The Watered-Down Freshwater Package

By Sophie Bijl-Brown

In addition to providing a source of taha wairua and taha tinana, particularly for iwi, freshwater health is recognised as a necessary strategic and productive asset for New Zealand.[1] Freshwater underpins agriculture and tourism, as well as providing for around 60% of our electricity.[2]

 However, there is currently no such thing as freshwater ‘health’ in New Zealand. Forest & Bird, New Zealand's leading independent conservation organisation, reports that 31% of freshwater plants, 74% of freshwater fish and 34% of invertebrates risk extinction.[3] Earlier in the year, New Zealand saw thousands of eels killed by a chemical spill in a South Taranaki stream.[4] Thousands of birds and hundreds more eels were found dead in waterways on the Hauraki plains, having been suffocated by algal blooms, which suck the oxygen from bodies of water.[5] Ducks and other protected bird species were impacted by a botulism outbreak.[6] While this outbreak was triggered by high temperatures, it was also exacerbated by excessive nutrient loads in streams and canals. Needless to say, the majority of our water bodies are too polluted to swim in, despite New Zealand’s ‘clean green’ reputation. Furthermore, although some water bodies appear to be in good health, many are becoming increasingly contaminated by pollutants that were discharged decades ago.[7]

The Land and Water Forum back in 2009 marked the development of freshwater policy in New Zealand as a response to this crisis. However, the government’s recent announcement of a freshwater cleanup package shows that real protection of te wai is only just beginning eleven years later.

Te Mana o te Wai 

According to a 2017 report by the Ministry for the Environment: [8]

“Te Mana o te Wai is a concept for fresh water that encompasses several different aspects of the integrated and holistic health and well-being of a water body. When Te Mana o te Wai is given effect, the water body will sustain the full range of environmental, social, cultural and economic values held by iwi and the community. The concept is expressed in te reo Maori, but applies to freshwater management for and on behalf of the whole community.”

However, despite bold statements of recognition for Te Mana o te Wai, freshwater objectives and limits must be guided by the values held by the ‘community’. Although Kiwis report high concerns for water quality, this community includes groups of farmers who financially benefit from negative externalities on the environment. Given that New Zealand’s economy is agriculturally centred, these farmers hold significant political negotiating power, even when it comes to decision-making on environmental policy. Accordingly, there has been insufficient protection of Te Mana o te Wai. This remains the case with the recently announced freshwater cleanup package.

The Bad

Nitrogen and phosphorus are responsible for the algal blooms that destroy aquatic life and give water bodies unpleasant brown, green and red coloured patches.[9] Additionally, high nitrate-nitrogen levels in drinking water correlate with increased risks for colorectal cancer.[10] These chemicals are found in fertiliser and animal effluent and attach to soil, seeping into waterways by farm runoff and erosion.

According to Dr Mike Joy, advice from scientists and Kahui Wai Maori on this matter has been ignored. Consequently, national bottom lines for dissolved inorganic nitrogen (DIN) and dissolved inorganic phosphorus (DIP) are still missing from the new legislation, and decisions on limiting the output of these chemicals have been delayed for an additional 12 months.[11]

It is unclear why limitations have not yet been set for these chemicals, considering that the Science Technical Advisory Group recommended introducing measurable limits that would merely bring New Zealand into line with the rest of the world. However, it is likely to do with farmers’ reliance on nitrogen and phosphorous-based fertilisers.

Interestingly, the government has introduced a cap on synthetic fertiliser, which is set at 190kgN/ha/year.[12] The majority of farmers will not be affected by the new cap, given that the average use of synthetic fertilisers across New Zealand sits at 150kg. However, this is not necessarily strict enough to ensure the imperative improvements in water health.

The Good 

On a more positive note, new regulations have been set for stock exclusion from lakes, rivers and wetlands. This will significantly reduce the amount of contaminants reaching waterways. However, farmers have until July 2023 to ensure dairy cattle and pigs are excluded from waterways, and until July 2025 to ensure beef cattle, dairy support cattle and deer are excluded.[13]

The government is also introducing a new bottom line for E-Coli in swimming sites, to ensure that New Zealanders are safe to swim in their local waters.

Additionally, $700m funding has been reserved to help with water clean-up efforts. According to Environment Minister David Parker, “Our environmental reputation is the thing that underpins our biggest export earners - tourism and agriculture. It’s time for us to invest in cleaning up our water in order to protect the economic value it brings.”[14] This funding will contribute to riparian and wetland planting, removing sediment, and preventing farm runoff from entering waterways. The government also notes that this will create new job opportunities, which is of particular importance in the wake of the disruption caused by Covid-19.

The Ministry for the Environment estimates the net benefit of the proposal at $193 million per annum over 30 years.[15] While it is certainly positive that funding has been allocated for freshwater cleanup, it is interesting that the long-term economic benefits of this funding are emphasised over and above highlighting the intrinsic worth of freshwater, particularly in accordance with Te Mana o te Wai. Waterways have their own mana, and accordingly their health should be maintained regardless of them being a resource that can be exploited. Indeed, the particular emphases on how the cleanup will aid swimmers, job-seekers and the economy shows that the government is interested in New Zealand maintaining a clean-green ‘image’, but may not care for a flourishing environment.

