A Governance Problem, Not a Turbidity Debate
Post by Andi Cockroft, Chair, CORANZ
Recent reporting on the Kakahu River has been framed around murky water (eg: see here or here), irrigation pressure, and competing interests. Those elements matter, but they are not the core issue. At heart, this is a governance and rule-of-law problem - one that goes well beyond a single river or consent.
The question raised by the Opuha Water case is not whether irrigation is legitimate, nor whether conditions can be challenging in dry years. It is whether environmental regulation retains credibility when a regulator explicitly states that consent conditions still apply, while simultaneously deciding not to enforce them.
That distinction may be legally defensible in narrow terms. In practice, it is corrosive.
The problem is not discretion - it is how it is used
Regulators require discretion. No enforcement system can function mechanically. Case-by-case judgement is essential.
But discretion has limits. When it becomes predictable, prolonged, and conditional on the regulated party’s operational needs, it ceases to be discretion and starts to look like de facto consent variation without process.
In this case, correspondence shows that Environment Canterbury acknowledged historic and ongoing breaches of consented water-clarity limits, while stating an intention not to take enforcement action under certain conditions. Those breaches would still be recorded as non-compliant, but tolerated.
From a governance perspective, that creates a fundamental ambiguity:
- If a condition applies but will not be enforced, what status does it actually have?
- If non-compliance is acknowledged but action is deferred indefinitely, what incentive remains to comply?
- If enforcement is suspended in practice, how is that different - in effect - from rewriting the consent?
These questions do not require a position on irrigation. They go to the heart of regulatory integrity.
Process matters as much as outcome
Environmental regulation relies on clear, transparent processes for altering obligations. If consent conditions are no longer workable, there are established mechanisms:
- formal consent review or variation
- public notification where appropriate
- independent assessment of effects
- defined timeframes and end points
What undermines trust is not change, but change by informal tolerance.
When decisions of this magnitude are conveyed by email, framed as “finely balanced” judgements not to enforce, the boundary between regulation and negotiation becomes blurred. That blurring is what damages confidence - for consent holders, affected communities, and the wider public alike.
The precedent problem
Perhaps the most serious governance risk is not what happens on the Kakahu, but what happens next.
If it becomes accepted practice that consent conditions can be exceeded during “critical” operational periods, subject only to reporting and an eventual plan to improve matters, then those conditions are no longer firm bottom lines. They are aspirational targets, contingent on economic circumstances.
That precedent does not remain local. It travels.
Other consent holders will reasonably ask:
- why enforcement discretion applied here should not apply elsewhere;
- why temporary exceedances cannot become normalised in other catchments;
- why compliance should be prioritised if enforcement is negotiable.
Once that logic takes hold, regulation becomes uneven by default.
Collaboration cannot replace enforcement
Regulators often emphasise collaboration, and rightly so. Cooperative approaches can achieve better outcomes than adversarial ones.
But collaboration is not a substitute for enforcement; it is a complement to it.
When collaboration is invoked instead of enforcement - particularly after years of acknowledged non-compliance - it risks being perceived not as partnership, but as accommodation. That perception matters, because regulatory systems depend as much on public confidence as on statutory authority.
A regulator that collaborates while enforcing retains legitimacy. A regulator that collaborates while declining to enforce risks losing it.
Why this is a governance issue, not a personality issue
It is important to be clear about what this is not.
This is not an argument about individual motives, personal backgrounds, or bad faith. The reporting does not require those assumptions, and neither does the governance critique.
The issue lies in institutional behaviour:
- how discretion is exercised,
- how decisions are documented,
- how temporary measures are bounded (or not),
- and how the line between regulation and accommodation is maintained.
Those are structural questions. They deserve structural answers.
What good governance would require here
Without prejudging the eventual outcome, a governance-sound approach would involve:
- clear articulation of the legal basis for any non-enforcement decision;
- defined time limits on tolerance of non-compliance;
- transparent criteria for what constitutes “critical” conditions;
- and, crucially, a formal pathway for altering consent conditions if they are genuinely unworkable.
