|Resource Management Act 1991|
|New Zealand Parliament|
|An Act to restate and reform the law relating to the use of land, air, and water.|
|Royal assent||22 July 1991|
|Commenced||1 October 1991|
|Introduced by||Simon Upton|
|1993, 1994, 1996, 1997, 2002, 2003, 2004, 2005|
|Crown Minerals Act 1991|
|Status: Current legislation|
The Resource Management Act (RMA) passed in 1991 in New Zealand is a significant, and at times, controversial Act of Parliament. The RMA promotes the sustainable management of natural and physical resources such as land, air and water. New Zealand's Ministry for the Environment describes the RMA as New Zealand's principal legislation for environmental management.
As the RMA and the decisions made under it by district and regional councils and in courts affect both individuals and businesses in large numbers, and often in very tangible ways, the RMA has variously been attacked for being ineffective in managing adverse environmental effects, or overly time-consuming and expensive and concerned with bureaucratic restrictions on legitimate economic activities.
The adoption of the RMA was significant for three reasons. Firstly, the RMA established one integrated framework that replaced the many previous resource-use regimes, which had been fragmented between agencies and sectors, such as land use, forestry, pollution, traffic, zoning, water and air.
Secondly, the RMA was the first statutory planning regime to incorporate the principle of sustainability.
Thirdly, the RMA incorporated 'sustainable management', as an explicitly stated purpose placed at the heart of the regulatory framework and this purpose is to direct all other policies, standards, plans and decision-making under the RMA. Having the purpose of the RMA at the apex of an unambiguous legislative hierarchy was a unique concept worldwide at the time of the law's inception.
The RMA replaced a large number of acts, regulations and orders. A total of 59 Acts and amended Acts were repealed (See RMA Sixth Schedule) and nineteen regulations and orders were revoked (Seventh Schedule). The notable acts repealed were the Town and Country Planning Act, the Water and Soil Conservation Act, the Soil Conservation and Rivers Control Act, and the Minerals Act. The mining and minerals regime was separated from the Resource Management Bill at the third reading stage and was enacted as the Crown Minerals Act 1991.
However, three of these statutes, provided important elements of the RMA. The Soil Conservation and Rivers Control Act 1941 provided the precedent for catchment-based entities and catchment boards became part of the new regional councils. The Town and Country Planning Act 1977 provided the consenting and planning procedures. The Water and Soil Conservation Act 1967 provided the consenting regime and case law for water.
Following the National Party's antipathy to environmental issues in the 1980s, as expressed in the Think Big economic development projects and the National Development Act, the New Zealand Labour Party went into the 1984 election campaign with a platform of reforming planning and local government institutions and adopting better environmental policies. The reform policy involved creating an integrated resource decision making system to replace the existing sectoral based system. The Labour Party environment policy, such as this quote from Part I, paragraph 3, owed much to the Brundtland Commission's concept of sustainable development;
to ensure the management of the human use of the biosphere to yield the greatest sustainable benefits to present generations while maintaining the potential to meet the goods and aspirations of future generations
In the 1987 election the fourth Labour Government won a second term in office and deputy prime minister Geoffrey Palmer became the Minister for the Environment. Palmer initiated a comprehensive reform project for New Zealand's environmental and planning laws. This was the Resource Management Law Reform or RMLR. Palmer's objectives explicitly included giving effect to the Treaty of Waitangi, cost-effective use of resources, the World Conservation Strategy, intergenerational equity, and intrinsic values of ecosystems. Palmer chaired a Cabinet committee supervising a core group of four people supported by the Ministry for the Environment. The core group developed policy through a series of 32 working papers and through extensive public consultation. In December 1988, the reform proposals were published. In December 1989, Palmer introduced the 314-page Resource Management Bill to the Parliament of New Zealand. The Select Committee process was not completed by the election of 1990, which Labour lost. However, the new National Minister for the Environment, Simon Upton, continued the law reform process leading to the enactment of the RMA.
