Pioneer Generation Limited v New Zealand Fish and Game Council HC Dunedin CIV-2011-412-000445 [2011] NZHC 2022 (20 December 2011)

Last Updated: 11 February 2012

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

_{CIV-2011-412-000445}

BETWEEN PIONEER GENERATION LIMITED Plaintiff

AND NEW ZEALAND FISH AND GAME COUNCIL AND OTAGO FISH AND GAME COUNCIL

Defendants

Hearing: 26 October 2011

Appearances: S E Rowe for Plaintiff

J E St John for Defendant

Judgment: 20 December 2011

_{RESERVED JUDGMENT OF CHISHOLM J}

A Application for declarations dismissed.

_{B Costs to the defendants on the 2B scale.}

REASONS

[1] Pioneer Generation Limited (Pioneer) and the Fish and Game Councils (Fish and Game) are competing submitters before the Environment Court in relation to a proposed amendment to a Water Conservation Order (the WCO) relating to the Kawarau River system, Central Otago.[1] According to Pioneer, the Fish and Game

_{submission goes beyond the statutory powers conferred on Fish and Game. Pioneer}

PIONEER GENERATION LIMITED V NEW ZEALAND FISH AND GAME COUNCIL AND OTAGO FISH AND GAME COUNCIL HC DUN CIV-2011-412-000445 20 December 2011

seeks declarations and associated orders under the Declaratory Judgments Act 1908 that would have the effect of limiting the scope of the Fish and Game submission.

Background

[2] In 1990 the Minister of Conservation applied for a WCO in respect of the Kawarau River and its contributing waters (which include the Nevis River). Both parties to this proceeding were involved in the application. A Special Tribunal reported to the Minister in 1993 and an enquiry before the (then) Planning Tribunal followed. A WCO relating to various waters, including the Nevis River, was

gazetted in 1997.[2]

[3] The WCO recognised a number of outstanding characteristics that were to be protected, including (in respect of parts of the Nevis River) “recreational purposes, in particular fishing...” The order also specified (again in relation to particular parts of the Nevis River):

...no damming allowed unless a rule in a plan or condition in any water permit granted makes provision for river flows to be provided at sufficient levels...[which are specified].

This “no damming” provision lies at the heart of the contest between Pioneer and Fish and Game. As an electricity generator Pioneer is keen to preserve its future options in relation to power generation. Fish and Game are opposed to any damming of the Nevis River.

[4] In 2006 Fish and Game lodged an application to amend the WCO by:

(a) adding a prohibition on damming or diversion (in effect Fish and

Game wanted the exception to damming in the WCO to be removed);

(b) recognising additional outstanding characteristics of the Nevis, including its native fishery habitat for “non migratory galaxiids”.

_{As will become apparent shortly, these two aspects are inter-related.}

[5] After Fish and Game’s application for amendment was lodged the Minister set up a Special Tribunal, and when the application was publicly notified in 2008 it attracted over 250 submissions. These included a submission from Pioneer in opposition to the amendment. The application was heard by the Special Tribunal in

2009.

[6] There is a debate between the parties to this proceeding about whether Pioneer specifically objected to the Special Tribunal about the Fish and Game submission concerning Gollum galaxiids. I do not find it necessary to consider that aspect any further.

[7] The Special Tribunal issued its report in 2010. Amongst other things, it found that Gollum galaxiids were an outstanding characteristic of the Nevis River and that such species and their habitat required protection. The Special Tribunal also found that the protection of Gollum galaxiids required a complete prohibition on damming and diversion.

[8] Subsequently both Fish and Game and Pioneer lodged submissions with the Environment Court challenging various aspects of the Special Tribunal’s report pursuant to s 209 of the Resource Management Act 1991 (RMA). Fish and Game sought recognition of a number of outstanding characteristics that the Special Tribunal had declined to recognise. Pioneer sought removal of the total prohibition on damming and claimed that the Special Tribunal’s recommendation was based on erroneous findings concerning Gollum galaxiids.

