Go to:

Nick Smith

8 May, 2009

The Next Phase of RMA Reform

It’s great to be here addressing you as Environment Minister at a time of considerable reform in resource management and planning policy.

The new Government is embarking on an ambitious programme of reform involving significant changes in the law; changes in institutions; and changes in policy. This morning I want to give the overview of Government thinking on the rationale behind our reforms, canvas some of the contentious issues in the first phase of reforms, and announce the programme for the next phase of reform.

First, I want to acknowledge the work of the Institute. Members of this organisation make a real contribution to the long-term wellbeing of our country. New Zealand needs a well organised professional planning body to engage in the sort of debate we are having on resource management law and I thank you for your input.

I want to give some broader context to where Resource Management law reform sits within the John Key Government’s wider ambitions for New Zealand. Our agenda is about raising living standards and ensuring New Zealand has the sort of future where bright, talented young people want to build their future here.

The reason resource law is so important to this is that we, probably more than any other developed country, are dependent on our natural resources for our competitive advantage. It does not matter whether it is dairy, tourism, meat, wine, forestry or fish – the wise use of our natural resources is at the core of our economic success.

And our natural environment equally goes to the core of our national identity and our way of life. All New Zealanders view our country’s natural heritage – parks, beaches, rivers, lakes, and mountains – as part of who we are. It is very fitting then that I speak to you here today in Rotorua, our country’s thermal wonderland, that is recognised around the world for its spectacular natural attractions.

So, my first message to your conference is that the new Government views good natural resource law as critically important to lifting our nation’s game and securing the sort of future we want for our children. 

This reform of our resource laws is also underpinned by a well developed set of Bluegreen principles that represent a new generation of thinking on environmental issues.

The Bluegreen philosophy is based on five principles:

  • First, economic growth and the environment can and must go hand in hand,
  • Secondly,  resource use must be based on sustainability – we have no right to mine new Zealand’s natural balance sheet for short term gain,
  • Thirdly, good science is essential for environmental decision making,
  •  Fourthly, people respond best to change when given incentives,
  • And finally, Kiwis have a unique birthright to access our special places and this is a heritage the new Government wants to enhance.

These underlying principles are driving the Government’s broader environmental agenda.

The new Government has been working with the Ministry for the Environment to re-jig their work programme around our priorities.  Again I think it useful early in this Government’s term to set out our priority areas of work.

The first priority, which should not surprise you, is the huge global challenge of Climate Change.

The second priority is fresh water management where we think New Zealand faces important challenges and we will be announcing new initiatives.

The third priority is our biodiversity. It is a uniquely New Zealand challenge and is the only area of the environment by international standards where we face significantly greater problems than many countries. 

The issues of ocean management, implementation of the Waste Minimisation Act and improving our air quality, are the Government’s other environmental priorities.

You will be aware that the Environment Ministry has embarked on a substantial restructuring.  This follows a year in which both the Minister and the Chief Executive had to resign over the politicisation of this important agency.

The problems for the Ministry are that what has been a relatively small policy agency, has been thrust into the core of today’s challenges on issues like Climate Change and has not been particularly well equipped or organised to play this role.

An important job for the new Government has been refocusing the Ministry and rebuilding morale so it has the capacity to be a high quality, politically neutral advisor on climate change, and broader resource management issues.

The first phase of the National Government’s resource management reforms is well under way.  Many of the issues in that Bill were heavily canvassed by National while in opposition and bring together a number of process issues that have been long debated in the discourse about the RMA.



The reforms are primarily about processes to simplify and streamline the Act so we can achieve crisper decisions in a more timely way. 

It is important for you to understand that National does not want to change the overall economic-environmental balance of the RMA.  For that reason I have not made changes to the purposes and principles of the Act.  Our focus is about getting process improvements so Councils will be able to deliver plans in a more timely way and to process consents more efficiently.

 We committed to introducing the first phase of RMA reforms in the first 100 days of Government and passing this into law in six months. We are on track to do this.

Last year I established the Technical Advisory Group to provide an extra stream of advice separate from that of government officials. I want to pay tribute to the TAG which has contributed well to our reform programme.

I must also acknowledge the work of the Ministry for the Environment. What I found in moving into government was pent up frustration across government agencies where people wanted to see resource management reform but found no appetite for such changes under the previous government.  There has been a huge amount of vigour and engagement by government officials in bringing together this reform programme.  And there is a surprisingly high level of consensus across government agencies on the direction and detail of the reforms.

The process for Phase I is well advanced with the Resource Management Simplifying and Streamlining Bill receiving 111 votes to 9 with only the Greens opposing the Bill at its introduction.

The Local Government and Environment Select Committee has been inundated with 840 submissions and is currently working around the clock to hear the 560 that wished to be heard in person.  I must emphasise that the Government takes the Select Committee process very seriously and there will be changes to the Bill in the light of the thoughtful and constructive submissions that have been made.  

