The Government’s unveiling yesterday of its proposed resource management reforms has been greeted so far with a surprisingly low-key response.
So far, criticism has been muted.
There was, however, one jarring note yesterday. Though ACT Leader David Seymour joined PM Christopher Luxon at the launch, there was no-one from New Zealand First.
That it will be the detail that will matter was a recurring theme among the NGOs invited to the Beehive for the launch.
And if there was a second theme, it was that the Select Committee will be crucial.
It is apparently already conceded within the Beehive that the Committee will need to “panel beat” the Bill into shape.
However the early signs are that a consensus from within the Committee might be at least partly possible.
RMA Reform Minister Chris Bishop said the Labour Caucus was briefed on the Bill last week, and yesterday Labour Leader Chris Hipkins said he was willing to try and reach a bipartisan agreement on key parts of the Bill.
However, Bishop made it clear yesterday that a fundamental centre-right political philosophy underpins the Bill.
“At the heart of these reforms is the enjoyment of private property,” he said.
“Political democracy in the world has never succeeded without adhering to the fundamental principle that true liberty cannot occur without the protection of private property.
“Secure property is the shell that protects citizens from arbitrary power.
“Property rights affirm that individuals are not subjects of the state but stewards of their own destiny.”
That all sounds fine as a political slogan, but the reality of the legislation introduced yesterday is that far from conferring freedoms on the individual, it consolidates more power at the centre.
The Explanatory Note to the first of the new Bills, the Planning Bill, candidly concedes this.
“Central government has a broader and more active role in shaping and overseeing the new system,” it says.
There are two Bills- a Planning Bill and a Natural Environment Bill.
Broadly speaking, the Planning Bill deals with spatial plans, while the Natural Environment Bill is broader and is where environmental protection debates will focus.
In the new system, there must be a combined plan for each region.
A combined regional plan will consist of the regional spatial plan, the natural environment plan for the region under the Natural Environment Bill and a land use plan for each district within the region under the Planning Bill.
The legislation was obviously drafted at least a fortnight ago, before the Government announced it was scrapping regional councils.
The combined regional plan was to have been developed by the regional councils, but presumably will now be the responsibility of the new Combined Territories Boards (CTBs), consisting of a committee of local Mayors, which is scheduled to replace the Regional Councils.
The Councils (or CTBs) will be the “permit authorities” who will issue what used to be called consents but will now be called “permits”.
But because the legislation providing for the CTBs will not be passed before 2027, and because RMA Reform Minister Chris Bishop wants the new Bill to begin to come into effect in the middle of next year, there remains a question of who will draft the new plans and issue the new permits.
The intention of the reforms is straightforward. The statement of purpose in the Bills simply says: “The purpose of this Act is to establish a framework for the use, protection and enhancement of the natural environment.”
In contrast, the original 1991 Resource Management Act said: “The purpose of this Act is to promote the sustainable management of natural and physical resources.”
The addition of the word “use” is the big change. These reforms are first and foremost about economic growth.
The Prime Minister, Christopher Luxon, stated their intention bluntly.
“We are proposing a more permissive, consistent and predictable system that unlocks investment, reduces delays, and gives businesses confidence to plan and to grow,” he said.
And so, the Government has taken upon itself the direction of the whole planning process by giving itself a set of new powers.
The Minister for the Environment will be responsible for recommending, making, and approving national instruments, setting through national standards, limits to protect human health for freshwater coastal water, land and soil, and air and methodologies for regional councils to follow when setting ecosystem health limits through natural environment plans and recommending the issue of, and monitoring the implementation of, water conservation orders:
The Minister also has powers to intervene, including to—
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- Direct regional councils and territorial authorities to prepare a plan, plan change, or variation to a proposed plan to address an issue.
- Direct a local authority to achieve an outcome specified by the Minister.
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Those are only some of the Minister’s powers.
However, the big one is the power to make national instruments. These will override any local planning provisions, and already it is clear the Government proposes to use this power widely.
In effect, the Minister can plan by dictate and reduce the regional planning authorities to little more than permit administrators.
There is even a proposal to transfer enforcement to a so-far undefined series of external regulators responsible to the Minister.
The leader of one of the environmental NGOs present for the launch simply said that it paid to remember this legislation was drafted by the same people who drafted the Fast Track Planning Approvals legislation.
