Govt buys freshwater fight which might come back to bite

Analysis: “The process has been a shocker,” Chris Bishop declared in 2019.
National’s MP for Hutt South – a regular attack dog on proper parliamentary process – was debating the Labour-led government’s amendment to the Electoral Act aimed at restricting donations from overseas people to political parties and candidates.
It was a sensible bill, Bishop said in the house of representatives, using an appalling process. Parliament sat under urgency on a Tuesday night and Wednesday morning to push through an amendment without waiting for the justice select committee’s report.
“It’s true that the committee has sat on these issues for quite a long time,” Bishop said.
“But we on this side of the house do not believe that justifies the government, basically, in the case of the minister, throwing a tantrum and deciding that, because he’s the minister and, by definition, he’s got the numbers in the Parliament, he can just basically take an idea, turn up to the house, and decide on Tuesday morning, ‘Oh well, I’ll put the house into urgency and we’ll ram it through and we’ll pass it through all stages by Wednesday morning, by half past 12 before the house lifts for lunchtime’.”
Bishop became a self-appointed sheriff on poor process while in opposition, tearing strips off the government for, among other things, not consulting opposition parties, the misuse of urgency, and having mere minutes to read the explanatory note of a bill. He used words such as unacceptable, pernicious, and disgrace.
Another stickler for due process was National’s long-time Rotorua MP Todd McClay, who, in 2021, decried a “travesty of justice … and of democracy” when the Fair Trading Amendment Bill wasn’t referred back to the select committee.
“A question to members opposite and to the minister is: why will he not allow the select committee, or why will government members not allow the select committee, to do its job properly, to improve the legislation and get it right, if this is so very, very important?”
With the shoe now on the other foot, with Bishop and McClay as ministers, the coalition Government’s track record on good process has been, using their own language, something of a shocker.
At the head of the list would be the fast-track bill, in which ministers were involved in selecting projects, added to a special schedule after public submissions had closed. But there have also been rushed changes to minerals laws, and a last-minute amendment to gang legislation.
The Government’s gazumping action this week over Otago’s water gives an insight into the lengths it appears willing to go to pursue a pro-agricultural agenda.
On Tuesday, a day before a crucial vote by Otago regional councillors, ministers announced the Resource Management Act Amendment Bill would be altered to restrict councils’ ability to notify water plans while the Government overhauls the freshwater management system.
It’s an extraordinary intervention – pushing a council to slow its protection of water, while, at the same time, providing a fast-track for new developments up and down the country, many of them environmentally harmful. (Bishop has previously argued, regarding the fast-track, the Government is unapologetically disrupting the system.)
Councils already had an extra three years to notify their water plans, but Otago’s council wanted to push ahead, leading to a protacted to -and-fro with Environment Minister Penny Simmonds.
The late amendment is undoubtedly inadequate process – of the kind criticised by former opposition members now in power. Why was it done?
To provide certainty to farmers, McClay said, that planning efforts are in sync with national direction – so councils don’t waste time and resources developing plans that will soon be superseded. Bishop dismissed the previous government’s national policy statement for freshwater management as “complex and expensive”, and said it wouldn’t deliver the expected environmental outcomes, anyway.
Simmonds provided a get-out clause – saying she would approve limited exemptions.
Federated Farmers vice president Colin Hurst called it a “huge win” for his organisation, arriving just in time to frustrate the Otago council’s notification plans.
Otago’s new plan was seen as important because of degraded water quality, in areas of highly intensive agriculture but also of urban pollution. An Otago Regional Council analysis said increasing nitrogen and E.coli levels over the past 20 years indicated the existing land and water plan “has not managed water quality or land use intensification adequately”.
By stepping in – the same day a Crown observer was appointed to the Wellington City Council – the Government has been accused of trampling over democracy. But it has also stomped on its own words.
