How the future RM Reform system will better protect the environment
Environment Minister David Parker’s address on how the future resource management system will protect the environment
Chateau on the Park, Christchurch
17 August 2022
Tēnā koutou katoa
Thank you for coming here today to discuss the reform of the resource management system and in particular how the future system will better protect the environment and help reduce emissions and adapt to climate change.
This is the third speech in a series of speeches I am giving to share key decisions that have been made by Government about the new system. The first, a general overview, was in Dunedin to the Resource Management Law Association; and the second on governance issues and how plans (down from over 100 to about 14) will be put together, at the Local Government New Zealand conference in Palmerston North. The two still to come are how we are giving effect to the principles of the Treaty of Waitangi, and how development outcomes will be better enabled.
There is a broad consensus that after 30 years as our cornerstone environmental and development legislation, the RMA is not working as intended.
You may have heard me say the current system takes too long, costs too much and has neither adequately protected the natural environment, nor enabled development where needed.
Resource Management Act 1991 (RMA) processes have also been slow to respond to new challenges, whether of climate change or freshwater quality.
Reforming the resource management system is a priority for the Government. We are repealing the RMA and enacting the Natural and Built Environments Act (NBA), and Spatial Planning Act, (SPA) this parliamentary term. We expect to introduce both pieces of legislation to Parliament in October of this year.
The Climate Adaptation Act (CAA), with the complex technical, risk sharing, legal and financial issues associated with rising sea levels, is expected to be introduced to Parliament in 2023.
RMA has failed to protect the environment
Over the last 18 months, we have been considering substantial changes to our resource management system as recommended by the expert review panel, chaired by Hon Tony Randerson QC, in its 2020 report.
The Randerson report involved extensive consultation and built on earlier work by the Productivity Commission, Waitangi Tribunal, Local Government New Zealand, Environmental Defence Society, the Property Council, Infrastructure NZ, and Employers and Manufacturers Association.
The Panel set out the significant challenges across the resource management system – not least that our natural environment is under significant pressure: climate change is speeding up, and many of our native plants, animals and ecosystems are under threat – 4,000 of our native species are threatened with or at risk of extinction.
We know that the state of many of our lakes, rivers, wetlands and estuaries is degraded, and that is an indicator of the RMA and its poor implementation.
I find it shocking that just 6 years ago we were having a debate about whether the desired minimum standards for water quality should be wadeable or swimmable. Thankfully, we, you, me, many others won that argument.
It is shocking that the majority of monitored swimming places don’t meet World Health Organisation safe swimming guidelines in summer. You should be able to pop down to your local river in summer and put your head under without the risk of getting crook.
The degradation of our natural environment reduces the ability of our ecosystems to recover from shocks like storm events. Land uses are degrading our inshore fisheries. We are losing valuable top soil. Sediment and nutrient loads extend beyond estuaries, adversely affecting kelp beds and scallops.
Urban areas have struggled to accommodate population growth. Consenting costs have ballooned. Land prices have spiralled. There are many causes of this outside of the planning system, but all sides of Parliament agree that overly restrictive planning rules have stopped intensification that would occur if allowed.
Overall it is clear that our resource management system under the RMA has not responded effectively.
The Randerson panel made it clear that the lack of clear environmental protections has made managing cumulative environmental effects challenging.
Cumulative effects have not been well managed
One of the criticisms of the RMA is that it has too narrow a focus on managing the negative effects of resource use rather than providing direction on desired environmental outcomes.
Decisions on plans and consents have been made on a case-by-case basis, where adverse effects have often been mitigated rather than avoided. The consequence has been that adverse effects on the environment have accumulated.
The decline in the quality of our freshwater, and an inability to build enough houses when and where they are needed, are two such obvious examples.
Future system objectives
In December 2020 when Cabinet agreed to repeal the RMA and transform the resource management system, we agreed on five objectives the future system would need to achieve.
These objectives were to:
- protect and where necessary restore the natural environment, including its capacity to provide for the wellbeing of present and future generations
- better enable development within biophysical limits, including a significant improvement in housing supply, affordability and choice, and timely provision of appropriate infrastructure, including social infrastructure
- give effect to the principles of Te Tiriti o Waitangi and provide greater recognition of te ao Māori, including mātauranga Māori
- better prepare for adapting to climate change and risks from natural hazards, and better mitigate emissions contributing to climate change
- improve system efficiency and effectiveness, and reduce complexity, while retaining appropriate local democratic input.
