Flow on effects

North Canterbury Fish and Game Council v Canterbury Regional Council [2025] NZEnvC 253

The North Canterbury Fish and Game Council (Fish and Game) and the Environmental Defence Society Inc (EDS) jointly sought four declarations to clarify the division of responsibilities, and the extent of powers and functions, of Canterbury Regional Council (Council) and the Minister for the Environment (Minister) in relation to the Water Conservation Order (WCO) on the Rakaia River. In August 2025, the Environment Court issued its judgment on this application.

Various parties joined the proceeding, including the Minister, a number of irrigation interests, Manawa Energy Limited and the New Zealand Federation of Freshwater Anglers Incorporated.

The declarations sought in relation to the Rakaia WCO are as follows:

• Declaration 1: The Council has a duty under section 35 of the Resource Management Act 1991 (RMA) to monitor, gather information, and keep records in relation to:
  • the state of the outstanding characteristics and features recognised and protected by the Rakaia WCO;
  • the individual and cumulative effect of all water takes and diversions not prohibited by the Rakaia WCO, which may impact characteristics and features recognised and protected by the Rakaia WCO;
  • the quantity of ‘stored water’ flowing into Lake Coleridge, and how it is stored, ordered, and released to irrigators;
  • whether stored water is being correctly classified in accordance with the Rakaia WCO; and
  • the minimum gorge flow in relation to the flow in the river reduced by abstraction or diversion within the Rakaia River.
• Declaration 2: Section 24(f) of the RMA does not require the Minister to directly monitor the same factors set out in Declaration 1 above.
• Declaration 3: The Council‘s duty to enforce observance of the Canterbury Land and Water Regional Plan (CLWRP) under section 84(1) of the RMA includes a duty to enforce the observance of the Rakaia WCO, because the Rakaia WCO is incorporated into the CLWRP.
• Declaration 4: The Council's statutory functions and powers include the ability to enforce / compliance with the Rakaia WCO, arising from the status of WCOs as secondary legislation under the RMA.

 

Background and legal framework

The Rakaia WCO came into effect in December 1988 following an application by a group that sought to recognise the significance of the Rakaia River for its recreational and braided river values, particularly for trout and salmon fishing and jet boating.

The National Water Conservation (Rakaia River) Order 1988 protects these outstanding natural and ecological features, water quantity and flow rates, and prohibits the damming of the river and its tributaries. It also imposes restrictions on the Council issuing resource consents and enacting provisions in regional plans that are contrary to the Rakaia WCO.

Under section 24(f) of the RMA a function of the Minister is "the monitoring of the effect and implementation of this Act (including any regulations in force under it), national policy statements, national planning standards, and water conservation orders".

Under section 35 of the RMA local authorities must:

• monitor, for example, the state of the environment in their region or district; the efficiency and effectiveness of policies, rules, and methods in their policy statements or plans; and the exercise of resource consents within their region or district;
• compile and publicly release a review of monitoring results at least every five years;
• keep records of, for example, resource consent applications, decisions, and transfers; and
• take appropriate action where monitoring shows it's necessary.

 

Declarations 1 and 2 – who is responsible for monitoring WCOs?

The Court declined to award declarations 1 and 2, finding that the Minister has a duty under section 24 of the RMA to monitor the effect and implementation of WCOs. The Court found that alongside the Minister's monitoring function, the Minister has a corresponding duty and power to exercise that function. The manner of exercise of that duty is discretionary.

The Court disagreed with Fish and Game and EDS that the Minister's duty is only high-level and supervisory, with oversight of the Council's implementation of the Rakaia WCO. The Court noted that the Minister has the power under the RMA to fund others to monitor the implementation of the Rakaia WCO, since the Minister does not have in-house executive monitoring capacity.

The Court held that in relation to the Council's duty under section 35 of the RMA, declaration 1 would fetter the Council's duty in terms of the extent of and manner in which that monitoring is to be undertaken. The Court acknowledged that the duty on the Council under section 35 of the RMA to monitor the state of the environment and the exercise of resource consents may overlap with the Minister's duty under section 24 of the RMA to monitor the implementation of WCOs. However, the Court made clear that there was no express duty on the Council to monitor the implementation of the Rakaia WCO.

The Court found that the Council's power in relation to WCOs was restricted. The Council cannot take action in relation to the contents of any WCO using an RMA method – it can only change the provisions of the CLWRP provisions that implement the Rakaia WCO.

 

Declarations 3 and 4 – observance of WCOs

The Court declined to award declarations 3 and 4, holding that a WCO is not directly enforceable by the Council and that the Rakaia WCO is operationalised through the CLWRP and the Council's consenting jurisdiction.

Rather than the Rakaia WCO being enforceable in its own right, it restricts the Council's plan-making and consenting functions. Resource consents granted by the Council, which are not contrary to the Rakaia WCO, can then be enforced by the Council. Similarly, regional rules in the CLWRP, prepared in accordance with the Rakaia WCO, can also be enforced.

 

Alternative declarations

The Council and Minister sought alternative declarations. The Court considered these declarations, noting the desirability for clarification as to who is responsible for monitoring the implementation of WCOs. Consequently, the Court made the following order:

The Canterbury Regional Council has a duty under section 35(2)(d) of the Resource Management Act 1991 to monitor the exercise of the resource consents that have effect in its region. Insofar as any of those resource consents authorise the abstraction of stored water (as defined in clause 2 of the National Water Conservation (Rakaia River) Order 1988), the Council is obliged to monitor whether water being taken is stored water. The extent and manner of this monitoring being a matter for it to determine.

 

Takeaways

This case provides some much-needed clarity on who is responsible for monitoring and enforcing WCOs. Ultimately, the monitoring of the effect and implementation of WCOs sits with the Minister. While the Court held that this role is not merely "high level supervisory", what is practically required to fulfil this function was not fully explored. The Court also clarified that the Rakaia WCO is not enforceable by the Council in its own right, but rather through the implementation of the WCO in regional policy statements and plans.