Is the RMA "Underperforming" and Ready For Change?
By Rachel Buckman
The reform project that led to the Resource Management Act 1991 (‘RMA’) “was, at the time, the most massive law reform effort that New Zealand had ever undertaken.” [1] It replaced over 20 major statutes in an attempt to do away with an ad hoc and uncoordinated approach to environmental problems. [2] Nearly thirty years later, the Government appears set on seriously reworking this mammoth piece of legislation.
In July, Minister for the Environment David Parker announced an “overhaul” of the RMA. [3] Parker depicted the workability of the current statute in an incredibly negative light. “While not the sole cause of the housing crisis, planning rules are partly to blame”, says Parker .[4] Moreover, a Cabinet Paper from 2018 claimed the current system is “underperforming in its management of key environmental issues such as freshwater quality, climate change adaptation, and meeting people’s needs for affordable housing and thriving urban communities”. [5]
The 2019 budget set aside millions of dollars for a comprehensive reform of the RMA. [6] With such a large amount of money dedicated to the project, the question remains – what specifically is the Government attempting to fix, and how are they going to achieve this?
Short Term Changes
The improvements are intended to occur across two stages. [7] The first step is making specific, “narrowly-focused” amendments in the short-term. [8] There are two primary problems identified that the amendments hope to target: the complexity and uncertainty in the RMA, and the limited opportunities for public participation. [9] A large part of this will be reversing what has been labelled “objectionable” changes made by the previous government in 2017. [10] This includes reinstating public notification and appeal rights in residential and subdivision consent applications. [11]
Long Term Changes
However, the long-term and more significant change would come through stage two – a “comprehensive review” that will look at the “broader and deeper changes needed to support the transition to a more productive sustainable and inclusive economy.” [12] This will be done via a panel led by former Court of Appeal Judge Tony Randerson, who chaired the advisory panel that helped modify the RMA when National came into Government in 1990. [13]
A core problem with the current RMA is that over time it has grown to an arguably unwieldy state. When introduced, the legislation was 382 pages. It now sits at approximately 800 pages. Parker says he hopes the legislation can be halved, returning it to its original length. [14] The issue is not simply its length, but that the “constant series of amendments” has weakened the coherence of the Act. [15] Rather than simply adding on a new Government’s policy, a more holistic review seeks to avoid the trap of merely overcomplicating the matter.
The Review’s Scope
Yet despite high hopes and strong rhetoric, this is not an unlimited or complete review. The Productivity Commission published a 2017 report into urban development that was incredibly critical of the RMA. [16] Not only did it draw attention to the viability of the confused number of amendments, the report highlighted how the RMA was “virtually silent on urban areas”, which is causing a number of problems in today’s society. [17] Its hope was for a completely new planning system, meaning replacing not just the RMA but all associated legislation. Parker likened this task to “trying to boil the ocean”, and a more middle ground review has been chosen. [18] The panel is looking specifically at the RMA and only looking at its interface with three other pieces of legislation – the Local Government Act, Land Transport Management Act, and potential future Zero Carbon Act. [19]
Balancing Interests
The Draft Terms of Reference establish a two-fold aim for the review. The panel is to both review improvement in environmental outcomes, and how to enable “better and timely urban development within environmental limits”. [20] It is this latter aim that seems the focus of opposition parties. Judith Collins claimed the current RMA “stops things from being done quickly”, and ACT leader Davis Seymour sees it as giving councils the power to restrict new development. [21] The difficulty is reconciling these desires for development and expansion with environmental concerns, an issue equally passionately advocated for by civil society.
The environment has always been at the fore of the RMA. The international inspiration for the Act came from a key document in international law on sustainability – the Brundtland Report by the Commission on Environment and Development. [22] In 1991 when the then Minister for the Environment moved for the third reading of the Bill, he emphasised that this bill would allow decisions to be made only in so far as it maintained the “biophysical bottom line”. [23]
The extent that it is able to protect the environment is proving questionable though, particularly in relation to climate change. The natural stance may be that climate change considerations fall within the sustainability objective of the act, but that has not proven to be the case. [24] The majority of the Supreme Court found in 2014 that, on the basis of a prior amendment, there were no grounds to consider indirect emissions or climate change when regulating activities under the RMA. [25] Although this decision has been criticised, [26] it reflects how the RMA does not always give expansive environmental protection.
The context of this review is therefore two different dissatisfied parties – those unhappy with the complexity added to important development, and those concerned with the treatment of the environment under the current status quo. The aim established by the Government for this review shows they are alive to both these interests; the problem will be how to reconcile both in a practical way. In reality, such reconciliation is what the RMA has always tried to achieve. The level of disagreement and change that has happened in a mere few decades suggests that this is a persistently hard task.
Header image from Jon Flobrant on Unsplash
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[1] Geoffrey Palmer “Ruminations on the problems with the Resource Management Act 1991” [2016] NZLJ 2 at 2.
[2] Your Guide to the Resource Management Act (Ministry for the Environment, Wellington, 2006) at 5.
[3] Zane Small “‘It’s unacceptable’: David Parker launches Resource Management Act ‘overhaul’” (24 July 2019) Newshub <https://www.newshub.co.nz>.
[4] Ana Tovey “Changes to decades-old Resource Management Act in the works” (24 July 2019) RNZ <www.rnz.co.nz>.
[5] David Parker “Proposed Resource Management Amendment Bill: Stage 1 of the resource management system review” Ministry for the Environment <https://www.mfe.govt.nz> at [2].
[6] Grant Robertson “Summary of Initiatives in Budget 2019” (30 May 2019) Treasury <treasury.govt.nz> at 64.
[7] “Improving our resource management system” (24 July 2019) Ministry for the Environment <https://www.mfe.govt.nz>.
[8] Parker “Proposed Resource Management Amendment Bill”, above n 5, at [3].
[9] “Impact Summary: Proposed bill to amend the Resource Management Act 1991” (November 2018) Ministry for the Environment <https://www.mfe.govt.nz> at [12].
[10] David Parker “Two-step RMA reform to start by fixing previous blunders” (press release, 8 November 2018).
[11] Parker, “Two-step RMA reform to start by fixing previous blunders”, above n 10.
[12] “Improving our resource management system”, above n 7.
[13] Marc Daalder “RMA reform launched into sea of political icebergs” (25 July 2019) Newsroom <www.newsroom.co.nz>.
[14] Daalder, above n 13.
[15] Palmer, above n 1, at 3.
[16] Productivity Commission Better Urban Planning (February 2017).
[17] At 97.
[18] Daalder, above n 13.
[19] “Draft Terms of Reference: Resource Management Review Panel” (24 July 2019) Ministry for the Environment <https://www.mfe.govt.nz> at [10].
[20] “Draft Terms of Reference”, above n 19, at [5].
[21] Small, above n 3.
[22] Palmer, above n 1, at 2.
[23] John Milligan “The Resource Management Act – 9 months On” [1992] NZLJ 351 at 351.
[24] Sarah Baillie “RMA and Climate Change” [2013] NZLJ 11. See also RMA, s 5.
[25] West Cost ENT Inc v Buller Coal Ltd [2013] NZSC 87, [2014] 1 NZLR 32 at [175].
[26] Nathan Jon Ross “Climate change and the Resource Management Act 1991: a critique of West Coast ENT Inc. v. Buller Coal Ltd” (2015) 46 Victoria University of Wellington Law Review 1111.