UNDERSTANDING THE ROLE OF POLICY UNDER THE RESOURCE MANAGEMENT ACTEnvironment
The theme of your conference is ``Know How !'' I have not been able to be here for the first two days of the conference but I am told that the emphasis has been on promoting skill development and on building professional capability.
I was delighted to hear that this theme had been chosen for the 1997 conference. It gives me a chance to talk about one of my particular passions - continuing education and professional development in the name of sound environmental management. Today I want to talk to you about the respective roles of the key RMA players and the skills needed to carry out these roles.
I want to start by observing what must by now seem obvious - that changing the law does not change the reality on the ground. We don't achieve better environmental management simply by passing a statute with a purpose of ``sustainable management''. Nor do we change the way practitioners (or the public) think about their responsibilities simply by legislating for such a change. Improved practice, the adoption of smarter ways of doing things and the achievement of accepted, consensually derived outcomes cannot be assured by legislation. They can merely be enabled.
In other words, much remains in the hands of practitioners and councillors like you who must interpret and implement the architect's work. Success or failure is largely in your hands.
It seems to me that what we have at present can be likened to a high performance motor car coughing and spluttering its way along the road. The Government is the designer of this car but the driver is the local councillor. The co driver - who advises the driver which way to go, where the next pot hole or pitfall might be - is the planner.
Any faltering in performance tends to be blamed either on the designer of the vehicle or the designer's failure to provide a comprehensive operator's manual. Passengers claiming that they are heading in the wrong direction are informed that this is the way they've always gone and no road map has been supplied to show an alternate route.
With cries of ``gross inefficiency'' those who are asked to fill up the tank of this car are constantly asking me to pull it off the road for a major overhaul.
I've tended to suggest that, subject to some fine tuning, the vehicle is fine but that the driver and/or co driver may need a defensive driving course and more time to become familiar with the new fangled machine.
An over simplification perhaps. The point is that the `driving' skills you bring to bear are absolutely critical to whether the vehicle stays on the road. Maintaining a calm, considered and self-critical attitude is essential if we are to avoid degeneration into all out road rage.
It is easy to look for scapegoats - to blame the Government for lack of resources or government departments for lack of direction, or local councillors for lack of understanding or planning practitioners for lack of innovation. The reality is that all these players need to lift their performance. That's why I won't be restricting my comments just to practitioners but will also refer to elected councillors and offer some views on where the Ministry for the Environment's priorities are likely to head.
I'm increasingly of the opinion that central government was heroically ambitious when it devolved almost all natural resource management responsibilities to local government. With all due respect to those present here today, I have to question whether in a country of barely 3.6 million people we have the human skills to operate a statute as sophisticated as the Resource Management Act in such a devolved way. Certainly, our skill base must be improved if we are to achieve sustainable management.
Any legal code is only as good as the people who administer and operate it. The corollary is that almost any system, no matter how deficient, can be made to work effectively when driven by competent and committed people. I say this not because I believe the RMA is deficient but to emphasise the importance of people and their professional capabilities.
In my view, councillors themselves are the most underrated players in the resource management system. It is sometimes easy to forget that parliament devolved responsibility to locally elected councillors, not to local planners. I am not convinced that all councillors have quite grasped the responsibilities that they have, or that the public has yet realised where the real and immediate power under the RMA lies.
Councillors need to take an interest in resource management issues. They need to bring to their jobs local knowledge and local representation but they need also to be prepared to continue to learn and develop their thinking. Let's face it, many councillors around New Zealand take up office with little prior exposure to resource management issues. Yet they are asked to make important decisions that affect the environment and people's ability to live within that environment.
There are those who would conclude from this that we've created a system in which only those who are resource management experts should stand for elective office. Nothing could be further from the truth. There is no arcane body of knowledge required of councillors. But they do need to be clear about their role - and that is first and foremost a policy role.
What does policy involve? Policy in its broadest sense (not the narrowly defined sense of the specific provisions of the RMA) is about establishing clear outcomes to be achieved. Policy setting necessarily involves making trade-offs between alternative outcomes. Given the potential to create winners and losers, a key element in policy making is an assessment of the costs and benefits of alternative policy end-points.
