Wide ramifications of Clyde decision

Press, 3 June 1982, Page 16

Wide ramifications of Clyde decision

By

OLIVER RIDDELL

L in Wellington

The reverberations of the Clyde dam decision of Mr Justice Casey in the High Court in Christchurch are not fading away. If anything, they are growing in volume. The High Court issued its judgment on the questions of points of law arising from a Planning Tribunal decision to confirm the water rights for a dam at Clyde on the Clutha, River granted by the National Water and Soil Conservation Authority.

A long and winding path led to this point. The applications for the water rights were made in June, 1977. and the National Authority granted the rights in December, 1977. This decision generated a storm of protest, not least because the then Minister of Works (Mr W. L. Young) sat as chairman of the National Authority in considering the application. This decision was the subject of court action. The appeal included various legal actions about the procedure adopted by the National Authority, the alleged bias of the Minister, and the invalidity of the works being built. These were all heard by the courts, which upheld the National Authority. A Court of Appeal action was lodged, but not proceeded with. Then in September, 1980, the Planning Tribunal heard the case. Its judgment in December, 1980, by a majority of four to two, was’ in favour of granting the water rights. The two legal members of the Planning Tribunal dissented from the majority on points.of law. An appeal to the Administrative. Division of the High Court was made by way of case stated on points of law arising from the Planning Tribunals decision. It was heard on May 6-7. The judgment, issued on May 13, 1982, set aside the decision of the Planning Tribunal and remitted it back to the Planning Tribunal for further consideration.

Mr Justice Casey said the heart of the appeal was the

question of whether the Planning Tribunal should have taken into account and evaluated the end purposes for which the supply of electricity from the (high) dam was required. Opponents of the high dam' wanted the Planning Tribunal to consider the merit of a second aluminium smelter at Aramoana; a majority of the Planning Tribunal declined to consider it..

His Honour decided, specifically. no more than that the Planning Tribunal had misdirected itself in concluding that it could not consider the end use because it had mistakenly thought the Water and Soil Conservation Amendment Act. 1967. required an approach which made that subject irrelevant.

The Government has announced it intends to introduce legislation requiring a high dam at Clyde, to get around the delays 'in construction this rebuff would lead to — particularly to maintain the workforce on the site and to ensure power supply does not lag behind requirements, whether or not the second smelter goes ahead.

This has, in turn, brought about an outcry from those who view it as an act of pique by the Government. It may also .crack the unity of the Government itself, if some Government Caucus members do not care for the wording of the legislation introduced. But special legislation is only one of the five options available to the Government. It has been chosen because of the need (as seen by the Government) to act quickly. But the five options considered were not mutually exclusive, and the other four cannot be overlooked. They are:— .

• An appeal to the Court of Appeal on the points of law involved;

• Referring the water rights application to the Planning Tribunal, with the considerable delays that this would involve,

apart from any thought of consequential legal actions arising; • An application for the dam under the National Development Act, 1979, which would take a further 12 months; and • The use of Section 23 (7) of the Water and Soil Amendment Act, 1981, over waters of national importance. Now, at its first meeting since the High Court decision, the National Water and Soil Conservation Authority has reentered the fray. It will draw to the attention’of the Minister of Works and Development (Mr Quigley) the implications of the High Court decision, notwithstanding any specific legislation over a high dam at Clyde, in that the decision requires decisions on matters of political importance on the granting of water rights.

Ils fears were summed up by Mr M. E. Carrie, deputy chairman of the Water Resources Council, who asked — who was competent to decide between conflicting end uses? The National Authority was not, and he doubted if the Planning Tribunal was either. This was a political decision.

The National Authority's legal adviser (Mr J. F. Gallen) said the High Court decision seemed to be relevant for hearings under the Town and Country Planning Act, 1977, as well as the Water and Soil legislation.

He said the Government could appeal' against the High Court decision, to the Court of Appeal, as well as pass special legislation requiring a dam at Clyde. It might lose such an appeal. If it did, it could consider passing legislation

which removed the power to consider conflicting end uses from the Planning Tribunal. But all the High Court decision did was say that the Planning Tribunal had the power to consider if the options for the use of water were relevant to consider, and that the Planning Tribunal had been wrong in believing it did not have that power. Thus, the Planning Tribunal, after considering the optional end uses, could decide they were irrelevant.

The Planning Tribunal fell down in not considering the relevance of end uses at all; not because the Planning Tribunal had been wrong in considering them to be irrelevant or relevant. So remitting the water rights applications back to the Planning Tribunal, as Mr Justice Casey did, would

not in any way make it inevitable that the Planning Tribunal decided the end uses were relevant. But it is the time that this would take which seems to have led the Government to pre-empt the process and plan to introduce special legislation. It has taken five years since the National Authority first heard the water rights applications. A lot of time has gone by.

If even further special legislation has to be introduced tor the Government, to ensure that considering end uses is its prerogative rather than that of the Planning'Tribunal, or even the National Authority and regional water boards when considering water rights, then the issue is going to be around upsetting everyone for some time to come.