The freshwater framework for water rights and the Three Waters reform programme

August 7, 2023



water droplet making a splash in blue water

The freshwater management framework for water rights is a set of policies, regulations, and processes that govern how freshwater in New Zealand can be used, allocated, and protected. Here are some of the key components of the framework.

The Resource Management Act 1991 (RMA)

This is the main legislation that provides for the sustainable management of natural and physical resources, including freshwater. The RMA establishes the roles and responsibilities of central and local government, as well as the rights and obligations of water users, in relation to the use, damming, diversion, taking, or discharge of water.

The National Policy Statement for Freshwater Management 2020 (NPS-FM)

This is a policy statement issued by the Government under the RMA that sets out the objectives and policies for freshwater management in New Zealand. The NPS-FM requires regional councils to identify and manage freshwater in accordance with freshwater management units (FMUs), which are water bodies or parts of water bodies and their related catchments that are appropriate for freshwater management and accounting purposes.

Freshwater ownership

The ownership of freshwater is an unresolved issue in New Zealand. British common law says no one owns it. However, there are different views on Māori rights to freshwater, based on the Treaty of Waitangi and customary rights. The Government has stated that no one owns freshwater, but that Māori have interests and rights in freshwater that need to be addressed through a fair and durable process.

However, there are a number of issues regarding this framework for water rights. First, the framework is complex and inconsistent. It involves multiple layers of legislation, policy, planning, and decision-making at different levels of government and across different regions.

The framework also lacks clarity and certainty. This creates confusion for water users, investors, regulators, and the public about the rules and processes for water allocation and protection. It is inefficient and ineffective, which results in delays, costs, conflicts, and litigation over water issues, as well as poor environmental outcomes and social impacts. The framework also fails to recognise and address the interests and rights of Māori in freshwater, as well as the values and aspirations of other stakeholders and communities.

Improving the framework

There are many possible ways to improve the framework, but some of the common suggestions are:

• Simplifying and streamlining the framework.

• Recognising and addressing the interests and rights of Māori in freshwater, as well as the values and aspirations of other stakeholders and communities.

• Increasing the use of good management practices, innovation, and technology to improve water quality and quantity.

• Encouraging more collaboration and participation among different sectors and groups in freshwater decision-making.

• Supporting regional councils and unitary authorities to implement the National Policy Statement for Freshwater Management 2020 (NPS-FM) and the National Environmental Standards for Freshwater 2020 (NES-FW) in a timely and consistent manner.

• Monitoring and evaluating the outcomes and impacts of the freshwater management framework on a regular basis.

Three Waters Reform

With this in mind, the Government has launched the Three Waters reform programme. This is a public infrastructure restructuring programme to centralise the management of water supply and sanitation in New Zealand.

It has three key pillars:

• The establishment of a dedicated water service regulator, Taumata Arowai;

• the regulatory reforms outlined in the Water Services Act; and

• the reforms to water delivery services.

The Government has proposed to shift the delivery of three waters services from 67 councils to four new, multi-regional entities that can borrow enough to fund New Zealand’s water infrastructure upgrades, both now and in the future. Water assets will remain publicly owned by councils, who play a key role in the entities’ governance and priority-setting processes. The Government has also passed the Water Services Act (mentioned above), which sets out the functions and powers of Taumata Arowai, the new water service regulator. Taumata Arowai will oversee and enforce the drinking water standards, as well as monitor and report on the environmental performance of wastewater and stormwater networks.

The programme faces opposition from some politicians and mayors. They argue that it will weaken local control and coordination over water services, alter water services funding, governance, and regulation, which may affect water services affordability, accessibility, and equity for some consumers, especially rural and vulnerable ones, increase compliance costs and burdens for water service providers and users, and create potential conflicts with existing regulatory frameworks and agencies.

Some of the arguments in favour of the programme are that it will improve the quality, safety, reliability, and affordability of water services in New Zealand, recognise and respect the Crown’s responsibility to give effect to the principles of Te Tiriti o Waitangi, and address the interests and rights of Māori in freshwater, enable more strategic long-term investment in water infrastructure (which is estimated to require between $120 billion and $185 billion over the next 30 years), create new career opportunities for people who work in the water industry, put Te Mana o te Wai – the health and wellbeing of water – at the centre of what they do, taking a wider catchment-based view of water systems than is currently the case.

Though the Government had hoped to have the Three Waters reform programme settled this year, it is still an ongoing issue.