Briefly is an occasional publication tracking political and regulatory developments.
RMA’s days numbered?
The biggest environmental law shake up in a generation has been recommended by the Randerson Panel in New Directions for Resource Management in New Zealand. Environment Minister David Parker says it is for the next government to consider but that he expects political parties to develop their election policies in light of the report’s findings.
Reaction has been strongly positive across the political establishment and from most environmental and business groups. We therefore anticipate that the overhaul and replacement of the Resource Management Act (RMA) will be a key policy of the incoming government, whether led by Labour or National.
The Panel wants the RMA replaced by two main Acts – a Natural and Built Environments Act (NBEA) and a Strategic Planning Act.
The NBEA would retain and build on many of the RMA’s principles but would have a positive focus on achieving high quality outcomes – specified in relation to the quality of natural and built environments, rural areas, tikanga Māori, historic heritage, natural hazards and climate change.
Decision-makers would be required to give effect to the principles of the Treaty (rather than just to take account of them, as now).
Regional councils and territorial authorities would be required to produce one combined regulatory plan for each region – a provision which would telescope the more than 100 RMA policy statements and plans that New Zealand currently has down to just 14, while avoiding the parochial politics attached to trying to force council amalgamation.
The higher level content for these plans would be set through national direction and regional spatial strategies, and the structure and format would be prescribed through national planning standards. The process to develop them is modelled on the approach used for the Auckland Unitary Plan and would involve an Independent Hearing Panel (IHP), a joint committee of delegates from each local authority in the region, a representative from the Department of Conservation, and representatives from mana whenua.
The joint committee would determine the form of the combined plan for notification and decide whether to accept the IHP’s recommendations.
Plans would be independently audited pre-notification to ensure quality and adherence to the requirements of the Act and national direction. Submissions would be heard by the IHP, with appeal rights to the Environment Court.
The Report also proposes better differentiation between consent applications for complicated activities requiring a robust environmental impact assessment and those with only localised effects that could be determined by a simpler alternative dispute resolution process.
The present focus of notification decisions on minor effects would be removed. Although the devil will be in the detail, the Report suggests information requirements should be proportionate to the nature and complexity of the activity. Compliance, enforcement and monitoring functions would be better resourced, consolidated into regional hubs with national oversight, and supported by higher penalties.
The Strategic Planning Act
The Strategic Planning Act would promote the strategic integration of legislative functions across the resource management system, including the proposed NBEA, the Local Government Act, the Land Transport Management Act and the Climate Change Response Act.
It would require the development of long-term regional spatial strategies, jointly developed and agreed by central government, councils and mana whenua (with a Ministerial decision-making power to resolve disputes).
Freshwater reform package
The Government’s freshwater package, designed to stop and then begin to reverse the degradation of our waterways over the next five years, is now almost entirely enacted.
The mechanisms of implementation were the Resource Management Amendment Act 2020, the new National Policy Statement on Freshwater Management (NPS-FM), National Environmental Standards for Freshwater (NES-FW), and regulations covering the measurement and reporting of water takes by permit holders and the exclusion of stock from waterways.
The RMA amendments are already in effect. The other changes were passed on 5 August and will come into force from 3 September this year. The only outstanding item is a national bottom line for dissolved inorganic nitrogen (DIN), which has been referred back to the Scientific and Technical Advisory Group (STAG) to develop a consensus decision within the next 12 months.
Climate change court action in Oz
An Australian student is seeking an injunction to prevent the Australian Government from issuing any further bonds until it is in compliance with the disclosure obligations of the Australian Securities and Investments Commission Act.
The claim alleges that Government Bond values are affected by climate change risk and that the Government’s failure to disclose the potential impact of these risks in its investment materials amounts to misleading and deceptive conduct.
Managed Retreat and Climate Change Adaptation Act?
The Randerson Panel on the reform of the resource management system has recommended specific legislation to deal with issues relating to climate change adaptation and the managed retreat from inundation prone areas.
The Act would include a power to acquire land, with potential compensation determined by specified principles – given that market value, as required by the Public Works Act, would be “significantly diminished” and unlikely to yield an amount “to enable affected people to move on with their lives by re-establishing themselves elsewhere”.
The Panel also recommends that other economic levers be provided, including taxes, subsidies and other incentives to change land and resource use.