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EDS supports resource management reform bills but calls for key improvements

23 December 2022

The Environmental Defence Society has released some initial thoughts about the two new bills that will replace the Resource Management Act next year and says it will continue to support the reforms. However, it is calling for important improvements to be made.

“These bills have been through a long gestation period over several years that involved an independent expert panel and wide engagement with iwi and key stakeholders,” said EDS CEO Gary Taylor.

“They have their genesis in earlier work undertaken by EDS and business partners that demonstrated that the Resource Management Act (RMA) was not delivering for the environment or for people and was in urgent need of reform. The intention behind the reforms have been well-canvassed by commentators, and by Minister David Parker, but in essence it is to reduce the numbers of plans, provide more certainty for development and better protect and restore the environment by focusing on environmental outcomes, limits and targets.

“Our preliminary thinking about key parts of the Natural and Built Environment Bill (NBEB) and the Spatial Planning Bill (SPB) is being released today to provide some guidance to would-be submitters and to seek constructive feedback from those taking a deep dive into the bills. We strongly support their enactment next year and strenuously oppose calls for further delay,” said Gary Taylor.

“There are some important improvements in the Bills relative to the RMA, such as a framework for environmental limits, targets and outcomes, a more nuanced system for compliance and enforcement, and strengthening of water conservation orders. But there are also fixes required to improve the workability of the legislation and to ensure that the environmental gains promised are actually achieved,” said Senior Research Director Dr Greg Severinsen who has led the past 5 year’s work on resource management reform for EDS.

“Priority issues to be fixed include the following:

  • There’s need for a clearer and more directive purpose statement in the NBEB. Currently there are two quite distinct purposes, and little guidance as to how overlapping and potentially conflicting concepts are meant to work together. Instead of one conjunction (“while”) to argue about in the RMA, there are three or more linking words in the Bill’s purpose that will invite extensive litigation. What is needed is a simple purpose statement about the imperative for environmental protection and restoration, with other things subject to it. We’ll be providing alternative drafting.
  • The system for environmental limits, while good in principle, needs more work. Limits are defined as the current state of the environment at the time of enactment. While it’s important for things to not get any worse than they are at the moment, this isn’t what most people think of as biophysical “limits”. There needs to be a more absolute definition of where limits lie, based on measures of ecological integrity, and they need to be defined with more precision for each domain. It’s notable that limits for protecting human health are described in an absolute way (in that it’s not just trying to prevent human health from getting worse than at 2023, it’s simply to “protect human health”). And although mandatory “minimum level targets” set by the Minister are meant to perform this function for ecological integrity, the target setting framework has some issues (including excessive discretion for when they have to be set, uncertainty about what they’re aiming to achieve, and little guidance about how long it should take to meet them).
  • There are a number of mechanisms by which environmental limits can be undermined which need to be significantly tightened up. Provision is made for “interim” limits which can allow 2023 levels of ecological integrity to decline further if stresses or harm are already in existence (the so called “lag effect”, but potentially justifying existing uses and consented activities to continue). Exemptions, even to such lower interim limits, can be allowed if requested by a planning committee where the “public benefits” justify the loss of ecological integrity. That’s re-introducing an overall balancing approach which undermines the very purpose of having limits in the first place. Exemptions can’t be granted where an environment is already “unacceptably degraded”, or where they would result in irreversible loss, but those things are not defined in the bill, involve broad ministerial discretion, and are not really legal tests.
  • Limits are to be set across vague “management units” with the risk that harm can be averaged out over wide areas. This could result in significant localised degradation and associated environmental justice issues. In addition, “efficiency” and maximising opportunities for offsetting, which are specific considerations when setting management units, could serve to undermine the effectiveness of limits. There needs to be tighter direction around setting management units which should be ecologically based.
  • There are other issues with the provisions applying to limits which need to be addressed. Designations are not explicitly required to comply with limits and should be. Current drafting implies that limits can be complied with by providing “redress” (ie compensation) for breaches, something which should be explicitly excluded. There are broad exemptions to the NBEB’s requirements not to cause impacts on significant biodiversity areas which need to be tightened up.
  • The list of outcomes to be “provided for” in clause 5 include both protective and development focused things with no hierarchy or weighting between them. This means the Minister and regional planning committees will be faced with resolving conflicts between things like (1) promoting the development of land for primary production and (2) the restoration of ecological integrity when developing policy and plans. That risks the return to an overall broad judgement approach where economic considerations trump environmental protections. It lacks even the subtle distinctions we currently have between sections 6 and 7 of the RMA (“recognise and provide for” protective matters versus “have particular regard to” others). It could see a race to the bottom, where we end up trading off the environment for the economy all the way down to limits.
  • There are numerous more specific issues that need attention. For example, decision-making principles at the heart of the Bill (clause 6) require the Minister to recognise the positive effects of “using and developing the environment”, without a clear protective equivalent. The Bill has retained some inappropriate features of the RMA that should be jettisoned, like the ability of the Minister to hand pick a board of inquiry to determine called-in consent applications, constraints on protecting urban trees, and excessive powers for the Minister to intervene in aquaculture decisions. There is only limited recognition of the polluter-pays principle (which applies only to contaminated land). In addition, a lot of uncertainty remains about allocation issues, although it’s positive to see the inclusion of specific principles for allocation. And fast track consenting processes for large infrastructure exclude public participation and provide little certainty as to who will speak for the environment.

“The overall structure of the NBEB should also be improved for logic and clarity. For example, the system of limits and targets, which is fundamental to the legislation, should have its own highly visible part rather than being tucked away in provisions concerning the National Planning Framework. Important decision-making principles are scattered across the Bill instead of being in one place. And core functions, duties and powers of institutions only appear in Part 10 where they would make more sense up front. We think the whole thing could be made simpler and more user-friendly.

“With respect to the SPB, we’d like to see specific involvement of the Department of Conservation, as an advocate for nature, in the production of regional spatial strategies. It would also be useful to make provision for a national spatial strategy, to ensure that central government is able to take a coherent approach to environmental issues having a spatial component (like establishing biodiversity corridors to improve ecological connectivity) and to ensure nationally significant infrastructure projects (like wind farms) go in the right places. Another concern is that plans under the NBEB do not have to be consistent with a regional spatial strategy made under the SPB if there has been a “major economic event”. This has the potential to enable spatial protections embedded in the strategy to be undermined.

“Our preliminary commentary on the bills can be found here. We would appreciate feedback, including identification of other priority issues to address, by mid-January. Although the deadline for submissions has been extended to the 5th of February, we intend to file and publish our final submissions by the end of January,” Dr Severinsen concluded.