The new Minister, Simon Upton, noted the divergent views of submitters on the proposed purpose and principles of the Bill. A Cabinet paper of 10 March 1989 argued that the overall objectives and the broad philosophy of the Bill should be stated in a purpose section and clarified in a section on fundamental principles. After the 1990 election, Simon Upton appointed a Review Group to assess the purpose and principle clauses. The group consisted of: Tony Randerson, a lawyer, as chair; Prue Crosson (now Prue Kapua), a lawyer; environmentalist Guy Salmon; planner Ken Tremaine; and Brent Wheeler, an economist.
The Review Group considered that the clauses had become a conflicting 'shopping list' of matters advanced by interest groups, with no clear priority. That would result in the 'trading off' or balancing of socio-economic and biophysical aspects. They rejected such a balancing approach in favour of use within biophysical constraints. They considered that the Bill should not have a purpose of sustainable development with a focus on social justice and wealth redistribution. They concluded that purpose of the Bill should be 'sustainable management' and that the critical aspect of that purpose should be intergenerational equity, that is, safeguarding natural resource options for future generations. A second purpose of avoiding, remedying or mitigating adverse effects of activities was added. The purpose and principles sections were consequently rewritten.
Finally, with the approval of Cabinet, Simon Upton added the third 'sustainable management' purpose of 'safeguarding the life-supporting capacity of air, water, soil and ecosystems'.
Simon Upton stated in his third reading speech to Parliament that the purpose of the RMA was not concerned with planning and controlling economic activity, nor about trade-offs, but about sustaining, safeguarding, avoiding, remedying, and mitigating the adverse effects of the use of natural resources.
The Bill provides us with a framework to establish objectives with a biophysical bottom line that must not be compromised. Provided that those objectives are met, what people get up to is their affair. As such, the Bill provides a more liberal regime for developers. On the other hand, activities will have to be compatible with hard environmental standards and society will set those standards. Clause 4 sets out the biophysical bottom line. Clauses 5 and 6 set out further specific matters that expand on the issues. The Bill has a clear and rigorous procedure for the setting of environmental standards - and the debate will be concentrating on just where we set those standards.
The result of Upton's input was that RMA was enacted with a Part 2 consisting of three 'principles' (sections 6,7 & 8) in an unambiguous hierarchy below the overarching purpose of 'sustainable management', set out in section 5. Under that section, the RMA has one specifically defined purpose; to promote the sustainable management of natural and physical resources.
The RMA, in Section 5, describes "sustainable management" as
managing the use, development and protection of natural and physical resources in a way, or at a rate which enables people and communities to provide for their social, economic, and cultural well-being and for their health and safety while-
(a) Sustaining the potential of natural and physical resources (excluding minerals) to meet the reasonably foreseeable needs of future generations; and
(b) Safeguarding the life-supporting capacity of air, water, soil, and ecosystem; and
Section 6 is a list of matters of national importance that shall be 'recognised and provided for' in achieving the purpose of the RMA;
Section 7 is a list of matters that all decisions 'shall have particular regard to' in achieving the purpose of the RMA;
Under the RMA virtually all significant uses of land, air, coastal, or water-related resources are regulated by provisions of the RMA or by rules in regional or district plans or by decisions on consent applications. Plans are to achieve the purpose of the RMA which is 'sustainable management' of natural and physical resources. Most rule-making and decision-making is expressly related back to the 'Purpose and Principles' section, Part II, which contains the statutory definition of 'sustainable management' in section 5. Consequently, the interpretation that is to be placed on the definition of 'sustainable management' will be of considerable importance.
Very soon after the enactment of the RMA, Fisher (1991) wrote a substantial legal analysis of the RMA showing that the definition of 'sustainable management' was possibly ambiguous. In spite of the 'biophysical bottom line' interpretation, as in Simon Upton's third reading speech, being perhaps the most grammatically correct, Fisher noted that a 'single integrated purpose' definition could be made where providing for human well being was equal with and not subordinate to the 'bottom line' paragraphs a) to c) of s 5(2).
