The review of the Resource Management Act has recommended that a new law be added to the books to handle adaptation to the impacts of climate change, Marc Daalder reports

A new law to provide a legal framework and funding for a managed retreat from coastlines and other areas vulnerable to climate change should be considered, an expert review panel has concluded.

The recommendation comes as a small part of the 531-page review of the Resource Management Act 1991 (RMA), which governs how councils balance the desire to build infrastructure with the need to protect the environment. In addition to recommending the RMA be repealed and replaced with two new pieces of legislation, the panel said a third piece of legislation, a Managed Retreat and Climate Change Adaptation Act, should also be implemented.

The new act would create a fund “to support climate change adaptation and reducing risks from natural hazards” and empower local councils and central Government to override the proposed new planning rules in order to deal with the impact of climate change.

“Managing the effects of climate change has been a significant focus of our work. We have concluded that the complexities of the process of managed retreat (for example in coastal areas) require new discrete legislation,” Tony Randerson QC, the chair of the RMA review panel, wrote.

Environment Minister David Parker said Labour had yet to agree on a position on the new act, but that any decisions on implementing the review’s recommendations would have to come in the next term of Government.

The system has failed

As it stands, councils are not equipped to deal with the impacts of climate change, the review found.

It cited the findings of the Climate Change Adaptation Technical Working Group from 2017, which noted “most of New Zealand’s major urban centres and the majority of our population are located on the coast or floodplains of major rivers. Many of our communities, homes, marae, commercial assets and infrastructure will experience increased flooding and erosion from storm surge effects or rising groundwater levels from sea-level rise”.

Local Government New Zealand has estimated that $2.7 billion of council-owned infrastructure would be jeopardised by just half a metre of sea-level rise.

New Zealand’s environment and ecosystems are also threatened by climate change. The review panel said climate change will bolster the spread of invasive species which could drive indigenous species to extinction.

Waterways will see increased pollution as higher temperatures and lower rainfall leads to erosion and sedimentation. Rising water temperatures and acidification of the oceans will similarly threaten marine species and could also affect aquaculture and commercial fisheries.

Despite this, the panel found that councils do not have the capability or resources to adapt to climate change.

“Lack of direction and funding is a contributing factor to policy inertia and uncertainty about the future of vulnerable communities,” the panel wrote.

“Ultimately, the scale of response required and the ability to fund some decisions are likely to be beyond the means of local authorities. Central government will need to assist if decisions are to be made in a timely way.”

Moreover, the legal framework to act is not present. Under the RMA currently, the management of risks from natural hazards is “a matter of national importance” but the effects of climate change are relegated to being considered as an “other matter”.

“Given the scale of the risks discussed above and the fact that climate change will exacerbate natural hazards, it seems anomalous that they are accorded different priority within the current RMA,” the panel noted.

The panel identified additional ways the RMA fails to grapple with the impact of climate change: “a lack of national direction and guidance from central government” on climate adaptation; the contentiousness of climate impacts in local contexts; the lack of clarity on powers and responsibilities with regards to climate adaptation; and the lack of any ability to alter land uses as climate change alters the facts on the ground.

Legislation to address issues

The solutions to these complex issues are manifold. Some are covered by the new-look RMA, split into a Natural and Built Environments Act and a Strategic Planning Act. Others are accounted for through an intentional effort to centralise decision-making at the national level through national directions.

But a new piece of legislation is needed to tie the other solutions together, the panel found.

One of the key problems the law would address is managed retreat – the process by which councils could be empowered to withdraw previously-granted consents for buildings in zones at high risk of sea-level rise and relocate people to safer ground. The act could also clarify the liability issues surrounding council-issued consents for land that is now threatened by sea-level rise or which could be in the future.

“While the changes we propose to land use planning will assist, we consider that discrete legislation is required to specifically address managed retreat where it is required for climate change adaptation or to reduce risks from natural hazards,” the panel wrote.

The new law is needed to deal with specific scenarios that would be “beyond the powers available under the Natural and Built Environments Act and the capacity of local government alone to deliver”. The panel also said new legislation was called for because the approach needs to be consistent at a national level and because compensation for land in affected areas should be addressed by central and local government together.

“Perhaps the most significant issues are funding and compensation for affected communities. In many cases the cost of responding to climate change and natural hazard risks exceeds the ability of the local population base to fund and deliver solutions, particularly in coastal areas.

“Our view is that it is untenable to let adaptation costs lie where they fall, and a systematic approach is preferable to ad hoc solutions. Given the scale of the challenges and the current constraints on local government, there is a strong case for establishing a national funding mechanism for pre-emptive adaptation and risk-reduction measures.”

That funding would be used to acquire land that is too dangerous for people to be living or working on and to appropriately compensate those people for the costs of relocation. Compensation would not be based on simple market rates but rather on underlying principles, including the “avoidance of ‘moral hazard’”, intergenerational equity and the principles of the Treaty of Waitangi.

The panel also recommended the consideration of economic incentives or disincentives to encourage communities to go along with adaptation efforts. This could look like increased rates for those in areas threatened by sea-level rise but where the “risks are not yet deemed unacceptable”.

Wendy Saunders, a senior natural hazards and climate adaptation planner for GNS Science, said the proposal “is welcomed, as it will allow councils and communities to work together towards strategic planning for adaptation, with a supportive planning mechanism to allow for land use change”.

“I believe this will be a game changer for New Zealand’s coastal communities and other areas which already face significant risks from climate change and other hazards. There’s no doubt that decisive action will be needed by councils and communities, and the proposed new system will hopefully provide the mechanism and support for positive land use change.”

Judy Lawrence, a senior research fellow at Victoria University of Wellington’s Climate Change Research Institute, was similarly approving of the idea for a new law.

“Recommending separate legislation to cover managed retreat and adaptation appears to address the mandate concern that local government has been raising for some considerable time which along with funding provision addresses recommendations of the Climate Change Adaptation Working Group 2018,” she said.

“With the institutional arrangements in place adaptation can be unequivocally acted upon.”

Marc Daalder is a senior political reporter based in Wellington who covers climate change, health, energy and violent extremism. Twitter/Bluesky: @marcdaalder

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