Alternative means to acquire needed land for the Ruataniwha Dam are underway.
As well as applying for leave to appeal a Court of Appeal decision with the Supreme Court, Hawke's Bay Regional Investment Company Ltd (HBRIC) will also seek to acquire land for the Dam under the Public Works Act.
At the end of August the Court of Appeal upheld Forest & Bird's appeal that a land swap involving areas of the Ruahine Forest Park which would allow the Ruataniwha Dam to proceed, was unlawful.
The environment group had appealed a High Court decision allowing a swap of 22ha of the Ruahine Forest Park for 170ha of land HBRIC would potentially buy from Smedley Station.
Yesterday the Department of Conservation (DoC) sought leave to appeal the Court of Appeal's direction that the Director-General reconsider his decision on a land exchange for the Ruataniwha Water Storage Scheme.
During a Hawke's Bay Regional Council meeting yesterday members of HBRIC Ltd stated the company would be joining DoC in their appeal, and seeking urgency for the matter to be heard.
They could not provide a date on when this would be resolved, but imagined it could be several weeks.
In a statement, HBRIC Chairman Andy Pearce said there was a strong commitment from HBRIC, and those involved, to deliver the scheme. They believed the land exchange would provide significant enhancements to the conservation values of the area.
Forest & Bird's acting chief executive Mike Kotlyar said many New Zealanders would be baffled by the Minister of Conservation Maggie Barry seeking to overturn a Court of Appeal decision.
"The ultimate outcome sought by this challenge is to enable the controversial Ruataniwha Dam to proceed. We doubt New Zealanders would consider it to be the Conservation Minister's role to support irrigation schemes like this," he said.
If the land swap went ahead, it would set a precedent for up to 1 million hectares of specially protected conservation land, he said, creating the possibility that these areas can be reclassified and destroyed.
HBRIC director Jim Scotland informed council that the company were also progressing with an application to become a requiring authority under the Public Works Act, "for the whole of the reservoir and dam footprint" area.
A requiring authority is an operator of a service requiring development which includes lines for services, including water supply, according to Land Information New Zealand.
For a project or work a requiring authority is able to use special provisions in the RMA to seek the agreement of the Minister of Lands representing the Crown to acquire or take land on the requiring authority's behalf.
HBRC interim chief executive Liz Lambert said to do become a requiring authority, an application is made to the Ministry of Environment, with the decision resting with Environment Minister Nick Smith.
HBRIC acting chief executive Blair O'Keeffe said they had applied as this provided the option to exercise the act, to acquire land needed for the dam to go ahead.
Mr Scotland said he believed HBRIC had already been a requiring authority at the start of the RWSS process - on that occasion the authority had been used for the distribution canal.
"We've done it once, one assumes ... that we can do it again," he said.
During yesterday's meeting Mr O'Keeffe said the scheme's investor remained committed to the project, adding they could not proceed to financial close until "the land matter" had been resolved.
When asked if the investor was only waiting for that, Mr O'Keeffe said the land swap was "an integral part of the arrangement", but "there are a variety of items still to be resolved within the negotiations and we're working through those at the moment".
Of the application, Greenpeace Sustainable Agriculture campaigner Genevieve Toop said HBRIC "looks set to run roughshod over the law and public opinion and try to forcibly remove this piece of public conservation land".
The Crown would ultimately have to sign off the land acquisition, she said.
"The good news is, I cannot see how [Prime Minister] John Key would dare step into this fight - not with the controversy surrounding the dam and not with the state of water quality in Hawke's Bay."