An RMA split in the name of the environment

As the Resource Management Act review considers whether to split, Farah Hancock takes a look at where the current Act has struggled to protect biodiversity

At the time it was created, the Resource Management Act was considered ground-breaking in marrying planning and environmental matters into one Act.

Almost 30 years on, having presided over a housing and environmental crisis, it’s considered a flop.

Now it’s set to undergo an overhaul which Environment Minister David Parker hopes will “cut complexity and cost while better protecting our environment”.

“While not the sole cause of the housing crisis, planning rules are partly to blame. Environmental outcomes have been disappointing. Freshwater quality has been going backwards.”

Divorce is an option on the table according to the RMA review’s terms of reference. Planning and the environment could go their separate, legal ways:

“The review is expected to resolve debate on key issues, including possibly separating statutory provision for land use planning from environmental protection of air, water, soil and biodiversity. Resolving questions of this magnitude will require the review to consider a wide range of options, including options that depart from the status quo.”

Custody of control is also up for grabs in the review.

Institutions currently administering the RMA could change as the review aims to allocate the roles of central and local government.

Despite the prospect of a potentially tricky split, the reaction to the comprehensive review has been positive from all quarters.

Without clear bottom lines, and with compromise, complexity and grey areas it’s been a marriage which few have felt worked.

It’s complicated. RMA relationships for dummies.

The intent of the RMA is to set out how the environment is managed. It hinges on the idea of sustainable management of resources.

In short, it tries to stop people messing up New Zealand’s environment as we build our houses, businesses and amenities.

The idea is local councils and their inhabitants are best placed to know their own area, so while there is a national RMA and several national policies and standards, councils come up with their own local plans based on the national legislations, policies and standards, but specific to their area.

The layers of the RMA. Image: MfE

Under the RMA, regional councils manage resources which are not owned such as rivers, the air, the soil and the coasts. District and city councils manage new subdivisions, land development, and plans to clear native bush.

In day-to-day life most people will be aware of the Act through consent processes.

Before a person does something likely to change the environment, like take water from a stream for irrigation, they need to check if a resource consent is required. The need for a consent can differ across councils.

If granted, consents should be monitored, and if breaches occur, enforced.

Where it’s been going wrong for biodiversity

Talk to conservationists and they’ll point to three key issues which have led to 801 pages of RMA legislation, and potentially thousands more pages of council plans not working as well as they were hoped to.

There are holes biodiversity falls through, compliance concerns, and the fox in charge of the henhouse worry.

Almost 4000 species are in danger of extinction. Some species on private land can fall through protection gaps if they aren’t covered in the Wildlife Act.

Forest & Bird’s conservation group manager Jen Miller points to Mackenzie Basin as an example where failings are clear to see.

“Up until recently there was really poor planning provisions to protect the important and quite significant drylands values. The rules were inadequate.”

She said the way the rules were written allowed for significant destruction of indigenous vegetation and habitat for the critically threatened robust grasshopper.

“The Mackenzie throws into sharp relief what can happen when you don’t have proper, we would argue, national direction.”

The direction she’s referring to is a National Policy Statement on Indigenous Biodiversity. First proposed in 2010, this policy statement has languished for almost a decade. A proposed statement is due in October.

“Without that national direction you end up with councils, especially small councils, that are primarily about the land owners and agriculture. The councils themselves are heavily dominated by people with vested interests,” said Miller.

Checking people are following the rules prescribed in resource consents is also an issue.

“That’s something we’ve been hugely worried about. Consents are given but they’re very rarely monitored, and breaches of consents are very rarely enforced.”

Will breaking up environment from planning help?

Environmental Defence Society CEO Gary Taylor said the government review is something the society has campaigned for.

He’s not prone to excitement but said he’s “almost excited” at the news the Act is up for comprehensive review.

The society recently published a series of reports looking at options for RMA reform. One key feature noted is the need for a future system to impose environmental bottom lines, something that isn’t really happening in the current National Environmental Standards.

Three models in the report give a taste of what splitting the RMA up might look like.

Model two describes how separate planning and environment acts could work.

Along with their creation it suggests a new Allocation Act manage what’s currently allocated under the RMA, Crown Mineral Act and Fisheries Act.

Environmental regulation in this model would move from councils to an expanded Environmental Protection Authority (EPA) and the Environment Act would contain clear regulatory limits and performance standards, says the society’s report:

“… natural” domains would be strictly protected under a separate Environment Act with a firm purpose and clear regulatory boundaries.”

Granting permits, environmental monitoring and reporting would all fall to the EPA.

A further Protected Areas and Species Act is also proposed, which would integrate conservation legislation such as the Conservation and Reserves Act.

Taylor said the idea to split planning from the environment is one that has been around for some time.

“It’s appropriate to look at whether that’s a good outcome or not. There are a number of other scenarios too that would need to be examined.”

The society is planning to release a report in December with their preferred option. This, and the work the society has already completed, will be considered as part of the government review.

Other groups, such as Forest & Bird will also be consulted during the process.

The Government expects to have a proposal for reform by mid-2020.

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