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Buller Water Conservation Order, 2001

Also: Martin Unwin evidence | Colin Leitch evidence

Buller WCO

Well, we finally have a Conservation Order on the Buller River! Wonderful!

Recognition at last of the intrinsic values of this majestic waterway, its scenic, historic, fishing, wilderness, canoeing, wildlife, flora, rafting and cultural values.

Mind you it hasn't happened overnight. It has largely happened through the patience and persistence of a number of individuals and organizations who believe firmly in the notion of preserving as much as possible some of the best examples of New Zealand's river systems for posterity. This doesn't just mean paddlers but includes people from all walks of life and interests, fishermen, trampers, naturalists, and travelers.

I have written this article to document some aspects of the process, to show what happened at different times, what we won and what we lost and perhaps some reasons why. I want to dedicate this article to those who in whatever way have helped see this Order come to fruition. To all of you I am truly grateful.

What does the order constitute?

The Order, like those on a number of other nationally outstanding waterways in New Zealand, declares that waters in a number of schedules are to be retained in their natural state or protected because of the outstanding characteristics, features and values of the waters. The Order specifies restrictions and mechanisms to ensure that this happens.

Rivers and waters of interest to paddlers included in the order are:

  • Retention of the following in their natural state - Lakes Rotoiti and Rotoroa and their contributaries and the upper reaches of the Matakitaki, Matiri, Glenroy, Maruia, Deepdale, Owen, Blackwater, Ohikaiti, and Ohikanui (and others)
  • Protection of the following waters - Buller mainstem from the lake to Te Kuha (at the bottom of the lower Buller Gorge), Gowan, Mangles, Maruia (around Mt Rutland).

Those preserved in their natural state are vital of course for providing the water we need on the runs we do and protect the values we prize. Some of those protected have no damming provisions on them.

Some provision is made for modifying flows on some reaches of the protected waters including the Buller mainstem, because of flow modifications that could result from potential commercial hydroelectric interests on the Gowan, Matiri and Matakitaki. It is thought that the net effect of these modifications, if they ever happen, will be minimal and have little effect on the natural flow regimes of the Buller mainstem. However, any future hydroelectric developments on the Gowan, Matiri and Matakitaki could have a significant effect on these rivers.

The rivers we missed out on include the middle Matakitaki and earthquake rapid on the Matakitaki, the Matiri run, the Glenroy and rivers in the Inangahua catchment. Some of these were not included in the Order because of trading off rivers or parts of rivers by various parties so that agreement to protect particular waterways could be reached prior to the Planning Tribunal Hearing. Some were not included because the Planning Tribunal could not be persuaded to accept what we considered to be the nationally significant value of some of the rivers.

What does the Order mean?

The Order basically recognizes the values attributed to the river(s) at the time of the Hearings and accepted by the last body to adjudicate on the case namely the Planning Tribunal. As will be seen below, the Order does not recognize intrinsic or unrecognized values (such as a river 'yet to be discovered') or future values. So the Order is really a snapshot in time.

The Order contains rules, which local councils must abide by when considering resource consents for using water from rivers included in the Order or in the Buller catchment. This has the potential to control resource development, which might otherwise have continued in an ad hoc and potentially harmful manner to the values of the river, especially if no water management plans are available. In the absence of the latter (and in some cases even when they are available) up until the passing of the 1981 Wild and Scenic Rivers Amendment to the 1967 Water and Soil Conservation Act there was no mechanism in New Zealand for preserving or protecting any of New Zealand's outstanding waterways. Even today water rights cannot be granted to people wanting to leave water in rivers, only to those wanting to remove water from rivers.

How did the order come into being?

In September 1987 the Nelson Acclimatisation Society and the Council of South Island Acclimatisation Societies (now represented by the Nelson/Marlborough Fish and Game Council (NMFGC)) applied for a National Water Conservation Order on the Buller River catchment. The Minister for the Environment agreed, after considering submissions from various interested parties, including the New Zealand Canoeing Association (NZCA), that the Buller River warranted consideration for such an Order and appointed a Special Tribunal to hear evidence on the matter.

