The Resource Management Amendment Bill was referred to Parliament’s Environment Committee in September 2019, attracting 385 submissions. The Committee has recently released its report on the Bill, recommending by majority that it be passed with amendments.
The Bill
The Bill represents the first, more focused, stage of the Government’s proposed changes to the resource management system. The second, more comprehensive, stage is currently underway and the Resource Management Review Panel is due to release its final report to the Government in May 2020. We have outlined the proposed reforms in several previous ChanceryGreen articles, but to recap, the Bill aims to:
Reduce complexity in existing RMA processes, increase certainty for participants, and restore previous opportunities for public participation.
Improve existing resource management processes and enforcement provisions, including by giving the Environmental Projection Authority (“EPA”) new enforcement powers.
Improve freshwater management, including through introducing a new freshwater planning process.
The Committee’s recommended amendments
The Committee has recommended changes to the Bill in four key areas.
One: resource management processes
The Committee has recommended two relatively minor changes to the Bill, proposing to delay the commencement of certain process-related provisions by three months to give councils more time to update their processes.
Two: the EPA’s new enforcement powers
The Committee has recommended two minor changes to the Bill’s new EPA enforcement powers, including to clarify that if the EPA ceases an intervention a local authority may resume any enforcement action.
Three: new freshwater planning process
The Committee has also recommended a range of amendments to the Bill’s freshwater provisions, including around freshwater hearing processes. Many are minor, but they include:
Restrictions on cross-examination during freshwater hearings, and provision for hearing panels to appoint a “friend of submitter” to support submitters.
Providing that Councils can develop an alternative outside the scope of submissions if the hearing panel’s recommendations were outside the scope of submissions.
Changes to the process for variations to freshwater planning instruments, including broadening the scope of variations.
Clarifications around appeal rights, including to the Environment Court and higher courts.
Amendments relating to the composition and requisite experience of freshwater hearings panels.
Widening the scope of matters that can be “called in” by the Minister for the Environment to include a change or variation to a regional policy statement.
Four: climate change
The Committee has recommended significant changes relating to climate change, citing an evolution in the policy framework since the existing RMA provisions were enacted in 2004:
The Committee recommends that Councils must consider climate change when making and amending regional policy statements, regional plans, and district plans, and when making decisions on resource consents.
The Committee has proposed to repeal sections 70A and 104E of the RMA which generally prohibit regional councils from considering the effects on climate change when making rules or assessing applications relating to discharges of greenhouse gases.
“Emissions reductions plans” and “national adaptation plans” (which are to be published by the Minister for Climate Change) are proposed to be added to the list of matters that councils must have regard to when making and amending regional policy statements, regional plans, and district plans.
The changes are proposed to commence on 31 December 2021.
The Committee has also recommended that Boards of Inquiry and the Environment Court should take global environmental impacts (including climate change mitigation) into account from the date of the Bill’s commencement. This is designed to “help ensure that large-scale projects that may have high emissions are not brought forward to take advantage of the delayed commencement...”.
Comment
Several of the Bill’s proposed amendments address well-recognised shortcomings in the RMA and have been relatively uncontroversial. Likewise, several of the Committee’s recommended changes relate to only minor and/or administrative matters. However, other aspects of the Bill, and certain proposed amendments in the Environment Committee report, are highly controversial.
Climate change proposed amendments
The Committee’s proposal to explicitly remove the statutory barriers to the consideration of climate change in decision-making under the RMA is a major change that will have significant consequences. The amendments do not appear to have been foreshadowed in the earlier legislative process and have taken many by surprise. Indeed, the previous consultation documents had indicated that climate change aspects were largely intended to come within the domain of the Stage Two reforms. As a result, there have been criticisms that these changes have not been subject to adequate public consultation.
Other substantive concerns, including from industry representatives, are: that councils are ill-equipped to consider effects of climate change in the context of making plans and deciding on resource consent applications; that such matters should be the subject of national legislation/direction; and that including climate change amendments in the Bill muddles the consideration of climate change issues in Stage Two (which the Resource Management Review Panel is due to report on in May 2020). There is some force to these criticisms, and the Committee itself acknowledges in its report that “it will be vital to have direction at a national level about how local government should make decisions about climate change mitigation under the RMA”, citing risks of inconsistencies, overlap of regulations between councils and emissions pricing, and litigation.
The National Party Members of the Committee are opposed to the Bill in general, and especially to the Committee’s proposed climate change amendments. They consider that substantive changes of this nature should be delayed until after the Resource Management Review Panel has reported back, so that reform can be undertaken in a comprehensive manner.
What the Resource Management Review Panel will recommend on climate change and how those recommendations will fit in with the Committee’s proposed changes will be keenly anticipated by industry, environmental groups, and a wide range of stakeholders.
Next steps
The next step is the Bill’s second reading, where the House will debate the Select Committee Report and vote on the Bill.