The comprehensive review of New Zealand’s resource management system published in July 2020, undertaken by an independent expert panel led by Hon. Tony Randerson QC, makes it very clear what the challenges are that we will face in the future.
These aren’t new and have been well articulated in previous reviews of the system, both within government and by the Productivity Commission in 2017 and the Environmental Defence Society in 2019.
In a nutshell, the four key issues that prompted the review are:
- Our natural environment is under pressure. Overall, the way we use land, water and other natural resources has proved unsustainable. Our waterways are in major decline due to poor management, overuse and pollution. This affects the resilience of our ecosystems and 4,000 native species of plants and animals are now threatened. Of course, this has negative flow-on effects for our own health and wellbeing.
- Urban areas are struggling to keep pace with population growth. Over the past decade, our population has grown by about 650,000 and this is expected to continue. We need to make sure urban development can keep up with demand. Poorly managed urban development has led to increasing homelessness, worsening traffic, and congestion, more pollution, lack of transport choices and flattening productivity growth.
- There is an urgent need to reduce carbon emissions and adapt to climate change. The seriousness of this threat speaks for itself – with the rising sea levels and increasing droughts, floods, fires, and extreme weather events we are seeing worldwide.
- The need to ensure Māori have an effective role in the system, consistent with Te Tiriti principles.
There is a broad consensus that the RMA is not working as it was intended and the many amendments to try to improve it over the last 30 years is an indication of this.
It has not sufficiently protected the environment. The RMA was not clear about how to apply the purpose of sustainable management of natural and physical resources.
Managing adverse effects has been largely achieved through litigation on a case-by-case basis – with an insufficient overarching vision as to what needs to be achieved for the natural and built environments.
The Act has not achieved good outcomes for urban areas either. Decisions made under the RMA have entrenched subjective amenity values and restricted development from occurring where is it is most wanted and needed. This has contributed to inefficient urban form, housing shortages and congested roads resulting in poor environmental, social and economic outcomes. There is a perception that RMA processes are overly cumbersome, take too long and do not give sufficient certainty for the development of major infrastructure.
Forward planning is difficult because the RMA’s focus is on managing negative/adverse effects of resource use rather than providing positive direction about what our goals are for the environment (except goals of sustainable management). This has resulted in the positive benefits of development being under-emphasised.
The current system favours the status quo - existing uses and consents, which makes it hard to respond to environmental challenges or provide for new infrastructure developments.
In relation to resource allocation, the first-in-first-served interpretation of the RMA has led to inefficient and inequitable outcomes where resources are scarce, as it does not provide a way to compare competing resource uses and allocate resources where they are most valued.
Lack of national direction from central government is also a problem that has only recently begun to be addressed. It is hard to realise goals for the environment when there is no direction about what efforts would be required to achieve these.
The review of the Resource Management system was carried out by the independent Resource Management Review Panel, led by former Court of Appeals Judge Hon Tony Randerson, QC.
This was the most significant, broad ranging and inclusive review since the Resource Management Act 1991 (RMA) was enacted. The review was primarily focussed on the RMA, the interface of the RMA with specific legislation, and a new role for spatial planning.
The Panel made over 140 significant recommendations. Key is the replacement of the existing RMA with three new pieces of legislation – a Natural and Built Environments Act (NBA), a Strategic Planning Act (SPA) and a Climate Adaptation Act (CAA) to address the managed retreat from areas threatened with inundation and other natural hazards.
The Panel also recommended greater use of national direction by the Environment Minister and a more streamlined process for council plan making and a more efficient resource consent process.
They also proposed any future system should give effect to the principles of Te Tiriti and provide a clearer role for mana whenua in decision-making.
The Panel’s report, New Directions for Resource Management in New Zealand is a 531 page document and was published on 29 July 2020. The report along with a summary document are available on the MfE website.
