23/11/2022·5 mins to read
Beyond the RMA: what comes next - Update #1
This is the first in a series of updates on the first two pieces of replacement legislation for the Resource Management Act 1991 (RMA), being the Natural and Built Environment Bill (NBE Bill) and the Spatial Planning Bill (SP Bill). The third bill - addressing Climate Change Adaptation - is still under development.
The Bills have been referred to the Environment Select Committee for further consideration, with the submission period closing on 5 February 2023 (extended from the original date of 30 January 2023).
Our updates will address topics including the new purpose, plan-making, the key entities and relationships, water allocation and project approval pathways, with a view to identifying the key shifts from the RMA, and matters that interested stakeholders may consider raising in any submissions on the Bills. You can expect to receive these updates over the next fortnight.
Update #1: The new purpose and importance of higher order direction
This update addresses the proposed new purpose and principles of the NBE Bill, which effectively replace Part 2 of the RMA, and how they are proposed to be achieved by the new regime.
What is most notable is the shift from an “effects-based” regime to a regime that is geared to deliver certain outcomes and/or achieve specific environmental limits or targets. This change is intended to provide more meaningful direction than the existing requirement to “avoid, remedy or mitigate”, which stems from section 5(2)(c) of the RMA, and has passed down in various forms to policy and planning documents.
The significance of this change is that there will be a move away from an activity / proposal specific approach to environmental regulation, with the new planning tools and rules first required to focus and elaborate on what the “outcomes” mean, and how they are to be achieved, along with the prescribed limits and targets. This will not be an easy task either nationally, or regionally, given the inherent tension that exists between the stated outcomes.
In practice, and particularly in a policy sense, there can be multiple ways to achieve broadly expressed environmental outcomes. Here lies the key challenge, particularly for the Minister, as the planning documents required by the new Bills will rely heavily on the direction provided by central government, in the form of the National Planning Framework (NPF). The SP and NBE Bills require that the lower order planning instruments either “give effect to” or are “consistent” with the NPF, so it is clear that this document will be primarily responsible for giving meaning to the NBE Bill purpose and outcomes. The devil will most certainly be in the detail, and the NPF process (and opportunities to input into preparation) should be of real interest to all interested stakeholders.
Our first impressions
If the new purpose provisions are to be achieved in a meaningful sense, the role of the NPF will be critical. The NPF must provide clear, comprehensive and coherent direction, or else the current overlap and inconsistency could continue, and inadvertently provide avenues for outcomes that are at odds with the intended new system outcomes.
A proposed new structure, but similar hierarchy of planning instruments
The Government’s proposal is largely consistent with the status quo, in that there will be a hierarchy of planning documents that (we expect) will become increasingly more detailed, to reflect regional and to a lesser extent, local resource management issues. The Explanatory Note to the NBE Bill references the Supreme Court’s description of the current hierarchy of documents in King Salmon, which highlights the intended consistency with the current structure under the RMA.
The National Planning Framework
At the top of the hierarchy will be the NPF. In practice, it will be something of a replacement for the current National Policy Statements and National Environmental Standards prepared by the Minister under Subpart 1 of Part 5 of the RMA. The difference, however, will be that the NPF will be tasked with giving meaning to the new purpose statement and outcomes, which are set out in four key provisions:
- Clause 3, which provides the purpose statement;
- Clause 4, which directs decision-makers to give effect to te Tiriti o Waitangi principles;
- Clause 5, which sets a number of system outcomes that the national planning framework and plans must provide for; and
- Clause 6, which sets the decision-making principles for the Minister and Regional Planning Committees.
Sitting below the NPF, and developed to give effect to or be consistent with the NPF, are Regional Spatial Strategies and NBE Plans, which we will discuss in a later update.
The new purpose: clause 3
Clause 3 sets out a dual purpose:
- to enable the use, development, and protection of the environment in a way that:
- supports the well-being of present generations without compromising the well-being of future generations;
- promotes outcomes for the benefit of the environment;
- complies with environmental limits and their associated targets; and
- manages adverse effects; and
- to recognise and uphold te Oranga o te Taiao.
As drafted the two limbs are separate, but they appear to cover similar territory. Te Oranga o te Taiao (a Te Ao Māori concept) is broadly defined, encompassing the health of the natural environment, the essential relationship between the health of the natural environment and its capacity to sustain life, the interconnectedness of all parts of the environment, and the intrinsic relationship between iwi and hapū and te Taiao. There is clear crossover between that definition, and the content of the first limb, which itself creates internal conflict and is likely to lead to litigation.
