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Content of national policy statement

[11]     The purpose of national policy statements under the RMA is to state objectives and policies for matters of national significance that are relevant to achieving the purpose of the Act.3 A national policy statement can direct4 a local authority to amend a document in a class identified in section 55(1) of the RMA5 to include specific objectives and policies set out in a national policy statement, or so that objectives and policies specified in a document give effect to objectives and policies specified in a national policy statement. A local authority has to make those amendments without using the notification and hearing process in Schedule 1 of the Act.6

[12]     A national policy statement may also include transitional provisions for any matter, including its effect on existing matters or proceedings.7

[13]     Four main matters of national significance for which the proposed NPS states objectives and policies can be inferred from the preamble as being:

  • challenges, of varying degrees and causes across regions, in ensuring there is sufficient water in lakes, rivers and aquifers; and
  • ensuring that society gains the greatest benefit from the allocation of available water; and
  • imiting and remediating degradation of water quality; and
  • improved integrated management of freshwater resources.

[14]     The preamble also records the Crown’s recognition of a particular need for clear central government policy that directs local government to implement measures necessary to achieve stated goals. Those goals are embraced by the matters of national significance outlined in paragraph [13].

[15]     A fifth matter of national significance that became evident during the Board’s hearing of the inquiry was the protection of wetlands from further degradation and loss as a result of human activities.

[16]     The objectives and policies of the NPS are to be relevant to achieving the purpose of the Act. That purpose is to promote the sustainable management of natural and physical resources. In that context, sustainable management is given the meaning identified by section 5(2) of the RMA:

In this Act, sustainable management means managing the use, development and protection of natural and physical resources in a way, or at a rate, which enables people and communities to provide for their social, economic, and cultural wellbeing and for their health and safety while –

  1. Sustaining the potential of natural and physical resources (excluding minerals) to meet the reasonably foreseeable needs of future generations; and
  2. Safeguarding the life-supporting capacity of air, water, soil, and ecosystems; and
  3. Avoiding, remedying, or mitigating any adverse effects of activities on the environment.

[17]     In this context natural and physical resources include fresh water;8effect is to be given a broad meaning that includes positive and adverse effects, cumulative effects, and potential effects of low probability which have a high potential impact;9 and environment is given a broad meaning that includes ecosystems and their constituent parts, including people and communities; amenity values; and social, economic, aesthetic, and cultural conditions which affect them.10

[18]     Application of section 5 involves a broad judgement as to whether a proposal promotes sustainable management of natural and physical resources, recognising that the Act has a single purpose and allowing for comparison of conflicting considerations, their scale and degree, and their relative significance or proportion.11

[19]     Therefore, the Board’s consideration of the submissions on the proposed NPS is not a broad review of the management of fresh water. It is to be guided and constrained by the RMA, and to lead to decisions specifically for the promoting of sustainable management of natural and physical resources, including fresh water.

[20]     Those who made and presented submissions on the proposed NPS differed on the application of the purpose of the Act to the instrument.

[21]     Many wanted positive direction or guidance, placing particular focus on the elements described in paragraphs (a), (b) and (c) of section (5)(2). They contended that the NPS should not avoid making hard decisions between competing values and goals, but should articulate national priorities. They argued that favouring economic well-being, at the cost of declining quality and quantity of fresh water in the environment, would not be balanced; and urged that a national policy statement should focus on the elements in paragraphs (a) to (c) because of their particular relevance to the subject matter of freshwater management.

[22]     Other submitters disagreed, arguing that this would displace or downgrade the enabling of people and communities to provide for their economic well-being.

[23]     The scope of sustainable management described in section 5(2) identifies several goals and values reflecting aspirations and interests of different sections of the public. In applying the concept of any particular subject matter, some of the identified elements may be inconsistent or even in conflict with others. In general, a decision-maker has to come to a judgement that reflects all the identified aspirations and values that are relevant.

[24]     The Board considers that, to be effective in giving positive direction to local authorities so as to achieve goals identified as being of national importance, a national policy statement may need to place emphasis on particular elements of sustainable management. That would not be to subdue, let alone evade, other elements of the given meaning of sustainable management, such as those enabling economic activity. Rather, in the circumstances of a national policy statement it would give effect to the word while, by which the managing of resources for the enabling elements of sustainable management is constrained by the sustaining, safeguarding, and effects-based elements in paragraphs (a), (b) and (c).12

Freshwater resources

[25]     Throughout the proposed NPS reference is made to the management of freshwater resources, the meaning of which includes fresh water in rivers, lakes, wetlands and groundwater, but excludes water in ephemeral streams and artificial watercourses. The exclusion of ephemeral streams and artificial watercourses was a subject of many submissions, and a number of submitters also requested that the meaning of the term reflect the RMA definition of fresh water. Reference to freshwater resources was seen by some submitters as weighting the proposed NPS towards the enabling elements of sustainable management.

