Sustainability Forum
Presentation by
Associate Professor Kenneth Palmer
Law School
University of Auckland
11 December 2014
The Resource Management Act: The
Potential Future of Our Environment
• Will the proposed changes to the RMA
continue to protect our environment?
• Potential impacts compared to original
intentions of the RMA
• The past informs the future
Resource Management Act 1991
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Sustainable management purpose s 5
Sustainable management interpretation focus
Matters of national importance s 6
Other matters s 7
Balance between promoting development and
conservation
RMA – Early Problems
• Initial absence of national policy statements
• Lack of national environmental standards
• NZ coastal policy statement guidance 1994
revised NZCPS 2010
• First NES air quality 2004
• NES drinking water sources;
telecommunications; electricity transmission;
contaminants in soil
• NPS 2008 electricity transmission; renewable
electricty generation; freshwater 2011, 2014
unique braided river system
RMA Progression
• Project Aqua – Waitaki Hydro – 2004 Water
Allocation Plan precedent
• Aquaculture authorisations AMA proposals
2004, 2011 amendments
• Maori aquaculture settlement (20%) 2004
• Foreshore and Seabed Act 2004; Marine and
Coastal Area (Takutai Moana) Act 2011
• RM Amd 2005 – call in powers extended;
minister’s power of direction
RM Amendments 2009, 2013 –
Procedural Reforms focus
• RMA – streamlining endeavours
• RM (Simplifying and Streamlining) Amendment
Act 2009 – revision of notification rules, council
procedures – and rules of interim effect –
amendments not simplifying procedures
• RM Amendments 2013 – expansion of s 32
analysis – more focus on economic impacts and
employment consequences – cautionary principle
maintained – procedure for plan approval panel
for the proposed Auckland Unitary Plan
Environmental Protection Authority
• Environmental Protection Authority Act 2011
– rationalisation of MFE functions to EPA
• Climate change administration – HSNO
administration
• Call-in power oversight on behalf of the
Minister
• Allocation of off shore regulation to EPA
• Mixed bag outcome. Cf Parliamentary
Commissioner for the Environment
Exclusive Economic Zone and
Continental Shelf (Enviromental
Effects) Act 2012
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Administration function vested in EPA
Approval procedures outside RMA regulation
Hearing by EPA panel in place of Environment Court
Environment Court retaining enforcement jurisdiction
South Taranaki Iron Sands application 2014 refusal!
Government promotion of deep sea exploration not
assuring marine consent approval – Chatham islands
phosphate…
• Further issue of mineral prospecting concessions continuing Green Party and iwi opposition
Marine and Coastal Area (Takutai
Moana) Act 2011
• Removes Crown ownership of coastal marine area
• Opens door for iwi claims to (i) customary marine title and (ii)
protected customary rights interests
• Approval process either transparent High Court application or
closed door negotiation with the Minister
• Recognised customary interests exempt from plan control and
resource consent obligations – deemed permitted activities
• Customary title holder has rights to minerals (other than Crown
minerals)
• Major claims likely within the next 5 years
• Conflicts between competing iwi likely
• Consider potential claims to Waitemata and Manukau harbours
• Development in customary marine title areas subject to iwi
approval – potential for joint ventures
The Mayor’s vision
and strategy
To create the world’s most livable city
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Cohesive, resilient communities
An excellent transport system
A productive, high-value economy
Quality urban, rural and natural environments (ecocity)
Proposed Auckland Unitary Plan 2013
• Submissions and further submissions raising 9,000 planning issues
• Question of level playing fields as to financing of submissions, time
allocations and weight of submissions. Hearings Panel process
• PAUP a highly complex document.
• Multiple zones and plan overlays increasing complexity
• Question whether all overlays necessary or justified
• Heavy reliance on precautionary approach to justify new parts eg
“Sites and Places of Value to Mana Whenua” (3,600 sites listed)
• Question of balance, and lack of research to validate many
restrictions in plan
• Whether misuse of planning process by transferring burden of
rebuttng or establishing SM compliance on property owners
• Certain provisions having interim legal effect raising issues of
fairness (eg heritage, mana whenua listings) – need to harmonise
heritage processes with Heritage NZ Pouhere Taonga Act 2014
Housing Accords and Special Housing
Areas Act 2013
• Government answer to housing affordability issues primarily in
Auckland – special housing area gazetting
• HASHAA bypasses normal RMA aproval processes
• PAUP policy and rules applied as a priority to SHA applications
• Presumption against notification
• Limitation on appeal rights to housing developments 4 storeys or
higher
• Fast-track procedures an undoubted success
• Reduction in costs and delay risks to property developers
• Whether price of new houses will be reduced highly debatable
• Policy to require proportion of affordable housing (5-10%) - making
minimal impact on affordable housing solutions
RMA Reforms (1) - Part 2
• Source: RM Summary of Reform Proposals 2013 (MFE August 2013)
• Strongly supported by former Minister Amy Adams. Ss 6, 7 revision
• S 6 “Principles” – ‘in making the overall broad judgment under s 5’,
matters of national importance to include “the effective functioning
of the built environment, including the availability of land to
support changes in population and urban development demand”,
and “the efficient provision of infrastructure”
• new Minister Hon Nick Smith reconsidering s 6 proposals alternative to produce new NPS covering urban development
• LGA Amd Act 2014, s 101B requiring 30 yr infrastructure strategy
• Changes to ss 6, 7, largely bypassed by Housing Accord legislation
• EDS v NZ King Salmon Co (2014)(SC) - “shall give effect to” NZCPS
(and NPS) overriding ‘overall broad judgment’ in plan content
• Sustain Our Sounds Inc v NZ King Salmon Co (2014) – precautionary
approach under s 32 may be adjusted by ‘adaptive management’
RMA Reforms (2) – Other Proposals
• From RM Summary of Reform Proposals 2013 (MfE)
• National planning templates – comment: need for this 20
years too late. Cf PAUP style
• Single plan obligation for region and district plans under a
joint plan process. Query need
• Freshwater management plans to follow new collaborative
planning process recommended by land and water forum
(excludes Environment Court appeals)
• Default provision for independent panel to make ruling.
Compare PAUP Panel structure
RMA Reforms (3)
• Maori participation: proposals to provide for greater clarity
and role for iwi and hapu in the planning process
• Compare Auckland experience with Maori Statutory Board
• potential for participation may extend to greater demands for
joint management with iwi and hapu
• Improving resource consent processes. Proposed fast-track
process (10 day) for minor consents
• Improving appeals process to Environment Court.
New
compulsory mediation powers
• Clearer presumption in favour of non-notification of all
subdivision consent applications
Overview of Proposed Reforms:
Briefing to incoming Ministers 2014
• “Environmental stewardship for a prosperous New Zealand” (MFE 2014)
• 45 page report comprising a mild overview of MFE functions and concerns
• Acknowledgment of Environmental Reporting Bill 2014 to improve
reporting and statistical information for public use
• Briefing endorses proposals to improve RM procedures and possibly
supporting implementation of some of the 2013 recommendations
• Supports climate change mitigation. Supports Waste management action
• Supports NPS for Freshwater 2014 and the national objectives framework
• Implicit support for more dairy farm development and land productivity
• Greater recognition of natural hazards. Support for Canterbury recovery
• General wish list awaiting specific direction from new Minister
• Prediction that further changes to promote “sustainability” will be
incremental and not of major or radical significance