Sustainability, Governance and Water Management in New Zealand Trevor Daya-Winterbottom IUCN AEL Colloquium 2011

Resource Management Act 1991 Restated and reformed law relating to use of land, air, and water Repealed 59 statutes Overriding statutory purpose: promoting sustainable management Integrated management of natural and physical resources by local authorities Uniform procedures for preparing plans and policy statements, deciding resource consent applications and appeals, and monitoring and enforcement

Sustainable management Promoting sustainable management of natural and physical resources Achieved in a way or at a rate that enables people and communities to provide for their social, economic, and cultural wellbeing and for their health and safety while: Having regard to intergenerational equity Safeguarding the life-supporting capacity of environmental media Avoiding, remedying, or mitigating adverse environmental effects

Sustainable management Section 6 Preservation of natural character of lakes and rivers Maintaining and enhancing public access to and along lakes and rivers Relationship of Maori with ancestral waters Section 7 Kaitiakitanga Ethic of stewardship Efficient use of resources Maintaining and enhancing environmental quality Finite characteristics of resources Protecting habitat of salmon and trout Effects of climate change Benefits derived from renewable energy

Sustainable management North Shore City Council v Auckland Regional Council [1997] NZRMA 59 at 94 Application of s 5 … involves consideration of both main elements of s 5 … The method of applying s 5 … involves an overall broad judgment of whether a proposal would promote sustainable management of natural and physical resources. That recognizes that the Act has a single purpose … Such a judgment allows for comparison of conflicting considerations and the scale or degree of them, and their relative significance or proportion in the final outcome. Minhinnick v Watercare Services Ltd [1998] 1 NZLR 294 (CA)

Restrictions relating to water Section 14 prevents any person from taking, using, damming or diverting water unless The activity is expressly allowed as a permitted activity by a rule in a regional plan The water is required to be taken or used to meet reasonable domestic needs, stock watering, or firefighting purposes Resource consent (water permit) is required from the regional council in all other cases

Some history No private property rights, common law regulated access to water under doctrine of riparian rights Owners entitled to flow in original state and quality Entitled to use water for ordinary domestic purposes Water could be taken for extraordinary purposes (e.g. irrigation) provided take reasonable Water and Soil Conservation Act 1967 suspended common law and vested access rights in Crown Use of water for domestic use allowed Water takes for extraordinary purposes required consent Power to fix minimum flows

Minimum flows Electricity Corporation of New Zealand v Manawatu Wanganui Regional Council (W70/90) at 199 The purpose of fixing a minimum acceptable flow of … a river is the conservation of resources of natural water so that they are protected against harm and waste, and are available to meet as many demands as possible, so that their benefits can be enjoyed and shared by all interests to the best advantage of the nation and of the region in which they exist in the course of nature. The essence of it is the conservation of natural resources. The demands, benefits and interests which are relevant will vary from case to case, but they will generally include in-stream values, and the cultural values of the tangata whenua.

National guidance RMA provides for a hierarchy of standards, policy statements, and plans to guide decision making Plan preparation by regional councils has taken place in a vacuum with no common approach to water management No national guidance Regional plans optional Different approaches used

National guidance Sustainable Water Programme of Action 2003 National Policy Statement for freshwater management Announced: April 2006 Notified: August 2008 Board of Inquiry reported: January 2010 Minister’s decision: May 2011 Compliance: December 2030 National Environmental Standard for measurement of water takes (November 2006) National Environmental Standard on ecological flows and water levels (March 2008)

Statutory amendments Resource Management Amendment Act 2005 (in force 10 August 2005) Rules in regional plans to allocate for take and use of water Cannot reallocate water during consent period Can reallocate water in anticipation of consent expiry Allocate all water to same type of activity Allocate some water to the same type of activity and the rest to other types of activity Allocate some water to the same type of activity and leave the rest unallocated Rules can allocate water among competing types of activities Rules cannot affect water required for domestic needs, stock watering, or firefighting activities