In setting policy councillors don't have a free hand. Parliament has already made a series of key policy determinations about the high level outcomes it is seeking from the RMA. They are enshrined in Part II of the Act. The councillor's policy role is to make sense of this generically described policy in terms of the natural resources in their local area.The trade-offs councillors make must yield outcomes consistent with that over-riding policy but will, inevitably, involve value judgements that reflect the particular community's response to the challenge of sustainable management.
Councillors must equip themselves to make informed value judgements. This involves consultation with both the public and technical advisers (such as planners) but it also means a fair measure self education. By this I mean councillors taking responsibility for informing themselves about the area they represent. There is no substitute for local knowledge but this should not be limited to personal experience. I would expect local councillors to have taken the initiative to read about, or otherwise research, their particular patch; to be informed, at least at a rudimentary level, about the anatomy of the council's territory - its history, its ecology and its geology. I'm not pretending that this information will be of direct relevance to the day to day d rudgery of local council work, but it is essential background knowledge which will inform the attitudes and values brought to bear. I find it difficult to accept that councillors can make decisions which promote sustainable management in their own district or region if they do not have an appreciation of the natural processes at work there and the impact of past, present and proposed human activity on these natural processes.
Above all else councillors also need to have a very clear understanding of what Part II of the Act says and of what it means. Councillors are not expected to know the detail of the 430 odd sections of the Act but the importance of the purpose and principle clauses is such that councillors should almost be able to recite the sections word for word.
Certainly there has been, and will continue to be, legal debate about the meaning of Part II. This is inevitable but it must not stop councillors forming their own views about what sustainable management means in practical terms.
Parliament passed the Resource Management Act because it considered that the preceding statutory jungle was fragmented and ineffective, and because it wanted to secure better environmental outcomes. The Parliament of the late 1980s and early 1990s had experienced a growing awareness that New Zealand's clean, green environment is one worth preserving.
The policy which exists on the face of the statute firmly positions the RMA as an environmental statute. Rather than treat environmental considerations as secondary or a cost to be begrudgingly acknowledged, Parliament wanted visionary environmental management to enhance the quality of life and, incidentally, underwrite the competitive advantage that first class environmental quality can confer on our industries. Visionary management doesn't mean sitting in interminable hearings. I wonder how many councillors have thought about assisting land users to engage in quality management initiatives of the sort Project 98 is in the process of developing? This brings me on to techniques.
Councillors must also take policy decisions on the approaches or techniques to be adopted in promoting good environmental outcomes since these will determine the costs that resource users and communities have to bear. Councillors should not be expected to know the fine grained technical detail of alternative management options but they do need to know enough to be satisfied that an adequate section 32 analysis has been carried out. They need at least to know what questions to ask so that they can make a judgement about what costs they are prepared to accept for any given benefit.
Finally, councillors need to take ownership of the policies they settle on. They need to be able to explain and defend their policies in a simple and convincing way. A councillor should never be in the position of defending policy on the grounds that ``this was what the planners said we had to do'' or that simply ``it has to be like that because that's what the plan says''. If you can't defend a policy in a way that the average constituent can understand (if not accept) then you're not doing your job properly.
In summary councillors need to understand what policy is and be prepared to debate the issues and the options in an informed and independent manner. An essential dimension to this is the ability to stand up to and challenge the advice that is given.
Unlike other, more technically orientated advisers, the role of the planner is closely related to the role of the elected councillor as policy-maker. As an outsider, I would have to observe that much high-flown literature on the role of planners consists of polysyllabic mantras. I doubt whether two planners would ever agree quite what their role is. With due respect to the profession, planners (unlike architects, engineers or economists) are not technically skilled in any readily defined or tangible way other than being knowledgeable and proficient in the `planning' process itself. They are, for example, well schooled in the meaning and interpretation of statutory provisions relating to the planning process.
To make the system work, and work efficiently, planners need to be more than simply experts in process. To many, planners are seen as an exclusive club who know their way around a system which seems, to everyone else, like an impenetrable forest of regulation, jargon and acronyms. Planners should not, as is too often the case, be employed by developers simply to navigate a course through the bureaucracy. That is the sign of a system gone awry. Planners should be employed because of the particular contribution they can make to assessing risks and finding solutions to problems.
