The Environment Court "erred erroneously" when making the decision to dismiss appeals against the expansion of the Otakiri bottling plant says counsel for Ngati Awa.
Over 100 Ngati Awa whānau gathered in Rotorua yesterday as their fight to prevent the expansion of the plant, which would see over a billion bottles produced annually, reached the high court.
Ngāti Awa did not stand alone and was joined by Ngāi Te Rangi, Ngāti Pikiao and Sustainable Otakiri.
Creswell New Zealand, a subsidiary of Chinese company Nongfu, seeks to expand the plant and export the water overseas. It is expected the expanded plant will provide at least 60 jobs in the district.
The Environment Court dismissed the group's appeals against the grant of resource consents by Bay of Plenty Regional Council and Whakatane District Council last year as it felt it did not have jurisdiction over the "end use" of the water, which it said would happen in other nations.
This includes the consumption of the water and environmental effects of plastic waste. Instead it could only consider the actual taking of the water aquifer.
However, counsel for Te Runanga o Ngati Awa Horiana Irwin-Easthope said the Environment Court had "erred erroneously" when making that decision and did not consider the local effects of the water plant, including how it could prevent the iwi from exercising its right to kaitiakitanga.
Irwin-Easthope said if the water was exported and Ngāti Awa could not exercise that right, the impact of that would be felt "squarely" in New Zealand.
She noted that not all the water would be exported internationally, and some would be sold within New Zealand, therefore the plastic waste was a local issue. She said it was made clear to the court that Ngāti Awa was already practising kaitiaki and was attempting to reduce the number of plastic bottles in its rohe by banning them from its various businesses, including its boats.
As it decided it could not consider the "end use" of the water take, Irwin-Easthope said the Environment Court "closed its mind" to the actual, real, local outcomes of the water take.
She said this was a "fundamental error" and the matter should be referred back to the Environment Court with further guidelines from the High Court.
Counsel for Ngāti Pikiao Environmental Society Rob Enright said the Environment Court failed to consider rangatiratanga as a relevant consideration for the resource consent. He said as the Environment Court did not refer anywhere in its decision to rangatiratanga as put to it by Ngāti Pikiao that was a "fundamental failure" to consider a relevant matter.
Enright said Ngāti Pikiao's Treaty of Waitangi rights were missing from the decision.
"Treaty principles are mandatory and must be considered," he said.
Enright also recommended the matter be brought back before the Environment Court so it could consider the spiritual effects on iwi. Counsel for Ngāi Te Rangi Jason Pou said his client wanted to support its cousins in this fight.
He criticised the Environment Court's decision to rely on testimony from the regional council experts on the mauri or life force of water rather than those put forward by Ngāti Awa.
Pou said the Environment Court opted to go with evidence presented by the regional council expert that the mauri of water was sustained wherever it went because it would eventually be returned to the earth through its natural water cycle as it aligned western science to form the basis of the view.
Experts from Ngāti Awa said the mauri was diminished when water was removed from its rohe.
Pou said the court could not simply agree with one individual and claim it represented the views of an entire iwi. He said in their kaitiaki role, different iwi might have different ideas on how to manage their taonga but that was for the iwi to decide not someone else.
"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 said the iwi were consistent that extraction took the mauri from the water and to mix it elsewhere was offensive. For the iwi to set aside its culture, it would need very good justification, he said.
Submissions in the High Court hearing are set to run until Thursday. However, early indications are that it may be finished by Wednesday.
Today the court is expected to hear from counsel for the regional council and Creswell NZ in the morning followed by counsel for the Whakatane District Council and Sustainable Otakiri in the afternoon.