Plug should be pulled on Ruataniwha dam

The Court of Appeal land swap decision is a fatal blow to the Hawke’s Bay Regional Council’s plans to build the environmentally damaging Ruataniwha dam, Forest & Bird says.

The court decision released yesterday effectively blocks any options the council had for taking over the specially protected Department of Conservation (DOC) land in the Ruahine Forest Park and flooding it to build the dam, said Forest & Bird’s Regional Conservation Manager for Hawke’s Bay, Amelia Geary.

“The dam and its associated irrigation scheme never made environmental or economic sense. The Court of Appeal decision now means the plan doesn’t have a leg to stand on from a legal point of view,” Amelia Geary said.

“It’s time the regional council stopped wasting ratepayers’ money and pulled the plug on the Ruataniwha dam.”

The Court of Appeal decision means DOC will not be able to revoke the special protection given to the ecologically valuable 22 hectares in the Ruahine Forest Park and swap it for another block of land of less ecological value.

The forest park land was to be part of the area to be drowned by the dam’s storage lake, which would provide irrigation for more than 25,000 hectares of the Ruataniwha Basin, in Central Hawke’s Bay. The resulting intensification of agriculture would lead to more pollution of the Tukituki River, some of which already has damaging nitrate levels.

The court judgement means DOC's decision to downgrade the land’s “specially protected” status to allow it to be taken over by the regional council’s investment arm in return for another block of land, was illegal.

"DOC’s decision was based on its view that overall conservation values would be increased by the land swap. But any future reconsideration of the proposal can now only be based on whether the conservation values of the 22 hectares had declined to the point where the land no longer deserved special protection", Forest & Bird lawyer Sally Gepp said.

The land includes mature forest that is home to threatened wildlife, including long-tailed bats and falcons. DOC has previously accepted that the land, which borders the Makaroro River and Dutch Creek, has high conservation values and that the special protection would not have been revoked without the land swap.   

“If DOC were to now say the land no longer deserves special protection, this would be a complete about-face on its previous findings.  We don’t see how DOC could legally remove the land’s special protection in those circumstances,” Sally Gepp said.

DOC or the regional council’s investment arm needs special permission from the court if they want to appeal the decision in the Supreme Court.

Another option that has been the subject of speculation is to use the Public Works Act to seize the conservation land. But this is unlikely to be possible because the Act does not generally allow Crown land to be taken in this way, and the dam company does not have the authority under the Act to take land.