Improving water allocation law and policy in New Zealand: Lessons from Australia

Abstract

The main research question in this thesis is what lessons can New Zealand learn from the Australian experience in water allocation? In order to answer this question the thesis first examines the current water allocation law and policy problems in New Zealand. New Zealand has problems with over allocation and a lack of mechanisms to transfer water. There are also more complex issues relating to the lack of systematic planning for water allocation across New Zealand catchments and the consequences of the “first come, first served” method of water allocation that applies under the administrative provisions of the Resource Management Act 1991. Much of the water allocation literature has an economic or scientific perspective. For that reason the thesis also examines key terms such as “scarcity” in order to fully understand its various dimensions within the literature. The thesis also makes it clear that legal problems relating to how to regulate water allocation require legal analysis. Hence the economic and scientific literature inform the analysis but do not form the primary basis for the analysis. The method of analysis is conventional legal analysis between New Zealand and Australia. The thesis continues by examining the key characteristics of the recent Australian water law reforms of the last 20 years. The analysis shows that implementing law reform for water allocation has been fraught with constitutional barriers as it tried to work across political state boundaries within the Murray Darling Basin. The Australian approach of co-operative federalism has played a key role in supporting the implementation of the reforms in the National Water Initiative 2004 and Water Act 2007 (Cth). The implementation of the reforms are also examined at the state level. The analysis of the Australian water law reform provides a rich source of lessons for New Zealand. The analysis shows that Australian reform was based on firm legal foundations. There was independent oversight of the reform implementation by the National Water Commission. Water allocation information was recorded on a water register which could include information relating to water securities. The actual water allocation was aided by the creation of many water products. Water allocations could be distinguished on the basis of a right to receive water at a site, a delivery right to use water infrastructure, temporary allocations and allocation based on a percentage of the total amount of water available in a catchment. These innovative features of water law and policy ought to be considered as possible features to introduce in New Zealand water law. There are also cautionary lessons from Australia. More recent reviews of the changes to water law reform, including the disestablishment of the National Water Commission, are critical of the Australian government in undermining the progress that has been made. Allegations of water theft and a lack of compliance monitoring are so serious that there has been a Royal Commission by the South Australian government. There is the potential that the reforms could be undermined significantly if state support falls. The lesson from New Zealand from these points is equally if not more important. It shows that regardless of how much is invested in water law reform, compliance and monitoring of water allocation need to be addressed urgently whenever the issue arises. New Zealand also has allegations of water theft and a lack of compliance with the water metering regulations. A strong compliance culture for measuring water takes is essential to the long-term success of water allocation law reform.