I have heard the role of the planner variously described as : 1. the translator and communicator of technical matters so as to achieve community understanding and participation;
2. the coordinator and synthesiser of the work of the various technical experts to achieve socially and environmentally desirable outcomes; and
3. the visionary that sees past the temporary and inadequate solutions to environmental problems proposed by technical experts to provide ``development management solutions''.
I'm afraid I don't share any of these perspectives. To me the role of the planner is to analyse policy options so that policy makers reach policy determinations. Councillors have to spell out their policy goals before planners commence their analysis. In an ideal world, the election platform commitments of council candidates should be the basic raw material. I'm well aware that the ideal is far from realised, anywhere. But I predict that green political forces will increasingly target local and regional government, rather than central government, since this is where power under the RMA really resides. The day that happens some planners will really find out who is calling the policy shots.
Planners must be able to bring a wide range of skills to bear and be able to make sense of, and form judgements from, the wealth of more specialised information provided by the technical experts. Resource management is a discipline that requires an appreciation of numerous fields of expertise - science, philosophy and economics to name a few.
However, to my mind, planners must first and foremost be analysts. They need to be equipped with the skills needed to advise on the costs, the benefits, the advantages and the disadvantages of various resource use (policy) options. This must include an ability to appreciate and assess the costs they impose on business as well as the costs imposed by business on the environment.
For these reasons I have always thought the term ``planner'' to be a misnomer. Not from some philosophical objection to the notion of planning but because it sells its followers short. Contrary to popular belief planners don't plan or at least they shouldn't. They advise on the implications of resource use - a much more difficult and challenging task.
As an aside, I don't necessarily agree with Professor May's conclusion that ``the Resource Management Act puts planning at centre stage''. Certainly the system relies heavily on plans - plans that set out the boundaries of acceptable effects and the criteria reflecting the expectations of councils and the communities they represent. But it certainly does not rely on the prescriptive, rule dependent plans of the past. RMA puts plan making at centre stage but it is plan making born of environmental analysis rather than the prescriptive, coercive planning of old.
This may be an unfashionable thing to say in circles such as this but the Resource Management Act is not solely a planner's statute. As I've said already the RMA is a statute that demands multi-disciplinary skills. It seems to me that this will mean that the professional practitioners such as architects, landscape architects, scientists, engineers and lawyers will become increasingly familiar with the workings of the Act and (as I'm told is already the case) begin to perform many of the tasks traditionally performed by planners. This should not be perceived as a threat to the profession but it should provide planners with the incentive to take a hard look at the skills they can offer and the capabilities that they have. There seems little doubt that the profession will have to market itself in an increasingly competitive environment.
I am a firm believer in educating communities (including at times councillors) about resource management issues and the system in place to address those issues. As professionals trained in environmental matters you are in a unique position to pass on an appreciation of environmental problems. Education is so often seen as the soft option for councils yet it remains potentially the most powerful tool in the toolbox. We all face an enormous task in educating people, including I suspect many of our colleagues, about environmental issues and the environmental management system that is in place to address the issues. There is nothing like ignorance to breed discontent.
I am frequently astounded (though I might say not as frequently as I once was) about the level of ignorance over the environmental threats that we face and, I might add, about the threats we don't face.
I am convinced that as professionals part of your job is to make sure the public buy into the processes and the policies advanced at both central and local government level. To do this they must be able to understand these processes and policies. This is hugely complicated to the uninformed. Complex and largely inaccessible planning documents, coupled with baffling and unfriendly bureaucracy, do not assist building an informed community.
I feel that the genuine environmental issues are too often overshadowed by the bumper sticker issues which have instant public appeal but little relevance to wider questions of sustainability. I have often pondered, for example, how much more progress we could make if we diverted the resources and intellectual horsepower away from the environmentally fruitless debates about protecting public or private commercial operations or maintaining food producing capability and focussed instead on the serious environmental threats that hang over us. In this category I would put issues such as embattled biodiversity and the contributing factors of loss of habitat, poor water quality and biosecurity risks.
Before I leave the subject of the planner's professional role I would make a plea for council planners to take a customer focus in dealing with the users of the service they provide. I am aware that many councils have made significant progress in this area already as they operate more and more as a business enterprise offering a (albeit monopoly) service to paying customers. An a ttempt must be made to break down the ``them and us'' attitude which has developed between many council planning departments and their `customers'. There is scope for win win solutions when addressing many local planning/environmental issues but this takes willing parties and solution orientated attitudes.
