Proposed RMA reboot draws ire
As the dust settles on the 2 April 2013 close of submissions on Environment Minister Amy Adams’ discussion document Improving our Resource Management System, a sense is emerging that not only do the proposals represent the biggest shakeup in the 21-year history of the Resource Management Act, but also that the government’s third major package of changes to the legislation since 2008 will be the most controversial so far.
The changes outlined in Improving the Resource Management System sit alongside another group of proposals concerning freshwater management – Freshwater Reform 2013 and Beyond. Release of the Freshwater document was staggered by one week, with submissions due on 8 April. The limited time allowed for interested parties and groups to digest and comment on the far-reaching proposals has been widely condemned.
Officials have been staunch in dismissing suggestions that the timeframe for review for changes as significant as those flagged was inappropriately tight.
“The Minister has made it pretty clear: a deadline is a deadline. The train is rolling,” was Ministry for the Environment official Douglas Birnie’s curt rejoinder to an environmental NGO representative pleading for more time at a public meeting on the proposals in Auckland on 25 March.
At the meeting, Birnie took the opportunity to outline the drivers for the proposed reform from the government’s perspective. Minister Adams is said to be concerned not so much with existing RMA outcomes, but rather “with the time and cost in getting to answers”, as well as the RMA operating as a “cheque-book law…where those with large cheque books can burn other people off”.
The government is also keen to put in place a framework under which it can better “signal its priorities” through the RMA process. In the Auckland context, availability of land for residential development is explicitly in the Minister’s sights. But it is also plain that roading, energy generation, infrastructure, heritage and conservation management are areas where the government sees further stream-lining of environmental regulatory processes as necessary.
One aspect of the reforms that has attracted some attention is the proposed amendments to Part 2 of the RMA. Apart from a number of confined tweaks, this part of the legislation containing the Act’s purpose and principles has remained largely intact since its inception in 1991. In line with recommendations of a 2012 ‘Technical Advisory Group’ report, the Government plans to delete a number of specific statutory considerations from two existing lists of decision-making criteria in Part 2, do away with the current hierarchy applying to those lists, and insert a ‘Methods’ section. The new section 7 would include specific directions to “use concise and plain language” in plans as well, more generally, for decision-makers to “achieve an appropriate balance between public and private interests in the use of land”.
Amongst the existing Part 2 matters proposed for deletion are references to “the ethic of stewardship”, “the maintenance and enhancement of amenity values”, “intrinsic values of ecosystems” and “maintenance and enhancement of the quality of the environment”.
The rationale for removing these matters is that, in the government’s view, they are already “effectively encompassed in section 5 of the Act”.
Intriguingly, Birnie noted at the public meeting on 25 March “We’ve also tested this thinking, quietly, with the Environment Court, and they are not alarmed by these changes to sections 6 and 7.”
Environmental groups are less relaxed about the changes. The submission by the Environmental Defence Society suggests that “the changes will involve considerable costs and will increase uncertainty in the short term, as they will require the review of all regional and district council plans as well as National Policy Statements. The changes will render much existing case law obsolete, providing interpretation challenges until new case law emerges which may take a decade.”
Nor are environmentalists the only ones with reservations over the proposed changes to Part 2. In a 1 March discussion document, Russell McVeagh wryly observed “The changes to sections 6 and 7 are not without difficulties… The proposals seem to have been developed with the urban environment and housing in mind, and may have unintended consequences when applied in other contexts.”
However the strongest criticism of the proposed reforms has been directed towards plans to increase the degree of central government involvement in resource management decision-making. Amongst a range of options mooted for strengthening central government influence on local decision-making is a proposal to allow the government, in certain circumstances, to directly amend an existing operative plan (bypassing the normal consultation, submission and appeal processes) in order “to address more urgent issues that are nationally or regionally significant”.
EDS describes the Minister-directed plan change proposal as “constitutionally obnoxious”, “resonant of ‘unbridled power’” and “reminiscent of the ‘Think Big’ days of Prime Minister Muldoon’s National Development Act”. The Royal Forest and Bird Society views the concept as “an inappropriate interference with local and regional autonomy”.
Not all of the proposals have been met with such muscular resistance. There appears to be across-theboard support for the inclusion of a Part 2 principle that obliges decision-makers (and local authorities in particular) to consider the implications of natural hazards. Strengthening processes and opportunities for effective iwi/Maori participation in resource management planning is similarly uncontroversial. There seems to be widespread acceptance of proposals to improve monitoring and accountability measures and require adoption of standardised templates for policy instruments and common definitions for frequently used terms; so too, with a requirement to make greater use of collaborative planning techniques.
The government expects decisions to be made on policy options concerning both the resource management and water components of the wider planning and environmental reforms by mid-2013. An amendment bill is to be introduced by the end of 2013. There will be further opportunities for submission through the select committee process.
Material changes to the government’s last comprehensive environmental legal reform initiative – the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Bill – were implemented following strident submissions and lobbying on behalf of environmental and other interests both within and outside of the select committee process in 2012. It remains to be seen whether a similar path to that adopted in respect of the coastal management framework will be followed for New Zealand’s land and freshwater.
Vernon Rive is a barrister and Senior Lecturer in Law at AUT Law School, Auckland, where he teaches and researches public, environmental and international environmental law.