6. New Water Rights for Electricorp 1991

Electricorp applied for new consents for the Upper and Middle Waitaki on 17 May 1990. The Report and Recommendation of the Tribunal records that the Corporation:

“saw the expiry of the Order in Council as an appropriate date to aim for in applying for water rights for the Upper Waitaki. It also believed it appropriate to join applications for rights for the mid-Waitaki stations with the applications for the Upper Waitaki. This will enable the management of the Waitaki River to be undertaken in an integrated manner.

In August 1988 the Waitaki Catchment Board convened a public forum to consider the issues involved in setting a minimum flow for the Lower Waitaki River under Section 20J of the Water and Soil Conservation Act 1967. The outcome was an agreement by all parties as to an appropriate setting of a minimum flow on an interim basis, and the establishment of a working party to initiate and oversee studies which would provide the information necessary to set a definitive minimum flow.

Following the success of the above working party the same concept was agreed to by the Waitaki Catchment Board and Electricorp for the consideration of water right issues. A forum of 16 interest groups met in March 1989. Further interest groups joined during the consultation process which resulted in eight meetings. From its formation on 1 November 1989 the Canterbury Regional Council continued the Working Party as a public forum open to anyone with an interest in the Waitaki Catchment.

It was by these means that the Applicant and competing users gained a better understanding of each other’s requirements, and we would like to take this opportunity to comment on the Working Party concept. The work of the Working Party in this case clarified the complex issues being studies which resulted in the concise presentation of evidence. This in turn facilitated the Hearing procedures and we recommend that the concept be considered in the future for other major issues. The consensus arrived at and presented to us has certainly made our consideration of the issues a much more straightforward task. We also note that all parties were of the same view as to the success of the Working Party. “

6.1. The Working Party

The Working Party was mainly comprised of central and local government agencies and interest groups, although it is described as a “public forum”.[21] It is not known how widely disseminated the work of the Working Party was, but it is understood that members of the Press could attend. It is noted that the attendance varied over time. Representatives from the Opihi Augmentation Society and Federated Farmers attended most but not all of the meetings.

Meridian has provided background material on meetings of the Working Party including the minutes of meetings and handwritten notes from Electricorp attendees.

The Mackenzie District Council (6 March 1990) circulated its ideas and concerns prior to the formulation of a water right application to all Waitaki Water Resources Working Party members. It said:

“Seeks for provision to be made for the future irrigation of the Mackenzie Basin, ideally as an adjunct to the Opihi Scheme (Lake Tekapo).

Supports the abstraction of water for present and future irrigation (Tekapo Canal)

The Mackenzie DC would ask that the present stock water systems operating from the canals, lakes and other systems be protected; similarly irrigation scheme potential use right as in the original Order in Council …” (General).

The Mackenzie District Council did not make a submission/objection on the applications, but it is noted that the Council signed the joint agreement and also a separate agreement with Electricorp.

6.2. Applications

The applications are stated as pursuant to section 21(3) of the Water and Soil Conservation Act 1967 and are for water rights specified in a schedule in respect of the Waitaki Power System for a term of 35 years. The applications also contained support documentation in two volumes.

In the support documentation is a section titled the Waitaki Power System. Under the heading of Background to Waitaki Power Developments on pages 145-146, the following appears:

“Current Operating Authorisation.

The construction of the power schemes on the Waitaki River were initially authorised by Orders in Council dated 24 April 1929 and 27 September 1939. Copies of these are attached in volume 2.

The Electricity Corporation of New Zealand’s (hereafter referred to as the Corporation) current right to utilise the waters of the Upper Waitaki System is embodied in an Order in Council dated 18 August 1969. By this Order in Council the Governor-General granted to the Minister of Electricity the rights to dam, use, divert and take the waters of the Fork Stream, Lakes Tekapo, Pukaki and Ohau and the Tekapo, Pukaki and Ohau Rivers. These waters had previously been declared to be waters of national importance, by a prior Order in Council.

The Order in Council dated 18 August 1969 specifies no conditions on the rights granted for generation of electricity, except for maximum controlled levels and maximum flood levels for Lakes Tekapo, Pukaki and Ohau.

