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Legal requirements for management of fresh water 23 January 2018

Legal requirements for management of fresh water 23 January 2018

Regulatory requirements for territorial authorities

 

The NPS-FM does not directly require territorial authorities to include specific provisions in district plans related to fresh water. However, territorial authorities are required to ‘give effect’ to the NPS-FM in their district plans, and to ‘have regard’ to the NPS-FM in determining applications for resource consents. A district plan must also give effect to the regional policy statement and must not be inconsistent with provisions of a regional plan that control the use of land.

 

The NPS-FM requires regional councils to set freshwater objectives. These outline the desired environmental outcome and guide the management of freshwater resources through the setting of limits on resource use and other management methods.

 

Waikato-Tainui Raupatu Claims (Waikato River) Settlement Act 2010 (WRSA) and the other river settlement acts

 

Section 11: The Vision and Strategy for the Waikato River (V&S) contained in Schedule 2 is deemed part of the Waikato RPS.

 

Schedule 2 Vision and strategy for Waikato River

 

1 Vision

 

(1) Tooku awa koiora me oona pikonga he kura tangihia o te maataamuri. The river of life, each curve more beautiful than the last.

 

(2) Our vision is for a future where a healthy Waikato River sustains abundant life and prosperous communities who, in turn, are all responsible for restoring and protecting the health and wellbeing of the Waikato River, and all it embraces, for generations to come.

 

(3) In order to realise the vision, the following objectives will be pursued:

  1. the restoration and protection of the health and wellbeing of the Waikato River:
  2. the restoration and protection of the relationships of Waikato-Tainui with the Waikato River, including their economic, social, cultural, and spiritual relationships:
  3. the restoration and protection of the relationships of Waikato River iwi according to their tikanga and kawa with the Waikato River, including their economic, social, cultural, and spiritual relationships:
  4. the restoration and protection of the relationships of the Waikato Region’s communities with the Waikato River, including their economic, social, cultural, and spiritual relationships:
  5. the integrated, holistic, and co-ordinated approach to management of the natural, physical, cultural, and historic resources of the Waikato River:
  6. the adoption of a precautionary approach towards decisions that may result in significant adverse effects on the Waikato River and, in particular, those effects that threaten serious or irreversible damage to the Waikato River:
  7. the recognition and avoidance of adverse cumulative effects, and potential cumulative effects, of activities undertaken both on the Waikato River and within the catchment on the health and wellbeing of the Waikato River:
  8. the recognition that the Waikato River is degraded and should not be required to absorb further degradation as a result of human activities:
  9. the protection and enhancement of significant sites, fisheries, flora, and fauna:
  10. the recognition that the strategic importance of the Waikato River to New Zealand’s social, cultural, environmental, and economic wellbeing requires the restoration and protection of the health and wellbeing of the Waikato River:
  11. the restoration of water quality within the Waikato River so that it is safe for people to swim in and take food from over its entire length:
  12. the promotion of improved access to the Waikato River to better enable sporting, recreational, and cultural opportunities:
  13. the application to the above of both maatauranga Maaori and the latest available scientific methods.

 

2 Strategy

 

To achieve the vision, the following strategies will be followed:

  1. ensure that the highest level of recognition is given to the restoration and protection of the Waikato River:
  2. establish what the current health status of the Waikato River is by utilising maatauranga Maaori and the latest available scientific methods:
  3. develop targets for improving the health and wellbeing of the Waikato River by utilising maatauranga Maaori and the latest available scientific methods:
  4. develop and implement a programme of action to achieve the targets for improving the health and wellbeing of the Waikato River:
  5. develop and share local, national, and international expertise, including indigenous expertise, on rivers and activities within their catchments that may be applied to the restoration and protection of the health and wellbeing of the Waikato River:
  6. recognise and protect waahi tapu and sites of significance to Waikato-Tainui and other Waikato River iwi (where they do decide) to promote their cultural, spiritual, and historic relationship with the Waikato River:
  7. recognise and protect appropriate sites associated with the Waikato River that are of significance to the Waikato regional community:
  8. actively promote and foster public knowledge and understanding of the health and wellbeing of the Waikato River among all sectors of the Waikato regional community:
  9. encourage and foster a “whole of river” approach to the restoration and protection of the Waikato River, including the development, recognition, and promotion of best practice methods for restoring and protecting the health and wellbeing of the Waikato River:
  10. establish new, and enhance existing, relationships between Waikato-Tainui, other Waikato River iwi (where they so decide), and stakeholders with an interest in advancing, restoring, and protecting the health and wellbeing of the Waikato River:
  11. ensure that cumulative adverse effects on the Waikato River of activities are appropriately managed in statutory planning documents at the time of their review:
  12. ensure appropriate public access to the Waikato River while protecting and enhancing the health and wellbeing of the Waikato River.

 

Section 12: The V&S prevails over any inconsistent provision in an NPS, an NES, the NZ Coastal Policy Statement, and the regional and district plans in the Waikato. Note that WRSA is silent in regard to the relationship between the V&S and the RMA.

 

Clause 1(3) in Schedule2: The V&S lists 13 objectives. The recommendations of the CSG were based on the achievement of a single objective, being (k) “the restoration of water quality within the Waikato River so that it is safe for people to swim in and take food from over its entire length”. This objective cannot be read alone and be interpreted as a must-do without considering the other V&S objectives, all of which rank equally. Importantly, the CSG omitted the procedural step of considering all objectives and providing justification for placing prime focus, if not sole focus, on just one objective.

