decisions that do not fairly reflect the full range of community views”; and

c. “Getting sufficient monitoring data, and funding research is a challenge in the region, largely due to resource limitations and the regional geography and water body profile.”

4.1. When you couple the lack of NPSFM-required hapū, iwi and community involvement with the identified NPSFM risks, this reinforces our view that NRC is at enormous risk of failing to meet its obligation to implement pertinent values in the NPSFM concerning the MWWUG application process (if it is not already failing to do so), especially the following values:

Compulsory National Values

5. “Ecosystem health – The freshwater management unit supports a healthy ecosystem appropriate to that freshwater body type (river, lake, wetland, or aquifer).

In a healthy freshwater ecosystem ecological processes are maintained…and there is resilience to change.

Matters to take into account for a healthy freshwater ecosystem include…changes in freshwater chemistry…changes in flow regime…and the connections between water bodies.”6 (our emphasis).

Other National Values7 (environment and people)

“3 billion new middle class consumers by 2030 will cause demand to continue to grow rapidly, while supply will continue to shrink. The

consequences in the form of health impacts and water scarcity will create tipping points for action by governments and societies. The cost to

companies and investors will be significant.”

(‘Trucost’ policy and academic research group, 20138)

6. “Natural form and character – Where people value particular natural qualities of the freshwater management unit.

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Matters contributing to the natural form and character of a freshwater management unit are its biological, visual and physical characteristics that are valued by the community, including:

i. its biophysical, ecological, geological, geomorphological and morphological aspects;

ii. the natural movement of water and sediment including hydrological and fluvial processes;

iii. the location of the water body relative to its natural course;…

vi. the colour of the water; and

vii. the clarity of the water.”

6.1. “Mahinga kai – Kei te ora te mauri (the mauri of the place is intact).

For this value, freshwater resources would be available and able to be used for customary use. In freshwater management units that are valued for providing mahinga kai, resources would be available for use, customary practices able to be exercised to the extent desired, and tikanga and preferred methods are able to be practised.”

6.2. “Water supply – The freshwater management unit can meet people’s potable water needs.

Water quality and quantity would enable domestic water supply to be safe for drinking with, or in some areas without, treatment.”

Pukenui-Houhora Community Development Plan

6.3. We repeat Part 1 interventions in relation to the Pukenui-Houhora Community Development Plan, and emphasise the goals in that plan with regards to the “TRANSPORT AND INFRASTRUCTURE”, i.e. “Planning takes account of present and foreseeable increases in demand on infrastructure that threaten conservation of the special attributes of the area, in particular […], water supply”, including Goal 3.2: “Conserve aquifers (underground water sources).

Other National Values (business and industry)

“The global natural capital cost of water consumption by the primary production and primary processing sectors analyzed in this study is

estimated at US$1.9 trillion. […] Water that is directly abstracted from surface or groundwater is rarely paid for adequately if at all”.

(‘Trucost’ policy and academic research group, 20139)

"De-growth is the way we have to think, get those systems into a sustainable form, which means getting rid of much of the irrigation that's happening

there."

(Mike Joy, Massey University freshwater ecologist, 201710)

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6.4. “Irrigation, cultivation and food production – The freshwater management unit meets irrigation needs for any purpose.

Water quality and quantity would be suitable for irrigation needs, including supporting the cultivation of food crops, the production of food from domesticated animals, non-food crops such as fibre and timber, pasture, sports fields and recreational areas. Attributes will need to be specific to irrigation and food production requirements.”

6.5. “Animal drinking water – The freshwater management unit meets the needs of stock.

Water quality and quantity would meet the needs of stock, including whether it is palatable and safe.”

6.6. “Commercial and industrial use – The freshwater management unit provides economic opportunities to people, businesses and industries.

Water quality and quantity can provide for commercial and industrial activities. Attributes will need to be specific to commercial or industrial requirements.”

a. Note, these business and industry values aren’t superior to the “other” ‘environment and people’ values, but need to be considered in among the other values. They are also subservient to the aforementioned “compulsory” values.