Bishop said the Government had developed what he called a funnel, which started with the Central Government, where the Government set clear national policy directions, standards, and binding environmental limits (e.g., for clean air and water).
Each step was obliged to work under the provisions of the step above it so that regional and local governments would then create combined regional plans, guided by the national directions and limits.
At the final stage, individual consent and permit applications would be processed.
Because major policy decisions had already been made and settled at the higher levels of the funnel, councils could no longer re-litigate those issues.
Thus, everything begins with the Minister.
Bishop freely acknowledged that under the RMA, the Government had less control.
“One of the critical failures of the RMA was the lack of clarity from central government,” he said.
“There will be a clearer national direction, more consistency through nationally set policy direction, which will lead less up for debate and deliver certainty across the country.”
And Bishop said there would be more standardisation.
A potentially controversial area will be the ability of the Minister to proscribe national environmental targets.
This will be particularly important to farmers who have long argued that freshwater quality targets should be set catchment by catchment rather than having a one-size-fits-all approach imposed on them.
The ACT party Under Secretary for RMA Reform, Simon Court, who has done much of the heavy lifting on the proposed changes, argues that local targets will still be possible.
“It’s quite clear that in the legislation we provide for communities to determine which are the environmental limits most appropriate to their needs,” he said.
“And that requires communities and decision makers to balance not just ecology but also social, cultural and economic factors because there are some places in New Zealand where people will say it’s really important to protect the ecological values of particular waterways above our need potentially for water for other purposes.
“But if we don’t give communities that choice and it’s all coming from Wellington, then essentially you will sterilise large parts of the country from being able to take advantage of, say, modern farming practices.”
But though the legislation provides for local communities to set targets, it also empowers the Minister to override those decisions.
A future Minister might not be as farming-friendly as an ACT-National one.
This worries the Property Council.
Their CEO, Leonie Freeman, said her organisation had some reservations about the stability of national policy direction over time.
“Future Ministerial changes could have major impacts on planning approvals, so durability and cross-party alignment will be important,” she said.
But one area which will be strictly local will be the proposal for Councils to compensate property owners for environmental requirements imposed on them, such as the declaration of a stand of bush on a farm as a “significant natural area.”
The Natural Environment Bill offers a range of ways the compensation could be made from straight cash to planning concessions on other parts of the farm to rates relief.
However, Environmental Defence Society CEO, Gary Taylor, believes there is a risk here that Councils may simply walk away from making environmental declarations because of the potential cost.
“At a time when councils are having rating caps, this is going to have a chilling effect on their ability to regulate for environmental protection and is going to create a lot of gaming of the system,” he said.
“We’re going to have a hot cluster of litigation around people wanting their rates reduced because of what the plan says.”
Labour has reserved its position on the proposals.
Labour leader Chris Hipkins told RNZ the party was still working through the details of the roughly 750 pages of legislation, particularly the regulatory relief aspects.
“That is the bit that we’re going to want to get into the detail of, because that could be very, very difficult for future governments, for future lawmaking, in the public interest,” he said.
“If you have to be compensating for every sort of infringement on somebody’s unfettered right to do whatever they want with their property, that has potentially far-reaching implications.”
But he indicated Labour would not repeal and replace the legislation – opting instead to make changes.
“I think the repeal and replace cycle needs to end. That doesn’t mean that there won’t be amendments, but the old idea of constantly going back and starting all over again has to stop.
Former Labour leader and now Wellington Mayor Andrew Little was generally positive about the proposals.
“I think everybody’s desperately wanting simple systems, more coherent systems across regions, as cities get bigger and become more contiguous, it makes sense to be able to rationalise planning systems,” he said.
But he was a little more sceptical about Bishop’s claims that the reforms were all about property rights.
“I think the claims about the underlying principle of protecting property rights are obviously important, but it’s got to be remembered that property rights can conflict too.
“So what’s good for one property may conflict with the rights of another property. “
And that is the fine print and reality that the Select Committee will now need to deal with.
This will be the most important legislation the Luxon Government passes. If it can be done with bipartisan agreement, that will be widely welcomed.
There will be a debate about the role of central versus local Government, and it would not be surprising if Bishop has to trim some of his property rights rhetoric and pull back some of the sweeping powers he is proposing to give himself.
