Highest legal protection secured for Te Waikoropupū Springs and Wharepapa Arthur Marble Aquifer

Anderson Lloyd’s partner, Maree Baker Galloway and senior associate, Rosie Hill, acted as co-counsel in a Landmark Decision from the Environment Court, recommending the making of a water conservation order (WCO) for the ongoing protection and enhancement of the internationally and nationally significant, Te Waikoropupū Springs and contributing waters. The Environment Court’s Decision recommending the Order is 314 pages long, and represents a seminal decision in freshwater and water conservation order jurisprudence for Aotearoa. Minister Parker’s Announcement today as to the impending legal effect of the Order, and its passing into secondary legislation by the House, represents the final step in concluding years of litigation to secure due protection and recognition of Te Waikoropupū Springs.

Te Waikoropupū Springs and contributing wai

Te Waikoropupū Springs are part of the Tākaka catchment and are just to the northwest of Tākaka, Mohua/Golden Bay in Tasman District. The Wharepapa Arthur Marble Aquifer is part of a highly complex and vast karst hydrogeological

artesian system that, along with the Tākaka River and its tributaries, feeds the Springs. For Ngāti Tama ki te Tauihu, they are one of the most sacred places in Mohua (Golden Bay). They are a registered wāhi tapu, and taonga tuku iho (treasured resource). The exceptional clarity of the Springs’ bubbling waters is renowned internationally, and connotes what the Environment Court determined to be ‘outstanding spiritual qualities’. Te Waikoropupū are the largest freshwater springs in the southern hemisphere, and hold significant and rare scientific and ecological values, including being listed as a Water of National Importance for biodiversity. The water is some of the clearest in the world (approaching over 80m visibility). By contrast, the aquifer that supplies Te Waikoropupū is almost unknown yet is crucial in creating the remarkable qualities of the water seen at surface level.

The evolution of a water conservation order for Te Waikoropupū

The Application for a water conservation order to protect Te Waikoropupū Springs was commenced in 2013, and formally accepted by the Minister in 2017. The Application was made jointly by Ngāti Tama Ki Te Waipounamu Trust and Andrew Yuill, a local resident of Golden Bay and advocate for the Springs’ protection. Their objective was to protect the culturally significant Wāhi tapū and outstanding freshwater system for the descendants of Ngāti Tama and the communities of New Zealand. The Application process was underpinned by a much longer history of monitoring of the Springs’ water quality, primarily gathered by members of Friends of Golden Bay Inc. (FOGB), which revealed a worrying progressive increase in the Springs of levels of potentially harmful nitrate-nitrogen (NO3-N). For Ngāti Tama, as ahi-kā-roa, such degradation is a matter going directly to their tikanga responsibilities as kaitiaki for Te Waikoropupū. Over 2003 submissions were received on the Application from the public (with over 95% in support). A Special Tribunal appointed by the Minister conducted a hearing in Golden Bay in 2018, and subsequently recommended to the Minister that a WCO be made, in March 2020. The Co-Applicants, TDC and various other parties (including local farmers and Save our Springs Aotearoa New Zealand Inc (‘SOS’) filed submissions to the Environment Court instigating a further inquiry.

What is a water conservation order?

In legal terms, a WCO is an Order in Council made by the Executive on the recommendation of the Minister for the Environment (Minister). It is a form of secondary legislation which can prescribe restrictions or prohibitions on the exercise of a regional council’s powers under s30(1)(e) and (f) RMA (relating to freshwater quality and quantity). As a unitary authority, Tasman District Council (TDC) exercises those powers within the Tasman District. The regional policy statement and relevant regional plan(s) must not be inconsistent with a WCO. Where relevant, a WCO is a statutory instrument to which regard is given in the consideration of resource consent applications. A WCO is the highest form of protective instrument for freshwater under the RMA, with the ability to give targeted direction for the protection of recognised outstanding values.

There are currently 15 water conservation orders applying to Aotearoa freshwater bodies, however this will be the first in respect of a subterranean system, and the first in respect of which mana whenua was a co-applicant. Maree Baker-Galloway has acted on at least 7 of those orders.

