Two of the country’s most eminent environmentalists, both with longstanding connections to the National Party, yesterday separately told a Parliamentary Committee they were not totally convinced that the Resource Management Act reforms would offer any better protection to the environment.

Simon Upton, the Parliamentary Commissioner for the Environment, was the Minister for the Environment in 1991 in the Bolger government when the original resource Management Act was passed and Guy Salmon, a long time environmental activist and consultant, was one of the founders of National’s BlueGreens environmental ginger group.

What they had to say yesterday to Parliament’s Environment Committee cuts right across the thrust of Judith Collins arguments for reform of the RMA.

When she was her party’s RMA spokesperson, she promised to repeal the RMA and replace it with transitional legislation while it worked out a longer-term “developer-friendly” solution that provided predictable outcomes.

But Upton, in his submission to the Environment Committee Inquiry into the Natural and Built Environments Act (NBEA), said the bill must provide a measure of priority for the natural environment.

“Whatever social, cultural and economic aspirations we may have are only achievable if we have secured the biophysical systems on which life depends,” he said.

“To put it starkly, the economy and society are a subset of the environment.

“The current drafting does not guarantee that as it stands, there’s a risk that the bill becomes something of a blank canvas.”

The draft defines the purposes of the Act as being to enable  Te Oranga o te Taiao  (Environmental health)to be upheld, including by protecting and enhancing and protecting the natural environment; and also to enable people and communities to use the environment in a way that supports the wellbeing of present generations without compromising the wellbeing of future generations.

Upton has proposed that it be subtly rewritten so that the second purpose (enabling people to use the environment) would be subject to the first purpose, protecting and enhancing the environment.


The distinction came sharply into focus in an exchange at the Committee with National MP Nicola Willis, who is also her party’s housing spokesperson.

“I think, as politicians in our communities regularly, and something which you will be familiar with, which are people’s complaints about the RMA,” she said.

“It is often seen through the lens of why is it so difficult to get a consent? Why is it so expensive? Why is there such a lack of clarity and certainty? Why do things vary so much from one local government area to another? Why is there cost and delay?

“Do you think it is possible to expand the range of permitted activity or development while at the same time protecting the environment?”

Upton said he couldn’t see why it wouldn’t be possible to expand the range of things that were permitted in a way that was environmentally sensitive.

“It comes down to how you set up that framework,” he said.

“And as I’ve said, I think the environment comes before the social and the economic because ultimately we are dependent upon that.”

Upton was also critical of the amount of discretionary power being handed to the Minister under the draft Bill.

Environmental limits on such things as biodiversity, coastal waters and freshwater would be put by way of regulation into the proposed National Planning Framework, which would form an overarching template for all regional and district plans.

The draft also contains 16 environmental outcomes that the National Planning Framework would need to achieve.

These cover a huge range of activities from providing affordable housing and the provision of infrastructure at one end of the spectrum across to ensuring the quality of air, freshwater, coastal waters, estuaries, and soils was protected, restored, or improved.

Upton said the scale and scope of the outcomes meant decision-makers from the Minister downwards would be thinking about a great deal more than the environment when they came to consider environmental planning.

“I think there are practical limits to the number of outcomes public agencies can be asked to direct, let alone do so effectively and coherently,” he said.

“These will invite the close input of at least half the cabinet.

“The Minister for the Environment will be competing for attention with a wide range of developmental mandated colleagues.”

Upton proposed that instead, many of the outcomes should be part of the proposed Spatial Planning Act (which he also suggested should be merged into the NBEA)

“At least a quarter of them relate squarely to the built environment,” he said.

“The built environment is different.

“It’s a developed, created environment, and it is developed and created spatially.”

The draft Bill’s creation of environmental limits is already controversial.

At the recent Environmental Defence Society conference, some speakers worried that limits could become low-level targets and that it might be better to instead define targets.

Upton said it should be Parliament, not a Minister by regulation, who defined how limits went into plans.

In my view, Parliament should give environmental limits more substantive content in primary legislation by clarifying that their ambition is where necessary, restorative.

I have proposed an amendment that would make it clear that environmental limits must, in degraded environments, lead to improvement beyond the status quo,” he said.

“It would preclude a minister from deciding to interpret the clause to support whatever trade-off he or she favours and avoid limits being set at the current lowest common denominator of already degraded ecosystems.

“I would remind you all you must legislate on the basis that somebody who may not hold your values may wish to use the language to support something that you might not agree with.

“You must know what it is you want to achieve.”

Ecologic Foundation Executive Director, Guy Salmon

Salmon was also concerned about the way limits were included in the draft.

He said the draft lacked drivers for ambition in the setting of those limits.

“There is little to guide the setting of those limits other than the vague injunction of ‘improve things a bit,” he said.

“It reads like a checklist.

“It doesn’t read like a statement of goals.

“And it really ought to be the latter if it’s going to crunch through a lot of the decisions that need to be made.”

He too, argued that the limits should be defined by Parliament in the legislation rather than be left to the Minister to regulate in the National Planning Framework.

National’s Environment spokesperson, Scott Simpson, who also chairs the BlueGreens that Salmon founded, asked him as someone who had also been involved in the original RMA what he would do differently now.

“This is the most serious problem, really, that the Resource Management Act doesn’t properly deal with allocation,” he said.

“All it has is an assumption that first in, first served is what we do.

“And secondly, it has a provision for trading water permits, which has barely been used.

“So the big thing that we need to have in this bill, which isn’t in the present draft, but which I presume will appear next year, is an attention to principles of allocation.

“From my perspective, it’s quite important that efficiency takes quite a high role there so that if a water right is going to earn much more for the country, if it’s translated to another land use rather than its existing one, then we need to be able to do that.”

ACT MP, Simon Court asked Upton what compensation might be given to an existing consent holder if they had to give an allocation up.

“What rights do you have to pollute?” he replied.

“This is a fundamental philosophical question.

“And we have a system which has quite explicitly protected existing uses, existing practices all the way through.

“And so over decades, I think we’ve built up expectations that we had rights to degrade the environment.

“Now, all I can say is that I don’t think when we’re talking about common property, water, air, that anyone’s got a right to pollute it.

“So whether or not you compensate is a matter of practical political economy.”

Both Upton and Salmon suggested that it would be preferable if the Government’s local government reform was accomplished before the NBEA Bill was passed.

Salmon said we needed larger local bodies which could take a broader view of their region.

“It seems really important that we create entities that not only cover both urban areas and rural areas, but they also have such big, important responsibilities that everyone has to know who their local councillor is,” he said.

“And we attract politicians who have real heft and can really make decisions.

“And that’s what’s missing, I think, from the governance arrangements that we have at the present time.”

Upton, a law graduate, reminded the Committee of what was at stake in reforming the RMA.

“I’ve taken the view all the way through that once this legislation is law, that it will be litigated,” he said.

“This cuts across every property right in the country.

“It cuts across the position of Maori.

“It cuts across the position of the quarter-acre section holder at the back of Gisborne.

“It cuts across absolutely everything.

“It’ll be litigated.”