Water Resource Management and Environmental Policy Reform in New Zealand: Regionalism, Allocation, Indigenous Relations [Part II]

Colorado Environmental Law Journal Colorado Environmental Law Journal

Volume 7Number 2

Article 4

Water Resource Management and Environmental Policy Reform in Water Resource Management and Environmental Policy Reform in

New Zealand: Regionalism, Allocation, Indigenous Relations [Part New Zealand: Regionalism, Allocation, Indigenous Relations [Part

II] II]

Lloyd Burton

Chris Cocklin

Water Resource Management and Environmental Policy Reform in New Zealand: Regionalism, Allocation, and Indigenous Relations

Lloyd Burton' Chris Cocklintt

PART IF

I. INTRODUCTION

The native landholders, in such parts of the country that I have visited, continually request me to purchase land among them, and.., to invite settlers on the soil, [often saying] that the only way to prevent the native population from... warring against each other, was for Europeans to live among them, and raise new wants among the tribes, and by that method, employ their minds and bodies, especially for the scraping offlax and cultivating the neglectedsoil.

Joel Polack, 1838.'

Englishmen give us blankets, powder and iron pots, for our land, but soon we blow away the powder, the iron pots get broken, and the blankets wear out, but the land never blows away, or wears out.

Chief Pomare, 1839.2

Joel Polack was a British trader involved in early colonial land speculation in New Zealand, and Pomare was a prominent Maori leader on the country's North Island. Their comments preceded by about two years the signing of the historic Treaty of Waitangi between the British Crown and some Maori chiefs (Pomare not among them), and by two decades the bloodiest conflict in New Zealand history between the Maoris and European settlers over control of land and resources?

The trader's assertion that acquiring title to native lands and creating indigenous dependence on a developing colonial economy was an act of beneficence may seem outdated and somewhat self-serving by today's standards, especially when juxtaposed against the views of a native leader who was distinctly unappreciative of the blessings of colonization. But in other ways, these two discordant views have a contemporary ring to them.

The one cardinal principle of environmental management that British colonists disseminated throughout their empire in the seventeenth, eighteenth, and nineteenth centuries was that the highest and best use to which one could put land and resources was also per se the most economically productive use (the importance of "cultivating the neglected soil"). And even today, among many former British colonial common law nation-states, whenever competing claims are raised over the control and use of resources, arguments of economic productivity and efficiency frequently still prevail.

Another parallel between these colonial-era reflections and presentday conditions lies in Chief Pomare's poignant observation on the ability of market transactions to sever what many Maori had considered to be an eternal relationship between themselves and their land. There is in fact ample evidence that in the early days of colonization some Maori leaders were eager to sell land to settlers, both to enhance their economic status and to increase the volume of trade with their new European neighbors. As the rate of land sales increased, by the time the Maoris realized that they were about to lose control over the majority of the country's lands, it was too late. Now in most of the ex-colonial common law nation-states of the Pacific Rim (especially Australia, Canada, New Zealand, and the United States), there is palpable tension between indigenous peoples who feel they have been

unfairly deprived of their lands, and the descendants of European settlers who believe they have acquired good title to lands and resources under the market-oriented laws and policies brought into being by their own institutions of government.

The principal difference between colonial times and the present day is that in each of these four countries, modem-day environmental policies do recognize management values other than purely market-oriented ones-values such as respect for nature and the perceived need to balance the material needs of current generations against those of future ones. Ironically, these are similar to norms and practices being observed by most indigenous peoples at the time they were colonized.

This is Part II of an article in which we explore in depth some of the issues just mentioned. Our subject is the implementation of environmental policy reform in New Zealand as reflected in passage of its historic Resource Management Act (RMA) of 1991. Both to keep the scope of the subject within manageable bounds, and to facilitate comparison with similar developments in other common law nation-states of the Pacific Rim, we have narrowed our inquiry to the management of one resource-water. Furthermore, we have chosen to focus on three issues that are also of great contemporary relevance in Australia, Canada, and the United States (US). These are: (1) principles of resource allocation, (2) regionalism and interregional relations (as moderated by national policy), and (3) relations between indigenous peoples and neighboring nonindigenous resource managing institutions.

In Part I,' we discussed in general terms how RMA divided the country into watershed-defined regions as the principal political jurisdiction for water resource management decisions; how the RMA generally governs the allocation of water; and how it provides for Maori participation in environmental decision making. In the interests of space, we will not recount that discussion here but instead refer the reader to Part I. Our purpose here in Part H is to apply the general concepts and principles of RMA interpretation to two in-depth case studies, the conclusions from which we hope will give readers some insights into how the RMA is performing so far and how it may benefit from some fine-tuning either in its statutory language or implementing guidelines if it is to achieve its stated goals (essentially, the sustainable management of the New Zealand resource base within the nation's unique cultural context) more successfully in the future.

These two cases-one involving water project development in one of the country's more remote pastoral regions (the Mangakahia River case)

(Vol. 7:2

and the other the provision of water to the nation's largest metropolitan area (the Auckland water shortage)(see fig. 1)--at first appear to be a study in contrasts. But as their respective stories unfold, it will become apparent that they also have similar lessons to offer concerning future implementation of the RMA in New Zealand and the handling of similar water resource management decisions in similarly situated nation-states around the Pacific Rim.

II. RURAL IRRIGATION: THE MANGAKAHIA RIVER

A. Background

Through the early 1990s, interest has intensified among landowners in Northland, New Zealand, in the development of plans for the irrigation of dairy pasture. There are expectations that the productivity of dairy herds will improve, as a function of both an extended lactation period and of improved animal condition. In 1993, a consortium of landowners submitted applications for several consents under the RMA for the damming and abstraction of water from the Mangakahia River and its tributaries to enable the irrigation of dairy pasture on twenty-five properties.

In many ways, the Mangakahia irrigation proposals constitute a very different case than the Auckland water shortage, which we discuss subsequently. The Mangakahia proposals represent an example of RMA implementation in a context anticipated and provided for under the legislation. By contrast, the second part of our discussion refers to a perceived water supply crisis, which almost led to the putting aside of the RMA under special emergency provisions. In spite of this important contextual difference, the two situations embody the same general themes, concerning alternative interpretations of the foundation principle of the legislation ("sustainable management"), the nature of intergovernmental relations, issues of resource allocation, and observance of the principles embodied in the Treaty of Waitangi.

B. The Perceived Need for Irrigation Projects

Dairying is an important component of Northland's land-based economy and is one of the mainstays of New Zealand's export-oriented primary produce economy. Restructuring of the national economy through the 1980s and 1990s (particularly the removal of agricultural subsidies) combined with shifts in international commodity prices have favored dairying in land-use competition. Predictions of significantly higher returns to dairy production under the new GAT[ agreements have also backed recent commercial interest and investment. Consequently, stock numbers have increased over the last five years. This follows an earlier period of decline, particularly in the face of competition from other forms of pastoral production (especially beef) and because of the withdrawal of subsidies through the mid- to late 1980s.

Relative to other major dairy-producing regions of New Zealand, Northland farms have lower production levels (on both an area and stock unit basis). This has been attributed in part to the summer drought condi-

tions. I Although changes in a wide range of management practices have helped through time to improve productivity levels, a view that has emerged quite strongly in recent times is that the irrigation of dairy pasture would bring about a significant quantitative shift in production.

Therefore, the high level of interest among landowners in the irrigation of dairy pasture is not surprising. A recent newspaper report suggested that more than 100 farmers are developing proposals for irrigation projects, at an estimated combined cost of NZ $30 million.6 The same newspaper report referred to proposals for a large dam, which would supply water for irrigation to an additional 250 farmers in the region.7

C. Regional Policy Context

As we noted in Part I, the regional policy statement (RPS) establishes the broad context in which resource allocation decisions will be taken in terms of objectives, policies, and methods of implementation. In its proposed form, the RPS of the Northland Regional Council (NRC) contains several objectives relating to the use of water and refers explicitly to pasture irrigation. There are policy objectives concerning, for example, the maintenance of the natural flows and levels in streams and rivers that are recognized as having high ecological, cultural, or scenic values, or which are recognized as having significant cultural value to the Maori. I

One of the RPS policy statements refers explicitly to the use of water for pasture irrigation. In the explanatory paragraphs, the Regional Council observed:

The irrigation of pasture requires quantities of water which are individually or cumulatively large in relation to the flows of Northland streams. A large number of applications for consent to take water for pasture irrigation have been made, and many more are possible. It is therefore considered necessary to have specific statutory policy on which to guide decisions on those applications.9

The policies themselves refer to maximum irrigation rates, the prioritizing of competing applications, mitigation measures, and the duration of resource consents.

D. The Proposals

The catchment of the Mangakahia River extends over approximately 800 square kilometers of central Northland (see fig. 2). The river flows to the south, draining eventually into the Kaipara Harbour on the west coast. Land use in the catchment is a mixture of pastoral farming, plantation forestry (primarily Pinus radiata), and indigenous forests. Dairy farming is located primarily on the river flats and on the more moderate slopes of the valley.

Water quality has been affected adversely by pastoral agriculture. In

the lower reaches of the river particularly, contamination by nutrient runoff from pasture and the discharges from dairy milking sheds have made the water unsuitable for human water supply in the absence of treatment.' The

discharges from dairy sheds are believed to have only localized effects and not a significant effect on water quality in general. There are no major industrial or waste discharges into the river or its tributaries.'

In June 1993, a consortium of twenty-five farmers lodged applications under the RMA (Part VI, § 88) to dam and abstract (withdraw) water within the Mangakahia Catchment for the purposes of dairy pasture irrigation. Operating under the name of the Mangakahia Irrigation Committee (MIC), the farmers submitted their respective applications in concert. The rationale given by the MIC was that by acting as a group, the interests of the entire catchment would be better served and the group could play a role in monitoring and maintaining the conditions of the resource consents (i.e., water use permits). However, the expectation was that the consents would be issued on an individual basis. The combined applications at this time were for a total of approximately 90,000 cubic meters of water per day, for the purpose of irrigating a total of almost 2,000 hectares of pasture.'I

Because the applications were not authorized under the prevailing regional planning regulations,3 the applicants were each required to obtain a resource consent (a "water permit") under Part III, § 14 of the RMA. Under the RMA, the landowners were required to provide an assessment of any actual or potential effects of the activity on the environment and the ways in which these effects might be mitigated.

