At its final meeting in December, the Regional Council received briefings from both legal counsel and HBRIC on matters regarding the dam.
These briefings occurred just four days after the High Court instructed the Tukituki Board of Inquiry (BOI) to revisit its handling of a most critical component of its plan for protecting water quality in the catchment — namely, the regulation of nitrogen, a key pollutant (specifically, dissolved inorganic nitrogen, DIN).
The HBRIC briefing was more consequential in terms of shedding light on the viability of the dam.
HBRIC had previously declared that the dam was simply not viable if the final regulatory regime required nitrogen to be limited in the manner the BOI originally proposed in its ‘draft’ decision. When the BOI removed the ‘offending’ limits in its final decision, Fish & Game, Forest & Bird, and the Environmental Defence Society appealed the change to the High Court. The High Court sided emphatically with the environmentalists; in fact, it ordered HBRC (that’s you, ratepayers) to pay the court costs of the enviro appellants. Message: their complaints are anything but frivolous.
The environmental team — with two wins and a ratepayer-replenished bank account — has good cause to feel bullish about its approach to protecting the Tukituki.
On the other hand, that’s two strikes against the team that has led the HBRC/HBRIC strategy on water quality management. First, the BOI sided with enviros on how to manage the Tukituki’s water quality (to the astonishment of HBRC/HBRIC); and second, the High Court ruled in favour of the enviros, as described above. One might reasonably ask, where is HBRC/HBRIC getting all its bad advice? And how long will that continue?
Rather than face ‘three strikes and you’re out’, one might think that HBRC would invite some fresh thinking on its approach before charging back to the BOI with a new position when the BOI attempts to resolve the matter in the first quarter of the year. [The BOI has asked the parties for their views by 20 January on how the review process should be conducted. This does not appear to be a process that the BOI will rush, given the wrist slap it received from the High Court.]
However, when I queried at the HBRC meeting whether councillors would be engaged as a new position was formulated, the response was a curt: when we’ve come up with our position, we’ll “inform” you. As it turned out, by 19 December, two days after this exchange, the BOI had already received recommendations from counsel for HBRC/HBRIC! So much for conferring with Councillors.
Councillor Beaven then pressed the issue and secured a commitment that “Council input” will be part of HBRC’s process, although such input would need to occur in public-excluded session.
You might recall that the last time HBRC went through this sort of drill (when it took a position seeking amendment of the BOI’s initial draft decision), Councillors were not consulted. As a consequence, Councillors Barker, Beaven, Graham and myself filed our own submission endorsing the draft decision as it stood.
The lack of closure — anytime soon — around the regulatory regime obviously complicates HBRIC’s attempts to secure unconditional water user purchase agreements. Farmers want to know what ‘headroom’ they will have, if any, to increase their nitrogen leaching if they wish to intensify their farming via irrigation. The answer might well be: No headroom.
Thus, even the 5.4 million cubic metres of water that HBRIC reports farmers have currently signed up for is still conditional on a favourable regulatory outcome. This is the uncertain environment in which HBRIC now says it must sell 45-46 million cubes of water — committed unconditionally — to proceed with the scheme.
You might have read in HB Today that I commented I was “flabbergasted” that HBRIC Directors were hopeful that this level of uptake could be reached even by 30 June, let alone by the current cut-off date of 31 March … HBRIC’s project development is only funded by HBRC through the first three months of 2015. And given continuing controversy over the proper approach to Tukituki water quality, I stand by that comment.
HBRIC Director Jim Scotland told Councillors that the development process would “conservatively” cost $250,000 per month if continued beyond March. His candid remarks made clear that HBRIC Directors have no appetite for coming before HBRC Councillors on 28 January to ask for $750,000 to fund the development process for an additional three months. Instead, HBRIC is seeking — as HBRIC Director Danelle Dinsdale put it — to “shift the pain” for providing additional funding to others, including potential suppliers, who have a vested interest in seeing the dam built. A polite term for this might be ‘tithing’.
How does that make you feel about the integrity of this process? Worried that Councillors might not have the guts to vote another $750,000 into a cracking dam, HBRIC Directors have asked Andrew Newman to put the arm on suppliers (eg, OHL-Hawkins Construction, who hold the dam construction contract) and — one might surmise — other allies like Irrigation NZ (after all, they claim over 40 million cubes of dam water are already signed up), Dairy NZ and Fed Farmers. How about the CHB District Council?
Personally, I don’t see why HBRIC Directors are nervous at all about snagging another $750,000 from HBRC. I can think of five Councillors who probably would have awarded it on the day, given their unshakeable optimism about the project.
Oddly, while HBRIC Directors seem nervous about hitting the HBRC till for $750,000, apparently HBRIC CEO Andrew Newman — eager not to miss the next construction season — rolled into the December HBRIC Board meeting seeking authority to commit $20 million to move into preparations for dam construction. Talk about living on another planet!
HBRIC Director Scotland reassured Councillors that this request had been set aside, perhaps aiming to convince more skeptical Councillors like me that the Board indeed had the moxie to apply brakes to the runaway train. Or it was simply a classic marketing ploy: “Our diligence has saved you $20 million; surely in gratitude you can stake us another $750,000.”
I asked rhetorically when HBRIC Directors might decide the dam had been left “twisting in the wind” long enough? When might they begin considering an exit strategy from this scheme? How would they go about that?
Director Scotland responded that the Board was constantly asking those sorts of questions. Reassuring, I guess, but not really an answer to “When was enough, enough?”
Kudos, though, to Director Scotland for his forthcoming manner throughout.
This might all sound stranger than fiction, but it’s all available for your own leisurely viewing pleasure right here in the HBRC video archive (go to HBRIC Update). Go ahead, pour yourself a drink and treat yourself to a summer school civics lesson!
Hope you’ve had a splendid Christmas and still have some days of relaxation ahead!
P.S. As for the lawyer’s briefing … not reassuring. Methinks you have a basic problem when the same legal team is representing both the dam advocate (HBRIC) AND the supposed defender of the purse and environment (HBRC). My concern has been that actual construction of the dam could proceed before environmental commitments were firmly locked into place by so-called ‘Farm Environmental Management Plans’ which, under Plan Change 6, must be negotiated between farmers and HBRIC. Nothing ‘our’ lawyer said convinced me that wasn’t a plausible outcome, and one to be avoided. You can see that exchange also in HBRC’s video archive (go to Legal Review of RWSS Water User Agreement).