The NZCA presented evidence at this Special Tribunal Hearing in 1989, along with many other parties, and the Tribunal recommended an order be granted essentially over the whole Buller River system.

This recommendation was then appealed by a number of parties who did not agree with some of the areas included in the order and so began a long process in which the Planning Tribunal sought resolution of the issues. In a number of pre-conference hearings the Planning Tribunal resolved a number legal issues surrounding the proposed order. The Tribunal asked parties to seek agreement where possible on uncontested waters and then to negotiate as much as possible to see if agreement could be reached on contested waters.

For NMFGC this involved negotiating with Tasman Energy who had interests on the Gowan, which is a stretch of river both parties were particularly interested in. NMFGC were also particularly interested in some tributaries of the Inangahua, particularly the Waitahu and Larry's Creek, in which gold mining companies such as Macraes Mining were interested. For the NZCA, the main issues were Tasman Energy's interest in building a dam on the Matiri and the Gowan, and possible schemes on the Matakitaki and Maruia.

At a meeting in Murchison in the Christmas of 1993 NZCA members and paddlers present requested that the NZCA should actively pursue protection of the Matiri, Matakitaki, Maruia and Gowan Rivers for paddlers.

After about nine months of intense negotiation the NZCA could not reach agreement with Tasman Energy on a suitable set of conditions for their proposed hydroelectric schemes on the Matiri and Gowan, which they wanted in exchange for not contesting the proposed Order covering the Matakitaki and Maruia. Other parties went through similar exercises on rivers of particular interest to them, in some cases reaching areas of agreement and forfeiting rivers to gain recognition of more important ones. In other cases, as for the NZCA, agreement was not reached.

Finally the Planning Tribunal met at Westport in May 1995, and continued again in Christchurch a little later, to hear evidence on the remaining contested waterways. Evidence was prepared and circulated by parties prior to the hearing along with replies (rebuttal evidence) in all from 43 witnesses. Having heard the case the Tribunal then considered the evidence and finally published a decision on 31 May 1996 recommending a Conservation Order for the Buller River.

The recommendation confirmed most of the uncontested waters, supported the inclusion of the Gowan River on a split decision of the Tribunal, but excluded parts of the lower Matakitaki and Matiri on canoeing grounds. Subsequently a number of drafts of the Order appropriate for gazettal (publication) and faithful to the Planning Tribunal decision were worked through to arrive at the final Order. This involved many of the parties to the Planning Tribunal hearing.

On the 18 June 2001 the Buller River Conservation Order was gazetted and on 21 July the Order took effect with a celebration at the source of the Buller at Lake Rotoiti.

Why were some important rivers for paddlers contested and not included in the Order?

When the original draft Order produced by the original Special Tribunal was published a number of parties appealed the decision. A number were not happy with some of the rivers included the Order. The NZCA did not appeal but remained an interested party particularly when the importance of a number of rivers and the 'whole catchment' approach of the Draft Order was questioned.

The Planning Tribunal then made an interlocutory decision on the Order, which effectively rejected the 'whole catchment' approach of the Draft Order. Judge Skelton stated the Tribunal's view that each specific part of the catchment needed to be identified as outstanding for a particular reason and either preserved or specific conditions outlined in the Order to protect that feature.

This perhaps made making the case for protection of the contested but important canoeing rivers such as the Gowan, Matiri, and Matakitaki, of interest to Tasman Energy, more difficult. In isolation many of these rivers are harder to justify as nationally significant, for example they don't rank as high as other rivers throughout the country. But they are still really important and an integral part of the Buller 'experience'.

It also raised an interesting issue in that non-contested waters included in the original draft were included in the final Order without the close scrutiny that many of the contested waters were subjected to. In the final analysis the Tribunal was obliged to recognize the value of all tributaries in one way, and that was the water that they contribute to the Buller River, because the Buller River was recognized as nationally significant. Thus in the final Order constraints were placed on flow modifications to these tributaries to ensure maintenance of flows in the Buller mainstem.

