Why they want to bin the Resource Management Act and how that is a big deal

stuff.co.nz 2020-09-12 10:09

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The Resource Management Act: After many patches and revisions, finally time to just replace it.

The Resource Management Act is on the way out, even if repealing it will take Parliament years. But did it really fail? And will the next iteration be much different? JOHN McCRONE reports.

Mention the Resource Management Act (RMA) and whose eyes don’t immediately glaze over?

Yet there is a reason why the RMA was counted as one of New Zealand’s most ambitious bits of legislation when it was passed back in 1991.

And why it matters the next three years of Parliament are about to be consumed all over again by the mammoth task of scrapping and replacing it.

“Yes, it’s quasi-constitutional in its impact,” says Environmental Defence Society (EDS) chair Gary Taylor, one of those who started pushing for a rewrite after realising the RMA wasn’t working for either side – the environment or the developer.

Put simply, says Taylor, the RMA is at the heart of national strategy.

Its job is to set the balance between our economic ambitions and environmental limits. That means whatever replaces it will affect everything.

Guy Salmon, of Nelson’s “blue-green” think tank, Ecologic – a member of the RMA’s original independent panel 30 years ago – says it could be New Zealand’s true coming of age moment.

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Auckland Unitary Plan: the spatial map of city and harbour is an example of the detail expected in the new act.

The country might get around the table and figure out how to actually live within sustainable limits. Or, of course, it could all dissolve into the most unholy political bunfight.

Buckle in, he says. The RMA may have long bored most people senseless. When was it not being either revised or reviled?

However, wait until New Zealand goes back to scratch to develop some new formula for the next 30 years, Salmon warns.

Talking up change

Right now, the talk is all about the opportunity – a rare moment of political consensus.

Last year, Environment Minister David Parker agreed the RMA looked past patching and ordered an independent review led by retired judge Tony Randerson.

The ink was barely dry on the last attempted rewrite of the RMA – the Resource Legislation Amendment Act (RLAA).

That had spend 14 months in select committee and was the biggest bill pushed through in 2017. Yet no one felt much had changed. So time to bite the bullet.

In neat symmetry, Randerson had also chaired the first RMA panel. In July this year, he delivered his report and advised replacing the RMA with now two separate bits of legislation.

One would be a Natural and Built Environments Act (NBEA) that will contain the environmental “bottom lines” which constrain any future development or economic activity.

The other would be something quite new – a Strategic Planning Act (SPA) that will create spatial plans to steer development in every part of the country.

Randerson’s proposed overhaul also suggests a few other juicy reforms.

Māori may get full Treaty recognition under the legislation this time around – something that would have to trigger a hard conversation about who owns freshwater in New Zealand first.

Climate change and sea level rise could also be in. Or at least Randerson says it ought to come along for the ride as its own Managed Retreat and Climate Change Adaptation Act.

Phil Reid/Stuff

Retired judge Tony Randerson (l) chaired both the original RMA panel and the panel considering the act’s replacement.

The new legislation would put a special emphasis on urban development – “sensible planning” would be forced on New Zealand’s cities.

And as the ripples play out, the Randerson reforms may even finally require New Zealand do something radical with its local government set-up – such as push through the regional amalgamations every council has been resisting for so long.

Thus it is all to play for. And yet every political party says it is on board with the change. Or at least the discussion that will follow once this year’s election is out of the way.

National’s leader, Judith Collins, says the changes were already party policy, just differently named as an Environment Standards Act and Urban Planning and Development Act.

“We will begin this work in our first 100 days. We will introduce new legislation by the end of next year,” Collins vowed boldly.

So it is happening one way or another. The question is how will it be different, exactly?

What, if anything, did the old RMA get so wrong? And what is the essential philosophical change that is going to be embodied by the new one?

Limits of the attainable

The RMA started off so brightly. Former Labour prime minister Sir Geoffrey Palmer, who steered the act into being while holding the environment portfolio, talked of its origins in a local government conference speech.

Palmer says the RMA was itself a reaction to bad legislation – Muldoon’s 1979 Think Big National Development Act. The bulldozer approach to the environment.

Labour repealed that act and, in 1990, set about formulating its own green alternative, based on the principle of sustainable development.

Palmer admits the infant RMA became a legislative monster, the biggest thing pushed through Parliament in years.

“The entire exercise was always at the outer limits of the attainable in a law reform project.”

However, its passing was a proud moment for the country. At the time – being based on the latest market-driven neoliberal economic theory – it seemed the bees knees.

