Otago, Canterbury, Freshwater and the Fast Track

Welcome to new and repeat readers alike – thanks for your interest.

I said I planned to start with a little bit about myself, and where I stand, and after that to discuss the relationship of the government’s Fast Track Approvals Bill with recent developments in freshwater quality law in Canterbury.

Where do I stand?

My name is Allan Brent.  My family and I are lucky to trace my father’s paternal line, the Brent family, back a long way.  Before the information explosion of the recent past, legend and a spidery hand drawn family tree took things back to shipbuilders, clergy and women quietly holding things together in late 17^th century England.

Latterly, my wife made a chance find that allowed us to start filling that sketch out further.  This find took the sketch back to just after the Norman Conquest.  Incredibly and despite the lives and generations passed since then, a street in a rural southwest English town has borne the family name for 800 years.

Somewhere along the line law came into the family picture – I’m given to understand I’m a fifth generation at it, though to be honest I’m not completely sure if that’s true, or whether or how that matters.

Many times over the Brent line hung by the thread of a single person – and eventually they found their way to Otago and Canterbury, in about 1874.  Of course, a father’s paternal line over this legnth is about 2^30 people – and somehow just a sliver of one’s true family.  But it’s not all about numbers, and alas we don’t go much further back than voyages from Ireland to Australia on my mother’s side – or at least, this is something still to be found out.

The sheer contingency of all this is ridiculous, but so it is that I find myself in Otago in 2024 – the only home I’ve ever known.  I grew up on the hill behind Dunedin city, with views out over the Pacific and down to Harbour Cone.  Mt Cargill and its characteristic tower stood over the northern horizon of my childhood, blocking the north-easterly gloom but making some of its own by hanging a curtain of shade over the city in winter.  Once I helped a farmer shift his stock in the snow on those slopes, exchanging this for a ride up the hill on a four-wheeler – then bagging a top to bottom run.  A photo taken on that occasion hangs below the same scene, pictured in beautiful full summer, in our hallway.  I like the contrast.

When I was young we got up to Wanaka a lot, to see family and generally to be in a place we all loved.  Driving up, the sight of the Old Man from Millers Flat betokened Central and a special time coming.  Sometimes we flew up in a light plane, and some of my best memories are of flying northwest from Taieri into the afternoon sun.  The Strath Taieri, the Rock and Pillar and Lamermoor, Rough Ridge, the Ida, Raggedy, Manuherikia, and then the Dunstan would slide below us in succession.  In my memory they would appear as a deep blue, especially late in the day.  But three times in the flight – first with Loganburn, then Poolburn, then finally Lake Wanaka – burning gold would slash the scene.  In later years I’d be lucky enough to wander, bike, shoot, or even occasionally help out at farms across a good amount of this block-faulted moorland – and it was a joy to find the colour scheme inverted:  blazing gold tussock under a massive pale blue sky.  Not for nothing are these the provincial colours around here.

In university years I was lucky to enjoy an apprenticeship-style introduction into alpine climbing, from family.  I’ve never gotten technically very good – not the way you’ll see a standard operater on YouTube.  But I don’t care, because the mountains aren’t about that for me.  Instead, and among many other things, they’re a chance to know yourself, your companion, and the place you call home that little bit better.  Some of the best moments on the heights come when you can see a hundred kilometres in each direction, and usually one or sometimes even both coasts. It’s not about conquest or anything silly, its about knowing cherishing memories from much of the scene.  At these times, among other things, you come to see some kind of eternity - because although this island is small, if you properly attend you’ll never know it all.

I’ve had relationships with other places – Canterbury and Westland in particular, but Otago:  the place gives me something real.  To be in right relationship with this sliver of this Island, with these tors and burns, my feeling is of the need to give something back.  And if that means anything, it means chipping away at handing it on better than I found it.  That’s where I stand.

Some will find this wet and romantic claptrap, others frustratingly imprecise.  So be it.  Anyone with half a clue knows what I mean.  So that’s where I stand.

The Fast Track and Canterbury Water

I never had the opportunity to farm, which meant I didn’t get that most obvious and common of chances for a more direct relationship with a place.  I also lacked imagination as a high schooler.  Eventually, all that meant making whatever contribution I would through law.