As a result of the interlocutory ruling, and the Tribunal's request that parties see if they could negotiate their way through the areas of concern raised by objectors, negotiations were undertaken between various parties, including Tasman Energy and the NZCA. In our case this was to see whether suitable consent conditions could be constructed to permit HEP development on the Gowan, and Matiri, and if so, Tasman Energy would not contest our interests on the Matakitaki and Maruia. In the end we couldn't agree so we had to prepare evidence for the Tribunal to consider.

Issues at the Tribunal hearing

At the Tribunal hearing Tasman Energy produced evidence from a number of parties on the HEP values of the Matiri, Gowan and surprisingly the Matakitaki, and canoeing values on the contested waterways (the latter by a canoeist). The canoeist, much to our chagrin, disputed the claimed values of the Matakitaki and Matiri, and in particular their national significance. Tasman Energy also described possible HEP schemes on the Matakitaki, something before the hearing that we thought they were not interested in, and which we were not expecting to surface at the hearing.

At the end of the day we could not persuade the Tribunal of the national significance of the Matiri nor the Matakitaki. Judge Skelton was persuaded by many of the canoeist's arguments. It was a pity the canoeist was happy to act against the wishes and aims of many paddlers throughout the country and the NZCA. He hadn't run a number of the rivers he spoke on (eg. the Matiri) and yet he was happy to express views and opinions, which in a number of our views (ie. people at the hearing) did not agree with those of the wider paddling fraternity. I feel sure the outcome of the process would have been significantly different if it weren't for the case mounted by Tasman Energy.

Could we have done it better?

Hindsight always makes you wiser, and if I consider the feedback about our case it is easy to see how we could have done things differently. The outcome could have been better, for example the Matakitaki might have been included in the Order, if we had focused more strongly on this rather than on the Matiri, the latter which in hindsight might have always been a marginal call. However, at the time we also were reacting to the wishes of our members and the paddling fraternity to protect all the rivers, and not to negotiate any away.

The Glenroy run is not included in the Order. At the time of the final Tribunal Hearing in 1995 the run was not even known, it was 'discovered' a year later. It is now a classic grade 3-4 run, whose importance ranks with other important runs in the Buller system. It is ironic that at the final Tribunal hearing Judge Skelton felt that the Matiri, which had only really been paddled since the early 1990's, could not be nationally significant, in part because it had only been known about for a short time. I guess it's reasonable that the assessment process only recognizes current values but it is interesting that new waters remain to be 'discovered' even here in New Zealand.

Continuing threats

Recently water rights on the Gowan and Matiri were sold by Tasman Energy to the Talley family, who are at present interested in developing a hydroelectric scheme on the Gowan. This seems interesting to me, why were Tasman Energy so opposed to the Order, did they just see the water access they tried to request as a way of making money? If they were serious why have they sold their rights?

The Talley family Majac Trust want to rescind the Order on the Gowan as I understand it so that they can develop a scheme of a suitable size. I wonder if this Trust realizes the significance and value of the Gowan to people who currently use it and value it. It seems a little sad that so few people can have a major say in how a natural resource owned by the New Zealand public might be used. Small hydro development threatens many of our smaller waterways, for limited energy returns, but with the potential for huge impacts on river systems for regional recreational users and wildlife and our natural ecosystems.

I understand some business leaders have recently instigated a review of the necessity for WCO's. I don't know who has been consulted in this process but I haven't heard yet of any river users that have. Such activities give cause for concern, given the effort that has been made to date to enshrine a mechanism for the protection of the best examples of our waterways in law, and the rivers that have been recognized in this process to date. It seems a pity that our society has such a short memory about the passing of the 1981 Wild and Scenic Rivers Amendment and the need for it.

Lessons from the process

The dominant message I have gleaned from the process has been the necessity to utilize and energise the skills of a team of experts to tackle such an issue, including legal advice, such as we did in this case, and having good documented data on the importance of our waterways on which to base your case.

In the case of the Buller system when we first applied to the Special Tribunal there was no up-to-date study identifying the various values of the waterways in the catchment. The excellent 1980 study by Graham and Jan Egarr, published in part by the NZCA on the recreational values of New Zealand's waterways, provided an excellent starting point, but things had moved on significantly since then, in terms of what was paddled and the relative values of different waterways.

