The Resource Management Act was on the statute book for 32 years and 32 days. Its successors, the Natural and Built Environment Act and the Spatial Planning Act, survived just 123 days.
While Sir Geoffrey Palmer was the architect of the Resource Management Act (RMA), it fell to me to be its enactor. Sir Geoffrey’s government ran out of time to enact his reform. The Opposition, of which I was part, agreed to carry the Bill over and enact it. While some important changes were made, the final Bill drew heavily on the work of the previous government. Following a review led by Tony Randerson, the law was enacted within six months.
That course could have been adopted again. The RMA owed its longevity, in part, to its bipartisan origins. It is a pity that more effort wasn’t made to achieve the same result. We will never know if a deal could have been reached to carry the reform over to a new Parliament, for further study, before enactment.
An unwieldy coalition of interests supported David Parker’s reforms. On the one hand, development interests attributed any roadblocks to ‘the RMA’ – often without any more detail than that. On the environmental side, the premise was advanced that failure to achieve better environmental and planning outcomes under the RMA was the result of deficiencies in that statute – deficiencies that ostensibly required new law to be passed.
The panel assembled by Parker to diagnose the ills of the RMA – chaired, 30 years on, by the same Tony Randerson – made some sensible diagnoses about matters of process and higher-level spatial planning. But I found the panel’s big insight unconvincing – the claim that, because the RMA failed to mention a raft of developmental outcomes as being important, it was strangled by a focus on the effects they might cause.
The panel’s solution, adopted by the government, was to name a shopping list of outcomes and require conflicts between them to be resolved through national or regional direction. That would have entailed political direction over a vast array of economic, social, cultural and environmental matters.
Beyond that, the new statutes introduced many new concepts and terms, raising the prospect of years of litigation to ascertain their meaning and effect.
My submission to the select committee on the Natural and Built Environment Act (NBEA) outlined how many of the proposed changes could have been effected simply by amending the RMA. There is no reason the new Government can’t do the same with the changes it wants to make.
The reach of legislative ambition is a matter of political preference. But from an environmental point of view, the RMA’s more modest purpose was, to my mind, well capable of delivering better environmental outcomes if we had wanted them.
Our failure to do so over three decades reflected choices that had nothing to do with the text of the legislation. I would single out three problems, all of which originate in the political world:
- A lack of willingness to use some of the powers that the RMA provided. If elected leaders do not wish to impose limits on environmental pollution, don’t blame the legislation.
- Insufficient investment in high-quality information to support any sort of regulations. Handing regulatory power to elected leaders is always going to be a hazardous business if we lack the information needed to tell us whether their policies are making a difference.
- An inability to articulate the scale of the transition that tackling environmental problems will impose on some communities let alone how such a transition might be accomplished.
The consequences of these shortcomings are evident in rural New Zealand where water quality is, in many catchments, well below acceptable levels. We have a national penchant for agreeing on aspirational environmental outcomes but a reluctance to carry them through into the field. In some places, land use will have to change or reduce its intensity. But the only significant changes so far have been driven by the accidents of climatic damage or the incentivised conversion of land to forestry as a means of avoiding fossil fuel emissions reductions.
The business of tackling over-allocated catchments or higher discharges of pollutants than the environment can assimilate has barely begun. The technical and governance challenges of linking farm-level outcomes with overall catchment carrying capacity are profound. Change won’t be affordable without new tools. Despite years of talking about it, we don’t seem able to devise allocation regimes that match the productive market economy we say we want.
None of this is easy. There are no simple solutions. We have relied to date almost exclusively on regulations. Market-based instruments can supplement these, but they are not a panacea. Look at the arcane complexity of the emissions trading scheme if you doubt me. And remember, every single bundle of property rights in New Zealand reflects the regulatory interventions of decades. People make fun of city dwellers defending their ‘leafy suburbs’. But they’re leafy because the right of those living there to subdivide their land was taken away decades ago and many have since paid a premium to purchase the amenity provided by that leafy, regulated environment.
My experience with the RMA leaves me with a distinct sense of modesty about what legislation can achieve. Sir Geoffrey rightly saw the sense of distilling 57 separate statutes into a single coherent code. His push for integration was one I supported and continue to do so.
But where Sir Geoffrey and I were mistaken was in our estimation of the capacity of local government to operate the Act. In the wake of the upheavals caused by the National Development Act, subsidiarity seemed a protection from ministerial override. More active national direction would have helped but environmental management is about managing real places. Expecting devolved tiers of government to amass the capacity to regulate well and consistently was an expectation too far.