The Panel emphasised the importance of providing for a much more effective role for Māori throughout the resource management system. This includes recognising the concept of Te Mana o te Taiao; giving effect to the principles of Te Titiri o Waitangi, providing for specified Tikanga Māori outcomes and promoting effective participation by mana whenua.
The exposure draft has strengthened the treaty clause in the NBA purpose so that all people exercising functions and powers under the Act must give effect to the principles of Te Tiriti o Waitangi.
The exposure draft also recognises the Te Ao Māori concept of Te Oranga o te Taiao which acknowledges that all parts of the environment are connected, the intrinsic relationship Māori have with the environment, and that the health of the environment is critical to sustaining life on earth.
This concept differs from the Te Mana o te Taiao concept proposed by the Review Panel.
The independent Resource Management Review Panel produced a comprehensive set of 140 recommendations for reform of the resource management system. These will form the basis of the reform package. These recommendations will be reviewed by officials as they develop the policy advice that will be considered by the Ministerial Oversight Group.
The proposed legislation – the Natural and Built Environments Act and the Strategic Planning Act
The key elements of reform are the repeal and replacement of the RMA (1991) with a new package of legislation that includes the National and Built Environments Act (NBA), the Strategic Planning Act (SPA) and a response to climate change.
Proposed Natural and Built Environments Act
- Purpose of enhancing the quality of the built and natural environment for the wellbeing of current and future generations through achieving positive outcomes (within natural environmental limits).
- Proposes a system of outcomes, limits and targets set through a national planning framework, which will be incorporated into regional combined plans prepared by central government, local government and mana whenua.
- Combined regional plans must be consistent with regional spatial strategies (under the SPA) and direct which activities do and do not require approvals.
Proposed Strategic Planning Act
- The proposed SPA provides for the development of long term regional spatial strategies that integrate land-use planning, environmental regulation, infrastructure provision and climate change response matters that fall under various legislative functions including the Natural and Built Environments Act, Local Government Act, Land Transport Management Act and Climate Change Response Act.
- The new Act will mandate use of spatial planning, requiring central government, local government and Māori to work together to develop long-term regional spatial strategies (30 years minimum).
- It would mean changes to other legislation to establish connections between regional spatial strategies and existing statutory policies and plans.
Proposed Climate Adaptation Act
- The proposed Climate Adaptation Act (CAA) will support New Zealand’s response to the changing climate. It will be focused on addressing the complex legal and technical issues associated with managed retreat and funding and financing of adaptation.
An exposure draft refers to legislation that has not yet formally been introduced into parliament.
The Government has released an exposure draft of the Natural and Built Environments Act (NBA) to get the NBA legislative process underway. This will be considered through a select committee inquiry at the beginning of July 2021. The Inquiry is expected to take around three months. This will help progress the reform of the resource management system by getting initial feedback from the wider public on the core architecture of the Bill.
The exposure draft for the NBA provides an early look at key aspects of this legislation including:
- the purpose of the NBA (including Te Tiriti o Waitangi clause) and related provisions
- the National Planning Framework
- natural and built environment plans.
The select committee will report its findings to Parliament and any changes will be made before the full Bill is formally introduced. Other components of the legislation that were not developed in time for the exposure draft will be decided by Cabinet before being included in the full Bill.
The exposure draft gives Māori, stakeholders and interested parties the opportunity to have their say on the important aspects of the proposed NBA Bill. The NBA is the replacement for the RMA and as such is central to the reform of the resource management system. Allowing the public an opportunity to provide feedback at this stage will ensure that the final Bill when presented to parliament is as robust as possible.
Details such as consenting processes, designations, proposals of national significance, Environment Court workings, water conservation orders, allocation methods, compliance, monitoring and enforcement and transitional arrangements will continue to be developed in parallel to the select committee inquiry.
The Government intends to pass the legislation necessary to reform the resource management system this parliamentary term. This reflects the urgent need to address the issues that are degrading our environment and holding back New Zealand’s growth and development.
