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”

  1. Ad 1

    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

      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

        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.

    • 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

    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

    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

      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

    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

      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

    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

Recent Comments

Recent Posts

  • Labour is the only party with a plan to fix teacher shortage
    Only Labour has a comprehensive plan to fix the critical shortage of teachers that is already hampering our schools and is set to get worse after nine years of inaction by the National Government, says Labour’s Education spokesperson Chris Hipkins. ...
    1 hour ago
  • Labour to invest in regional road rail
    Labour will invest in a rapid rail network connecting Auckland, Hamilton, and Tauranga, and double funding to help complete important regional roading projects, says Leader of the Opposition Jacinda Ardern.  “The ‘Golden Triangle’ of Auckland, Hamilton, and Tauranga contains half ...
    2 hours ago
  • Rattled Nats announce slapdash roads policy
      The Government rattled by the polls, has announced a poorly thought through slapdash policy for new Roads of National Significance, says Labour’s Transport spokesperson Michael Wood.  “There is a complete lack of any answers in National’s plan to build ...
    21 hours ago
  • Let’s do this – Labour’s election campaign launched
    The Government I lead will be a government that listens, then acts. A Government that leads, not follows, says Labour Leader Jacinda Ardern at the launch of the Labour Party’s 2017 election campaign at a packed Auckland Town Hall. “I ...
    21 hours ago
  • Government must apologise over rebuild debacle
    The Prime Minister owes the public of Otago and Southland an apology and then he must come up with an unredacted copy of the business case for the Dunedin hospital rebuild, says Labour’s Health spokesperson David Clark. "For too long the interests of ...
    3 days ago
  • Government caves to multi-national tax avoiders in the shadows
    News that the Government has secretly caved in to the demands of multi-national tax avoiders come as no surprise, but will disappoint Kiwi taxpayers, says Labour’s spokesman for Revenue Michael Wood.   “It has been revealed that a United States ...
    4 days ago
  • Cheaper to stay at The Langham than emergency housing motels
    Labour’s comprehensive plan to fix the housing crisis and ensure there’s enough state housing, means we won’t be paying through the nose for emergency accommodation like the current Government has to, says Labour’s Social Development spokesperson Carmel Sepuloni. “National has ...
    4 days ago
  • Government must come clean on water
      News that the National Government is secretly working behind closed doors on its own water charging schemes shows their utter hypocrisy on this issue, says Labour’s water spokesperson David Parker.  “They have been carping on about Labour’s plan for ...
    4 days ago
  • Government pays twice the price for emergency housing motels – with two more on the way
    Under Labour’s plan to build at least 1000 state houses each year, New Zealand wouldn’t be paying more than double the valuations for motels to house Kiwis needing emergency housing, says Labour’s Social Development spokesperson Carmel Sepuloni. “Under questioning today, ...
    5 days ago
  • HAM shows country needs Labour on housing
    The latest Housing Affordability Measure report shows affordability dramatically worsening for Auckland first home buyers, says Labour’s Housing spokesperson Phil Twyford. ...
    5 days ago
  • Canterbury kids get more support for mental health
    Children in Canterbury and Kaikoura will get dedicated mental health support to help them overcome the trauma of the earthquakes, says the Leader of the Opposition Jacinda Ardern. “We’ll fund an extra eighty mental health professionals for the next three ...
    5 days ago
  • Statement on Julie Bishop’s comments
    It is highly regrettable that the Australian Foreign Minister Julie Bishop has chosen to make false claims about the New Zealand Labour Party. I have been utterly transparent about this situation. I stand by my statements this morning that I ...
    6 days ago
  • Labour stands with Pike families
    A Labour Government will stand with the families of Pike River and reaffirm its commitment to safe workplaces by ensuring there will be a Minister responsible for Pike River, says Leader of the Opposition Jacinda Ardern. “The Pike River disaster ...
    6 days ago
  • Yes to Sallies – Labour will build more state houses
    The Salvation Army’s latest report ‘Taking Stock’ shows why New Zealand needs a Labour-led Government committed to a massive house building programme, says Labour’s Housing spokesperson Phil Twyford. “When the Sallies say the country needs 2000 extra state houses a ...
    6 days ago
  • New Zealanders deserve better than scaremongering over water
    New Zealanders need to hear from National about how they will fund the clean-up of our rivers and lakes for future generations. Instead, National has broadened its scare-mongering, says Labour’s Water spokesperson David Parker. ...
    1 week ago
  • School Leavers’ Toolkit to equip young people for adult life
    Labour will give school leavers the practical skills and knowledge they need for adult life with a new School Leavers’ Toolkit, says Leader of the Opposition Jacinda Ardern. “Our teachers and schools do a great job of teaching our children ...
    1 week ago
  • Pay equity to be a priority for Labour
      Labour will make sure that the country’s mental health workers are a priority when it comes to pay equity negotiations, says the Leader of the Opposition Jacinda Ardern.  “It is very important for me to right the wrong created ...
    1 week ago
  • Labour’s positive education plan