REGIONAL POLICY STATEMENT, NORTHLAND

RPS - Issue 2.1 “Fresh and coastal water” - Aquifers as a health issue

7.1. NRC recognizes (RPS, p13) several:

a. “key pressures on Northland’s fresh and coastal water resources” - including increasing demand on water resources, and climate change; and

b. “significant consequences of these pressures” - including loss of biodiversity, increased health risks and constraints on water-dependent industries.

7.2. NRC states that “many of [Northland’s] aquifers are within Ministry of Health standards.” (RPS, p15).

7.3. We contend that:

a. The risks of a “significant consequence” are high enough to outweigh the applicants’ alleged benefits; and

b. There are significant health risks concerning water over-allocation that ought to be of such interest that all local health agencies/services (like Te Hiku Hauora), and the Northland District Health Board (NDHB) should be consulted.

RPS - Objective 3.1 Integrated catchment management

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7.4. NRC describes this objective as “Integrate the management of freshwater and the subdivision, use and development of land in catchments to enable catchment-specific objectives for fresh and associated coastal water to be met.” (RPS, p33).

7.5. NRC catchment plans identify for each catchment:

a. Uses and values relating to freshwater (and in many cases coastal water);

b. The issues identified in the catchment and the outcomes sought (objectives); and

c. Recommended regulatory (I.e. rules) and non-regulatory actions to improve the way the catchments are managed.

7.6. Catchment plans are therefore an important aquifer management tool: NRC states, “Catchments are the most appropriate unit for managing water. Catchment-based management involves taking into account all activities that impact on water quality and quantity and associated uses and values. It also involves developing catchment specific solutions to water issues informed by local social, cultural, economic and environmental considerations.” (RPS, p33).

7.7. Despite their importance, NRC does not have catchment plans for all areas: “In Northland, there are over 1,000 source-to-sea stream and river catchments ranging in size from about 3,600 square kilometres in the Kaipara Harbour catchment down to very small coastal stream catchments (less than one square kilometre), more than 100 lake catchments and numerous groundwater catchments (aquifers). Given the large number of catchments, they will be need to be prioritised and in some cases grouped for management.

a. The regional council has committed to a catchment-specific approach to water resource management through its programme (Waiora Northland Water) for implementing the National Policy Statement for Freshwater Management 2011.” (RPS, p33).

7.8. NRC prioritized five catchment plans “chosen because water related issues had been identified and there was local interest in partnering with council to find solutions.”11 However, there is no NRC catchment plan for Te Hiku. This might lead one to speculate that either (a) water related issues had not been identified, and/or (b) locals weren’t interested in partnering with council to find solutions. However, it is difficult to imagine (b) as the case given that the local community has already partnered with FNDC to produce its Pukenui-Houhora community development plan.

7.9. We contend that the absence of a Te Hiku catchment plan adds to the concerns and uncertainty (e.g. raised already in the Lincoln Agritech 2015 Aupouri Aquifer report) around ensuring sustainable aquifer allocation. Therefore, the application should not proceed unless and until sufficient quality catchment information is prepared regarding the Te Hiku aquifer.

RPS - Objective 3.3 - Ecological flows and water levels

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7.10. NRC describes this objective as “Maintain flows, flow variability and water levels necessary to safeguard the life supporting capacity, ecosystem processes, indigenous species and the associated ecosystems of freshwater.” (RPS, p35).

7.11. NRC says it achieves this objective through (among other things) integrated catchment management. However:

a. As shown above, there is no catchment plan for Te Hiku. Therefore, the very act of NRC considering aquifer take applications in the absence of such a critical management tool must surely exacerbate the aquifer management risk?; and

b. The Lincoln Report (pp39-40) raises a risk re groundwater levels for the Motutangi area:

“This area has a low hydraulic gradient, and the projected deep aquifer base in this area gives a high sea water intrusion threshold level using the Ghyben-Herzberg approximation. As a result, groundwater levels at the recommended Motutangi monitoring site do not meet the threshold groundwater water levels during model calibration[…] the relatively flat hydraulic gradient and deep aquifer base do indicate that the Motutangi area is an area of potential risk for seawater intrusion.” (Our emphasis).