[26]     The Board accepts that the NPS should use terms that are clear in meaning, and (when practicable) consistent with meanings given to them by the RMA.

[27]     The use of resources throughout the proposed NPS implies that fresh water is something to be used for economic gain, which the Board does not consider appropriate in the context of the matters of national significance that have been identified. However, the Board recommends that the policy on setting environmental flows and levels not apply to ponds and naturally ephemeral water bodies.

[28]     The Board uses the term fresh water as defined in the RMA, and uses freshwater ecosystems and freshwater processes where appropriate in the objectives and policies in the NPS.

Need for positive direction

[29]     A number of submitters requested the NPS be outcome-oriented rather than process-oriented. Submitters identified problems with a process-based approach, including:

  • lack of clarity and understanding of, and clear guidance on, the issues that need to be addressed;
  • limited flexibility for councils to deal with regional issues and to determine the most appropriate methods for addressing them;
  • a lack of recognition of the progress that has already been made in freshwater management around the country;
  • a ‘one-size-fits-all’ approach that would impede strategic and innovative freshwater management approaches, and would not allow approaches other than regulation that may be more suitable and effective;
  • a lack of clarity of intent or meaning, leading to lengthy interpretive debate.

[30]     Other submitters noted that difficulties have been identified with existing planning processes, but that the proposed NPS continues to rely on these processes to achieve its aims.

[31]     A common theme of many of the submissions was that the NPS should provide national direction by identifying national issues and national goals.

[32]     As a national policy statement is a subordinate instrument under the RMA, its objectives and policies have to be relevant to achieving the purpose of the RMA, that is, the sustainable management of natural and physical resources.

[33]     Requests by submitters for national guidance recognised that, for a variety of reasons, issues relating to freshwater management are not being fully addressed by local government. Requests for positive direction were driven by a desire for guidance on how those issues are to be addressed, combined with a request that national priorities be set for the most important issues.

[34]     The Board agrees with submitters that the NPS should make a difference to freshwater management. The focus should be on improving outcomes for fresh water. The management process to achieve this should be included, but should not be the focus of the NPS.

[35]     The Board acknowledges some councils are making notable advances in managing fresh water, but it considers that nationally there is a need to phase out over-allocation and contamination of fresh water. The RMA processes for the management of water are already being followed, but the NPS needs to state objectives as goals for these processes to achieve.

[36]     Improvements in fresh water by phasing out over-allocation and contamination require that fresh water is used for enabling economic well-being only while, and to the extent that, the life-supporting capacity of water and its associated ecosystems is fully safeguarded, and the potential to meet reasonably foreseeable needs of future generations is fully sustained. In this way the requests for setting national priorities for the most important issues would be met.

Key national values of fresh water

[37]     A number of submitters requested the NPS identify key national values with respect to management of fresh water, and provide clear national direction about the values to be given additional weighting in freshwater management.

[38]     The Board agrees that identifying national values of fresh water in the NPS would be useful. The Board recommends that the NPS identify issues of national significance that are to be addressed, and sets national objectives and policies for achieving sustainable management.

[39]     The Board has identified specific values from the RMA itself, the proposed NPS, and submissions and evidence presented to the Board.

[40]     The national values of fresh water can usefully be classified in two groups:

  1. values for which people and communities make use of water for their own well-being and amenity, for example:
    1. domestic drinking and washing water;
    2. animal drinking water;
    3. community water supply;
    4. fire fighting;
    5. hydro-electricity generation;
    6. commercial and industrial processes;
    7. irrigation;
    8. recreational activities (including waka ama);
    9. food production and harvesting, e.g. fish farms and mahinga kai;
    10. transport and access (including tauranga waka);
    11. cleaning, dilution and disposal of waste.
  2. values that relate to recognising and respecting fresh water’s intrinsic values for safeguarding the life-supporting capacity of water and associated ecosystems; and sustaining its potential to meet the reasonably foreseeable needs of future generations. These are instances of intrinsic values of fresh water:
    1. the interdependency of the elements of the freshwater cycle;
    2. the natural form, character, functioning and natural processes of water bodies and margins, including natural flows, velocities, levels, variability and connections;
    3. the natural conditions of fresh water, free from biological or chemical alterations resulting from human activity, so that it is fit for all aspects of its intrinsic values;
    4. healthy ecosystem processes functioning naturally;
    5. healthy ecosystems supporting the diversity of indigenous species in sustainable populations;
    6. cultural and traditional relationships of Māori with fresh water, including mauri, waahi tapu, wai taonga, recognised customary activities and spiritual values;historic heritage associations with fresh water;
    7. providing a sense of place for people and communities.