I started out in law at places that oil the larger cogs of the nation’s commercial Machine – the Big End of Town.  It was excellent training from the photocopier up.  And most, but by no means all, of the people wonderful too.

In these environments, I came to work a lot on the Resource Management Act, the RMA, the Act supposed to mediate the meeting of “environment” and Machine.  Almost needless to say, ethics were observed scrupulously:  the confidentiality and conflicts were always managed, and so on.  And yet… there always seemed nagging questions that truly penetrating ethicists – people like Durkhiem – might have asked. For a very simple one:  as a lawyer one’s first fidelity is to the Court and the Rule of Law – taonga if we have ever known them.  If, then, we worked on a law that would “safeguard the options for future generations” and the like, how could it be that we saw precisely the opposite all about us?  Was that the evidence, the ethics, the way we practised, my misunderstanding of the situation, or something else? 

To be sure I’m not and wouldn’t allege that anyone I worked with made any ethical breach – I didn’t see that and it’s not for me to stand in judgement anyway.  What I was noticing, though, was lack of curiosity about these kinds of questions.  Of course, one also noticed how well this fit with that quotation attributed to Upton Sinclair – that “[i]t is difficult to get a man to understand something, when his salary depends on his not understanding it.”

Eventually there came a time where it was difficult for me to get out of bed to oil the Machine as I saw it. Too much of it, in my view, was not given to even asking whether its workings would turn this place over in better shape – if it was thinking beyond the financial year at all.

For me, then, I accepted that I would have to find another path if I wanted to treat the law as a serious vocation.  So after a stint away from law, I came to environmental litigation strategy for ENGOs.  First with FMC and then ELI.

My earlier RMA work had brought me close to water work in Canterbury – starting in 2015.  The initial work was on various plan changes dealing with regional and sub regional nutrient rules.  I recalled that there had been various interesting features, such as game playing with nutrient “base lines” and the like. But the most interesting was that Canterbury’s regional plans recognised both nutrient “over allocation” and that more severe demands to nutrient reduction were not going to be “socially acceptable”.  This was notwithstanding, of course, that the province’s agricultural landscape had changed beyond all recognition in little over a generation, and that throughout that time ECan had been compromised by the sacking of a democratically elected Council, who were replaced by Commissioners in 2010.

This appointed Council came up with the Canterbury Land and Water management Strategy, which was eventually reflected in a Land and Water Regional Plan, or LWRP. 

One device in the LWRP makes farm nutrient discharges permitted if one had a farm land use consent – the idea seemed logical, practical and as such “appropriate”.  And certainly it is all these things from the perspective of the old-school sort of family cocky drowning in rules, just looking to run an old school sheep and beef operation or the like.  But to the increasingly aggregated and industrialised operator, this device also presents a nefarious opportunity:  that’s because it has the effect of avoiding prohibitions in a pair of little known but extremely important RMA provisions – sections 70 and 107. 

Both plan and consenting work in Canterbury often had a quality of glossing over these twin prohibitions, because together, they bar discharge activities that – either alone or in combination with others – might cause significant adverse effects on aquatic life.

At ELI I had the opportunity to research the history of these provisions in depth.  Along with colleagues, I found that they originated in 1967.  Back then, they were regarded as “minimum environmental standards” to be “observed”.  Originally they worked through a “classifications” system decided on regionally.  There was always difficulty in applying the classifications system because it asked decision-makers, then as now, and as something will forever more, to decide between different uses of water in different places. 

The sole consequential change to freshwater law when the RMA arrived in 1991 was to make the qualitative pieces of this system mandatory – in other words to make a bottom line for freshwater quality.  It may have been qualitative, and this may not sit well with the modern penchant for measurement to replace judgement wherever possible, but it was not avoidable.  Whether or not it was called a bottom line, it flew and quacked the same way - an idea not even the High Court seemed to give a “hard no” in ELI’s recent case. Here, then, was the national direction so often claimed to be lacking - both then and now still.

The great feature of the national freshwater discussion since this time – ie over the past generation – has been to ignore, or deliberately forget, the entire freshwater legal story - history - to 1991.  Beginning from about 2008 with the “New Start for Freshwater” programme in the Key Ministry, a new story crystallised.  This new story was that New Zealand had never before agreed bottom lines for freshwater – not in 1967 or 1991 or since. 