EDS’s Taylor says the feeling was New Zealand was opting for something of elegance, something pioneering. And indeed, the RMA was widely admired as a striking experiment.

“Overseas jurisdictions that we talk to, when we’re doing our policy work, still regard the RMA with awe and respect,” Taylor says.

The elegant bit was the way the RMA was framed as a basically permissive planning framework. Effects-based.

Taylor says rather than a maze of bureaucratic rules being imposed, property owners were presumed to be allowed to make the best economic use of their land, so long as they stayed within some fundamental environmental constraints, and they weren’t wrecking things for others.

It made for a nice clean separation. Sustainable bottom lines. And then, if you met them, you could “let the market rip”.

But the RMA immediately went off piste, Taylor says.

The legislation was always intended to be accompanied by a hierarchy of plans where the bottom lines would be made explicit through nationally-mandated standards and locally-developed council documents. The supporting detail.

However, the money was never spent to do that properly, says Taylor. Or at least in time. Situations developed like dairy conversions and the grab for irrigation rights in Canterbury.

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Canterbury’s rush to dairy farm conversions was too fast for RMA oversight to keep up.

The necessary science on nutrient leaching or aquifer degradation wasn’t done before those damaging environmental practices had become well established.

The letting rip happened faster than the sustainable management could keep up.

Another major issue was the judiciary, says Taylor. The Environment Court judges were used to a style of resource consent decisions where the task seemed to be about weighing trade-offs rather than enforcing bottom lines.

“The courts screwed it up by doing the old wise white man routine of ‘I know best. I can balance these things.’

“And of course every time you balance off economic development against environmental harm, you’re always going to end up with more harm.”

Taylor says this mentality applied from 1991 until 2014, when EDS finally won a judgment in the Marlborough Sounds King Salmon case.

But just to show you how politics works, the National Government immediately tried to try rewrite the RMA so the Environment Court could take that trade-off approach.

An attempt that was thankfully quashed, Taylor says. But history suggests if the RMA never really succeeded, it was because it was never really applied in the spirit in which it was written.

Political capture

Ecologic’s Salmon agrees the problem was always governance rather than the wording of the RMA itself. The principles were compromised in practice.

There were some famous Environment Court standoffs, like Meridian Energy’s Project Aqua to build a hydroelectric dam on the lower Waitaki River in Canterbury, and then its Project Hayes wind farm plan in the isolated Lammermoor Ranges of Otago.

But newspaper reports of the time noted it was uncertain economic returns as much as environmental protest that saw the projects withdrawn.

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Ecologic’s Guy Salmon: The RMA pushed big decisions down to under-resourced local councils.

Salmon says rather than big developments getting turned down, the reality was the RMA was generally failing to put enough of a brake on a lot of environmental damage.

In keeping with free market principles, central government had tried to stand back and leave the making and enforcing of any environmental rules to under-resourced local councils. That then made the whole system subject to political capture.

“These are inevitably enabling frameworks that confer discretion on decision-makers who are politically elected. And in much of the country, there’s a majority of farmer advocates making up the regional councils,” Salmon says.

EDS researcher Dr Greg Severinsen, a former Ministry for the Environment policy analyst, says the crunch came in 2016 when EDS did a study of the RMA’s outcomes and found no-one was being served well by the existing act.

Developers certainly weren’t happy. They had said that loudly.

But Severinsen says their issues were as much about the frustrations of the open-ended process as anything else.

A permissive “effects-based” approach had sounded great on paper. However, that then made every development project rather a leap in the dark.

“The RMA doesn’t stop a huge amount of stuff happening. The main complaint is it introduces a lot of uncertainty and churn about how long it will take to get consent, the terms that will be imposed, and how much money it will cost to get there.”

Yet Severinsen says the environmental lobby at least had been assuming the RMA was working for it. Instead, the study brought home how all the environmental indicators, like biodiversity and freshwater quality, were just getting worse every year.

That was when EDS got together with its “opposition” – groups like the Auckland Employers and Manufacturers’ Association (EMA), Infrastructure New Zealand and the Property Council.

They formed a resource management reform group to work on a replacement act. That bubbled up eventually to become the basis of Randerson’s new report.

So a consensus has been created, says Severinsen. “The frustrations have become so large that something is going to be done.”

The question now is how far all the suggestions raised can be pushed.

If Palmer found the original RMA a mammoth programme of reform, its replacement threatens to be an effort that could be going on for many years to come.

