Streamlining the RMA

Vandenbergen_Joanna.jpgKirman_Claire.jpgBy Claire Kirman and Joanna van den Bergen
Ellis Gould Lawyers

One of the National Party’s key election platforms was to simplify and streamline the Resource Management Act 1991 (RMA). Since its enactment the Act has come under significant criticism.

In launching their environmental policy back in September 2008 John Key summarised the position as one where “for too long in New Zealand, tackling environmental problems has been synonymous with dispute, complex process, and long delays” (2008 Environment Policy Launch, September 6, 2008). Responding to this general dissatisfaction with the Act the National Party promised a review of the RMA within the first 100 days of government. 

Environment Minister Nick Smith has appointed an eight member technical advisory group to support the Government’s RMA reform programme. The advisory group is chaired by Alan Dormer, an Auckland barrister and independent hearings commissioner and past president of the Resource Management Law Association.  The advisory group’s functions are to provide independent perspectives and analysis of reform proposals and to act as a sounding board for recommendations.

So what should we expect as part of this review process?

Phase one amendments

During the election campaign the National Party was somewhat vague on the specific changes that might be introduced.  While it was clear that improvements needed to be made to reduce delays, uncertainties and costs, National also gave its firm support to the keystones of the RMA, namely: sustainable management, integrated decision-making, and an effects-based approach. 

What the National Party did say during its pre-election campaign was that its policy would involve introducing, as a first phase, amendments to the Act that would include simplifying the Act: The reforms in this area will focus on simplifying and streamlining processes under the RMA; providing greater central government direction through increased use of national environmental standards and national policy statements; and increasing the use of economic instruments rather than regulations.  In particular, National considers that the definition of environment is too broad and allows costly, time consuming arguments over irrelevant issues.  National considers that the definition of environment should be limited to natural and physical resources and it campaigned on prohibiting trade competition objections.  It also considers that there are currently too many consent categories and intends to reduce these.  National is also concerned that the references to the Principles of the Treaty of Waitangi are vague, poorly understood, and open to abuse.  It intends to replace the references with specific requirements for iwi consultation.

Priority consenting: Priority consenting is to be introduced for “major infrastructure projects” and consents must be completed within nine months.  This policy is in response to concerns that the current process is cumbersome and that the resultant delays act as a brake on the economy and are unfair on the communities affected by these projects.  Consents for these projects will be processed by the new Environmental Protection Agency.

Improving consent processing:  This aspect of the reforms responds to frustrations with the RMA such as non-compliance with statutory processing times, high processing fees and requests for further information.  The reform bill will provide an independent complaints mechanism and the power to waive or discount processing fees where councils fail to comply with statutory processing times.

Removing the ministerial veto on restricted coastal activity consents:  The reform bill will remove the Minister of Conservation’s additional veto on restricted coastal activity consents.  National considers that the minister should not be able to overturn a decision made by a hearings committee or the Environment Court after hearing all the evidence.  This is because the minister already approves the National Coastal Policy Statement and Regional Coastal Plans, appoints a representative on the hearings committee and is able to make a submission on any application.   

Preventing vexatious objections:  The new Government’s policies to reduce the costs and delays caused by frivolous and vexatious objections include reinstating the Environment Court’s power to award security for costs and introducing new powers to reject frivolous or vexatious objections.

Simplifying regional and district plans:  This aspect of the National’s policy focuses on simplifying the process for councils to amend or update their plans.  While, the proposal to reduce the number of consent categories will have a role in simplifying plans, specific policies aimed at simplifying plans include encouraging regional and district councils to produce a single plan; increased use of the internet to reduce paperwork; and introducing a system of approved contractors in areas such as tree trimming to reduce the number of consents required.

Phase One would also involve the establishment of an Environmental Protection Authority.  This authority, which would also encompass the existing functions of the Environmental Risk Management Authority (ERMA), would have the additional responsibility of:

  • The national regulatory functions of the RMA, including priority consenting; and,
  • Developing national policy statements and national environmental standards.

National have said that phase one will result in a Resource Management Amendment Bill being introduced into Parliament within the first 100 days, with a view that it be advanced into law within six months.  Environment Minister Nick Smith, advised that the RMA reform bill will wait until February after the Christmas recess.

Briefing paper and phase two amendments

A briefing paper was released on December 10 that provides bureaucratic support to the policies of the new Government.  The briefing paper identifies a shortlist of critical issues relating to the move towards environmental sustainability and considers that the issues identified are significant due to the risks and unrealised opportunities involved that could affect national wellbeing. The critical issues identified are:

  • The role of the RMA in providing for environmental, social and economic out-comes, and in allocating scarce resources;
  • Developing natural resources policy and management arrangements that better reflect the Treaty of Waitangi relationship;
  • Fresh water quality decline and the demand pressures on fresh water and allocation issues;
  • Pressures on bio-diversity and ecosystems;
  • Environmental pressures and allocation issues in the coastal marine environment; and
  • Meeting New Zealand’s international climate change obligations.

The briefing paper advised the new Government that there needs to be a greater sense of urgency in addressing some of these issues as there is not much time before environmental pressures begin to damage the economy.  That said, because the critical issues are complex and interconnected, a strategic and integrated approach is seen as better serving New Zealand’s long term interests.

The briefing paper highlights the importance of making decisions that are better informed, having transparency in the inevitable judgment values required in environmental decision making, and building a constituency around the real value of the environment and the need for change.

It appears that the phase two amendments are intended to address the issues identified in the briefing paper.  Phase two, which would involve a wider review of the RMA, would be on a slower track and is to have a specific focus on:

  • Improving infrastructure provision by providing a generous compensation for landowners under the Public Works Act and a streamlined and better-integrated process;
  • Considering alternative approaches to water allocation so that there is a fairer and more efficient system of freshwater management; and
  • Exploring new approaches to city development, particularly urban design.

While the resource management reforms proposed by the new Government will not be a complete overhaul or repeal of the RMA, the proposed reforms do represent a comprehensive suite of amendments to the Act and provide an indication of the direction that the new Government will take in terms of environmental matters. 

The phase one amendments relating to simplifying and streamlining the processes of the RMA, the improvements in consent processing, and priority consenting for major infrastructure projects will be of particular interest and are likely to be received positively given that these are aimed at addressing some of the frustrations with the RMA that have been expressed by these industries in the past. 

Given that opinions on environmental matters are often strongly held and divergent, it is likely that the RMA reforms with be the subject of some heated debate.  The reform bill will have go through a Select Committee process before becoming law, which will provide an opportunity for anyone involved in RMA processes to make submissions on how they think the Act should be improved.

Contractor Vol.33  No.1  February 2009
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