Whether this was convenient pretense or mere ignorance of legal history is an interesting question. 

In large part, the need for a new story seems to have emerged because the very significant 1991 change was not well-understood – just one early RMA commentator seemed to fully grasp its gravity.  In turn, probably this lack of understanding was due in part to institutional momentum.  One can imagine real people at real desks, with the ordinary challenges of life, struggling to change old ways.  Probably also there had been poor signalling of the single but significant freshwater change – it was just one among a forest of other changes brought in by the RMA, which was one of many issues at a time of wider national change. It was probably also a non-controversial change, for there had never previously been real dispute over the need for the classifications scheme and national support for it: there was tension about subsidiarity, but this was an issue of degree, then as now.

It can’t really be denied, though, that by 2008 there would also have been considerable motivation for a new arrangement from almost anyone who did understand the real freshwater law. 

Think of the politician wanting to “unlock the economic potential” of freshwater, yet finding freshwater pollution problems becoming uncomfortably noticeable at the likes of Rotorua and Taupo.  Think of their opposite number embarrassed to admit they had not insisted on an existing legal bottom line for almost 20 years, or concerned they would be politically outgunned if insisting too hard.  What about the lawyer having given wrong or vulnerable advice over the same period?  Think of the banker with clients long since committed down another path.  Or the freshwater scientist genuinely concerned that without a modern quantitative suite of bottom lines, things would go backwards.  Think of the Council staffer, still in practice burdened under the weight of a huge and eternal social tension, no matter the law.  Think even of the public, either unknowing, apathetic or keen enough for cheap imported goods that they would accept worsening water and the national discussion on balance of payments. 

One could go on, but whatever the motivations, it is clear that the old story was too hard for us all, and we all played our part in the need for a new one. So after 2008 an apparently all-new freshwater quality arrangement was what we got.  This took, and still takes, form in various iterations of the National Policy Statement for Freshwater – which date from Land and Water Forum efforts and a Mark I statement in 2011.  

What is little understood is that is the old bottom lines were never repealed.  Probably again this was too politically vulnerable a move, so it was better to make the new story wide and deep, so that soon a sunk cost argument could be made.

Despite the very big effort put into the NPS, and the strength of the NPS itself today, the basic legal situation on freshwater quality is very simple, and has remained unchanged since 1991.  It is situation made odd because the formal law does not match the prevailing story.

The legal situation is that the NPS is a mere regulatory guidance document.  It is a strong regulation, because it has to cascade through other plans.  But ultimately, it is just like any other regulation:  governed by its empowering Act.  Sections 70 and 107 operate as minimum standards for freshwater. They’re in the RMA itself, and as such govern the NPS.  They remain the legal bottom line for New Zealand freshwater quality, and in prohibiting discharges that might cause even a likelihood of significant adverse effects, alone or in combination with other discharges, they are very strong.  (The government’s recently announced intention to tweak the NPS by deleting the concept of Te Mana o Te Wai is, in this light, a sideshow – something I might return to another time.)

ELI would take cases on sections 70 and 107 starting in 2022.  Others were working on the section 70 side in Southland a little bit earlier, and others had earlier nibbled in Canterbury and elsewhere.  When we were successful on a section 107 case concerning an irrigation scheme consent, ECan responded with an appeal both in Court and to the government. 

The Court appeal will happen in time. The Government appeal came on 19 April 2024, when ECan Chair Peter Scott asked the Ministers for the Environment and RMA Reform, Penny Simmons and Chris Bishop, to change the 35 year old bottom line law, with its 1967 provenance.  Mr Scott seems to have done this without the Council’s blessing, and on reasoning that potentially hundreds of consents might have been affected.

About 7 May, Chris Bishop’s office confirmed that the government had accepted ECan’s invitation.  They are considering “targeted amendments” incorporating these deletions into an “RM Amendment Bill” due later this year – which to me seems like “Wellington” for “this will almost certainly happen.”

In the following weeks it was reported that Canterbury Councils were budgeting $400 million to find clean drinking water for their people.

How does all this relate to the Fast Track Approvals Bill?