[41]     Intrinsic values of fresh water are substantial in themselves. Maintenance, restoration and enhancement of them is not subordinate to economic values of fresh water for potential use for people and communities’ well-being.

[42]     The national issues that the Board has identified are:

  1. over-allocation of fresh water;
  2. contamination of fresh water;
  3. loss of wetlands;
  4. incompletely integrated management.

[43]     The Board recommends these goals to address those issues so that the national values of fresh water are safeguarded:

  1. to phase out over-allocation of fresh water;
  2. to phase out contamination;
  3. to protect wetlands;
  4. to improve the integration of management of fresh water.

Withdrawal of national policy statement

[44]     A number of submitters made requests to the effect that the proposed NPS should be withdrawn entirely, and a new national policy statement on freshwater management prepared. Reasons given for this request included that the proposed NPS is unworkable, unnecessarily complex, and would be time-consuming and costly to implement. Submitters asserted the proposed NPS would not contribute in any meaningful way to managing increased demand for water, and would provide little direction beyond restating section 5 of the RMA.

[45]     Other submitters contended a national policy statement on freshwater management is needed, some said urgently.

[46]     Those submitters seeking withdrawal of the proposed NPS generally supported the intent of a national policy statement and requested that it be substantially redrafted. Few submitters suggested a national policy statement on freshwater management is unnecessary.

[47]     The Board did not hear from submitters that the proposed NPS is so fundamentally flawed that it should be withdrawn and not replaced.

[48]     The RMA confers on the Minister responsibility for deciding whether it is desirable for there to be a national policy statement; whether to make any recommended changes; and whether to recommend to the Governor-General in Council approval of the national policy statement. None of those decisions is within the scope of the duties of a board of inquiry.

[49]     The Board accepts the content of the proposed NPS is capable of improvement. Its core task is considering the content of the proposed NPS, and making recommendations on changes to it.

[50]     The interests of various sections of the community on the content of the proposed NPS, and on the recommended changes, may conflict. By this report, the Board recommends a number of changes to the proposed NPS to give effect to submissions on it. The Board judges that, amended as recommended, the NPS would more fully state objectives and policies for matters of national significance for achieving sustainable management; and by doing so, give effective direction on the resolution of potential conflicts.

[51]     Therefore, the Board does not accept requests by submitters that the proposed NPS be withdrawn.

Relationship between NPS and RMA

[52]     Some submitters strongly supported objectives and policies in the proposed NPS that closely match provisions of the RMA, on the basis that the provisions are consistent with the definition of sustainable management and in keeping with the enabling focus of the RMA.

[53]     Other submitters considered that, unless an objective or policy added further to the provisions of the RMA, it did not need to be stated.

[54]     A document prepared under the RMA, such as the NPS, is subordinate to its parent statute. The Board acknowledges that the NPS needs to be consistent with the RMA provisions, but considers that for the NPS to make a difference it needs to do more than just mirror the words in the RMA.

Local authority functions, boundaries, flexibility and resources

[55]     Many submitters raised questions about local authority functions, boundaries, and resources and about the need for flexibility in ways of managing fresh water in different regions.

Functions

[56]     Many submitters protested the proposed NPS does not clearly distinguish the functions of regional councils (identified by section 30 of the RMA) from those of territorial authorities (identified by section 31). Some sought amendments to clarify which objectives and policies are directed to which class of local authority, to avoid unnecessary duplication and cost.

[57]     By section 30 of the RMA, the relevant functions of regional councils include control of the taking, use, damming and diversion of water, and control of the quantity, level, and flow of water in any water body; the control of discharges of contaminants into or onto land or water, and discharges of water into water; the control of the use of land for the purpose of maintenance and enhancement of the quality of water in water bodies, maintenance of the quantity of water in water bodies, and maintenance and enhancement of ecosystems in water bodies; and achieving integrated management of the natural and physical resources of the region. Additional functions include maintaining indigenous biodiversity, and strategic integration of infrastructure with land use.

[58]     Regional councils also have other functions specified in the Act, including considering and deciding resource consent applications.

[59]     By section 31, the functions of territorial authorities include integrated management of the effects of the use, development and protection of land and associated natural and physical resources; and also control of actual or potential effects of activities in relation to the surface of water in rivers and lakes. Territorial authorities also have other functions specified in the Act.

