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Brief Counsel

Government casts off into freshwater reforms

12 March 2013

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​The Government’s preliminary response to the recommendations of the Land and Water Forum is necessarily limited – not insignificant but just the first steps in a journey of managed change.

Freshwater reform 2013 and beyond - the document released by Ministers Amy Adams and Nathan Guy at the weekend - leaves most of the important decisions for later, when New Zealand has built up the scientific and community knowledge necessary for implementation.

But, because water is critical to the New Zealand environment, economy and lifestyle, we suggest that you engage early.  Comments are due by 8 April 2013.

First steps

The areas which the Government has identified for inclusion in the Phase Two Resource Management Act (RMA) reforms this year are:

  • increased powers of central government intervention in relation to National Policy Statements and/or other regulations to facilitate the Forum’s recommendation for a National Objectives Framework
  • new requirements on councils to gather and share with central government data on freshwater takes and sources of freshwater contamination
  • provision of an alternative “collaborative” plan-making process covering plan development with independent hearing panels (instead of the normal territorial authorities) and limited appeal rights, and
  • greater direction regarding the role of iwi in water planning and consenting processes.

Chapman Tripp’s commentary on Phase Two is available here.

Yet to do

Matters on which the Government says policy has yet to be developed include:

  • the duration of permits
  • the development of alternative tools for water allocation
  • options for allocating permits on expiry
  • instruments to facilitate the transfer and trade of water rights
  • new transfer or off-setting mechanisms for water quality
  • incentives for efficient water use (both for quality and quantity) – including pricing and standards.

So far so good...

Initial reaction to the Government’s announcement has been generally good.  The Freshwater Iwi Leaders’ Group said it appropriately recognised and provided for “iwi rights and interests in freshwater management”.  Local Government New Zealand was also “cautiously” supportive as were Federated Farmers and others. 

Forest & Bird welcomed the “essence” of the proposals.  On the other hand, Fish & Game NZ raised concern about the implications for the Water Conservation Order regime as a tool for protecting New Zealand’s most outstanding rivers and lakes.

But, as the ‘Yet to do’ list demonstrates, the meatier issues (the nature and certainty of water rights, permit tradeability, water pricing) are beyond the scope of this reform round.

The gaps and holes in our freshwater management system have been known for a decade or more.  The first central government initiative - the “Sustainable Water Programme of Action” - produced such a sense of “inaction” that the Land and Water Forum formed voluntarily to attempt a way forward through cross-sectional consensus. 

In the third of its reports, the Forum urged the Government to avoid cherry-picking the Forum’s findings:

“The process of reaching consensus is never easy, and our recommendations form an integrated package, both because they complement each other in a policy sense, and also because they are all of them necessary for the Forum to reach its final agreement...Implementing them in part risks the loss of the consensus and constituency for change which [the Forum] has generated”.

Nevertheless, although the package only responds to a few of the Forum’s recommendations, Forum members have been reasonably positive. 

Patience will be needed

What this demonstrates is a collective realisation that it is a long journey in choppy waters to get freshwater management right in New Zealand.  As the Parliamentary Commissioner for the Environment reported in 20101 , the quality of New Zealand’s environmental reporting is poor by OECD standards.

Data collection has been the responsibility of the councils under the RMA but they have often lacked the resources to perform these obligations to the levels necessary which means that we need to improve our data bases before we can proceed with structural reform.

The Minister put it this way in her speech to the Bluegreens Forum:

“We do not yet have all the information we need and we do not yet understand all the mechanisms we will need to use to properly integrate land use and water management but what we know is we cannot afford to wait.  It is my view that we must begin this work now based on the best information we have and accept that further refinements are to be expected over time.”

Importantly, however, Minister Adams was clear that the announced reforms were just the beginning and that the long-term plan was to adopt most of the Forum’s ideas.  This workstream will need to be carefully coordinated across other policy areas – including potential structural reform of the local government sector.

Conclusion

The fact that freshwater is so clearly an underpinning resource for New Zealand underlies the importance of ensuring our oar strokes are well timed and considered.

Kaua e rangiruatia te hāpai o te hoe; e kore to tātou waka e ū ki uta

Don’t paddle out of unison; our canoe will never reach the shore

The opportunity is now open to have your say.  Comments can be made by 8 April.

For further information on this Brief Counsel, please contact the lawyers featured.

Footnote

1   "How clean is New Zealand? Measuring and reporting on the health of our environment". (April 2010)

 

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