Implementation and Enforcement

This public funding is necessitated by historic behaviours which have contributed to the pollution problem, and contrasts with the ‘polluter-pays principle’ (PPP).[16] The PPP was first articulated by the Organisation for Economic Co-operation and Development in 1972, and expresses the idea that polluters should bear the costs of preventing, controlling and cleaning up pollution as a means of mitigating negative environmental externalities. Although it was originally theorised as an economic principle, it has since become an internationally recognised legal principle in relation to environmental policy.

The PPP is reflected in s 17(1) of the Resource Management Act 1991 “Duty to avoid, remedy, or mitigate adverse effects:

(1) Every person has a duty to avoid, remedy, or mitigate any adverse effect on the environment arising from an activity carried on by or on behalf of the person, whether or not the activity is carried on in accordance with —

(a) any of sections 10, 10A, 10B, and 20A; or

(b) a national environmental standard, a rule, a resource consent, or a designation.”

However, s 17(2) states that “the duty referred to in subsection (1) is not of itself enforceable against any person, and no person is liable to any other person for a breach of that duty.” Furthermore, process requires that any claims made against a polluter must be heard in the Environment Court. Consequently, the costs associated with this make it unlikely that the PPP is strictly enforced. This demonstrates that, in practice, environmental protections are weak at best. 

 Consequently, it is necessary to consider how the new legislation will be successfully implemented. Under s 7(1) of the RMA, councils have a legal obligation to protect the environment. In the schedule:

 “An assessment of the activity’s effects on the environment must address …

(c) any effect on ecosystems, including effects on plants or animals and any physical disturbance of habitats in the vicinity:

(d) any effect on natural and physical resources having aesthetic, recreational, scientific, historical, spiritual, or cultural value, or other special value, for present or future generations:

(e) any discharge of contaminants into the environment, including any unreasonable emission of noise, and options for the treatment and disposal of contaminants.”

 Given the current levels of contamination in freshwater bodies, local and regional councils have clearly failed to protect the environment for future (or present) generations. So how will councils be held to account for the new legislation? Under the Resource Management Amendment Act, independent hearing panels will be created and an independent freshwater commission will be established. Whether this will ensure sufficient adhesion to the new legislation, only time will tell.

 Conclusion

According to Climate Change Minister and Green Party co-leader James Shaw, these are the strongest protections a government has put in place for waterways:[17]

 “With mātauranga Māori – or Māori principles – for water management as our guide, we have developed a clear, robust and enforceable set of policies so we can all enjoy and benefit from healthy rivers and clean, safe water for decades to come.”

However, in light of the dire situation we have seen in 2020 alone, it seems unlikely that the new protections are strong enough to support water health, either for its own sake or for future generations of New Zealanders.

The views expressed in the posts and comments of this blog do not necessarily reflect those of the Equal Justice Project. They should be understood as the personal opinions of the author. No information on this blog will be understood as official. The Equal Justice Project makes no representations as to the accuracy or completeness of any information on this site or found by following any link on this site. The Equal Justice Project will not be liable for any errors or omissions in this information nor for the availability of this information.

[1] Ministry for the Environment “Why Freshwater Matters” (26 May 2020) Ministry for the Environment <https://www.mfe.govt.nz/fresh-water/why-freshwater-matters>

[2] Ministry for the Environment.

[3] Forest & Bird “Fresh Water - Te Wai Maori” (2018) Forest & Bird - Te Reo O Te Taiao: Giving Nature a Voice <https://www.forestandbird.org.nz/what-we-do/fresh-water>

[4] David Appleby “'Thousands' of dead eels found in Taranaki stream after meat plant ammonia leak” (24 February 2020) 1 News <https://www.tvnz.co.nz/one-news/new-zealand/thousands-dead-eels-found-in-taranaki-stream-after-meat-plant-ammonia-leak>

[5] Michael Morrah “Coromandel waterways filled with thousands of dead birds and eels” (4 March 2020) Newshub <https://www.newshub.co.nz/home/new-zealand/2020/03/coromandel-waterways-filled-with-thousands-of-dead-birds-and-eels.html>

[6] Michael Neilson “Hundreds of birds killed in botulism outbreak near Firth of Thames” (11 January 2020) NZ Herald <https://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=12299627>

[7] Ministry for the Environment “Water is polluted in urban, farming, and forestry areas” (2020) Ministry for the Environment <https://www.mfe.govt.nz/publications/fresh-water/our-freshwater-2020/issue-2-water-polluted-urban-farming-and-forestry-areas>

[8] Ministry for the Environment Changes to Freshwater NPS (Ministry for the Environment, INFO 805d, August 2017) at 2.

[9] Kevin Sellner, Gregory Doucette and Gary Kirkpatrick “Harmful algal blooms: causes, impacts and detection” (2003) 30 Society for Industrial Microbiology 383–406.

[10] Anneclaire De Roos, Mary Ward, Charles Lynch and Kenneth Cantor "Nitrate in Public Water Supplies and the Risk of Colon and Rectum Cancers” (2003) 14 Epidemiology 640-649.

[11] Ministry for the Environment Decisions on the National Direction for Freshwater (MFE, ME 1498, May 2020) at 4.

[12] At 7.

[13] At 4.

[14] Collette Devlin “Government pumps $700m into cleaning up waterways” (28 May 2020) Stuff <stuff.co.nz>

[15] Ministry for the Environment Action for Healthy Waterways: Benefits and Costs (MFE, INFO 943, May 2020) at 2.

[16] “What is the polluter pays principle?” (11 May 2018) London School of Economics and Political Science <lse.ac.uk>

[17] Beehive “Cleaning up our rivers and lakes” (press release, 28 May 2020).