Hands off Griffin Creek

FMC awaits a decision on Griffin Creek Hydro Limited’s (GCHL) concession application to run a hydro scheme at Griffin Creek, near Lake Brunner.  Readers will know that we have long taken a strong interest in this issue – the area is a world class place for our canyoning members to do their thing, and the forest is ecologically significant.  The risks of the project are also high, with large pipes to be laid in a trench under steep old-growth forest traversing the Alpine Fault.  Since the outset of our interest at Griffin Creek, we have been dismayed by DOC’s poor handling of GCHL’s application.  We call on DOC again to do the right thing, and protect Griffin Creek.

The Griffin Creek saga is long and sorry.  GCHL got a concession in about 2011 for a small hydro scheme in Griffin Creek. That application had no public submissions.  GCHL did not build its small scheme – it wanted a bigger one.  It lodged some variations in 2018 but withdrew them when DOC said it would notify the variation application.

GCHL tried again.  It lodged another variation application in May 2020.  That application was clearly deficient against the requirements of section 17S of the Conservation Act – the things an applicant needs to provide DOC when they make a concession application.  GCHL’s application had no robust AEE, and it was difficult to tell what its proposal even was.  Some of this reached levels at which one would laugh if not cry.  GCHL’s feeder pipe might have been 30 cm across, and laid across the forest floor.  Or it may have been 1.2 metres across, laid in a deep trench needing significant earthwork and deforestation. On GCHL’s information, this was simply unclear.

Despite this, DOC did not use its statutory powers to deal with inadequate concession application information.  Nor, instead of asking for information adequate to statutory standards, did DOC return or outright reject GCHL’s application, perhaps inviting a re-start. This brought up issues with section 17SA and SD of the Conservation Act.

Foundational as good information is to any legal process, DOC also apparently found that there was a material increase in adverse effects for the purposes of the variation.  FMC has not yet worked out how DOC made that conclusion without good information.  But in any event, that finding also made DOC’s subsequent decision not to publicly notify the variation – on the basis of “minor to nil adverse effects” – highly questionable on the face of it.  A saying about apples and oranges comes to mind.  This brought up issues to do with sections 17ZC and 17SC of the Act.  There may also be issues around lease/licence non-notification.

Despite not notifying, DOC staff sought NZ Canyoning Association and FMC views on GCHL’s application.  We welcomed that.  For the Canyoners, that request came in what was obviously a formal statutory request.  For FMC, it may or may not have been.  In any event, FMC has a good argument that the request cultivated specific expectations about consultation (FMC expected to be able to give info to DOC, get a DOC response, comment on that etc.).

Whatever the case, DOC staff were happy to take and apparently use FMC information (putting it to GCHL).  FMC again welcomed that, but were troubled when for a time DOC staff denied having even given their invitation.  The denials only started after FMC had provided probative material that was adverse to GCHL – in particular we gave DOC a vegetation survey by Neil Silverwood.  This survey, based on DOC’s own methods, found that GCHL’s estimate of significant tree loss was conservatively undercounting by a factor of 10.  Even now, DOC seem to wish to continue to deny us the opportunity to comment on GCHL’s proposal as it winds up finally – i.e. to comment “on GCHL’s application” in any true sense.  Latterly, they wish to treat our getting any final information about the application as an OIA matter of all things.  They have more recently said, though, that they would ‘proactively release’ the decision.  We can be thankful for small mercies, perhaps.

All these issues put DOC at serious risk of falling into the very same legal error as the (only) error the Court recently found them to have made in recent Tahr Foundation litigation.  It is disappointing to find that DOC has already unlearned a lesson so recently given to it.

Finally, and coming full circle to good information, it seems FMC would not have been called upon to address any changes to GCHL’s application anyway.  That is because GCHL does not seem to have cleared up its deficient application in any way before processing.  In other words, there must still have been confusion about what GCHL was actually going to do when DOC had begun to make a decision on the application.  DOC appointed in-house recreational and ecological experts to fill this informational gap.  They wrote reports.  We are unsure if anyone external has seen them.  Notwithstanding this “being GCHL’s job” through its section 17S obligations, the appointments are an admirable DOC attempt to remedy foundational processing errors.  We welcome that.  But from a statutory perspective, unless and until GCHL provides clear information on the nature of its proposal, these experts must – by definition – fail in any task of properly assessing “the effects of the proposal” “on” anything, be it on recreation, on ecology, or on anything else.  They just aren’t and can’t be clear on what the proposal is.  All the experts can do is assess “values”, which is not what they need to do in these circumstances.  All this raised issues with section 17U and 17T of the Act.

FMC understands that DOC have recently provided GCHL with a Draft Decision Report, which GCHL plans to make extensive comment on. We will not get the chance to comment on GCHL’s proposal – wherever it may wind up – as we were promised. No doubt DOC might see this to be the time and place where all of the information gaps get cleared up.  But of course this is not what the Act says.

It is time for the GCHL to put up a clear proposal. It is time for the public to see that clear proposal. And it is time for DOC to process that clear proposal according to the Conservation Act and its own promises. If GCHL and DOC are unwilling or unable to take all those steps, it is time for the saga to end. It is time for Griffin Creek to be left alone. FMC encourages members to watch this decision closely, and support us with next steps if DOC does not do the right thing at Griffin Creek. At minimum, we plan on sending DOC’s Director-General Lou Sanson a copy of his own Act.