RMA Reform

1. RMA Reform What’s in it for the Environment? Neil Deans The law doth punish man or womanThat steals the goose from off the common,But lets the greater felon looseThat steals the common from the goose.

2. Summary • RMA summary • Reasons for reform • Proposed changes • Process • Environmental outcomes • Sections 6 & 7 • Section 32 • Positive aspects? • What can you do?

3. What is Fish and Game NZ? • Successor to Acclimatisation Societies – 150 years old • Public Entity managing Sports Fish and Game Birds • “in the recreational interests of anglers and hunters” • ‘User pays - user says’ • Responsible to Parliament via Minister of Conservation • Major interest in freshwater habitats; ‘look after the habitats and the species will look after themselves’ • Major RMA engagement; process 1500 – 2000 resource consents/year; applied for most Water Conservation Orders; engaged with regional plans incl. ‘One Plan’

4. What is the RMA? • Environmental legislation; promotes ‘sustainable management’ of natural and physical resources • ‘Effects’ rather than ‘activity’ based; • Enabling; allows resource use that is sustainable • Also allocates access to use of natural resources • Integrated; land, water, air, coasts • Land able to be used unless plans constrain; • Air, Water, Coasts not able to be used unless allowed • Decision-making devolved; with public input • A planning act; regional plans enable resource use

5. Rt Hon Simon Upton • “Unlike the current law, the Bill is not designed or intended to be a comprehensive social-planning statute. It has only one purpose – to promote the sustainable management of natural and physical resources”. • RMA is: • a framework to establish objectives by a physical bottom line that must not be compromised, • a much more liberal regime for developers. • Activities will have to be compatible with hard environmental standards, and society will set those standards. • Bipartisan & consultative approach – until now...

6. Does the RMA need reform? • Lack of Problem Definition • RMA a convenient whipping boy • Process • Decisions take too long; are too costly; are too uncertain • We have reached limits; stymieing development and hence, the economy • Outcomes • Improved environment, or greater access to natural resources managed under the RMA? • ‘Better reflect today’s values and priorities’

7. Govt Mandate for Reform • RMA needs fixing... • TAG Report into Sections 6 & 7 • No clear problem definition • Undue haste/lack of public involvement

8. Government’s Business Growth Agenda

9. Building Natural Resources sets out the important role that our natural resources play in helping us to have a more productive and innovative economy. It sets out the actions the Government is taking to help improve the way we use and manage these resources. • It encourages New Zealand’s businesses, large and small, to find ways to become more innovative and to get the best returns for both our economy and environment from our natural resources. The Government is doing its part by putting in place improved resource management systems that will enable faster economic growth while maintaining our environmental integrity.

10. Improvements to Process • Speed process • Faster, or better, decisions? • Reduce public involvement • 96% of consents processed without public notification • Increase likelihood of authorisation? • Presently 90% of large scale consents are granted consent; should 100% be consented? • Ministerial powers to override? • Decrease uncertainty? • What about environmental outcomes?

11. RMA performance 2010/11 • 36,154 resource consent applications decided: • 0.56 % (203) of applications declined • 4 % (1414) of applications publicly notified • 2 % (849) of notified to affected parties • 1 % (357) of decisions were appealed. • Local authority officers acting under delegated authority made 91% of decisions on resource consent applications. • 95 % of resource consents processed on time. • MfE http://www.mfe.govt.nz/publications/rma/annual-survey/2010-2011/key-facts/index.html

12. Do submitters matter?Changes to submission and appeal rights • Proposal to specify that some applications should be processed non-notified • Proposal to limit submissions and appeals to only the reasons the application was notified and the effects related to those reasons • Direct government intervention in Plan content • At any stage in process

13. Process Changes

14. Does the Environment Court matter?Changes to the appeal process • Hearings on resource consent appeals to be by rehearing rather than de novo • Plan appeals on joint plans to be only where Council departs from recommendations of independent hearings panel (otherwise on questions of law only), and by rehearing rather than de novo

15. Is Environmental Quality too high? • NZ trades on its ‘clean and green’ image; what is this worth? • Both as a sense of identity/value proposition; and • To our society and economy • Environmental Outcomes; what is the state of our environment? • Water Quality • High country; good and stable • Lowlands; often poor and declining • Biodiversity • Declining • To conclude; environmental improvement is required

17. Kiwi Priorities (from Hughey et al, 2010) Government Individual

24. Part II Section 5: Purpose (1) The purpose of this Act is to promote the sustainable management of natural and physical resources. (2) In this Act, sustainable management means managing the use, development, and protection of natural and physical resources in a way, or at a rate, which enables people and communities to provide for their social, economic, and cultural well-being and for their health and safety while— (a) sustaining the potential of natural and physical resources (excluding minerals) to meet the reasonably foreseeable needs of future generations; and (b) safeguarding the life-supporting capacity of air, water, soil, and ecosystems; and (c) avoiding, remedying, or mitigating any adverse effects of activities on the environment.

25. Sections 6 & 7: Principles ‘Engine Room’ of RMA; used as a checklist in planning Currently matters of national importance or other matters, to which, respectively, all decisionmakers must ‘recognise and provide for’ or ‘have particular regard to’. • Do these ‘reflect contemporary values’?

