Chapter Five: Application of equitable utilization and minimisation principles at the federal level
6.4 Regulation of water resources in New Zealand
In recent decades, New Zealand’s waterways were considered clean and unpolluted, but recent research and reports prove that this image is inaccurate. The current study our freshwater 2020, provides data and numbers that threaten the image of water quality in New Zealand. According to the study, more than 95% of the rivers' whole lengths in urban, farming and exotic forest areas are primarily polluted. The wetlands are also very critical because 95% of them are destroyed or drained due to human intervention.811
New Zealand is quite an interesting case concerning natural resource management because indigenous rights have a significant role in managing these resources, including water. The New Zealand legal system is a combination of a common law system with Māori traditional customs (Tikanga Māori).812 Māori people commonly managed and allocated water resources based on Tikanga before the imposition of British sovereignty after signing the Treaty of Waitangi.813 The Treaty was signed in 1840 between the
808 At per Whiting J.
809 Genesis Power Limited v. Manawatu-Wanganui Regional Council [2007] CIV-2004 [485-1139] .
810 Ngati Rangi Trust v Genesis Power Ltd [2009] NZRMA 312
811 Ministry for the Environment & Stats NZ New Zealand’s Environmental Reporting Series: Our freshwater 2020 (2020) at 33.
812 Carwyn Jones New treaty, new tradition: Reconciling New Zealand and Maori law (UBC Press, 2016) at 5-7.
813 Macpherson, above n 752, at 99.
British Crown and more than 500 Māori tribe chiefs.814 Since that time, Māori have been excluded from water management and their cultural and spiritual relationship with the river's waterways.815 This is a considerable issue and directly relates to the two principles. The issue will be deeply addressed in the following section.
The Treaty of Waitangi is an important legal, political, and historical document for all New Zealanders. It establishes debate on New Zealand public life “related to constitutional powers and limitations, race relations, justice, identity and reconciliation.”816 It is also accepted as a guideline to define the Crown's relationship in the country and Māori. The Treaty protects Māori cultural rights, but governing the country is left to the Crown on behalf of all New Zealanders. According to the Treaty of Waitangi, natural resources, including water, should be managed for all New Zealanders' interests.817 However, the legal framework of the Treaty has not been settled yet and for issues related to the Treaty, Māori should bring a claim to the Waitangi Tribunal.818
Thus, it is essential for any person or institution who wants to use water in the country to be aware of both the Treaty of Waitangi and the RMA. Based on the Treaty, Maori and the crown agreed on ‘co-management approach for managing the Waikato River in the Waikato-Tainui Raupatu Claims (Waikato River) Settlement Act 2010.819 As well as the importance of the Treaty for bringing claims to the Waitangi Tribunal, the Treaty is the basis for provisions related to Māori in the RMA. For example, the WRC should consider “the relationship of Maori and their culture and traditions with their ancestral lands, water, sites, waahi tapu, and other taonga” in preparing variations and plan changes for the Waikato River.820 To achieve the RMA's objectives, the WRC should consider the Treaty and other matters relating to Māori, such as kaitiakitanga (guardianship) and the stewardship ethic in preparation for the variations and planned
814 Claudia Orange The treaty of Waitangi (Bridget Williams Books, 2015) at 48-50.
815 Stewart‐Harawira, above n 791, at 2-3.
816 Jones, above n 783.
817 Orange, above n 814.
818 See New Zealand Ministry of Justice “Treaty of Waitangi” (2019) <https://www.justice.govt.nz/about/learn- about-the-justice-system/how-the-justice-system-works/the-basis-for-all-law/treaty-of-waitangi/>.
819 See Waikato-Tainui Raupatu Claims (Waikato River) Settlement Act 2010.
820 Resource Management Act 1991 s 6(e).
changes in the Waikato River catchment.821
As well as the importance of rivers for basic human needs, for Māori, the rivers have critical spiritual values. Rivers have a spiritual connection with Tangata Whenua (people of the land). The word “Awa” in Māori means river or ‘life-blood’. For them, rivers cannot be distinguished from their surrounding areas, such as land, bank, resorts, streams, and wetlands.822 This fact was also confirmed in the Waitangi Tribunal Report in 1999.823 The Report mentioned that river has a broad meaning according to Māori and states that: 824 “For Māori, it included all things related to the river: the tributaries, the land catchment area, or the silt once deposited on what is now dry land.”
Interestingly, the Māori’s view for river and river management is parallel with the holistic approach for river basin management, which manages rivers with the whole river basins. This broad and holistic approach of the IRBM mentioned in the Report is also confirmed in the Settlement Act 2010. According to the Act, IRBM is “to the management of aquatic life, habitats, and natural resources within the Waikato River consistent with the overarching purpose of the settlement.”825
However, the attempts to manage water resources in an integrated method have been proposed since the 1940s (as discussed on pages 53-54 above). In the sixties,
‘catchment control plans’ were initiated as a response for controlling rivers and soil.
After developing water allocation plans during the 1970s, water pollution was introduced as a significant issue in these plans.826 The enactment of the Water and Soil Conservation Act 1967 (WSCA) was a good step to allow the public to access water and utilize it with responsibility.827 The Act took a balanced approach between demands for water utilization and achieving “economic and social wellbeing while safeguarding “instream” values and Māori cultural values.”828 Then, during the late eighties, significant steps were taken toward protecting the environment, including
821 At s 7 and 8.
822 Catherine Knight “The meaning of rivers in Aotearoa New Zealand—Past and future” (2019) 35(10) River Research and Applications at 1622.
823 The Whanganui River Report [1999] Wai 167 343 at [39].
824 At 39.
825 Waikato-Tainui Raupatu Claims (Waikato River) Settlement Act 2010 s 35(2).
826 Pyar Ali Memon “Freshwater management policies in New Zealand” (1997) 7(4) Aquatic Conservation: Marine and Freshwater Ecosystems at 306.
827 See Water and Soil Conservation Act 1967.
828 Electricity Corporation of New Zealand Ltd v Manawatu-Wanganui Regional Council [1990] W70/90 at [199].
water resources, such as establishing both the Ministry for the Environment (MfE), and the Parliamentary Commissioner for the Environment. These steps led to the enactment of the Resource Management Act 1991 (RMA).829
The Act is the most important legislation for resource management in New Zealand because the RMA collected all these legislations into one single document. Water, air, and land are the main subjects for regulation according to the principles of the RMA.830 The Act empowered regional councils for managing resources, including water. They are responsible for preparing regional plans and setting regional rules for the sustainable management of water. The regional council's functions are described in s 30 of the RMA.831 Before addressing the power and function of the regional councils, the RMA introduced many restrictions related to utilizing water or discharging into the water in part 3 of the Act. Restrictions on water and rules for taking water are outlined in s 14 of the RMA, but s 15 addresses water discharge.832 The Act extensively explained the resources consents, types of the consents and the process in Part 6. The process starts with an application, and any person has a right to ask for a water permit.833
As well as the RMA, the Regional Councils should follow the National Environmental Standards for Freshwater (NES-F) 2020 and the National Policy Statements for Freshwater Management (NPSFM) in preparing their regional rules and plan variations.
The MfE is responsible for guiding regional councils by issuing these policies and standards.834 The following section addresses the national direction and central government guide to prepare plans or revise them under NPSFM and NES-F.