[9] On 11 May 2011 Pioneer’s solicitors wrote an open letter to the Fish and Game solicitors objecting to Fish and Game’s intended advocacy on the subject of native fisheries. They requested an explanation as to why Fish and Game considered that it had the necessary authority to present evidence and/or arguments in the Environment Court on topics other than sports fishery. In the event that Fish and Game agreed that it did not have the necessary authority, Fish and Game was asked to undertake that it:

...will not present in any proceedings (whether in the Environment Court or elsewhere) any evidence, or arguments on subjects which are beyond their statutory authority...

The letter said that the undertaking needed to include landscape issues, historical and cultural matters, the native fishery including galaxiids, and other flora and fauna. According to the letter the undertaking needed to confirm that “the case to be presented will be confined to the sports fishery and nothing else”.

[10] A few days later the solicitors acting for Fish and Game replied. They said that Fish and Game considered that it was entitled to advocate on the damming and native fishery habitat issues pursuant to s 211(a) and (d) of the RMA; that it intended to present evidence and submissions on those matters; and that Fish and Game also had power to present evidence and submissions on landscape issues, as well as flora and fauna, because they added to the recreational fishing experience. The letter also questioned why Pioneer did not raise the issue in its original submission or apply to the Special Tribunal to have the matter clarified. An undertaking was declined.

[11] This proceeding was issued on 16 June 2011. Affidavits have been filed on both sides.

[12] For the plaintiff affidavits have been sworn by Ms Crawford, Pioneer’s investigation and planning manager, Mr Mulvihill, the company’s asset manager, Dr Ryder, a water quality scientist and aquatic ecologist, and Mr Dungey, a consulting biologist.[3] Mr Watson, the chief executive officer of Otago Fish and Game, has sworn an affidavit on behalf of the defendants.

[13] As I understand it, the Environment Court is now awaiting the outcome of this proceeding before taking any further steps in relation to its enquiry.

The statutory regime behind Fish and Game

[14] As statutory bodies both the national and the regional councils derive their powers from Part 5A of the Conservation Act 1987. This Part carries the heading

“Sports fish and game councils”. The expression “sports fish” is defined in s 2 to mean any sports fish declared by Order in Council to be sports fish for the purposes of the Act. For present purposes the relevant sports fish is trout. Gollum galaxiids have not been declared to be sports fish.

New Zealand Fish and Game Council

[15] Under s 26B of the Conservation Act the New Zealand Fish and Game Council was established to represent the interests of anglers and hunters nationally and to provide co-ordination of the management, enhancement, and maintenance of sports fish and game. It has the power to do everything that it is authorised to do under the Conservation Act or under any other enactment or rule of law.

[16] Section 26C defines the Council’s functions. Of those the following function in subs (1) is particularly relevant:

(g) To advocate generally and in any statutory planning process the interests of the New Zealand Fish and Game Council and, with its agreement, of any Fish and Game Council in the management of sports fish and game, and habitats.

A good deal of debate revolved around this provision, in particular the scope of the

expression “habitats” and whether a WCO involves a statutory planning process.

Regional Fish and Game Councils

[17] Like the national body these regional bodies have been established for the purpose of managing, maintaining and enhancing sports fish and game, the only difference being that they are responsible for their regions: s 26P(1). They also have the power to do anything that is authorised under the Conservation Act or by any other enactment or rule of law: s 26P(2)(b).

[18] In the context of this proceeding the following functions of Fish and Game councils are relevant.