As the consent authority, the NRC was bound under Part VI, § 104 of the RMA to consider, in making a decision, any actual or potential effects of proceeding with the proposals as well as any relevant rules, policies or objectives of a regional policy statement or plan.4 Section 104 further required that the consent authority must have regard for Part II of the RMA which includes the statement of purpose and principles, matters of national importance to be considered, other matters (e.g., Kaitiakitanga, intrinsic values, maintenance, and enhancement of the quality of the environment), and the principles of the Treaty of Waitangi, as discussed in Part I.

The NRC rendered public notice of the applications5 and set an October 1993 date for the hearing of the proposals and submissions on them. Leading up to the hearing date, several MIC members withdrew their applications, and the MIC then requested a postponement of the hearings. A new hearing date was set for September of 1994. In the intervening period the number of individual applicants was reduced from the original twenty-five to seventeen. In the time before the new hearing date, the MIC commissioned a more detailed assessment of the environmental effects of the irrigation proposals.

The revised proposal was for a combined total of almost 67,000 cubic meters of water per day, to irrigate 1,533 hectares of dairy pasture. It was expected that irrigation would take place usually over the summer between the months of November and April. The volumes of water requested were based on an application rate of 4.5 millimeters per day (45 cubic meters per hectare per day), concentrated usually over an eight-hour period at night.6 The proposals were based on various combinations of direct abstraction of water from the river and its tributaries and the damming of tributary streams to create storage areas.

The benchmark figure that would guide the decisions with respect to the allocation of water was the Design Drought Flow (DDF). The NRC defines the DDF to be the best available estimate of the natural one-in-fiveyear low flow at a specified location. The Council's proposed policy with respect to the maintenance of river flows specifies that no less than seventyfive percent of the DDF is to be retained as a residual flow." The NRC's estimate of the DDF was 2,280 liters/second, implying under the Council's policy, a minimum residual flow of 1,710 liters/second. The applications submitted by the MIC exceeded this minimum. At an estimate that the abstractions would remove 770 liters/second, this would represent approximately thirty-four percent of the DDF which is substantially greater than the permitted twenty-five percent."s

E. Responses to the Proposals

In reaction to the public notification of the proposals, the Council received a total of twenty-three responses by interested parties. Seven of these submissions were in support of the proposals, most of which referred to the regional economic benefits that might be realized through the higher levels of dairy production. Among these were submissions from the company that

would supply the irrigation equipment, the local milk processing company (the Northland Dairy Company), the local chamber of commerce, and agricultural consultants.

Submissions opposing the proposals were lodged on three main grounds. There was strong opposition expressed by representatives of the local Maori on cultural and spiritual grounds. Their objections, expressed through several different tribal groups, were focused on three specific issues:

1. The abstraction (diversion and withdrawal) of water would be in direct conflict with Maori spiritual and cultural values, thus contravening sections of Part II of the RMA (§§ 5, 6(e), 7(a), 8).

2. There had been inadequate consultation with the tangata whenua '9

leading up to the proposals, which is arguably at variance with sections of the RMA specifying the requirement to have particular regard to Kaitiakitanga (Part II, § 7) and the Principles of the Treaty of Waitangi (Part II, § 8).

3.

Insufficient time had been given for the preparation of submissions, particularly in light of the extent of consultation.20

The proposals were objected to on environmental grounds as well. The Department of Conservation expressed concerns for the impact of abstraction under low flow conditions on river habitat and ecology and over the effects of water pumps on migrant fish. The possible effects on river ecology were the basis of several other submissions, including some from Maori tribal groups.

The third significant basis for objection was expressed in terms of the opportunity costs to other existing and potential users of the resource. The single objector on these grounds was a forestry company (Carter Holt Harvey), which has extensive plantation forestry resources in the region. Its concern was that in a region characterized by water shortages, the dairy pasture irrigation schemes might constrain the future development of other industry, including wood processing. The company's objection included this claim:

In allocating a scarce resource such as water in Northland, we submit that the Northland Regional Council must consider not only existing consent holders, and the consent(s) under consideration, but also the potential future uses to which the resource may be put.2'

F The Decision

The Council hearings on the Mangakahia irrigation proposals were held in September and October of 1994.2 Resource consents were issued to all seventeen of the applicants. The Council's Hearing Committee decided, however, that the amount of water to be allocated would be less than that applied for. The allocations granted were based on an application rate of 4 millimeters per hectare, less than the 4.5 millimeters requested.3 In addition, the Hearings Committee specified a rationing strategy that would require abstractions to reduce to an average daily residual flow in the river of 3,500 liters per second and for abstractions to cease at 3,000 liters per second. These figures represent 154 percent and 132 percent respectively of the DDF.24 The cut-off point was therefore substantially higher than the seventy-five percent of the DDF specified in the proposed Regional Policy Statement (see previous discussion). In terms of the total volume of water allocated, the decision provided for 59,000 cubic meters per day, which is about twenty percent less than the requested 67,000 cubic meters.2

There were several other conditions specified in the decision. These included a requirement to cease abstraction in the event of poor water quality (specified in terms of dissolved oxygen levels). Landowners were required to submit a riparian management plan and to implement it within one year of the consent being exercised. The landowners were required also to implement a dairy shed effluent treatment scheme within one year of exercising the consent. A monitoring regime for the river was specified (quantity and quality), and the costs of monitoring were assigned to the applicants. On this matter, the Council observed: "The cost of monitoring to date indicate [sic] that the actual and reasonable costs of this work will be a significant factor in the annual expense to the pasture irrigation proposals."6

A further significant condition imposed on the consents relates to duration. For the proposals that involved direct abstraction of water from the river, the duration of each consent was specified as five years; for those proposals based on the damming and storage of water, the duration was specified as ten years. The difference in duration awarded reflects the Council's stated preference for water storage over direct abstraction. The applicants had requested a term of twenty-five years.

The Council clearly regarded the decision to be a conservative one, not only in terms of the original proposals but also in terms of the Council's own proposed policies. The conservative approach was explained on several grounds. These included the fact that there was considerable uncertainty about the environmental effects of water abstraction, particularly at low flows. The conservative decision was justified also with reference to the expressed cultural and spiritual significance of the river to the Maori. Note was made also of the fact that there had not been widespread public consultation on the water resources of the region.27 In allocating a smaller amount of the resource, the Council asserted that the decision conformed with the stated principles of the RMA (that is, sustainable management of the resource).

G. Appeal to the Planning Tribunal

Not unexpectedly, the Council's decision was unacceptable to many of those involved. The dairy farmers were not satisfied with the quantity of water allocated and were particularly aggrieved by the duration of the resource consents. For the tangata whenua, the allocation of water to pasture irrigation constituted a loss of cultural heritage, with inevitable consequences for their tribal mana. Only the Department of Conservation seemed prepared to accept the decision, acknowledging that the allocation might be within the limits of ecological tolerance.

Consequently, fourteen of the farmers appealed the decision to the Planning Tribunal, as did the tangata whenua, represented in this case by the Mangakahia Maori Komiti (Committee). The appeal by the farmers sought relief from the Council's decision in the form of an increased allocation of water, extension of the duration of the five-year consents to ten years, and an amendment to the prescribed rationing regime under low flow conditions. Their case before the Tribunal was based primarily on evidence that the proposed water abstractions would not have significant adverse environmental effects.28

The appeal lodged before the Tribunal by the Mangakahia Maori Komiti sought the full rescindment of the consents. In support of this, they put forward three main arguments:

1. That under both the RMA and the Treaty of Waitangi, the river was a

resource of the tangata whenua and a taonga [treasure];

2. There had not been due consultation with the tangala whenua prior to

the Council's hearings on the applications; and

3. There was insufficient information on the effects of the abstractions upon river ecology and that in view of this the withdrawal of water might contravene the purpose of the RMA to promote sustainable resource management.9

The hearings before the Planning Tribunal were convened during 1995, and the decision was released in November of that year. Not only was the decision to uphold the allocation of water to pasture irrigation, but the duration of the five-year consents was extended to six years, and a larger quantity of water was allocated.0 Other elements of the Council's decision, such as requirements for effluent treatment and riparian management plans, were written into the Tribunal's ruling.3' In addition, the Tribunal ruled that the irrigation committee (the MIC) should be formally established and maintained and that a "Monitoring Community Liaison Panel" be established through the MIC, to be comprised of two members of the irrigation committee and two persons nominated by the Mangakahia Maori Komiti.

Some fundamental issues -relating to the implementation of the RMA are highlighted in the Tribunal's decision, and indeed through the various deliberations leading up to the judicial hearing. These are considered in the following discussion.

H. Implementation Issues

In this and the next case we consider (the Auckland water shortage), several issues emerge that are of significance in terms of the implementation of the RMA in general and of specific relevance to water resources in particular. In the ensuing discussion, we highlight these issues and offer comment on them in light of the Mangakahia irrigation proposals.

1. Intergovernmental Relations

One of the most important principles underlying the RMA is that the power and responsibility with respect to resource management decisions should reside primarily at the local/regional level (see Part I). It is a laudable principle in many senses, but it has put regional councils and territorial local authorities in the rather invidious position of having to interpret and apply the national RMA, including the many complex principles it embodies. To date, central government, and particularly the Ministry for the Environment (the agency with responsibility to monitor the implementation of the legislation), has taken a minimalist approach when it comes to guid-

ance in both interpretation and implementation of the provisions. This may be a conscious decision within the Ministry, based on the belief in the local autonomy doctrine.

The interpretation of Part II, Section 5 of the RMA presents the most important and significant challenge?2 There has been an intense debate within New Zealand over the interpretation of the principles and purpose of the RMA. This debate centers on whether the statement of purpose implies a balancing of environmental, social, and economic priorities, or whether social and economic issues are subordinate to the environment. Under the latter interpretation, the RMA presents an environmental "bottom-line."

A recent analysis of the interpretations of Part II, Section 5 by regional councils, as expressed in their respective Regional Policy Statements, reveals examples of these two interpretations, as well as variants that lie between them." Interest in the alternative interpretations was piqued at the 1994 conference of the Resource Management Law Association when the Minister for the Environment focused his opening address on this issue. The Minister overtly favored the environmental bottom-line interpretation:

The conservative position in this debate is that section 5 is all about balancing socio-economic aspirations with environmental outcomes. The progressive view is that the purpose of the [RMA] is to secure a particular environmental ethic.

Later in his speech, the Minister commented further:

The addition of the references to people and communities, and amenity values is significant. But the inclusion of people was not to introduce a balance or trading-off of the sustainable management of natural and physical resources."

