1 May 2016

Changing the resource legislation landscape – What is proposed and how has it been received?

Introduction

The next phase of the Government’s plans to reform the environmental law scene was recently completed, with the public submission period on the Resource Legislation Amendment Bill (the Bill) closing in mid-March.  As expected, the Bill has drawn a great deal of interest from a raft of stakeholders, including district councils, corporations, iwi, professional associations and organisations, community groups, and individuals.  By the end of the submission period, 675 submissions had been received by the Local Government and Environment Select Committee.

Many of the submitters were in support of the purpose and objective of the Bill – namely, to create a resource management system that achieves sustainable management of natural and physical resources in an efficient and equitable way.  Nonetheless, the submissions detail a number of concerns in relation to particular aspects of the Bill, with many claiming that the intended purpose will not be able to be achieved if the Bill is passed ‘as is’.

This article sets out a few of the key concerns raised in the submissions. Please note that the points outlined in this article are not necessarily the views of the author, but merely represent an overview and brief summary of some of the issues raised in relation to the Bill.

Background: Overview of the Bill

Without discussing the details of the Bill, the proposed changes are briefly summarised below:

• National direction: the Bill includes a number of amendments which are aimed at providing more national control, such as amendments to clarify the content of national environmental standards and national policy statements (referred to as NES and NPS respectively), introduction of a national planning template (or NPT) to ensure consistency of plans, and regulation-making powers for the Minister for the Environment.
• Plan making: the idea is that plan-making will become faster, more efficient (both in relation to cost and time) and with increased iwi engagement.  The proposed amendments therefore include two new planning processes, the Collaborative Planning Process and the Streamlined Planning Process (CPP and SPP respectively), as well as the introduction of Iwi Participation Arrangements.
• Consenting process: changes are proposed in relation to timeframes for considering applications, determination of the status of certain activities, requirements for consultation and notification, the scope for imposing consent conditions and, the process for setting consenting fees.
• Court powers and appeals: the proposed amendments relate to delegation, the timing of certain steps in the process, methods used for determining disputes before the Court, and when the Court has jurisdiction to hear a matter.
• Process alignment: the Bill proposes that processes and timeframes under different environmental statutes be aligned, that refinements are made to the service process, and that the ability to charge financial contributions is removed.

The main concerns raised

Although a raft of concerns are raised in the 675 submissions, a quick overview identifies three issues as particularly contentious, namely:

• The introduction of ministerial powers;
• The structure for increased Māori participation;
• The limited ability for public participation and reduced appeal rights.

The introduction of ministerial powers

Clauses 103 and 105 of the Bill introduce new ministerial regulation-making powers in sections 360, 360D and 360E.  These relate to measures to exclude stock from water bodies, restrictions on local authority control over certain land use, and limitations in relation to administrative charges.

Comments in relation to clause 103 (amended section 360) include support for a consistent approach across the country, while at the same time concern about the content of such regulations being decided by the government.  Some concern is also expressed in respect of the lack of reference to collaboration with affected parties to ensure that the regulations are fit for purpose.

The overriding worry over proposed new section 360D is that it will effectively provide the Minister with the ability to enact regulations which override local authority control of land use.  Submitters were concerned about the Minister having the ability to require the removal of provisions in District or Regional Plans if the Minister believes that such provisions conflict with the regulations.

Many submitters describe clause 105 as a “Henry VIII clause”, a concept used in the Regulatory Impact Statement prepared for the release of the Bill into Parliament.

Some of the main arguments against the Minister being awarded the proposed powers are:

• It goes against principles of democracy and the separation of powers;
• Any wide-reaching and sweeping governmental powers should be subject to adequate monitoring and inspection;
• The proposed powers go too far and are excessive, particularly bearing in mind the existing framework for governmental input into matters of national importance (e.g. through NPS, NES and the proposed new National Planning Template);
• The proposed powers undermine the democratic process underpinning our society.

While the above points more or less represent the majority of submissions, particularly from individual submitters, some submitters (largely local authorities) express a general support of the proposed powers, while criticising the broadness of the section and suggesting that some refinement (rather than removal) may be able to rectify the issue.

The point should be made that parts of section 360D will only be applicable for a limited timeframe, as it is intended to be restricted to the period before the adoption of an NPT, and one year thereafter.  The NPT is set to be in place two years after the Act has come into force.

