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 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.
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.
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.
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.
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.
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.