Walk into any rural pub and sooner or later you’ll hear someone bitch about “the RMA” over their pint. What they’re complaining about is the Resource Management Act 1991, a gigantic piece of legislation governing the sustainable use of our country’s resources. It regulates everything from the erection of buildings in central Wellington to the way a farmer washes down his milking shed on the Canterbury plains. Many thousands of New Zealanders are unhappy with the way the Act is implemented, and the National Party has promised to rewrite it within 100 days of taking office. But before we know whether this is a good thing, we need to identify exactly what is wrong with the Act, and whether National’s plans will address these flaws.
Growing up in an apple-growing region near Nelson, I’ve had to listen to countless horror stories about farmers jumping through bureaucratic hoops to gain resource consent to carry out what they consider to be everyday activities. The most extreme example was one farmer who went through six different consent applications to put a pump shed on his land, because his neighbours objected to each step of the development. Restrictions upon resource use are not listed in the RMA itself, which simply outlines how local councils can use the Act, and much of its confusion comes from how different councils use the Act in different ways. Nevertheless, the National Party plans to reform the Act itself, and sides with those who see it as overly restrictive: they promise to remove the Environment Minister’s ability to veto resource consents, reduce the number of consent categories, end “frivolous and vexatious objections”, and fasttrack ‘Priority Consents’ for large infrastructure projects they see as being in the interest of the nation so that they are either approved or denied within nine months.
On the other hand, environmental groups complain that many consents are granted without public notification for activities that ruin our natural waterways or crowd our cities with ugly towers. While farmers and environmentalists may seem fated to clash regardless of the legislation, much of the controversy over the RMA comes down to its ambition: it is the only piece of legislation in the world that attempts to regulate every single natural resource under one umbrella. To understand why, we need to go back to 1991.
The Legislation
The Resource Management Act repealed 69 Acts to create one integrated regime for the management of resource use. Victoria University’s environmental law lecturer Tom Bennion describes it as “awe-inspiring in scope.” It is the world’s first national statutory planning regime to hold up the principle of sustainable management as its explicit purpose. Passed by National’s then-Minister for the Environment Simon Upton, it followed Geoffrey Palmer’s review of resource management law under the previous Labour Government. This review amalgamated a whole series of management Acts that had grown up throughout New Zealand’s legislative history. Most important were: the Soil Conservation and Rivers Control Act 1941, which created catchment boards under the jurisdiction of regional councils; the Water and Soil Conservation Act 1967, which created a consent procedure for water use; and the Town and Country Planning Act 1977, which outlined consent and planning procedures for other resources.
Palmer’s Resource Management Bill was still in select committee when Labour fell, and Upton’s review team concluded that its stated purpose, to balance sustainability with the needs of social justice, should be replaced with a simple purpose of sustainability, so that administrators would not have to cope with several conflicting intentions within the act. Nevertheless, the purpose of the Act, as set out in Section 5, does note the importance of “social, economic and cultural wellbeing” in the use of resources, while Sections 6, 7, and 8 list other matters of importance (such as the Treaty of Waitangi), so that by 1997 the Environment Court recognised that the RMA’s purpose could Walk into any rural pub and sooner or later you’ll hear someone bitch about “the RMA” over their pint. What they’re complaining about is the Resource Management Act 1991, a gigantic piece of legislation governing the sustainable use of our country’s resources. It regulates everything from the erection of buildings in central Wellington to the way a farmer washes down his milking shed on the Canterbury plains. Many thousands of New Zealanders are unhappy with the way the Act is implemented, and the National Party has promised to rewrite it within 100 days of taking office. But before we know whether this is a good thing, we need to identify exactly what is wrong with the Act, and whether National’s plans will address these flaws. be interpreted as both a “balancing” of sustainability against human needs, and as a simple environmental “bottom line.” Upton argued that the RMA was intended merely to identify a “biophysical bottom line” that could not be crossed by development, while any activities that respected this line would be untouched, making for a “more liberal regime for developers.” However, the conflicting interpretations mean the RMA is now seen as providing broad, overall judgements regarding development.
