Court decision puts question mark over controversial Ruataniwha dam video

Some of the 22 hectares of Ruahine Forest Park that the Department of Conservation had agreed to swap to pave the way ...
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Some of the 22 hectares of Ruahine Forest Park that the Department of Conservation had agreed to swap to pave the way for the Ruataniwha Dam.

The future of the proposed Ruataniwha water storage scheme is uncertain after the Court of Appeal found the Director-General of Conservation was not entitled to revoke the special conservation status of Ruahine Forest Park land.

Hawke's Bay Regional Council Investment Company (HBRIC) chairman Andy Pearce told a Hawke's Bay Regional Council meeting on Wednesday HBRIC had arranged to meet with the Director-General of Conservation "in pretty short order".

That meeting would be an opportunity to discuss the process DoC planned to followed, and a time frame, in light of the court decision, he said.

A screenshot from an animated video of the Ruataniwha Dam.
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A screenshot from an animated video of the Ruataniwha Dam.

HBRIC had previously said it hoped to be able to come back to the council for sign-off on "financial close" - completion of the Ruataniwha deal with all financial partners and the construction consortium - by the end of September.

READ MORE: Protestors take anti-Ruataniwha dam message to council chambers 
* Obstacles for Ruataniwha remain as farmers sign contracts

Pearce said it was unclear whether HBRIC would still be able to meet that deadline.

Whether DoC decided to appeal the Court of Appeal decision to the Supreme Court "was entirely up to them," he said.

"I won't have any information about that until I've met them. There are alternatives. Depending on the pace with which some of those alternatives might be able to be implemented, we might be able to stick to the current timeline, or we might have to extend the timeline."

He said HBRIC's focus remained on confirming all elements of the scheme. In July the Hawke's Bay Regional Council agreed that three of the four conditions required for it to agree to invest $80 million in the irrigation scheme had been satisfied. These relate to consents for the scheme, the design and construction contract and water user uptake. The final condition relating to investment in the scheme was close to being satisfied.

Forest and Bird had taken the appeal following a decision by the High Court which the environmental organisation said amounted to bartering with "irreplaceable" protected areas.

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It said the decision, which would pave the way for a $300m irrigation dam, was illegal and would set a precedent for all protected areas in New Zealand.

The Department of Conservation (DOC) and the council-owned Hawke's Bay Regional Investment Company had agreed to exchange 22 hectares of Ruahine Forest Park land for 170 ha of nearby farmland known as the Smedley block.

In order to create a reservoir behind the dam, the flooding of the 22 hectares of the DOC land was required.

Forest and Bird lawyer Sally Gepp said she was "ecstatic" over the decision because it had confirmed the fundamental tenet of the Conservation Act to safeguard specially protected areas.

"Pieces of land cannot be carved off or traded away for other lands. It's a precedent-setting decision which confirms exchanges can be made only for stewardship land," Gepp said.

The Court of Appeal made its decision in a 2:1 split, with Justices Rhys Harrison and Helen Winklemann in favour, while Justice Ellen France would have dismissed the appeal.

The Court said the land was part of a conservation park held for recreational purposes under the Conservation Act.

"The majority of the Court found that under the Act the Director-General would have had to be convinced in his assessment that the intrinsic values of the land in question were no longer worth permanent protection as envisaged by the Act.

"He was not entitled, as the High Court had ruled, to base his decision on a broad assessment of the merits of the proposed land swap for the conservation estate as a whole," the Court said.

Its decision overturned the funding by Justice Matthew Palmer earlier this year in which he declined Forest and Bird's application for judicial review on the basis that the Director-General acted lawfully by reference to "broad conservation purposes".

The Court of Appeal said that central to the case was identifying the purpose or purposes for which the Act had conferred the powers to declare and revoke special protection.

In deciding to revoke the status of a specially protected area, the Director-General had to ask  whether the land was no longer required for conservation purposes.

"In the case of conservation parks, account must be taken of the purpose of special protection — to permanently maintain its intrinsic values, provide for its appreciation and recreational enjoyment by the public, and safeguard the options of future generations — as well as the emphasis on recreation which distinguishes conservation parks from other specially protected areas," the Court said.

"A proposal to exchange specially protected land will only be relevant to the revocation inquiry if the Director-General is first satisfied that the specially protected area no longer merits its particular designation — in this case, a conservation park held for park purposes — and should be reclassified as a stewardship area.

"Because the Director-General did not exercise his discretion to revoke by focussing on the land's intrinsic values, but rather took into account the objective of exchanging the land and the net gain to the conservation estate, the decision was unlawful," the Court said. 

The Department of Conservation said it would not be commenting on the decision. 

- Audio courtesy RNZ

 - Stuff

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