Commentary

Vagaries and complexity in RMA Replacement

September, 2021

By: Alan McDonald

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While Covid and lockdowns dominate the New Zealand conversation there are still other major policy changes making their way through the parliamentary system that have critical impacts on the future of New Zealand and our business outlook.

One of the most significant is the exposure draft of the proposed Natural and Built Environments Act, one of three Acts proposed to take the place of the much-maligned Resource Management Act (RMA) – the others are the Strategic Planning Act and the Climate Adaptation Bill.

These three new Acts will literally build the future of New Zealand so it’s critically important we get them right.

The EMA was one of the key drivers in scrapping the old and unwieldy RMA, an Act created with the best of intentions that could arguably have worked if not for the multiple interpretations and muddled implementations of nearly 70 different councils and continual Amendments and reforms of the original act by various Governments. 

But it’s looking a little like “be careful what you wish for,” as the exposure draft contains complex areas that aren’t fully dealt with and is silent on several critical issues. More complexity and vagueness are the last thing we want in this new legislation and that was the thrust of submissions on the bill and to the recent Environment Select Committee hearing oral submissions.

One of main concerns is that despite the name of the Bill the exposure draft is almost completely about environmental limits and outcomes and has very few references to the built environment despite the Randerson report on which it is based setting out a number of outcomes for the built environment.

The Hon. Tony Randerson was openly critical of this approach at the recent Environmental Defence Society Conference, but Minister Parker was unapologetic at the same conference. He said he’d deliberately removed the built outcomes as they were subjective and caused – like amenity value – many of the issues in the old RMA.

However, you do need guidelines for those built outcomes particular in how they relate to the environmental outcomes and that is another issue.

In fact, the whole draft is weighted towards an environmental emphasis while remaining silent or even detrimental to built outcomes. Our view is they should at least have equal weighting if we are ever to catch up on our infrastructure deficit and acute housing issue.

The Exposure Draft contains 16 different outcomes some of which will compete against or be contradictory to each other. An outcome for housing or development will almost certainly be in direct conflict with an outcome for the environment and there is nothing in the Exposure draft to indicate how these outcomes will be weighted or prioritised and who will make those decisions. Throwing that many outcomes into the uncertain mix that is implementation by our many and varied councils is a recipe for confusion and legal expense.

Leaving the setting of environmental standards to the Minister repeats one of the key problems with the current RMA where successive Ministers disagree with previous changes and reset the bar. Current Minister Parker doing away with previous Minister Nick Smith’s amendments is just one example.

Setting these standards almost by decree by the Minister and his department is also highly problematic if the limit is not robustly tested. An example is the recent standard on freshwater, passed too hastily with almost zero consultation.

The result basically brought the expansion of much needed resources in the quarry industry – you can’t build much with aggregate – to a halt and posed significant potential problems for new housing and transport projects. It’s already being rewritten.

The current definition of Te Oranga o te Taiao and its place in the hierarchy of considerations for environmental outcomes could also become problematic. It is the vehicle by which the Act will give life to Tea o Maori and the Tiriti principles. It currently only references the environment and places the environmental outcomes above all else.

Iwi delegates I spoke to at the EDS conference were also surprised that the current definition did not include people as part of the outcomes. Under its current definition and taken to its extreme, Te Oranga o te Taiao could conceivably be used to stop almost any development of any kind.

Our other key concerns centre around what is not in the Exposure Draft and how the three Acts will interact with each other, another potentially legally complex minefield.

The Exposure Draft is silent on Existing Rights, does not deal with implementation, governance and funding and stays away from the topic of allocation of rights and compensation for the taking of existing rights.

Our other major concern is with the speed of the proposed timeline.

We have yet to see the other two Acts, but the Government’s intention is to have the NBA and those two complementary acts in place prior to the 2023 general election.

This nation building legislation is too important to rush for the sake of an election and we can’t afford to get it wrong as it will set the template for the environmental and development outcomes for the country probably for the next 25-30 years.

It shouldn’t be forgotten that the RMA was started under a Labour government and finished under a National government. We need that cross-party support again.

 

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