Mike Doesburg, Partner at Wynn Williams and specialist in resource management and environmental law, looks at what lies ahead in terms of environmental law reform.
Last year was really something. In the resource management space, the year was dominated by the first stages of environmental law reform.
Three major Acts of Parliament were introduced and passed into law relating to marine farms, “freshwater and other matters”, and the new one-stop-shop of fast-track consenting. Sure there were big projects, major planning processes and important cases, but the constant beat of the RMA reform drum drowned out those other matters (at least for me).
Reform was not limited only to ‘core’ resource management law in 2024. The Government also had its sights on related systems, including customary rights law. While the Principles of the Treaty of Waitangi Bill received by far the most attention, amendments to the Marine and Coastal Area (Takutai Moana) Act 2011 are much more likely to pass into law and have a real impact on Te Ao Maori.
This article highlights some of the key changes on the horizon for 2025.
RMA reform
This year promises to complete the second stage of RMA reform – amendments to the RMA system (including national direction) to address infrastructure and energy, housing, farming and the primary sector, and emergencies and natural hazards. The Resource Management (Consenting and Other System Changes) Amendment Bill addresses all four of those issues as well as providing other “system improvements”.
While the changes seem to be well-intentioned, elements of the Bill have raised concerns about the trade-off between system efficiency and good outcomes. In particular, the Bill would prevent hearings on resource consent applications unless a council concluded it needs more information. Prospective consent applicants have raised concerns that they would be denied an opportunity to respond to adverse submissions or an unfavourable recommendation from council officers. Submissions on the Bill closed on 10 February 2025 and it is expected to pass into law by mid-2025.
The third and final stage of reform will see the RMA replaced with two new and distinct Acts: one focused on urban development and infrastructure, and the other dedicated to environmental protection and managing environmental effects arising from activities. The enjoyment of property rights will be the guiding principle for the new resource management system.
The Government has appointed an Expert Advisory Group to provide advice on the new resource management system. The group comprises Janette Campbell (Chair), Kevin Counsell, Gillian Crowcroft, Rukumoana Schaafhausen, Mark Chrisp, Paul Melville and Christine Jones. The Expert Advisory Group reported back to RMA Reform Minister Chris Bishop before Christmas last year.
The two new Acts are to be introduced to Parliament by mid-2025, which gives little time for key policy decisions and drafting!
Customary Marine Title
The Government introduced the Marine and Coastal Area (Takutai Moana) (Customary Marine Title) Amendment Bill in September 2024.
One of the purposes of the Bill was to overturn the Court of Appeal’s interpretation of section 58 of the Marine and Coastal Area (Takutai Moana) Act 2011, which contains the main statutory test for claiming customary marine title. The Amendment Bill was a direct response to a concern that the Court of Appeal’s interpretation was too expansive and would result in substantial areas of coast being subject to customary marine title orders.
In the time since the Bill was introduced, the Supreme Court released its first of two judgments in the appeal against the Court of Appeal’s decision in Whakatohea Kotahitanga Waka (Edwards) and Ors v Te Kahui and Ors [2024] NZSC 164.
The Supreme Court found that the Court of Appeal had taken an unduly narrow approach to the meaning of “substantial interruption” in section 58 of the Marine and Coastal Area Act, by finding that only interferences expressly authorised by statute are capable of substantially interrupting exclusive use and occupation.
The Supreme Court concluded that interruptions are not limited to those expressly authorised by statute. Examples of where customary rights may have been substantially interrupted by the activities of others include permanent structures, third party fishing and reclamation.
What does this mean for the Bill? It might be reconsidered, but my money is on it still being passed, which will have implications for customary marine title claims that have been heard (but not decided) as well as those that are yet to be heard.
Comment
So what does 2025 hold? Probably more of the same as 2024! RMA system reform is a key feature, with the conclusion of the second stage of reform and introduction of the third and final stage. Practitioners will no doubt be busy grappling with the uncertainty that change brings.
As if ‘core’ RMA reform is not enough, there are other important changes afoot that impact the resource management system, particularly in the coastal environment with the Marine and Coastal Area Act.
Love it or hate it, environmental law reform will remain a key theme in the resource management space for at least the next 18 months.