RMA Reform

RMA ReformWhats in it for the Environment?Neil Deans

The law doth punish man or womanThat steals the goose from off the common,But lets the greater felon looseThat steals the common from the goose.

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SummaryRMA summaryReasons for reformProposed changesProcessEnvironmental outcomesSections 6 & 7Section 32Positive aspects?What can you do?

2What is Fish and Game NZ?Successor to Acclimatisation Societies 150 years oldPublic Entity managing Sports Fish and Game Birds in the recreational interests of anglers and huntersUser pays - user saysResponsible to Parliament via Minister of ConservationMajor interest in freshwater habitats; look after the habitats and the species will look after themselvesMajor RMA engagement; process 1500 2000 resource consents/year; applied for most Water Conservation Orders; engaged with regional plans incl. One Plan

3What is the RMA?Environmental legislation; promotes sustainable management of natural and physical resourcesEffects rather than activity based;Enabling; allows resource use that is sustainableAlso allocates access to use of natural resourcesIntegrated; land, water, air, coastsLand able to be used unless plans constrain; Air, Water, Coasts not able to be used unless allowedDecision-making devolved; with public inputA planning act; regional plans enable resource use

4Rt Hon Simon UptonUnlike the current law, the Bill is not designed or intended to be a comprehensive social-planning statute. It has only one purpose to promote the sustainable management of natural and physical resources. RMA is: a framework to establish objectives by a physical bottom line that must not be compromised, a much more liberal regime for developers. Activities will have to be compatible with hard environmental standards, and society will set those standards. Bipartisan & consultative approach until now...

5Does the RMA need reform?Lack of Problem DefinitionRMA a convenient whipping boyProcessDecisions take too long; are too costly; are too uncertainWe have reached limits; stymieing development and hence, the economyOutcomesImproved environment, or greater access to natural resources managed under the RMA?Better reflect todays values and priorities

6Govt Mandate for ReformRMA needs fixing...TAG Report into Sections 6 & 7No clear problem definitionUndue haste/lack of public involvement7

Governments Business Growth Agenda

8Building Natural Resources sets out the important role that our natural resources play in helping us to have a more productive and innovative economy. It sets out the actions the Government is taking to help improve the way we use and manage these resources.

It encourages New Zealands businesses, large and small, to find ways to become more innovative and to get the best returns for both our economy and environment from our natural resources. The Government is doing its part by putting in place improved resource management systems that will enable faster economic growth while maintaining our environmental integrity.9Improvements to ProcessSpeed processFaster, or better, decisions?Reduce public involvement96% of consents processed without public notificationIncrease likelihood of authorisation?Presently 90% of large scale consents are granted consent; should 100% be consented?Ministerial powers to override?Decrease uncertainty?What about environmental outcomes?10RMA performance 2010/1136,154 resource consent applications decided:0.56 % (203) of applications declined4 % (1414) of applications publicly notified 2 % (849) of notified to affected parties 1 % (357) of decisions were appealed.Local authority officers acting under delegated authority made 91% of decisions on resource consent applications.95 % of resource consents processed on time.MfE http://www.mfe.govt.nz/publications/rma/annual-survey/2010-2011/key-facts/index.html11Do submitters matter?Changes to submission and appeal rightsProposal to specify that some applications should be processed non-notifiedProposal to limit submissions and appeals to only the reasons the application was notified and the effects related to those reasonsDirect government intervention in Plan contentAt any stage in process

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Does the Environment Court matter?Changes to the appeal processHearings on resource consent appeals to be by rehearing rather than de novoPlan appeals on joint plans to be only where Council departs from recommendations of independent hearings panel (otherwise on questions of law only), and by rehearing rather than de novo

Is Environmental Quality too high?NZ trades on its clean and green image; what is this worth?Both as a sense of identity/value proposition; andTo our society and economyEnvironmental Outcomes; what is the state of our environment?Water QualityHigh country; good and stableLowlands; often poor and decliningBiodiversityDecliningTo conclude; environmental improvement is required

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Kiwi Priorities (from Hughey et al, 2010)GovernmentIndividual17

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Part II Section 5: Purpose(1)The purpose of this Act is to promote the sustainable management of natural and physical resources.(2)In this Act, sustainable management means managing the use, development, and protection of natural and physical resources in a way, or at a rate, which enables people and communities to provide for their social, economic, and cultural well-being and for their health and safety while(a)sustaining the potential of natural and physical resources (excluding minerals) to meet the reasonably foreseeable needs of future generations; and(b)safeguarding the life-supporting capacity of air, water, soil, and ecosystems; and(c)avoiding, remedying, or mitigating any adverse effects of activities on the environment.

25Sections 6 & 7: PrinciplesEngine Room of RMA; used as a checklist in planningCurrently matters of national importance or other matters, to which, respectively, all decisionmakers must recognise and provide for or have particular regard to.

Do these reflect contemporary values?

