Some flaws of the Resource Amendment Legislation Bill

Written By: - Date published: 8:05 am, March 15th, 2017 - 10 comments
Categories: Parliament - Tags: , ,

lprent: Jenny Kirk asked that this critique of the Resource Amendment Legislation Bill be spread “far and wide”. I’m unaware of who the author is. I did break up some paragraphs for readability. Typical legal/academic monolithic writing. But the analysis appears to be good and timely.

The Resource Amendment Legislation Bill is being debated in Parliament this week (starting today).

It is a total re-write of the Resource Management Act 1991.

It has some good points in it, but it also includes a number of matters which will have a severe impact of local councils maintaining environmental regulations which their community has asked for – for protection of the local environment – and also on the ability of a local community or individuals from being able to make submissions or receive notification of certain activities occurring within their community.

Below is a brief summary of some of the less positive aspects of the RAL Bill.

The Bill

The Bill is long and detailed. Time to review the Bill has only been spent the RMA provisions. Many of these are drafted to accommodate the types of planning processes that would be required when planning templates are developed.

There are a number of aspects of the Bill which are positive for tangata whenua, such as the Mana Whakahono provisions, and the clause 16 provisions for appointment of commissioners with understanding of tikanga. What follows are criticisms of the Bill, not its positive features. It is also the result of an initial scan of the Bill.

Water take

Clause 7 replaces “individual” with “person” in the current s14(3)(b) of the RMA. That section includes:

(3) A person is not prohibited by subsection (2) from taking, using, damming, or diverting any water, heat, or energy if …..

(b) in the case of fresh water, the water, heat, or energy is required to be taken or used for—

(i) an individual’s reasonable domestic needs; or

(ii) the reasonable needs of an individual’s animals for drinking water,—and the taking or use does, or is not likely to, have an adverse effect on the environment

Note that the “individual’s” domestic needs are not changed to a “person’s” needs. While the change in the need for animals may seem of little import, the RMA definition is “person includes the Crown, a corporation sole, and also a body of persons, whether corporate or unincorporated” (there is no RMA definition of “individual”).

This would allow as of right use of water by, for instance, corporates with highly intensive dairying operations. In most regional plans this type of water take is a permitted activity. While there is the requirement of not having an adverse effect, identifying and monitoring that may be problematic for many councils.

GMOs

In clause 11 there is a deletion of the current regional council function in s30(1)(c) which is “the control of the use of land for the purpose of …. the prevention or mitigation of any adverse effects of the storage, use, disposal, or transportation of hazardous substances”.

In the North GMO provisions have been included in plan changes, with the universal support of tangata whenua, and concerted opposition from Federated Farmers and other primary producers. All that these plan changes seek are to require a precautionary approach.

The parties in opposition have litigated the jurisdiction of the RMA to address GMO matters, relying to a large extent on the argument that the HSNO Act provisions are sufficient. So far their appeal has been unsuccessful. The proposed amendment to s30 would exclude local bodies from any regulatory response to any hazardous substances, including precautionary measures for GMOs.

Ministerial intervention

While in the early days of the RMA s32 analysis was brief and perfunctory, it is now a well developed methodology with clear best practice. I have written s32 analyses for provisions I have developed and it is an exacting task. The need for the plan change, alternatives to RMA responses, cost benefit, legislative and higher planning instrument compliance are all required to be clearly articulated and argued. A Minister required to meet those standards would be constrained from more arbitrary or politically motivated interventions.

A Ministerial intervention could only be challenged by judicial review, which would need clear legal arguments for success. An inferior or inappropriate s32 analysis could be the basis for litigation. Although there are some other reporting requirements in the Bill, they have none of the best practice and case law support that applies to s32, and are likely to be of little effect in a judicial review.

There are serious concerns about the deletion of the s32 requirements in the Bill as reported back.

Notification

A consistent problem identified by tangata whenua across the country is lack of formal notification of consent applications. Some notification decisions are determined by the relevant district or regional plan. Others are determined by best practice. Some are essentially at the discretion of council officers.