Just last month, Simmonds told Newsroom she hadn’t directed the regional council to pause notification of its plan. “When to progress or delay plan development is ultimately a decision for each council to make, and I am sure councillors will be carefully weighing the costs and benefits.”
There’s an argument for council policy to align with that of central government. But this usually trickles through over years, so the public, and affected industries, can have input.
Jacinda Ardern’s government took almost three years to develop a new national policy statement for freshwater management, with input from the public and a wide range of groups, including organisations representing agricultural interests. That signalled a change to be implemented over years, starting with changes to regional council plans – which have their own consultation process.
Imagine if, in 2018, Labour (albeit in coalition) had ripped up freshwater plans within a year of being elected, and demanded councils halt water plans so the environment could be better protected. Bishop and McClay would have had much to say.
(In a moment of refreshing candour, Bishop, the Minister for RMA Reform, initially described another change to freshwater policy, on waste discharges, as “quick and dirty”.)
The specific background to Otago’s plan is important.
Many permits date back to the era of gold mining, when huge amounts of water were taken to sluice for gold. Re-directing those water-takes to farming has exacerbated issues of quality and quantity in some areas, as technology allowed for more intensification, fertiliser application, and an increase in livestock.
In 2019, Environment Minister David Parker appointed retired judge Peter Skelton to investigate the council, which was struggling to replace those mining-era water permits, an issue that had loomed since the Resource Management Act came into force in 1992. Skelton found the water plan wasn’t fit for purpose.
Months later, an Environment Court decision, over water allocation in the Lindis River, found the region’s existing water plan was inconsistent with the RMA.
Parker tells me: “There has been a need to fix the plan, irrespective of who was in government.”
Otago’s draft plan didn’t emerge out of thin air. The council has spent $18 million, and countless hours consulting the community, developing a draft plan, as directed by the previous government. Under law, councils must give effect to national policy statements “as soon as reasonably practicable”.
Now, that’s all gone up in smoke.
In the house on Wednesday, during the bill’s third reading, Simmonds said the restriction was necessary to avoid the duplication of effort by councils, and to give certainty for resource users. In a statement, issued soon after, McClay mentioned improved profitability as a justification.
In response, Rachel Brooking, Labour’s environment spokeswoman, accused the Government of taking a slow-track towards environmental protection, while Parker railed against the “appalling process” of slipping in changes to section 107 of the RMA.
Marnie Prickett, a research fellow at the University of Otago/Wellington’s department of public health, says Otago’s draft plan would have placed targets for improving waterways. “It is intended to ensure that waterways continue to flow with enough water in them for fish and other life.”
Opposing natural limits isn’t good for nature or communities, nor for farmers and irrigators, she says.
“I’m appalled at the actions of the Government. It has consistently shown contempt for evidence and a willingness to bulldoze communities and councils when they don’t agree.”
Nicola Wheen, a law professor at Otago University, doesn’t know a lot about the regional council intervention, but is firm in her more general views. “I’m not sure you’d want to get me started on the environmental harm this Government is causing and its thoroughly wrong way of doing things.”
Similar accusations were made against John Key’s government, which sacked Canterbury’s regional council and installed commissioners, leading to a huge increase in irrigated land, fertiliser application, and cow numbers in the province. Nationwide, it handed out more than $100 million in taxpayer-funded loans for large-scale irrigation projects.
Meanwhile, in the lead-up to the 2017 election, it was criticised for being tricky with weaker standards for swimmable rivers.
Parker, the Labour MP and former minister, claims the most important environmental issue at the 2017 election – when Ardern rode a popular wave and a deal with NZ First into power – was water.
The coalition has two years before the next election to prove its worth. Many voters will no doubt vote with their pockets – on the state of the economy, mortgage interest rates, public spending and government debt. But freshwater – an issue this country is taking heat on overseas – is likely to be important, too.
To avoid a repeat of 2017, this Government will need to articulate to the public – and farmers – how it intends to improve the state of freshwater, and when improvements will be seen.