Some six years after the enactment of the RMA, several decisions on consent applications had been appealed to the Environment Court where s5 was given some degree of interpretation. By 1997, two interpretations of s5 were recognised, 'balancing ' and the 'environmental bottom line'. However, the only common ground among the varying interpretations was the lack of consistence in the reasoning.
Harris (2004) states that the "broad overall judgement" is most commonly accepted interpretation of sustainable management.
Skelton and Memon (2002) reviewed the introduction of sustainable development into the RMA and the evolution of case law that had led to the "broad overall judgement" interpretation. They also criticised Simon Upton and the Ministry for the Environment for interpreting 'sustainable management' in section 5(2) of the RMA as a matter of biophysical environmental bottom lines. Skelton and Memon concluded that the "broad overall judgement" (a 'weighing', rather than a 'balancing' approach) is the interpretation of 'sustainable management' now favoured by the Environment Court.
The 'broad overall judgement' approach is not without critics. Wheen (1997, 2002) argues that the broad overall judgement interpretation reduces 'sustainable management' to a balancing test with a bias towards tangible economic benefits over the intangible environmental concerns.
Upton et al. (2002) responded to Skelton and Memon's paper by noting that the Review Group on the draft resource management bill had quite intentionally drafted section 5(2) to emphasise biophysical constraints to move away from the overly broad and unweighted list of socio-economic and environmental objectives in the Town and Country Planning Act. They concluded;
In our view, the plain wording of section 5 is easy enough to understand without recourse to concepts like sustainable development that are not referred to, or the insistence that an anthropogenic reading of the section must necessarily involve weighing up everything against everything else.
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The RMA requires that certain uses of natural resources require a specific authorisation by a resource consent. As part of an application for resource consent, an Assessment of Environmental Effects (AEE), a report similar to an Environmental Impact Assessment, is required. This assessment, in theory, includes all potential impacts on the environment, including those that are only long-term, with 'sustainability' as a strong, though not yet clearly legally defined part of the Act.
The RMA as originally enacted classified greenhouse gases as contaminants and it allowed consent authorities to consider the effects of global warming caused by discharges of greenhouse gases. In 1994, the Fourth National Government regarded the RMA as one of its policies to mitigate climate change. A number of decisions were made on that basis.
In 1993, the Electricity Corporation of New Zealand (ECNZ) proposed to build the Stratford Power Station, a 400 megawatt gas-fired thermal power station in Stratford, Taranaki. ECNZ applied for a resource consent to discharge contaminants including carbon dioxide to the atmosphere. The Environment Minister Simon Upton established a board of inquiry under the Resource Management Act to hear and advise him on the proposal.
In February 1995, the board of inquiry Report of the Board of Inquiry, Proposed Taranaki Power Station - Air Discharge Effects (February 1995) concluded that the power station's operation would significantly increase New Zealand's emissions of carbon dioxide and make it more difficult for the Government to meet its obligation to reduce the emission of greenhouse gases to their 1990 levels as committed to under the United Nations Framework Convention on Climate Change. The board of inquiry recommended that ECNZ must establish a carbon sink "sufficient to eventually store in perpetuity the equivalent quantity of carbon emitted from the site over the term of the permit".
In March 1995, Environment Minister Simon Upton in Decision of Hon Simon Upton, Minister for the Environment, Air Discharge Permit Taranaki Combined Cycle Power Station (Wellington, Ministry for the Environment, March 1995) accepted the bulk of the board's report and approved the resource consents. Upton made the conditions requiring carbon sequestration more flexible. The offsetting condition would only apply when electricity sector carbon dioxide emissions exceeded the volume emitted when the plant was commissioned. The offsetting condition allowed for either forests to create a carbon sink or greater efficiency elsewhere.
The decisions of the Minister and the board of inquiry set the precedent that under the RMA consent authorities can consider global warming to be a relevant effect and can impose conditions on companies that limit their discharges of greenhouse gases or require mitigation through offsetting or sequestration in forest sinks. The N.Z. Forestry periodical noted that planting forests to mitigate carbon dioxide emissions would be a temporary solution for about 40 years that did not take into account the emissions from the eventual harvesting stage. In 2001, Minister for the Environment Marian Hobbs informed Parliament that ECNZ had never planted any forest for sequestration of the Stratford Power Station emissions.
