Court ruling distinguishes between frameworks of Conservation Act and Resource Management Act
The Court of Appeal recently upheld the High Court's decision regarding the interpretation of a concession granted to Griffin Creek Hydro Ltd (GCHL) for a hydroelectric power scheme at Griffin Creek.
In 2011, the Minister of Conservation’s delegate granted GCHL a concession to construct and to operate a run-of-river hydroelectric power scheme at Griffin Creek under Part 3B of the Conservation Act 1987. The concession took the form of an easement, which was administered by the Department of Conservation.
The Federated Mountain Clubs of New Zealand Inc (FMC) – an organisation representing outdoor recreation interests, particularly those of the canyoning community – appealed to the High Court after the denial of its initial application.
The FMC argued that the concession should limit GCHL’s water extraction to 1.2 cubic metres per second (cumecs), a figure mentioned in GCHL’s application.
The High Court rejected this argument. This prompted the FMC to take its case to the Court of Appeal.
In Federated Mountain Clubs of New Zealand Incorporated v Griffin Creek Hydro Limited [2024] NZCA 360, the New Zealand Court of Appeal dismissed the appeal and awarded costs against the FMC.
First, the appeal court decided that it should interpret the concession within the framework of the Conservation Act, which governed the grant of concessions, rather than applying the resource consent principles in the Resource Management Act 1991 (RMA).
These two regimes involved different legal frameworks, the appeal court said. Resource consents under the RMA required a specific mention of the volume of water extraction, while concessions under the Conservation Act were more concerned with the activity’s overall impact on conservation values, the appeal court explained.
The Department of Conservation’s decision to monitor and to control water flow rather than impose a volume cap was consistent with its conservation objectives, the appeal court ruled.
Next, the appeal court concluded that the concession in this case did not limit the water extraction to 1.2 cumecs. In reaching this conclusion, the appeal court agreed with the High Court’s interpretation.
The appeal court noted that the plain language of the concession document and the associated first determination report did not impose a strict cap on the volume of water that GCHL could take.
Instead, the concession focused on the environmental effects of water extraction and aimed to maintain the ecological integrity of Griffin Creek, the appeal court said. Specifically, the concession required GCHL to cease water extraction if the flow in Griffin Creek fell below the minimum level of 0.8 cumecs, the appeal court explained.
