Aotearoa Water Action

Water Bottling

As reported in Watchdog 164 (December 2023) Aotearoa Water Action (AWA) has won its six year-long battle with the bottlers. The Supreme Court ruled that Canterbury's Regional Plan does not allow the historical water permits to be repurposed for water bottling, and so the consents that allowed foreign-owned Cloud Ocean Water Ltd and Southridge Holdings Ltd to bottle more than eight billion litres of water annually were quashed.

If those companies still want to bottle water, they will require new "take and use" consents in a region where new "take and use" consents are prohibited because the catchment is fully allocated. AWA is now watching to see whether Environment Canterbury (ECan) will review the historical consents and "claw back" the unused allocation or whether the companies will surrender their permits and immediately apply for new ones.

AWA is also waiting to see how ECan proposes to address the consequences of the Cloud Ocean decision through an upcoming regional plan review. Given the purpose of the Resource Management Act (RMA), new rules will need to deliver sustainable management in the context of scarce water and a growing population. That should mean a new rule and policy framework to ensure the efficient allocation and reallocation of water to activities that deliver the best social, environmental, cultural, and economic benefits. However, with the current Government's focus on property rights and its intention to put new freshwater and resource management legislation in place, nothing is certain.

In news from the north, Sustainable Otakiri is still waiting for a decision on its case against the Whakatane District Council and bottling company Otakiri Springs Ltd. The decision should deliver important case law on a number of matters including consideration of the effects of plastic production, causation or "nexus and remoteness", and "transboundary" effects under the RMA. Hopefully we can give you an update on that in a future edition.

Foreign Investment In Water & Fast Track Consenting Bill

By limiting the rights of water permit holders, the Supreme Court's decision in Cloud Ocean may have made investing in our water somewhat less attractive to foreign investors. However, for "significant" projects, the Government's Fast Track Consenting Bill would solve the "prohibited activity status problem" created by Cloud Ocean. That's because if the Bill is passed as drafted, "nationally or regionally significant projects" will be able to apply for resource consent for "prohibited" activities - including for new permits to take and use water in overallocated catchments.

AWA can see potential problems with this approach - including negative consequences for existing water users, our economy, and for the Government. Consider Canterbury. Currently, no business in the region can apply for a new consumptive water take. The situation is that if you want "new" water you need to pay for it - either by buying land with a water permit or by buying water through a water trading scheme.

But if the Fast Track Consenting Bill is passed as drafted, a company proposing a "nationally or regionally significant project" will be able to apply to take water beyond catchment allocation limits. And if consent were to be granted, that water be available at no cost. Other water users may then see their already-paid-for allocations "clawed back" by the regional council to ensure catchments do not breach defined allocation limits. In short, because water is scarce, the Ministers would be picking "losers" as well as "winners". And those "losing out" may well be the Government's farmer constituents.

Another issue arises from who the "winners" might be. The Parliamentary Commissioner for the Environment has raised concerns about the privileged access to consenting that the Bill gives to what he calls the "big end of town". AWA's concern is that given the requirement for projects to be nationally or regionally significant (i.e. large and expensive), it's likely that Ministers will regularly be giving a consenting "leg up" to foreign investors.

Transnationals Getting A "Leg-Up"

In other words, and to borrow a phrase from Minister Jones, "garden variety Kiwis" may not have the same level of access to water and may end up paying more for water than "industrial-variety" foreign corporates. This raises questions about fairness and about the potential "leakage" of profits from our economy as a result of foreign companies getting a consenting "leg-up" and preferential access to limited water resources.

But the most significant question that arises from the picking of "winners" and "losers" is whether any of this is even possible given the Crown's obligations under Te Tiriti. We know that better water allocation legislation is a can that's been kicked down the road by successive Governments; when asked at a Local Government New Zealand Zone Meeting why the Natural Built Environment Act (NBEA) hadn't addressed water allocation, then-Minister Parker literally threw his arms in the air and said, "I can't do everything".

For the last Government, the issue of Māori rights and interests in water was so fraught that the NBEA didn't even define the resource allocation principles. And yet this Fast Track Consenting Bill suggests that three Ministers might get to decide who gets access to scarce free water and who doesn't. Unless changes are made. AWA submitted against the Bill and will be keeping an eye on the outcome of its second reading.

Watchdog - 166 August 2024