26Q Functions of Fish and Game Councils

(1) The functions of each Fish and Game Council shall be to manage, maintain, and enhance the sports fish and game resource in the recreational interests of anglers and hunters, and, in particular,—

(a) To assess and monitor—

(i) Sports fish and game populations; and

(ii) The success rate and degree of satisfaction of users of the sports fish and game resource; and

(iii) The condition and trend of eco-systems as habitats for sports fish and game:

(b) To maintain and improve the sports fish and game resource—

(i) By maintaining and improving access; and

(ii) By maintaining the hatchery and breeding programmes, where required for stocking or restocking the sports fisheries and game habitat; and

(iii) By formulating and recommending to the New Zealand Fish and Game Council conditions for fishing and game seasons; and

(iv) By ensuring that there are sufficient resources to enforce fishing and hunting season conditions; and

(v) By undertaking such works as may be necessary to maintain and enhance the habitat of sports fish and game, subject to the approval of the Minister, the land owner, or the administering authority, as the case may require:

(c) To promote and educate—

(i) By defining and promoting ethical standards of behaviour to be followed by anglers and hunters; and

(ii) By promoting recreation based on sports fish and game; and

(iii) By keeping anglers and hunters informed on matters affecting their interests:

...

(e) In relation to planning,—

(i) To represent the interests and aspirations of anglers and hunters in the statutory planning process; and

(ii) To formulate and adopt an annual operational work plan; and

(iii) To prepare draft sports fish and game management plans in accordance with this Act; and

(iv) To identify and recommend to the New Zealand Fish and Game Council the region's sports fish and game requirements for research; and

(v) To implement national policy determined by the New Zealand Fish and Game Council; and

(vi) To liaise with local Conservation Boards;

and

(vii) To advocate the interests of the Council, including its interests in habitats:

...

(2) Each Fish and Game Council shall have such other functions as are conferred on it by or under this Act or any other Act.

...

(Underlining added)

Again there was debate about the scope of these functions, especially the underlined words.

[19] Section 26S(1) provides that each Fish and Game Council shall have “all such powers as are reasonably necessary or expedient to enable it to carry out its functions”. Subsection (3) confers the power to acquire land or interests in land for the management of sports fish or game “or the protection of their habitat”. And subs (7) provides:

For the purposes of section 26Q(1) of this Act, a Fish and Game Council shall be entitled to appear before courts and tribunals in New Zealand and be heard on matters affecting or relating to the Council’s functions.

Pioneer questions whether this provision extends to Water Conservation Orders and, if it does, whether the Otago Council’s functions are wide enough for it to present submissions about Gollum galaxiids.

Competing arguments

[20] Although extensive written and oral submissions were presented by each side, on my analysis the issues are in fact relatively narrow.

Argument for Pioneer

[21] Part 5A of the Act confines the power of Fish and Game to sports fish and their habitats. The overarching responsibility for freshwater fisheries, including native fish, rests with DOC. An interpretation that would allow Fish and Game to advocate on the native fish issues in this case would cut across the clear wording, purpose, and intent of the Conservation Act.

[22] The words used in Part 5A indicate that Fish and Game was not intended to have powers beyond those concerning sports fish and game. And the words “habitats” and “resource” in ss 26C and 26Q are intended to be read in that way. A direct connection is intended, otherwise the intention of the Act would be defeated. Expert evidence on behalf of Pioneer confirms that in the Nevis River galaxiids inhabit separate habitat from trout and are accordingly irrelevant to trout management, maintenance or enhancement. The statutory planning process referred to in s 26Q(1)(e)(i) was not intended to include WCO processes.

[23] Earlier legislative history supports that interpretation. The specific purpose of Part 5A was to amend the law relating to freshwater fish by giving umbrella responsibility to DOC. Fish and Game were only given the limited responsibility of managing, maintaining and enhancing the sports fish and game resource.

[24] Fish and Game have overstated the implications of a declaration. Contrary to the claims of Fish and Game, the declarations sought in this proceeding are discrete and limited. They are not intended to be a blanket ban on advocacy and there will be no precedent effect. This reflects the undisputed expert evidence before this Court to the effect that the habitats concerning sports fish and galaxiids are physically separate within the Nevis River.

Fish and Game’s response

[25] Fish and Game accepts that there needs to be a “connection or relationship” between the “habitat” or “resource” and the sports fish or game. The councils only intend to represent interests and aspirations that are related to sports fish and game habitats and the interests of anglers. They intend to call evidence before the Environment Court to demonstrate this connection, that being the appropriate forum. On the strength of Mr Watson’s affidavit this Court is entitled to conclude that the necessary connection or relationship is an “open issue” for determination by the Environment Court.

[26] As a party to the Environment Court enquiry, Fish and Game is entitled to present any relevant evidence for consideration by that Court, and Part 5A of the Conservation Act confers the necessary power to do so. While there is a clear role differentiation between Fish and Game and DOC, it is not realistic or practical to exclude Fish and Game from advocating in a case like this where the conservation of native fish and trout depends on the protection of the entire ecosystem. Given that DOC is taking a neutral role, it is especially important for Fish and Game to present evidence to the Environment Court about that issue and the potential impact of damming.

[27] Part 5A confers wide powers on Fish and Game Councils in relation to the ecosystems as habitats for sports fish and game and the interests of anglers. It also confers wide power for the councils to appear before Courts and Tribunals when performing those functions. These powers extend to hearings concerning Water Conservation Orders. Under s 26F(1) and s 26S(1) the New Zealand Council and Otago Regional Council have such powers as are reasonably necessary or expedient

for them to carry out their functions. In this case, continued advocacy in relation to native fish is both necessary and expedient.

[28] The declarations sought in this case are not appropriate. They will not serve any useful purpose and would create an unfortunate precedent that would have impacts far beyond this case.

Orders sought

[29] As amended during the course of the hearing, Pioneer’s statement of claim

seeks:

A. Declarations that:

(i) The proper construction of sections 26C and 26Q of the Act is that:

(1) The statutory functions of New Zealand Fish and Game Council and Otago Fish and Game Council under the Act relate to the management, enhancement and maintenance of sports fish and game and their habitat, as defined by the Act and associated Regulations.

(2) The management, maintenance and enhancement of native fish and their habitat, other than sports fish, is not a statutory function of New Zealand Fish and Game Council or Otago Fish and Game Council.

(ii) The proper construction of sections 26C(1)(g) and 26Q(1)(e) of the Act is that the planning functions of New Zealand Fish and Game Council and/or Otago Fish and Game Council relate only to their interest in the management and enhancement of sports fish and their habitats.

(iii) The proper construction of sections 26C, 26Q and 26S of the Act is that New Zealand Fish and Game Council and/or Otago Fish and Game Councils’ powers to appear before any Court or Tribunal and advocate are limited to their interests in the management of sports fish and their habitats.

(iv) Submission by New Zealand Fish and Game Council and/or Otago Fish and Game councils’ in Environment Court Proceeding topic Number ENV-2010-3331-019 on native fish and their habitat in the Nevis River (including the characteristics of Gollum galaxiids) is not a permitted exercise of their statutory authority under the Act.

B. Orders that:

(i) New Zealand Fish and Game Council and Otago Fish and Game Council are prohibited from advocating in Environment Court Proceeding Topic Number ENV-2010-

3331-019 (by way of presentation of evidence and/or argument or otherwise) on the management, enhancement and maintenance of native fish and their habitat in the Nevis River (including the characteristics of Gollum galaxiids).

(ii) New Zealand Fish and Game Council and Otago Fish and

Game Council amend their notice of submission dated 14

September 2010 to declare that paragraphs 4 (c) and 5 (g)

are beyond the statutory powers of Fish and Game.

Discussion

[30] Given that statutory powers are involved, it is within the jurisdiction of this Court to make declarations under s 3 of the Declaratory Judgments Act. The critical issue whether in all the circumstances it is appropriate for declarations to be made.

