The court battle over the fate of water from the Otakiri aquifer is continuing

Consents that were granted to Creswell New Zealand, a subsidiary of Chinese water bottling giant Nongfu Spring, in 2018, were opposed by four groups on Wednesday and Thursday last week in the Court of Appeal.

The consents being contested are a 25-year consent from the Bay of Plenty Regional Council to increase the plant's annual take from the Otakiri Aquifer to 1.1 million cubic metres and above ground consents granted by Whakatāne District Council for the new plant, approving the increase to the size of the buildings, landscaping and traffic movement.

Three iwi groups, Te Rūnanga o Ngāti Awa, Ngāti Pikiao Environmental Society and Te Rūnanga o Ngāi Te Rangi Iwi Trust, oppose the regional council's consent, based on the damage the water bottling activity will have on the mauri (life force) of the water.

Community group Sustainable Otakiri was formed to oppose the consents granted by the district council.

All four cases have previously been heard unsuccessfully in both the Environment Court and the High Court, however, in October last year they were given leave to take the cases to New Zealand's second highest court, the Court of Appeal.

They appeared before a panel of three Appeal Court judges, Justices Mark Cooper, David Goddard and Robert Dobson in Wellington last week.

Ngāti Awa argues that material errors of law were made in approving the resource consents.

The water will be put into 3.7 million largely plastic bottles a day, equating to 1.3 billion bottles a year.

Most of the water will be exported to China for the Asian market and Ngāti Awa will not be fulfilling its role as kaitiaki if the business went ahead as planned.

Summarising the Ngāti Awa opposition to Creswell, former and late chairman of the rūnanga Dr Hohepa (Joe) Mason was quoted as having said: 'This is too much water, to be sold, too far away.”

This view is supported by current chairman Joe Harawira who told Local Democracy Reporting that Creswell's application is inconsistent with the principles of Te Tiriti o Waitangi.

'There are fundamental questions around the export of water, and the use of plastics, that need to be addressed and should be of concern to all New Zealanders.

'Why are we giving our water away for free to overseas companies whose shareholders will be the main beneficiaries? Why should a proposal to build a manufacturing plant with the capacity to create 1800 single-use plastic bottles per minute be able to proceed under the current law?

'Why are we exporting our purest water when our own people living in Whakatāne, Murupara and Kawerau drink water of the lowest acceptable quality for human consumption?”

Spokeswoman for Sustainable Otakiri Maureen O'Kane says the crux of her group's case is that the consent has been able to go through without consultation with the community.

'This tiny water bottling plant was able to go through on limited notification because they decided that it was materially the same as what had been approved before,” O'Kane told Local Democracy Reporting.

'What we're saying is, you wouldn't expect a dairy to be able to turn into a supermarket [without consultation]. You wouldn't expect a backyard butcher to be able to turn into Afco, so why is it okay for a business that has maybe eight truck movements a day to be able to have over 200 truck movements a day and be able to push that through without public consultation.”

O'Kane says Sustainable Otakiri will be giving its right of reply in writing as its barrister wasn't available at the time.

'We were very pleased with what we presented and we were very pleased with the questions that the panel asked the district council in relation to how they applied the application for Creswell.”

O'Kane expected the appeal to be heard in December but due to Covid it had been dragged out.

She expects it will take a number of months before the judges handed down a decision.

She says the group has survived by fundraising activities, including a Givealittle page.

They have previously survived liquidation proceedings by Creswell NZ to cover court costs from the previous hearings and still have court costs to pay for the appeal hearing.

'We managed to fundraise and survive the liquidation proceedings, and we've been fundraising quite hard out since then to get ourselves into the Court of Appeal.

'At the moment we're applying for a top up from the [Ministry for the Environment's] Environment Legal Assistance Fund. We've applied to them multiple times previously, and we've been turned down because the ELA didn't believe that we were of enough public importance to receive funding.

'We received funding initially for our Court of Appeal Case but we applied for tens of thousands of dollars and were only granted $6175 excluding GST. So we're applying again for a top up there, but any public assistance that we could get would be absolutely appreciated, given what we feel is the magnitude of the outcome of what this could be."

The Whakatāne District Council and The Bay of Plenty Regional Council declined to comment on the hearing.

-Local Democracy Reporting is Public Interest Journalism funded through NZ On Air