Assuming that the second stage review of the Resource Management Act (RMA) is as "comprehensive" as the Government is promising, the Environmental Defence Society's (EDS) Synthesis Report, launched last month, may be recognised in history as a landmark document.
Certainly, the launch was an A-list occasion (including such luminaries as Sir Geoffrey Palmer, Simon Upton and Principal Environment Court Judge Laurie Newhook), and Environment Minister David Parker’s speech indicated a commitment to significant change.
We summarise the three reform models offered by the EDS, and look at the process from here.
The EDS Report runs to over 300 pages (although there is also a 40 page summary) and has buy-in from the Auckland Employers’ and Manufacturers’ Association, Infrastructure New Zealand and the Property Council.
The EDS will develop a preferred option over the course of this year from the three options presented below, and a transition pathway from the current system.
Three potential reform models
Model One would retain the RMA as a single statute for managing both the natural and the built environment, and extend its jurisdiction into the Exclusive Economic Zone and Continental Shelf (currently subject to separate legislation).
It would also introduce a Spatial Planning Act, requiring that local authorities create spatial plans to guide integrated decision-making under the RMA, the Local Government Act (LGA), the Land Transport Management Act (LTMA), and other relevant statutes, all of which would remain as standalone instruments.
Model Two would split the RMA into a Planning Act and an Environment Act.
The Planning Act would incorporate the infrastructure planning and funding components of the LGA, the LTMA and the proposed Housing and Urban Development Authority Act. It would also provide for an enhanced system of spatial planning.
The Environment Act would absorb the protective elements of the Fisheries Act 1996, Forests Act 1949, heritage legislation, and the Environmental Reporting Act 2015.
There would be a separate Allocation Act, which would deal with the current resource allocation functions of the RMA, Crown Minerals Act 1991, and Fisheries Act.
Other changes would include:
- the integration of conservation and species protection law into a single Protected Areas and Species Act
- an overhaul of local government arrangements; including the establishment of regional-level unitary councils, the decentralisation of land transport planning, and the compulsory creation of regional council-controlled organisations for the provision of water and waste-water services, and
- a “beefed-up” Environmental Protection Authority (EPA) to deal with environmental regulation.
Model Three would result in four core statutes – a new Environmental Protection Act and a new Resource Stewardship Act, along with the LGA and the LTMA. These core instruments would be subject to an over-arching “Environmental Strategy Act”.
The Environmental Protection Act would impose strict bottom lines under a protective purpose. These bottom lines would be created by a strengthened EPA with a more powerful mandate and better resourcing.
The Resource Stewardship Act would be about facilitating trade-offs and pursuing synergies in resource use above those bottom lines.
The LGA and LTMA would perform the functions they do now.
The overarching Environmental Strategy Act would sit above these core Acts and would:
- provide common principles that would have to be given effect to in all resource management legislation, and
- require the production of spatial plans to align decisions on land use planning and infrastructure funding under the four core Acts above.
In addition, there would be a separate Allocation Act, incorporating the allocative parts of the RMA and the Fisheries Act (but not the Crown Minerals Act, which would remain separate).
To avoid fragmentation, the six Acts would absorb relevant existing provisions relating to: the EEZ, climate change, heritage, pest management, environmental reporting, waste minimisation, conservation land, protection of flora and fauna, and protection of fisheries.
The current Environment Act would be renamed the Environmental Governance Act, and would subsume provisions that establish permanent institutions like the Environment Court, the EPA, and a new independent Resource Management Commission (this commission would be charged with holding the Government to account in relation to environmental bottom lines and would subsume the Parliamentary Commissioner for the Environment and the proposed Climate Commission).
Delivery of water and waste-water services would become the responsibility of regional level, arm’s-length Crown entities. That would require bespoke legislation – a Water Services Act – which would also need to be aligned through the spatial planning process mentioned above.
Local government funding would come primarily from a regional GST, and the tax system would be gradually reconfigured on the basis of an environmental footprint tax.
The Minister’s speech
Interestingly the speech was not immediately available on the Beehive website because the Minister’s office had to edit the text to reflect what Parker actually said. So what did he say?
- He described the report as “a significant contribution” which would inform the Government’s approach to the reform of the resource management system.
- He reiterated earlier comments that valuable jurisprudence had developed under Part 2 of the RMA which should not be lightly discarded but said he was “open to considering different and potentially better ways of expressing core principles and setting and implementing bottom lines – for example through placing greater emphasis on longer-term spatial planning”, and
- He agreed that, to be successful, the review had to address unduly complicated and varied RMA processes, which had “bred like fleas”, sometimes incentivised effort in the wrong places and had made obtaining a consent or objecting to a decision “increasingly inaccessible without expert help”.
Government timeline from here
First on the Minister’s ‘to do’ list is the Bill to roll back some of the changes implemented by the National Government in 2017. That Bill will be passed this year, but is only the curtain-raiser.
The second stage review will be the main match and will be progressed as the smaller Bill is moving through the House. Parker expects to be able to report to the Cabinet on scope and process in the near future. After that, he will engage with key stakeholders to ensure that “multiple perspectives are heard before final decisions are made”.
The information in this article is for informative purposes only and should not be relied on as legal advice. Please contact Chapman Tripp for advice tailored to your situation.