Our series this week sets out the key changes (from tweaks to overhauls) we consider would improve New Zealand's environmental legal regimes, should they face further reform or repeal post-election.
Perhaps the most debated and wide-reaching of the environmental policy reforms under the current Labour government (with the exception of the NBEA itself) has been those for freshwater – specifically the National Policy Statement for Freshwater Management 2020 (NPS-FM), its update in 2023, and the associated National Environmental Standards for Freshwater 2020 (NES-F).
These policy documents have fundamentally changed the way in which the resource management sector considers wetlands and streams when planning for development. While this has been positive in ensuring greater action to improve and protect New Zealand's freshwater taonga, the documents have also widely been recognised as clunky and having stripped the nuance from ecological assessments to apply a "black and white" approach to freshwater management.
The NBEA as enacted will carry the current freshwater documents directly into the National Planning Framework, while introducing its own changes to New Zealand's freshwater management system, including a new approach to freshwater allocation.
So what would we revise if there was a chance to consider these documents afresh? Some of the key changes we consider would vastly improve the workability and effectiveness of freshwater policy include:
- Consistency of policies with rules: There is currently a significant mismatch between the strong avoidance policies set by the NPS-FM, particularly against loss of stream and wetland extent (Policies 6 and 7), and the subsequent provisions in the NPS-FM and NES-F which allow such loss for a wide range of activities through alternative consenting pathways. This encourages inconsistent application and legal challenge – as evidenced in the recent judicial review by Forest and Bird against the latest NPS-FM amendments on the basis these are inconsistent with its policies. While it is clear neither Labour nor National intend to remove the freshwater consenting pathways, it makes little sense to retain a policy framework that is arguably contrary to those pathways.
- Simplification of wetland rules and exceptions: The NPS-FM has introduced a suite of new rules, definitions and standards – from the definition of "natural wetland" through to the multi-hyphenate list of exceptions to the wetland prohibitions. In practice, this has led to increasingly expensive and complicated consenting processes, and significant uncertainty for applicants as to the level and kind of assessment they should be undertaking. Where a rule requires 15 exceptions to function efficiently, we question whether the rule itself is well drafted in the first instance – and suggest it should be back to the drawing board to produce a single, cohesive wetland rule which enables necessary projects to proceed so long as the effects management hierarchy is followed and an overall net gain for their values is ensured. Such a re-write would also avoid the unintended prioritisation the NPS-FM has currently promoted by virtue of its wetland rules, whereby avoidance of wetlands is being promoted above protections for other kinds of indigenous biodiversity, even where the value of the non-wetland feature may be much greater.
- Consistent and clear terminology: Each new iteration of national policy has brought with it new tests and definitions. For example, the effects management hierarchy of the NPS-FM does away with the references in the RMA to "avoid, remedy, mitigate" in favour of "avoid, minimise, remedy". More new concepts have been introduced in final edits to the 2023 NPS-FM post consultation, such as for activities to prove "no practicable alternative location in the region" exists, a new requirement yet untested as to the kind of assessment sufficient to meet it. As a general comment, the NPS-FM, alongside the other policy statements, needs to be carefully reviewed to strip back and align the range of tests and terminology, which only add uncertainty for developers in selecting sites and preparing applications while leaving the details of the legal system up for debate through the courts.
- Freshwater allocation: While the RMA's approach to first-in-first-served freshwater allocation is too blunt an instrument, we consider the NBEA's allocation regime swings too far in the other direction, and removes all certainty for current water users in favour of leaving the fate of water rights to a future process for allocation by regional planning committees. Certainty is needed now, and so is a clear framework for users to plan by. This needs to recognise existing investment, alongside the ability for the review of existing permits where resources are over-allocated or subject to environmental stressors. Applicants should be given the opportunity to prove industry best-practice is in place and resources are being used efficiently. Greater efficiency could also be achieved if permit trading was enabled between holders where the full allocated amount is no longer required for some activities, but expansion is required for others.