The decision returned on the Mangakahia proposals by the NRC showed a broad consistency with the view promoted by the Minister. The NRC left a considerable safety margin relative to its own policy statements in terms of the amount of water allocated. The document conveying the Council's decision states:

The Committee concludes that the effects of the proposal on the river ecology, and in particular factors such as river temperature, nutrient input from irrigation, and macrophyte growth in the river,

are not able to be conclusively determined at this stage .... Thus the Committee is unable to fully endorse the sustainability of the proposals as presented, nor the long term effects on the river system. A cautionary approach is therefore intended in making its decision on the applications.6

These statements are borne out by several conditions that were attached to the consents. These included the aforementioned conditions relating to riparian strip management and those relating to effluent treatment, the conditions pertaining to monitoring, and especially in the relatively short duration of the consents. However, the amount of water actually allocated (59,000 cubic meters/day) represents only about twenty percent less than the amount requested. Deliberately or otherwise, the Council's expressed conservatism on environmental grounds did not severely curtail the size of the allocation.

Staff within the NRC seemed to show some relief when the decision was appealed to the Planning Tribunal. This was quite possibly a reflection of the unease over how to deal with Part II of the RMA and of how to respond to the prevailing scientific uncertainties. In having the decision referred to the judicial authority, the burden of responsibility for dealing with these immensely complex issues was effectively transferred from the Council.

In most respects, the terms of the Tribunal's decision were not very different from those set out by the Council. However, there appears to be a significant disjunction between the two with respect to the justifications given vis-a-vis Section 5 of the RMA. Whereas the Council promoted its decision as being conservative and thereby upholding the concept of sustainable "environmental" management, the Tribunal's justification hinged on an interpretation of Section 5 and subsequent sections (6-8) that the RMA is intended to provide for balance between environmental and other considerations (social, economic, cultural, and Treaty of Waitangi obligations). In this respect, the Tribunal has adopted a different interpretation of Section 5 apparently than that of the Council, and it is certainly an interpretation which is at variance with that of the current Minister for the Environment. In conveying the decision, the Tribunal said:

Paragraphs (a), (b) and (c) of s 5(2) are sometimes spoken of as 'bottom line' requirements. Yet, one's immediate inclination is not to place too much reliance upon such a catch phrase. It seems preferable to approach the three paragraphs on the footing that each is to be afforded full significance and applied accordingly in the circumstances of the particular case, so that promotion of the RMA's purpose is effectively achieved."

More telling perhaps is the justification of the decision in these terms:

... it is said that consent on the basis sought by the second appellants (the farmers) would provide, not just for their well-being, but for that of the wider Northland community from an economic perspective; further, that abstractions from the river will be conservatively managed (against a background of comprehensive conditions, including a strict monitoring regime) so as to protect the river as a resource in a way, or at a rate, which will enable Maori values and concerns to be suitably recognised and provided for.

In this statement, the Tribunal conveys a view that compromise and balance is the appropriate interpretation of sustainable management as defined in Section 5 and subsequent paragraphs. As we have already shown, this is not an interpretation that is universally held, and it seems apparent that the meaning of sustainable management in the context of the RMA will continue to be contested for some time to come.

2. Issues of Resource Allocation

The study of the Mangakahia irrigation proposals reveals another area of concern with respect to the implementation of the RMA. The Council's decision was based on a conservative and laissez-faire approach to water resource allocation-the principle of "first in time-first in right." As discussed previously, another of the major land use interests in the region-forestry-lodged an objection to the proposals primarily on the basis of the potential opportunity costs to it and other users.

The profound importance of the resource allocation decision, which is accentuated in the water-short Northland region, gets little mention in the Council reports on the proposals and in the decision that was conveyed. The one acknowledgement is presented in a veiled way: "The absence of a water management plan for the catchment has not enabled public participation in the determination of long term priorities of water use within the catchment via the planning process."39

The very same concerns with respect to resource allocation have arisen elsewhere. In the MacKenzie region of the South Island, for example, forestry and electricity generation are also likely to be in competition for water resources. In that context, the utility company (the Electricity Corporation of New Zealand) is already positioning itself to formally protest planned forestry developments.

It is left largely up to the consent authorities (e.g., the regional councils) to determine how these problems of resource allocation will be resolved. By issuing resource consents to the irrigation schemes, the potential has been created for a rather difficult problem for the future. The consents will give rise to investment-backed expectations of continuance once the initial terms of the consents expire (in six or ten years). By then, competition for water may have intensified, or the abstractions may have proven to be environmentally unsustainable. The RMA provides no guidance as to how the Council should then proceed. If the water allocations are rescinded in part or in whole, the landowners will almost certainly seek compensation. The most optimistic assessments suggest that dairy pasture irrigation could double production levels. If this is true, the demands for compensation could be high.

The Proposed Regional Policy Statement of the NRC is noticeably silent on the issue of competition for water and the approaches that might be adopted for allocating the resource. Indeed, the only guidance in this respect is the policy in regard to minimum residual flows (i.e., seventy-five percent of the DDF). The decision in the Mangakahia case leaves room for the allocation of more of the resource, relative to this policy standard. The only effect of this, however, will be to delay what seems to be an inevitable decision as to how the maximum permitted quantity will be divided among competing uses.

The implied catchment management plan (see earlier discussion) might address issues of resource allocation among competing uses and through time. These issues might arise also in the context of the meetings of the "Monitoring Community Liaison Panel" called for in the Tribunal's decision (see previous discussion), although this is not an explicitly defined role for the panel. There appears to have been little explicit debate yet in Northland on the subject of tradable water permits or alternative systems of resource allocation. It seems inevitable, however, that the Council's expressed objective to manage water resources sustainably, along with the statutory obligation to do so, will mean that the NRC will have to confront the matter of resource allocation mechanisms directly. While it may be that it will prove difficult to persist with the "first-in-time/first-in-right" principle (because of difficulties with intertemporal allocations), the alternatives (such as tradable permits) are not without their own attendant difficulties, as we argued in Part I.

A further point relating to the allocations is the rationale that underlies the Council's policy with respect to water flows. This relates particularly to the arbitrary choice of the seventy-five percent of the DDF as the policy standard. In its submissions, the Department of Conservation questioned the basis of this standard and in the Council's decision it is acknowledged that there are considerable uncertainties about abstraction at this level. This

points to another important feature of the legislative framework. The RMA is silent on the issue of scientific uncertainty and also on the burden of proof in resource consent application proceedings. In this important arena there has been little guidance given by central government to the regions as to how they might proceed. The NRC responded in this case by taking what it considered to be a precautionary approach. Important legal issues are raised by this, however, and the legislation gives little direction.

3. Maori Interests

In the document conveying the Council's decision on the Mangakahia irrigation proposals, it was pronounced that the conservative allocation satisfied the concerns of the tangata whenua. The fact that the local iwi (tribal) authorities appealed the decision indicates that they clearly disagreed.

Concerning water resources, Council policy is explicit about the importance of Maori cultural and spiritual values. In the proposed RPS, one of the significant water management issues was acknowledged to be: "The conflict between taking water and the spiritual and cultural values of water bodies to tangata whenua, the degradation of the mauri (life force), wairua (spirit) of the river, lake or wetland, and traditional food and weaving resources."' Under the statement of objectives relating to the maintenance of water quantities, cultural values are acknowledged to be one of the grounds on which natural flows should be maintained (see earlier discussion).

The documents provided by the Council at various stages in the proceedings relating to the Mangakahia proposals represent an interesting progression in the actual weight given to the importance of cultural and spiritual values, however. This progression is from an initial view that consideration of cultural values was a critical flaw in the irrigation proposals to a final position that these same cultural values were not a constraint to the allocations eventually awarded.

The report produced by Council in anticipation of the hearing when it

was first scheduled for October 1993, observed:

It is considered that taking into account the Northland Regional Council's commitment to recognize and provide for the relationship of Maori and their culture and traditions with water, the perceived benefits of granting the consents for a use of water which has not been fully proven in the Northland situation does not outweigh a known adverse effect on the cultural and spiritual value of the Mangakahia River as taonga to the tangata whenua.4'

This view was embodied in the specific recommendation of Council on the applications at that time:

That the 23 applications to take water from the Mangakahia River for pasture irrigation and its tributaries be declined on the grounds that the use of water for pasture irrigation will have a significant adverse effect on the Maori cultural and spiritual values of the river.42

Underlying this decision were the following three points paraphrased from the submissions by Maori:

1. The Mangakahia River is considered to be a taonga of great cultural

2.

and spiritual significance to the tangata whenua. The tangata whenua consider pasture irrigation to be an inappropriate use of their taonga.

3. To fulfill their role of guardianship (kaitiaki) the tangata whenua consider that they need to be included in the formulation of any management plans or consent decisions pertaining to the river.43

The document presented by the NRC leading up to the deferred hearing date a year later contained a report from Council that in most respects was much the same as that presented initially. What was substantially different, however, was that in the second document there was an implicit acknowledgement that the proposals would now be accepted. Gone was the recommendation to decline the applications, which was then replaced with the following statement:

It is considered that the Hearings Committee will need to assess the relationship of Maori and their culture and traditions with water, and weigh up the possible effects of the proposals on these values. Should the Committee having itself heard the evidence of tangata whenua, decide in favour of the applications then the following conditions are given to clarify technical issues.4

This statement was followed by list of conditions to be attached to the consents, all of which referred to technical matters regarding water abstraction and storage.

This second document correctly anticipated the decision that was eventually conveyed. The only important difference was in the amount of water actually allocated to pasture irrigation. The Council expressly believed that by diverting less water to the dairy farmers that their obligations to consider Maori cultural and spiritual values had been met. This was not the view of the tangata whenua, however.

