Rotokākahi pipeline planning grievances aired in High Court

Supporters of the Rotokākahi Board of Control's case against Rotorua Lakes Council. Photo: Ben Fraser

The Rotokākahi Board of Control has aired its grievances at the High Court in Rotorua about the process to install a sewerage pipeline near a sacred lake.

Rotorua Lakes Council's plans to run the pipeline through the Rotokākahi Protection Area, near the privately owned Lake Rotokākahi (Green Lake), a wāhi tapu site, caused a deep rift with the board, which manages the lake.

The work is part of the roughly $30 million Tarawera Sewerage Scheme, which involves a new pipeline connecting properties at Lake Tarawera to the city wastewater scheme.

In early 2024, the board raised concerns about a lack of consultation and potential impacts on ancestral burial areas.

Protests at the lake in February 2024 paused construction, prompting the council to obtain a court injunction to continue the work safely.

After the board's Environment Court application to halt works was dismissed in March this year, it vowed to appeal and seek a judicial review in the High Court, arguing that the Environment Court made errors of law when assessing the pipeline's impacts.

A two-day High Court hearing before Justice Kiri Tahana began in Rotorua on Monday, as protesters supporting the board waved "Protect Rotokākahi" signs outside the courthouse.

The board's lawyer, Max Harris, argued that the council failed to properly consult it before pushing ahead with the pipeline.

He said the council had a legal and cultural duty to proactively involve the board in the decision-making process because the pipeline required significant earthworks in an area where the board held statutory guardianship of the lake.

"Council's engagement should have been proportionate to its potential impact."

He said the council's focus on Lake Tarawera representation overlooked the specific impacts on Rotokākahi, including culturally sensitive sites and historic burial areas.

This included an over-reliance on a 2019 Cultural Impact Assessment, which Harris said failed to assess the project's impact on Lake Rotokākahi.

He argued the council used a "grab-bag of quotations" rather than evaluating adverse cultural effects in deciding that the impact would be "less than minor".

It was difficult to consider passing a sewerage pipe through what effectively amounted to a cemetery as "less than minor", he said.

On Tuesday, the council's lawyers responded that the pipeline was the culmination of a lengthy process to address the deteriorating health of Lake Tarawera, where untreated wastewater from septic tanks was entering the lake daily.

The project was guided by a steering committee established in 2016, and two Cultural Impact Assessments were done, in 2017 and 2019, council lawyer Kate Cornegé said.

The council relied on consultation with Te Arawa Lakes Trust, Tūhourangi, Ngāti Rangitihi and Māori landowners, alongside the Cultural Impact Assessments, to form its opinion.

Lake Rotokākahi, Green Lake, near Rotorua. Photo: Ben Fraser

She said there were no minutes or records from the landowners' hui. That prompted an "uh oh" from one of several board supporters in the public gallery.

Cornegé said engagement with the board occurred in 2023 before works began, but after the decision to progress with the sewerage scheme.

Pre-construction mitigation measures included cultural monitoring and protocols for unexpected discoveries. An archaeological assessment had found no evidence of burial sites along the chosen route, she said.

The council maintained it had not ignored the board's preference for an in-catchment alternative to the reticulated pipeline, but had to consider the harm being caused to Lake Tarawera.

"This was a key factor for council," Cornegé said, adding that the pipeline's route along Tarawera Rd was already an established, designated road and therefore considered culturally acceptable compared with other options.

The board's lawyers also doubted whether the earthworks required for pipeline installation were permitted under resource management and district planning regulations.

They said the use of water blasting to clear earth left identification of possible koiwi (remains) difficult to enforce, and questioned whether the scope of the work met non-consent requirements.

This was disputed by the council, which claimed the District Plan allowed for earthworks under certain circumstances, which it was satisfied were met.

Rotokākahi Board of Control supporters outside the Rotorua courthouse on Monday as the hearing began. Photo: Ben Fraser

The pipeline is now installed, with some properties already hooked up to the new system.

The board is seeking relief in the form of a reconsideration of the decision, and said the completion of the work was not a "fair" reason for denial.

It did not plan to seek costs against the council if the court found errors of law were made, but hoped such a finding could reset council-community relationships damaged by the pipeline process.

Council lawyers said a declaration of clarity "would be appropriate" if the court found an error of law.

Justice Tahana reserved her decision, saying it was important that she took some time to find the right outcome.

She said a judgment was unlikely until next year.

- LDR is local body journalism co-funded by RNZ and NZ On Air.