"Factual Fiction" at Ruataniwha - Surely Not!
Saturday, December 13, 2014 at 4:32PM
Bill Barclay

The High Court delivered one of its more strident decisions yesterday when it backed Fish & Game in its appeal against the Hawkes Bay Water Storage Scheme on all 12 counts on which taken action. 

"While constructing a factual fiction may not in itself amount to an error of law, when the effects of that factual fiction are taken into account in the context of this case, it becomes apparent that an unsatisfactory state of affairs is created," the judgment of Justice David Collins, issued this morning, says. This was "difficult to reconcile with the board's desire to impose controls over the discharge of nitrogen in order to manage the 'ecological health' of the catchment area."

Boy! there is no mistaking just what Justice Collins thought of the "factual fiction" constructed by the Board of Inquiry which earlier approved the scheme with some fairly stringent provisions, but not stringent enough in their application in the view of Justice Collins. He agreed with the 0.8mg (nitrogen) rule that the Board had imposed, and that farmers throughout the country deemed likely to "devastate" farming - particularly in productive fertile plains. That just shows just how serious they are in working to achieve acceptable levels. 

The bottom line was that the Board then attempted to satisfy everyone in its final report by introducing the "factual fiction" that comprised a an out-clause for farms covering more than four hectares "so that farms covered by the rule are deemed not to be contributing to the specified levels of DIN entering the catchment area if the farm complies with nitrogen leaching rates specified in a different rule."

It is this back-down that riles Fish & Game and their cohort, and that was declared by Justice Collins to contain "over-arching errors of law" requiring him to send the decision back to the Board with a pretty clear direction to do better in order to comply with the Government's National Freshwater Policy Statement - a statement about which the present Government appears ambivalent, or at least prone to provide contradictory advice. 

The Environmental Defense Society and Forest & Bird appear willing to enter into new hearings to arrive at "a final version," but it is not clear that Fish & Game are quite so anxious to return to the table given that the opposing parties appear so far apart.

What is clear is that the decision delivers a body-blow to the Hawkes Bay Regional Council, and its commercial investors waiting on the sidelines are unlikely to stay connected for long. The HBRC is of course spending rate-payer money on the Resource Consents, so they will probably continue the battle, backed by the farmer supporters of the scheme, an inadequate number of whom have signed up in any case.

The Government's entire irrigation policy on which it has placed so much store (forgive the pun!) appears to be in tatters as this was the cornerstone project, and the one that was to lead the way for many others. The 0.8mg rule will be the killer I suspect just about everywhere. But wait till the new milk price projections are factored in, and enthusiasm is likely to be severely tempered.

It would not surprise if attempts were now made to put pressure on the Government to scrap the Freshwater Policy on the basis that it has the electoral mandate to do what it likes. Next year could see some real fireworks on this score alone. 




Article originally appeared on BillBarcBlog (http://billbarclay.co.nz/).
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