The NBA exposure draft will be considered by a select committee inquiry at the beginning of July 2021. The Inquiry is expected to take around three months.
The select committee will report its findings to Parliament and any changes will be made before the full Bill is formally introduced. Other components of the legislation will continue to be developed and included in the full Bill.
The SPA will be developed in parallel to the NBA. A standard legislative and select committee process will follow with the aim of the NBA and SPA being passed into law by the end of 2022 (before the end of the parliamentary term).
Engagement with Māori, stakeholders and the general public is important to ensure a workable and enduring new system.
The primary method of engagement for stakeholders and the general public in the next stage of the reform will be largely through the select committee processes. The exposure draft of the Natural and Built Environments Act is being considered by a select committee enquiry starting in early July – find out how you can have your say [link to relevant page].
When the Natural and Built Environments Act and Strategic Planning Act are formally introduced to Parliament in early 2022 they will go through the standard legislative process. The public will have further opportunities to have their say at that time during the select committee process.
The Review Panel also consulted widely as they developed their proposals for reform. This included with local government and stakeholders from industry, primary production, environmental, and Māori organisations and iwi.
The public were invited to make their views known through an Issues and Options paper which was released to the public in November 2019. The Panel also engaged with iwi and hapū through a series of regional hui in February 2020. Further to this, a number of advisory groups gave expert advice to the Panel on a series of topics. The result was the 531 page report by the panel which sets out proposals for the reform of the system.
Since then, targeted engagement on selected matters has occurred with system partners: local government and iwi/Māori.
Ongoing engagement with local government on policy development will be critical to the success of the reform as well as how central and local government will transition to and implement the new system. The Government is working with local government on new ways to engage more effectively.
The big changes for the future resource management system as set out by the Panel are:
- Planning for positive outcomes, and managing adverse effects to achieve them: Re-orientates decision-making from principally managing ‘adverse effects’ to seeking to achieve specified positive outcomes across natural and built environments to support intergenerational wellbeing – all within environmental limits (but still also managing adverse effects). Outcomes are to be provided for in decisions, plans and consents.
- A more effective role for Māori and improved recognition of Te Tiriti o Waitangi: Strengthens recognition of Te Tiriti and Māori interests, provides new roles for mana whenua in decision-making on plans.
- More integrated and strategic long-term planning: Enable strategic planning about land use, infrastructure and environmental protection by central and local government and mana whenua.
- Moving to equitable and efficient resource allocation within limits: Providing an explicit framework for recognising the allocative impacts of decision-making about land use and environmental protection, and provides tools to improve how access to resources is allocated.
- Effective partnering of central & local government and iwi/Māori in planning and delivery: Focusing decision-making about land use and the environment on a series of regional partnerships between central and local government and mana whenua.
- Improved evidence, monitoring, feedback & oversight: Strengthening system monitoring, reporting and oversight provisions to improve transparency, accountability and delivery of outcomes.
The National Planning Framework will be the tool underneath the proposed Natural and Built Environments Act that contains the environmental limits, targets, methods and rules to direct and guide anyone exercising functions and powers under the Act.
It will provide:
• integrated and cohesive regulations
• direction on the priorities, pressures and opportunities for the environment
• direction on how to facilitate and reconcile across competing outcomes
The National Planning Framework will also provide direction on resource management matters that must be consistent throughout the system. This may include methods, standards and guidance to support spatial strategy and plan-making processes. Importantly, it should also make planning and consenting faster and more efficient.
The outcomes, environmental limits and targets set through the National Planning Framework will be incorporated into a combined plan for each region. The intention is for local government and Māori to work together to produce one mandatory Natural and Built Environments Plan (NBA plan) for each region. This will consolidate over 100 existing policy statements and plans into 14 plans, simplifying and improving integration of the system.
The NBA will include a mandatory requirement for the Minister for the Environment to set environmental limits for aspects of the natural environment, to protect its ecological integrity and human health. That is that our natural and built environment complies with environmental limits and is managed in a way that provides for the wellbeing of present and future generations.