Water allocation First come first served … where there are competing applications in respect of the same resource before the council, the council must recognize the priority in time. On appeal the Environment Court sits in the shoes of the council. If it has two such appeals before it, it must in the exercise of that original jurisdiction take account of that earlier priority. Not to do so would run counter to the policy underlying the provisions governing proceedings before a council. It could deprive an appellant whose appeal was filed in time of the priority it previously had. Fleetwing Farms Ltd v Marlborough District Council [1997] 3 NZLR 257 at 267 (CA)

Water allocation Non-derogation from grant [41] In our judgment, granting a water permit for a particular volume of water over a specified period of time commits the consent authority to that grant in the sense that it is not entitled to deliberately erode the grant unless it is acting pursuant to specific statutory powers. The relevant factors applying in this public law context are similar to those underlying non-derogation from grant. In situations where the consent authority’s commitment represents a full allocation of the resource … the grantee … must reasonably expect to proceed with full planning and investment on the basis that the consent authority will honour its commitment. Indeed, refusal to recognize that expectation would seriously undermine public confidence in the integrity of water permits … Aoraki Water Trust v Meridian Energy Ltd [2005] NZRMA 251 at 265 (HC)

Water allocation Ensuring sustainable management [59] There is an obvious public interest that the law should not frustrate a proposed development in the course of undergoing the statutory processes. At least where the whole resource being sought is the subject of an application, there should be no risk of a major development being trumped or significantly interfered with by later, smaller, simpler inconsistent proposals that are able to be made comprehensively without needing to be processed in stages. Central Plains Water Trust v Ngai Tahu Properties [2008] NZRMA 200 (CA) per Baragwanath J

Water allocation Gazumping [97] … this priority issue is … unlikely to be solved by a simplistic bureaucratic yardstick as “first in, first served”. Karl Llewellyn once said … that “sometimes we just need a rule”. He was correct in some commercial contexts: once a rule is “known” … people can negotiate around it. But I doubt very much if this subject area lends itself to that approach. Both legal history and logic may suggest that when the needs of proprietors are known in advance the ideal rule is to allocate water resources in proportion to particular needs. It is only when the proprietors … are not known in advance that a “fall-back” rule is required. Then, and in that situation, a priority rule can allocate the resource to the first user … But in fundamental principle, a priority rule should not be the priority rule. Central Plains Water Trust v Ngai Tahu Properties [2008] NZRMA 200 (CA) per Hammond J obiter

Water allocation 42 Comparative consideration of applications (1) The applications considered under this section must be compared by - (a) first applying the purpose and principles in Part II of the principal Act (b) then having regard to the economic and social benefits and costs of each use of the water from a national perspective (2) In this section, national perspective includes the sum of the relevant regional and local social and economic benefits and costs. Resource Management (Waitaki Catchment) Amendment Bill 2003

Water allocation Joseph Sax, Our precious water resources: learning from the past, securing the future [2009] RMT & P … while we need water in some respects to be treated as if it were ordinary property, its physical nature is such that it cannot be privatized in a conventional way. Let me spell out this observation, because only by understanding the paradox is it possible to understand what water management is really all about. From the perspective of a farmer who irrigates, a city, or an electric utility, water is a necessary economic input like any other. It functions like land or fertilizer to a farmer, or like flour and eggs to a baker. It is simply a vital ingredient of the end product they produce. And that means they need property-like entitlements in it: they need to know how much of it they can use, to be able to exclude others from what they need, and to have a predictable supply available for the future.

Water allocation Joseph Sax, Our precious water resources: learning from the past, securing the future [2009] RMT & P It is always the case that any grant of permission to take water diminishes what is available to the next applicant. There are several ways to deal with this dilemma. First, however, it is important to separate what may be called the traffic rule problem from the substantive problem. Traffic rules decide in what order applications will be considered. Substantive rules decide the basis on which applications will be granted.

Maori cultural values Maori cultural values and co-management under Treaty settlements Aboriginal title and resource management Statutory acknowledgements - notification Governance mechanisms: co-management Vision and Strategy for the Waikato river Part of the Regional Policy Statement Overarching purpose – restoring and protecting the health and wellbeing of the river