The Tongariro Power Development Scheme (TPD) took water from the headwaters of Whanganui River and diverted it via a series of canals down the Waikato River, generating power on eight successive hydro dams on the Waikato River. The action of taking away of water which would otherwise flow down the Whanganui River affected Maori interests.
In 2001 the Regional Councils granted Genesis 53 resource consents, each for a 35 year term. On appeal by the affected Maori interests, the Environment Court reduced the terms to 10 years. The owner of the TPD, Genesis Power Limited, appealed to this Court alleging the Environment Court had erred in law. Genesis’ primary submission was that the Environment Court had departed from its powers under the Resource Management Act 1991 (RMA) in substituting 10 year terms to effect a “meeting of the minds” of the parties.
The court emphasized that appeals from the Environment Court were not appeals on the facts. It was only interfering with the Environment Courts’ decisions if it had applied a wrong legal test, come to a conclusion without evidence or taken into account irrelevant matters.
The Court was of the view the that Environment Court had seen the 10 year term as a means of drawing the opposing parties together, encouraging dialogue between them, and concentrating their minds on identifying the adverse effects of the TPD on Maori interests and on ways of mitigating those effects. However, the court held that the ‘meeting of the minds’ construct was unprecedented, not in accordance with the RMA, and both extraneous and antagonistic to the requirement to determine what best promoted the sustainable management of natural and physical resources. It was also not recognised in the case law on the RMA.
Repeating a consultation/effects assessment process over the next 10 years would not necessarily secure the ‘meeting of the minds’ hoped for by the Environment Court. The Environment Court had abdicated its decision making role and, effectively, had directed mediation. The Maori had previously failed to engage in the RMA process. The decision of the Environment Court allowed the Maori respondents to take advantage of its own wrongdoing. This involved an error of law.
Accordingly, the Environment Court’s decision to reduce from 35 to 10 years the term of the resource consents was quashed. The proceeding was referred back to the Environment Court for fresh determination of the appropriate term of the consents.