7. Resource Management Act 1991

The Resource Management Act 1991 came into force on 1 October 1991. The Act contained savings provisions for rights granted under the Water and Soil Conservation Act 1967.

Under section 386(1) of the Resource Management Act water rights granted under the RMA were deemed to become water permits granted under the RMA under “the same conditions” by the Regional Council from 1 October 1991. ECNZ’s water rights granted under section 21(7)…

Section 365(d)(v) had an express saving for:

“The Order in Council entitled Rights Conferred on the Minister of Electricity to Dam, Use, Discharge, and Divert Waters of, or into, Lakes Tekapo, Pukaki, and Ohau, published in the Gaxette, 1969, volume II, at page 1560”.

This meant that these water rights became deemed resource consents, arguably expiring after 35 years.

The long gestation period of the legislation (introduced in 1989) and its spanning of two Governments plus the fact that Electricorp was still in the process of obtaining new consents for its activities in the Waitaki may be the reason for the express saving. The present consents (water rights) were not granted until 1 February 1991 and it is noted from the earlier water right applications that Electricorp still had to apply for some consents. The wording of the savings provision in the RMA could have been interpreted as making Electricorp’s activities lawful, even though Electricorp did not seek a 21 year renewal of its rights as provided for in the 1969 Order in Council.

Section 164 of the Resource Management Amendment Act 1993 repealed Section 365(d)(v) and the reference to it in Section 386(1)(a)(iii). The repeal could have been because of a concern that the instrument was still alive at the time of considering the special empowering legislation for the lowering of the level of Lake Pukaki. The intention could have been to make it clear that the RMA is the statutory instrument under which controls are placed on future uses of water in the Waitaki Basin. Also by that time Electricorp had presumably obtained all the resource consents required for its activities under the Resource Management Act 1991.

When Meridian was formed on 1 April 1999 as a result of the split of ECNZ into the three state-owned enterprises, the resource consents for the Waitaki Power Scheme held by ECNZ were transferred to Meridian, as the new owner and operator of the Waitaki Power Scheme.

Note: The basis of the transfer of these water rights to Meridian is not known.

7.1. Environment Court Declaration

To quote from a recent Environment Court decision on an application for declarations under section 311 of the Act in respect of existing permits in the Waitaki River catchment (C125/2003):

[31] It is possible, although very unlikely, that some residents of the Waitaki catchment have legitimate expectations as to future irrigation water rights based on the 1969 Order in Council. However I doubt very much that the Environment Court has any jurisdiction in relation to that issue. …

[33] I hold that on the history of the Order in Council as explained to me …, it is defunct. The water permits were granted under a different statutory provision (section 21(3) rather than section 23(7) of the WSCA); by a different authority – the CRC rather than the Governor-General in Council; and for a different term. They have replaced the Order in Council. The latter was repealed when it expired: section 29 Interpretation Act 1999.

[34] There is no reference in the Standing Tribunal’s Report and Recommendations of 1991 to the Order in Council or any part of it continuing. To the contrary, in its report the Tribunal noted that the applicant, ECNZ, saw the expiry of the Order in Council in 1990 as: “the appropriate date for applying for water rights for the Upper Waitaki.”

[35] The existence of the Order in Council and its imminent demise (and the presence of the dams and canals) operated under the Order in Council’s authority) were part of the surrounding matrix of facts when ECNZ applied to the CRC for replacement water rights in 1990. But that was the Order in Council’s only real relevance, and does not make it part of the water permits now.

7.2.  In Summary:

A recent Environment Court declaration states that on the history of the 1969 Order in Council as explained to the Court the OIC was defunct.