Absent those elements, decisions may be lawful in isolation but still damaging in aggregate.
Why this matters beyond one river
CORANZ engages with a wide range of environmental and resource-management issues. Across those domains, a consistent pattern emerges when governance weakens: rules become flexible, discretion expands, and confidence erodes.
The Kakahu case is not significant because it is unique. It is significant because it is familiar.
When enforcement becomes optional, regulation stops being a safeguard and starts being a negotiation. That shift may feel pragmatic in the moment, but its long-term cost is institutional credibility - something far harder to restore than to maintain.Bottom of Form
We have the same situation with freedom camping.
New legislation was supposed to standardize rules around the Country but has done the opposite, with many Councils not supporting the self contained motor vehicle legislation and even less enforcing it.
It difficult to know where one stands and to be subject to enforcement under such conditions is absurd.
There is also a situation where some if not most certifying officers are failing to enforce the regulations as written, and are using thier own discretion, on allowing non fixed portable toilets and various forms of fixing brackets as compliant, when they are expressly prohibited, and all with the blessing of the regulating authority, whose regulatory duty is to mandate compliance with the act.
This article makes me wonder whether ECan has been captured by the very people it is meant to regulate.
Mike Joy’s book “The Fight for Freshwater” illustrates this trend in relation to government departments, one being the Ministry for Primary Industries. When Joy was dealing with that outfit over eel fisheries he got the clear impression MPI officials felt their task was to protect the eel fishing industry, not the eel fishery.
The solution to the problem on the Kakanui is remarkably simple – a consent variation. The problem is that ECAN is too lazy and their consent processes too complex for them to even contemplate such a rational solution. Farmers need surety as much as any other river resource user and that is what the consent variation process provides. It seems as though ECAN is afraid of its own processes.
It seems inevitable that as more and more regulations are imposed on people compliance, and ministration and enforcement of them will increasingly fail.
That is summarized in the old saying that “rules are made to be broken”.
It is difficult to get through a normal day without potentially or actually infringing some rules and regulations and almost always getting away with it.
Be honest. How many times have we all done so?
We are doing it because there are too many impractical regulations that we regard as more detrimental than beneficial.
A wise person, (unlike the Omnipotent Moral Busybodies called “the government) understands that rules that cannot be consistently enforced will not be complied with by people that are not willing to comply.
The same wise people understand that excessive rules and regulations, that cannot be consistently administered, encourage people to disregard and not comply with those that are necessary and practically beneficial for ourselves as well as others.
The basic purpose of rules and regulations is to remind and discourage us from doing things that are harmful to other people, their property and lives.
Acceptable rules and regulations that benefit ourselves as well as others are willingly complied with and easy to administer and enforce.
Those that are not willingly accepted as beneficial for ourselves as well as others are less likely to be complied with and also increasingly more difficult to administer and enforce.
Most of the current government regulations have been imposed on all of us because of what what some person or a minority of people did that caused harm to another person or their property.
The rest of us feel FORCED to comply, but are unwilling to, because we did not and are not likely do do those harmful things.
Therefore, we are forced to comply with rules that do not apply to us and disadvantaged by having them imposed on us.
We increasingly want to rebel. against more of the rules and people that imposed them on us.
Eventually, we find out that the people, who imposed all of this excessive regulation on all of us against our will, cannot consistently administer and enforce them and we stop complying because the potential benefits of not complying are better than the potential consequences.
The rational thing to do would be to get rid of the excessive and less mutually beneficial regulations that people do not comply with and be able to consistently administer those that are practical and mutually beneficial.
Unfortunately, our current politicians and bureaucrats will never do that because all they understand is imposing more regulations on us and spending more of our money to administer them.
The solution is for more of us to responsibly rebel, by joining, participating and gaining more influence in the major political parties, to replace their current political celebrities with new and better ones who respect the people they have been hired by and are employed to serve instead of try to rule us.
To be clear about this proposed “rebellion”, I do not ever suggest or recommend violence of any kind but rather the utilization of the political system we have while we are still allowed to participate in it.