The Environment Court’s findings

The Environment Court’s Report significantly advances the available jurisprudence on the making of water conservation orders, their purpose, and potential extent of restrictions on councils. The Court advances discussion on:

• The application of the precautionary approach and precautionary principles to RMA decision making;
• Application of tikanga in decision making and as an aid to statutory interpretation;
• Evaluation of Te Taiao through both mātauranga Māori and western science lenses;
• Reconsideration of water conservation order jurisprudence in a post-NPSFM 2020 era, including the breadth of a WCO’s fetter on Council functions, duties and powers; and
• Interpretations of concepts of ‘baseline state’ ‘natural state’ and improvements of freshwater outcomes through a WCO.

In particular, the Court made evidential findings that:

• The waters of Te Waikoropupū Springs are natural state waters, as Te Puna Waiora, in accordance with tikanga Māori; the Springs and Wharepapa Arthur Marble Aquifer have outstanding values;
• That natural state of the Springs and those outstanding values are at significant risk from human-induced pollution (particularly increasing levels of nitrate nitrogen NO3-N).
• Farming activities in the Tākaka Valley Floor contribute to approximately 75% of all NO3-N reaching Te Waikoropupū, or approximately three times more than all other sources combined;
• Since 2005, there has been an increase in NO3-N loads leached from the Valley Floor of around 30 tN/y in lower flow periods and possibly 70 to 85 tN/y in higher flow periods;

Ultimately, the Court found there was a need for an effective and robust WCO to preserve the Springs’ natural state as far as possible and sustain and protect the outstanding values of the Springs and the Wharepapa Arthur Marble Aquifer.

Significantly, the WCO sets a number of specific contaminant limits including to ‘hold the line’ for no further degradation, and a target improvement state for NO3-N to be achieved by 2038 in order to ‘get back to’ pre-2017 levels recorded. The WCO also includes concepts for adaptive management, and cultural health index monitoring, and is overall a significantly more targeted and detailed instrument than any existing WCO.

The Court’s findings were heavily assisted by the exemplary citizen science of the FOGB’s monitoring of the Springs. The Groups’ monitoring programme stemmed from discussions in a group appointed by TDC (the TDC Takaka FLAG) in 2015, which revealed uncertainty over the actual NO3-N levels in the Springs, and whether the trend was up or down. At the time, the available data was from the National Groundwater Monitoring Programme (which analyses water from Te Waikoropupū every 3 months).  FOGB agreed to undertake more frequent monitoring, without any assisted funding, and continues to publish its data monthly: FOGB Nitrate results.

What happens next?

TDC is well underway with work for the review of the operative Tasman Regional Policy Statement 2001 (‘TRPS’) and Tasman Resource Management Plan (‘TRMP’) intended to give effect to the NPSFM. The review is to produce a replacement/combined policy statement and plan to be called Aorere ki uta Aorere ki tai – Tasman Environment Plan (‘TEP’). The TEP must set limits which accord with this WCO, including the target attribute states for improving nitrate-nitrogen concentrations.

It will be for TDC to determine what reductions must be achieved by particular activities through the TEP process, with community input, to achieve the specified reduction in NO3-N concentrations in the Springs. Importantly, that discretion is governed by the purpose of the WCO including the overarching duty in s6(a) RMA as to the protection of the Springs. A stepped further reduction programme for NO3-N will likely be needed in the TEP to be implemented progressively in the event of non-compliance with the limits of the WCO, or in the event that trends from 2030 onwards indicate that compliance is unlikely to be achieved.

The Court commented that “One necessary set of ingredients for the success of the WCO concerns relationships. That is both as between Manawhenua and this taonga and as between Manawhenua, as kaitiaki, and TDC in their exercise of powers… Inevitably, if the Springs are to be sustained as Te Puna Waiora and their outstanding values to remain protected, much will rely on good will and other endeavours beyond the parameters of a WCO”.

Furthermore, the Court drew on available tools under the RMA to the attention of the Minister, including the ability for the Minster to make grants or loans to assist in achieving the purpose of the Act. This was particularly in light of its findings that: ‘Te Waikoropupū has been rendered at significant risk in a context of longstanding inadequate monitoring and inadequate catchment management by TDC. If the outstanding values of these waters are to be protected, that approach to monitoring must change significantly. The necessary monitoring and other work for the effective implementation of the WCO can be expected to involve significant resourcing and expenditure.’ Both Ngāti Tama and TDC provided statements in support of the need for adequate funding in order to implement cultural health monitoring and wester-science based monitoring in the future, which the Court commends to the Minister for consideration.

Want to know more?

If you have any questions about the water conservation order process, this article, or other freshwater decision making, please contact our specialist Environment planning and natural resources team.

PDF version: here.