Resource Consents
The RMA requires that a resource consent is required for a) any activity that would otherwise contravene a rule in a city or district plan, or b) any activity that might affect the environment, and that isn’t allowed ‘as of right’ in the district or regional plan. Consents are granted or denied by regional councils and territorial authorities; appeals may be lodged with the Environment Court. Applications for resource consent require an Assessment of Environmental Effects (AEE), which should include all potential impacts on the environment, whether they would occur immediately or over many decades.
It is these consents that have stirred up the most frustration among developers, as the consultation and approval process can cause project-ending delays, especially for smaller players unable to draw upon costly legal advice while applying for consent. Federated Farmers last year surveyed 3750 of their members’ views on the RMA. Respondents’ major concern about the Act was that they felt Councils were using it “to control land-use decisions to achieve a desired outcome” not related to sustainability, with the result that farmers required consents “for everyday activities”. For example, Gisborne District Council recently changed its district plan to force farmers to plant trees on large areas at risk from erosion, which Gisborne-Wairoa Federated Farmers sees as an unfair intrusion. However, Green Party co-leader Russel Norman told Salient that such rules are about sustainability, even if the farmers do not believe so. Furthermore, this problem is not due the RMA itself, but to the way Councils implement it, so reforming the Act would not remove this issue.
Federated Farmers identified two other major concerns with the RMA: that submissions by environmental groups outside of the local community were given “equal weighting” by councils to submissions from within the community; and that landowners are not compensated when their land-use is restricted to protect the landscape. Norman also opposes the idea of compensation, as he believes it would “pretty much mean an end to environmental management” as protecting landscape would become too expensive; he also argues that no-one should have to be paid to not pollute. On the other hand, if farmers are carrying out activities that are only damaging in the sense that they alter the landscape, it seems unfair to prevent them from working their land without some sort of compensation to acknowledge what Federated Farmers call farmers’ “stewardship” of the land.
National’s Reform: “Frivolous and Vexatious Objections”
Federated Farmers’ desire to restrict who can make a submission against resource consent applications was picked up by the National Party when they announced their plan to reform the RMA at their party conference in August. National’s Environment Spokesperson Nick Smith told Salient that until 2003, local councils and the Environment Court could ask submitters to provide ‘security’ for the cost of hearing their objection: if the objection was found to be frivolous, the court would keep the deposit. Smith argues that this clause was used conservatively so that it did not prevent genuine submissions from being held, and believes the clause should be reinstated, but also suggests National might put in place greater restrictions on submissions. Almost everyone Salient talked to agreed that unfair and time-wasting submissions have occurred, in particular from supermarkets opposing their competitors’ developments. Nevertheless, Russel Norman describes the idea of restricting submissions as a “chilling” way to prevent communities from opposing large corporate developments.
The Royal Forest and Bird Protection Society of New Zealand has criticised the RMA for almost the exact opposite of the reason National and Federated Farmers want it reformed: noting that 95% of all resource consents are granted without public notification, and less than 1% of applications for consents are declined, Forest and Bird argue that the process is not open enough. Environment Minister Trevor Mallard also told Salient that Labour has already moved to address the concern of frivolous objections, introducing ‘limited notification’ in 2005 so that for activities with minor effects “only those affected by the proposal can participate” in hearings.
Once these consents are granted, many fail to abide by them. A Greater Wellington Regional Council audit of 146 farms last summer and autumn found that a full thirty per cent breached resource consents, polluting rivers and lakes. Russel Norman argues that these breaches are led by large industrial-scale dairy farms, and that current maximum fines of $750 should be increased to $10,000 if they are to have any effect. Trevor Mallard agreed that increases could be made to these fines, and while National do not seem keen on this idea, they have promised to make Crown entities accountable when they breach their own consents, as the Ministry for the Environment did during the cleanup of Mapua’s DDT dump.
National Policy Statements, Large Projects and Toxic Cleanups
Forest and Bird also note that an absence of national environment standards mean the consent process varies between councils. This is contrary to the spirit of the RMA, and is the one area in which Labour has already sought to address, not by reforming the act but by introducing a number of supplementary National Policy Statements guiding councils’ implementation of the act; National promises to speed up the introduction of these statements. However, Tom Bennion, a lecturer in environmental law at Victoria University, notes that these statements have so far been haphazard: whereas the Coastal Policy Statement was introduced only after several years of consultation, Bennion argues that the Statement on Electricity Generation gazetted this year simply overrides opposition to the construction of new power sources due to fears over our power supply.
