Lawyers round off arguments in water bottling appeal

Lawyers have rounded off their arguments in the Rotorua High Court. Photo / File

Lawyers for those battling for the right to water at Otakiri have rounded off their arguments at the end of a four-day high court hearing in Rotorua.

In previous days, the court gallery was packed with spectators and lawyers had to deal with heckling from the crowd, but the final day, on Thursday, was a more low-key affair with few coming out to hear the final submissions.

Te Runanga o Ngati Awa, Ngāti Pikiao Environmental Society, Ngāi Te Rangi and community group Sustainable Otakiri have taken their fight against the expansion of the water bottling plant at Otakiri to the High Court after their appeals were dismissed by the Environment Court in a split decision late last year.

Lawyers for Ngāti Pikiao and Ngāti Awa noted that a split two-to-one decision by the Environment Court was unusual.

A key issue in the Environment Court's decision was whether it could consider the adverse effects of plastic bottles and the exportation of water as neither are controlled under the Regional Plan or the Resource Management Act.

It concluded that both were outside its jurisdiction.

Creswell NZ, a subsidiary of Chinese bottling giant Nongfu Springs, seeks to expand the small plant and export billions of bottles of pure spring water to China each year.

Creswell managing director Michael Gleissner sat in the public gallery every day of the hearing.

Counsel for the three iwi appellants said the Environment Court erred when it decided it could not consider the end use of the water, only the water take itself. They said this decision early on gave the court "funnel vision" and affected its final decision.

The iwi are jointly challenging the resource consent granted by the Bay of Plenty Regional Council for the water take.

Counsel for Te Runanga o Ngāti Awa Horiana Irwin-Easthope said the taking of water prevented Ngāti Awa from exercising its kaitiaki rights and would affect the mauri (life force) of the water.

She said the iwi had been doing what it could to reduce plastic bottles in its rohe, including banning them from its businesses.

Counsel for Ngāti Pikiao Rob Enright said the Environment Court failed to consider rangatiratanga when making its decision and that trampled on the Treaty rights of the iwi.

Counsel for Ngāi Te Rangi Jason Pou said the Environment Court was wrong to prefer the evidence from Creswell's expert that the exportation of the water would not affect its mauri. The court should have preferred the evidence of Ngāti Awa's expert that the mauri would be diminished as only that expert had the right to speak on behalf of the iwi.

"Who has the right of kaitiakitanga and who has the right to speak on behalf of a people about their spiritual connection to the water?" he said.

"When they listened to these views, they formed funnel vision, this funnelled what questions they asked and funnelled how they viewed the matter before them."

Pou noted that Creswell's expert had been the vice-chairman of Te Kahui Kaumatua, a body tasked with advising the runanga on tikanga, who said himself that he was "divorced" from that organisation.

All three iwi lawyers recommended the case be brought back before the Environment Court with guidelines from the High Court that it could consider the end use of the water.

Counsel for Creswell NZ Dave Randal said Creswell's expert was correct that the mauri of the water travelled with it wherever it went.

He said the water was abundant and the proposal would provide much needed jobs for the area.

Randal also noted that Ngāti Awa had expressed interest itself in buying the bottling plant. He said the effects of plastic waste were too far away to be considered by the court and could be mitigated through recycling or proper disposal.

Counsel for the regional council Mary Hill said the court did provide "practical expression" to kaitiakitanga through the establishment of a kaitiaki liaison group, which could see the regional council review consents if the group made a recommendation to do so.

She said the court had thoroughly assessed the cultural impact of selling water.

Counsel for Sustainable Otakiri James Gardner-Hopkins said the Whakatane District Council was wrong to class Creswell NZ's proposed expansion of the Otakiri bottling plant as a variation on existing consents. He said it should instead be classed as industrial and be subject to a new consent and notification process.

Sustainable Otakiri is challenging the district council's resource consent which relates to the actual building work of the new plant.

Gardner-Hopkins said the district council should have considered the expansion to be a new-use industrial consent rather than a variation on the existing rural processing consent.

He said regardless of whether some proposed activities were rural processing, the manufacturing of the bottles on site was an industrial activity and the district plan stated that consents should always be considered under the more stringently regulated activity, in this case the industrial activity.

He said it was not good enough for the council to consider the moulding of the plastic into bottles as rudimentary or minor manufacturing as it was still manufacturing, which was classed as an industrial activity.

"The non-complying industrial activity needs to be bundled in with the overall activity making the entire activity non-compliant."

If Creswell had to apply for an industrial consent, the matter would need to be publicly notified and the public could have submitted on the issue of the plastic bottles.

He said there were other options the Environment Court could have considered rather than dismissing the appeals outright, such as imposing conditions such as a review of the consent in 10 years.

Counsel for the Whakatane council Andrew Green said the consent variation granted by the district council was the correct choice rather than issuing a new consent, and the Environment Court was also correct when it decided this.

Green said the original consent was for a bottling plant and this remained the fundamental activity at the site.

"It will be expanded but this doesn't change the fundamental nature of the activity.

"While there will be rudimentary manufacturing, the fundamental activity remains water bottling."

In his final rebuttal for Cresswell, Randal said saying the bottling plant should be classed as industrial would be wrong. He said the plastic moulder was one machine inside the wider plant and rural processing consents accounted for processing, boxing, assembly and packaging.

Randal said the original consent for Otakiri Springs was basic and the approval for consent variation had imposed more stringent environmental conditions upon the plant.

Even if it were a non-complying industrial activity, that would not have affected the way it was notified and submitted upon.

Randal said the High Court should dismiss the appeals.

In Gardner-Hopkins' final rebuttal for Sustainable Otakiri, he said the industrial blow moulding activity was integral to the wider proposal because if that could not happen on site, plastic bottles would need to be brought to the spring.

This would result in additional truck movements to those proposed and possibly additional storage areas.

He said the Environment Court's decision had told the local community that if they were unhappy the Whakatane District Plan did not consider plastic, there was nothing they could do about it.

Gardner-Hopkins said the Environment Court had told Whakatane this could only be addressed through a national response, something he felt was incorrect.