Its acronym is one of the most controversial in New Zealand politics. The Resource Management Act (R.M.A.) is an Act of Parliament that seems guaranteed to get politicians, farmers, economists, environmentalists, conservationists alike, talking about it. But how well do they understand this umbrella legislation whose framework underpins the entire environmental legal framework in New Zealand?
It is an Act of Parliament that neither side of the House of Representatives understand. The R.M.A. was written in 1989-1990 following the landmark Brundtland Conference in 1987 which brought together politicians, economists, environmentalists and others to discuss the critical state of the planetary ecosystem. Now, the National-led Coalition of Prime Minister Christopher Luxon wants to abolish it.
But why?
Just because one does not understand an Act of Parliament – which is true of the very vast majority of the 123 Members of Parliament (if not all of them) – is not a justifiable excuse for abolishing the legislation that underpins the entire environmental legal framework in New Zealand. It is not the fault of the Act that the only thing that both the left and the right seem to agree on when it comes to the environment, is that the R.M.A. does not work. The Act was written in a way that was designed to be politically neutral, and if both sides of Parliament (and the few moderates inbetween) can all agree it does not work – albeit for different reasons, then it probably DOES work.
But to understand the R.M.A., we need to do two things:
- Understand its origins – Sir Geoffrey Palmer and those who helped him did not just wake up one day and decide that they needed to write this huge Act – 916 pages
- Understand the functions of the Act, such as the resource consent process
The R.M.A. began to evolve at a time when New Zealand was undergoing a radical economic transformation. The previously closed economy was being opened up and exposed to market reforms whose merit is beyond the scope of this article. As part of those reforms, the local government sector, which consisted of a huge number of Catchment Boards, Drainage Boards, Municipalities and others, was being drastically slimmed down from about 850 structures, to just 86. The legislation governing local bodies form and function was getting a major overhaul to enable all of this, which began to take effect on 01 November 1989.
At the same time a second transformation was underway. To enable the new structures to meet their environmental and planning obligations, there was a new Act of Parliament being written that would replace 59 separate Acts and Amended Acts of Parliament, as well as 19 Orders. It was passed on 22 July 1991 by the new National Government of Prime Minister Jim Bolger.
When criticism of the R.M.A. flares up, it can generally be separated into 3 different topics:
- Resource Consents
- Public input and N.I.M.B.Y.ism
- Court
A Resource Consent is much like a Warrant of Fitness for a car. It is designed to test the appropriateness of a proposed activity – building houses, motorway, power station, coal mine and so forth – against set criteria determined by the Council based on public input and set down in their City/District/Regional Plan/s. It has set timeframes for the council to make a determination; any affected parties to have their input and any further public consultation; statutory reporting back to council and so forth to happen.
The main criticism of resource consents stems from council handling of them once submited, but also how well the applicant understood their obligations as well. Often a Section 92 request for more information is made because the applicant did not supply sufficient, or valid information for the council to make the determination. For their part councils do not always read their own plans, miss statutory deadlines and and might not get the notification phase where the council needs to determine whether to publicly notify or not, correct. More on that shortly.
Public input is another stumbling block. Normally it happens because a council underestimates the scale of the consent and fails to publicly notify something significant, like a shopping mall redevelopment. To cut a slightly long story short, the public find out from a leak and are angry that they were not given a chance to have input. The council finds out the application should have been notified, and has to waste time and money re-notifying the application, which then gets delayed by weeks whilst the public have a public submissions period. This then has to be summarised in a report, that goes back to the consenting council, who then have to invite in the case of something big like a Plan Change, a refined submissions period, limited to only those who submitted originally, before a final report is made.
Last but not least is the Environment Court process. Across the decades in which the R.M.A. has existed, a very large, complex and expensive body of case law has been assembled, which cost tens of millions of dollars to be fought in court. The largest cases have involved the Environment Court, and appeals going all the way to the Supreme Court, which have cost thousands, tens of thousands of lawyer hours assembling evidence. The burden on the system, the participants and the councils involved regarding the fees, the work hours, the time that the E.C. is engaged, the appeals and the outcome are difficult to overestimate.
By abolishing the R.M.A., perhaps the most problematic of all the many problems that would arise from such a short sighted act, arises. With the R.M.A. repealed this massive body of settled case law that practitioners at councils, the Ministry for Environment, lawyers and consultants alike all understood to be settled with certainty, would suddenly be all at play again. At risk of being relitigated and those unimaginably expensive, resource and time consuming court battles being fought again, I would imagine even the lawyers who relish a good court battle would be wary of the wisdom of potential relitigation.
But, the National led Government have committed to abolishing the Act. As yet, they have not given any real indication of what their replacement legislation would look like. The risk with having the A.C.T. Party as a coalition partner is that there might be no replacement legislation at all, which means environmental planning becomes a free for all where whomever has the most financial and/or legal clout wins.
And it is not to say that the Act is perfect. No Act of Parliament is ever perfect. It is only as good as the elected officials and those of the Parliamentary Service who helped draft it. Over the years several issues have indeed arisen, in part because of well meaning M.P.’s who do not understand the Act, trying to amend it; part local council intransigence in refusing to have a fully fledged planning section appropriately staffed to do the job and creating half baked reports and plans as a result. The penalties provided for in the original Act are in bad need of replacing as well.
But perhaps the worst thing to have happen is, the 100% increase in length on the 1991 version. From 400+/- pages in 1991 to 916 in the current edition, we now have a hugely bloated legislative creature. At 916 pages, the Act has now become cumbersome and slow, no longer the relatively nimble, visionary legislation that Sir Geoffrey Palmer had in mind when it was introduced to Parliament.
So, one might ask, why am I defending such a piece of legislation when this is how it has turned out?
Because it works. The Act actually works for the very most part. The problems with it did not come included in the original design and are the result of various individuals and organizations with responsibilities under the Act, and/or influence, not understanding how it works. You cannot and should not blame the Act for ones own inability to understand how it works. But many have, many do and many will.
I never said that the Act is perfect. It has its flaws. In my estimate, with the gist of the Act kept – features such as the resource consent process, how to notify the public, defining the legality of an activity and the planning processes – should all be kept. But upgrade the fines from the paltry ones that came with the original, remove any clauses that seem ambiguous or which now no longer apply, reduce the 35 year maximum duration for certain consent types.
If done properly, I think the best outcome would be a Resource Management Act Mk II. For – if I had to guess – 500 pages, you should get a pretty robust Act of Parliament that continues to provide the framework for environmental legislation.
It’s definitely better than repealing the existing Act with no clue on what will follow it.
Leftist Kiwi Writes 