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How the government’s plans to reform the RMA are playing out

31 May 2024

| Author: Richard Gardner

The government is moving at speed to implement the changes it promised to the country’s resource management system in its 100-day plan.

The first of what appear to be several casualties of the previous government’s work was repealing the massive Natural and Built Environment Act 2023 (NBA) and its companion Spatial Planning Act 2023. Those Acts were passed in August last year and were repealed before Christmas, as promised.

But surviving the repealed legislation is the fast-track consenting process, which found favour on both sides of the House following its original inception in 2020 as a covid-19 recovery tool.

It is set to stay until the inclusion of a replacement fast-track regime in the Resource Management Act (RMA) can be completed, with the transitional and saving provisions in the repeal legislation providing for fast-track consenting for significant projects in the meantime.

The repeal Act also extends the regional councils’ freshwater planning deadline in the RMA by three years to 31 December 2027, to provide time to replace the National Policy Statement for Freshwater Management 2020 (NPS-FM).

Regional councils and unitary authorities are responding differently to the government’s new approach.

Some councils are well advanced and have already notified freshwater planning instruments incorporating the existing NPS-FM. Others less advanced are undertaking background work in preparation for the revised notification deadline.

Others still have put their freshwater planning processes on hold altogether. Councils and those looking to participate in freshwater planning processes remain in limbo, awaiting the revised national direction on freshwater.

On 31 January 2024, Chris Bishop, the minister in charge of RMA reform, issued what has turned out to be the first of several open letters, immediately followed by a joint press release with Resources Minister Shane Jones on 2 February 2024, in which they set out their aspirations for the new fasttrack consenting regime.

It was introduced to Parliament on schedule on 7 March, in the form of the Fast-track Approvals Bill, with its purpose being “to provide a fast-track decision-making process that facilitates the delivery of infrastructure and development projects with significant regional or national benefits”.

Submissions on the bill, which is turning out to be highly controversial, closed on 19 April, with some 22,000 individuals and groups having their say on the proposal.

 

The proposals

The new regime proposes a one-stop-shop for all necessary authorisations under a range of different Acts.

Major projects under the RMA often also require the exercise of powers under different regimes, including the Crown Minerals Act, Wildlife Act, Conservation Act, Reserves Act and others.

To give ministers the power to grant authorisations across the board is a significant expansion of their existing powers and there are some legislative acrobatics to achieve that. The new regime is beginning to look more akin to the sweeping powers of the Urban Development Act, which was introduced in 2020 but has been barely used since.

Nevertheless, the new bill provides a significant role for expert panels, who will assess the details of proposals and make a recommendation back to the ministers. The processes for approvals under the various Acts are described in a set of schedules – for example, Schedule 4 sets out the process for approvals under the RMA.

Also promised by the ministers in their 2 February 2024 press release were changes to the NPS-FM, which are said to be urgent and necessary. On 28 March, Bishop issued the second of his open letters, in which he confirmed these and other urgent changes would be contained in a first RMA amendment bill.

He later spelt out the changes in his 30 April open letter and subsequently introduced the legislation to Parliament on 23 May, in the form of Resource Management (Freshwater and Other Matters) Amendment Bill. In his 30 April open letter, the minister also announced that he was inviting views on what should be included in a second RMA amendment bill, expected later in the year, seeking suggestions that were “targeted, practicable and in line with the government’s stated policy priorities”.

 

Long-term solutions

The focus of the second bill will be on “changes that will have real impact in the short term”. The minister also confirmed phase three of the proposed reforms would involve a “longterm solution to replace the RMA”.

As introduced in the first bill, the first round of proposed changes to the RMA are intended to:

  • exclude the hierarchy of obligations contained in the National Policy Statement for the NPS-FM 2020 from resource consent application and decision-making processes until the NPS-FM 2020 is replaced;
  • align the consenting pathway for coal mining with other mineral extraction activities across the NPS-FM 2020, National Policy Statement for Indigenous Biodiversity 2023 (the NPSIB 2023) and Resource Management (National Environmental Standards for Freshwater) Regulations 2020 (the NES-F);
  • suspend for three years local authority obligations under the NPSIB 2023 to identify and include in district plans new significant natural areas (SNAs) and extend to 31 December 2030 the date by which local authorities must publicly notify any policy statement or plan or changes necessary to give effect to NPSIB 2023 provisions about SNAs;
  • amend the Resource Management (Stock Exclusion) Regulations 2020 in relation to sloped land by repealing the map of low slope land and associated requirements, meaning that exclusion of affected stock types will instead be managed by freshwater farm plans and/or regional plan rules;
  • repeal the permitted and restricted discretionary activity regulations and associated conditions for intensive winter grazing from the NES-F, but retaining the standalone regulations to minimise adverse effects on freshwater from any pugging and to ensure a vegetated ground cover is established after livestock have finished grazing; and
  • make amendments to speed up the process to prepare or amend national direction under the RMA, by:
  • making it easier to make simple updates to national direction;
  • removing unnecessary prescription from the process to make or amend a national direction; and
  • amending s 32 evaluation requirements as they relate to a national direction to make them more flexible and less onerous.

The bill also proposes consequential amendments to the Resource Management (Freshwater Farm Plans) Regulations 2023 and the Resource Management (Infringement Offences) Regulations 1999.

Other changes alluded to in the coalition agreements that sit behind the formation of the present government are:

  • streamlining the plan preparation process in Schedule 1 to the RMA;
  • replacing the RMA with new resource management laws premised on the enjoyment of property rights as a guiding principle;
  • simplifying related statutes, including the Public Works Act and the Reserves Act;
  • giving councils flexibility over implementing the Medium Density Residential Standards by making them optional;
  • replacing the NES-FW to better reflect the interests of all water users, alongside the NPS-FM; and
  • commencing an urgent review into the implementation of the National Policy Statement on Indigenous Biodiversity.

The previous government produced significant changes to existing environmental law and policy. It seems the coalition government will continue this state of flux by reversing changes made in the last term, making additional changes and, eventually, putting in place new systems of its own. ■

 

Richard Gardner is an Auckland barrister and a member of The Law Association’s Environment and Resource Management Law committee

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