Environmental limits will be set through the National Planning Framework which sets out clear direction to guide anyone exercising functions and powers under the Natural and Built Environments Act.
They will be ‘biophysical’ limits and will need to be set for at least these matters:
- coastal waters
- biodiversity, including habitats and ecosystems.
Limits will apply nationally, in both urban and rural areas.
Under the Strategic planning Act (SPA) central government will work with local government and mana whenua to create a long-term regional spatial strategy (RSS) for each region. These strategies will integrate land use planning, environmental regulation, infrastructure provision and climate change response. These strategies will integrate across the NBA and other key legislation covering climate change, transport and local government.
Under the NBA, central government’s new proposed National Planning Framework will provide a set of mandatory national policies and standards on specified aspects of the new system including environmental/biophysical limits, outcomes and targets.
Local government in each of New Zealand’s 14 regions will be required to work together with iwi collaboratively to provide a single ‘combined plan’ (this will cover all current RMA policy statements and plans and the coastal marine area) that will be consistent with the NPF and spatial strategy. These are provisionally being called Natural and Built Environments Plans. The number of resource management plans in New Zealand will be reduced from over 100 to about 14.
One of the purposes of the Panel’s review was to reduce the complexity of the existing resource management system under the RMA, so this is top of mind as we develop a replacement system. The new system aims to streamline decision-making so that it is easier to navigate for end users, such as people applying for resource consent.
Secure, healthy and affordable housing is at the heart of the wellbeing of New Zealand families. But we know that this is no longer a reality for many New Zealanders. Urban areas hold 86 percent of our population and 99 percent of our population growth occurs there, especially in major cities like Auckland. Instead of allowing cities to respond to population growth sustainably, poor quality and restrictive planning has contributed to a lack of certainty and unaffordable housing.
While the housing problems are a complex mix of demand, costs, financing, capacity and supply, the reforms will contribute to addressing some of these issues. It will do this by requiring central and local government to plan for housing and urban development. This includes planning better so that infrastructure is provided for at the right place and at the right time. This includes better coordination of infrastructure with land use, development and urban growth.
Regional spatial strategies developed under the SPA will bring central and local government together with iwi to identify long-term strategic outcomes for regions. Ensuring sufficient supply of development capacity for housing will be a key outcome for regional spatial strategies. This will improve housing supply, affordability, and choice. It will do this by ensuring a long-term pipeline of supply by identifying areas for development, no go areas, and future infrastructure corridors to provide for growth. This is a long-term system change that is being put in place to help us be more strategic with our development in the future so we can provide for the wellbeing of all New Zealanders.
Local government has crucial expertise relevant to reform and are key partners in implementing the new system. That is why engagement with local government is important at every step of the reform process. We have established a range of fora to ensure there is local government input at a number of levels. A group of local government CEs is working with central government on the reforms and we will continue to engage with local government experts and Local Government New Zealand (LGNZ).
Now that the NBA exposure draft is released, we are working with local government on establishing a longer term partnership working on legislative design, transitioning to and implementing the new system.
Iwi Māori Collective Groups
The Government is working with a collective of several Māori entities on policy development of the new resource management system.
Post Settlement Governance Entities
We are working with PSGEs on transitioning their settlement into the new resource management system as well as the wider reform.
We have held regional hui in March and April for iwi, hapū and whānau to engage with us on the reforms.
Māori will also be able to engage with the select committee inquiry on the NBA exposure draft, and later with the select committee when it considers the NBA Bill.
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The RMA interfaces with over 60 pieces of Treaty of Waitangi settlement legislation. When setting the scope for the Panel's Review, Cabinet noted that Treaty settlements that include provision for iwi engagement in aspects of the resource management system will be carried over into a new system [CAB-19-MIN-0337 refers].