[31] As an applicant for the proposed amendment to the WCO, Fish and Game has a right to be heard at the enquiry conducted by the Environment Court: s 211(a) of the RMA. If the declarations sought by Pioneer are granted, Fish and Game will not be able to present evidence/submissions to the Environment Court about Gollum galaxiids. Given that DOC is adopting a neutral stance, it could follow that the Environment Court would be constrained in its ability to fully enquire into that

aspect.[4]

[32] Those matters tend to suggest that this Court should approach the declarations that have been sought with considerable caution. It also needs to be kept in mind that it would be virtually impossible to confine any precedent effect. With those matters in mind I turn to the relevant statutory provisions.

[33] Starting with the national body, the first issue is whether the function under s 26C(1)(g) “To advocate generally and in any statutory planning process...in the management of sports fish and game, and habitats” is wide enough to authorise the

_{submission relating to Gollum galaxiids. This raises two preliminary questions:}

whether a WCO process qualifies as “any planning process”; and whether Gollum galaxiids might come within the expression “habitats”.

[34] I have no difficulty in answering the first question in the affirmative. Water Conservation Orders are included in the RMA (Part 9) and are very much part of the planning process. It would be artificial in the extreme to exclude them from the operation of s 26C(1)(g), especially when Fish and Game has a right under s 211 of the RMA to be heard. I am not prepared to read down that provision. To do so would be to defeat the statutory objective which is to provide anglers with a national voice about the management, maintenance and enhancement of sports fish and their habitats.

[35] As to the second question, Fish and Game have responsibly conceded that there needs to be a plausible connection or relationship between the relevant habitat and the sports fish and game. Whether the necessary connection exists in any particular case is a factual issue.

[36] In this case Pioneer relies on the expert evidence before this Court to the effect that there is no connection or relationship between sports fish and Gollum galaxiids (and their habitat). On the other hand, Fish and Game rely on Mr Watson’s affidavit which asserts that the management of sports fish resources can be influenced by other parts (presumably upstream) of the same river system and that on this basis the Gollum galaxiids population is relevant to the trout resource in the Nevis River.

[37] Obviously this Court cannot resolve whether or not the necessary connection or relationship exists. Nor should it attempt to do so. That is a matter within the expertise of the Environment Court with the benefit of comprehensive evidence. Where there is inadequate evidence to enable this Court to determine critical issues in a meaningful way it will generally be inappropriate for this Court to make a declaration: Pacific Farms Limited v Palmerston North City Council.[5] I am

_{satisfied that this is such a case.}

[38] Having reached that conclusion it is only necessary to make brief reference to the statutory powers of the Otago Council. Under s 26S(7) the Otago Council is entitled to appear before Courts and Tribunals and be heard on matters affecting or relating to its functions. Those functions, as expressed in s 26Q(1), are “to manage, maintain, and enhance the sports fish and game resource in the recreational interests of anglers and hunters”. Both that power and the specific powers that follow are couched in wide terms.

[39] Again, I cannot see any justification for restricting these wide powers. Such an approach would defeat the statutory objective which is, amongst other things, to confer wide powers on regional Fish and Game councils to advocate before the Environment Court. It is for that Court to assess any evidence that might be presented about the sports fish resource or habitat, and the recreational interests of anglers.

Result

[40] I decline to make any declarations and the application for declarations and related orders is dismissed accordingly. The defendants are entitled to costs from the plaintiff on a 2B basis.

Solicitors:

Buddle Findlay, PO Box 322, Christchurch 8140, [e-mail]

Anderson Lloyd, Private Bag 1959, Dunedin 9054

---

[1] Whitewater New Zealand Incorporated, Pioneer Generation Limited and New Zealand and Otago

_{Fish and Game Councils ENV-2010-CHC-230, 231 and 232}

[2] Water Conservation (Kawarau) Order 1997 SR 1997/38

[3] Mr Mulvihill and Mr Dungy have also sworn affidavits in reply.

[4] Unless (assuming that it had the necessary power to do so) the Environment Court elected to call such evidence.

[5] Pacific Farms Limited v Palmerston North City Council [2011] NZCA 187 at [37] and [38]