[60]     It has been established that there might be an overlap between the functions of regional councils and those of territorial authorities. What is limited is not so much what can be controlled, but the purpose for which it can be controlled.13

[61]     The Board accepts that the NPS should identify, where practicable, a class of local authority that is expected to apply a policy. That is desirable to avoid duplication, and so that the policy is applied by local authorities of the class that is more likely to have the knowledge, skills and capability of taking the action indicated.

[62]     By section 35(2) of the RMA, every local authority has a duty to monitor the state of the whole or any part of the environment of its region or district to the extent that is appropriate to enable the local authority to effectively carry out its functions under that Act.

[63]     Consistent with that, the Board accepts that responsibility for monitoring and reporting on particular objectives should also be entrusted to the class of local authorities having the relevant functions. The functions of regional councils identified in section 30(1) generally embrace the purpose of monitoring freshwater management.

[64]     One submitter asked who would be responsible for collation of monitoring data. The Board expects that the body that collects data would have to collate it so that a report could be prepared.

[65]     A number of urban local authorities sought clarification of roles and responsibilities in respect of urban stormwater and water supply infrastructure. There is no dispute that the monitoring of compliance with the RMA and instruments under it by operators of such infrastructure is generally the responsibility of regional councils.

[66]     Submitters also commented on the order in which local authority planning documents should be amended to be consistent with the NPS, with some favouring amendments to regional policy statements first and some requesting a process to reach consistency and agreement about changes to regional and district plans.

[67]     Although the former would generally be a logical sequence, the variety of circumstances existing around the country may preclude making following that sequence mandatory. With respect to the latter request, while consistency and agreement with respect to regional and district plans may generally be sensible, a territorial authority operating infrastructure cannot expect to be able effectively to veto regional plan provisions regulating activities of that type. The RMA provides procedures for resolving differences on such matters.

[68]     A few submitters raised points about local authorities deciding resource consent applications. One was that protection against degradation of resources should be adequately addressed when applications are received. Another was that the proposed NPS would not provide a mandate for refusing resource consent applications on grounds of cumulative effects. A third was that, in small communities, those sitting on hearing panels are often compromised by association with those causing degradation.

[69]     The Board considers those to be points of general practice that are not specific to freshwater management. The NPS should confine itself to matters of national significance in relation to the management of fresh water, and not stray into points of general practice.

[70]     Two submitters urged that the NPS encourage stricter enforcement action against those whose activities result in degradation of water quality.

[71]     By section 84(1) of the RMA a local authority has a legal duty to enforce observance of its planning instruments. It has a discretion as to how it does so, and should be left free to decide the means and courses of action to be adopted in particular situations.14 The Board considers it inappropriate for the NPS to direct local authorities about the methods and strictness of their enforcement action.

[72]     One submitter protested that the proposed NPS does not address institutional reform, and contended that an alternative model to the current fragmented situation would result in more effective, efficient and sustainable outcomes. Models in parts of Australia where water management is more centralised (although local political structures and representation remain) were cited, and commended to the Board.

[73]     A national policy statement is an instrument under the RMA. Reform of the institutional regime for managing water would involve amendments to that Act, and perhaps also to the Local Government Act. That is beyond the scope of a subordinate instrument such as a national policy statement, and is not an appropriate topic for this Board of Inquiry to consider.

[74]     Additional points of practice raised by submitters were that regional councils should work together to develop a combined marine and freshwater plan to save costs and provide consistency; encouragement of better communication between divisions of council administration; increased use of qualified experts, and keeping up-to-date with overseas research; ensuring that monitoring responsibilities are not impeded by reporting duties; and lack of capacity of local authorities to deal with many complex technical problems such as cumulative effects, uncertainty, and application of the precautionary approach.

[75]     The Board considers that those are general issues, not specific to freshwater management, that would be better followed up in other contexts than the NPS.

Boundaries

[76]     A few submitters criticised patterns of local authority boundaries as hindering the effective performance of duties under the RMA. They desired that the Board recommend a new pattern, particularly for boundaries of regions.

[77]     The Board is satisfied that alterations of local authority boundaries are governed under the Local Government Act 2002, and are beyond the competence and remit of a board of inquiry under the RMA.

Flexibility

[78]     Several submitters contended that the proposed NPS would not allow local authorities the appropriate flexibility in applying its policies. These particular respects were cited:

  • regional variation in the intensity of issues;
  • existing instruments to similar effect;
  • potential for undermining a local authority’s strategic initiatives;
  • application of general policies where there are site-specific solutions; and
  • the burden on smaller authorities with limited staff in meeting time limits.

[79]     Submitters asked that the NPS allow local authorities to choose policies that, taking into account existing instruments, allow regional adaptation and innovation, and best suit their present and future needs, having regard to their capabilities and resources.