7.12. It also appears that the MWWUG applications, if granted for the Motutangi sub-region, would allocate a greater volume than the recommended limits for that sub-region in the proposed plan. In the Motutangi sub-region, this risks impeding future:

a. Development that depends on a ground water consent; and

b. Domestic groundwater bores (currently a permitted activity under the proposed Regional Plan).

7.13. We contend, therefore, that given incomplete ecological flows and water level information, an NRC decision to allocate the aquifer resources violate:

a. Good practice standards of making fully ‘integrated’ and informed decisions; and

b. The precautionary principle.

7.14. We call on NRC to implement the Lincoln Report recommendations, especially that (p40) “further investigations be carried out prior to further allocation in the Motutangi sub-region”.

RPS - Policies and methods - Water, land and common resources

7.15. NRC states (under Policy 4.3.4 – Water harvesting, storage and conservation), “Security and reliability of supply can be increased by harvesting and storing water for distribution and use during shortages.” (RPS, p63).

7.16. It is easy to imagine that, with increasing climate crisis pressures, communities may need to harvest aquifer water. However, communities’ ability to do so will be put at

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risk if they’re forced to compete with business and industry – particularly if the aquifer resource has been over-allocated due to decisions made based on insignificant quality data.

PROPOSED REGIONAL PLAN FOR NORTHLAND12

8. We understand that NRC is legally bound to take the proposed RPN into account as well as the current RPN.

8.1. We contend that NRC is bound to take the strongest standards into account, whether they are contained in the proposed or existing RPN.

DECISIONS SOUGHT BY COUNCIL

9. We call on NRC to:

Procedural failures

9.1. Recognize the numerous ways in which NRC’s MWWUG aquifer resource consent decision-making process so far has demonstrably failed to meet its good governance and decision-making obligations, especially with respect to tangata whenua/whānau, hapū and iwi (at Part 1, paras 4.3-5), as defined by/ under:

a. Te Tiriti o Waitangi – particularly with regards to effective freshwater management and the imperative to improve local governance with respect to:

i. Ensuring quality tangata whenua engagement in decision-making;

ii. Recognizing iwi rights, values and perspectives;

iii. Ensuring the full realisation of environmental and human rights, including “Te Mana o te Wai” and the human right to clean drinking water;

iv. Developing and implementing:

Management standards which are fit for these times of increasing climate crisis uncertainty and environmental shocks;

An effective ‘user assessments’ system; and

Effective limit-setting, monitoring and compliance systems;

b. The LGA 2002;

c. The RMA 1991 – including that NRC must:

i. Uphold the RMA’s sole purpose (i.e. to sustainably manage the aquifer, which includes empowering communities to provide for our social, economic, and cultural well-being and for our health and safety by considering the overall impact of the applications, not merely by achieving a balance between suggested benefits and adverse effects); and

ii. Recognize that, re “matters of national importance” and “other matters” (RMA ss6-8), our community has a significant interest in the proposed effects of MWWUG’s proposed activities;

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d. The National Policy Statement for Freshwater Management;

e. The Regional Policy Statement for Northland;

f. The Pukenui-Houhora Community Development Plan;

g. International law and standards; and

h. Social license of the affected community;

9.2. Note that the precedent-setting parliamentary act in March 2017 of granting legal personhood to the Whanganui river both:

a. Reinforces tangata whenua’s perspectives regarding “Te Mana o te Wai”; and

b. May attract a real legal risk that any NRC decision which over-allocates (or leads to an over-allocation of) our aquifer waters may be challenged in the courts based on abuse, harm, or the worst case scenario of “murdering” the aquifer; and

9.3. Be actively aware of risks of structural economic and monetary bias that undermines the integrity of NRC’s decision-making;