The Bill sets out steps for limited notification of consent applications. These are only for notifying immediate neighbours, protected customary rights groups, customary marine title groups and statutory acknowledgement areas in settlement legislation. This would exclude from mandatory notification, for instance, impacts on wāhi tapu, on sites of significance to tangata whenua, on mātaitai and on taiāpure.

There is a provision for “special circumstances”, and planning instruments could clarify and reinforce such opportunities. But without improved planning for tangata whenua consent engagement than generally exists, these amendments are highly likely to result in fewer notifications of consent applications to tangata whenua whose values and taonga are likely to be negatively impacted.

Urban development

The RMA was the first and still is almost the only statute anywhere which combines traditional town and country planning with environmental management. This has always been an awkward fit for some urban activities. The housing shortage in Auckland is being blamed, rightly or wrongly, on planning constraints. Certainly improved planning provisions for urban development are needed, but the danger is that these have wider and inappropriate application to other environments and other environmental issues.

There are provisions in the Bill to accelerate housing development by limiting public input and litigation. These may appear to be justified in some urban locations, but the same could be achieved by less draconian measures.

There is also the concern that these provisions could be applied to locations where there is no housing pressure, such as for speculative coastal subdivision. Where the Bill is specific that the provisions apply to “urban” environments, the definition of the National Policy Statement on Urban Development Capacity should prevail, ie “Urban environment means an area of land containing, or intended to contain, a concentrated settlement of 10,000 people or more and any associated business land, irrespective of local authority or statistical boundaries”.

Application of this definition has, for instance, removed most of the area of the Far North District from the Policy Statement’s jurisdiction. It would appear that not all applications of the fast track process eliminate all “non urban environment” areas.

10 comments on “Some flaws of the Resource Amendment Legislation Bill ”

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  1. Ad 1
    15 March 2017 at 8:43 am

    For the first three terms after the 1989 local government reforms, this kind of strengthening of Ministerial powers generally would have been horrifying. But after nearly 30 years of really uneven local government planning, enforcement, and engagement, and just timid and squeamish planning by the larger cities, I’m almost surprised this government hasn’t really gone harder.

    When you look across the lack of prosecutions in smaller areas, the incoherent planning of Auckland giving us worse traffic jams than Hong Kong, the stupid water quality decisions and their long term effects, it’s pretty hard to have sympathy.

    So my core problem isn’t greater Ministerial intervention, or notification, and it sure ain’t urban development. I can see the cases for that.

    My problem is that there’s a lack of policy about the form of New Zealand’s growth as a whole:
    – Water and land allocation together
    – Urban form and centralisation
    – The limits of the biosphere including the DoC estate
    – How we as a whole want the physical form of New Zealand to change.

    I am sick of this government tinkering without a plan, and not broadening out and settling the bigger related policy questions that need regular questioning. This is the wrong government to even attempt that.

    • lprent 1.1
      15 March 2017 at 9:52 am

      I’d agree with much of that. But I’d say that a large chunk of the problem is the central government pushing politically driven policy crap at the local authorities.

      The classic is that we have have a consistent push for a number of years to rapidly intensify dairy production being imposed and actively pushed by central government – without any obvious consideration for local infrastructure or conservation of local resources.

      The idea of building a long term sustained dairy industry on those thin gravel soils of the Canterbury plains being a complete fuckup. The governments response when water disputes inevitably arose was to toss out the locally elected board and impose extraction industry board to more efficiently pollute and destroy both the local waterways and the groundware.

      Similarly with Auckland, the major problem is that the central government pushes immigration into there without helping build or even showing and interest in providing the infrastructure and housing required to accommodate them.

      Perhaps we should force public servants and MPs to work in local bodies for a few years at a time so that that see the crap from the other side, rather than making up policies by sticking their fingers up their arse when it comes to looking at consequences.

      • Ad 1.1.1
        15 March 2017 at 10:18 am

        I’d agree with your point about immigration and Auckland, but not even the RMA can cure that one.

        Your point about dairy in Canterbury is at base about the risk between making either central or local government more responsible. On balance, even though I didn’t like the outcome, the right for a Minister to intervene when things are going completely out of whack is a good thing.

        So, while no substitute for proper policy, I see these powers as a good thing.

    • Robert Glennie 1.2
      15 March 2017 at 11:31 am

      The Government seems keen on taking the teeth out of regional councils up and down the country.