The appeal to the Planning Tribunal by the tangata whenua referred to both the cultural values and to the lack of consultation in the course of the Council's deliberations. In the matter of consultation, the Tribunal took a very different view to that of the local Maori. The opinion of the Tribunal was that all reasonable steps toward consultation had been taken. Moreover, the Tribunal expressed the view that any further consultation would have been fruitless:

Council officers continued to involve themselves in later discussions between the irrigation committee and tangata whenua. But it was apparent that neither one side nor the other was prepared to yield, thus rendering a hearing of the applications on their merits by council inevitable.5

The local Maori quite clearly felt aggrieved in their view that there had not been adequate consultation leading up to the tabling of the applications. Of specific concern to Maori was the short notice they were given and the fact that consultation did not extend to all of the tribal groups affected by the proposals.6 The requirement to consult with Maori is expressed in Part II of the RMA, Section 8, which requires that account be taken of the Treaty of Waitangi, including the fact that the Treaty enshrines the concept of partnership. The problems with the lack of consultation were carried forward to the Council's final decision, in that the tangata whenua were not included in the formulation of the decision and its attendant conditions-this despite the fact that, in submissions from the tribal groups, specific appeal had been made for their involvement in decisions and the formulation of plans.7

What also seems to have been overlooked are the real barriers to Maori involvement and consultation. At the hapu or iwi level, there often r-ay not be people with experience in such proceedings, and this was certainly the case in the Mangakahia. Involvement in resource disputes typically relies on the voluntary participation of highly committed individuals, who are often without access to even basic infrastructure such as office equipment. Aside from these practical considerations, which in themselves are a real constraint on effective participation, another issue is that consultation is often through fora that are unfamiliar to the Maori participants (and indeed many others as well), although in the Mangakahia and in most other disputes today at least some of the discussion would take place on a marae (clan or tribal communal gathering place) and follow Maori protocols. Another, and

perhaps the most fundamental, barrier to effective consultation lies in the difficulty that the Maori confront in conveying to others their sense of cultural value.

As to the importance of cultural values, there was a widespread feeling that the Mangakahia case would be an important one in clarifying the status of Maori cultural considerations in the context of resource use and allocation. The decision of the Tribunal is undoubtedly a disappointment to the Maori in this respect.

It is significant that the Tribunal chose to cite the following statement

in the text of their decision:

The express inclusion of "cultural well-being" provides a direct link into the Resource Management Act's patent concern for consultation with New Zealand's indigenous people, the Maori, and the taking into account of Maori interests when rules and decisions are made in respect of the environment .... However, notwithstanding the obvious lead into Maori interests that the wording of section 5(2) provides, management of natural and physical resources under the Act should also be concerned with enabling the provision of cultural well-being for New Zealand's non-Maori peoples."4

It is the view that this statement conveys, along with an interpretation of "sustainable management" that allows for the entry of wider social and economic concerns that undermined the argument of the tangata whenua in the Mangakahia case. Thus, the Tribunal acknowledged the significance of the river in cultural terms:

[S]ignificance in the eyes of the tangata whenua is illustrative of the unswerving and close affinity which the tangata whenua have with the river as a life sustaining and vibrant entity.49

Nonetheless, the Tribunal concluded:

Against the background of the depth of tangata whenua feeling and concern in relation to the river as a taonga, the consent period will be such as to ensure that practical experience in irrigation can be gained and data gathered, so that the council, the tangata whenua, and the farming owners can reconsider the question of whether irrigation via the river should be continued, and if so, whether to the same degree.?

The relatively short duration of the consents, which the Tribunal perceives to be an overture to Maori cultural interests, has not appeased the tangata whenua, though. Shortly after the Tribunal's decision was released, the Mangakahia Maori Komiti lodged an appeal. Significantly, their ability to put a case to the High Court depends now on their ability to raise sufficient funds to participate in another judicial hearing. Thus, the problem of transaction costs and the parties' relative ability to pay them (discussed generally in Part I of this article) has indeed played a significant role in the Maoris' ability to advocate their interests at higher levels of legal decision making.

But perhaps most damaging to the Maori position in this litigation were the Tribunal findings: first, that their interests were but one of a number of decision factors to be balanced against one another (rather than there being a hierarchical relationship among these factors based on government obligations under the Treaty of Waitangi); and second, that insofar as respect for cultural values toward the environment were concerned, non-Maori values were a factor to be balanced into the equation as well." Having reached this conclusion, the Tribunal judges found that their study of the facts as presented by the irrigation applicants

left us in little doubt that in economic terms, the irrigation proposal would be beneficial, not only for the applicants themselves, but on a wider front. For one thing, the dairy company's nearest milk plant will be able to operate more efficiently .... We accept that, through the irrigation, the farms as physical resources will be more efficiently employed, in that farm stock will be heavier and better animal health will result.2

As discussed in the Introduction to Part II of this article, this is language that Joel Polack and other nineteenth-century colonial land speculators would have clearly understood and with which they would surely have agreed. Similarly, Chief Pomare would have understood just as clearly that once the Northland Regional Council and the Planning Tribunal had authorized the farmers to borrow and spend a great deal of money constructing large permanent structures to withdraw, store, and use a great deal of water from the Mangakahia, there is very little likelihood that such a quantum of water would ever flow in the river again.

III. THE AUCKLAND WATER SHORTAGE

A. Background

As in any rapidly growing urban area, the Auckland water shortage of 1994 was hardly a unique event in the region's history. The city had tapped local springs and other groundwater supplies in the late 1800s, but in the first three decades of the twentieth century (during which the population trebled in size) the city found it necessary to construct a series of storage dams in the nearby Waitakere Ranges, partly in response to a record-breaking drought spanning 1912-1915. The surplus provided by the Waitakere dams lasted into the early 1940s, when war-related industrial demands combined with periodic drought caused severe water shortages and daily rationing down to as little as eight gallons per person. In May of 1943 the city came within one day of running completely out of water, when normal rainfall patterns returned."

Post-war growth spurred the construction of additional storage capacity in the Waitakere and Hunua Ranges, until by 1977 metropolitan Auckland's burgeoning population was being served by a complex of thirteen storage dams, pumping stations, and pipelines. In the mid- 1980s, regional governmental authorities, called upon to provide water to nearly a million residents, and realizing that future shortages were inevitable if not managed for in the present, commissioned a thorough study of regional water management. Published in 1988, the Future Bulk Water Supply Study included an analysis of twelve different water supply augmentation schemes (most not mutually exclusive), plus the alternative of greater attention to water conservation.'

Authorities chose as an interim measure the conservation option, lowering demand from 340,000 cubic meters per day in 1988 to 327,000 in 1993, even as population continued to grow. Unfortunately, the conservation program-which consisted of little more than a public information campaign fronted by cartoon conservationist Robert D. Frogg-was so successful that it was terminated shortly before Auckland began to experience its worst drought in over six decades."

Average precipitation began to decline in 1991, in association with a cooling trend in the southwest Pacific that many climatologists associated with the diffusion of sunlight by ash in the upper atmosphere from the erup-

tion of Mount Pinatubo in the Philippines. The other most frequently cited cause was an aberration in the Southern Oscillation, an alternating pattern of high and low pressure cells in the east and west Pacific that normally ushers in Auckland's winter and spring rains.6 Auckland-area reservoirs were therefore at only forty percent of capacity in April of 1994, at the beginning of its normal rainy season-a season that in 1994 would prove to be anything but normal.7

B. Supply Augmentation

By May reservoir storage levels had dropped to thirty-five percent, at which time Watercare Services, the Auckland region's bulk water supplier, confirmed that it was investigating the option of augmenting the area water supply through construction of a pipeline from the Waikato River, thirty kilometers (eighteen miles) to the south, and up over the Hunua Range which separates the lower Waikato River valley from the Auckland region (see fig. 3).58 Thus began a spirited public debate over how the Auckland region

should respond to its water shortage-a debate that quickly expanded to encompass issues such as the working relations between the city governments comprising the metropolitan Auckland region, between the cities and the regional water supplier (Watercare), and between regional and national governments.

As a result of comprehensive local/regional government restructuring legislation adopted by the New Zealand Parliament in the late 1980s, Watercare Services was set up as a nonprofit corporation wholly owned by the Auckland Regional Services Trust, which is itself a publicly owned and directed nonprofit holding company for services organizations such as trash collection and the port authority. Watercare supplies water wholesale to the city governments of the Auckland region, which then retail it to residential and commercial/industrial customers within their respective borders.9 Also as a result of national restructuring legislation, the cities of metropolitan Auckland are bound together in the Auckland Regional Council, which has at least statutory responsbility for coordinating all resource management planning and consent review for resource uses that have region-wide effects.

Frustrated over the municipal governments' relative lack of direct control over their wholesale water supplier's plans and activities during the drought, in early June of 1994 the mayor of the City of Auckland suggested that the region's constituent cities should construct and own the proposed Waikato River pipeline, thus bypassing the institutional apparatus governing Watercare management decision making.' At about the same time, the New Zealand national government's Minister of Local Government suggested that Parliament might pass emergency legislation allowing the proposed Waikato River pipeline project to proceed immediately to construction, without having to undergo the pre-building environmental assessment, public comment, or regional government consent processes normally required under the RMA.6

Critical to construction of the pipeline under the provisions of the RMA was the consent of Environment Waikato, the neighboring regional council to the south of metropolitan Auckland, which assigns and administers water rights on the lower Waikato River. In mid-June, Environment Waikato indicated that it was prepared to cooperate fully in facilitating pipeline construction, and that no emergency national legislation overriding local

and regional authorities was necessary.62 The mayors of Auckland-area cities, who had now begun to meet in a "mayoral forum" as their preferred venue for collective drought management decision making, initially agreed that emergency legislation was not needed and should not be sought.6"

However, on June 23 the Auckland City Council abruptly changed its position on this issue, voting to request that emergency national legislation overriding the RMA for the purposes of pipeline construction be enacted, and that the pipeline be built and operated by Watercare Services. The opposition Labour Party in Parliament at first came out against the idea;' but by mid-July, when the bill was actually introduced in Parliament, reservoir levels were still far below normal, and a general sense of crisis seemed to pervade most governmental thinking on the matter (but with some notable exceptions, as discussed below). The leader of the Labour Party agreed not to oppose its passage, while at the same time decrying the need for a national legislative remedy for the "mismanagement" of metropolitan Auckland's water resources.65

On July 14 a member of the New Zealand Parliament submitted such a bill,6 much to the consternation of Environment Waikato (the neighboring Waikato Regional Council), which under normal circumstances controls water rights on the river.67 The bill68 authorized the pipeline project to proceed as deemed necessary by Watercare as if all consents required by the RMA had been granted,69 and empowered Watercare to withdraw waters from the Waikato via the pipeline whenever Auckland-area reservoir storage fell below fifty percent of capacity.7" This emergency authorization was to expire three years from its date of enactment by Parliament or whenever levels rose to eighty percent of capacity-that is, if the drought came to an end before the project was undertaken.7

Auckland-area support for the pipeline project and the suspension of national environmental policy to facilitate construction had not been unanimous, however. The mayor and a majority of the city council of another metropolitan Auckland suburb, Waitakere City, independently came to the conclusion that neither the pipeline itself nor the special legislation delaying environmental review and preempting local opposition had been conclusively demonstrated as necessary; and that a rigorous conservation program should be instituted instead.72 Waitakere City leaders (representing roughly onesixth of the water demand in the Auckland region) also refused to sign contracts for the delivery of water from the pipeline.3 In early September pipeline legislation supporters in Parliament retaliated by amending the bill to compel Waitakere City to pay its share of pipeline construction costs whether it wanted to or not."

