RMA Reform Minister Chris Bishop is promising the new resource management legislation will appear before the end of this year.
However, over the past two days at the Environmental Defence Society (EDS) conference in Auckland, it has been apparent that much of the fine print has not been sorted out and that tensions remain between ACT and National over some aspects of the proposals.
Cabinet has agreed there will be a Planning Act focused on regulating the use, development and enjoyment of land, along with a Natural Environment Act focused on the use, protection and enhancement of the natural environment.
What has not been agreed upon is the details of the two acts, and speakers at the conference from a broad span of positions on the environment expressed reservations about different ideas being floated at the moment.
The most obvious sign of tensions came on Tuesday evening after Bishop had addressed the conference by video.
Bishop put up a strong argument for national direction on environmental bottom lines, such as are promulgated now by National Policy and National Environmental Standards.
“The Resource Management Act (RMA) allowed communities to make decisions on how their environment is managed through regional and district resource management plans,” he said.
“While this was once a strength, differences in its application nationwide are an unintended and significant weakness.
Although it has been widely amended to respond to a range of requirements, a patchwork system should not be the country’s mainstay for enabling development and determining how we use or protect natural and physical resources.
“We can and must do better.”
Bishop’s argument is founded on his fundamental proposition that reform of the RMA should enable economic growth.
“Our new system must unlock economic growth. It must support development and innovation. It must enhance the enjoyment of property rights,” he said.
However, “localism” has strong support across the centre-right of politics.
In 2016, Prime Minister Christopher Luxon, then the CEO of Air New Zealand, went on a trip to Switzerland organised by the right-wing think tank, the New Zealand Initiative.
Its director, Oliver Hartwich, is a strong advocate of localism, and the trip to Switzerland was a chance to show how it worked to business executives like Luxon.
He came back a convert.
Localism featured prominently during the 2023 election campaign, most notably in his campaign against Labour’s Three Waters proposals.
But though he overturned them shortly after becoming Prime Minister, gradually less and less has been heard about localism as his days in the Beehive have increased.
Bishop’s criticism of local government promoting local environmental standards would seem to be the final nail in its coffin.
Except that ACT doesn’t agree.
Bishop’s Under Secretary, ACT MP Simon Court, told the conference that it was quite clear that a national bottom line couldn’t possibly apply to braided rivers in Canterbury as it did equally to muddy catchments in Northland.
“So I think it’s really important that the regions keep to choose the environmental limits that are appropriate to catchments and their regions,” he said.
“And there may be some catchments that are really, really valuable, that they say, look, we’re not happy with the current state of water quality, we want it to improve.
“We’re not going to rely on a national line.
“So what we actually need to do is pick a limit that meets our community expectations.”
EDS CEU Gary Taylor was clearly surprised by Court’s statement and asked him to confirm it.
“We haven’t got to that level of detail yet, but our vision is that regions should be free to choose the limits that are most appropriate for their communities and that their communities will get to have the final say.”
Taylor: “So, no national bottom lines for fresh water?”
Court: “That’s right.”
But ACT and National do appear to agree on a potentially highly controversial and difficult-to-implement proposal that would see people, like farmers, compensated if the RMA restricted some activities on their farms for environmental reasons.
The most common example given is where the local Council designs a patch of bush or a wetland on a farm as a “Significant Natural Area” (SNA). The designation may limit the farmer’s ability to use that land.
In line with the emphasis on private property rights that Bishop talked about, the proposal is that the owner of any land with environmental restrictions placed on it would be compensated.
“It’s really important that farmers have the right to farm,” said Court.
“Now, where there are environmental effects, we’re going to have to make sure that these are managed within environmental limits.
“This is all yet to be designed in the system, but we’re certainly keeping in front of mind that private property rights, the right for people to use their property to carry out a business or activity, are also a really important part of the system and that’s what the Planning Act is intended to uphold.”
Part of that will involve what are called “takings”, a term that derives from the United States and usually applies there to land being taken from a private owner for the public use..
“Where we’re at with the decision-making process is that Mr Bishop and I are going through a series of papers where we’re providing instructions to Ministry for the Environment officials to come back and then further particularise the architecture and details of the legislation,” Court said.
“I’m not up to a point where I can talk to you about how it’s going to work for an individual farmer facing an environmental limit and having a current land use but what I can tell you is that at the moment when it comes to say things like indigenous biodiversity, a lot of farmers, and landowners have had these.
“Now that’s costless to the people in regional councils who are doing this.
“They can sit there and get out their felt-tip pen and paint these layers on somebody’s property, and the person whose land is restricted bears all costs for an apparent public good.
“When it comes to the regulatory takings regime, we want to make sure that those who are getting the benefits, public benefit, they pay the price.”
It’s who “they” are that will pay; that is the problem.
The EDS’s RMA Reform director, Greg Severinsen, asked how much cash was on the line.
“And who would pay?” he said.
“Councils, really?”
He said it could have a chilling effect on Council regulation.
“Councils simply wouldn’t do it if they had to pay for it,” he said.
Ironically, if Councils had to pay compensation to, say, farmers, then those farmers would likely be local ratepayers and thus end up paying themselves through their rates for their compensation.
The proposal got only qualified support from the Employers and Manufacturers Association (EMA) Head of Advocacy and Strategy, Alan McDonald.
“I do see a real problem in the regulatory taking proposal,” he said.
“It’s a very difficult thing to do.
No one’s touched on that water side; that’s probably the most complex of the lot.
“Regulatory takings does work if you do it right.
“There are examples here already and around the world where it has worked, but they tend to be more in the urban environment than they do in the natural environment.”
McDonald has worked since 2016 with the EDS, Infrastructure NZ and the Property Council on the campaign to reform the RMA.
“The certainty thing is the most important thing for me, because it’s certainty for environmental outcomes and it’s the certainty for economic and growth outcomes as well,” he said.
“And at the moment we don’t have any of that.
”As Gary and his team, nine years ago, worked out, the current RMA, which we’re now back under, doesn’t work for the environment.
“So, how we fix that is as important, if not more important, than how we get that balance between the economic and growth side of it, and the environmental side.
And there is a cost. There will always be a cost, and what are we prepared to accept as that cost, how far do we want to go, and how far do we want to improve the standards of all the things that we would like to have around the country?”
But before that balance between growth and the environment can be reached, it would seem a balance between National and ACT might be needed first.
