The Resource Legislation Amendment Act and national policy statement amendments in 2017 have set in motion changes that will have far-reaching impacts into 2018 and beyond. James Gardner-Hopkins, President, Resource Management Law Association (RMLA).
Last year finally saw the passing into law of the Resource Legislation Amendment Act 2017 (RLAA). While a shadow of its former self, it is still the most significant resource management reform package in the 25 or so years of the life of the Resource Management Act 1991 (RMA).
It follows the continuing fall-out from the Supreme Court decision in New Zealand King Salmon in 2014, which declared the New Zealand Coastal Policy Statement 2010 (NZCPS) all-powerful by putting it ahead of Part 2 of the RMA (its purpose and principles) when making decisions on plan changes.
In that case, the Supreme Court rejected the ability of decision makers to resort directly to Part 2 and apply what was called an “overall broad judgment” in making a decision on a plan weighing the competing aspects of section 5 and Part 2 (ie, development and protection).
A war currently rages in respect of whether that same approach should apply to resource consents, which would cut out access to Part 2 in deciding consents applications unless the relevant plans were invalid, uncertain or incomplete in some way.
Hopefully, the Court of Appeal will soon provide some much needed guidance following its hearing (on November 22-23, 2017) of the R J Davidson appeal.
I should declare at this point that I may shoulder some responsibility for the outcomes on these matters, having been Counsel in both the King Salmon and Davidson proceedings. Whatever the outcome, all users of the resource management system will welcome greater certainty and understanding about the framework under which planning and consenting decisions are to be made.
National Planning Standards
Putting those vexed issues to one side, the RLAA introduces the powerful tool of National Planning Standards; new “collaborative” and “streamlined” plan making procedures; and significant changes to consenting notification and other processes (particularly in respect of residential activities).
Many of the changes only took effect on October 18, 2017, so implementation issues and best practice approaches have yet to emerge. While many of the initiatives were roundly criticised as unnecessary or inappropriate, resource users and managers (ie, councils) are looking to take advantage of the new options and processes available to them.
For example, new Minister for the Environment, David Parker, is currently considering a request to use the streamlined plan process for the Tauriko West Urban Limit Change in the Bay of Plenty.
Anecdotally, other councils are also considering the process for significant matters facing their districts or regions. The collaborative process has also been mooted, for example, for addressing coastal hazard issues.
National Policy Statements
We also now have the 2017 amendments to the National Policy Statement on Freshwater Management 2014, and obligations under the National Policy Statement on Urban Development Capacity 2016 starting to kick into effect.
It is unclear what the new government’s priorities are for additional national policy instruments, but further national policy statements and national environmental standards can be expected to be advanced in 2018. Perhaps the National Policy Statement on Indigenous Biodiversity will be dusted off the shelves to see the light of day again.
Ruataniwha & Whanganui River
Last year also saw a number of significant decisions in the environmental space. The Supreme Court hammered the final nail into the coffin of the Ruataniwha dam, while the Environmental Protection Agency has given hope to Trans-Tasman Resources in granting (in a somewhat controversial split decision) marine consents for offshore mining in the South Taranaki Bight.
This decision, unsurprisingly, is subject to appeals (seven) scheduled for hearing in the High Court in April 2018. The High Court’s guidance on information requirements, the precautionary approach, adaptive management and other matters in the context of a marine consent application are long overdue.
Another notable outcome in 2017 was the Whanganui River gaining legal personhood under the Whanganui River Claims Settlement Act 2017. It joins Te Urewera, the former National Park, which was also granted legal personhood when Tuhoe settled with the Crown in 2014.
Marine and Coastal Area Act
Last year also saw the filing of numerous claims for customary marine title and protected customary rights under the Marine and Coastal Area (Takutai Moana) Act 2011 (MACA).
MACA required applications to be made within six years of it coming into force, ie, by April 3, 2017. By last count, 195 applications were made. They are now working their way through the MACA process in the High Court.
In terms of Maori issues, 2018 will probably also see the first Mana Whakahono a Rohe (MWR) or Iwi Participation Agreements entered into between councils and iwi and / or hapu. MWRs were a controversial feature of the RLAA, although many people thought they just reflected current or expected good practice.
In any event, where an MWR is agreed, greater certainty will be given to councils, applicants, submitters and the relevant iwi and / or hapu as to how resource management issues affecting that iwi and / or hapu should be approached.
Debate will no doubt also rage in 2018 (if not beyond) as to whether the RMA needs to be replaced by entirely new legislation. The seeds for that were sown some time ago, but the concept has gained increasing traction including through the work of the Productivity Commission and Local Government New Zealand.
The Resource Management Law Association welcomes discussion on the topic, and its 2018 conference “Reform or Transform” will provide a key platform to continue that conversation.
Also looking ahead in 2018, there has been some visionary thinking by Greater Auckland on reviving and building our rail networks, supported by Labour’s recent announcement of its intention to introduce fuel tax legislation; by Auckland Council in terms of weatherproofing future urban developments; and by Infrastructure New Zealand in terms of its Innovation City proposal, which may offer a viable solution to the current housing crisis.
Decisive leadership from the new government is already providing greater certainty and is putting sustainable development and environmental equity back on the agenda.
And, early in 2018, finding the best solution for hosting the America’s Cup in 2021 will be on the agenda too. That is expected to require special legislation, as was passed for the Rugby World Cup as well as for the first hosting of the America’s Cup in 1990.
This article was first published in the Perspectives 2018 issue of NZ Local Government Magazine.