Back to the future

In terms of planning philosophy, the proposal of two acts – one for bottom lines, the other a new spatial planning “front end” – will take New Zealand back to the future.

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Mock up of Project Hayes: How the Central Otago windfarm was going to look, according to RMA submissions.

Maybe not a humiliating climb-down from a 1990s’ market-led neoliberalism, but definitely a return to believing a complex world needs institutional guidance.

EDS’s Taylor says the NBEA component should finally require National Policy Statements (NPS) to cover all the environmental bottom lines. The work always intended, but never done.

While there will be political skirmishes over those, Taylor believes public opinion has shifted towards expecting real action. Pretending to care about pollution and degradation is no longer enough.

Then the big adventure will be building a new strategic planning framework on top of this foundation.

Taylor says the RMA always enabled local councils to produce planning maps which would give voice to community expectations about how a city was going to grow, how the countryside was going to be used. And then spell out the infrastructure to make that growth possible.

Yet that kind of strategic thinking was often playing catch-up. Also, it didn’t integrate with the planning activities taking place under other acts, such as the Land Transport Management Act or Local Government Act.

Responsibilities for who did what were left divided and so good intentions could fall through the cracks.

Taylor says this is what the reforms are meant to change. But that is why the task could become daunting.

Taylor says Randerson’s report highlights New Zealand’s well-known problem. As a nation, we have a strong central government and weak local government.

All the power and money is concentrated in Wellington, while councils are easily ordered about and have no taxation powers, only a rates base. And yet it is councils who are expected to carry out the planning function on the ground.

Taylor says that is a reason the implementation of the RMA became so weak and fragmented. A big part of the Randerson report is to begin writing spatial plans that are provincial in scale.

Randerson comments that having 78 local authorities in a nation of 5 million people is difficult to justify. He counted 100 different spatial plans, where geography says New Zealand ought to have just 14 regional ones.

And getting to that probably means forced amalgamations and a rewrite of the Local Government Act.

Others, like Infrastructure NZ chief executive Paul Blair, think the same. Blair says local funding has to be reformed as well.

“For plans to be implemented successfully, the organisations overseeing those plans must want them to succeed. The only way to do that is to ensure local councils and other institutions receive a portion of the value they create.”

However, changing to a New Zealand of super-councils is likely a step too far for the politicians – certainly judging by the noises being made by Environment Minister Parker.

Some regions, like Canterbury, already do have scale. And Auckland set the direction with its “supercity” amalgamation exercise, he says.

Monique Ford/Stuff

Environment Minister David Parker (l) announcing an urban development NPS. Part of the RMA’s long missing detail.

But Parker argues most councils – like the four making up the Wellington region, or Tasman and Nelson – could gang together to share a plan.

Either that, or the plans can be based on national functions as is happening with the “three waters” initiative covering drinking, wastewater and stormwater systems.

Forced amalgamations are vote losers. So to be avoided.

However, Taylor says they are what the situation demands. The danger otherwise is the RMA’s replacement becoming another reform that fails to deliver as intended.

Shared plans would be alright as an initial step, he says. “But in the end, the corollary of that approach is you merge those entities themselves, and we have fewer local councils.”

A staggered introduction

How will it come out in the wash? Severinsen and Salmon are turning their minds to the next phase of the process now the politicians have put reform firmly on the “to do” list.

Severinsen says staging choices will be critical. Not everything can be bitten off at once. And he believes the spatial planning act needs to be introduced first.

Existing RMA practices are likely to remain in place for years, he says. There will be a lengthy transition period during which any current plans are gradually rewritten to fit whatever the replacement bottom lines act turns out to be.

Salmon agrees the politicians need to pick their first changes wisely. He says the reforms will touch on so many aspects of national life that a wrong step could derail the whole process.

For example, Māori have to be at the centre of the new resource management system, Salmon says. “And yet the Crown still has to reach settlement with Māori over who owns water.”

You can imagine how that debate could be seized upon as a political weapon to wreck the reform agenda before it produces any concrete results.

However, Salmon says he is optimistic. There are going to be battles, but New Zealand knows it needs a new framework for sustainable economic growth. And the pandemic has demonstrated we are a country that can pull together, Salmon says.

Severinsen is likewise certain the politics have moved on too far. The lobbyists were agreed the RMA was finished back in 2016. The right thing to replace it with seems to be writing itself now.

Well, fingers crossed anyway, Severinsen says.

So buckle in. One way or another, the reforms are going to be a hot topic that dominates the next few years in Parliament.

Stuff

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