Some objectives compete with objective (k), such as objective (d), “the restoration and protection of the relationship of the Waikato Region’s communities with the Waikato River, including their economic, social, cultural, and spiritual relationships.” The economic report demonstrates the large economic cost in meeting objective (k), as well as the implied large social cost of accelerated rural depopulation through the required change in land use.

So how should competing objectives, be weighed? It is insufficient to simply select one objective without first carefully considering all other objectives and weighing those considerations in accordance with any legal requirements.

In the first instance, reference must be made to the purpose and guiding principles of the river settlement legislation.

 

Section 3: The overarching purpose of settlement is “to restore and protect the health and wellbeing of the Waikato River for future generations”.

“restore and protect” is not defined in WRSA. Nor is it defined in the RMA or Waikato Raupatu Claims Settlement Act 1995. However, the Conservation Act 1987 provides some guidance in that it defines “protection in relation to a resource” as meaning “its maintenance, so far as practicable, in its current state; but includes-

(a) its restoration to some former state; and

(b) its augmentation, enhancement, or expansion.”

Clearly, “restore” cannot mandate impossibility, such as a pristine state. The dictionary meaning of “restore” is to return to some former state.

It may therefore be inferred that “restore and protect” means, so far is practicable, its restoration to some former state or its maintenance in its current state.

The CSG erred by taking a narrow and extreme view of “restore and protect” to mandate Scenario 1 without further consideration.

“practicable” means feasible, capable of being successfully put in practice. It includes the considerations of costs and cost effectiveness (refer for examples to the RMA definition of “best practicable option” and the definition in the Accident Compensation Act 2001 of “practicable”).

The overarching purpose can therefore be interpreted as requiring improvements in water quality to the extent practicable.

 

Section 5: Guiding principles of interpretation

(1) The vision and strategy is intended by Parliament to be the primary direction-setting document for the Waikato River and activities within its catchment affecting the Waikato River.

The over-arching purpose of settlement sets a direction that is consistent with the NPS-FM 2014.

 

Section 12 describes how the V&S trumps inconsistencies with other RMA policy statements and plans, making it the pre-eminent regulation sitting under the RMA. Section 17 requires Council to have particular regard to the V&S in decision-making that includes decisions on PC1.

 

Schedule 4 allows for the Waikato River Authority to review and propose amendments to the V&S.

 

In making decisions, clause 7(3) requires that the Authority:

(a) must seek to identify all reasonably practicable options for the achievement of the overarching purpose of the settlement; and

(b) must assess the options by considering –

(i) the benefits and costs of each option in terms of the present and future social, economic, environmental, and cultural wellbeing of the communities associated with the Waikato River, including if practicable a quantification of the benefits and costs of each option; and

(ii) the extent to which the vision and strategy would be promoted or achieved in an integrated and efficient manner by each option; and

(c) may recommend that the vision and strategy be amended only if the amendment would be consistent with the overarching purpose of settlement.

 

While the river settlement legislation gives little direct guidance as to how the V&S objectives should be weighed, it gives strong guidance that any amendment to the V&S must consider optimal sustainability outcomes in restoring and protecting the River. Clause 7(3), in effect, informs the overarching purpose of the river settlement legislation.

The overarching purpose can therefore be interpreted as requiring improvements in water quality to the extent practicable, taking account of the benefits and costs of all the well-beings of sustainability. The weighing of the 13 V&S objectives should therefore be seen in this light.

This is consistent with the purpose of the RMA.

 

Resource Management Act 1991

 

Key sections:

 

Section 59: The purpose of a regional policy statement is “to achieve the purpose of the Act …”

 

Section 63 purpose of a regional plan “… is to assist a regional council to carry out any of its functions in order to achieve the purpose of this Act”.

 

Section 67(3)(c) requires a regional plan to “give effect” to any regional policy statement. In giving effect to the provisions of a regional policy statement, the decision-maker needs to interpret those provisions in light of the purpose of the Act (RMA ss 59 and 63 as above, Interpretations Act 1999 s5(1)).

 

Section 5 purpose of the RMA is “to promote sustainable management of natural and physical resources”. This section is enabling of social, economic, cultural, health and safety outcomes by requiring natural and physical resources to be managed for the long term.

Therefore, the V&S objectives are subject to the outcome of sustainability. In contrast, the CSG apparently focussed only on objective (k) of the V&S, and did not take account of and appreciate the primacy of s5 of the RMA.

 

The RMA does not prescribe how the weighing of the various elements of sustainability in section 5 should be done. In particular, when should adverse effects be avoided, and to what extent should mitigation and remediation be prescribed?

 

The Environment Court has granted wide discretion to decision-makers. Clearly, the goal of optimising sustainability in order to maximise the well-being of society is worthy of being recognised as the preeminent goal.

Natural resource economic theory allows us to ask the right questions in quest of this goal. The answers may be less definitive, because there is seldom sufficient information. However, asking the right questions provides a powerful frame for decision making.

 

In fixing water quality levels, we need to decide the optimal level of contaminants in water.

 

Natural resource economics tell us that is when the marginal costs of pollution control equals the marginal benefits, taking into account all of the sustainability requirements.