      It scared them by making an example of ECan. Despite the recent elections where a partial council was elected, it is accepted that the council is still a puppet of Nick Smith and company.

      Now it wants to remove the GMO provisions as they apply to R.C.’s, which is another step towards:

      1) Centralized power
      2) Loss of democratic rights in the regions
      3) Weakening the ability to deal with decisions that have impact

  2. saveNZ 2
    15 March 2017 at 9:59 am

    Shocking!!

    Lets hope National are stopped before they screw up the environment even more than they have already, sell off pollution rights and export of our shared national resources for peanuts and pollute the rest, while funding it all through tax payer dollars and getting lucrative donations out the other side.

    Look at the state on NZ already with Natural Disasters, climate change and unusual weather events are already here.

    Now is the time to rewrite the RMA with that in mind, not plundering rights for cronies like the Natz.

    And even if National throw a few small pieces of plundering rights to The Maori Party, that will be the Maori Party legacy forever to have sold out their country and future generations for a few short term baubles.

  3. Bearded Git 3
    15 March 2017 at 3:07 pm

    The Notification section is more complicated than shown above.

    The new S.95A, under the wording AFTER the select committee amendments, will mean that NO subdivisions in rural areas will be able to be publicly notified in the Queenstown Lakes District.

    This means that nobody in the community will be able to submit on subdivision applications; neither will anyone in the community be able to appeal subdivision decisions to the Environment Court. Landscape protection is being stripped from on of the most scenic parts of NZ that relies on the landscapes for its income in order to satisfy the development aspirations of National’s mates.

    • saveNZ 3.1
      16 March 2017 at 11:03 am

      Terrible – people just don’t understand what is going on. This would be a good way for the Green party to actually get a bit more relevant – by doing action on and letting people know this is going on!

      Even Labour!

  4. Jenny Kirk 4
    15 March 2017 at 3:28 pm

    Right on top of Water Rallies all around the country yesterday, the Resource Amendment Legislation Bill passed its second Reading with the Maori Party voting for it. This Bill will allow the farming industry to continue its damaging, and ultimately disastrous, take of fresh water resources – both reducing the fresh water available in the big rivers as is starting to happen down south, and continuing to allow the dirty contamination by cattle that is occurring now.

    That is just one issue which will continue to grow, and fester, with the passing of this Bill.
    Another one is the ability of a local district council to prohibit the release of GMOs into its area. That ability has now gone – thanks to the Maori Party which – contrary to its own policy opposing GMOs – has voted for these sorts of provisions.

    The Maori Party will say they’re still negotiating with the Minister, and these provisions can be removed at the Third Reading stage.

    Well – we’ll just have to see if that happens. But I, for one, doubt that it will.

    • saveNZ 4.1
      16 March 2017 at 11:04 am

      Again, Green party, if you want party votes – here is an issue!!

      People all over the political spectrum are against water being taken!

      Currently the main headline on Green website is Te Reo in Schools… while a great issue to support – is it really a vote winner when you are competing against the Maori party and Mana party and your main political vision is Green, which is not really being highlighted?

      We saw this happen to Labour last time – abandoning their traditional voters and middle NZ to go for fringe groups that failed to vote for them.

      The Greens need to show they still are the strongest party on the environment – not just rest on their name.

  5. saveNZ 5
    16 March 2017 at 11:19 am

    There are parties trying to take the centre Greenie votes already… wake up Green party – it’s pretty clear where TOP are positioning themselves and who they will partner with if they make the 5%.

    From TOP

    “Yesterday I attended the Save Our Water rally in Christchurch. It was fantastic to see so many people out braving the southerly wind to take a stand for our fresh water. The atmosphere was positive and friendly, so why did I feel slightly uncomfortable? When the left wing anti-trade and #ChangeTheGovernment rhetoric started up I knew why.

    I don’t have anything against left-wingers, they are welcome to their ideas and play a valuable part in the debate. My point is simply that good environmental management needs to transcend this partisan political divide and be a permanent feature of government, regardless of its hue. Only TOP can deliver on that goal.”

    http://www.top.org.nz/environmental_issues_are_mainstream_now

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