The Counsel for Creswell NZ was heckled by those in the public gallery as he sought to advance the water bottling giant's case in the Rotorua High Court on Tuesday.

The expansion of Otakiri Springs, which would see more than a billion plastic bottles produced annually, is vehemently opposed by Ngati Awa. Whanau in the public gallery made their voices heard during counsel Dave Randal's opening statement.

More than 100 Ngati Awa whanau have gathered in Rotorua as the iwi continue its fight against the expansion of the bottling plant, alongside Ngai Te Rangi, Ngati Pikiao and Sustainable Otakiri.
Creswell New Zealand, a subsidiary of Chinese company Nongfu, seeks to expand the Johnson Road plant and export the water overseas.

It's expected the expanded plant will provide at least 60 jobs.

The Environment Court last year dismissed the group's appeals against the resource consents granted by Bay of Plenty Regional Council and Whakatane District Council, as it felt it did not have jurisdiction over the "end use" of the water.

This includes the consumption of the water and environmental effects of plastic waste. Instead, the court said it could only consider the actual taking of the water.

Around 100 Ngati Awa supporters turned out both days.

Tuesday was the second day of a planned four-day hearing in the High Court.

Randal opened proceedings by speaking about the political nature of water bottling, saying that opposition to Creswell persisted "despite its best efforts".

He said the expansion would provide employment in a region that needed it, and noted a Ngati Awa kaumatua have given evidence in the Environment Court that the water take would have no impact on te mauri o te wai - the spiritual essence of the water.

Randal's speech was peppered with cries of "greed", "we don't want your jobs", "how would you know, you're not Maori", "get your own water", as well as groans and incredulous laughter.

"Creswell acknowledges the right for iwi to take any position they like, but political views do not carry weight in this forum," Randal said.

He said the water in the aquifer was abundant and the water taken by Creswell would not have any physical effects.

The exportation of water did not affect its mauri or Ngati Awa's role as kaitiaki of the water.

He said the effects of the plastic bottle waste were too far removed to be considered by the court.

To further this point, he made references to previous court cases which had reached the same conclusion.

"There is no plan that I am aware of that has attempted to regulate either water bottling for export or plastic waste."

He said Creswell was proposing a highly sustainable, beneficial, use of water.

"This is a beneficial use, particularly for jobs; this is an abundant source that is otherwise flowing to sea unused. This is an area that needs jobs, particularly Maori jobs."

Randal said Creswell was committed to using recycled plastic or glass bottles and noted Te Runanga o Ngati Awa had not ruled out becoming involved in water bottling.

"In fact, te runanga expressed interest in buying the plant itself. It also has interests in dairy and fisheries that involve plastic packaging."

He said Ngati Awa did not explicitly bring forward its concerns about plastic bottles to the Environment Court; it was only noted in passing by a neighbour of the plant.

If the issue was not properly raised in the first instance, it could not be used in an appeal.
"Plastic effects on the environment are not inevitable. Recycling happens. If a bottle is recycled, if packaging is recycled, there is no effect," he said.

Lanae Cable's petition against the expansion of the bottling plant has received over 18,000 signatures.

On Monday, counsel for Te Runanga o Ngati Awa Horiana Irwin-Easthope said the Environment Court "erred erroneously" when making the decision to dismiss appeals against the expansion of the bottling plant

Irwin-Easthope said the Environment Court did not consider the local effects of the water plant, including how it could prevent the iwi from exercising its right to kaitiakitanga.

She said if the water was exported and Ngati Awa could not exercise that right, the impact of that would be felt "squarely" in New Zealand.

She noted that not all of the water would be exported internationally, and some would be sold within New Zealand, therefore the plastic waste was a local issue.

She said it was made clear to the court that Ngati Awa was already practising kaitiaki and was attempting to reduce the number of plastic bottles in its rohe by banning them from its various businesses, including its boats.

As it decided it could not consider the "end use" of the water take, Irwin-Easthope said the Environment Court "closed its mind" to the actual, real, local outcomes of the water take.

She said this was a "fundamental error" and the matter should be referred back to the Environment Court with further guidelines from the High Court.

