Water appeal: Day two of Ōtākiri Springs hearings

Wednesday, 29 July 2020

Around 100 Ngāti Awa supporters turned out to listen to the arguments before the Rotorua High Court about the Ōtākiri Springs expansion.

The counsel for Creswell NZ was heckled from the public gallery as he sought to advance the water bottling giant's case in the High Court at Rotorua.

The expansion of Ōtākiri Springs, which would see more than a billion plastic bottles produced annually, is vehemently opposed by Ngāti Awa, and its supporters in the public gallery made their voices heard during counsel Dave Randal's opening statement.

More than 100 Ngāti Awa whānau gathered in Rotorua as the iwi continued its fight against the expansion of the bottling plant, alongside Ngāi Te Rangi, Ngāti Pikiao and Sustainable Ōtākiri.

Creswell NZ, a subsidiary of Chinese company Nongfu, seeks to expand the Johnson Rd plant and export the water overseas.

It is expected the expanded plant will provide at least 60 jobs.

Lanae Cable's petition against the expansion of the bottling plant has received over 18,000 signatures.

* Marlborough iwi fear council plan fails to protect 'potentially hundreds' of sacred sites

* Appeals against Chinese water bottling plant dismissed

The Environment Court last year dismissed the group's appeals against the resource consents granted by Bay of Plenty Regional Council and Whakatāne District Council as it felt it did not have jurisdiction over the 'end use' of the water.

Whakatāne township and the Whakatāne River.

This includes the consumption of the water and environmental effects of plastic waste.

Instead, the court said it could only consider the actual taking of the water. Tuesday was the second day of a four-day hearing in the High Court.

Randal opened proceedings by speaking about the political nature of water bottling, saying that opposition to Creswell persisted 'despite its best efforts'.

He said the expansion would provide employment in a region that needed it, and noted a Ngāti Awa kaumatua had given evidence in the Environment Court that the water take would have no impact on te mauri o te wai - the spiritual essence of the water.

Randal's speech was peppered with cries of 'greed', 'we don't want your jobs', 'how would you know, you're not Maori', 'get your own water', as well as groans and incredulous laughter.

'Creswell acknowledges the right for iwi to take any position they like, but political views do not carry weight in this forum,' Randal said.

He said the water in the aquifer was abundant and the water taken by Creswell would not have any physical effects.

The exportation of water did not affect its mauri or Ngāti Awa's role as kaitiaki of the water.

He said the effects of the plastic bottle waste were too far removed to be considered by the court.

To further this point, he made references to previous court cases which had reached the same conclusion.

'There is no plan that I am aware of that has attempted to regulate either water bottling for export or plastic waste.'

After a disappointing result in the Environment Court, iwi and community groups have brought their opposition to the expansion of the ÅtÄkiri Springs for exportation to the Rotorua High Court. CHARLOTTE JONES / LDR

He said Creswell was proposing a highly sustainable, beneficial, use of water.

'This is a beneficial use, particularly for jobs; this is an abundant source that is otherwise flowing to sea unused. This is an area that needs jobs, particularly Māori jobs.'

Randal said Creswell was committed to using recycled plastic or glass bottles and noted Te Rūnanga o Ngāti Awa had not ruled out becoming involved in water bottling, 'in fact, Te Rūnanga expressed interest in buying the plant itself”.

“It also has interests in dairy and fisheries that involve plastic packaging.'

He said Ngāti Awa did not explicitly bring forward its concerns about plastic bottles to the Environment Court; it was only noted in passing by a neighbour of the plant.

If the issue was not properly raised in the first instance, it could not be used in an appeal.

'Plastic effects on the environment are not inevitable. Recycling happens. If a bottle is recycled, if packaging is recycled, there is no effect,' he said.

On Monday, counsel for Te Rūnanga o Ngāti Awa, Horiana Irwin-Easthope, said the Environment Court 'erred erroneously' when making the decision to dismiss appeals against the expansion of the bottling plant.

Irwin-Easthope said the Environment Court did not consider the local effects of the water plant, including how it could prevent the iwi from exercising its right to kaitiakitanga.

Counsel for the regional council Mary Hill said the Environment Court correctly understood that the Resource Management Act and the Regional Plan did not control the activity of export or regulate and control the recycling of plastic. These activities were regulated by other legislation. Plastic was not managed by the regional council but by district councils.

'This is different to whether the court can regulate the effects of that which it does control,' she said. 'Selling water is a cultural effect, which can be assessed under the RMA framework, and the court did this thoroughly in this case.

'Kaitiakitanga is a unique relationship experienced by tangata whenua in New Zealand and there was considerable analysis of this relationship in the Environment Court's decision.'

Ms Hill said councils were required to engage with iwi and pay mind to the Treaty of Waitangi principles when making decisions.

'It's not disputed the court can take into account metaphysical concepts and has done so, but that is quite a different proposition to saying the Environment Court should have taken into account a belief in ownership as a Treaty principle.'

She 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 it made a recommendation.

The submission that the court 'wrongly' considered the testimony of one kaumatua over another was 'hard to follow'.

'The court looked at their expertise in tikanga as kaumatua of Ngāti Awa, which they all were … they were weighing the experts’ subject matter the same way they would weigh any other.'

Ms Hill said it was not as simple as preferring one witness over the other, instead she said the Environment Court evaluated the witnesses carefully and gave 'careful' reasoning as to why it went with one view over the other.

In rebuttal, Mr Enright acting on behalf of Ngāti Pikiao, said rangatiratanga still had not been addressed.

'Rangatiratanga goes to the core of treaty principles as does the relationship of iwi with their water.'

He said Ngāti Awa was the only iwi to have been mentioned with regard to Māori rights and this exclusion of Ngāti Pikiao trampled on its Treaty rights.

In his rebuttal for Ngāi Te Rangi, Mr Pou said end use of water was 'squarely' within the Regional Policy use, particularly wasteful or inappropriate use. 'How do you determine inappropriate use if you do not look at what the end use is?'

He said just because water was taken in the same way from other sources it did not necessarily make the water take from Ōtākiri appropriate.

'This is about the mana of an iwi to exercise rangatiratanga and kaitiakitanga over a water body. This is why Ngai Te Rangi come to support Ngāti Awa.'

Mr Pou said under cross-examination the tikanga expert for Creswell admitted he had 'divorced' himself from the Ngāti Awa elders’ institution. 'The mandate within the iwi is clear. It rests with the iwi authority,' he said.