A decision, on October 23, on whether to notify Otago’s land and water plan at the end of this month approaches - it is a plan the minister is urging them to delay.
Hamish MacLean reports on the latest twist in the long and winding path to new rules aimed at protecting the region’s freshwater.
It might be seen as an olive branch.
Environment Minister Penny Simmonds late last month wrote to Otago Regional Council chairwoman Cr Gretchen Robertson with an offer.
After 10 months of urging the council to delay notification of its land and water plan until a new national policy statement for freshwater management (NPSFM) has been reviewed and replaced, Ms Simmonds and Agriculture Minister Todd McClay invited the council to be part of that work.
Of course, to do so there would have to be a delay of the council’s plan.
"To allow for the new direction for the NPSFM to be incorporated into your draft plan you would need to delay notification until at least early 2025," Ms Simmonds wrote.
Recent history suggests there will be five councillors who will be eager to accept the offer.
Dubbed by Cr Tim Mepham last month as "the famous five", Crs Gary Kelliher, Michael Laws, Kevin Malcolm, Andrew Noone and Kate Wilson have consistently voted in favour of doing what the minister recommends, and have lost.
There are 12 councillors around the table.
And Crs Alexa Forbes, Lloyd McCall, Mepham, Bryan Scott, Alan Somerville, Elliot Weir and Robertson, dubbed "the secret seven" by Cr Laws, have all to date appeared resistant to the recommendation to pause work on the plan.
Council chief executive Richard Saunders, who drafted the staff report for today’s extraordinary council meeting, advised councillors to consider the minister’s offer — but not immediately.
Instead, Mr Saunders recommended councillors consider the offer when a vote on notifying the plan is due to take place, on October 23.
The advantages and disadvantages of having an early look at the direction of the NPSFM review and replacement "should be carefully weighed up when considering whether to notify the plan", he said.
By that time the council would have had an opportunity to speak to its mana whenua partners at their Mana to Mana forum, he said.
The latest letter from Ms Simmonds had also addressed "unintended consequences" that could come with a delay and included an offer to help to resolve them, Mr Saunders said.
The draft plan, due to be ready for notification on October 31, has already been five years in the making; it has cost the council $18 million; and it is fundamentally linked to the council making itself "fit for purpose".
Work began when Ms Simmonds’ predecessor, Labour’s David Parker, engaged Prof Peter Skelton to investigate the council in 2019.
Prof Skelton found the region to be facing "growing challenges" in light of a high level of water abstraction and native ecosystems being altered.
Historic gold-mining water permits were expiring soon and the council’s planning provisions to manage waterways were "inadequate", he said.
Moreover, Prof Skelton said the council was "seriously under-resourced" in the key areas of policy and planning, science, consenting and compliance, monitoring and enforcement.
(Ratepayers who are now getting their rates bills and contacting the Otago Daily Times to complain appear to have noticed a step change in the council’s rates demands since.)
Part of the plan to get the council on track were six-monthly reports to the environment minister until the end of next year.
These reports were to outline the council’s capability and capacity in science, planning, consenting, monitoring, enforcement and land management.
The council was to summarise its freshwater consenting activity, as well as its progress in the development of a new regional policy statement and a new land and water plan.
Councillors made decisions on the regional policy statement in March and appeals are now in front of the courts.
In February, Ms Simmonds asked for and received advice on "rescinding or extending" Mr Parker’s ministerial direction to the council to notify its land and water plan by the end of June — its planned notification date when Mr Parker left office.
Ministry for the Environment briefing notes informed Ms Simmonds that Mr Parker’s section 24a investigation and recommendations was to make sure a fit-for-purpose planning framework was put in place ahead of the expiry of the historic gold mining permits.
Ms Simmonds was advised she could amend the recommendation "if you consider that the extension is consistent with the original investigation and recommendations and if you consider the implications of amendment in light of the original purpose for the direction".
Extending the deadline for notification until December 2027 would not compromise the council’s ability to achieve a fit-for-purpose planning framework before the expiry of the mining permits, the briefing notes said.
Accordingly, she granted the council a nearly three-year extension.
However, in a 7-5 vote in March councillors opted to push the timeframe for notification back by only four months.
More recently, a vote to pause work on the plan lost 7-5 at an extraordinary council meeting on September 20.
That meeting was called, ostensibly, to discuss a 40-minute meeting on September 12 in Wellington between council leadership and the ministers.
The Wellington meeting was held after an extraordinary council meeting on September 5 was held behind closed doors and councillors approved a second report to Ms Simmonds on the costs associated with the plan.
It was held out of the public eye after a 7-5 vote.
Now, at the end of last month, the council sent its 10th six-monthly update to the environment minister, its second to Ms Simmonds.
Ms Simmonds told the ODT she expected the council to continue with the updates next year, but noted again she had extended the deadline for the new plan.
"Given the delay, I would expect ORC to take a pragmatic, light-touch approach to progress reporting," she said.
The briefing notes from February did outline reasons why the council might want to progress the plan ahead of changes to the NPSFM.
The present plan was first notified in 1998 and was out of date, they said.
The interim consenting regime, which replaced the historic gold-mining permits, allowed consents to take and use water for only six years and presented an issue for the council.
Officials also noted councils could face legal action if they chose to delay notification of their freshwater plans.
The Resource Management Act (RMA) required councils to implement the NPSFM "as soon as reasonably practicable" and the Environmental Defence Society had written to regional councils highlighting that legal obligation, the notes said.
"Officials note however, meeting the statutory deadline of December 31, 2027, is broadly considered to override this requirement so this could be addressed through further discussions with the council," they said.
However, the RMA did require councils to review provisions in plans at least every 10 years, "which ORC is well past".
Ms Simmonds was further informed Kāi Tahu had expressed both a range of concerns about freshwater management in Otago, and its hope for addressing these issues through the implementation of the present NPSFM’s Te Mana o te Wai provisions.
A delay in notification and implementation of the council’s plan was likely to affect relationships "between not only the Crown and Ngāi Tahu but also ORC and Ngāi Tahu", the briefing notes said.
They went on to say a further briefing was being prepared for the minister outlining available options to stop the council, and any other councils, from notifying their plans.
The ODT asked Ms Simmonds if she had received that briefing.
"Numerous briefings have been received since February 29," she said yesterday.
"I have not directed ORC to pause notification of its land and water plan. However, I and my RMA ministerial colleagues have given every indication that we consider pausing to use the extended December 31, 2027, deadline is the most sensible thing to do to ensure ratepayers are not burdened with a duplication of unnecessary costs."
The government and council would continue to engage "on how we can work together", she said.
Ms Simmonds said the process to replace the NPSFM was under way and was expected to wrap up in the middle of next year.
"When to progress or delay plan development is ultimately a decision for each council to make, and I am sure councillors will be carefully weighing the costs and benefits, as well as government’s direction of travel," she said.
Mr Saunders’ report to councillors today said Ms Simmonds’ offer was a "legitimate option" for the council.
But he cautioned against a decision at this time.
The decision should be "weighed against the advantages and disadvantages of other options", he said.
• The ODT has requested the briefing notes outlining options available to Ms Simmonds to stop councils from notifying freshwater plans under the Official Information Act. However, that request is unlikely to be met before the October 23 vote.