AND THEREFORE, that NRC:

General

9.4. Acknowledges:

a. Given the significant implications of MWWUG’s resource consent application for our environmental and human rights, all members of our affected community have the right to have a say about this resource consent; and

b. Such activities shall, on principle, only proceed with our affected communities’ free, prior and informed consent;

9.5. Responds meaningfully to mitigate the risk of aforementioned structural economic and monetary bias by ensuring a ‘fair and level playing field’ in all respects as between the business and industry applicants and the affected community, by (at a minimum):

a. Implementing an aggressive precautionary approach regarding water allocation, (particularly where the proposition is to allocate for industrial use ahead of environmental and human rights protection);

b. Requiring applicants to provide a comprehensive ‘accounting’ of:

i. The full range of environmental, social, cultural and economic effects; and

ii. The demonstrable NET benefits that will result from the proposed activity across that full range of environmental, social, cultural and economic metrics; and

c. Providing the affected community:

i. Meaningful opportunity to respond to that ‘accounting’; and

ii. Access to NRC technical support to produce their response; AND

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9.6. Either:

Allocation moratorium

a. Implements a moratorium on further aquifer water allocations until the NRC application process meets the basic standards of natural justice, democracy and good decision-making; OR (and only if a moratorium is impossible for legal or other compelling reasons)

Extension of application process

b. Extends the public consultation period to provide the affected parties with a fair amount of time, all things considered, to produce fully informed interventions on the application;

c. Widens the definition of “affected parties” to be inclusive of all who have a significant interest in the application, i.e. all (a) Te Hiku peninsular ratepayers and (b) affiliated tangata whenua; and

d. For full transparency and accountability in its resource consent decision-making process, treats all interventions made by local ratepayers and/or community members (whether as signatories attached to our intervention, or independently; and whether “affected parties” or not) as individual ‘submitters’ having standing in their own right (in both a quantitative and qualitative sense) to be included in the transparent accounting of submitters’ views – i.e. with respect to persons who (whether apparently, or in fact) are using a ‘template submission’, NRC should not treat them all as one submission, but include them separately in the accounting of submitters views; AND

Priority Allocation

9.7. Ensures it protects (a) Te Mana o te Wai, (b) affected local communities’ right to a healthy environment, (c) local residents’ human rights to access clean drinking water and (d) whānau, hapū, iwi te Tiriti and indigenous peoples’ human rights regarding our natural resources by, for example:

a. Collaborating with FNDC to apply on behalf of:

i. Te Wai; ii. Affected local communities; iii. Local residents; and iv. Whānau, hapū, iwi:-

for a resource consent for community allocation of aquifer freshwater which is prioritized ahead of the MWWUG application or any other private business and/or industry application; and

b. Significantly reducing water harvesting allocation for business and industrial use by, at a minimum ensuring alignment with and implementation of the Lincoln Report recommendations, especially (p40) “further investigations be carried out prior to further allocation in the Motutangi sub-region”; AND

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Proposed Regional Plan - Freshwater roadmap

9.8. Takes into account the strongest freshwater management standards, whether they are contained in the proposed or existing Regional Plan for Northland;

9.9. Integrates into NRC’s key planning documents, including the Proposed Regional Plan, the priority to develop and approve a roadmap for urgent implementation which reflects the seven steps of the “Freshwater Rescue Plan” (8 June 2017), including measures to increase NRC capacity where capacity is lacking, and:

“1. Protect the health of people and their waterways by setting strict and enforceable water quality standards, based on human and ecosystem health limits.

2. Withdraw all public subsidies of irrigation schemes, as they increase pressure on waterways.

3. Invest in an agricultural transition fund, to support the country's shift towards environmentally-sound primary industries by redirecting $480 million of public money earmarked for irrigation.

4. Implement strategies to decrease cow numbers immediately.

5. Reduce freshwater contamination by instigating polluter pays systems nationally.

6. Address the performance of regional councils on improving water quality through quarterly reports from the ministry for the environment on enforcement, breaches and monitoring.

