Water Allocation Law in New Zealand

Lessons from Australia

Jagdeepkaur Singh-Ladhar

• Editorial: Routledge
• Año: 2020
• ISBN:
  9781000090703
• Edición: 1
• Categoría: Law
• Categoría: Environmental Law

This book analyses water allocation law and policy in New Zealand and offers a comparative analysis with Australia.

In New Zealand, it is generally accepted that water allocation law has failed to be adequately addressed and New Zealand is now faced with the problem of over-allocation in many catchments. In comparison, Australia has extensive experience in reforming its water law and policy over the last 20 years. This book provides a comparative and critical analysis of the lessons that New Zealand can learn from the Australian experience and offers guidance for the improvement of water allocation outcomes in New Zealand. Starting with the background of water allocation law and policy in New Zealand, the book traces the evolution of legal policies, including the 1967 Water and Soil Conservation Act and the 1991 Resource Management Act, and examines the role they have played in current water allocation issues. The book situates these findings within global challenges, such as the impact of climate change, and the global scarcity of and increasing demand for freshwater resources.

This book will be of great interest to students and scholars researching water law and policy, natural resource management and environmental law more broadly. It will also be of use to policy makers and professionals involved in developing and implementing water allocation laws and policies.

1 Introduction

Understanding the global context of water allocation

The problem of increasing global water scarcity

Water scarcity is a critical issue. A recent high profile example in early 2018 was the water scarcity issues experienced by Cape Town when it was predicted that the city would run out of water.¹ While the issues in Cape Town were intertwined with other infrastructure, social, political and environmental issues, there is sufficient research to show that water scarcity is an impending problem for other cities too.² As a starting point, it is important to understand that freshwater is a limited resource. Statistics show that of the total available amount of freshwater on Earth, approximately only 1% of it is suitable for human use.³ Then of the 1% that is suitable for human use, there are further issues relating to water access and water quality. In addition, the distribution of water and rainfall patterns also contributes to water availability and scarcity. Projections of water scarcity referred to below confirm that the extent of water scarcity may vary but that this “wicked” problem will not resolve itself without policy interventions.⁴

As the discussion below will show, it is generally accepted that not all the water physically available should be allocated. The definition of water scarcity is complex and includes taking into consideration when water is available, the location of water, the ease of obtaining access to water and the water quality.⁵ Water scarcity can be measured on a scale of water availability per capita. The Falkenmark Water Stress Indicator provides a threshold of 1,700 cubic metres of renewable water annually for each person in a country as a minimum requirement.⁶ According to the indicator, countries below this threshold are experiencing “water stress”, countries with a level below 1,000 cubic metres have “water scarcity” and finally countries below 500 cubic metres have “absolute scarcity”. The different measures are an indicator of physical water scarcity.

Water scarcity defined from a hydrological perspective makes a clear connection with the water cycle. Hydrological studies assert that both surface water and groundwater supplies are placed under increased pressure as demand increases. They confirm that groundwater supplies are particularly vulnerable as groundwater storage “provides a natural buffer against water shortage”.⁷ However, groundwater depletion is more difficult to observe in comparison to surface water depletion and demand for groundwater increases when surface water supplies are inadequate.⁸ These themes are also present in the example of Australian water law reform in the Murray-Darling Basin.

The more commonly used definitions of water scarcity in water allocation policy focus on economic water scarcity rather than on the physical water scarcity discussed above. Even within the literature on economic water scarcity, there is “no commonly accepted definition of water scarcity”; however, there are factors that can be taken into consideration to measure water scarcity.⁹ These include the human and environmental demand for water and whether there is adequate water available to meet those needs. Water availability also depends on the variable weather patterns. Economic concepts of water scarcity attempt to measure and model the demand and availability of water before it becomes physically scarce. Ultimately, all measures of water scarcity form the context of water allocation law and policy which aims to allocate a predetermined limit of water across users.