[80]     The Board accepts that, in principle, the Act contemplates that local authorities have some flexibility in applying national policies according to regional circumstances. The extent of that flexibility is limited by the imperative that a national policy statement is to be given full effect. Flexibility in application is not intended to be so broad as to excuse any failure to give effect, or any prolonged delay in doing so.

[81]     Existing regional instruments, let alone strategic initiatives, are expected to be altered if necessary, so that it is apparent that they conform to, and give effect to, a national policy statement. To the extent that a local authority’s capability and resources preclude them doing so immediately, it should at least make a public commitment to a firm programme of staged compliance, identifying the timing and content of each stage, and publicly reporting progress to show faithful adherence to the programme.

Implementation costs and local authority resources

[82]     Numerous submitters contended that implementation of the proposed NPS would result in significant additional work for local authorities having limited financial and staff resources, and impact on current budgets and priorities, at considerable cost to ratepayers that would be unaffordable and unsustainable. One submitter stated that lack of funding would have a negative impact on the ability to address freshwater management issues, another that implementation of the proposed NPS should not be at the expense of local authorities or ratepayers. Submitters remarked that smaller authorities lack the resources, capability and professional staff required to deal with technical issues such as cumulative effects, uncertainty, application of the precautionary approach, and determination of flows and levels.

[83]     Many local authority submitters urged that the costs of implementing the proposed NPS should be addressed and provided for in it. They contended that central government funding (or subsidising) of the costs incurred by local authorities would ensure that its goals would be able to be achieved. Some argued that the costs of achieving national benefits (monitoring, reporting, improving degraded water resources to attain water quality standards and protecting outstanding ones) should be borne nationally, rather than central government continuously ‘cost-shifting’ to local government. Another submitter contended that where financial benefit accrues, a levy should be placed on water abstraction to fund freshwater management; another also contended that costs should be borne directly by the user; another urged allocation of costs depending on where the benefits would fall.

[84]     Some of the submissions on costs of implementation of the proposed NPS relate to the costs of monitoring and reporting required by it. The Board has already acknowledged that responsibility for monitoring and reporting should be entrusted to the class of local authorities having the relevant functions. To that extent, the duties of monitoring and reporting are imposed on the appropriate local authorities by section 35 of the RMA; and the effect of the NPS would largely be to emphasise the effective execution of those duties. The Board is therefore not persuaded by the submissions to the effect that the proposed NPS would impose a costly burden on local authorities, because the duty has, in substance, been imposed by Parliament since 1991.

[85]     Consideration of other submissions calls for distinguishing between functions of local authorities under the RMA and executive functions they may have under other legislation, for example, as owners and operators of water supply networks. The primary effect of the NPS would directly fall on the functions of local authorities under the RMA. It is possible that a local authority exercising functions under the RMA may require a local authority owner or operator of a water supply or wastewater disposal network to take action to avoid, remedy or mitigate adverse effects of its operation on fresh water. The cost of doing so cannot sensibly be described as central government ‘cost-shifting’ to local government; and the Board is not persuaded that it should be borne by taxpayers rather than by those who benefit from the network operation.

[86]     To the extent that implementing the NPS more generally would fall on local authorities in respect of their functions under the RMA, the submitters may have a case for arguing for recovery, or at least subsidising of their costs. However, the Board is not persuaded that this is a question for the content of the NPS itself; nor one for the Board to decide. If the NPS is approved, local authorities would be free to take up the matter of implementation costs with the Minister.

Māori issues

[87]     For many Māori submitters, issues of rights and interests in fresh water, and questions of ownership of the resources, were of key importance. A number of iwi submitters deliberately set aside the question of rights and interests, noting that it is an issue to be addressed between iwi and the Crown separately from the proposed NPS. Other submitters noted that the NPS should not compromise the ability for the Crown and Māori to settle future claims for fresh water.

[88]     The Board agrees with those submitters who stated that the ownership of water cannot be addressed in the NPS. It is up to the Crown and iwi to decide how this issue will be addressed.

[89]     A number of submitters called for specific recognition of the role of iwi as Treaty partners, rather than ‘stakeholders’ in freshwater management. They argued that by not acknowledging the Treaty, the proposed NPS does not provide a meaningful role for Māori within water management at the local level, due to the dilution of their status as Treaty partners and kaitiaki that resulted from grouping them as part of the ‘stakeholder’ community. Many of these submitters requested strengthening of the proposed NPS provisions by providing a specific Treaty objective and associated policies.