In the midst of inter-city conflict over the wisdom of the pipeline project and parliamentary debate over its special legislation, two other forces came into play which would profoundly influence the outcome of this water management dispute: one was the changing position of the local Maoris (discussed infra), and the other was the weather. In the two weeks subsequent to introduction of the pipeline legislation, heavy rainfall repeatedly swept the Auckland region, raising reservoir storage to forty-five percent of capacity. By the end of the first week of August they were at fifty percent;"s a month later they reached sixty percent." At this point the Alliance (a coalition of smaller opposition groups in Parliament, including some environmental interests) abandoned its earlier guarded support for the pipeline bill, and began to actively oppose it, citing the increased rainfall as having alleviated Auckland's water emergency.77 Labour did the same, after failing to obtain support for an amendment addressing the concerns of Maoris in the lower Waikato River valley, who stood against the project on both spiritual and legal grounds."M Pressed on the issue, Watercare Services acknowledged that the pipeline was now unlikely to be needed to avert an immediate shortage,

but it still wanted both the pipeline and its facilitating legislation because it felt the project was also needed to solve metropolitan Auckland's longerterm water supply needs.9

With support for the emergency legislation clearly eroding in Parliament, the chair of the Auckland mayoral forum (and mayor of the Auckland industrial suburb of Manakau City) nevertheless defended the bill as an "insurance policy" against possible shortages in the future.-0 At the end of September, when storage levels rose to seventy-five percent of capacity, Watercare Services decided to "reassess" the need for the pipeline project, but still called for passage of the emergency authorization legislation, so that Watercare could "quickly construct the pipeline as soon as the need is apparent."'"

In the meantime, another Auckland suburb voted to reconsider its previous support for the pipeline bill, and a split occurred within the board of directors of Watercare Services' parent company over the need for the bill.8' Finally, on October 5 the bill's sponsor asked that further parliamentary consideration of the measure be postponed until the following May." Metropolitan Auckland had, with the help of the weather, managed its way through a water shortage without a hastily chosen new capital works project, and the New Zealand Parliament had avoided reinforcing a precedent of putting its landmark national environmental management law on hold whenever difficult management decisions arose.

C. Role of the Maoris

Before the pipeline legislation was introduced, it had been assumed that construction of the pipeline on an accelerated schedule would have been difficult if not impossible without the support of the Tainui, the Maori people of the lower Waikato River Valley who through both ancient custom and modem legal developments exercised some influence over the management of the river. First, the tribe had (and has) a pending claim of ownership rights in the Waikato River since the pipeline idea was orginally raised. Secondly, seven years earlier the New Zealand High Court had ruled in a precedent-setting case brought by the Tainui over management of the Waikato

River that water management authorities were compelled to consider evidence of "the existence of spiritual, cultural, and traditional relationships with natural water held by a particular and significant group of Maori people."I And third, the RMA required consultation with local Maoris holding such a special relationship to the resource in question when implementing the RMA.

Much to the relief of water-short Aucklanders, in mid-June of 1994 the Tainui agreed not to oppose pipeline construction, provided that the tribe was granted assurances that: (1) its ownership claims to the Waikato River would not be prejudiced; (2) the pipeline would be used only as an emergency measure, until a more permanent water supply plan not involving the Waikato could be implemented; and (3) that some portion of revenues from water use be devoted to mitigating any harms caused to the river by the project and to improve the overall water quality of the agriculturally and industrially polluted river.85 These conditions were set forth at a time when it was still assumed that the pipeline project would be subjected to the normal consent processes of the RMA.

However, the bill introduced in Parliament in mid-July contained none of these assurances. In early August the Tainui therefore withdrew their consent for the pipeline project until such time as their conditions were met, either by the regional authority, if the project proceeded to review under the RMA, or in the emergency bill under which RMA requirements would be waived.1 Subsequent negotiations on these issues proved fruitless, and on August 10 the Tainui Trust Board reaffirmed its opposition to the project and the emergency bill because of the national government's refusal to address Maori concerns in the proposed legislation.'

This was at a time when the National Party (the party in power) evidently felt that it had enough votes to pass the legislation without having to include amendments that might be seen as lending credence to Tainui claims of ownership rights in the Waikato River; the original language in the emergency bill drafted on behalf of Watercare Services had contained the assurances the Tainui sought, but National Party leaders had it removed.88

Efforts of both the Tainui and Auckland-area mayors to have it reinstated were unavailing. The opposition Labour Party had also sought to reinsert the Tainui provisions by amendment to the bill on the floor of Parliament on September 8, but had failed.9

The extent to which the national government leadership's refusal to include protection of Maori interests in the pipeline bill contributed to an eventual erosion of support for the measure in Parliament may never be known. Auckland's temporary water crisis was, by Watercare's own admission, clearly at an end by the time that all of Parliament's opposition parties came out against the proposed legislation. But what was demonstrated in the Auckland water shortage situation was the connection forged by case law such as Huakini Development Trust and the RMA between governmental decision making on water resources and the interests of New Zealand's indigenous peoples.

The Auckland water shortage case is also not without its ironic aspects. The Future Bulk Water Supply Study published by Watercare's predecessor in 1988 evaluated a dozen different supply options, then ranked them hierarchically, using composite scores from a variety of criteria, including technical and financial feasibility, cost-effectiveness, and cultural impacts. The Waikato pipeline option was among those evaluated, but was ranked at about mid-range principally because the scheme did violence to traditional Maori spiritual (as well as practical) teachings concerning the if one of inadvisability of mixing waters from different sources -especially those sources (in this case, the Waikato) carried contaminants.1° On reflection, it seems that in its water resource management planning, metropolitan Auckland may have done a betterjob of complying with the principles of the RMA four years before it was adopted than it did in a time of shortage three years after its passage.

D. Intergovernmental Relations

One aspect of the RMA that has attracted considerable attention among environmentalists in the United States and elsewhere is its use of the watershed-defined region as the primary unit of analysis, planning, and decision making for water resource management purposes. In delegating to regional councils of government the authority to make most water-related decisions, the RMA implies a high degree of regional self-determination in environmental management; it approximates what in western US water law is

commonly referred to as area-of-origin legislation. What it also implies is the need for high levels of interregional consensus if there is to be interregional resource sharing.

The fact that the emergency Waikato River pipeline bill would have preempted the Waikato regional council's water management authority as well as Maori claims to the river revealed the measure to be a clear challenge to the regional self-determination principle implicit in the design of the RMA. Students of US water law and policy will no doubt also find parallels between this approach and the efforts of rapidly growing cities in the western United States in the early days of the twentieth century, which overcame the resistance of their water-rich rural neighboring regions to sharing water by engineering the passage of preemptive water project development legislation at the state or federal levels of government."

As the 1994 drought lessened in severity and resistance to the emergency pipeline bill became stronger, an argument heard with increasing frequency was the need to adhere to the sustainability and rational planning values embodied in the RMA, absent a proven emergency; the battle over Auckland's preemptive pipeline bill in effect became a battle for the soul of the RMA. And the temporary defeat of the measure (Auckland representatives asked that consideration of the measure be suspended rather than withdrawing it altogether) reinforced the importance of neighboring regional councils negotiating major resource exchanges in the future within the substantive and procedural parameters of the RMA, rather than unilaterally appropriating the resource in question through legislative means that thwart the objectives of the nation's most important environmental law.

E. Pricing Signals and End-Use Efficiency: The Road Not Taken

Although the RMA makes provision for regional governments to experiment with tradable water resource consents and other market-oriented approaches to allocation and distribution, one area in which market mechanisms were most emphatically not considered in reacting to the Auckland water shortage was in the pricing of water. Legislation creating the institutions which provide bulk water supplies to municipal retail distributors keep wholesale prices at the actual cost of delivery. Retail pricing at the municipal level, using inverted block rate structuring (the more you use, the more you pay) or some similar mechanism, was never seriously considered by political leaders in the region. A content analysis of 123 stories on the Auckland water shortage in the New Zealand Herald, Auckland's largest

daily newspaper, conducted during the three months when the shortage was most severe, revealed only two stories in which the idea was even discussed; one of them was a report of the Auckland City Council taking up the idea only so they could immediately and unequivocally reject it.

Only one of the six major Auckland suburbs (and not the city of Auckland itself) instituted structural demand management measures, by distributing free devices to install in residential toilets to reduce the quantity of water used in each flush. Other jurisdictions relied exclusively on residential consumer conservation to control demand-a task complicated by the fact that most residential connections are unmetered.

Moreover, an interview with a former manager of Watercare, the region's bulk water supplier, revealed that another national law, the 1991 Building Act, preempts local government authority to impose state-of-the-art waterconserving devices in new construction, or to compel the retrofitting of existing structures with such technology. And since water prices are held at the actual cost of delivery, there would be relatively little incentive to require such efficiency upgrades even if national construction law did not preclude it.

In sum, at least insofar as urban water management is concerned, enduse efficiency is not a working component of the RMA's applied definition of sustainability. Perhaps this is in part because a landscape as generally rainy as Aotearoa/New Zealand's has fostered use habits based on a perception of abundance in perpetuity, even though the Auckland region has been growing steadily and rapidly for the last twenty years. Water resource demands are also rising in other expanding New Zealand metropolitan areas such as Wellington and Christchurch. For urban water resource managers implementing the RMA, recognition of the relationship between sustainability and efficiency cannot be far off. And with that recognition there will also no doubt be more attention focused on the possible use of price signals as one means of encouraging more efficient water use.

As of early 1996, however, it must also be acknowledged that neither that recognition nor that focus was much in evidence. In the wake of the 1994 drought, the only significant policy decision made by the region's bulk water supplier was to file a permit application with Environment Waikato to build a pipeline from the Waikato River into the Auckland watershed, this time in keeping with the proposal review provisions of the consent requirements of the RMA.92

V. CONCLUSIONS: SUSTAINABILITY AND POLICY REFORM

A. Intergovernmental Relations

As the research reported in the two parts of this article has demonstrated, Aotearoa/New Zealand's adoption and implementation of the 1991 RMA is an environmental policy gesture that has been at once courageous and enigmatic. Courageous because New Zealand legislators promised their citizens and announced to the world that the country would thenceforth manage its renewable resources in an ecologically and intergenerationally sustainable manner; and enigmatic, because subsequent to its passage, Parliament and national governmental administrators have provided little significant guidance and assistance to the regional or local governmental authorities that are compelled to implement the law on a day-to-day, caseby-case basis. The only notable exceptions to this general observation have been the coastal policy statement, which is specifically required in the statute itself, and the Minister for the Environment's public pronouncements that the RMA does indeed establish a threshold level of substantive environmental protection and management principles (i.e., a "green bottom line")-a position that some regional councils and courts have chosen to ignore (as in the Mangakahia case).