There are a few contentious issues on which it is worth making comment. The first of those is the strong push in Phase I to tighten the process for the writing and changing of Council plans.  I cannot overstate how important this is to the successful functioning of the RMA.  Plans are the lynchpin to good resource management.  In districts where plans are well drafted we are getting good environmental and economic outcomes; where plans are poorly drafted and do not reflect community issues they can impose enormous costs on communities.

A fundamental problem with the current Act is the time it takes to write and change plans.  I am advised this is taking an average of seven years, and is indefensible. The changes to the process about when plans take effect, the extent of cross submissions and constraining appeals to the Environment Court are all about changing the incentives so we might get plans in a more timely way.

There is also an underlying constitutional flavour to these reforms. It is the view of Government that the primary role of elected officials at Parliament or Councils is to be making law and the rules while individual consents and decisions should be left to Courts and Commissioners. 

That is also why the Bill removes the Ministerial Veto associated with restricted coastal activities.  I know this has caused angst among conservation groups. But having been the Minister of Conservation for three years in the 1990s, I note there is ample opportunity for that Minister to influence decision making in the coastal environment.

They get to write the National coastal policy statement, get to approve everyone of the regional coastal plans, get to appoint a member of the panel deciding restricted coastal activities, as well as the department being able to be a direct submitter.

These five levers provide ample opportunity for the Minister of Conservation to have an influence without also requiring a veto.  The additional step of Ministerial approval only adds time and cost to the consent process.

There is considerable debate and interest around the changes to call-in, Boards of Inquiry and the new process by which major applicants can apply directly to the Environment Protection Authority for consents. It is the view of Government that more of the major nationally significant consents need to be dealt with at a national level, and that is why the Bill expands the role of Boards of Inquiry.  The strength and advantage of these boards , is that while chaired by an Environment Court judge, specific technical expertise relevant to the actual case can be utilised in the decision making process .  It is also the intent to avoid the tedious process of controversial consents going through a laborious first consent process when everybody knows the process will be repeated all over again in the Environment Court.

An innovation in this Bill is to combine both the local and national considerations of a major project by a single Board of Inquiry process that brings together both national and local expertise.

I acknowledge, that while the bulk of submissions have been supportive of the Bill, there is considerable debate over the provisions that remove the non-complying activity class, that restrict blanket urban tree protection, that limit plan appeal rights and which change the decision maker over designations.  The Government will be carefully considering these issues over the next couple of months, as we finalise the amendments to the Act.

Phase II Reforms

That brings us to Phase II of the RMA reforms. While Phase I was about simplifying and streamlining the RMA, further reforms are needed to improve the economic and environmental outcomes of the RMA.

Greater Central Government direction and closer alignment with other legislation are the primary objectives of the second phase of reform. 

Phase II is a far more complex reform process with 10 related work streams. The first four work streams involve greater central Government direction to improve management of aquaculture, infrastructure, urban design and water. There is also a major job to develop the scope, functions and structure of the proposed Environmental Protection Authority.

A further four work streams involve better alignment of the Resource Management Act processes with those of the Building, Conservation, Forests, and Historic Places Acts. The final work stream involves a number of generic RMA process issues that were too complex to include in Phase I of the reforms.  

As you will appreciate there is a great deal of work to be done and due to the detailed and complex nature of the second phase of the RMA reform programme, work will progress at a more modest pace. It will involve a number of advisory groups and significant opportunities for public consultation and engagement. There is also a lot of detail to work through and it will take time to get it right.  

Specific reforms

Let me highlight the specific reforms that will be undertaken. First, the need to align the RMA and other statutes. The RMA and the Building Act is a prime example. The Building Act is concerned with the quality of the building; the RMA is focused outwards at the effects generated.

Because building consents and resource consents are often needed for a single project, the public are often confused about the difference between the two Acts and why two approvals may be needed.  This is not a new issue. 

I have asked Ministry for the Environment officials, to work with officials from the Department of Building and Housing and others, to investigate mechanisms that will bring about greater coordination and communication. It may be a single approval process can be provided for the building and management of effects of minor projects – or it may be that separate approvals are still required but better information and sequencing can be provided.  This work will run in close coordination with work being done to review the Building Act being undertaken as part of the Regulatory Review.

The RMA and the Conservation Act is another example of where we are seeing interface issues. An activity that occurs on conservation land can require resource consent from the council under the RMA and also a concession from the Department of Conservation to operate under the Conservation Act. While the purposes of the legislation are distinct – some of the issues being considered are the same. 

Similar problems arise with the Forest Act (and its requirement for sustainable forest plans for the commercial milling and export of indigenous timber) and the RMA’s requirements for sustainable management of natural resources (indigenous flora). 

In both cases there may be scope for single processing timeframes or memorandum of agreements where issues are dealt with in common.