Engagement with Māori will be important to help ensure reform both avoids unintended consequences for, and upholds the integrity of natural resource arrangements agreed by Māori and the Crown, or the subject of current Treaty settlement negotiations; as well as:
- rights recognised under the Marine and Coastal Area (Takutai Moana) Act 2011 and Ngā Rohe Moana o Ngā Hapū o Ngāti Porou Act 2019
- natural resource arrangements agreed by Māori and local government under existing provisions of the RMA, such as the transfer of powers under section 33 or Mana Whakahonoā Rohe entered into under section 58O.
To ensure this, the Crown is engaging with affected Post-Settlement Governance Entities to discuss how their settlement arrangements will be carried over into a new system.
The Government is proposing to repeal and replace the Resource Management Act (1991) within this term of government.
The NBA will be progressed first. Given its significance, a special process will be put in place to advance this Bill. This will include:
- The development of an exposure draft (this is a draft of legislation that is not yet formally introduced into Parliament)
- The exposure draft will include the important elements of the Bill
- This will be referred to a select committee inquiry in the middle of this year
- Plus other policy Cabinet decisions on the remaining Bill
Both NBA and SPA introduced in 2022 followed by a lengthy with select committee process.
Once the new laws have passed through Parliament by 2023 we will be transitioning to the new system. We expect the process for system reform is expected to take a number of years.
Work is already underway on developing implementation plans to enable an efficient transition to the new resource management system. This includes such things as developing and testing combined plans to serve as models for local authorities, consolidating existing national direction into a single integrated format in preparation for being incorporated into the National Planning Framework, and support to the increase the capacity and capability throughout the system (including for iwi and local authorities).
At over 700 pages, the RMA is one of the most complex pieces of law in New Zealand. It directly or indirectly touches on most things New Zealanders do every day as well as managing complex and often competing rights, interests, needs and priorities. This is why care needs to be taken when replacing it. Because of the impacts on people’s rights and interests, this has to be undertaken with providing sufficient opportunity for the public to have their say.
The RM Reforms are replacing and repealing the current RMA with three new pieces of legislation. This takes time, as the Government will need to prepare regulations and other forms of national direction to guide local government and other decision-makers on the implementation of the new legislation and their interaction with other interface legislation.
The RMA continues to remain in force until new legislation comes into effect. There will be transitional provisions in the new legislation to ensure that decisions can continue to be made on plans and resource consents, and that national direction can continue to be implemented, until new system replacements are developed. These provisions will provide clarity on what needs to be transitioned, when this needs to occur, and the mechanisms for doing so.
MfE will be working with iwi/hapū and the local government sector to develop a transition pathway, maximise current system efforts, and limit work that will not be fit for purpose for the new system.
For the meantime, we encourage councils to continue to implement the RMA, with an emphasis on monitoring and gathering evidence/data on the performance of their existing plans, looking for opportunities to collaborate with other regional partners, and developing community and stakeholder awareness of the changes ahead for the resource management system.
As the process for establishing the new system is likely to span a number of years, there are risks of poor outcomes in the interim if councils do not continue to implement RMA national direction and perform key statutory processes. In particular, support will continue to be provided to councils to maintain the significant effort currently being made into implementation of key priority areas such as freshwater management and urban development.
Given the scale and pace of reform, a Ministerial Oversight Group has been delegated decision-making authority to work through the policy details needed to progress the exposure draft of the Natural and Built Environment Bill. It also has decision-making authority on associated matters for the other Bills.
The membership of the group includes Ministers of/for Finance (Chair), Environment (Deputy Chair), Māori Crown Relations: Te Arawhiti, Housing, Local Government, Building and Construction, Agriculture, Māori Development, Transport, Conservation, Associate Environment Hon Kiritapu Allan, Associate Environment Hon Phil Twyford, and Climate Change Minister.
The first meeting of these Ministers occurred on 26 January 2021 where the objectives for reform and the process was discussed. A number of meetings have been scheduled until the end of the year.
The Ministry for the Environment (MfE) is the lead agency on developing the NBA, and CAA.