    Today’s announcement on learning support is more tinkering and proof that only a Labour Government will deliver the resources that schools and parents are crying out for, says Labour’s Education spokesperson Chris Hipkins.  “We have a positive vision for a ...
    1 week ago
  • Pike footage raises questions over government’s actions
    The Government’s seeming determination to turn a blind eye to new questions about what happened at Pike River Mine is troubling, says Labour’s West Coast-Tasman MP Damien O’Connor. ...
    1 week ago
  • Solution to rent rises lies in building houses and stopping speculators
    The spread of rental increases from the big cities to the surrounding regions shows why we need to get on top of the housing shortage build homes our families can afford, and lock out the speculators, says Labour’s Housing spokesperson ...
    2 weeks ago
  • Clean rivers don’t cost $18 a cabbage
    National is falling into a bad pattern of promising the world and not saying how they will fund it, says Labour’s Water spokesperson David Parker. ...
    2 weeks ago
  • Time for honest answer on transport funding
    National needs to explain how they will fund the $6 billion funding gap in their 10-year Auckland transport plan, says Labour’s Auckland Issues spokesperson Phil Twyford. ...
    2 weeks ago
  • Time for true numbers on overseas speculators
    It’s time for the Government to give accurate figures on the number of houses being bought by overseas speculators, says Labour’s Land Information spokesperson Raymond Huo. ...
    2 weeks ago
  • Fair and sustainable trade: A Green Party vision for New Zealand’s trading relationships
    Trade is a cornerstone of the New Zealand economy. It provides us with the things we want and need, and enables us to pay for those with exports that generate business opportunities and jobs. However, it should be recognised that ...
    GreensBy Barry Coates
    2 weeks ago
  • Clean rivers for future generations
    Labour will lead a nationwide effort to restore our rivers and lakes to a clean, swimmable state, says Leader of the Opposition Jacinda Ardern. ...
    2 weeks ago
  • New Zealand really can do better on health
    Labour’s commitment to affordable access to high quality healthcare will provide a better service for New Zealanders than the current Health Minister, who will not apologise for statements that he made that wrongly criticised hard-working staff in the Southern DHB’s ...
    2 weeks ago
  • Labour’s plan the answer to motorway chaos
    Labour’s plan to build a light rail network and improve heavy rail and bus services across Auckland is the only answer to the kind of motorway congestion Aucklanders endured this morning, says Labour Transport spokesperson Phil Twyford. ...
    2 weeks ago
  • Labour to build rail to Auckland Airport
    A world class city needs a rail connection from the CBD to its international airport – that’s why Labour will build light rail to Auckland Airport as a priority, says Leader of the Opposition Jacinda Ardern.  “Let’s get Auckland moving ...
    2 weeks ago
  • Is pay equity just too hard for this Govt?
    You are hard pressed these days to find someone that openly admits their misogyny, that men should still be paid more than women. Politicians proclaim that they want to see women paid more, but do their actions back it up? ...
    GreensBy Jan Logie
    2 weeks ago
  • Labour’s commitment to our Rainbow nation
    The Labour Party has reaffirmed its commitment to New Zealand’s rainbow community with its 2017 Rainbow policy, featuring the goal to end HIV in New Zealand by 2025. Grant Robertson says Labour continues a long and proud tradition of advocating ...
    2 weeks ago
  • Labour’s vision for Auckland more than reheated roads
    Labour is more ambitious for Auckland than the reheated set of transport projects proposed by National, says Labour’s Auckland Issues spokesperson Phil Twyford. ...
    2 weeks ago
  • Waiting urology patients are the tip of the iceberg
    The 10 patients waiting for urology surgery at Dunedin Hospital are just the tip of the iceberg, says Labour’s Health spokesperson David Clark.  "Hundreds of patients are waiting for follow-up appointments, but they are not deemed serious enough to be ...
    2 weeks ago
  • Maori Landowners Misled by Maori Party
    Māori landowners are being misled by Government hui being held throughout the country promoting the troubled Māori Land Service (MLS), which underpins the Crown’s unpopular Ture Whenua reforms, says Labour’s Ikaroa-Rāwhiti MP Meka Whaitiri. ...
    2 weeks ago
  • Government’s Johnny-come-lately approach to multinational tax won’t wash
    It’s a case of baby steps for a Government that still allows multinational companies to avoid paying their fair share of tax, says Labour’s Revenue spokesperson Michael Wood. “After nine years in government, five years after the issue of multinational ...
    3 weeks ago
  • Auckland congestion up there with the world’s worst
    Traffic congestion is costing Auckland up to $2 billion in lost productivity according to the latest report from the New Zealand Institute of Economic Research, says Labour’s Transport spokesperson Michael Wood.  “This is a disaster and underlines the need for ...
    3 weeks ago
  • Experience in Youth Parliament 2016
    Being a Member of Youth Parliament was an unexpected, but fabulous opportunity for me. It provided me a way to connect with other young people who have some things in common, and to learn what it is like to be ...
    GreensBy NZ Green Party
    3 weeks ago
  • Labour backs renters’ call for warm, healthy homes
    80 per cent of renters wish their home was warmer and drier, and that’s what Labour will deliver, says Labour’s Housing spokesperson Phil Twyford. ...
    3 weeks ago
  • We can – and must – do better for Kiwi jobs
    Labour has the plan to get more young New Zealanders into jobs and tackle concerns raised in the latest statistics which show an extra 3000 young Kiwis are neither earning or learning compared to the same time last year, says ...
    3 weeks ago
  • Statement from Jacinda Ardern, Leader of the New Zealand Labour Party
    I want to start by giving my thanks to Andrew. His announcement today and the situation we have found ourselves in is not what anyone expected or wanted In my time working with Andrew I know one thing to be ...
    3 weeks ago

%d bloggers like this: