Swimming upstream – an ambitious proposal for freshwater reform
Freshwater is a critical resource. In a call for urgent reform to protect our freshwater resources, the Government has released a discussion document on a package of reform proposals. The proposals seek to achieve two key objectives:
- stop further degradation of New Zealand's freshwater resources, and start making immediate improvements; and
- reverse past damage to bring New Zealand's freshwater resources, waterways and ecosystems to a healthy state within a generation.
The Government is proposing to deliver this through greater national direction under the Resource Management Act 1991 (RMA) in the form of a new National Policy Statement for Freshwater (NPS-FM), an updated National Environmental Standard (NES) of Human Drinking Water, and new NESs for Freshwater and Wastewater. The key themes of the proposals focus on clarifying policy direction, prioritising ecosystem health, regulating stormwater and wastewater, and improving farm practices.
While the Government also recognises the importance of water allocation issues, this is not addressed in this package of proposals. However, the Government has continually signalled that this remains part of its broader vision for reform. Any moves to reform the existing framework for allocation will likely generate significant discussion amongst all with interests in freshwater.
Clarifying policy direction
While previous NPS-FMs have sought to clarify how tikanga values for water are expected to be integrated into freshwater policy and implementation, the Government has recognised such efforts have lacked clarity and 'teeth' for real change. The proposed changes to the NPS-FM seek to strengthen the priority given to tangata whenua freshwater values, requiring all regional policy statements and freshwater implementation plans to provide for these values.
A new freshwater planning process is also proposed, requiring councils to produce new plans under the NPS-FM by 2025. This would be achieved through a Resource Management Amendment Bill due for introduction to Parliament in coming months. As part of this process, Government appointed freshwater commissioners with specialist skills are proposed to form a panel with local councillors and tangata whenua representatives to finalise and integrate these plans.
Ecosystem health
The new NPS-FM aims to improve freshwater ecosystem health by requiring regional councils to set objectives and report against five core elements of ecosystem health in accordance with national bottom lines. This expands the current system beyond reporting on contaminant levels to consider more holistic factors like aquatic life, habitats, and ecological processes. Alongside these objectives are broader bottom lines for ecosystem health including mandates for no further loss of wetlands or streams and higher standards for swimming, drinking water, and contaminants.
Stormwater and wastewater
The Government proposes to require stormwater and wastewater providers to develop risk management plans in relation to the environment, property, and people, outlining proposed actions across organisations to avoid, remedy, or mitigate these risks.
A new Water Services Act is also proposed which would require these providers to produce annual reports on nationally-prescribed environmental performance measures (such as stormwater discharges, greenhouse gas emissions and compliance metrics) to a central regulatory agency and the public.
In addition, a new NES for Wastewater Discharges and Overflow would prescribe requirements for setting consent conditions on discharges from wastewater treatment plants and engineered overflow points.
Improving farm practices
A number of new requirements are set to fall on the farming industry. To restrict further intensification, the NPS-FM is proposing clearer requirements for land-use consents for farming or increases in farm inputs. To tackle the issue of nitrogen loss, feedback is sought on three options to reduce excessive nutrient leaching, including:
- a cap for catchments with high nitrate-nitrogen levels, requiring farms with excessive losses to reduce size;
- a national nitrogen fertiliser cap; or
- required (and audited) nitrogen leaching reduction farm plans for farms in catchments with high nitrate-nitrogen levels.
The reforms also propose new requirements for freshwater module farm plans in all farms by 2025, as well as new regulations around intensive winter grazing and exclusion of stock from waterways.
This freshwater package is one of a number of reforms released recently that seek to provide greater national direction for building a productive, sustainable, and inclusive economy that supports the wellbeing of New Zealand. Emphasising Māori values, and recognising the economy's dependency on the health of our freshwater, this reform package represents a more ecocentric way of thinking than we have previously seen.
Consultation on the proposed reforms closes at 5pm on Thursday 17 October. If you would like further advice, please get in touch with one of our experts.
Simon Pilkinton and Brittany Couper
Waitangi Tribunal: Māori water rights still lacking
Last week, the Waitangi Tribunal released its Stage Two Report on National Freshwater and Geothermal Resources (Report). This was the second stage of its inquiry triggered by the Mighty River Power asset sale in 2012. Where the first report focused on how Māori rights and interests in water were affected by asset sales, the second report has focused on assessing how freshwater governance law more broadly affects these rights and interests. As part of this assessment, the Tribunal considered the impact of present freshwater law, particularly the RMA reforms to freshwater governance from 2009-2017, and suggested what further reform is required to meet Treaty obligations in relation to freshwater.
Some of the specific recommendations for further reform made by the Report included:
The Report suggested a new national body be established to co-govern water resources with Māori. Within this structure, the Tribunal recommended a 'proprietary redress' water allocation and subsequent royalty scheme for iwi and hapū. It also recommended the Commission act as a funding source to ensure iwi and hapū are sufficiently resourced to participate in RMA processes.
The Report criticised the RMA's current participation provisions for iwi (through joint management agreements and Mana Whakahono a Rohe provisions) due to their lack of use by Councils. It instead recommended these provisions to be strengthened by making co-governance and management compulsory for freshwater, as well as suggesting ongoing monitoring of Councils to ensure they meet Treaty obligations.
The Tribunal criticised the current provision for the Treaty of Waitangi in Part 2 of the RMA. It recommended the RMA be clarified that all persons exercising powers and functions under the RMA are subject to the duties imposed on the Crown to uphold the principles of the Treaty of Waitangi.
The Report included a broad range of recommendations for the improvement of water quality in New Zealand. These included more stringent national bottom lines, national stock exclusion regulations, and standards for the protection of wetlands and native freshwater fish habitats. Several of its recommendations for water quality also included the proposed National Water Commission, acting in a policy setting and inquisitorial role to address ongoing environmental concerns in freshwater.
In terms of the Tribunal's recommendations in relation to water quality, there is clear overlap with the themes of the Government's freshwater reform package also discussed in this alert. While the Government's freshwater reforms aim to include tangata whenua in consultation and freshwater planning to a greater degree than they are currently, it is not to the same extent proposed by the Tribunal. With the discussion document having just been released, we may well see some of the Tribunal's recommendations influencing the consultation phase on the Government's freshwater reforms.
In addition, we may expect to see further development through case law, as the Report urges the courts to test cases where Māori may retain a native title right to freshwater. In media coverage following the release of the report, the New Zealand Māori Council indicated it has already instructed its lawyers to lodge a test case on this recommendation, meaning this area of the law may be clarified in the coming months.
Daniel Minhinnick and Taylor Mitchell