Replacing the RMA with two new pieces of legislation – experts comment on review panel’s proposals

The Government has welcomed the most comprehensive review of New Zealand’s resource management system since the Resource Management Act (RMA) was passed in 1991. The findings and recommendations – set out in a report titled New Directions for Resource Management in New Zealand – were prepared by an independent review panel led by retired Court of Appeal Judge Tony Randerson QC.

The panel has recommended the replacement of the existing RMA by two separate pieces of legislation – a Natural and Built Environments Act and a Strategic Planning Act.

It will be up to the next Government to consider the report and decide whether to implement some or all of the recommendations. Environment Minister David Parker said he expected political parties would develop their policies for the upcoming general election campaign in light of the report’s findings.

The review panel said the proposed new Natural and Built Environments Act (NBEA), taking a substantially different approach from the RMA, would focus on enhancing the quality of the environment, housing and achieving positive outcomes to support the wellbeing of present and future generations.

The proposed Strategic Planning Act would embed integrated spatial planning across all regions of New Zealand. It would set long term strategic goals and help integrate 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. This will allow a broad range of matters to be reconciled to ensure better future planning, including for infrastructure and housing.

It recommends greater use of national direction by the Environment Minister and a more streamlined process for council planning and a more efficient resource consent process.

It also proposes a new separate law to address issues related to climate change adaptation and the managed retreat from areas threatened with inundation.

A National Māori Advisory Board is suggested, to advise on resource management from a mana whenua perspective.

The full report is available here https://www.mfe.govt.nz/rmreview.

The Science Media Centre asked for expert comments on the review.  Here are the responses –

* Dr Nicholas Kirk, Environmental Social Researcher, Manaaki Whenua – Landcare Research, comments:

“Since the Resource Management Act’s introduction in 1991, it has been criticised for stifling economic growth by being too restrictive on development, as well as for being too lenient on development resulting in negative environmental effects. Often missing from these criticisms was a constructive legislative alternative. The RMA review published today helps fill this gap.

“The review proposes repealing the RMA and replacing it with new legislation. The proposed Strategic Planning Act will set long-term integrated goals for resource management, and can offer a long-term vision for infrastructure and land use that is poorly delivered under current legislation. A focus on integrated resource management and strategic planning can help resolve some of the integration issues present in the RMA.

“The review also promotes partnership with iwi over resource management decisions. This approach must respect tikanga Māori. Concepts from te ao Māori, such as kaitiakitanga, were present in the RMA but some felt these concepts were misinterpreted or diluted in practice.

“The proposal of a Climate Change and Managed Retreat Act is also encouraging. Some communities are already experiencing the impacts of coastal erosion and sea level rise, so there is no time to wait. But, introducing a separate Act for climate change adaptation risks interface problems with other legislation. Also, the scope ought to be broadened to consider the effects of climate change on primary industries, facilitating just transitions to more resilient and sustainable land uses.

“RMA case law and related institutional knowledge has developed over thirty years. New legislation could potentially result in relitigating resource management decisions in the courts. There is a risk we repeat the lengthy period it took to develop plans, limits, and targets as occurred when the RMA was first introduced in 1991. If the RMA is repealed and replaced, effort must be made to ensure the knowledge of the past thirty years is not lost, knowledge which can help us develop a more robust, equitable, and future-focused resource management system.”

No conflict of interest.

* Dr Wendy Saunders, Senior Natural Hazards & Climate Adaptation Planner, GNS Science, comments:

“The ‘New Directions for Resource Management in NZ’ report released today includes some new thinking around how we manage natural hazards, risks, and climate change. It has been well documented that the current system is not producing the outcomes our communities need to be able to adapt to climate change, nor to adequately manage the other natural hazard risks we face.

“One proposed initiative, the “Managed Retreat and Climate Change Adaptation Act”, will allow for land use changes, address liability and compensation, and set up a fund to pay for climate change adaptation and risk mitigation. This is welcomed, as it will allow councils and communities to work together towards strategic planning for adaptation, with a supportive planning mechanism to allow for land use change.

“I believe this will be a game changer for NZ’s coastal communities and other areas which already face significant risks from climate change and other hazards. There’s no doubt that decisive action will be needed by councils and communities, and the proposed new system will hopefully provide the mechanism and support for positive land use change. While we are excited about the contents of the report, it is large, and it will take time to process and understand the detail within the report, and think through the implications.”

No conflict of interest declared.

* Professor John Hopkins, Research Director, School of Law, University of Canterbury, comments:

“At first glance, the report provides the sort of new focus that is required. The RMA is biased towards the development of resources rather than their conservation.

“The default position was always that resources could be developed although the community (in one form or another) could intervene to restrict of manage such use. However, it always took active engagement to stop such developments or introduce restrictions.

“It reflects the views of another era, views that are no longer held by the bulk of New Zealanders. We no longer think that development is necessarily a good thing and this report appears to recognise the need for a more holistic approach.

