The Government has recently confirmed its plans for a comprehensive overhaul of the resource management system, representing the biggest shake-up in environmental law in a generation. This article summarises the reasons for the reforms, what is proposed, and the likely timeframes.
The RMA
Since 1991 the Resource Management Act 1991 (“RMA”) has been the primary piece of legislation governing the management of the environment in New Zealand. Over the last 30 years the RMA has been amended dozens of times. Rightly or wrongly, it has gained a reputation as an unwieldy and confusing piece of legislation. The Government considers that the RMA has not adequately protected the environment, nor has it enabled development where needed. There is broad agreement that the RMA has not achieved what it set out to achieve and that reform is necessary.
RMA review
In recent years the Government has signalled major changes to the resource management system. In 2019 it established a Resource Management Review Panel, chaired by retired Court of Appeal Judge Hon Tony Randerson QC. Last year, the Review Panel released a comprehensive report setting out its recommendations to repeal and replace the RMA.
The reforms
In February 2021 the Government announced a major reform package, largely based on the Review Panel’s recommendations. The Government is proposing to repeal and replaced the RMA with three new Acts:
1. Natural and Built Environments Act (NBA)
This is the key legislation replacing the RMA, and will provide for land use and environmental regulation.
The proposed purpose is to promote the quality of the environment to support the wellbeing of present and future generations and to recognise the concept of Te Mana o te Taiao (the mana of the environment).
This is will be achieved by:
promoting positive outcomes for both the natural and built environments;
ensuring that use, development and protection of resources only occur within prescribed biophysical limits (i.e. bottom lines);
establishing a new National Planning Framework to provide a set of compulsory national policies/standards;
requiring combined plans for each region.
2. Strategic Planning Act (SPA)
This Act is proposed to facilitate a long-term strategic approach to planning.
Long-term regional spatial strategies will be required, including to identify areas that:
are suitable for development;
need to be protected;
need new infrastructure;
are vulnerable to climate change effects/natural hazards.
3. Climate Change Adaptation Act (CAA)
This Act is proposed to support New Zealand’s response to the effects of climate change.
It will address the legal/technical issues associated with managed retreat and funding and financing adaptation.
The Government has stated that the new laws will improve the natural environment and enable more development within environmental limits. The changes also aim to simplify planning processes and reduce costs/timeframes; and to better recognise the principles of Te Tiriti o Waitangi and provide increased recognition of te ao Māori (the Māori world view).
Reform process/timing
The Government has announced the following reform process:
May–September 2021: Cabinet will agree an “exposure draft” of the NBA Bill and then refer it to a special select committee inquiry. The SPA and CAA Bills will be developed via a parallel process.
December 2021: The NBA Bill and the SPA Bill will be introduced into Parliament in late 2021. A normal select committee process will follow. The CAA will be developed over a similar timeframe.
December 2022: The intention is that all three pieces of legislation will be passed by the end of 2022.
Opportunities to get involved
There will be opportunities to participate in the select committee processes. The first process is expected to begin in mid-late 2021, with the “exposure draft” of the Natural and Built Environments Bill being considered by the special select committee inquiry.
Our comments
Below we briefly summarise some of our key points regarding the proposed changes:
The reforms are broadly supported across the political spectrum and have the potential to significantly improve the resource management system in New Zealand. However, much of the detail remains to be seen (for example, the entire process for resource consenting under the NBA remains to be determined.)
The proposed legislation codifies the shift to an “environmental bottom lines” approach, as opposed to the “overall broad judgment” (or balancing) approach that initially characterised decision-making under the RMA, until the seminal 2014 Supreme Court decision in King Salmon.
There is a real focus on strengthening the recognition of the principles of Te Tiriti o Waitangi (and te ao Māori generally); and providing a stronger role for Māori in decision-making.
There is also a strong focus on moving away from simply managing adverse effects of activities on a case by case basis, to more effective pro-active and outcome-focussed planning.
When it was enacted, a key feature of the RMA for which it was vaunted was that it brought together numerous other Acts into a single piece of legislation (being a one-stop-shop for environmental regulation). The recent reforms propose a return to several separate acts. It remains to be seen whether this approach will be more efficient and/or effective.
Another “back to the future” aspect of the proposed reforms is that a fundamental principle underpinning the RMA was the devolution of planning and decision-making to local authorities, as opposed to the centralisation of those functions with national government (the idea being that local bodies are best placed to regulate and decide local issues). The proposed reform strengthens and continues the recent trend towards stronger national direction, which has long been highlighted as a missed opportunity under the RMA (until recently there has been a dearth of national planning documents). Central to this theme will be the proliferation of mandatory direction under the National Planning Framework. The requirement for combined plans for each region (reducing the number of city/district plans from over 100 to approximately 14) may also limit the ability for truly local decision-making.
Another widely accepted point is that there is no silver bullet to the environmental management issues facing the country. There are a range of structural and other forces at play, not all of which can be effectively addressed though environmental legislation. The reforms will also take some time to become law, and changes will not take effect overnight.
Finally, any reform will inevitably need to strike a balance between the dual tensions of quality development on the one hand and environmental protection on the other. In fact, the proposed reforms starkly highlight the required balancing act by promising both more development (especially in major urban centres, where significant intensification will be encouraged) and more environmental protection. That is no simple task, and trade-offs will be required.
ChanceryGreen will be closely monitoring the reform process and will post regular updates on key developments. We would be happy to discuss how the proposed reforms may affect you or your business.