It does however, direct that the Regional Water Board can grant certain rights for other purposes (apart from the generation of electricity) as follows:

irrigation – up to a maximum of 520 cusecs and a total volume 140,000 acre feet during one irrigation season

for purposes other than domestic needs, the needs of animals and irrigation, up to a total of 20 cusecs

without limit, if the water is returned to the source from which it was taken at substantially the same level

for domestic needs and the needs of animals – up to a total of 140 cusecs.

The rights conferred by the Order in Council dated 18 August 1969 were granted for a period of 21 years, with successive rights of renewal, for so long as the Minister of Electricity required the use of the water for generation of electricity. The first term of the Order in Council therefore expires on 18 August 1990.

The Corporation took over the assets of the Electricity Division of the Ministry of Energy on 1 April 1987 pursuant to the State Owned Enterprises Act 1986 and pursuant to the Asset Sale and Purchase Agreement dated 31 March 1988 between the Crown and the Corporation. These assets included the water rights held by the Crown, and therefore the water rights granted to the Crown by the Order in Council.

The Corporation is the statutory and contractual successor to the Minister of Energy and as such is the body which now holds the water granted in the Order in Council and has the right to exercise the right of renewal specified in the Order.

The Corporation holds water rights pursuant to section 21 (3) of the Water and Soil Conservation Act 1967 for the utilisation of the waters of Doctors Creek and Wairepo Stream. Apart from these all rights for the utilisation of the water in the mid-Waitaki are existing use rights pursuant to section 21(2) of the Water and Soil Conservation Act 1967.”

Volume 2 included copies of Orders the Council dated 24 April 1929, 27 September 1939, 11 November 1968 and 18 August 1969. Volume 2 also included executive summaries of reports received by the Waitaki Working Parties and the statement: “Once all reports are completed a compiled copy of all reports will be filed”. These reports have not been sighted.

Support documentation in Volume 2 of the 1990 application includes a summary of work done by R Ramsey Historical Records of Newspaper Files 1989. The summary states:

“Irrigation-Stock Water

There has always been a commitment to stockwater where the original river source has been isolated-depleted.

There has always been a commitment to irrigation water supply from the Upper Waitaki system – the scope for irrigation has been addressed but what has been developed in comparison seems minuscule. General concept – the use of water for hydro development should not hinder agricultural development.

Lake Ohau – Lake Pukaki

There is the suggestion that Pukaki’s new height included an element of irrigation – “the top three feet”.[22]

The support documentation also states “the major use of water extracted from the River, and hence lost to other uses, is for irrigation purposes. The [sic] exceeds 32 cumecs over the summer months.” [23]

Volume 1 contains a section on public consultation covering the Waitaki Working Party, issues considered, and the studies commissioned and reports received. This is included as an attachment. Section 7.5 states:

“Issues Considered

A number of issues were identified at the initial forum, which were outside the scope of the water right process. It is understood that these will be addressed in the preparation of a Catchment Management Plan in the future[24]. The issues which were referred to the working party were those which more directly affected the water allocation process and included … “

The text then makes specific mention of a number of issues, including irrigation.

The notification documentation for the applications has not been sighted.

6.3. Agreements with Parties to the Electricity Corporation’s Water Rights

The matters all parties to the water right consultation process agreed should be conditions on the water rights were included in a joint agreement (see Attachment). The joint agreement was forwarded to the Canterbury Regional Council as a recommendation asking for the Canterbury Regional Council to adopt these conditions for the Electricity Corporation’s water rights.

The parties to the Agreement to the Electricity Corporation’s Water Rights were the Minister of Conservation, South Canterbury Fish and Game Council, Ngai Tahu Trust Board, Benmore Irrigation Company Ltd, The New Zealand Canoeing Association Incorporated, Mackenzie District Council, Lower Waitaki Irrigation Company, Maerwhenua District Water Resource Company Limited, Morven Glenavy Ikiwai Irrigation Company, Transit New Zealand, South Canterbury Branch Royal Forest and Bird Society and the New Zealand Salmon Anglers Association Incorporated. The Agreement refers in the narrative to the Benmore Irrigation Scheme and Lower Waitaki Irrigation.

