The report of the Land and Water Forum reflects the large and diverse nature of the Forum's membership in that it demonstrates much stronger agreement on the problems affecting water quality, management and allocation than on the solutions.
But it is a useful contribution to one of the most important and difficult issues facing New Zealand and will provide direction for policy development.
This Brief Counsel summarises the report's key findings.
The Forum was asked to help plot a way forward for New Zealand's fresh water management and was a deliberately broad group. It met for over a year and, although the hoped for consensus eluded it, was able to produce a credible sheet of recommendations.
But the report is a frustrating read for those looking for clarity or precision in regard to future policy directions. While it provides some interesting discussion of the issues, the price for achieving the level of agreement the Forum was able to achieve is that decisions on the hard questions have been shelved or referred back to the Government.
This is hardly surprising as any truly fresh start in water management in New Zealand will need to be led from the top, informed by careful public engagement and sound policy work.
This is not a comprehensive list of the recommendations but focuses on those which are of most immediate interest and which have the potential to most affect existing rights and uses.
Set limits for quantity and quality
Central government should develop national water quality objectives and timelines to achieve them through National Policy Statements (NPS) and National Environmental Standards (NES). The draft fresh water NPS, as recommended by the Board of Inquiry, is a good basis to work from but requires further refinement. The framework should address point source and diffuse (run-off) discharges, both urban and rural, and water flows.
Implementation at catchment or sub-catchment level would be by regional councils, which would be tasked with setting catchment specific targets, standards and limits in consultation with their communities, including iwi.
Achieving limits and targets
Regional Councils should develop mechanisms in collaboration with industry groups, iwi and other stakeholders to improve water management practices at the individual level. The tool box will comprise a mix of voluntary schemes, codes of good management practice, regulation and funding and should be as consistent as possible across catchments and between Councils. Tools might include:
- regulatory approaches to recognise good practice, such as robust industry standards and audited self-management schemes
- price-based measures for activities that affect water quality, and
- continued investment in the clean-up of contaminated water bodies.
The "first-in, first-served" approach is no longer sustainable in many catchments and will become progressively less viable over time. The first step toward developing a new allocative model must be to establish how much water in each water body is available for productive use and how much should be reserved for ecological, environmental and recreational purposes.
However, instead of recommending a single option for allocation, the report identifies three possible options for the government to investigate in more detail. These are to:
- continue with existing consents and, as they expire, change the consent conditions to (for example) require greater technical efficiency or a shorter use period
- introduce a new system through rules set out in a regional plan (which might be based on criteria relating to efficiency and to community considerations, and could provide a degree of preference for existing consent holders), or
- establish a market value for the use of the water by, for example, tendering, auctioning or re-tendering permits.
A national direction should be given to regional Councils to provide:
- a consistent process for developing a scarcity threshold for each catchment
- guidance for allocation and transfer methods, and the circumstances in which they should be used, and
- consistency of approach to setting in-stream limits while recognising spatial variety.
More flexible transfer of permits
Best use of water will be achieved sooner if there is more flexibility for consent holders to transfer water rights to others. Transfer schemes could be local and regional rather than national, but there would be advantages in having national templates.
Again, rather than backing a particular course, the report puts up three options for further investigation by the government:
- transfer of water permits without financial consideration (an approach which recognises water as a community asset)
- trading of permits without payment for the original permit (this approach already exists to some extent and allows recognition for how the value of water changes according to different uses and at different times), and
- trading of permits after payment for the original permit (this would establish a property right in the permit but only after the permit has been paid for and would allow the permit-owner to realise a return from a public asset).
Managing the transition
Any changes to the allocation mechanism will need to be handled carefully to minimise problems of investment uncertainty and asset stranding, including irrigation and hydro assets. To achieve maximum acceptability with minimal disruption, the Government is urged to consult with affected parties, bearing in mind the discussions already taking place between iwi and the Crown – to avoid the risk that any new allocative mechanisms "will need to be revisited later, with disruptive consequences".
Rural water infrastructure
A strategic planning framework is needed to avoid the "expensive stalemates and destructive outcomes that have characterised much of the debate and development of dams and irrigation schemes". This would ease the consenting process while favouring consent applicants who collaborate with each other and with the wider community, including iwi.
Regional rules should be established to set clearly defined standards and pre-conditions for the acceptance of consents for rural water projects over a certain size. Applications consistent with the plan would receive priority.
Regulators should be able to withhold water if environmental conditions set in consents are not met and Councils should be able to issue water consents for a wide range of durations, up to 35 years.
The report recommends that a non-statutory National Land and Water Commission be established on a co-governance basis and reporting to a core group of Ministers. The Commission would oversee the implementation of a National Land and Water Strategy developed through a collaborative process with the public and stakeholders arising from the Forum's work.
Changes are also suggested to the development of NES, Regional Plan making processes and (limited) use of moratoria. These changes encourage more collaboration in the development of NES, but recognise the value of decisive action in other circumstances.
The Forum would retain the central role regional Councils have in water management but suggests that "if performance at the regional level does not improve this question should be revisited". To minimise the possibility of failure, the report recommends strengthening council capability through the addition of government appointees.
The Forum had 58 participating organisations representing all sides of the debate and established a Small Group consisting of 21 major stakeholders, assisted by observers from central and local government, to prepare the report.
The Small Group comprised: Beef + Lamb New Zealand Limited, DairyNZ, Ecologic, Environmental Defence Society, Federated Farmers, Fish and Game New Zealand, Fonterra, Horticulture New Zealand, Irrigation New Zealand, Meridian Energy, Mighty River Power, New Zealand Forest Owners' Association, Forest and Bird, Te Arawa Lakes Trust, Te Runanga o Ngāi Tahu, Tourism Industry Association, Tuwharetoa Māori Trust Board, Waikato-Tainui, Water New Zealand, Whanganui River Māori Trust Board and Whitewater New Zealand.
A copy of the report can be obtained here.
Where to from here
The Forum plans to consult with the public on the report through a series of meetings around the country from mid-October to the end of November. Details of the engagement will be announced once they have been finalised.
The information in this article is for informative purposes only and should not be relied on as legal advice. Please contact Chapman Tripp for advice tailored to your situation.