The tension between the concomitant needs for national consistency and regional flexibility in environmental policy implementation is of course a familiar political dynamic among New Zealand's ex-colonial common law relatives around the Pacific Rim. Australia, Canada, and the United States are all comprised of sub-national governmental jurisdictions with diverse regional landscapes and equally diverse regional public perspectives on how the environment should be managed. In the United States, which has perhaps the most cohesive nationwide environmental standard-setting and enforcement regime, the 1994 elections, inter alia, bespoke a powerful backlash against that regime by state and local governments resentful of being forced to adhere to and implement federal standards without being given sufficient federal funding to conduct those implementation and enforcement activities.

One of the first major policy reforms adopted by the newly elected 104th Congress in early 1995 was legislation restricting both itself and the federal bureaucracy from imposing any binding federal standards on state and local government, the nationwide implementation costs of which exceed US $50 million, unless such new mandatory standards are accompanied by federal funding to put them into effect.93 Had the New Zealand government

imposed such a limitation on itself relative to the size of its own gross domestic product, there would be no RMA, since regional and local governments are bearing nearly all implementation and enforcement costs.

Either inadvertently or as a matter of deliberate policy choice, the New Zealand government has obviously opted for maximizing regional and local government flexibility in implementation, which of course has also had the effect of granting the New Zealand courts very wide latitude in statutory construction." Among the most problematic of the issues calling for some guidance is the definition and assignment of the burden of proof in decision situations characterized by high levels of scientific uncertainty, when knowledge of the probable effects of a proposed project is simply not ascertainable before the fact. In the Mangakahia case the Northland Regional Council seemed to give project proponents the benefit of the doubt concerning the probable impact of large-scale water withdrawals on indigenous fisheries, although they did award project proponents less water than they requested as a (possibly adequate) margin of safety against ecological damage. The Mangakahia decision at the regional council level made no one happy, since project proponents appealed the reduction in the amount of water they asked for and the Maoris appealed on the basis of cultural transgressions and inadequate consultation.

One explanation for the relative lack of prescriptive national guidance is that the national government has provided virtually no financial and technical assistance to regional and local implementing authorities. National leaders thus may have determined that it would be unfair (as well as politically risky) to impose national standards without significant implementation assistance.

Additionally, vesting in (and leaving to) regional government predominant implementation authority for water resource allocation also creates a strong presumption of regional control over interregional resource sharing. This presumption was nowhere more in evidence in our research than in the case of the Auckland emergency pipeline legislation. Although both Waikato River Basin regional authorities and the Maori tribe with cultural/spiritual responsibility for the lower Waikato had indicated a willingness to negotiate conditional access to the river with metropolitan Auckland, the latter partywhich is a great deal more populous and politically powerful, apparently felt it necessary to seek emergency national legislation overriding regional

and Maori control over the waters to which Auckland wanted access. In this regard, the survival of the RMA against Auckland's preemptive (albeit emergency-driven) legislative assault represented an important reaffirmation of the principle of area-of-origin control over water resources.

In the post-water crisis period, Watercare has approached Environment Waikato with applications for consents under the RMA in order to build the pipeline. It seems likely that the necessary permits will be approved, but what may well be missing from the decision making is any consideration of the interjurisdictional resource transfers from a sustainability perspective. The Waikato, it seems, will help satisfy Auckland's thirst for water without explicit consideration of the advisability of such large-scale transfers as a matter of national policy (e.g., when and under what circumstances such schemes do and do not serve the national interest).

Of interest also is the persistent ambiguity over the interpretation of Section 5 of the legislation (and also the status of Sections 6 and 8 relative to Section 5). There is a distinct duality in the understandings of what this very important part of the legislation means. Is it primarily about sustainable environmental management, or is the RMA intended to embrace a wider interpretation of sustainable management, wherein social, economic, and cultural concerns are to be evaluated with equal weight to the environmental ones?

The existent ambiguity in the interpretations of the legislation is of course reflective of the more general lack of consensus over what sustainability means. There is a naive tendency in some quarters to assume that sustainability is a universally held concept simply awaiting a more precise expression. This overlooks the fact that sustainability is instead socially constructed, susceptible to different interpretations, and thence open to contest. In reality, there is no consensus as to what sustainability means, and in the wider context, it is unlikely that there ever will be.

All the while, the lingering ambiguity over what "sustainable management" means in the context of the RMA suggests that the legislation will provide an arena for groups to promulgate their own interpretations. In one sense at least, this is worrisome, because some decisions will ultimately be won or lost on the basis of which interpretation is embraced by the adjudicating panel. For this reason, some clearer guidance as to whether the RMA is meant to be more of an environmental "bottom line" or instead a statute that promotes compromise among environmental, economic, and social considerations would seem to be a useful step forward. Here again, a measure of national guidance is appropriate.

B. Allocation of Water Resources: Governments and Markets

The RMA and the Minister for the Environment's allusions to experimentation with tradable water permits brings to the fore a fundamental philosophical as well as policy question for the peoples of Aotearoa/New Zealand, which is "What is water?" Is it, by topographical as well as spiritual definition, an indivisible commons to which all inhabitants of the land should share collective use rights; or should it instead be viewed simply as another commodity to be put into play in the country's increasingly free market-oriented political economy?

This question arises at a critically important time in the nation's political history. For the last ten years it has undergone a dramatic transformation from welfare capitalism to neo-libertarian freemarket capitalism. Resources and assets such as timber, minerals, the electrical energy retailing infrastructure, and the entire national transportation system had formerly been owned and managed by the state in accordance with a general cost-of-delivery public service criterion. But since 1984 these resources and assets have all been sold off to private (in some cases foreign-owned) corporations. From one perspective, then, introduction of a water marketing regime under the RMA is just the next logical step in the overall privatization of New Zealand's natural resource base.

But there are also some signs that in the view of at least a politically articulate minority of the citizenry, the push to privatize may have gone far enough-if not too far-already. Critics of water marketing schemes have argued that, if not rigorously overseen, such free market mechanisms will have a tendency to: (1) fail to adequately accommodate in-stream ecological values; (2) foster monopolistic practices and a permanent loss of public control over what should be seen as a commonly held resource; and (3) and shoulder aside explicitly noneconomic and inherently nonquantifiable interests such as Maori kaitiakitanga over surface waters (a criticism fully borne out in the Mangakahia decisions).95

Defenders of water marketing mechanisms now in effect in places such as the western United States respond that it is possible to introduce market mechanisms into water resource allocation and management systems in ways that reap the distributional efficiency and use efficiency benefits such mechanisms can provide without suffering such harms, by drafting policies to protect the public interest values claimed to be at risk above, and by the active regulatory oversight of water marketing activities." However, the more

ardent advocates of "free market environmentalism" counter that this much government interference in private exchanges among willing parties is a market in name only.7

Given the New Zealand government's disinclination to provide guidance in most aspects of RMA implementation, it is not unreasonable to assume that, as signaled by recent remarks of the Minister for the Environment,98 water marketing experimentation will probably proceed without a great deal of national regulatory oversight, in keeping with the vigorous entrepreneurial spirit now holding sway over the New Zealand political economy. It would therefore behoove water resource management decision makers at every level of government to learn as much as they can, as quickly as they can, about how various water marketing schemes have performed in countries with similar legal and political traditions.

Growing public wariness in AotearoalNew Zealand over the push to privatize may also help to explain political resistance to the introduction of retail pricing signals as a way to induce end-use conservation and efficiency investments during the Auckland water shortage. Public expression of suspicion that the shortage had been brought about by a combination of mismanagement and a political effort to scare the public into supporting a new emergency water supply project filled the press during the waning days of the 1994 water crisis. Rising prices for water use during this period would undoubtedly have further fueled such suspicions, especially given the traditional practice of holding prices to the cost of delivery.

Moreover, in a country that generally experiences as much rainfall as New Zealand, water use is based upon a culture and tradition of abundance and a mentality (not historically supported in Auckland's case) that "there has always been enough to go around." The same has been true in the western United States up until about the last two decades, when public concern over both the costs and environmental damage occasioned by large-scale water projects, combined with a series of prolonged and severe droughts, began to focus ever greater attention on "nonstructural" water management mechanisms, such as end-use progressive pricing (i.e., beyond a moderate "lifeline minimum," retail pricing based on the principle of "the more you use the more you pay"). I Of course, residents of western US cities also pay more than twice as much for their water as Aucklanders.

Based on the cultural and institutional barriers to more efficient water use discovered in the Auckland case study, it seems that at least in terms of urban consumption, the technologically and economically efficient end-use of water is at least not yet a part of the RMA's working definition of sustainability as applied to water resources, although there are indications that it soon may be. National debate over the Auckland emergency pipeline bill, especially its suspension of the procedural requirements of the RMA, provided an opportunity to examine the true implications of the RMA when it comes to the end-use of resources, rather than focusing solely on the environmental impacts of resource extraction. That the RMA survived emergency abrogation reflects a renewed public commitment to work within both the RMA's procedural guidelines for environmental decision making and its substantive mandate of ecological and intergenerational sustainability. But this legislative struggle also demonstrated that the law has some powerful opponents, and that continuing future political and legal opposition (as in the Rika decision) to the concept of a "green bottom line" should probably be expected. 00

In future political debate and legal discourse over the RMA, another issue worthy of continuous attention is how various actors in this implementation drama handle concepts such as "efficiency." In the Rika decision, the Planning Tribunal wrote approvingly of the farmers' right to irrigate pasturage in order to enhance the efficiency of dairying facilities (heavier livestock, longer and higher volume production runs),'' rather than making a finding on the question of whether pasturage irrigation was an efficient use of finite water resources. The decision perfunctorily dismissed a Maori argument that it is unwise public policy to essentially allocate most of the available water in the river to agricultural uses in the absence of a comprehensive regional water management plan (which the RMA recommends but does not require).02 Such a plan would presumably take up questions of the comparative wisdom of water resource allocations to competing uses, as well as instream needs and cultural/spiritual values.

