Fate of Clyde dam and workers hangs on two choices

Press, 8 July 1982, Page 3

Fate of Clyde dam and workers hangs on two choices

Parliamentary reporter The fate of the Clyde high dam and work-force has now boiled down to two choices for the Government. It can either pass special empowering legislation, which is the Government’s own choice, or it can apply for an Order-in-Council, which the Labour Opposition has suggested. In his visit to Clyde this week the Leader of the Opposition (Mr Rowling) canvassed the Order-in-Council option with the people of Cromwell. In reply, the Minister of Justice (Mr McLay), said the Government could not change over part-way through proceedings under the Water and Soil Conservation Act, 1967, to another procedure under that act.

His main reason was that to try at this stage to pass an Order-in-Council (a form of regulation) declaring the waters of the Clutha River to be “natural water of national importance” would be seen by the courts as a transparent attempt to avoid the normal procedures of the act simply because the Crown did not now like the way in which those procedures were working. “No court would regard that as a bone fide or proper exercise of the power given to the Government under the act,” said Mr McLay. But the explanation given by Mr McLay in reply to Mr Rowling is not the reply given by Crown counsel to ■the Planning Tribunal when it heard the water' right application for a high dam at Clyde in 1980. The Planning Tribunal

asked Crown counsel whether the Crown would be bound by a decision of the tribunal if that decision were unfavourable. Counsel replied that he was unable to give that assurance. In view of that response almost two years ago, would the Courts be surprised if the Crown sought to avoid the normal procedures of the act because it did not like the way in which those procedures were working? If the recent comments of the former High Court judge, Mr Peter Mahon, were indicative of how the courts would react, would the courts make any distinction between avoiding normal procedures by using an Order-in-Council rather than avoiding them by using special empowering legislation? Mr McLay sees a valid distinction. He said it would be possible for Parliament, the supreme, law-making authority, to pass legislation which would grant the necessary water right. Mr Rowling, however, plainly does not see a distinction. His argument at Clyde was that the Government could require a high dam at Clyde within the legislation and without needing to pass new legislation through Parliament. Thus, he said, it followed that if the Government would not use a legitimate avenue open to it, but insisted on shelving work on the high dam and laying off staff, it must be for some other reason than that it did not command a majority in Parliament for special legis-

lation. But Mr Rowling’s reading of the provision for an Order-in-Council within the Water and Soil Conservation Act, 1967,- is also open to question. The Labour Party’s case rests on section 23 (7) of the act, which says: “The Governor-General may from time to time by Order-in-Council declare any natural water to be of national importance . . .’’ The key point then becomes, ‘what is a "natural water." As defined in 1967, and subsequently amended in 1971, it means: “All forms of water, including fresh water, ground water, artesian water, sea water, geothermal steam, water vapour, ice and snow

... but does not include water in any form while in any reservoir (not being an aquifer) under the control of a public authority and used mainly for the water supply purposes of that authority, or in any pipe, tank, or cistern.” While the Clutha River at Clyde still is a “natural water” as defined, damming it either by high or low dam would end its “naturalness." An Order-in-Council using the “natural water” of the Clutha as a device to permit it to be dammed would be an obvious case for an appeal to the High Court. That might prove a more substantial reason for not adopting Mr Rowling’s choice than Mr McLay’s. belief that the courts would not like it, or that it would be less acceptable to the courts than passing special legislation.