Today I am concentrating on two of them. How the new system will protect and where necessary restore the natural environment, including its capacity to provide for the wellbeing of present and future generations; and how it will help adapt to climate change and risks from natural hazards and mitigating the emissions that contribute to climate change.
Natural and Built Environments Act
The NBA aims to improve on the RMA through setting up a framework of outcomes for restoring, enhancing or improving the natural environment where it is degraded. It will also promote development outcomes within environmental limits – for example housing intensification elevated by the Medium Density Residential Standards, and backed by both sides of the House, will be baked into the new system.
The NBA will support the wellbeing of present generations, without compromising the wellbeing of future generations. It will give effect to the principles of the Treaty of Waitangi and te ao Māori. It will be explicit about having to comply with environmental limits to protect ecological integrity and human health.
To get it right, we are making sure that the reform objectives are clearly articulated, providing no room for doubt that development is intended to occur within environmental limits and associated targets.
Getting the right balance between certainty and flexibility will always be challenging. I have a view that cumulative small adverse but widespread effects are a greater problem than the adverse effects of infrastructure, and that often infrastructure is necessary to avoid adverse effects.
As the main replacement for the RMA, the NBA will set out how the environment will be protected and enhanced, covering land use, along with environmental protection, water takes and discharges and use of coastal marine areas.
As with the RMA, Part 2 of the NBA will include its purpose and the principles which will guide how decisions under the new legislation should be made.
This will include providing for ‘Te Oranga o Te Taiao’, a te ao Māori phrase that translates to the health and wellbeing of the environment. Te Oranga o Te Taiao is defined as an intergenerational ethic for all New Zealanders to support a more responsible and positive relationship with the natural environment.
We have listened to the feedback provided to the Environment Select Committee inquiry on an exposure draft of key parts of the NBA, and we have worked closely with iwi and Māori groups on better articulating what the concept means and how it will applied.
Te Oranga o te Taiao places greater emphasis on understanding the interconnections between different parts of the environment, including people. This will help achieve our desired outcomes and better manage cumulative effects.
Similarly to the sustainable management concept under the RMA, Te Oranga o te Taiao recognises the essential relationship between the ecological integrity of the natural environment and its capacity to sustain all life and the economy.
Unlike the RMA, the NBA will specify required outcomes for our natural and built environments. These outcomes will help set expectations for decision-makers regarding what the future system should deliver, focusing everyone’s attention on the most important priorities.
Outcomes related to the natural environment include:
- The natural environment is protected and where degraded restored. The health of New Zealand’s fresh water, coastal water, air, soil, ecosystems and their ability to sustain life are to be maintained in line with Te Oranga o te Taiao.
- Nationally and regionally significant landscapes, natural features, habitats for indigenous species, native biodiversity and the natural character of the coast, lakes and rivers are to be maintained or where appropriate enhanced.
- Important habitat for indigenous species and their ecosystems are protected and where necessary restored.
The NBA will also include implementation principles to guide how decisions should be made, not just what they should seek to achieve. They will ensure sufficient consideration is given to important matters such as integrated management, cumulative effects and the precautionary principle.
Other changes include a more nuanced approach to managing adverse effects, embedding an expanded framework that will require decision makers to avoid, minimise, and remedy adverse effects wherever practicable. Remaining adverse effects that cannot be avoided, minimised or remedied can be offset or compensated for. For the avoidance of doubt, compensation does not mean paid for, but rather redressed.
Additional safeguards will also be put in place to prevent inappropriate use of offsetting and compensation for biodiversity losses. This recognises that the use of offsetting and redress needs to be managed very carefully.
We want to keep useful concepts that are in the RMA, and in case law, to minimise costs and uncertainty during the transition to the new system.
The King Salmon decision is an example of jurisprudence we don’t want to lose.
In King Salmon, the Supreme Court made it clear that decision-makers should not re-litigate the appropriateness of plan content or national direction, except in a narrow range of situations, for example where there are gaps or ambiguity or the content appears to have been made unlawfully.
This approach will be carried over in the NBA, bringing certainty to the new system which the RMA lacked for decades.
We are rolling over the purpose and intent of Water Conservation Orders with minor amendments to align with the NBA. The meaning and application process will stay the same, as will their special purpose. The two stage process for granting WCOs, currently required under the RMA, will remain. Natural and Built Environments Plans (NBA plans) will need to give effect to Water Conservation Orders.
