Chance of dam rests on admissibility-of-evidence ruling

A High Court hearing yesterday signalled the next round of legal proceedings in the battle over whether a hydro-electric dam could be built on the Nevis River.

An Environment Court hearing on the matter is on hold pending the result from yesterday's fixture in the High Court at Dunedin. Pioneer Generation asked the court to determine whether the New Zealand and Otago Fish and Game Councils could present evidence on native fishery habitat to the Environment Court.

Justice Lester Chisholm has reserved his decision but said "it is not the purpose of this jurisdiction, and this court, to get involved in factual issues like you want me to get involved in here."

The councils had earlier applied for an amendment to the existing water conservation order on the Nevis so damming or diversion was banned. A special tribunal considered the views of 248 submitters and its finding, in August last year, was in favour of the amendment.

The tribunal, set up by the Ministry for the Environment, said the ban was needed to protect the habitat of a native fish called Galaxias gollumoides, a species only found in the Nevis.

The tribunal's recommendations have been appealed by three parties - Pioneer, the fish and game councils and Whitewater New Zealand.

Pioneer wants the option left open for potential hydro development on the river. The councils are seeking the river's wild and scenic landscape values and trout fishery values to be recognised as "outstanding" when the matter is reconsidered.

Whitewater New Zealand wants protection of the "nationally outstanding" whitewater kayaking amenity provided by the river.

The Environment Court will hold an inquiry and make recommendations to the Minister for the Environment.

Pioneer Generation counsel Susan Rowe told the High Court the fish and game councils should not be permitted to present evidence to the Environment Court on the native fishery habitat as it was outside the terms of their statutory authority.

Pioneer's intention was not to obtain a "blanket ban" on the councils' advocacy at the Environment Court, but rather to restrict them to subjects within their statutory powers.

Fish and game had responsibility for sports fish habitat management, maintenance and enhancement, but advocacy on native fish habitats and enhancement was the responsibility of the Department of Conservation, she said.

The councils had not proven any relationship between the habitat of sports fish and the habitat of native fish.

Justice Chisholm asked if Pioneer was seeking to "nobble" the fish and game councils so they could not make any submissions on galaxiids.

Counsel for fish and game, Jackie St John, said Pioneer was "effectively" asking for the councils to be excluded from the Environment Court process.

"Fish and game's concern is if its role is proscribed unnecessarily - that might limit the evidence the Environment Court receives and the impact of the inquiry," she said.

"It would also unduly fetter the Environment Court's ability to run its own inquiry and set an unhealthy precedent." A restriction on the evidence it could present would prevent Fish and Game from opposing and testing Pioneer's submission to the Environment Court.

"The effect of a prohibition [on damming] is that it preserves and protects gollum galaxiid and it also, coincidentially, protects the sports fishery, in its existing state." The galaxiids were matters that related to the councils' function and interests, Ms St John said.

She believed a link had been made between the habitat of native fish and that of sports fish.