[90]     By section 6(e) of the RMA, the relationship of Māori and their culture and traditions with their ancestral lands, water, sites, waahi tapu, and other taonga is to be recognised and provided for. Section 6(g) has a similar requirement with respect to the protection of recognised customary activities. Section 7 of the RMA requires particular regard to be had to kaitiakitanga and the ethic of stewardship. Section 8 of the RMA requires all persons exercising functions and powers under it to take into account the principles of the Treaty of Waitangi.

[91]     The NPS is subject to the RMA, including those sections relating to Māori and the Treaty of Waitangi. The Board sees little value in repeating in the NPS what is already stated within the RMA. This is consistent with the Board’s general principle (outlined at paragraph [54]) of not repeating RMA provisions in the NPS.

[92]     The Board is satisfied that Māori and their interests are already specially acknowledged in the objectives and policies of the proposed NPS.

[93]     Consideration of how the Treaty is incorporated into the proposed NPS led to requests from submitters relating to management of fresh water, with many of the iwi submitters citing co-management regimes as an appropriate way forward (with particular reference to the establishment of co-management relationships for the Waikato River and Rotorua Lakes). There were also requests for full partnership in freshwater management. Some iwi submitters argued that the proposed NPS falls short of stating that central government considers a primary Treaty partnership between Māori and local government as the most effective and efficient means of achieving the purpose of the RMA in relation to fresh water.

[94]     Many iwi submitters considered that recognition of the Treaty relationship and provision for new management approaches would allow them to more fully carry out their kaitiaki responsibilities, and that the proposed NPS does not empower kaitiakitanga. The role of kaitiaki was seen as paramount in freshwater management.

[95]     Co-management is a technique that has developed out of a relationship between central government and iwi organisations in relation to the management of particular bodies of fresh water. The Board does not consider that a blanket prescription of this approach over the whole country would be appropriate. Bearing in mind local circumstances, the type of relationship that develops between Māori and local government for management of fresh water is a matter for the parties to establish between themselves, rather than for the NPS to dictate.

Existing uses and activities

[96]     There were differences among submitters on the application of the proposed NPS to existing land uses and activities, including those authorised by resource consents.

[97]     Some submitters asked for certainty that existing takes and uses of fresh water would not be restricted, so the NPS would only apply to activities authorised by consents granted after the NPS comes into effect.

[98]     Some cited particular instances relating to hydro-electricity generation, to irrigation, and to harvesting of existing forests. Submitters raising concerns in those respects stressed that hydro generation is a valid and nationally significant use of fresh water; and urged that there should be no additional restrictions on continuation of existing activities except for robust reason, and if the benefits outweighed the costs to other aspects of the environment.

[99]     Other submitters urged that recognition of existing investment would help existing consent holders to have confidence to invest; and that those consent holders had a legitimate expectation that, provided any effects were appropriately managed, their existing uses would not be undermined. The principle of non-derogation of grants of consent was cited too. Another submitter was concerned that the proposed NPS would allow local authorities to control harvesting of existing forests on the basis that discharges of contaminants require continued existence of forestry as a means of providing environmental benefits to downstream waterways and users.

[100]      Other submitters contended that the proposed NPS misses an opportunity to require that existing consents be reviewed to ensure they align with current best practice. That was supported on grounds that existing consent conditions have been too lenient or have allowed abstraction for too long a term, resulting in existing land-use practices (including agricultural intensification) causing unsustainable major decline in water quantity and quality. They urged that the NPS should mandate local authorities to tackle pre-existing problems.

[101]      Another related issue concerns the distinction between considering an application for replacement of an existing resource consent held by the applicant, and an application for a new consent. It was submitted that the proposed NPS makes no distinction between them in recognising an applicant’s existing investment in infrastructure.

[102]      The Board considers a national policy statement has to be read as subordinate to the RMA under which it is made; and as conforming to the regime under that Act.

[103]      The RMA contains express provisions about the conditions in which, and extents to which, existing uses of land15 and surfaces of water bodies16 are protected; about the circumstances in which existing lawful activities may continue;17 about consent authorities having regard to the value of investments of holders of existing consents;18 and about the exercise of resource consents while existing holders are applying for new consents.19

[104]      A national policy statement cannot alter those provisions; nor can it extend them. To the extent the Act does not give some submitters the certainty they ask for, it is beyond the Board’s remit to consider that. Conversely, to the extent the Act does not give local authorities power to review existing uses, activities or consents during their terms, as other submitters asked for, that is also beyond the Board’s remit to consider.

[105]      In particular, the Board understands that to the extent to which the non-derogation principle applies to grants of resource consent, it gives no basis for any expectation that consent authorities would grant replacement consents without having regard to any national policy statements current at the time.20 A consent authority having regard to a national policy statement may lead to the imposition of new restrictions, or even to refusal of consent for continuation of an existing activity for which previous consent has expired. Despite their value, the Act gives no special immunity from national policies for particular activities such as hydro generation, agricultural irrigation or intensification, or forestry.