Stronger direction on matters of national significance
A key element of the NBA will be the National Planning Framework (NPF), which will codify and over time expand national direction.
Through the NPF central government will give strategic and regulatory direction to regional and local decision-makers. The framework will set mandatory limits, or otherwise give directions for those limits to be set in NBA plans. The NPF will give direction on the outcomes sought in the NBA, for both natural and built environments.
The concept of Te Oranga o te Taiao will be operationalised through limits and targets set in the NPF.
New pieces of national direction currently being developed under the RMA, giving guidance on how to manage highly productive land and how we protect, maintain and restore our indigenous biodiversity will also form part of the new NPF.
The Randerson panel consistently called for stronger national direction and recommended a number of significant additions.
The Government agrees with this. National direction will set objectives, policies, limits, targets, standards and methods for matters of national significance, or where national consistency is desirable.
Limits and targets and how they will protect and enhance the environment
Environmental limits and targets will have a central role in the reformed resource management system, particularly in relation to the reform objectives of protecting and restoring the natural environment and enabling development within limits.
Limits and targets will work together. Limits will set the starting point for the natural environment – reflecting the fact that we need to begin where we are. Targets will drive ongoing improvement, bringing in broader social, economic, and cultural goals.
The new system will stipulate environmental limits and targets across air; indigenous biodiversity; coastal waters; estuaries; freshwater; and soil. Not all parts of the NPF will be in place when the new system starts, but the NPF will be light years ahead of where the RMA started.
Limits will manage risks to human health or the ecological integrity of the natural environment. Exemptions will only be granted in exceptional situations according to strict criteria.
Targets for ecological integrity and human health will be mandatory. Like limits, targets will be set in the NPF or in NBA plans, after taking into account other objectives.
Limits and targets primarily address biophysical aspects of the environment. We are deleting amenity from Part 2 of the RMA. It has been used in support of taste-based NIMBY opposition which has stopped communities accommodating their growth aspirations.
Targets must be set at a level that are at least equal to the limit. Beyond that, the new system will acknowledge local differences with communities generally being able to set targets associated with limits that reflect their own aspirations for the environment and the things they care about.
However, where the current state of the natural environment is already unacceptably degraded, the NPF will set out a minimum level target that regions must manage up to. A local target equal to an excessively degraded current state would not be acceptable. This approach avoids locking in unacceptable degradation.
When developing their plans, Regional Planning Committees will need to consider how to manage the natural environment to maintain limits and meet targets in the NPF. They will also have to set their own limits and targets, if the NPF has delegated these functions to them.
How the NPF, RSS and NBA plans will work together to protect the environment
As identified by the expert panel, current RMA planning and consenting have not kept pace with change.
In large part this has happened because the RMA has primarily focused on adverse effects and not enough on the positive effects of an activity. The NBA will shift decision making to a more outcomes focused framework, although of course adverse effects will still be managed.
The explicit requirement to focus on outcomes, for example protecting or restoring the ecological integrity of air and freshwater or driving climate-resilient development, will make planning instruments stronger by requiring plans and consents to say how outcomes will be achieved.
The proposed NPF will give a strong steer to decision-makers developing Regional Spatial Strategies and NBA plans.
Regional Spatial Strategies will identify where development, growth and infrastructure should be provided. These long-term strategies covering 30 years plus will identify areas that are suitable for development, or need to be protected, or will require infrastructure or are vulnerable to climate change effects and natural hazards.
NBA plans will then set the framework for managing land and resource use at a regional level. In doing so, NBA plans must give effect to the NPF, help to achieve the aspirations of the Regional Spatial Strategy and be outcomes focused. There will be one plan per region allowing decision-makers to consider all the issues across land and resource use and provide consistency where consistency is needed.
Better plans will drive efficiency, improve certainty and reduce costs for consent authorities, applicants and interested parties.
Anyone concerned about environmental outcomes can have their voice heard throughout the plan development stage. Submissions on a new proposed plan will be heard by an independent hearing panel. This process will balance local and regional needs, providing an early opportunity to resolve conflict between the two.
NBA consenting provisions will also be more outcomes focused. Notification requirements will be clarified in plans. Decision making at consenting, will be assessed on whether an activity aligns with outcomes, targets and limits set out in planning instruments. As NBA plans will be more clear, consent authorities can make robust decisions and impose effective and enforceable conditions.