A separate agreement covered the other matters the parties agreed could not be formally incorporated into the water rights. There were specific side agreements with the parties (see Attachment). The side agreement between the Electricity Corporation and Benmore Irrigation Company Ltd require the Corporation to apply for a variation to its condition on its water right to dam the Ohau River at the Lake Control Weir, three months before the initial commencement of the abstraction for its irrigation scheme, pursuant to Section 24B Water and Soil Conservation Act 1967, as follows:

“If irrigation abstractions from the Ohau River by the Benmore Irrigation Company Ltd, its successors or assigns, commence during October in any year, the minimum flow release shall be increased to and maintained at not less than 10 cumecs until the 1st day of November of the same year forthwith upon Electricity Corporation shall being notified by the Regional Council of the date of the commencement of the irrigation abstraction.”

There was a side agreement with the Lower Waitaki Irrigation Company, Maerewhenua District Water Resource Company Ltd and the Morven Glenavy Ikawai Irrigation Company, jointly referred to as “The Lower Waitaki Irrigators”. The Electricity Corporation acknowledged that large flow fluctuations can impose additional operating costs on the irrigation schemes which abstract water from the Lower Waitaki and agreed to fund the costs of all instream works necessary to be carried out by the schemes’ operators to ensure appropriate inflows into the irrigation schemes where these works are occasioned by operationally induced flow fluctuations. Other agreement was reached on the minimum flow regime, notification on expected flow in the Lower Waitaki and bi-annual meetings to discuss the operation of the agreement and any improvements/modifications required.

It is noted that the joint agreement states that it was completed in anticipation of the passage of the RMA, but that it was now clear the applications would be determined under the Water and Soil Conservation Act. The parties agreed that the Canterbury Regional Council be requested to issue the rights for a term of 35 years from 18 August 1990 with a review every seven years of the conditions included in this schedule to examine their appropriateness and efficacy.

It is also noted that the agreements with the parties contained background to the water right applications.

6.4. Submissions/Objections, Hearing and Decision

There were ten objections, some of which were from members of the Working Party and had reached separate agreements with the Applicant. Four submissions were received.

A draft Waitaki River Catchment Management Plan – Mainstream Flow Allocation Policy was adopted by the Canterbury Regional Council on 2 November 1990. The draft was discussed with the Working Party and was also circulated as a draft to objectors and submitters to the Electricorp water right applications, along with a summary of draft conditions, for comment[25].

The Draft Policy was for the status quo for electricity generation, described as not allowing any potential hydroelectric use of any water beyond that currently used for electricity generation, until a new catchment management plan had become operative. It provided that water continue to be allocated to the existing hydroelectric system except where Council determines water is required for the needs of other significant values (including irrigation) and where those values cannot be provided for elsewhere in the locality. The Draft Policy also states that the Waitaki Working Party comprising water user groups continue as the consultative forum for resource management issues within the Waitaki Catchment, and a key consultative group for the preparation of a total Waitaki Catchment Management Plan (possibly 1992).

Evidence given at the hearing for the Canterbury Regional Council summarises the existing uses and values of the waters of the Waitaki. Under the heading abstractive uses McCallum comments: “currently some 2546 ha are under irrigation in the Upper Waitaki, 931 ha from the Benmore, Aviemore, Waitaki Lakes catchments … . Depending on factors such as the suitability of particular soil types to irrigation, the practicality of water distribution from various sources and the type of irrigation (border-dyke, spray), some 42,000 ha has been estimated as being potentially irrigable in the Upper Waitaki.”

The Benmore Irrigation Company did not object to the water right applications but did make a submission and was a party to an agreement with the Applicant.

The Mackenzie Branch Federated Farmers put in a submission related to retaining the potential irrigation provisions that were in the 1969 Order in Council. It said:

“On behalf of Mackenzie Branch of Federated Farmers I would like to make the following submission to the 1990 Electricorp water rights hearing for the Waitaki river:

“That the provisions of the Order in Council 11 Nov 1968 [sic], third schedule remain essentially intact” (ref. Electricorp application vol 2 page 47)

We feel that these provisions are the minimum necessary to maintain continued development of agriculture and to service associated industries in the area. Irrigation water could play a large part in the restoration of land depleted by the present rabbit and hieracium disaster.”

It is noted that the decision contained the following:

“That the rights granted … be not issued until the rights held by Electricity Corporation of New Zealand Ltd under Sections 21(2) and (3) of the Water and Soil Conservation Act 1967 associated with the Waitaki hydro-electric system are surrendered”.

It did not specifically refer to the rights granted under the Order in Council 1969.