Cumulative effects

[106]      A number of submitters specifically raised the issue of cumulative effects and their management within the proposed NPS. Submitters requested assistance by inclusion in the NPS of a policy on the management of cumulative effects. Inclusion of a policy was seen as: supporting and reinforcing councils’ efforts to address cumulative effects; providing clearer direction to avoid the impact on water quality and quantity of cumulative effects; and, allowing councils to proactively manage cumulative effects. Submitters also urged inclusion of a policy as a way of providing the detailed guidance needed to allow councils to ascertain the point in time and space at which the accumulation of insignificant effects becomes significant.

[107]      The Board acknowledges the importance of having regard to the issue of cumulative effects in the exercise of all functions, powers and duties under the RMA. However, authoritative court precedent about identification of cumulative effects exists,21 and it is not within the scope of the NPS to expand or explain what has been stated in case law, nor to instruct councils on their duties under the RMA.

[108]      The Board also notes that the meaning of effect outlined in section 3 of the RMA includes any cumulative effect which arises over time or in combination with other effects, so cumulative effects are addressed comprehensively in the proposed NPS by reference in objectives and policies to effect.

[109]      The recommended policy on integrated management specifically invokes cumulative effects. However, the NPS cannot address requests for detailed guidance, as consideration of cumulative effects needs to be undertaken on a case-by-case basis.

Precautionary approach

[110]      A variety of submitters commented on the difficulty of decision-making in an environment of scientific uncertainty or lack of information, and the possibilities of adaptive management. A number of different policy approaches were suggested to address this within the proposed NPS.

[111]      Issues of scientific uncertainty, lack of information and implementation of adaptive management approaches are not unique to the management of fresh water. A number of matters being requested by submitters for inclusion in the NPS are already contained in the RMA. For example, the concept of a precautionary approach is already integrated in the meaning of effect which includes any potential effect of low probability which has a high potential impact.

[112]      The Board considers it is not the role of the NPS to prescribe how decisions can be made by consent authorities, and that codifying the precautionary approach in a policy could be limiting and restrictive to its application to the management of natural and physical resources.

[113]      Decisions about resource use have to be made on the information that is presented. In some cases, relatively little information is available, but there are considerable difficulties in writing a policy to address this. In these circumstances, the RMA already requires that decision-makers adopt a precautionary approach.

[114]      The Board also notes that while there is some common ground in the precautionary provisions that submitters have sought, there was no true agreement on what should be put into the proposed NPS.

Use of RMA terminology and expressions

[115]      Many submitters asked that the terminology used in the proposed NPS be consistent with that in the RMA. Submitters were concerned that the introduction of new terms, or terms that were inconsistent with the RMA, would lead to litigation to resolve questions of interpretation during regional policy statement and regional/district plan processes. There was also comment about terms contained in the proposed NPS that require some form of judgement to implement, with some submitters urging that terms in the proposed NPS either be defined or deleted.

[116]      Submitters also raised questions about consistency between the proposed NPS and various RMA expressions. A commonly cited example was the use in Objective 8 of a new phrase identify and reflect.

[117]      The RMA gives meanings to many terms, and these are mostly clear and well understood. Terms such as inappropriate, significant and life-supporting capacity are used in the RMA without their meanings being defined in the interpretation section.

[118]      The Board considers the NPS would be improved by using RMA terms wherever possible. The terms used in the NPS should, as far as practicable, be free from any requirement for judgement to be exercised in implementation, although some judgement will still be needed for implementation of the NPS at the regional level.

Scope of the Board’s duties/considerations

[119]      Submissions were received on a wide variety of topics that are not directly related to the provisions of the proposed NPS.

[120]      Submitters sought that the Board recommend to the Minister a number of courses of action relating to central government responsibilities with respect to freshwater management. Some submitters favoured a ‘whole of government’ approach. These requests do not fall within the scope of the duties of a board of inquiry on a national policy statement. Likewise, it is not within the scope of the Board’s task to recommend that central government adopt a ‘whole of government’ approach to freshwater management.

[121]      Many submitters raised issues about integration and linkages between the proposed NPS and other national documents such as:

  • the Proposed National Policy Statement for Renewable Energy Generation;
  • the revision of the New Zealand Coastal Policy Statement;
  • the Vision and Strategy for the Waikato River;
  • the proposed National Environmental Standard on Ecological Flows and Water Levels; and
  • the National Environmental Standard for Sources of Human Drinking Water.