Other areas for improved co-ordination are the RMA and the Historic Places Act. Work has been done in the past to review the Historic Places Act and I have asked officials from the Ministry for the Environment and the Ministry of Culture and Heritage, Maori Affairs and Conservation to scope out the interface issues between the Historic Places Act and the Resource Management Act.  A key focus will be on aligning processes with particular emphasis on the current archaeological authority provisions in the Historic Places Act. 

My officials will work collaboratively with the relevant government agencies on investigating these issues.   I have asked for joint work programmes with report backs in August this year.  In some cases agencies already have reviews underway and I would expect these reviews to form part of the scoping advice provided in August.   

In some cases the issues might not be significant and there may be some simple administrative solutions to reduce duplication and enable better alignment.  But again, this work is overdue and in the current economic climate the government is looking to tighten up processes so as to avoid duplication and unnecessary cost.

Designing the Environmental Protection Authority:

As you will no doubt be aware, the Phase I legislation proposes that an Environmental Protection Authority (EPA) be set up within the Ministry for the Environment.

The purpose of this ‘transitional’ Authority is to provide efficient and timely administration of the consent process for proposals of national significance, such as major infrastructure or public work projects. We are proposing the Authority receive, accept and process applications for nationally significant proposals.

The EPA will provide me with advice on proposals that should be called in, but final decisions on the proposals that are called in will be made independently of me or the EPA, i.e. via a board of inquiry or by the Environment Court.

As part of phase two, I see opportunities for the EPA to expand to include a wider range of environmental functions which are best performed at the national level. There are a range of other potential functions that an Environmental Protection Authority could undertake such as management of Exclusive Economic Zone legislation when that is progressed.

But I need to consider a number of issues with my cabinet colleagues before the final scope and design of the EPA is decided.  The extent to which powers and functions need to be under direct Ministerial control will be discussed and the experience of Australia and other EPAs noted.  My aim is to have legislation in the House later this year.  

My aim is to have the expanded EPA fully operational by 1 July 2010.

Aquaculture

The National-led government has identified that reform of the aquaculture regime is a high priority. The Ministry for the Environment and the Ministry of Fisheries are leading this policy work, with the Department of Conservation and Te Puni Kokiri and the Ministry of Economic Development.

The reform is looking at the existing aquaculture legislation and identifying the changes needed to improve the regulatory regime, including the allocation of coastal space. This is an area that is in need of urgent reform and the Government’s intention here is to have an Aquaculture Reform Bill ready for introduction in late 2009.   

Infrastructure

Improving planning for infrastructure is another key area of focus for the Government. The Government’s programme for economic recovery is dependent on an ambitious programme of infrastructure investment covering roading, public transport, broadband, electricity grid upgrades, new renewable generation and water infrastructure. 

The RMA and the Public Works Act are two key statutes governing the building of infrastructure.  There needs to be greater alignment between the two and the ability for faster approval for critical infrastructure.

We also want a streamlined process where landowners who have to relinquish their land for public infrastructure are more generously compensated. The Phase II work will also need to tie into the more general work being done by Treasury on infrastructure.

I have asked for a review of how designations work under the RMA and whether any changes are needed to more efficiently facilitate infrastructure development without compromising environmental outcomes. 

Urban Design

Another area of focus is urban design. I am not certain at this stage what shape a National Policy Statement on urban design should have and how this will deliver better results. I am also watching the development of the Auckland One City approach before I get too far into setting out the vision for urban design.

To make a success of urban design planning and to build on the Urban Design Protocol, I need to achieve greater connections between government departments. We need Building and Housing, Economic Development, Transport, Local Government and Internal Affairs who add the community factor to be working in synchronisation on this work.

I would like more research done to examine the viability of setting city limits and land supply and affordability issues. We need to see better coordination of urban development projects.

Water

Finally is the big issue of water. We need new direction in water policy. The Labour Government’s water programme of action, established in 2003 was rather cruelly but not entirely inaccurately labelled a programme of inaction.  Nothing much flowed from it after five years.  The issues of water quality and allocation are hugely important and need addressing.

The Government is working hard on a Water Strategy that will engage key stakeholders – water users, recreational users, iwi and environmentalists – to help shape and deliver better options for water management.

I am currently discussing with my colleagues the scope of the work that needs to take place. I am of the view that setting the direction of water management is one of the more complex issues in Phase II and will take considerable time.

Further details on the Government’s water strategy will be announced in the next few months.

Conclusion

May I conclude by noting that the RMA is now 18 years old.

It was a revolutionary statute at that time, but it has not lived up to its full promise.

For many years its failings have been excused by blaming its implementation and its practitioners.

It is time to accept that the Act itself, while having many strengths, needs a significant tune-up.  

I look forward to an ongoing dialogue with your profession on this challenge.

My goal is that together we might prove that it is possible for New Zealand to be rich and prosperous as well as clean and green.

  • Nick Smith
  • Environment