26Proposed Changes; Section 66 Principles(1) In making the overall broad judgment to achieve the purpose of this Act, all persons exercising functions and powers under it in relation to managing the use, development and protection of natural and physical resources shall recognise and provide for the following matters [no longer of national importance]:

Reintroduction of balanceDeparts from case law; does not confirm it

27Reintroduction of balanceDeparts from case law; does not confirm it

27Section 6 contd(a) the preservation of the natural character of the coastal environment (including the coastal marine area), wetlands, and lakes and rivers and their margins, and the protection of them from inappropriate subdivision, use and development;(b) the protection of specified outstanding natural features and landscapes from inappropriate subdivision, use and development;

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Section 6 contd(c) the protection of specified areas of significant indigenous vegetation and significant habitats of indigenous fauna;(d) the value [not maintenance and enhancement] of public access to and along, the coastal marine area, wetlands, lakes and rivers;

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Most plans currently only specify a limited sub-set of their districts or regions significant sites. The detailed surveys are done at the time of a resource consent application. The biggest issue is with private land no right for Councils to enter to carry out surveys, and now an incentive to deny access

29Section 6 contd(e) the relationship of Mori and their culture and traditions with their ancestral lands, water, sites, waahi tapu, taonga species and other taonga including kaitiakitanga;(f) the protection of protected customary rights [not activities];

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Section 6 contd(g) the benefits [not costs] of the efficient use and development of natural and physical resources;(h) the importance and value [not protection] of historic heritage [not from inappropriate subdivision use and development];(i) the impacts of climate change;

31Section 6 contd(j) the benefits [not costs] of efficient energy use and renewable energy generation;(k) the effective functioning of the built environment including the availability of land for urban expansion, use and development;(l) the risk and impacts of natural hazards;(m) the efficient provision of infrastructure;

32Section 6 contd(n) [not protection of] areas of significant aquatic habitats, including trout and salmon;(2) For the avoidance of doubt section 6(1) above has no internal hierarchy.

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Existing matters proposed for deletion:7(aa) the ethic of stewardship7(c) the maintenance and enhancement of amenity values7(d) intrinsic values of ecosystems7(f) maintenance and enhancement of the quality of the environment7(g) any finite characteristics of natural and physical resources.

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Case StudyWaimea River, NelsonRegionally important fishery, swimming, whitebaiting, wildlife habitat130% overallocated; river dried up twice in last decadeFlow requirements for trout 1300 litres/second; for native fish less than 500 litres/secondWater quality requirements for nitrates 1 ppm for trout; perhaps 4-6 ppm for native species; 11 ppm toxic for humansIs this river significant; would it meet that threshold?

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Proposed Section 7 MethodsAll persons performing functions and exercising powers under this Act must:(1) Use best endeavours to ensure timely, efficient and cost-effective resource management processes; (2) In the case of policy statements and plans:(a) include only those matters within the scope of this Act;(b) use concise and plain language; and(c) avoid repetition;(3) Have regard to any voluntary form of environmental compensation, off-setting or similar measure which is not encompassed by section 5(2)(c);(4) Promote collaboration between local authorities on common resource management issues; and(5) Achieve an appropriate balance between public and private interests in the use of land.36I have no problem with environmental compensation and offsets being taken into account they already can be and are. But the (deliberately?) loose wording of this provision could be taken as directing the Courts to depart from the principled approach they have taken to date for whether something qualifies for consideration as environmental compensation or an offset, so that any old thing that an applicant comes up with suffices. Eg is purely financial compensation supposed to be covered?Also problematic will be used constantly in litigation by landowners just another factor weighing against the imposition of controls for environmental purposes.

36Section 32 RM Reform BillNow: Evaluation of cost effectiveness of alternative options to achieve objectives through plansProposed: (a) ...including the opportunities for (i) economic growth that are anticipated to cease to be available; and (ii) employment that are anticipated to be provided or reduced; and (b) if practicable, quantify the benefits and costs referred to in paragraph (a)

37Is there anything useful here?A planning template; may improve consistencyConsistency, reducing uncertainty, speeding process are all desirable

The proposals, however, will reduce certainty, require relitigation to establish new case law as to what the provisions mean and therefore are likely counterproductive towards these ends

38Who supports these changes?Federated FarmersHort NZNational and ACT

Much support behind the scenesIs it really good for small business?39Who is concerned?Parliamentary Commissioner for the Environment, Dr Jan WrightThese changes are far more radical than any previous amendments to the RMA.The RMAs focus is, and should remain, on the protection of New Zealands natural and physical environment.There is also a subtle but significant undermining of environmental protection through the removal of some environmental considerations and weakening of others.There are many improvements that can be made to the RMA. But the proposed changes to sections 6 and 7 are in an entirely different category and should not go ahead.

40Former PM and architect of the RMA, Sir Geoffrey Palmer Those changes will significantly and seriously weaken the ability of the RMA to protect the natural environment and its recreational enjoyment by all New Zealanders.

41Dom Post Farming Editor Jon Morgan http://www.stuff.co.nz/business/farming/8453690/RMA-overhaul-won-t-help-the-environmentBusiness commentator Rod Oram http://www.stuff.co.nz/business/opinion-analysis/8400307/Oram-A-naked-power-grab http://www.youtube.com/watch?v=9cR40CXP0hshttp://www.facebook.com/SaveTheRMA?fref=tsRMLA, NZILA, F&GNZ, F&B, EDS, FMC, etcIs this NZs future?

42What can you do?Write to the PM; the Minister for the Environment Amy Adams; your local MPSupport comment/actions on thisMake submissions to Select Committee

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ConclusionProposed changes are part of a package intended to facilitate economic development by opening access to our natural resourcesResource management will become politicised as never beforeUncertainty and social discord will increaseThe environment will be further degraded44

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