By way of note, most of the Ministerial powers in section 360D are subject to some control, as the Minister is obligated to prepare an evaluation report, notify the public of the proposed new regulations and establish a process whereby the public can be heard.

The structure for increased Māori participation

There are two clear camps in relation to the proposed amendments concerning Māori participation, in particular the introduction of Iwi Participation Agreements (IPAs) as between iwi and local authorities.

One view is that increased Māori participation will benefit the RMA processes in that it will allow Māori the kaitiaki role always intended for tangata whenua.  The opposing view is that neither Māori nor any other group of society should be given preferential treatment in a matter as vital to New Zealand as resource management.

Concerns raised by the supporters of the introduction of IPAs include:

• How will the proposed agreements fit alongside existing partnership agreements between Councils and iwi? As it stands, many local authorities have existing agreements and/or understandings with local iwi (sometimes with a number of different iwi) and the concern is that the proposed IPAs will not adequately account for the processes already in place.
• The proposed agreements are only intended to ensure Māori participation into the planning processes, meaning that Māori have limited opportunities to provide input into other Council processes.  As a result, some submitters claim that the proposed IPAs do not go far enough to ensure that Māori can fulfil their kaitiaki responsibilities in relation to the environment.

Those who oppose the introduction of IPAs raise the following points:

• A democracy is founded on law-making being delegated to democratically elected representatives.  In allowing non-elected representatives positions of power without the usual ability to remove such representatives if required (such as in cases of abuse of power), the Bill circumvents basic democratic principles.
• The iwi provisions propose to give a select group of citizens special legal status insofar as the environment is concerned, a concept which is incompatible with the principle of equality of citizens.
• Positions of power should not be awarded based on race and there is a risk that these provisions will, without intending to do so, create animosity and/or a societal division by fostering racial disharmony.

It seems that local authorities and large organisations are in general support of the introduction of IPAs, mostly noting that the proposed provisions simply formalise current practices and processes for inclusion of Māori.  On the flipside, a large number of individuals raised concerns in respect of the proposed amendments and it seems there is a genuine fear (whether perceived or real) of what this would mean for society as a whole.

Limited ability for public participation and reduced appeal rights

There are a number of provisions in the Bill which limit the ability of the public to participate in both planning and consenting processes.  Examples include:

• Prescribing which parties are eligible to be notified of different types of consent applications;
• Widening the ability of local authorities to strike out submissions;
• Precluding public notification of certain activities;
• Refining the definition of “affected person” for the purpose of limited notification;
• Limiting appeal rights in respect of certain decisions.

As with the proposed introduction of IPAs, the provisions in the Bill relating to restrictions on public participation have been met with both positive and negative feedback.

The positive feedback largely focuses on the idea that the proposed amendments will help reduce time, limit costs and improve certainty in a number of identified situations, which is of benefit to all stakeholders.

The negative feedback includes:

• Public involvement is the cornerstone of the RMA, and any attempt at reducing consultation or removing the ability to appeal to the Environment Court will detrimentally affect the core of existing environmental legislation.
• The combination of limiting public participation and restricting the ability to appeal decisions will have the effect of drastically reducing the number of stakeholders allowed to take part in any RMA process.  The purpose of ensuring time and cost efficient processes is likely to be able to be achieved with an “either/or” approach.
• The proposed amendments would, rather than simplify, establish unnecessarily complicated procedures.
• The opportunities for early stage involvement in plan-making processes do not adequately make up for the proposed constraints on notification and eligibility of submitters in the consenting process.

Conclusion

While this article is not based on a detailed review of all 675 submissions received, even a limited review makes it clear that the majority of the submitters are in general support of the government’s intention to amend existing resource management legislation by way of an amendment Act.  While a small number contend that a complete overhaul is required, the majority seem convinced that the Bill can result in improvements to the current legislation, provided that the Select Committee properly considers the submissions made.

It is equally clear that the Bill as drafted contains a number of rather contentious amendments, primarily in relation to the proposed changes to the RMA.  Time will tell whether the Select Committee will be able to adequately address the concerns raised.

The Select Committee’s report is due on 3 June 2016.

If you would like further information please contact Dale Thomas on 07 958 7428.