In 2001, Contact Energy obtained resource consents for a new 400 MW gas-fired power plant at the existing Otahuhu Power Station site. In 2002, the Environmental Defence Society (EDS) appealed the consents to the Environment Court. In the decision Environmental Defence Society (Incorporated) v Auckland Regional Council and Contact Energy', the Environment Court agreed that the predicted annual emissions of 1.2 million tonnes of carbon dioxide would contribute to climate change via the greenhouse effect. The Environment Court agreed with the scientific consensus on anthropogenic climate change and concluded that the proposed CO2 emissions would be an "adverse effect of some consequence" under the RMA. However the court declined to grant the relief requested by EDS. That was to impose conditions requiring the complete offsetting of the carbon dioxide emissions by planting new forests. The court cited its concerns over its "efficacy, appropriateness and reasonableness" of the offsetting conditions.
The Act has regularly made headlines since its introduction, receiving the blame for the failure of a number of high-profile projects, such as the Project Aqua hydro dam.
Proponents of the RMA argue that it ensures the sustainable use of resources for the foreseeable needs of the present and future generation, and also recognises the importance of indigenous rights in the mitigation process. In this respect, the RMA is a pioneering act in the area of sustainable development. Other advantages cited are the umbrella function, which (at least in theory) allows all consent decisions about a project to be considered in one process, freeing applicants from the need to research and apply for all the various permits they would otherwise have to apply for their development. It is also noted that the RMA is 'effects-based'. In other words, instead of a proposal needing to be on a list of approved or permitted developments or activities, if the applicant can prove that the 'effects' of the development on the environment are unproblematic, then he or she is allowed to go ahead. In practice however, this proof is often elusive, especially with new or contested activities or developments.
New Zealand's largest conservation organisation, the Royal Forest and Bird Protection Society of New Zealand considers that;
Critics of the act argue that the resource management process is a barrier to investment, being unpredictable, expensive, protracted and often subject to undue influence from local lobby groups, especially the indigenous Maori iwi. A typical business viewpoint is expressed by the New Zealand Business Roundtable.
'The NZBR has long expressed concerns that are widely shared in the business community about the RMA. It is a cumbersome, time-consuming and costly piece of legislation that adds considerable uncertainty to business decision-making. It is a major impediment to the country's economic growth.'
The Business Round Table has also argued that the RMA contains core concepts, such as sustainable management, intrinsic values, Treaty principles, kaitiakitanga and the definition of the environment, which are 'hopelessly fuzzy'.
Companies have used it to hinder the operations of their competitors, even though the law specifically states that business competition is not to be a factor in decisions about giving consent.
Other business critics argue that the RMA is destructive of property rights.
Also especially criticised was the inability to restrict submissions against a project to those directly affected, and the need to go through a Council-level hearings phase even when it was already apparent that a case would eventually go to the Environment Court.
Rod Oram's paper 'The RMA now and in the future', presented at the 2007 Beyond the RMA conference assessed the RMA's performance over its first 16 years. The paper's main conclusions were the following:
The National Party, when in opposition to the government, made a promise to reform the RMA during the 2008 election campaign. After winning the election a reform group was announced. They were given the following terms of reference:
In February 2009 the National-led Government announced the "Resource Management (Simplify and Streamline) Amendment Bill 2009" aimed at:
Local Government New Zealand said in its submission to the local government and environment select committee that some of the changes designed to simplify and streamline the Resource Management Act were not well thought out and may actually create more delays and increase costs.
ECO considered that the Bill will hinder the input from communities and to favour large projects. It would also fast-track large developments and make little difference to smaller projects, a similar situation to the controversial National Development Act (repealed in 1986).
The resource management process was criticised by developers as time-consuming and expensive, and by environmentalists as giving too much encouragement to developers.
When Simon Upton called in the Stratford Power Station he required the planting of trees, ECNZ later discovered this was not necessary to reduce emissions