Sustainable development and water use in New Zealand: water priority and allocation under section 5 of the Resource Management Act 1991 and the National Policy Statement on Freshwater Management 2011

Since the enactment of the Resource Management Act 1991 (RMA) New Zealand's fresh water resources have been subject to increasing demand, challenging the ability of water resources to be redirected for new uses and threatening the ecological integrity of areas dependent upon minimum availability of water. Under the RMA, use and allocation of fresh water is determined through regional plans and the first-come first-served principle as articulated by the New Zealand High Court in Aoraki Water Trust v. Meridian Energy[2005] 2 NZLR 268. This paper explores the decision-making process for regional plans and resource consents in New Zealand (which can privilege entrenched uses, specific economic concerns of a region, or interests of organized groups) in light of the sustainability objectives of the RMA. It argues the new National Policy Statement on Freshwater Management 2011 does little to enhance the sustainability objective of the RMA because it neither affects the first-in-time priority rule for re-allocation of scarce water resources nor does it replace regional and district councils as the primary regulators of water quantity issues. These allocation decisions should be guided by a national decisionmaking entity, using national rules and guidelines to supplement local decisions. These national decision-making processes would be better able to balance the interests of existing consent holders, the general public and the environment in a manner that enhances the sustainable development objectives of the RMA.