Decades-old consents should not be used to allow for water bottling, court hears

Tuesday, 2 October 2018

Aotearoa Water Action has accused Environment Canterbury of “putting profits ahead of the community” by allowing bottling companies to take billions of litres of water from Christchurch’s aquifers. (File photo)

Businesses hoping to bottle and sell billions of litres of water from aquifers beneath Christchurch should not be allowed to rely on old resource consents granted decades ago for industrial uses, a court was told.

Campaign group Aotearoa Water Action (AWA) claims Environment Canterbury (ECan) failed to follow proper processes when it gave permission to Cloud Ocean Water and Rapaki Natural Resources to take water from neighbouring bottling plants in Belfast.

Cloud Ocean water is developing a water bottling plant on the site of the old Kaputone wool scour in Belfast in northern Christchurch.

AWA believes the historic consents – granted around 20 years ago – are insufficient to permit the firms to run bottling plants.

But lawyers for ECan argue commercial bottling is in itself an industrial use, and such operations are therefore permitted under the current consents,

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In April Aotearoa Water Action handed ECan a petition signed by 114,000 people against water bottling. (File photo)

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Cloud Ocean Water is currently testing the production line at its Belfast bottling plant. Water is yet to be exported for sale.

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The two firms can take 8.8 billion litres of water a year – about 24 million litres a day – using consents transferred to them from previous businesses on the sites, a move ECan accepted last year.

AWA is taking legal action against all three organisations at the High Court in Christchurch.

Representing the campaign group at a preliminary hearing on Tuesday, Prudence Steven QC said the original consents for Rapaki Natural Resources site were for meat processing, while those for the old Kaputone business were for scouring wool.

When transferred to the new owners they were not altered, and so the consents should not now allow the final use to be for water bottling, she said.

'AWA takes the view that the consents don't provide sufficient scope for commercial water bottling.'

The original applications were 'quite specific in focus', and the 'relevance of the use goes to the very important question of whether the applicant is asking for more water than they actually need', Steven argued.

She told the court consents cannot go 'beyond the scope of the originating documents', citing previous cases in which original consents were deferred to.

To acknowledge the new consents would be to allow 'any industrial use whatsoever', she said, allowing water to be 'treated as a commodity and sold for a price'.

But Lucy de Latour, representing ECan, suggested the court should 'not be too literal' in its assessment of the 'definition of industrial use'.

She said ECan considers 'commercial water bottling is an industrial use', a position echoed by Cloud Ocean Water lawyer William McCartney.

Judge Peter Churchman questioned the argument, saying the purpose of use was 'critical' when establishing how much water could be allocated.

'What is necessary for running a wool score bears no connection to what is necessary for a bottling plant,' he said.

Authorities still have access to the original consent applications from the 1990s, but the actual decisions were lost in the earthquakes, the court heard.

Steven also questioned the legality of the 'amalgamation' by ECan of old consents to create new ones that allow bottling, an argument subject to potential judicial review.

She told the court ECan's own officers had regarded the original consents as not offering sufficient scope for bottling, but new consents were granted nonetheless.

'The [regional] council had once taken the view that is consistent with AWA's view in this court.'

AWA will challenge the legality of the decision to grant new consents at the judicial review if it is ruled the old consents should not have been relied on.

Cloud Ocean Water and Rapaki Natural Resources have permission to bottle water from nine bores across the Belfast sites, one a former Silver Fern Farms and the other the old Kaputone wool scour.

A tenth bore that Cloud Ocean Water had consent to drill was completed earlier this year. Bottling is yet to commence at either site.

The Government's position that no-one owns water means it cannot be priced, allowing companies to take and export water at a negligible cost.

The two-day hearing will see a ruling made on whether the new consents were required.

If the decision is in AWA's favour – that they were required – a further hearing on the legality of those new consents will likely take place next year.