I believe that planners need to be lateral and pragmatic. It is easy to lose sight of the ultimate goal when operating within such a formal and legalistic process. Professor May referred to ``legal formalism'' in his key note address. I fully agree that this characteristic of the system can serve to stifle innovation and encourage the less adventurous planners to seek refuge in the familiar, established practices which have been sanctioned by the courts.
Notwithstanding this, planners must be encouraged to look beyond their district or regional plans. They must be prepared to accept that neither they nor their plans are the sole source of possible solutions and that their imposed solutions may not be practical or necessary in each and every case. Flexibility and open-mindedness rather than rigidity needs to colour the psyche of planners and be reflected in the provisions of their plans.
The final thing I want to say about planners relates to their role as independent professionals. This is a subject you and your institute know more about than I do. But I do want to say that, notwithstanding what I said about councillors making policy decisions and challenging the advice given, planners must (in true public service fashion) give free and frank advice, retain professional integrity and ensure they don't support environmental management degenerating into political profiteering. The advice of planners must ensure the consistent application of policy and the equitable treatment of resource users. Acting according to a set of established and accepted principles in the face of pressures to do otherwise is critical to the integrity of the profe ssion.
Professor May described New Zealand's statutory environmental management system as ``cooperative - facilitative'' and elsewhere as being based on a ``cooperative inter-governmental mandate''. The Professor astutely observed that under such a system the role of central government agencies is to provide leadership in a manner that is facilitative and non-interventionist. There seems to me more than a hint in the Professor's subsequent words that central government agencies are not fulfilling the role expected of them. This is a recurring allegation that I have not been immune to.
In truth, the role of agencies, and I speak here mainly of the Ministry for the Environment, has not been an easy one. There have at times been widely divergent expectations of them. There is a tight rope to walk between providing guidance and direction and interference and meddling.
As most of you will be aware the Ministry's focus has been on two fronts. First as participants in the formal plan making, consultative and submission making process. Second as the developer of guidelines on the Act and on policy approaches and standards to be pursued under the Act.
The first leg has been aimed at ensuring practitioners rethink their roles in resource management and take on board the very different imperatives of effects based legislation. The second leg has been aimed at providing sufficient guidance and benchmarks to get some traction on the road to sustainability.
Five years on I am directing the Ministry to reorient its involvement to focus much more on monitoring the progress of local government. Over the next few months you will see a gradual reduction in the Ministry's statutory involvement and the emergence of a solid, if not comprehensive, monitoring regime. This is not to say that the Ministry will be abandoning statutory involvement. This will certainly not be the case. There are many important issues of implementation still to be tested by the Environment Court and the Ministry will be an important player in bringing key policy matters before the Court.
It has become quite clear to me, however, that much more information about implementation of the Act is needed if we are to counter the claims made by those tempted to undermine it.
In my view the role of central government under the ``cooperative inter-governmental mandate'' is to monitor the system and make corrections where possible. If I may return to my driving metaphor MfE could be likened to the mechanic. It does not purport to be the driving instructor, although due to its intimate knowledge of the vehicle it may be able to offer some insights into how to exact best performance. As the vehicle comes in for its first five year check up the Ministry will be looking closely at the gauges and dials and considering what further measuring devices may be clipped on to better understand how it is performing.
This should not be construed as the Ministry backing off its interest in the implementation of the RMA. The monitoring that I have in mind will be detailed and specific and I suspect that it will reveal widely different quality of performance - differences that I will not shy away from broadcasting.
The one thing we have to do is move beyond anecdotal criticism. There has been too much of this and while some criticisms are no doubt justified I suspect many say more about the ignorance of the critics than deficiencies in the Act. I know there is good work being done by dedicated planners and councillors. These players must not be let down by the poor performers but must serve as an example for others to emulate.
Finally, I agree with Professor May: five years' progress was never going to reveal much. Sustainable management is a long term goal with short term costs - a recipe for unease amongst the constituency. There is no doubt that the RMA is still wearing its `L' plates. There are those who would have us belt up and put the pedal to the floor. There are others who would run us off the road. Skilled driving is called for. Hone your skills and drive safely.