[122]      The Board accepts that, ideally, it would be desirable if the content of the NPS was consistent with that of other instruments under the Act on related subjects. However, by the end of the hearing of submissions on the proposed NPS, and by the time this report was prepared, the report of the Board of Inquiry on the review of the New Zealand Coastal Policy Statement had not been published; the report of the Board of Inquiry into the proposed National Policy Statement on Renewable Electricity Generation had not been published; the legislation to adopt the Vision and Strategy for the Waikato River had not been passed; and the processes on the proposed National Environmental Standard on Ecological Flows and Water Levels had not been completed. Therefore, the Board has kept its focus on the content of the proposed NPS, leaving to others the task of moderating any inconsistencies among those instruments.

[123]      Submitters also requested that the proposed NPS provide guidance on good practice in strategic planning, setting of environmental bottom lines and allocation limits. The Board does not consider that these matters are appropriate for national policy statements, whose purpose is to state objectives and policies in relation to matters of national significance. If the Ministry for the Environment sees a need for good practice advice to be disseminated, that is part of its function.

[124]      Submitters suggested that the proposed NPS should provide national policies on governance, including implementation or clarification of the intent of collaborative governance processes and assistance in achieving them, and inclusion of provisions relating to co-management. Some submitters expressed concern about the impact of the proposed NPS on existing governance arrangements. The Board notes that these matters extend beyond freshwater management, and considers that a national policy statement would not be an appropriate instrument for addressing governance arrangements.

[125]      In conjunction with submissions relating to demand management and efficient use of water, some submitters requested that the proposed NPS encourage or require widespread adoption of water measuring devices. Water measuring devices are one of a number of methods of managing demand for fresh water, and the Board considers that prescribing their use is too specific for inclusion in a national policy statement.

[126]      Some submitters suggested that commercial users of water should be required to pay levies on abstraction of fresh water, with the resultant funds being used for freshwater management initiatives or to fund stakeholder involvement. This is beyond the scope of the Board’s functions.

[127]      The work of the Land and Water Forum was also the subject of comment by submitters, who suggested a need for consistency between the two processes, or that the proposed NPS should be delayed until the work of the Forum is complete. The main role of the Board is to consider and report on the submissions on the proposed NPS in terms of the RMA. The Board understands that, by comparison, the role of the Forum is much broader and at a higher order of generality. The Board, having heard the submitters, is obliged to complete its report without unnecessary delay. Because the Forum’s work has broader scope, it does not justify the Board delaying its report. This report should be available to the Forum well before it is due to report.

[128]      Many submitters commented on matters contained in the section 32 report on the proposed NPS, criticising its analysis of costs and benefits. By section 32(1)(a) of the RMA, prior to public notification of any national policy statement, the Minister has the responsibility for evaluating the appropriateness of objectives, and the efficiency, effectiveness and appropriateness of policies in achieving the objectives. By section 32(2)(b) the Minister has to carry out a further evaluation prior to issuing a national policy statement. The preparation, contents and sufficiency of any section 32 analysis are not matters for a board of inquiry to consider.

[129]      The Board received many requests from submitters (from all sectors of interests in freshwater management) about the costs of implementation of the proposed NPS, and the provision of funding from central government. As the Board explained in paragraph [86], it considers that the extent to which costs of implementing the NPS should be met by local authorities, and the extent of any subsidy from central government, are outside the ambit of the Board’s functions.

Endnotes


3. Section 45(1) RMA.

4. Section 55(2) RMA.

5. Documents in that class are planning instruments such as regional policy statements and regional and district plans.

6. Section 55(2A)(a)

7. Section 55(4) RMA.

8. See meanings given in RMA, s2(1) for water and natural and physical resources.

9. RMA, s3.

10. RMA, s2(1).

11.New Zealand Rail v Marlborough District Council [1993] 2 NZLR 641; [1994] NZRMA 70 (HC).

12. Resources may be used, but only in a sustainable way: Auckland City Council v John Woolley Trust [2008] NZRMA 160 (HC), per Randerson J, para [47].

13.Canterbury Regional Council v Banks Peninsula District Council [1995] 3 NZLR 189, 194; [1995] NZRMA 452, 458 (CA).

14.  Manukau Shopping Centre Merchants Association v Manukau City Council HC Auckland CP2721/99 01/12/88, Wylie J; Gunson v Waikato Regional Council Env C A198/05, para [88].

15. RMA, s10.

16. RMA, s10A.

17. RMA, s20A.

18. RMA, s104(2A).

19. RMA, ss124–124B.

20. See RMA, s104(1)(b)(iii).

21.Dye v Auckland Regional Council [2002] 1 NZLR 337; (2001) 7 ELRNZ 209; [2001] NZRMA 513 (CA).