Katharine Moody casts an eye over the Government's 'cumbersome' RMA reform bills saying they're a base worth sticking with

By Katharine Moody*

The mothership of the Resource Management Act 1991 (RMA) reform has landed in the form of the Natural and Built Environment (NBA) Bill and the Spatial Planning (SPA) Bill introduced to Parliament last week, reported by interest.co.nz here.

The NBA alone contains 10 parts, 861 sections and 15 schedules. My first thought was, what a nightmare – time to retire.

From an ideological perspective, this mothership is light years away from 1991. Buckle-in for a new horizon. Here are but a few 1991 vs 2022 comparisons.

Credit: Heidi O'Callahan (August, 2021).  Note: in the above diagram, ‘Strategic Planning Act’ has since been re-named the ‘Spatial Planning Act’

Effects-based vs outcomes-based

The RMA heralded a world-first in introducing an effects-based environmental management regime. This novel ideal seemed to faulter in practice, but its intent on conception was that anyone could propose to do (nearly) anything as an activity, provided that the activity could be shown to either ‘avoid, remedy or mitigate the adverse effects of that activity on the environment’.

In comparison, the NPA is an outcomes-based environmental management regime. In 1991 New Zealand had no environmental reporting regime. Hence, Geoffrey Palmer’s resource management reform group, had no nationally standardised, quantitative understanding of the state of New Zealand’s environment. Since the enactment of a reporting regime in 2015, data collection and
reporting has gone some way to fill this information gap.

The cumulative effects of all the activities are/were not adequately dealt with under the RMA, as each consent applied for has to be considered on its merits - in isolation of the wider implications to the receiving environment on the whole. The NBA with its outcomes-based focus, changes all that.

Sustainable management vs te Oranga o te Taiao

The RMA purpose introduced a uniquely New Zealand legal construct, the concept of sustainable management (not to be confused with the more common globally used concept of sustainable development). The RMA purpose, section 5, goes on to provide a definition of sustainable management, on which this singular purpose of the RMA is based.

The NBA however has a dual mandate, or purpose. The second leg of this dual mandate likewise introduces a uniquely New Zealand legal construct named, te Oranga o te Taiao, literally translated as the health of the environment.

The Randerson Report (the conceptual basis on which the NBA was developed), explains that this new concept was included in the purpose of the Act, with the “…intention is that this will help to promote a shared environmental ethic” (page 75, 115-116). And the Government in its explanatory note on the NBA Bill, tells us that, the new Act;

“…draws on te Oranga o te Taiao, a te ao Māori concept that speaks to the health of the natural environment, the essential relationship between the health of the natural environment and its capacity to sustain life, and the interconnectedness of all parts of the environment.”

This is a somewhat misleading statement by the Government, as the definition of te Oranga o te Taiao (NBA, interpretation) includes an additional ‘limb’ not mentioned above, that being;

te Oranga o te Taiao means—
(a) the health of the natural environment; and
(b) the essential relationship between the health of the natural environment and its capacity
to sustain life; and
(c) the interconnectedness of all parts of the environment; and
(d) the intrinsic relationship between iwi and hapū and te Taiao

This fourth ‘limb’ (clause (d) above) looks to have been latently added to the definition, as it is not mentioned in either the Randerson Report, nor the Government’s explanatory note. I doubt it has been through the same rigour in consideration that other changes to the Act’s purpose have been.

If indeed te Oranga o te Taiao is intended to be a shared environmental ethic, the exclusionary reference to iwi and hapū (as opposed to “people and communities” as per the RMA definition of sustainable management) is a concern that I imagine will be raised in the select committee stage of the Bill’s development.

Bottom up vs top down

The RMA was intended to be a bottom-up form of resource management, with an emphasis on participatory democracy by those living closest to, or most directly affected by, decisions made under the Act. The NBA looks to have reversed that direction, being far more prescriptive ‘from above’.

The NBA confers wide-ranging centralised powers to bureaucratic elites, including iwi and hapū elites in decision-making. It introduces ‘hard’ environmental limits, as either minimum states or maximum pressures on the biophysical environment, via a National Planning Framework. Activities that exceed these limits will be prohibited. And, should an activity fall somewhere between an environmental outcome and an environmental limit, then a set of measurable, time-bound targets will be defined to achieve environmental outcome improvements with respect to the resources concerned over time.

Replacements for district and regional plans, now called natural and built environment plans, must reflect these higher order, directive legislative instruments, and those centrally developed instruments in the lower order plans ‘will reign’. Which leads to the next comparison.

Community planning vs committee planning

Whereas the RMA purpose referred to enabling “people and communities” to provide for their social, economic, and cultural well-being; reference to “people and communities” makes no appearance in the purpose of the NBA.

Natural and built environment plans will not be written by a local council planning department, made up of people living in the communities they serve and answerable to locally elected council members. Instead, they will be written by a new form of statutory authority, called a Regional Planning Committee (RCP). These new statutory bodies will have “…separate legal standing from its
constituent authorities and organisations for the purpose of commencing, or being a party to, or being heard in legal proceedings” (NBA Section 100(4)), including of course, plan development and plan changes.

NBA Schedule 8 describes the provisions relating to membership, support, and operation of these regional planning committees. The composition of these committees is defined in NBA schedule 8(2), and reads;

2 Members
(1) A regional planning committee must comprise at least 6 members, but there is no limit on the total number of members.
(2) Each local authority in the region of the committee may appoint at least 1 member.
(3) Members appointed by a local authority must be appointed in accordance with a composition arrangement in accordance with this schedule.
(4) Iwi authorities and groups that represent hapū must, by a process they determine themselves, set up an iwi and hapū committee for the purpose of determining the Māori appointing body or bodies.
(5) At least 2 members must be appointed by 1 or more Māori appointing bodies of the region.
(6) The responsible Minister may appoint 1 member to participate in the functions of the committee under the Spatial Planning Act 2022.

Closing remarks

There is of course, much water yet to go under the bridge in bringing the new regime to fruition. There are many more comparisons not made here. But, some key questions about the reform that are worth contemplating are;

- Will it demonstrate improving trends in future state of the environment reports on New Zealand’s natural environment?

I think so.

- Will it provide for greater efficiencies and lower costs in realising small scale developments by individual property owners?

I think so.

- Will it make larger scale development more difficult?

I think so, as the parameters for commercial and industrial development will be more constrained by targets and environmental limits. This is not necessarily a bad thing, as constraints can foster greater innovation in design and engineering of activities pursued within the environment.

- Will the mothership ever actually fly?

Good question, as planning is political.

That said, the need to embark on a new horizon of repeal and replacement of the Resource Management Act is one thing all sides of the political spectrum likely agree on. To my mind although the bills look dreadfully cumbersome, they are a basis worth sticking with.

Enunciating a legal framework for the integrated management of buildings, infrastructure and natural resource use, development and protection in a single statute, is a mammoth task. It was in 1991, and so it is in 2022.

*Katharine Moody is a senior tutor at Massey University's College of Humanities and Social Sciences in Palmerston North, who comments on interest.co.nz as "Kate". The views expressed in this article are her own and don't necessarily reflect those of Massey University.