26. Proposed Changes; Section 6 • “6 Principles • (1) In making the overall broad judgment to achieve the purpose of this Act, all persons exercising functions and powers under it in relation to managing the use, development and protection of natural and physical resources shall recognise and provide for the following matters [no longer of national importance]: • Reintroduction of ‘balance’ • Departs from case law; does not confirm it

27. Section 6 contd (a) the preservation of the natural character of the coastal environment (including the coastal marine area), wetlands, and lakes and rivers and their margins, and the protection of them from inappropriate subdivision, use and development; (b) the protection of specified outstanding natural features and landscapes from inappropriate subdivision, use and development;

28. Section 6 contd • (c) the protection of specified areas of significant indigenous vegetation and significant habitats of indigenous fauna; • (d) the value[not maintenance and enhancement] of public access to and along, the coastal marine area, wetlands, lakes and rivers;

29. Section 6 contd • (e) the relationship of Māori and their culture and traditions with their ancestral lands, water, sites, waahitapu, taonga species and other taonga including kaitiakitanga; • (f) the protection of protected customary rights [not activities];

30. Section 6 contd • (g) the benefits [not costs] of the efficient use and development of natural and physical resources; • (h) the importance and value [not protection] of historic heritage [not from inappropriate subdivision use and development]; • (i) the impacts of climate change;

31. Section 6 contd • (j) the benefits [not costs] of efficient energy use and renewable energy generation; • (k) the effective functioning of the built environment including the availability of land for urban expansion, use and development; • (l) the risk and impacts of natural hazards; • (m) the efficient provision of infrastructure;

32. Section 6 contd (n) [not protection of] areas of significant aquatic habitats, including trout and salmon; (2) For the avoidance of doubt section 6(1) above has no internal hierarchy.

33. Existing matters proposed for deletion: 7(aa) the ethic of stewardship 7(c) the maintenance and enhancement of amenity values 7(d) intrinsic values of ecosystems 7(f) maintenance and enhancement of the quality of the environment 7(g) any finite characteristics of natural and physical resources.

34. Case Study • Waimea River, Nelson • Regionally important fishery, swimming, whitebaiting, wildlife habitat • 130% overallocated; river dried up twice in last decade • Flow requirements for trout 1300 litres/second; for native fish less than 500 litres/second • Water quality requirements for nitrates 1 ppm for trout; perhaps 4-6 ppm for native species; 11 ppm toxic for humans • Is this river significant; would it meet that threshold?

35. Proposed Section 7 Methods • All persons performing functions and exercising powers under this Act must: • (1) Use best endeavours to ensure timely, efficient and cost-effective resource management processes; • (2) In the case of policy statements and plans: • (a) include only those matters within the scope of this Act; • (b) use concise and plain language; and • (c) avoid repetition; • (3) Have regard to any voluntary form of environmental compensation, off-setting or similar measure which is not encompassed by section 5(2)(c); • (4) Promote collaboration between local authorities on common resource management issues; and • (5) Achieve an appropriate balance between public and private interests in the use of land.”

36. Section 32 – RM Reform Bill • Now: • Evaluation of cost effectiveness of alternative options to achieve objectives through plans • Proposed: • “(a) ...including the opportunities for— • “(i) economic growth that are anticipated to cease to be available; and • “(ii) employment that are anticipated to be provided or reduced; and • “(b) if practicable, quantify the benefits and costs referred to in paragraph (a)”

37. Is there anything useful here? • A planning template; may improve consistency • Consistency, reducing uncertainty, speeding process are all desirable • The proposals, however, will reduce certainty, require relitigation to establish new case law as to what the provisions mean and therefore are likely counterproductive towards these ends

38. Who supports these changes? • Federated Farmers • Hort NZ • National and ACT • Much support behind the scenes • Is it really good for small business?

39. Who is concerned? • Parliamentary Commissioner for the Environment, Dr Jan Wright • “These changes are far more radical than any previous amendments to the RMA. • “The RMA’s focus is, and should remain, on the protection of New Zealand’s natural and physical environment. • “There is also a subtle but significant undermining of environmental protection through the removal of some environmental considerations and weakening of others. • “There are many improvements that can be made to the RMA. But the proposed changes to sections 6 and 7 are in an entirely different category and should not go ahead.”

40. Former PM and architect of the RMA, Sir Geoffrey Palmer • “Those changes will significantly and seriously weaken the ability of the RMA to protect the natural environment and its recreational enjoyment by all New Zealanders.”

41. Dom Post Farming Editor Jon Morgan  http://www.stuff.co.nz/business/farming/8453690/RMA-overhaul-won-t-help-the-environment • Business commentator Rod Oramhttp://www.stuff.co.nz/business/opinion-analysis/8400307/Oram-A-naked-power-grabhttp://www.youtube.com/watch?v=9cR40CXP0hs • http://www.facebook.com/SaveTheRMA?fref=ts •  RMLA, NZILA, F&GNZ, F&B, EDS, FMC, etc • Is this NZ’s future?

42. What can you do? • Write to the PM; the Minister for the Environment Amy Adams; your local MP • Support comment/actions on this • Make submissions to Select Committee

43. Conclusion • Proposed changes are part of a package intended to facilitate economic development by opening access to our natural resources • Resource management will become politicised as never before • Uncertainty and social discord will increase • The environment will be further degraded