By contrast, in the Auckland water supply case one of the concerns was end-use efficiency of water already withdrawn for municipal use. As the battle over the emergency pipeline raged on, one of its more notable and recurrent skirmishes took the form of a running debate between the leader-

ship of Waitakere City (an environmentally-oriented Auckland suburb) and the leadership of the City of Auckland and other suburban jurisdictions. Waitakere was the only suburb to come out publicly against the pipeline, arguing instead that pipeline construction funds would be much more wisely invested in controlling system losses and water conserving end-use devices. As discussed earlier, Waitakere's reward for championing the end-use efficiency alternative was a punitive amendment to the emergency pipeline bill compelling the city to contribute to construction costs even if it did not purchase additional water-basically retaliation for having advocated the conservation alternative.

C. Role and Status of the Maoris

There are at least as many as-yet-unanswered questions in this area of RMA implementation as any other we encountered during the conduct of this research-in no small part because the political role and status of the Maoris in Aotearoa/New Zealand society in general remains an open question. In this respect, the New Zealand experience is no different from that of Canada or the United States, in which treaties between nation-state governments and indigenous peoples have come to be seen less as one-time real estate contracts than as living documents intended as much for the governance of present and future relationships as for the resolution of past differences.103

But overall, does the RMA appear to enhance the role and status of enhance the role and status of the Maoris regarding control of Aotearoa/ New Zealand's environment? In reflecting on the two case studies featured in this research, on the relatively few court cases to date in which that question has been addressed, and on the very broad discretion in implementation decision making national government has left to regional and local authorities, the question posed above seems to depend a great deal on the circumstances of individual resource management decision situations. Of paramount importance is the extent to which a local Maori group may have been able to substantiate (or is in the process of substantiating) either a direct claim of ownership or at least of kaitiakitanga over the resource in question. The Tainui had already done so on the Waikato River, as evidenced by the high court's 1987 decision in Huakina Trust.'°4 The various Maori groups along the Mangakahia River had not done so to the extent evidently required in the judgment of decision makers in the Northland Re-

gional Council,'°5 with the result that while the Maori position opposing large-scale water withdrawals was acknowledged, it also proved quite ineffective in preventing large-scale irrigation withdrawals from the river.

Strategically then, this analysis suggests that it would be in the Maoris' best interest to file as many claims as possible as quickly as possible either for instream permit use or for recognition of kaitiakitanga or both over as much of Aotearoa/New Zealand's surface waters as possible. However, attempts to do so would be (and are) limited by many rural Maori groups' relative inability to bear the transaction costs involved in such a proactive, law-based approach. Also, many Maori groups do not wish (and do not wish to be seen ) to obstruct any new non-Maori-initiated water use project just for the sake of enhancing their own power.'6 On the other hand, as evidenced by both the Northland Regional Council's Mangakahia decision and Judge Shephard's opinion in Hanton v. Ors, to have no such direct claim of ownership or kaitiakitanga may prove a severe if not fatal impediment to a specific Maori group's ability to exert any meaningful influence over resource management in a specific decision situation, all the RMA's provisions regarding principles of the Treaty Waitangi notwithstanding.

The Mangakahia case in particular highlights two very fundamental areas of concern with respect to the role and status of Maori in the context of the RMA. One is that the Planning Tribunal's decision presents an impression that Maori cultural values represent only one factor, meriting no special consideration when it comes to resource allocation. This is reflected, for example, in the reference to a view that the values of non-Maori are just as important (thus judicially neutralizing much of that portion of the RMA Part II, which specifically identifies Maori environmental values as a required decision factor). The other concern is that the Tribunal's decision (and indeed, the Northland Regional Council's as well) suggests a view that the cultural values of Maori are somehow divisible or fractional. That is, there is an implication that it is possible to allocate some water and thus only partially diminish the value of Maori cultural terms. While it is not for us to interpret the cultural values of water (or any other resource) to Maori, this implication of divisibility seems to run counter to the widely acknowledged holism that is innate to the Maori worldview.

Both the Mangakahia decision and the Auckland emergency pipeline bill reflect an unnerving hollowness in the interpretation of the RMA calling for partnership, protection, and respect for Maori values and views. Generally, as in Australia, Canada, and the United States, the more national governmental authority for relations with their respective indigenous peoples

has been delegated to regional and local governments, the worse those peoples have fared, both legally and economically; for it is at the regional and local levels that indigenous and nonindigenous peoples compete most directly for the benefits accruing to whomever controls resource use.'7 At this stage of RMA implementation there is great concern that this may indeed be what happens under the RMA, although-as demonstrated by our case studies and the case law discussed above-the evidence so far is mixed.

D. "But At the End of the Day..."

The true contours of RMA implementation are just now being discerned through the "long white cloud" of legislative intent. It is a scene of little proactive national leadership, widely varying regional and local level implementation approaches, and widely varying administrative and judicial decisions on issues such as burden of proof, water allocation schemes, and the role and status of the Maoris. It is also a scene of ongoing change; the RMA is new, it is a bold experiment, it has powerful and articulate defenders and detractors, and its true implications are only now beginning to be felt and understood.

There is obviously something to be said for encouraging diverse experiments in RMA implementation. Through several years of such trial and error efforts, valuable experience in learning what clearly does and does not work will certainly be gained. But in the meantime, a question worth keeping in mind is whether New Zealand does in fact have a consistently effective national policy mandating the sustainable management of its renewable resources. Perhaps, instead, the RMA will in retrospect come to be seen as the New Zealand national government's first federal environmental law instead, given the amount of regional and local autonomy now being exercised as it is put into effect.

Although it has been alluded to often enough in this account of our research, in closing perhaps it is worth reiterating that in our view the time may have come when somewhat more guidance (as well as some measure of technical and financial assistance) from New Zealand's national government may be in order-either in the form of a national policy on water resources, or, at the very least, some parameters within which to address implementation issues such as intergovernmental relations, governments and markets, and the role and status of the Maoris.

As we noted earlier in this article, the trade-off in doing in-depth case studies rather than taking a broader survey approach is that one may gain considerable knowledge of a few trees but not as much understanding of the forest in which they stand. Indeed, by the time this article is published, the Maoris' appeal of the Mangakahia decision may have been heard and decided by the New Zealand High Court (the penultimate level of judicial appeal within New Zealand itself); it is just as likely that they may have dropped their appeal due to an inability to bear the transaction costs involved in pursuing it.

But what does exist as of this writing is a situation in which judges as well as regional councils apparently feel free to pick and choose among the various provisions of the RMA's open-ended language on environmental and cultural sustainability and construe those provisions at will, thereby achieving extremely diverse results in terms of both environmental management and the rights and status of major parties in interest. Unless this broad diffusion in statutory interpretation is clearly and definitively resolved at some higher level ofjudicial authority, the time may well have come for the New Zealand Parliament to revisit the question of legislative intent on some of the crucial policy implementation questions raised in this article. Of course, this is not to say that it will, inasmuch as these unresolved questions embody some of the most controversial socio-environmental issues in New Zealand society today.'08

To fail to clarify these issues will leave the RMA an as-yet-unfulfilled promise to the peoples ofAotearoa/New Zealand. It might also signal to the world in general, and to this bold young nation's ex-colonial common law neighbors around the Pacific Rim in particular, that genuine ecological and intergenerational sustainability is a policy initiative whose time may not yet have come. For those of us who do not believe this to be true, we can only hope that the New Zealand experiment succeeds, and that the country can persevere in providing a constructive global example of how democratic capitalism and genuinely sustainable environmental management can peacefully co-exist.

--- FOOTNOTES ---

Part of the Environmental Law Commons

t Associate Professor and Director, Program Concentration in Environmental Law and Policy, Graduate School of Public Affairs, University of Colorado at Denver. Funding for Professor Burton's research was provided by a Fulbright Fellowship (U.S. Council for the International Exchange of Scholars and the New Zealand/U.S. Educational Foundation). That support is hereby gratefully acknowledged, although the author bears sole responsibility for the contents of this article.

tt Associate Professor and Director of the Regional Resource Evaluation Project, Department of Geography, University of Auckland. Professor Cocklin's research was supported by grants from the New Zealand Foundation for Research, Science, and Technology; the New Zealand Vice Chancellor's Committee; the Lottery Grants Board; and the University of Auckland. That support is hereby gratefully acknowledged, although the author bears sole responsibility for the contents of this article.

* This is the second of a two-part article examining New Zealand's implementation of the innovative Resource Management Act of 1991. Part I appeared in 7 COLO. J. INT'L ENVTL. L. & POL'Y 75 (1996).

1. PETER WOODCOCK, THE CULTURES COLLIDE: THE CONTACT PERIOD OF NEW

ZEALAND HISTORY 1769-1846, at 19 (1988).

2. Id. at 20. 3. CLAUDIA ORANGE, THE TREATY OF WAITANGI 159 (1987).

4. Lloyd Burton & Chris Cocklin, Water Resource Management and Environmental Policy Reform in New Zealand: Regionalism, Allocation, and Indigenous Relations, 7 COLO. J. INT'L ENVTL. L. & POL'Y 75 (1996).

Figure 1: Auckland Region of New Zealand

5. A. Grant Anderson & Warren Moran, Land Use Change in Northland-Part One: Dairy Farming in the 1970s; A Review (1983) (unpublished article, on file with author).

6. Dam Scheme for Wairoa Investigated, N.Z. HERALD, Jan. 25, 1995, at 12. 7. Id. 8. NORTHLAND REGIONAL COUNCIL, PROPOSED REGIONAL POLICY STATEMENT

87 (1993).

9. Id. at 96.

Figure 2: Mangakahia river valley of the Northland Region, New Zealand.

10. Order Paper for Hearings Committee Meeting-Applicant: Mangakahia Farm Irrigation 40 (Northland Regional Council, Sept. 1994) (N.Z.) [hereinafter Northland Regional Council, Order Paper 1994].

11. Id. 12. Order Paper for Hearings Committee Meeting-Applicant: Mafigakahia Farm Irrigation 30-99 (Northland Regional Council, Oct. 1993) (N.Z.) [hereinafter Northland Regional Council, Order Paper 1993].

13. At the time, the operative planning document was the Transitional Regional Plan. Under Part XV, § 368, notices and bylaws introduced under legislation that was operative prior to the RMA are continued under the transitional provisions of the new legislation until such time as they are revoked under the provisions of the RMA.

14. Resource Management Act of 1991, 32 R.S.N.Z. art. VI, § 104(c),(d) [herein-

after RMA].

15. As required under RMA, supra note 14, art. VI, § 93. 16. Northland Regional Council, Order Paper 1994, supra note 10, at 26. 17. Northland Regional Council, Order Paper 1994, supra note 10, at 49. 18. Northland Regional Council, Order Paper 1994, supra note 10, at 26.