Standards for aspects of infrastructure development will sometimes replace bespoke conditions which add cost and complexity to applications and decisions. Existing users will be expected to reasonably improve their consented impacts over time. As times change, so should they.
Allocation plans for scarce resources will be required, not be optional as they are now under the RMA.
We have a number of proposals to boost the compliance, monitoring and enforcement (CME) regime. Cost recovery provisions will allow costs to be recovered for compliance, monitoring of permitted activities, and investigation of non-compliant activities. We are also proposing increases in some financial penalties. The limit of time frames to prosecute non-compliance has been increased, and an alternative civil enforcement route used in many overseas jurisdictions is being introduced.
Update on CAA
The Climate Adaptation Act, addressing the complex issues around managed retreat, is expected to be introduced to Parliament next year. High-level elements of it were consulted on recently as part of the draft National Adaptation Plan.
It will provide additional tools to enable society to locate assets and activities away from areas at high risk from climate change and natural hazards.
How new system will support mitigation and adaption to climate change
The reform’s fourth objective refers not just to adapting to climate change and risks from natural hazards, but also mitigating the emissions that contribute to climate change.
When it comes to reducing carbon emissions, and adapting to climate change, much of this is already being done through charging for emissions under the ETS and through complementary measures outside the resource management system.
The transition to a low emissions and climate resilient New Zealand is expensive, and investors need certainty to get on with the job.
This means that we cannot allow issues that have been settled through the Climate Change Response Act to be reopened in NBA processes. To avoid this, the NBA will state that the NPF must “not be inconsistent with” provisions in an Emissions Reduction Plan or the National Adaptation Plan. This will help ensure the system is seamless.
At the same time, the resource management system will still have an important role to play when it comes to mitigating and adapting to climate change.
The NPF will provide direction on reducing natural hazard risks and on climate change adaptation while Regional Spatial Strategies will identify areas that are at risk of sea level rise, and other natural hazards, and require an appropriate response. The strategies must also identify the ‘priority actions’ needed to achieve the strategy’s vision and objectives.
Regional Spatial Strategy implementation plans and agreements will show how the strategy is to be delivered and made real on the ground.
Exactly where no-go areas start, and end, will be set out in detailed land use planning in NBA plans.
In time, this combination of the NPF, Regional Spatial Strategies and NBA plans will direct development to areas that are climate resilient, reduce conflict and stop development in inappropriately risky locations. The NPF and the Regional Spatial Strategies will give councils a stronger mandate to make what are sometimes difficult decisions.
In the short-to-medium term, provisions and instruments under both the RMA and NBA can be used to implement the National Adaptation Plan to minimise damage from a changing climate. This will avoid locking in land use, or closing off opportunities to adapt, ahead of the longer-term considerations in the new resource management system.
On transition and implementation
The Government has budgeted $179 million over four years for implementation of resource management reform.
This will ensure funding to help complete the National Planning Framework, the first Regional Spatial Strategies and Natural and Built Environments Plans, and establish the National Māori entity.
As the shortcomings in RMA implementation show, funding an efficient transition to the new system is crucial to delivering a system which has shorter timeframes, lower costs and better outcomes for New Zealanders.
To make implementation easier, we will work with several councils to develop the first full Regional Spatial Strategies and NBA plans which will serve as a model for subsequent strategies and plans.
We will apply the lessons learned to the wider roll out of the system. They will provide practical templates for other regions to use, reducing cost and unnecessary variations between plans.
We hope to identify the first regions we will work with on the model Regional Spatial Strategies and NBA plans in the next couple of months.
In addition to the model project, there are two other key work programmes in the transition and implementation area. First, the transition to the new system – that is how the system will operate during the transition and when the new system tools, strategies and plans will come into force, and how. Second, we are working to ensure we are fully upholding treaty settlements, including relationships with Post Settlement Governance Entities.
Thank you for coming today.
The changes I have outlined strongly reflect the recommendations of the expert panel and represent a significant shift from planning and decision making under the RMA.
I hope many of you will engage with the Select Committee process later this year, and I look forward to hearing your views on both the Natural and Built Environments Bill and Spatial Planning Bill once they are introduced to Parliament, helping us produce robust legislation that is fit for purpose now and into the future.