The report by the Review Group into the performance of Environment Canterbury (ECan) is radical and could, depending on the Government’s response, create ripples which flow beyond Canterbury and beyond water.
This Brief Counsel discusses the Review Group’s recommendations and their potential implications for the Resource Management Act.
The status of the report
The Government has been cautious in its response, saying that it has not formed a view on the proposed changes and that – while it would be difficult to ignore the unanimous conclusion of the review panel – it will consult with key stakeholders before making any decisions.
The Review recommends that the Government legislate to create a new Canterbury Regional Water Authority (the Authority) to take over all ECan’s water related responsibilities.
The rationale for the Authority is that water management in Canterbury is sufficiently complex and difficult that it requires “the full and on-going attention of a specialist body”. The Authority would:
be appointed jointly by the Minister for the Environment (Nick Smith) and the Minister of Local Government (Rodney Hide) and chaired by an appropriately credentialed local, and
be reviewed after three to five years to consider alternative governance provisions, including whether to move to a mix of appointed and elected members.
The Authority’s remit would include:
preparing and implementing within specified timeframes a regional water plan with a balance of economic, environmental, social and cultural perspectives, and
executing the RMA water-related functions now undertaken by ECan (allocating, monitoring and enforcing water use consents, and addressing water quality).
A temporary Commission would be appointed to manage the split in ECan’s responsibilities and to run ECan’s non-water related functions until a new Council is elected (either in 2013 or earlier as determined by the Government).
Reasons for intervention
The Review acknowledges that the scale and complexity of the issues relating to water availability and quality in Canterbury are greater than anywhere else in New Zealand but says the “gap” between what needs to be done and ECan’s capability is “enormous and unprecedented”.The assessment that the problem requires “comprehensive and rapid intervention on the part of central government” was driven by a number of factors. Among these were:
strategic importance – around 70% of New Zealand’s fresh water resource is in Canterbury, which contributes a significant proportion of the nation’s renewable hydro generation and is also an important source of agricultural and horticultural production
there are significant Treaty issues involved
there is little confidence among territorial authorities and other stakeholders in ECan’s ability to solve the problems, and
the prospects of the region generating a solution itself within appropriate timeframes are limited.
The Canterbury dilemma
The Review notes that, although the RMA has been in force more than 18 years, Canterbury has yet to develop an operative region-wide planning framework. The Natural Resources Regional Plan which should perform this function is “stuck” at the First Schedule process.
It reports ECan’s view that the RMA is not equal to the task because the RMA is focused on managing the adverse effects of individual applications rather than managing for cumulative effects such as the impact of ground water draw off from the Canterbury plains aquifers on the flows in the lowland streams.
But the Review does not accept this analysis, saying the problem is not located within the RMA but rather with its implementation at both regional and district levels in Canterbury. ECan, for example, scored only 29% compliance with statutory timeframes for processing resource consents in 2007-08 (although it has since put in system improvements to address this). Further, Hawke’s Bay also faces conflicting demands on its water resources (and a high incidence of drought) but has operative plans in place, demonstrating that it is possible under the RMA.
The Canterbury Water Management Strategy
The Canterbury Water Management Strategy (CWMS) was formed last year at the initiative of the Canterbury Mayoral Forum and has been endorsed by all but one territorial authority in the area. The Review notes that the there is a great deal of momentum around the CWMS and that it is off to a strong start. However it is still at the early in-principle strategic phase of development and has not yet begun the task of translating these strategic objectives into on the ground policies and an implementation plan.
Nevertheless, the Review specifically recommends that the proposed Authority maintain as much of the positive work undertaken by the CWMS as possible. Further, the Authority is to align with other relevant central government initiatives such as: the Land and Water Forum, the proposed National Policy Statement for Freshwater Management and any future National Environmental Standards.
The Review proposes two alternative approaches, while emphasising that the Authority is its preferred approach. The other two options are:
replacement of ECan with a Commission and the call-in of a regional water plan to be prepared by a ministerially appointed Board of Inquiry. The Review Group does not favour this option as it entails abolishing ECan entirely and the Group considers that, with the exception of water, ECan is functioning effectively and is in some areas “well ahead of most other local authorities”, and
implementation of the CWMS, through legislative change and potentially funding from central government.
The scale of intervention involved in having a government-appointed Authority assume the responsibilities of a locally elected body, while significant, is simply the extension of a trend which began with the appointment of the Waitaki Water Allocation Board in 2004.
As it has become clear that the democratic, participatory RMA model struggles in situations where national imperatives apply, or where the demand on resources exceeds the supply, or where there are conflicting opinions regarding appropriate resource use, so has the reliance on central instruments increased.
We saw that under the previous administration with the proliferation in the use of National Policy Statements and National Environmental Standards and we are seeing it now with the increased use of call-in and with the formation of the Environmental Protection Authority (EPA).
A sensitivity for the Government, clearly recognised by the Review Group, is how to jump start Canterbury without cutting across the Land and Water Forum which is due to report to the Cabinet by 30 July on a strategy to address water allocation, water quality and water infrastructure. The Minister has charged the Forum, which covers urban, industrial and rural interests, with developing a policy consensus around these issues and will not want to cut across this work.
Neither, however, can the inertia in Canterbury be allowed to drag on.
Having commissioned the Review, the Government will act on it: it simply can’t ignore it. It may not pick up every recommendation and it may consider that the Review’s preferred option is a step too far. But it will intervene to ensure that the hard decisions are taken – and it is likely that the water management model which is developed in Canterbury will become the template for the rest of the country.
Getting the policy right there - while not leaving Canterbury uncertain for too long – is a very big challenge.