19. For a discussion of the incorporation and meaning of various Maori terms into this text see Lloyd Burton & Chris Cocklin, supra note 4, at 76 nn.2 & 3, 78 n.6, 87 nn.30 & 32 (tangata whenua loosely translates to "people of the land").

20. Northland Regional Council, Order Paper 1993, supra note 12, at 150-63.

See also NORTHLAND REGIONAL COUNCIL, supra note 8, at 62-66.

21. Northland Regional Council, Order Paper 1993, supra note 12, at 172.

22. The hearings were before a committee of three; two were elected counselors

and the third was a lay member.

23. Report and Decision of the Hearings Committee Held at the Mangakahia Area School, Titoki 8 (Northland Regional Council, Sept. 8, 1994) (N.Z.) [hereinafter Northern Regional Council, Report and Decision].

24. Id. at 15. 25. Id. at 9. 26. Id. at 19.

27. Id. at 18. 28. Mangakahia Maori Komiti v. Rika, Decision Np. A 107/95, slip op. at 10

(Planning Tribunal Nov. 14, 1995) (N.Z.) [hereinafter Rika].

29. Id. at 12. 30. Id. at 49-50. 31. Id. at 55.

32. See generally Owen Furuseth & Chris Cocklin, Regional Resources and Environmental Policy: Implementing Sustainable Management in New Zealand, 38 J. PLAN. & MGMT. 181 (1995).

33. Id. 34. Simon Upton, Address at the Resource Management Law Association of New

Zealand, Inc., Second Annual Conference (Oct. 8, 1994).

35. Id.

36. Northland Regional Council, Report and Decision, supra note 23, at 8. 37. Rika, Decision Np. A 107/95, slip op. at 46.

38. Id. 39. Northland Regional Council, Report and Decision, supra note 23, at 18.

40. NORTHLAND REGIONAL COUNCIL, supra note 8, at 86. 41. Northland Regional Council, Order Paper 1993, supra note 12, at 131.

42. Northland Regional Council, Order Paper 1993, supra note 12, at 131. 43. Northland Regional Council, Order Paper 1993, supra note 12, at 131. 44. Northland Regional Council, Order Paper 1994, supra note 10, at 40.

45. Rika, Decision Np. A 107/95, slip op. at 18. 46. Before the applications were submitted, five tribal groups had been consulted. A submission on the proposals noted that there were at least seventeen tribal groups that would be affected. Northland Regional Council, Order Paper 1993, supra note 12.

47. This is provided for under RMA, supra note 14, art. IV, § 33, which refers to

the transfer of power to other authorities, including iwi (tribal) authorities.

48. Rika, Decision Np. A 107/95, slip op. at 22 (quoting B.V. Harris, Sustainable Management as an Express Purpose of Environmental Legislation: The New Zealand Attempt, 8 OTEGO L. REV. 51, 60 (1993 .

49. Id. at 43. 50. Id. at 48.

51. See supra note 48 and accompanying quotation. 52. Rika, Decision Np. A 107/95, slip op. at 36-37.

53. Vincent Heeringa, It ' the Weather, Stupid, METRO, Aug. 1994, at 54. 54. Id. at 57. WATERCARE SERVICEs LTD., FUTURE BULK WATER SUPPLY STUDY

(1988).

55. Heeringa, supra note 53.

Figure 3: Waikato River valley in the northern Waikato Region, New Zealand

56. Gilbert Wong, Winter of Dispair, N.Z. HERALD, May 28, 1994, at 2. 57. Graeme Speden, Winter Rain Not Likely to Fill Lakes, N.Z. HERALD, Apr. 6,

1994, at I.

58. Grant Bradley, Details Given on Pipeline Plan, N.Z. HERALD, June 23, 1994, at 3; Grant Bradley, Water Crisis Turns Eyes to Waikato, N.Z. HERALD, May 21, 1994, at

59. Graeme Speden, Water Company One of a Kind, N.Z. HERALD, June 9, 1994,

at 5.

60. Mayor's Pipe Plan Angers Green Groups, N.Z. HERALD, June 14, 1994, at 3. 61. Bevan Rapson, Fast-Track Pipeline on Banks' Agenda, N.Z. HERALD, June

13, 1994, at 5.

62. Kerry Stewart, 'No Need'for Fast- Track Pipeline Law, N.Z. HERALD, June 16,

1994, at 3.

63. Philip English, Pipe to Take Its Course, N.Z. HERALD, June 18, 1994, at 15. 64. Alan McDonald, MP: No Fast-Track, N.Z. HERALD, June 27, 1994, at 43. 65. Warren Gamble, Reservations But Pipe Bill Backed, N.Z. HERALD, July 15,

1994, at 5.

66. NEW ZEALAND PARLIAMENTARY BULLETIN 2 (July 21, 1994) [hereinafter,

NZPB].

67. Private Bill Backstop to Ensure River Entry, N.Z. HERALD, July 12, 1994, at 4. 68. Watercare Services Limited (Auckland Emergency Water Supply), Private Bill

No. 28-1, NZPB 2 (July 21, 1994) (Hon. Bruce Cliffe, submitted July 14, 1994).

69. Id. § 4. 70. Id. § 11. 71. Id. § 12.

72. Philip English, Council May Force Delay in Pipeline, N.Z. HERALD, July 23,

1994, at 4.

73. Philip English & Martin Johnston, Waitakere Pipeline Holdout, N.Z. HERALD,

July 20, 1994, at 1.

74. John Armstrong & Philip English, MPs Outmanoeuvre Pipeline Opponents,

N.Z. HERALD, Sept. 2, 1994, at 1.

75. Andrew Laxon, Dry Weather to Continue, N.Z. HERALD, Aug. 8, 1994, at 1. 76. Michael Reid, Runoff Likely to Push Lake Levels Past 60%, N.Z. HERALD,

Aug. 6, 1994, at 2.

77. NZPB 2 (October 10, 1994). 78. Audrey Young, Pipeline Law Stalled as Alliance Changes Tack, N.Z. HERALD,

Sept. 9, 1994, at 1.

79. Philip English, Pipe 'Not Necessary Until Next Winter', N.Z. HERALD, Sept.

12, 1994, at 1.

80. Philip English, Law Is Needed, Pipe or No Pipe: Curtis, N.Z. HERALD, Sept.

30, 1994, at 1.

81. Philip English, Plug Pulled on Pipeline While Need Review, N.Z. HERALD,

Oct. 1, 1994, at 1. 82. Id. 83. NZPB 2 (October 10, 1994).

84. Huakina Development Trust v. Waikato Valley Authority, [1987] 2 N.Z.L.R. 188, 223 (H.C.), quoted in Richard Boast & Deborah Edmunds, The Treaty of Waitangi and Resource Management Issues, in RESOURCE MANAGEMENT § TW1.02(1) (S. Condie ed., 1991 & Supp. 1994).

85. Helene Anderson, Maori Elders Approve of Pipeline Plan, N.Z. HERALD, June

15, 1994, at 6.

86. Paul Gregory, Tribe Holding Out for Pipeline Assurances, N.Z. HERALD, Aug.

5, 1994, at 22.

87. Tainui Remain Opposed to Pipeline, N.Z. HERALD, Aug. 11, 1994, at 2. 88. Philip English, Hope of Resumption in Pipeline Process, N.Z. HERALD, Aug.

12, 1994, at 1.

89. Young, supra note 78, at 1. 90. WATERCARE SERVICES LIMITED, supra note 54.

91. Among the best documented accounts of such incidents is WILLIAM L. KAHRL, WATER AND POWER (1982) (detailing the acquisition of water by metropolitan Los Angeles).

92. Paul Gregory, Auckland Asks to Pipe from Waikato, N.Z. HERALD, Feb. 14,

1996, at 1.

93. President Signs Mandate Bill, 53 CONG. Q. WKLY. REP. 871 (March 25, 1995).

94. As exemplified by the widely differing views of Judge Kenderdine in Gill v. Rotorua Dist. Council, [1993] 2 N.Z.R.M.A. 604 (P.T.) and Haddon v. Auckland Regional Council, A77/93 (1993) (N.Z. P.T.), on the one hand; and those of Judge Shepard in Hanton & Ors v. Auckland City Council & BP Oil Ltd., AI0/94 (1994) (N.Z. P.T.) and Rika, Decision Np. A 107/95, slip op. on the other.

95. Rika, Decision Np. A 107/95, slip op. at 10. 96. See, e.g., MARC REISNER & SARAH BATES, OVERTAPPED OASIS (1990).

97. TERRY L. ANDERSON & DONALD R. LEAL, FREE MARKET ENVIRONMENTAL-

ISM (1991).

98. Upton, supra note 34. 99. Lloyd Burton, Disputing Distributions in a Shrinking Commons: The Case of

Drought in California, 32 NAT. RESOURCES J. 779, 800 (1992).

100. Most of the hydropower permits for the immensely influential national hydroelectric generating corporation come up for renewal later in this decade, the combined effects of which could pose a substantially greater challenge to the RMA than Auckland thirst. See Judy Van Rossem, Fresh and Geothermal Water, in HANDBOOK OF NEW ZEALAND ENVIRONMENTAL LAW 108 (Christopher D.A. Milne ed., 1993).

101. See supra note 52 and accompanying text. 102. Rika, Decision Np. A 107/95, slip op. at 44.

103. AUGIE FLERAS & JEAN L. ELLIOTT, THE 'NATIONS WITHIN': ABORIGINAL

STATE RELATIONS IN CANADA, THE UNITED STATES, AND NEW ZEALAND (1992).

104. Huakina Development Trust v. Waikato Valley Authority, [1987] 2 N.Z.L.R.

188 (H.C.).

105. Northland Regional Council, Report and Decision, supra note 23. 106. Anderson, supra note 85, at 6.

107. Regarding regionalism and indigene-based competition for resource management control in Australia see Gerald P. McGinley, Indigenous Peoples' Rights: Mabo and Others v. State of Queensland-The Australian High Court Addresses 200 Years of Oppression, 21 DENVER J. INT'L L. & POL'Y 311 (1993); in Canada see FLERAS & ELLIOT, supra note 103; and in the United States see LLOYD BURTON, AMERICAN INDIAN WATER RIGHTS AND THE LIMITS OF THE LAW (1991).

108. The US Congress has managed for almost an entire century to avoid any definitive general policy declaration on American Indian water rights, leaving the courts alone to develop doctrine on one of the most important resource management issues facing the American West. See BURTON, supra note 107.