He Whakaaro
The end of the beginning for Te Waihora?

nā Tom Bennion

Te Waihora (Lake Ellesmere) has for decades been heavily polluted by farming practices that draw off groundwater in the summer, diminishing flows into the lake, and by contamination through nitrogen runoff, lead to algal blooms.

As a site of great importance to Ngāi Tahu, Te Waihora was a focus of the Treaty settlement, which returned the bed of the lake to the iwi. Efforts to clean it up have been ongoing for many years.

In April 2015 a hearing panel of the Canterbury Regional Council issued its decisions on the Te Waihora/Lake Ellesmere catchment plan, which goes by the technical name of “proposed Variation 1 to the proposed Canterbury Land and Water Regional Plan”. The plan has a significant vision: “To restore the mauri of Te Waihora while maintaining the prosperous land-based economy and thriving communities.”

We are used to river and lake settlement legislation such as the Waikato-Tainui Raupatu Claims (Waikato River) Settlement Act 2010 and Te Arawa Lakes Settlement Act 2006 providing that iwi views should be given a high priority over water bodies. However, this is perhaps the first time that a community has collectively arrived at a similar outcome without legislation directly requiring it.

The vision was drafted and approved by a community committee made up of representatives across 12 community and industry sectors, with Ngāi Tahu one of those sectors. Federated Farmers, with the support of Ngāi Tahu, even asked the hearing panel to turn the vision statement into a specific objective for the plan (the hearing panel declined to go that far, on the basis that the wording was not specific enough to be an objective under the Resource Management Act 1991).

The catchment plan applies stringent limits on water takes, and forbids new water takes in some parts of the catchment. In terms of contamination, it requires most farms in the catchment to implement nitrogen measuring plans immediately. Over a period of roughly two decades they will be expected to manage nitrogen levels down to a limit of 15 kg of nitrogen per hectare per year. Te Waihora, its margins, and tributaries are recognised as a cultural landscape and Value Management Area, and there are accelerated timeframes for nitrogen management in that area. Existing farms that do not meet the 15 kg of nitrogen per hectare limit will be put on a clean-up schedule that involves “implementing management practices that are at least halfway between good management practice and maximum feasible mitigation.” The plan has one major “gap” in that it allows existing farms to argue on a case-by-case basis for an extension of their timeframes for compliance potentially as far out as 2037. However, new irrigation in the catchment, expected to be around 30,000 hectares, will have to meet the new nitrogen limits almost immediately. There is a rule absolutely prohibiting existing and prospective farm operations over certain high nitrogen limits

[The Te Waihora/Lake Ellesmere catchment plan] is a testament to what can be achieved by Māori and non-Māori communities working together within the RMA.

Big issues remain, such as the fact that most of the existing ground water consents in the catchment don’t come up for renewal for some years, and some of the rules on minimum river flows don’t take effect until 2025. There are also issues about how quickly the existing farming operations can be cleaned up, how much new intensive dairy farming in the catchment is really possible, and whether the expected increase in droughts from climate change will require even tighter limits on water use (technical evidence before the hearing panel noted that climate change had been poorly modelled). Appeals on the decision closed on 29 May 2015, and they will have to be worked through.

Water quality problems, particularly those caused by farming, have been known about since at least the 1950s. At that time, proposals to put milking shed effluent to land were discussed in the newspapers. This latest plan is a further sign that the very long delay in even beginning to seriously address the problem is over for most of the country. As Winston Churchill put it, this is, “…perhaps, the end of the beginning”. It is also a testament to what can be achieved by Māori and non-Māori communities working together within the Resource Management Act framework.

Tom Bennion is a Wellington lawyer specialising in resource management and Māori land claim and Treaty issues. Formerly a solicitor at the Waitangi Tribunal, he is the editor of the Māori Law Review. He recently wrote a book titled Making Sense of the Foreshore and Seabed.