Any further tinkering with the RMA cannot avoid mature reflection on the relative roles of central, regional, and local government. In my submission to the select committee I commented extensively on roles and accountability. Any future RMA reform should consider its interaction with the Local Government Act.
At a fundamental level, the health of the environment underlies everything else we hope for. Any reform should think about environmental management in three layers, each of them spatial and each with its own accountability structure.
The first is biophysical – the natural environment on which we depend and with which we interact. This layer requires a long-term view, and a degree of independence from short-term political pressures. The complexity of the natural environment means that the technical and financial resources of central government will be needed to do this well. Returning some key monitoring, reporting and enforcement tasks to the centre makes sense. A significantly re-tooled Environmental Protection Authority is the obvious candidate to fulfil this role.
The second layer concerns the spatial form that land use development takes and the way in which long-lived infrastructure connects it. This layer is all about integrating outcomes of a socio-economic nature. Provided this is done in a way that runs with the grain and assimilative capacity of the underlying landscape as detailed in the first layer, there is no reason why directly elected regional councils should not be fully accountable for this layer. The sequencing of these two layers is crucial.
Finally, a third layer concerns the world of local communities embedded within the first two layers. This is all about the needs and preferences of local communities about their own place. Elected councils are best-placed to make these place-based rules – provided they are consistent with the biophysical and regional spatial layers.
It’s those provisos I would emphasise. The economy is a subset of the environment, not vice versa. That’s why I proposed a shockingly simple purpose clause to frame the whole business:
The purpose of this Act is to:
(1) Protect the health of the natural environment and its capacity to sustain life.
(2) Subject to (1), enable people and communities to provide for their needs and the needs of future generations.
Any re-thinking of the RMA will need to protect the environment while curing some of the indisputably cumbersome processes that came to be associated with the Act.
I hope efforts will be made to build cross-party support for whatever eventuates. Environmental management law that flip-flops following every general election will not be good for either our economy or our environment.
A well-considered oped as expected from Simon Upton. The ‘shockingly simply purpose clause’ is on scope, entirely appropriate, and we avoid it at our cost and at the cost of future generations.
The Resource Management Act is significantly more complex and full of ad hoc provisions of dubious effectiveness than it was in 1991. This unnecessary complexity and ad hocery is a result of ill-considered knee jerk amendments from governments, especially the 5th National Government, to look like something, anything, was being done. All the while central government has failed to properly resource and provide the national direction that is a fundamental requirement for the Resource Management Act to operate as expected when it was passed.
Notwithstanding this the original framework of the Resource Management Act is sound. I agree with Simon Upton’s well argued case for using the Resource Management Act as a base document for a rational review and revitalisation of our resource management law.
However, the base document for the review should be the Resource Management Act as it was after the first set of amendments. Not today’s overly complex version of that Act.
Simon’s ideas are worth attention not least because retrofitting the RMA will take less time than starting over (again). Look to raid the best of the NBEA, add in spatial planning, and we might be getting somewhere. Crucially, we need multi-partisan support for this next iteration so that it’s enduring and we don’t do another lurch when the government next changes. First test coming up shortly though is the promised fast-track law. That needs to avoid extremist Ministerial overrides and recognise need for biophysical bottom lines.
‘ Expecting devolved tiers of government to amass the capacity to regulate well and consistently was an expectation too far’. How true. It shouldn’t even have even been an expectation. Now, expecting the Luxon/Peters/Seymour triumvirate to facilitate a ‘mature reflection on the relative roles of central, regional, and local government’ to safeguard our natural environment and biosphere is another expectation too far. What is a reasonable expectation is that the forces of unregulated corporate greed will continue to undermine our attempts at preserving the capacity of the biosphere to continue to provide for future generations.
Its a pity Bill that Mr Upton didnt come to that conclusion 30 years ago when he had the power and the responsibility to do something about it! There is nothing that needs done in planning and environmental management of this nation’s resources, natural and cultural values and economy that cannot be done within the scope of the RMA. The crucial thing that is missing is any strategic input from central government – and this is a problem across our entire economy – we have had three decades of government by whim, fancy and expedience. The RMA is just one manifestation of a wider problem that was unleashed with the free market reforms of the Lange Douglas government. The other problem is that the RMA has become a trough for lawyers and grandstand for a section of the Judiciary.