Like the National Policy Statement on Electricity Generation, much of National’s plans for reform are aimed not at rationalising the way consents are granted to small projects involving developers with little money (the major issue concerning those who complain about the RMA over their beer), but about fasttracking large projects. National plans to borrow to fund major infrastructure developments, and wants to give ‘priority consent’ to these projects so that they are fast-tracked through the Environment Court without going through local council discussions, and approved within nine months. They also intend to remove the Environment Minister’s veto over consents. Nick Smith points to the Whangamata marina, which a community group spent nine years and $1 million pursuing until the Environment Court approved their project, only for the Minister to overturn its decision.
Furthermore, National want to alter the way the Ministry for the Environment deal with large-scale toxic cleanups, such as the recent cleanup of the Fruitgrowers Chemical Company site in Mapua. The Ministry for the Environment took over the cleanup of Mapua in 2004 after Australian contractor Theiss withdrew. While the cleanup did successfully reduce soil contamination by 80 per cent, the Ministry breached their resource consent by emitting dioxins into the air, and copper into the Waimea Estuary. The Parliamentary Commissioner for the Environment conducted a damning inquiry into the Ministry’s handling of the cleanup, as the Ministry had a conflict of interest as both the monitor and operator of the cleanup. The Commissioner pointed out that the Ministry “was created as a small policy advisory agency in 1986” and does not have the scientific expertise to take on an operational role. Trevor Mallard told us that Section 4(5) of the RMA could be amended to allow enforcement action to be taken against the Crown, but National wants to go further and create a separate Environmental Protection Authority, expanding upon the current Environmental Risk Management Authority, which would employ environmental scientists to carry out future cleanups. Green MP Metiria Turei told Salient that bringing more scientific expertise into environmental monitoring would be a great thing. However, she argued that this would have to be achieved via greater funding and support for environmental science education, because we simply do not have the necessary people to create such an agency at the moment.
Simplifying the Act
Environmental law lecturer Tom Bennion told Salient that many of National’s plans, such as the removal of a ministerial veto and the creation of an Environmental Protection Agency, are simply scratching “little itches” arising from singular cases (Whangamata and Mapua), so the reforms will have little overall impact. On the other hand, Bennion points to National’s desire to reduce the number of resource consent categories in order to simply the process as a much more significant project. Every single local council in New Zealand has a district plan laying out how the RMA is to be applied in that region, and these plans are determined by the number of consent categories laid out in the legislation. So changing these categories would require thousands of hours of work to be altered to bring such plans in line with the new categories, a process that is arguably more trouble than it is worth.
The fact that the National Party has not fully detailed how these reforms will work leaves them open to compromise once such issues arise during their rewriting of the legislation – if, that is, they become the next government. Certainly, many of the plans appear not to have been fully thought out, and while its clear that priority consenting will speed up large projects, it is not clear how they will help farmers or small building projects navigate their way through red tape with more ease – especially if simplifying consent categories creates more work.
Yet, despite such flaws, the Resource Management Act clearly needs reform. National have laid out plans to change the Act to make it less prohibitive, while the Green Party have laid out plans to tighten regulations for the sake of our natural resources. Labour appear to steer a middle ground between these two contrary motives, but this is probably because they simply do not have any plans for substantial reform. The fact is, there are real problems regarding the way the RMA is implemented: a great deal of pollution that should be prevented isn’t due to lack enforcement, while a number of non-polluting projects are needlessly held up because councils are inconsistent and at times overly restrictive in their policing of the consent process. Fixing these problems may not require a great deal of change to the legislation itself, but what is certain is that change has to take place – and this change is too important to be done in a partisan manner. National, Labour and the Greens all need to have a say in the rewriting of the RMA, because what they do will determine the future of both our natural environment, and our ability to use it for profit. It is easily one of the most important issues facing the nation during this year’s election, and we must demand political dialogue to get the best outcome for all.