7. Adopt OECD recommendation to establish a "whole-of-government, multi-stakeholder process to develop a long-term vision for the transition of New Zealand to a low-carbon, greener economy””; and

9.10. Joins FNDC’s Mayor, John Carter, in signing up to, and committing to the urgent implementation of, the Local Government Leaders’ Water Declaration (2017).

-------------------------------

THIS INTERVENTION IS SUPPORTED BY THE FOLLOWING AFFECTED COMMUNITY MEMBERS, TANGATA WHENUA, RESIDENTS, RATEPAYERS AND TE HIKU CITIZENS:

[Name]: Catherine Murupaenga-Ikenn

[Status]: Tangata whenua (Ngāti Kuri and Te Rarawa) [Additional information]: B.L/B.Soc.Sci, LLM; United Nations Office of the High Commissioner for Human Rights Indigenous Fellow (2005); Ngāti Kuri Representative on the National Iwi Chairs Forum Climate Change Iwi Advisory Group.

Date: 22 / 11 / 17 Signature:

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[Name]: _________________________________________________________________

[Status: bore holder, community member]:_______________________________________ [Additional information]:______________________________________________________

Date: ___ / 11 / 17 Signature: ________________________________________________

[Name]: _________________________________________________________________

[Status: bore holder, community member]:_______________________________________ [Additional information]:______________________________________________________

Date: ___ / 11 / 17 Signature: ________________________________________________

[Name]: _________________________________________________________________

[Status: bore holder, community member]:_______________________________________ [Additional information]:______________________________________________________

Date: ___ / 11 / 17 Signature: ________________________________________________

1 Quote taken from the World Economic Forum’s “Global Risk Report” (2017), p16. Full report accessible from

http://reports.weforum.org/global-risks-2017/. 2 Full copy available at http://www.lgnz.co.nz/assets/Uploads/LG-Leaders-Water-Declaration-25-October-

2017.pdf. 3 http://www.mfe.govt.nz/sites/default/files/media/Fresh%20water/nps-freshwater-ameneded-2017_0.pdf.

4 See Local Government Leaders Water Declaration (9 October 2017) - full copy available at

http://www.lgnz.co.nz/assets/Uploads/LG-Leaders-Water-Declaration-25-October-2017.pdf. 5 See NPSFM “Implementation Review: Northland – Te Tai Tokerau” (August 2017), p26.

6 “Human health for recreation” is the other compulsory value.

7 Wai tapu is another “other” value. Whānau, hapū and iwi are best placed to give expert evidence on this

aspect.

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8 Quote taken from the report by Trucost, “Natural capital at risk: the top 100 externalities of business” (April

2013), at p6. Trucost’s report is accessible at http://naturalcapitalcoalition.org/wp-content/uploads/2016/07/Trucost-Nat-Cap-at-Risk-Final-Report-web.pdf. 9 Quote taken from the report by Trucost, “Natural capital at risk: the top 100 externalities of business” (April

2013), at p10. Trucost’s report is accessible at http://naturalcapitalcoalition.org/wp-content/uploads/2016/07/Trucost-Nat-Cap-at-Risk-Final-Report-web.pdf. 10

Radio New Zealand, “Water Fools? - 'Recharging' Canterbury's aquifers” (19 April 2017), at http://www.radionz.co.nz/programmes/water-fools/story/201840837/water-fools-recharging-canterbury-s-aquifers. Regarding Canterbury dairy farmers proposed plan to inject fresh water back into the ground to recharge threatened aquifers, Mike Joy says “he had not seen a single piece of evidence that managed aquifer recharging actually benefited the environment”, and “The technology was a public relations trick […] an attempt to fix up mistakes that were made in the past”. 11

See NRC’s Catchment plans site here. 12

https://www.nrc.govt.nz/contentassets/506f48db06744ab782c65e56acd19dde/proposed-regional-plan-september-2017-final-7-sept-2017.pdf.