Water Bottling Cases Considered at Highest Level

Over the past few years, the issue of bottling water for export has had a high profile in the news and on social media.  Resource consent applications to take water for bottling have becoming a lightning rod for objectors.  In November, the Supreme Court issued its long awaited first decision on a water bottling matter, Cloud Ocean Water Ltd v Aotearoa Water Action Inc. and Or, setting aside consents to take and use water for bottling purposes.  Here, we take a look at that case including the issues left on the table for another day.

A journey through the courts

Cloud Ocean Water Ltd sought to establish a water bottling business in Belfast, Christchurch, by utilising water take and use consents granted for a historic wool scouring activity.  Canterbury Regional Council granted the resource consent necessary to allow the use for water bottling in 2017.  Around the same time, Southridge Holdings Ltd was granted consent to repurpose take and use consents for water bottling which were originally granted for a freezing works, also in Belfast.

Aotearoa Water Action Inc (AWA) challenged the Regional Council’s decision making process for both the Cloud Ocean and Southridge consents.  It argued that the consents for a change in water use should have been accompanied by new consents to take the water, rather than  relying on the old water take consents which had been granted for different purposes.  This challenge was unsuccessful in the High Court.
The Court of Appeal overturned the High Court, setting aside the Council’s decision to grant the change of use consents, on the basis that the regional planning documents did not allow for the consideration of water take and water use separately.  An appeal against this finding was lodged with the Supreme Court by Cloud Ocean and Southridge.

The Supreme Court upheld the Court of Appeal’s decision setting aside the consents.  While acknowledging that take and use are not required to be considered together in all cases, the Supreme Court confirmed that, in this case, there was nothing in the regional planning documents to suggest that the take and use consents for water should be separated.

What Cloud Ocean doesn’t decide

Given its relatively narrow scope, a number of  interesting water bottling issues are still on the table following the Cloud Ocean case, including whether “end use” effects of plastic bottle production and disposal can be considered in relation to a consent to take and use water, such as plastic pollution (including micro-plastics) occurring overseas, and issues relating to the tikanga effects (adverse effects on tangata whenua) of bottling and exporting water. 

In Cloud Ocean, the High Court found that the consequential effects of plastic bottles are too remote to be considered through a water take consent application.  In relation to cultural effects, the High Court considered that it was not clear on the information available how cultural values would be adversely affected by the use of water for commercial bottling, as opposed to other uses.  Because the Court of Appeal had found that the regional planning framework did not support the take and use components being separated, it found it unnecessary to consider the impact of selling water in plastic bottles or the effects on cultural values.  The Supreme Court similarly found that the impact of plastic bottles only needed to be addressed if it reversed the Court of Appeal’s decision, which the Supreme Court did not.  In relation to cultural values and tikanga, whilst noting the Regional Council had failed to follow its agreed processes with tangata whenua, the Supreme Court did not need to determine these issues because they would be subject to a new consent process upon referral back.

Water bottling round 2

In late November, the Supreme Court heard a second set of water bottling appeals, which squarely concern the plastic bottle and tikanga issues.  Sustainable Otakiri Incorporated and Te Rūnanga o Ngāti Awa appealed the Whakatāne District Council and Bay of Plenty Regional Council decisions to grant new consents for the take and use of water for bottling and export.  Water bottling was previously occurring on the site at Otakiri, and the applications by Otakiri Springs Ltd (formerly Creswell) are for a significant increase in the scale of the operation, from 8,000 to 154,000 an hour. 

The Supreme Court heard argument on the issue of whether the adverse effects of plastic bottle disposal (including overseas) are too remote to be a relevant consideration for the resource consent process, either in connection with the regional (water take) consent or the district land use application for a rural production facility.  The Court will also consider whether there has been an error of law in relation to how the High Court considered the negative tikanga effects associated with export and plastic bottle disposal, including on the mauri of the water and on Ngāti Awa’s ability to be kaitiaki.

These issues are potentially far reaching, and could shape the law in relation to “end use” effects of harmful packaging in other contexts.  The appellants invited the Supreme Court to revisit the established tests of “nexus” and “remoteness” in an RMA context.

If you have any questions about the issues raised in this article feel free to get in touch with a member of our Resource Management Team.  We are representing the Regional Council in these proceedings and Mary Hill appeared as Counsel in the Supreme Court and lower courts.

Written by:  Mary Hill, Partner, Jemma Hollis, Solicitor and Eloise Sharpe, Summer Clerk

Latest update:  5 December 2023