Even if the Natural and Built Environment Bill repackages the Resource Management Act’s red tape as green tape, will it deliver positive outcomes for the environment?

Comment: Almost everyone has a gripe about the 1991 – whether it’s for slowing development, destroying indigenous biodiversity, desecrating wāhi tapu and cultural heritage or providing a clunky inefficient system.

Whatever the criticism, the underlying debate is really about how people should use the physical landscape, resources, and nature of Aotearoa New Zealand for social and economic purposes.

The Natural and Built Environment Bill (NBEB) introduced into Parliament this week attempts to reshape the framework underpinning environmental decision making. It tweaks and centralises powers for resource management planning.

Minister for the Environment David Parker has promised a “cheaper, faster, better resource management law”. He says the new system “will better protect the environment while cutting red tape, lowering costs and shortening the time it takes to approve new homes and key infrastructure projects”.

So why did the RMA have red tape? Its key purpose was implementing sustainable management. National planning instruments, regional and district plans and policies created thousands of pages of cascading documents trying to sustainably manage Aotearoa New Zealand.

They failed. However, the NBEB addresses the issues with extensive planning with more extensive planning. The ‘red tape’ will not disappear – instead, it’s replaced with broad unclear statutory duties and new planning documents.

Even if the red tape is repackaged as green tape, will it deliver positive outcomes for the environment?

The NBEB weakly defines the environment – it says the meaning depends on ‘context’. In contrast, the RMA sought to define the environment based on its parts, both physical elements such as the soil, water, and air that support life, and the social, political, and economic elements.

Under the NBEB, future decision makers must decide which parts of the environment are relevant in any particular case rather than take a holistic view. The simple word ‘context’ will likely generate chapters in law textbooks and a cascade of fresh case law. Ambiguous legislation creates yet another opportunity for lawyers to fill in gaps with their clients’ interests.

New legal debates can also be expected about trade-offs between development and the life-supporting capacity of the physical world.

Nature can’t be separated from other interests in resource use decisions. However, the NBEB does just this, artificially separating the natural and built environments. This will create tensions in the new “engine room” of planning, necessitating extensive balancing of environmental versus economic outcomes.

Under the RMA, this kind of balancing act extensively marginalised the environment, Māori, and communities that could not afford to fight decisions.

The NBEB preserves this problem and a model of environmental planning where natural, economic, and social interests are equal and overlapping, even though the economic and social worlds are confined by the wellbeing of the natural world.

If the bill truly protected the environment, then the ecological integrity, mana and mauri of air, water, soils, and connected landscapes would be central – not balanced equally against economic efficiency and development.

Any limits and protections in plans will also be contained in changeable documents outside of legislation.

When an early draft of the bill was released last year, the same concern was shared by the New Zealand Māori Council, Auckland Council, BECA, Environmental Defence Society, Fonterra, Forest & Bird, the Freshwater Iwi Leaders Group, Ngāi Tahu, and Federated Farmers. For different reasons, all were concerned with leaving environmental limits to political whims.

The Government’s own report on environmental limits recommended that an independent expert body set these limits based on scientific information. However, the bill politicises environmental limits by giving the minister wide discretion to set limits without reference to legislative considerations. Only the purpose stated in the bill restricts the minister’s power.

As drafted, the bill says the purpose of environmental limits is to prevent the ecological integrity of the natural environment from degrading and to protect human health. Unfortunately, future governments will be able to set limits that, as a minimum, preserve the already degraded state of the environment in 2022. We should be aiming to improve, not just preserve, it.

Now only Parliament can resolve the ambiguities in the bill. If the wording is not improved, the job will be left to the courts. Groups that can afford to take their case to court will effectively buy the future of environmental responsibility and management in Aotearoa.

David Parker may be right: it will be a cheaper, faster and better resource management law for sidelining nature.

Jono Sylvester is a law clerk at Rubicon Chambers assisting in environmental, civil and criminal litigation and a resource management law researcher with Professor Catherine Iorns at Te Herenga Waka -...

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