Bringing back Muldoon

As the full implications of the Government’s resource management changes sink in, it is becoming clear that they mark a return to Muldoon-era-like central control.

In part this is achieved by giving the relevant Minister the right to dictate some environmental standards, and in part it will be achieved by making the Minister the final arbitrator over unresolved matters within the legislation.

The Parliamentary Commissioner for the Environment, Simon Upton, who was the Minister who presided over the passage of the original Resource Management Bill in 1991, has repeatedly raised objections to the draconian powers the Bill allows the Minister in the new legislation.

Crucially, Ministers will have the last word on deciding between environmental limits and economic values.

And there will be an increased emphasis on National Policy Standards which the Minister will draw up.

The core concept in the Bills which entrenches the Minister’s powers is the so-called funnel concept whereby a decision made at the top will flow down through the system.

This is to overcome the inconsistency between local authorities’ plans which emerged under the Resource Management Act where what might have been acceptable to one Council was not acceptable to another, sometimes even a neighbouring Council.

Rebecca Tompkins, a Special Counsel in the Chapman Tripp environment and planning team, says there is nothing in the legislation that specifically defines the funnel concept; rather, it is a term that has been coined by commentators and media about the legislation.

“It’s top-down, and the intention of that is to limit the discretion at the lower consenting level with councils so that they’re not making the calls,” she told a Chapman Tripp podcast.

“That was one of the key criticisms levelled at the RMA was that the national direction wasn’t set correctly and it sort of kicked everything down into councils and then decisions were being made on a case-by-case piecemeal basis by councils rather than there being consistency.

“So that intention is that the national policy direction is then given effect to down through the lower order documents, and hopefully there’s some more consistency in decision making there.”

But Labour’s minority report in the Environment Select Committee’s full report on the two Bills says that the funnel in the bills is different because it is the Minister making the decisions.

“Any deficiency in national direction, or even a change in Minister, could result in adverse flow-on effects throughout the entire system,” their report says.

Chapman Tripp, in their commentary, say that National instruments will sit at the top of the new system and do much of the heavy lifting.

“This leaves significant policy discretion with Ministers and could be subject to political whim,” they said.

Although the main Bill may be called the Natural Environment Bill, it is clearly an economic Bill.

The General Policy Statement for that Bill and its mate, The Planning Bill, says: “The development of the new planning and environmental management system created by these Bills was guided by the following objectives: to make it easier to get things done by—

• • • unlocking development capacity for housing and business growth:

    • enabling delivery of high-quality infrastructure for the future, including

    • doubling renewable energy:

    • enabling primary sector growth and development (including aquaculture, forestry, pastoral, horticulture, and mining)

This is in contrast to the legislation it is replacing, which was the Resource Management Act, which states its purpose as “to promote the sustainable management of natural and physical resources.”

The new legislation does require that environmental limits be set for air, freshwater, coastal water, land, and soil, and indigenous biodiversity.

The limits will be set by the Minister. But the RMA Reform Director at the Environmental Defence Society (EDS), Dr Greg Severinsen, said that Ministers will get to resolve conflicts between environmental limits and economic development however they wish.

“There’s been a doubling down on the idea that there should be no legal hierarchy or prioritisation in the Bills, even for basic protections like for water quality,” he said.

“Astonishingly, this means that all reference to limits is being scrubbed from the goals of the Bills entirely, lest they be seen as something that actually constrains development goals.

“When setting limits, like the amount of threatened species’ habitat that can be cleared or how much pollution can enter a river, there’s still an explicit direction to balance the environment against the economic aspirations of communities.

“That’s not a limit.

“Exemptions to limits have been broadened hugely as well.

“Of being limited to significant infrastructure, the Minister can allow limits to be breached for any activity if they are of the opinion that its ‘public benefits’ outweigh its harm, which could include almost any form of development.”

Labour’s Minority Report says when goals conflict with each other, the Minister will determine how the conflict is resolved.

“This is in effect the Minister establishing a hierarchy,” the report says.

“This is a lot of power and leaves no wiggle room should a poor decision be made at the top of the funnel.”

Chapman Tripp, in a commentary on the legislation, says that they expect the goals will become a focus for interpretation.

“In practice, National Policy Direction will be critical in resolving tensions between competing goals and giving them operational meaning,” their analysis says.

What they don’t say is that the National Policy Direction will come from the Minister, which means that whoever that is will get to decide on the balance between economic development and environmental goals.

The Bills with their concentration of power in the Beehive over environmental decisions will provoke memories of Sir Robert Muldoon’s infamous National Development Act.

That allowed the Cabinet to override any planning procedures and declare something, particularly Sir William Birch’s “Think Big” projects,  to be “a work of national importance” and override usual planning laws.

In his biography of Muldoon, Barry Gustafson wrote that in his promotion of the legislation “and the apparently dogmatic arrogance of executive power all fuelled growing criticism of Muldoon both within and without the National Party.”

In their obvious impatience with current planning laws, that is the danger the current Government faces as it tries to literally cut out the “middle men”.