Whether these two limbs can or will complement or push/pull against each other remains to be seen. Our initial take is that there is some conflict within the first limb - which seeks to enable use and development, as well as enable protection - and conflict between the first and second limb, which will add complexity. In particular, the direction to recognise and “uphold” is new, and will almost certainly require judicial consideration.
Because of the new structure, the clause 3 purpose may end up playing a deferential role to the list of system outcomes in clause 5, as it is these outcomes which will provide the primary direction for the NPF, and the regional strategies and plans that will follow.
Te Tiriti o Waitangi
Clause 4 of the NBE Bill requires all persons exercising powers and performing functions and duties under it to “give effect” to the principles of te Tiriti o Waitangi. This is a higher standard than the current direction to “take into account” under the RMA, and reflects the wording used in the Conservation Act 1987. The NBE Bill also provides several mechanisms for iwi, hapū, and Māori to participate in the proposed resource management system, including a new National Māori Entity, which will have oversight powers. Iwi involvement will be covered in a later update in our series.
Clause 5 provides 18 separate (and non-hierarchical) system outcomes that must be provided for, “to assist in achieving”, the NBE Bill’s purpose.
The outcomes are not intended to be considerations for consent decision-making (clause 5 limits their application to guiding the NPF and all plans), and so they will not be matters that inform any “overall judgment” when determining applications for consent or designations.
The Resource Management Review Panel’s “New Directions” report considered that environmental and development interests should not be framed in competition with one another. It seems clear however that the proposed system outcomes will pull in different directions. Enabling supply of land for development and achieving the availability of highly productive land, for example, involve a balancing exercise between two competing demands. The lack of any stated hierarchy (as compared to the current formulation of sections 6-8 of the RMA) will afford greater discretion to decision-makers to prioritise and promote certain outcomes over others, but whether this is possible given the principles (discussed below), or the NPF is a live question. In our view, this feature of clause 5 emphasises the importance of the NPF “helping to resolve conflicts about environmental matters, including those between or among system outcomes”.
Decision making principles
Clause 6 provides several mandatory decision-making principles, which must be followed by the Minister and regional planning committees.
We expect these principles to be the subject of debate as the NBE Bill progresses, as they are framed on the basis that all of the system outcomes can be achieved simultaneously. For example, subclauses (1)(b) and (d) provide that the Minister and regional planning committees must “actively promote the outcomes provided for under this Act” and “manage the effects of using and developing the environment in a way that achieves, and does not undermine, the outcomes”. While this framing is consistent with the non-hierarchical expression of clause 5, there is room for argument in relation to whether these principles have been achieved if certain outcomes are given more importance. As noted above, the role of the NPF in resolving conflicts between outcomes will be important.
Clause 6 also requires that decision makers (in all cases) “favour” caution and adopt a proportionate risk-based approach to environmental protection, where faced with uncertain or inadequate information. This principle appears to be an attempt to codify the RMA’s precautionary principle, but the positive obligation to “favour” caution, and the degree of caution required, may require testing or further direction given the different terminology used. We can see there being increased hurdles to development if this obligation is applied in a manner similar to the way precaution has been applied under the EEZ legislation.
The importance of clarity and consistency with national direction
As we have learned from operating under the RMA, integrating land use planning and development with environmental protection into a single consolidated regulatory regime involves a range of outcomes that exist in a state of tension.
This desired outcome is captured in clause 3 of the NBE Bill, which seeks to “enable the use, development, and protection” of the environment. The NPF will play a key role in reconciling and resolving this tension, and it may also have to favour (and explain) certain outcomes over others (when appropriate). This will demand clarity and drafting precision by the Minister, as well as a strong appreciation of the practical implications of the wording chosen.
While the current suite of NPSs (and NESs) are all subject-matter specific, there is tension between them and internal uncertainty which is not easily resolved. The extent of resource invested into attempting to reconcile the tensions under the existing national framework cannot be over emphasised. The recently received NPS-HPL for example is subject to several interpretations that will involve the Environment Court in short order.
One benefit of the proposed regime is that it could provide for the development of a single NPF that can take a system-wide approach to achieving the purpose and providing for the stated outcomes, and develop a coherent set of directions that can meaningfully (and practically) inform the development of regional strategies and plans. A further benefit is that the NBE Bill provides, through Schedule 6, a Board of Inquiry process that allows input into the draft NPF, which is a departure from the current approach to developing national direction under the RMA. This process should be of interest to stakeholders for their submissions on the bills.
For our other updates on the proposed new legislation, click the 'Beyond the RMA series' tag above.
Special thanks to Olliver Maassen for his assistance in preparing this article.