Counsel for Ngati Pikiao Environmental Society Rob Enright said the Environment Court failed to consider rangatiratanga as a relevant consideration for the resource consent.

He said as the Environment Court did not refer anywhere in its decision to rangatiratanga, that was a "fundamental failure" to consider a relevant matter.

Enright said Ngati Pikiao's Treaty of Waitangi rights were missing from the decision.
He also recommended the matter be brought back before the Environment Court so it could consider the spiritual effects on iwi.

Counsel for Ngai Te Rangi Jason Pou criticised the Environment Court's decision to rely on testimony from regional council experts on the mauri or life force of water rather than those put forward by Ngati Awa.

He said the court opted to go with evidence presented by the regional council expert that the mauri of water was sustained wherever it went because it would eventually be returned to the earth through its natural water cycle as it aligned Western science to form the basis of the view.

Experts from Ngati Awa said the mauri was diminished when water was removed from its rohe.
Pou said the court could not simply agree with one individual and claim it represented the views of an entire iwi. He said in their kaitiaki role, different iwi might have different ideas on how to manage their taonga but that was for the iwi to decide not someone else.

"Who has the right of kaitiakitanga and who has the right to speak on behalf of a people about their spiritual connection to the water?" he said.

"When they listened to these views, they formed funnel vision, this funnelled what questions they asked and funnelled how they viewed the matter before them."

Pou said the iwi were consistent that extraction took the mauri from the water and to mix it elsewhere was offensive.

For the iwi to set aside its culture, it would need very good justification, he said.

After a disappointing result in the Environment Court, iwi and community groups have brought their opposition to the expansion of the Otakiri Springs for exportation to the Rotorua High Court.

On Tuesday, counsel for the regional council Mary Hill said the Environment Court correctly understood that the Resource Management Act and the Regional Plan did not control the activity of export or regulate and control the recycling of plastic.

These activities were regulated by other legislation. Plastic was not managed by the regional council but by district councils.

"This is different to whether the court can regulate the effects of that which it does control," she said.
"Selling water is a cultural effect, which can be assessed under the RMA framework, and the court did this thoroughly in this case.

"Kaitiakitanga is a unique relationship experienced by tangata whenua in New Zealand and there was considerable analysis of this relationship in the Environment Court's decision."

Hill said councils were required to engage with iwi and pay mind to the Treaty of Waitangi principles when making decisions.

"It's not disputed the court can take into account metaphysical concepts and has done so, but that is quite a different proposition to saying the Environment Court should have taken into account a belief in ownership as a Treaty principle."

She said the court did provide "practical expression" to kaitiakitanga through the establishment of a kaitiaki liaison group, which could see the regional council review consents if it made a recommendation.

The submission that the court "wrongly" considered the testimony of one kaumatua over another was "hard to follow".

"The court looked at their expertise in tikanga as kaumatua of Ngati Awa, which they all were ... they were weighing the experts' subject matter the same way they would weigh any other."

Hill said it was not as simple as preferring one witness over the other, instead she said the Environment Court evaluated the witnesses carefully and gave "careful" reasoning as to why it went with one view over the other.

In rebuttal, Enright said rangatiratanga still had not been addressed.

"Rangatiratanga goes to the core of treaty principles as does the relationship of iwi with their water."
He said Ngati Awa was the only iwi to have been mentioned with regard to Maori rights and this exclusion of Ngati Pikiao trampled on its Treaty rights.

In his rebuttal for Ngai Te Rangi, Pou said end use of water was "squarely" within the Regional Policy use, particularly wasteful or inappropriate use.

"How do you determine inappropriate use if you do not look at what the end use is?"
He said just because water was taken in the same way from other sources it did not necessarily make the water take from Otakiri appropriate.

"This is about the mana of an iwi to exercise rangatiratanga and kaitiakitanga over a water body. This is why Ngai Te Rangi come to support Ngati Awa."

Pou said under cross-examination the tikanga expert for Creswell admitted he had "divorced" himself from the Ngati Awa elders' institution.

"The mandate within the iwi is clear. It rests with the iwi authority," he said.