After 3 decades of hand-wringing over the effectiveness of the RMA, it is ironic that the ‘enactor’ (albeit not the architect) of the legislation is now in the position of advising government on how to fix it. Generally I think that Mr Upton is on the right track and his comments are useful. However, I would take issue with his statement that the failure to achieve better environmental outcomes has “nothing to do with the text of the legislation” and more to do with “with problems which originate in the political world”. In my view, the moment the current definition of “environment” was inserted into the Act (and it happened in the dead of night during late select committee stages – I was there), it meant that the policy intent (a move away from previous attempts under the TCPA 1977 to “integrate” social, economic and environmental considerations in planning and decision making, and better management of natural resources) would never be realised. The situation was compounded when the courts decided, in their infinite wisdom, that the wording of the purpose (s5) required an “overall broad judgement” approach which effectively meant that ecological, economic, social and cultural effects were to be given EQUAL consideration by planners, consultants and decision makers………a recipe for special pleading, (inappropriate) trade-offs and ongoing degradation of life-support systems.
If anyone is interested, I elaborated on this point of view in an article published in the Resouce Management Journal in late 2014 entitled “Time for a More Ecocentric Approach to Resource Management in New Zealand”.
Underlying my thoughts on this matter is the premise that the fundamental role of public authorities charged with environmental management (central, regional and local government) should be to safeguard the integrity and quality of life-support systems (land, soil, biodiversity, water, air,) in the interests of both the current and future generations. In this regard, I agree with Mr Upton’s proposal to make the aspirations of people and communities SUBJECT to protection of life-support systems. However this will require very careful consideration to be given to the wording of a revised purpose ( a few more words than Mr Upton proposes, I would suggest !).
Well put Bill. The situation as I see it is that we’ve never had any legislation which explicitly sets to ‘safeguard the integrity and quality of life-support systems (land, soil, biodiversity, water, air’. Geoffrey Palmer refused to consider setting any water standards, for instance, preferring to give equal weighting to the ‘needs’ (I insert inverted commas here because this word, as inserted into the RMA, is not definable) of the people, and in particular, although unstated, the corporations.
As Minister for the Environment when the RMA was first implemented Mr Upton actually has much to answer for for the subsequent mess the Act became – the RMA was put in place with no national policy statements that provided guidance to Councils; there was no definitive statements of the national interest in things like rivers used for hydroelectricity or irrigation or for natural values of heritage or cultural values; there was no definitive statement around the need for infrastructure ; there was no model or template district or regional plan and there was no overview of the way council implemented or administered the RMA.
All of these big picture issues were left to local authorities to figure out. Some of the most important and most valuable natural values were administered by the nation’s smallest local and regional authorities – take the Mackenzie Basin and hydro lakes in the Waitaki managed by Mackenzie District Council with about 4000 ratepayers. Southland Regional Council administering 14% of NZs coastline including Stewart Island and Fiordland with 3% of the nation’s population.
And with no statement of the national interest to provide guidance let alone any provision of funding assistance to assist with the conduct of these major responsibilities.
I have been involved on the regulatory side of the reconsenting of both the Manapouri and Clutha dams – no where is there any statement of the national interest in these assets and the associated water rights – and the RMA basically requires that every application be assessed purely upon its effects on the environment and no one could argue that these dams effects are “less than minor”.
We have a similar issue now confronting the Manuherakia River – a problem to difficult for central government to resolve at the time so they left it as a time bomb inside the Otago Regional Council .
It is also obvious that the effects based philosophy of the RMA is unsuited to and makes excessively complex matters relating to urban development that are simply matters mostly relating the loads on urban infrastructure – splitting the RMAct into a simpler town planning process – possibly just making town planning a section within the local government act and reducing the RMA to something that addresses impacts on the natural environment – primarily discharges and takes and alterations to natural values.
I met with David Parker soon after he was first reelected to government and put this idea to him – unfortunately he proceeded to make a bigger mess with his new legislation – a key failing of the RMA is that the processes of law have come to be primary while planning outcomes have become subordinate to legal process.
Getting lawyers and judges out of the process should be the first consideration. The RMA failed because central government did not contribute to the development of overarching policy or provide a model to local government for how the RMA should be interpreted and implemented. Mr Upton may not have been the architect of the RMA but he most certainly is architect of the mess it became.
Yep, indeed.