The same proved to be true when we came to deal with the case before the Planning Tribunal, when things had moved on again and the importance of the Matiri had increased. We had the data from a 1990 survey organized by Adrianne Jones and Jens Recker of the NZCA (but not yet published) to call on and this proved very valuable for our case, but even then not necessarily on the value of the Matiri. I suspect for the future cases yet to be fought we need to keep updating such studies on a regular basis and publishing the results so that planners and developers outside our sphere have access to information they can use and assess, just as we will need it ourselves.

I recently saw an Environment Canterbury Report prepared for the Rangitata Water Conservation issue using data from the 1980 Egarr survey. The data may still be relevant but the use of more recent data would be helpful too, as the use of the Gorge will have changed dramatically over recent years compared to when the Egarr survey was published.

As was evident from our case on the Buller, we do not still have a lot of fundamental information to present to hearings/tribunals/local authorities to justify our stance for natural flows (or whatever flows we want) on rivers and their relationship to the quality of the paddling experience. Some people (notably non-paddlers) seem happy to make these judgments for us but if we want to lobby for what we really want we need to have excellent data to back it up. To this end we really need to commission studies to get this data so that we can better present our cases.

I think the other lesson to remember is that there are a lot of vested interests out there (some would say just like us) keen to exploit our waterways to our cost, and which have considerable economic muscle behind them. I think we are still going to have to go into battle many more times in the future to protect our waterways and we are going to have to be well armed, better so than our opponents.

Concluding comments

I think the importance of this Order should not be underestimated, and that even though we have not got all the rivers we wanted included in the Order, we have a tremendous start. As Guy Salmon commented at a ceremony to celebrate the Order at St Arnaud on 21 July, the rivers not included in the Order are those for another generation of paddlers to fight for and get protection for.

Thanks and acknowledgements

A number of key people from the paddling fraternity have been pivotal in seeing this Order finally granted. At the risk of missing out someone I wish to acknowledge the following people for their efforts in supporting our case: Graham Egarr, a past President of the NZCA, who was heavily involved in lobbying the Government for the 1981 Wild and Scenic Rivers Amendment and river conservation on behalf of paddlers for many years. Hugh Canard, past President and patron of the NZCA and NZRCA appeared and presented evidence before the Special Tribunal originally convened to consider an Order on the river. A New Zealand wide river survey carried out by Jens Recker and Adrianne Jones and analysed by Jonathan Hunt and Martin Unwin (and myself) provided very important data for our case.

More recently a number of river boaters and paddlers had assisted with preparing our case. These included Graeme Boddy, Jonathan Hunt, Martin Unwin and Sarah McRae. Mike Savory, then President of the NZCA assisted with negotiations with Tasman Energy, and then with preparing evidence for the tribunal Hearing at Westport. Colin Leitch, Doug Rankin, Martin Unwin, Hugh Canard, John Mackay and Mike Savory then presented evidence at the Westport Hearing supported by evidence from Gillian Wratt, who could not be present at the hearing.

Finally to all those paddlers who I have met over the years and who share a passion for paddling who have given encouragement with what we have tried to achieve including Steve Chapman, Rick McGregor and Mick Hopkinson and many others, a huge thank you. I have been really pleased to be able to latterly help coordinate the NZCA case before the Planning Tribunal and present evidence, interpret the data from the 1990 survey, and help with a small survey for rivers in the Buller catchment in 1994/95. To all of you who provided data for those surveys, many thanks. I also owe a significant debt of gratitude to my family, who has also given me continuing support.

Finally we all owe a huge debt of gratitude to Fish & Game for their support in seeing this Order through. Not only did they first apply for the Order but also they have provided advice during the whole process and legal assistance with our appearance before the Planning Tribunal. In particular, the advice and support of Stephen Christensen (from Anderson Lloyd, NMFGC lawyer for the case) and Neil Deans (NMFGC) is also gratefully appreciated. In addition we paddlers acknowledge the support from many other parties in the process well aware that we of course are but only one of the parties that has an interest in the magnificent Buller River system and who have been instrumental in achieving this Order.

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