It appears that the decision did not contain the condition requested for the review every seven years, although it is noted these are included in the agreements with the parties. The Tribunal considered that the legislation would not allow a condition of this kind to be imposed. It recorded the evidence and undertakings presented to it and made it clear that these strongly influenced its decision to recommend the grant of rights with a duration of 35 years.

The 1991 Tribunal Report and Recommendations was generally in line with the conditions sought by the Applicant and those who had signed the agreements with Electricorp prior to the hearing. The decision records that a number of parties, including the Mackenzie Branch of Federated Farmers, did not appear at the hearing.

There were no appeals to the Planning Tribunal. Following the decision there was apparently a meeting of the Waitaki Working Party to discuss the decision. The parties did not appeal the decision.

6.5. In Summary:

A working party representing interest groups was established, and over a number of months the parties held a series of meetings and commissioned a number of reports to consider the environmental, recreational, social, cultural, and economic values and opportunities of the Waitaki River Catchment resources.

The Working Party provided important background to the applications by Electricorp for water rights for the Upper and Mid Waitaki.

The working party process resulted in agreements between Electricorp and the Minister of Conservation, South Canterbury Fish and Game Council, Ngai Tahu Trust Board, Benmore Irrigation Company Ltd, The New Zealand Canoeing Association Incorporated, Mackenzie District Council, Lower Waitaki Irrigation Company, Maerwehnua District Water Resource Company Limited, Morven Glenavy Ikiwai Irrigation Company, Transit New Zealand, South Canterbury Branch Royal Forest and Bird Society and the New Zealand Salmon Anglers Association Incorporated.

The applications sought a duration of 35 years, reflecting the maximum duration for water and discharge permits in the Resource Management Bill.

The parties agreed on a series of provisions and conditions to be applied to the Electricity Corporation’s operational water rights as conditions where legally possible and otherwise incorporated as provisions in separate agreements between the parties.

The document recording the series of agreements between all the parties and the Electricity Corporation formed a joint submission to the Canterbury Regional Council asking for the adoption of the conditions set out in the agreement on the Corporation’s Water Rights. The side agreements were also provided at the hearing for information.

The Regional Council largely adopted the conditions set out in the agreement. There were no appeals to the Planning Tribunal.

Any person could make an objection or submission on the water right applications and if unhappy with the decision appeal to the Planning Tribunal.

The Mackenzie Branch Federated Farmers made a submission related to retaining the potential irrigation provisions that were in the 1969 Order in Council, but did not appear at the hearing.

21 An Electricorp internal memo of 9 March 1989 states: “The Waitaki Catchment Board and Regional Water Board have organised a working party of interest groups to discuss the future management of the Upper Waitaki water resource. … The workshop is to be held … starting at 9 am Wednesday 15 March 1989 and concluding around 3 pm on Thursday 16 March.
Approximately 30 people will attend with representation from Mackenzie County Council, Department of Conservation, South Canterbury Acclimatisation Society, Waitaki Valley Acclimatisation Society, Water Resources Survey, Waitaki Catchment Board, South Canterbury Catchment Board, Ministry for the Environment, Opihi Augmentation Society, Ministry of Agriculture and Fisheries and Electricorp. ..
The format of the forum will be informal on day one, with round table discussions followed possibly on the morning of day 2 by a field trip.”
Up until 1990 there were two working parties – the Upper Waitaki Resources Working Party and the Lower Waitaki Minimum Flow Working Party. The two combined to form the Waitaki River Water Resource Resources Working Party.

22 Page 33, Volume 2.

23 Page 214 Volume 1

24 An Unpublished Report Environment Canterbury Number U:03/70 Waitaki River Catchment Water Allocation 24 September 2003 page 20 states:
“In 1992 immediately following the granting of water rights to Electricorp, a proposal to continue to develop the Waitaki River Catchment Management Plan was put forward in Environment Canterbury’s draft annual plan. The proposal was budgeted for and the process of consulting with the community commenced. There were at least two community meetings held, including one at Kurow and one at Omarama, where there was strong opposition to proceeding with a plan on the basis that it was not necessary for the catchment.
There was considerable community opposition to funding a plan that was seen as being unnecessary in view of the fact that water rights had already been determined under the Water and Soil Conservation Act 1967. As the local community did not support it, Environment Canterbury decided not to continue with it at that time.”

25 Letter of 5 October 1990 from Canterbury Regional Council