The Government is currently in the process of scraping the 30-year-old Resource Management Act (RMA) and replacing it with three new pieces of legislation. The three new replacement Acts are:
• The Natural and Built Environment Act (NBA), whereby local government and mana whenua will be required to form joint, regional planning committees to develop one NBA plan for each region, 16 in total.
• The Strategic Planning Act. This will provide long-term spatially based regional planning. Local government, mana whenua and central government agencies will be required to form joint committees to develop one long-term Regional Spatial Strategy for each of the 16 regions.
• Climate Adaptation Act, to deal with the impacts of climate change. The government plans to introduce this legislation later in 2023.
No one denies the current RMA needs reforming. However, both the Natural and Built Environment and the Strategic Planning Bills have come under significant criticism from parties in the public and private sectors who have expertise and a strong and relevant interest in resource management issues. Many claim the government’s proposed reform package will make the resource management system even worse.
Specific concerns raised by various submitters on the two bills include the following key points:
The legislation leaves too many things ‘To Be Confirmed’ later
The proposed legislation fails three key principles of the rule of law - certainty, equality, and clarity. This problem begins with the NBE bill’s overarching purpose statement, which introduces vague and puzzling concepts without any clear definition.
These and other poorly defined concepts will result in the shifting of policy making powers from Parliament to the Courts. While some court interpretation is always on the cards, a situation where new law is heavily dependent on court interpretation and jurisprudence, as this legislation will be, shifts the responsibility for defining the law away from our democratically elected Parliament to appointed judges.
Dr Bryce Wilkinson of the NZ Initiative writes in his commentary ‘When a Bill’s objective is vague, its provisions are rudderless’.
“The recommended NBE Bill looks as unworkable and misguided as its earlier version.
The problems start with the NBE Bill’s purpose statement. It does not identify any problem in the community for which the Bill is the remedy. Its stated purpose, “to uphold te Oranga o te Taiao”, is unfathomable. We are not told who is not upholding it, why not, or why it matters.
The meanings it is given are as all-encompassing as motherhood and apple pie. Who decides what is the “health of the environment”, meaning everything inside and outside our homes and all our relationships with each other? And how does it help to say its meanings include “the interconnectedness of all parts of the environment”?
The courts will likely spend a decade fathoming the unfathomable”.
Another provision carrying significant statutory implications is the requirement to give greater recognition of Te Tiriti o Waitangi. Anyone exercising powers, functions or duties under the Act will be required ‘to give effect to’ the principles of te Tiriti. This is a step further than the current legislation, whereby decision-makers are required to ‘take into account’ those principles. This is likely to lead to litigation about how this provision will be interpreted.
Even more red tape
An additional complication is the obligation that the regional committees “must have particular regard to te Oranga o te Taiao statements, with the definition being “any statement prepared by an iwi or hapū of a region to express their view on how te Oranga o te Taiao can be upheld at the regional and local levels”. This term is completely new to New Zealand law and is likely to cause significant confusion and potential legal disputes.
“[te Oranga o te Taiao] is defined
to include the relationship
between iwi and individual
hapu and the environment.
It places untested, undefined
and unpredictable race-based
considerations at the centre
of the planning process”
– Roger Partridge,
The New Zealand Initiative
The loss of local voices and democratic accountability
The reform package shifts all land use planning away from local government (city and district councils) to 16 new regional entities. Although local communities may have an elected representative on the Regional Planning Committee, the voice of local communities on local issues will be severely diluted under this centralised regional planning structure.
While ratepayers will provide the funding for these committees, they will act independently of local government. There is no requirement for members of the committees to seek prior authority for their decisions from their appointing bodies.
Decision-making at arms’ length from local communities means it will be near impossible for citizens to hold the members of these powerful committees to account via the ballot box. And yet, they will have the authority to set rules that govern many aspects of our lives. This will include how we build our houses, how our towns are planned, where shops can go, how industry can operate, where our infrastructure goes, and how we farm. Essentially, every home and business will be impacted by the rules these committees make.
To exacerbate this loss of democratic accountability, each committee will have a minimum of two Māori members appointed by iwi and hapū groups. Environment Minister David Parker disingenuously claims there will be no co governance in the RMA reforms saying “The Government is not proposing 50-50 co-governance. Regional planning committees will have a legal minimum of two Māori representatives. Local councils and Māori in a region can then agree on whether they want more [on each Committee]”. However, in making this statement, Mr Parker is not considering the provision requiring anyone exercising powers, functions, or duties under the Act to give effect to the principles of te Tiriti. Partnership is often promoted as one of the principles of the Treaty. The partnership concept is increasingly being manifested as 50:50 co-governance arrangements. Indeed, a recent Waitangi Tribunal report recommended, in relation to the Regional Planning Committees, that “all the claimants and interested parties agreed that the composition of the committees should be on a co-governance 50:50 basis”.
Overview
“The potential for 50 per cent of committee members to be unelected, the ability for the Minister to make an appointment to each RPC, and the directions that can be given through te Oranga o te Taiao statements and by the National Māori Entity will significantly undermine democratic accountability”. Ray Deacon, New Zealand Taxpayers’ Union
Freshwater allocation concerns
Currently, decisions on freshwater allocation are largely made by local government. However, the NBE bill proposes a significant change. A Freshwater Working Group will be established, which will develop a process for engagement between the Crown and iwi and hāpu, at the regional or local level, on freshwater allocation.
The outcome of this engagement may be reflected in an allocation statement on the issues relevant to the allocation of freshwater, if agreed between the Minister and iwi and hapū.
Alarm over short timeframe for new resource consents
The statutory limitation of 10 years for any new resource consent allowing the taking of water or the discharge of contaminants into water or onto land will have a negative effect on new investment. Many investments making use of such consents have a much longer useful life than 10 years.
“Ten years is not long enough to
provide investment certainty for
investors to make meaningful
decisions to invest in land and
capital. Investing in new farm
irrigation infrastructure will
require much more than 10-years
of certainty to gain bank finance.”
- Federated Farmers Submission
on the NBEB and SPB
The Electricity Sector Environment Group warns that the new legislation would make it significantly more difficult to get resource consent for major renewable energy projects such as wind, hydro and geothermal power. According to Contact Energy, the proposals “simply provide more ammunition than ever before to frustrate and stall, obfuscate and delay critical investment”.
Nevertheless, its full steam ahead
Many submitters recommended this proposed legislation be withdrawn and that a reappraisal of the approach to resource management be conducted. However, despite all the damning criticism, the government remains determined to progress its reforms, with the Ministry for the Environment saying both bills will become law in mid-2023.
References
• Spatial Planning Bill
• Natural and Built Environment Bill
• Natural and Built Environment Bill as reported
from the Environment Committee
• Simpson Grierson: Resource management reform discussion paper – December 2022
• Federated Farmers submission on the Natural and Built Environment Bill and Spatial Planning Bill
• Replacing the Resource management Act 1991 -
Ray Deacon NZ Taxpayers’ Union
Decision-making at arms’ length from local communities means it will be near impossible for citizens to hold the members of these powerful committees to account via the ballot box. And yet, they will have the authority to set rules that govern many aspects of our lives.