After more than 10 years of actively protecting Griffin Creek’s recreational and natural values, FMC took our advocacy to the Court of Appeal in 2024.
The Court of Appeal recently ruled that the Griffin Creek hydro scheme concession, issued by DOC in 2011, contains no maximum water take. It is now possible that a bigger scheme could be built on Griffin Creek than had originally been proposed. Despite the lack of maximum take, other protections in the concession mean that any scheme cannot be of unlimited size. The Creek’s residual flows are also protected.
The Court of Appeal’s decision comes after FMC appealed an earlier High Court’s decision on the same issues. The High Court had dismissed FMC’s claim that the concession had a maximum water intake. It made this finding in part because of its views on the Conservation Act, interactions with other acts like the Resource Management Act, and the law of easements. The High Court took the view that when this law was applied to the key facts at Griffin Creek, there was no way to say the concession had a maximum take. Griffin Creek Hydro Ltd’s concession application to DOC did specify a limit, but the resulting concession did not. If this change or omission in concession wording was due to deficiencies in DOC decision-making, FMC had not challenged those deficiencies. The Court of Appeal outcome was similar.
FMC respects these legal outcomes. Indeed the Court of Appeal articulated an approach to interpreting concessions similar to what FMC had argued for. There is a possibility that some concessionaires might seek to use the rulings, which will be recorded as an FMC “loss” despite our successes on residual flow and interpretive principles, for their own ends. They might wish to under-emphasise the conservation and recreational dimensions of the Conservation Act, and to over-emphasise the private-property rights of concessions holders. But this will not be tenable because the Courts largely took a different view to FMC on the facts of the particular situation at Griffin Creek, rather than on the law generally.
DOC opposed FMC’s case throughout, likely because of this different view on the facts. But DOC may also have seen our case to open the floodgates to wide interpretation challenges on all concessions, including from concession holders looking to eke out further rights to use conservation land. FMC could understand such a rationale. Nonetheless, we continue to believe that DOC should take responsibility for the protection of water in the conservation estate, including for its recreation values. Indeed, DOC should cherish that responsibility. Just because other laws like the RMA might do some or even a lot of that work, there is no reason to forget the additional ecological and recreational protections offered by the Conservation Act.
At Griffin Creek, we expect that DOC will carefully uphold the other concession protections, so that ultimately any hydro scheme should remain of similar scale to the originally-proposed scheme. But in future hydro concessions more generally, DOC needs to specify maximum water intakes to protect our precious conservation lands and waters, and their recreational opportunities, from inappropriate development.
“We are disappointed with the outcome, but respect the Court of Appeal’s decision and will not be appealing further,” says FMC’s president Megan Dimozantos. ”Despite this outcome, we are pleased that our earlier advocacy work ensured that the minimum residual flow at Griffin Creek is maintained. We hope that the awareness raised through taking this case to the Court will encourage DOC to be more fastidious in the detail when issuing concessions in the future to ensure environmental and recreational values of conservation land are protected.”
FMC acknowledges the support of all who donated to the Save Griffin Creek campaign and in particular the NZ Canyoning Association. FMC also acknowledges Martin Smith and the staff of Gilbert Walker for their generous and skilful representation throughout the Court process, and finally Barry Barton of Waikato University for his considerable assistance.
Even though the Court of Appeal outcome is not what we hoped for, the moral and financial support received has been greatly appreciated.
Photo: Griffin Creek, (c) Neil Silverwood