Many have observed that the stated intent of the Fast Track Approvals Bill – for faster and simpler consenting – are legitimate.  But no serious observer thinks the Bill can last long in its current form.  The opposition have said they will repeal it.  And even the government tacitly admits it if they are prepared to spend time working on “targeted RM amendments” that the Bill would otherwise make irrelevant.

Fighting the Fast Track Bill is legitimate for reasons so many others have covered at length, with good arguments against from everything from green to conservative perspectives.

My own observation is that there are a number of relatively obvious litigation strategies that will render the fast track virtually unavailable – or at least usefully available – for any consent touching freshwater.  These strategies will be available to any motivated and resourced actor, some even perhaps now if they are bold. Some could open pandora’s boxes:  for example the Bill could well bring Māori interests in freshwater to a head.

Whatever the specifics, the smart money is on the discussion shifting away from the current focus on the Bill – essentially an untenable tool with an emergency character.  Inevitably, the focus will have to come on to something that can and will last.

With respect to freshwater the government’s current solution would seem to be to delete a very old and very strong bottom line.  It will do so effectively on the rationale that it has been asserted once, and that is no longer convenient.  And it wants to do so in the back room, with the slight air of either annoyance or desperation that not quite everyone has yet forgotten the old story or true legal position.

When this public discussion comes around, some of its contours will be predictable.  We seem almost certain to hear that the bottom lines are “not fit for purpose” on account of their age.  No matter, of course, their substance.  They will be called “unclear” on account of their flexibility – notwithstanding that this uncertainty was by design.  They will be said to “undermine years of community participation” in NPS and other plan processes, notwithstanding the surprise only comes after government’s misunderstanding or forgetfulness, and that all but the big end of town just want to swim in the local waterway.  And finally on account of the way they may require polluters to clean up freshwater faster than they might want, they will be called “economically disruptive” – even though many argue that weakened environmental protections compromise the positions of our export traders on the world stage.

With the shoe on the other foot, some green-inclined people will make the mistake of failing to appreciate the seriousness of the situation, calling the change irrelevant and NPS “progress” - which any glimpse at the physical world ought to disabuse them. Others will make the opposite error and fail to accept that almost everyone regards it as legitimate to publicly debate how good or bad New Zealand’s various freshwater bodies should be, how quickly we should get back to some semblance of acceptable freshwater quality, or who should pay. 

Whether anybody likes it or not, an enduring agreement on freshwater law will require talking honestly.  It need not be a blame game because as history shows, we’ve all played our part in where we are now.  Part of an honest discussion will be tabling the fact that New Zealand has been operating on a legal fiction about freshwater quality law for a generation. The true law, now just beginning to be confirmed in Court, would likely have made for far less freshwater pollution even than with a complex and strong NPS.  And all the bottom-line prohibitions ask is that one shows, evidentially and on a case by case basis, that what you want to do won’t be likely to significantly harm the wai. If not, no worries.

There will be an ongoing pretense that the legal position actually matches the post 2008 NPS story. It should be seen for what it is: effectively underwriting current economic activity against the will of our elected representatives. It undermines a need to keep innovative based on ignorance or falsehood, and in this respect represents an undeclared subsidy.  It takes us further from environmental protection goals, but even from serious efforts to improve economic productivity.  Operating on obvious legal fictions also nibbles away at our commitment to the rule of law. 

Quietly weakening the legal freshwater bottom lines, as the government would, would have many of the same effects. 

For these reasons a serious targets discussion needs to be had.  Of course a truly serious targets discussion will be very challenging – and involve far more than efforts to date.  It will not be enough to make a computer-modelled target for each catchment, then play further computer games designed to pretend we’re heading that way. 

A serious targets discussion will need to be a discussion grounded in values - including the ways we want our descendants to see us, and the opportunities we want to leave to them.  Are we lovers of our place, and of them?  Or keener on artificial year on year ROI growth or some such?  Are we true innovators, and believers in ourselves, or are we self-deceiving and stuck? 

No one knows what the future looks like, but to this author it is not at all clear that trading abstracted economic growth now for less and worse-quality actual water later is a good move.

When the Fast Track cacophony settles, these will be the freshwater questions that remain.