The definition and measurement of water scarcity are relevant to understanding the water law and policy of Australia and New Zealand as there are relative differences in the type of water scarcity experienced by each country. On the one hand, the Australian experience relates generally to physical water scarcity for the environment alongside economic water scarcity for irrigators and other users,¹⁰ whilst, on the other hand, urban demand for water would be an example of water scarcity in relation to basic human needs. In contrast, New Zealand is experiencing problems with over-allocation and limited means to reallocate water to higher- value uses.¹¹

Global responses to the water scarcity problem

A key problem is the ability to deal with increasing global scarcity of water as human demand increases. The challenges are identified as developing good freshwater management practice, changes in hydrology and the growing demand for freshwater.¹² One solution put forward by the United Nations is to focus on water in the Sustainable Development Goals. In 2014, the United Nations released its revised goals for global development which include the sustainable use of water.¹³ The “water-energy-food nexus has become central to the discussions” on developing and implementing these goals.¹⁴ The United Nations Water branch provides support to countries implementing water reform and will monitor the goals.¹⁵ In September 2016, the United Nations released an “Action Plan” for water based on Sustainable Development Goal 6 for the “availability and sustainable management of water and sanitation for all”.¹⁶ Goal 6.4 measures the available quantity of water but it also needs to make a stronger link with water quality.¹⁷ The High Level Panel responsible for delivering Sustainable Development Goal 6 includes political representatives, including the Prime Minister of Australia.¹⁸ The inclusion of political representatives therefore shows that water allocation is also a political problem.

The High Level Plan on Water defined water needs broadly; these range from water for sanitation and safe drinking to planning for water for the future. The plan identified risks from adverse events such as droughts and floods that are more likely to occur in the future. In addition, demographic changes and decisions about how water is allocated will contribute negatively to the problem of water scarcity on a global scale:¹⁹

Changes in human populations and settlements, as well as increasing demand for agriculture purposes will exacerbate scarcity problems, as will poor decisions on water allocation and use. 45% of total GDP is projected to be at risk due to water stress by 2050.

This statistic on water allocation illustrates the extent to which freshwater allocation is a fundamental global issue. The United Nations is focused on finding solutions that rely upon good decision making to address water scarcity problems by taking into account the interrelationships in the water-energy-food nexus.

Despite international commitments to addressing water scarcity, problems with developing a targeted water policy remain:²⁰

The political commitments acknowledge[d] the important role water plays in sustainable development. However, the discourse of water and sustainable development homogenises the problem of water scarcity, when in fact the causes of scarcity are not uniform and not simply a matter to be solved through mechanisms to deal with economic goods.

The water-energy-food nexus requires an analysis of factors such as the input of energy into water systems. A water system can be “energy intensive” in itself if water needs to be moved across long distances²¹ and includes, for example, the use of desalination plants, which are recognised as an “energy intensive approach to freshwater production”.²²

On the other hand, it is also important to recognise water inputs into energy systems. Any decision to establish an energy plant should take into account the “total amount of water, calculated on a whole-system basis”²³ which, in practice, means that a commitment to increase biofuels should include the total amount of water used to grow the biofuel crop, if that is the source of the fuel.²⁴ Many of these calculations are based on economic theory or models. The use of economics as a means to address water allocation issues is examined in more detail in the Australian chapter.

New Zealand and Australia’s response to managing water

New Zealand and Australia have both made efforts to introduce principles of sustainability to their environmental law.²⁵ Australian studies have identified continued improvement in sustainability outcomes in a multi-level governance framework which relies heavily on effective state cooperation.²⁶ An empirical study of principles of ecological sustainability in water plans shows that sustainability was an important factor in developing plans for the Murray-Darling River Basin in Australia.²⁷ New Zealand’s commitment to sustainability in the purpose section of the RMA is well documented.²⁸ On the other hand, there are also accounts of the challenges to implementing sustainable water allocation, particularly from a governance perspective.²⁹ As in Australia, the implementation of water law reform from the national to regional level are issues at the forefront of challenges to sustainable water allocation in New Zealand.

The primary legislation regulating water allocation in New Zealand is the Resource Management Act 1991 (RMA). At the time it was implemented, the Act led the world in implementing principles of sustainability in environmental planning and natural resource allocation.³⁰ Extensive environmental law reform preceded its enactment with expectations that it would improve resource allocation, including water allocation.³¹ However, the reality has been quite different. It is now clear that the current problems with water allocation under the RMA were unforeseen and over-allocation is one of the problems to emerge from this context.³²

The problems facing New Zealand water allocation law and policy are due to several contributing factors. The most predominant of these factors is the failure to fully implement the RMA. For 20 years, from 1991 until 2011, New Zealand did not have national guidance on water policy.³³ During this time, a “gap” in water allocation law and policy existed. Under the Resource Management Act 1991 (RMA), central and local government had the statutory fu...

Índice

• Cover
• Half-Title
• Series
• Title
• Copyright
• Contents
• 1 Introduction
• 2 The water allocation policy gap 1991–2011
• 3 New Zealand water allocation law and policy after 2011
• 4 Australian water allocation law and policy
• 5 Comparative analysis
• 6 Conclusion
• Index