“The proof of the pudding will be in the eating however. The RMA began with noble intentions but never functioned as intended through a combination of legislative flaws and poor implementation (the lack of national management plans, until very recently, for example). The new system, should the government accept the reviews findings, will need to be better designed and implemented than the RMA that preceded it.”

No conflict of interest declared.

* Dr Judy Lawrence, Senior Research Fellow, Climate Change Research Institute, Victoria University of Wellington, comments:

“The Randerson panel should be congratulated on a thorough review that addresses some of the more challenging aspects of planning under a changing climate.

“Issues of existing use rights and compensation are a barrier to staging managed retreat strategies where they will be inevitable. It is timely that these issues are addressed before it is too late, and to use the adaptive planning tools already available to local councils – and as set out in the revised national coastal hazards and climate change guidance issued by the Ministry for the Environment in 2017.

“Recommending separate legislation to cover managed retreat and adaptation appears to address the mandate concern that local government has been raising for some considerable time which along with funding provision addresses recommendations of the Climate Change Adaptation Working Group 2018. With the institutional arrangements in place adaptation can be unequivocally acted upon.”

No conflict of interest declared.

* Dr Priya Kurian, Professor of Political Science and Public Policy and Dr Debashish Munshi, Professor of Management Communication, University of Waikato, comment:

“The reforms proposed are sound and long overdue. The three new pieces of legislation recommended are exhaustive and cover the inter-related issues of improving the quality of our environment and the sustainability of our natural resources, safeguarding health and wellbeing, designing carefully planned infrastructure, and adapting to the ravages of climate change.

“However, the three legislative acts are presented sequentially, with the Managed Retreat and Climate Change Adaptation Act following the first two. It would perhaps be more effective to get the legislation through simultaneously so that climate adaptation processes are fully integrated into the legislation that replaces the RMA.

“We fully endorse the idea of setting up a national adaptation fund as proposed by the Managed Retreat and Climate Change Adaptation Act. For a country with small communities and limited resources at the level of local government, such a fund is essential. We also applaud the panel for drawing on Maori perspectives to guide every step – this is a particular strength of the report.

“As public engagement scholars, we would like to see every aspect of community engagement and input into the shaping of the proposed legislation followed through meticulously. What has been flagged is that Cabinet has indicated ‘a broad open process of public consultation’ that will follow after it considers the panel’s proposals. Getting the framework for public engagement right up-front is key to the success of the reforms.”

Priya and Debashish are co-leaders of a Deep South National Science Challenge project on ‘Centring culture in public engagement of climate change adaptation’.

No conflict of interest declared.

* Associate Professor Caroline Miller, Resource and Environmental Planning Programme, Massey University, comments:

“The 29 year old RMA, so amended it resembles a patchwork quilt produced by an inept and dysfunctional committee, would be repealed under these proposals. The RMA’s philosophy of sustainable management will be replaced by commitment to enhance the quality of the environment to support the wellbeing of present and future generations while recognising the concept of Te Mana o te Taiao.

“The RMA would be replaced by two acts. The Natural and Built Environments Act would focus on enhancing the environmental quality to support the wellbeing of present and future generations, essentially what the RMA set out to do. The Strategic Planning Act would promote the strategic integration of functions across the resource management system through development of regional spatial strategies.

“This latter act is ambitious in its scope given it would require territorial and regional councils and mana whenua to combine to produce a high level spatial plan ‘consistent with the purposes of the Natural and Built Environments Act, LGA and LTMA, national direction, the national adaptation plan under the CCRA and relevant government policy statements’.

“This would be a substantial and potentially expensive undertaking, to produce a plan of a type never seen in NZ before.

“Territorial and regional councils would also combine to create a single regulatory plan, that will reflect national directions and the regional spatial plan. Hearings for such plans will, as with the Auckland Spatial Plan, be in the hands of an independent hearings committee.

“There is also a clear intention to settle development standards and potential disputes through the plan hearing process, reducing the number of consents and the potential costs and delays of that system. Consents would require a robust environmental impact assessment but what are called localized disputes would be settled by alternative dispute resolution processes.

“There will be enhanced recognition of Te Ao Māori with on-going commitments to the principles of Te Tiriti o Waitangi, remaining a mandatory part of all planning and decision making. A new National Māori Advisory Board will be created presumably to ensure the Te Mana o te Taiao pillar of the new legislation is achieved.

“Central government will have a much more central and directive role in planning through the use of a revamped national policy statements and national environmental standards system, and through the use of targets including the establishment of environmental limits or standards. Clearly, that aim is to create a more nationally uniform planning system which may not sit well with local communities used to planning their own direction.

“Such wholesale change will, on the experience of the introduction of the RMA, come at significant cost particularly in less well-resourced regions. It will also, in the transition years, create significant uncertainty, along with no doubt suggestions that territorial and regional government need to be reformed to reflect the new integrated and collaborative planning system.”

No conflict of interest declared.

Sources:  Minister for the Environment and Science Media Centre

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