Local Government New Zealand (LGNZ) is urging the government to get moving on introducing new climate adaptation legislation before this year’s election as pressure mounts on the country’s leaders to act.

The call comes as the government’s plans to reform the resource management system face a raft of questions about their durability from Parliament’s own environmental watchdog, and a rare intervention from Chief Justice Dame Helen Winkelmann who warns the reforms risk denting public confidence in the courts by hitting its workload and resources.

“[The bill] has implications for access to the courts, the ability of the courts to perform the functions conferred on them, and the maintenance of public confidence in the courts,” she says in a written submission.

The bill deals with issues that are “frequently litigated”. But the judiciary isn’t aware of any analysis done by officials about whether the Environment Court will need more funding to handle an expected increase in cases, Chief Justice Winkelmann says.

Too fast?

Expected to report back to Parliament in early June, the environment select committee has finished hearing oral submissions on the Natural and Built Environment Bill and the Spatial Planning Bill – two marque pieces of government legislation set to replace the 32-year-old Resource Management Act and improve how the environment and development are managed in the future.

But there is concern that the select committee process is moving too fast, with committee chair and Green MP Eugenie Sage wanting the bills sent back for additional consultation. A third proposed statute, the Climate Adaptation Bill, will aim to address the managed retreat or relocation of key assets, activities and sites of cultural significance to Māori and non-Māori, away from vulnerable areas. It is yet to be introduced to the House of Representatives. Managed retreat has quickly emerged as an issue after flooding on Auckland Anniversary Day and the destruction wrought by Cyclone Gabrielle a week later.

LGNZ supports the government’s intention to develop the Climate Adaptation Bill. But the group, which advocates for the country’s local councils, is concerned the bill is on a “considerably slower track” than the other two pieces of reform.

“Councils and their communities have been grappling with how to build resilience and adapt to the impacts of climate change for many years. These impacts are increasingly more frequent and intense,” LGNZ says. “Councils and communities see a real need for much greater clarity around how to build resilience and adapt.”

LGNZ says it can’t assess whether the overall system will be less complex and more cost-effective and efficient than the current RMA “when a critical component of the reform package remains missing”. It’s encouraging the government, with the benefit of local government input, to make “considerable progress” on the climate adaptation bill “before the end of this parliamentary term”.

As quickly as possible

LGNZ isn’t the only submitter calling for action. Lawyers for Climate Action, a non-profit group of more than 500 lawyers advocating for net-zero carbon emissions, says the bill should already have been introduced and passed by Parliament. However, the group is looking forward to its introduction “as quickly as possible” to address the complex issues associated with managed retreat. Similarly, the Climate Change Commission “eagerly” awaits the release of the climate adaptation bill.

In its submission, commission chair Dr Rod Carr says the overall system must enable effective adaptive management. “Providing clarity around how adaptation decisions will be funded and financed is also important to avoid uncertainty and to avoid decisions being made now from locking in maladaptive outcomes for the future.  “An effective resource management system that promotes positive climate outcomes is an important step for a thriving, climate-resilient and low-emissions Aotearoa New Zealand,” Carr says.

Wynn Williams associate Kate Dickson tells LawNews New Zealanders want to see how the government plans on responding to the need for guidance on managed retreat. There has been a sense of urgency for some time in passing legislation such as the Climate Adaptation Bill, says Dickson, a specialist in local government and environmental law. The scientific community has repeatedly warned extreme weather events will become more frequent and severe as the planet gets warmer.

In addition to reducing carbon emissions, the need to shore up infrastructure has been demonstrated by the weather events this summer, she says. “There will be significant societal pressure on any future government to progress its response sooner rather than later. ”Climate Change Minister James Shaw is aware of the calls for action. He told RNZ in late February he hoped to get the adaptation bill at least introduced to MPs – if not fully passed – by the end of the term.

But the bill can’t be rushed, he said. While New Zealanders would have to cope with extreme weather events on an ad hoc basis until the Climate Adaptation Act is enacted, “we do need that framework to be really well thought through because the long-run consequences of getting it wrong would be catastrophic.” Sage has echoed her leader’s comments in respect of the two bills being considered by the select committee she chairs. Politik’s Richard Harman has reported the Green MP wants the proposed statutes sent back for more public consultation after the committee has “beaten it into the best shape”, amid concerns the process is proceeding too quickly.

Keeping powder dry

National is reserving its position on the reforms, “but there is a strong case that the government should seriously consider going back to the drawing board,” says National RMA reform and urban development spokesperson Chris Bishop. At the party’s Bluegreens forum in late February, Bishop opened a panel discussion by saying National was deeply sceptical the new resource management bills would result in “faster, cheaper, better” outcomes.

He was primarily concerned the reforms would lead to increased bureaucracy, starker democratic deficiencies and there was a lack of clarity or certainty about how trade-offs would be made, according to the Bluegreens’ March 2023 newsletter. Nelson Mayor and Bluegreens co-founder Nick Smith, a former National environment minister, challenged the party to support the reforms’ overall direction. As reported by Politik, Smith said it was time the RMA was replaced, “and a lot of work has gone into its replacement. It’s not all bad.”

In a keynote address, National Party leader Christopher Luxon told forum attendees “clearly and unequivocally” climate change was real, addressing it needed cross-party cooperation and New Zealand must play a role internationally on mitigation. Luxon’s comments underscored his and deputy leader Nicola Willis’ reaction days earlier to comments from their own List MP, Maureen Pugh, who remained unconvinced human activity has contributed to rising temperatures.

The leadership duo disagreed with Pugh, with Luxon saying that denying or minimising climate change was an unacceptable position to hold in his caucus. Pugh later walked back her comments, saying she regretted them. “I accept the scientific consensus that human-induced climate change is real and there is a need to curb greenhouse gas emissions. We are seeing the impact of climate change in the cyclone that has devastated so much of New Zealand.”

‘Far-reaching reorganisation’

Simon Upton, Parliamentary Commissioner for the Environment, questions whether the government’s first two resource management bills can deliver an enduring framework – even if they are substantively amended. In his submission, Upton says the proposed statutes amount to a “far-reaching reorganisation” of environmental management.

They have considerable merit in strengthening national regulations, setting environmental limits and establishing coherency on development in and between regions, says Upton, a former National environment minister.

But he doubts whether handing responsibility to unelected regional planning committees and holding decision-makers to account in promoting a wide range of social, economic, and environmental outcomes matches up with the other objectives. “In trying to be all things economic, social, cultural and environmental to all people, the purpose clause is filled with ambiguity. It needs to be crisper and more focused,” he says.

In their current form – “the first time we have been able to appreciate how the whole system will fit together”, Upton says – the bills swap the uncertainty of new law with “novel definitions and complex ambitions” for the relative certainty of amending the existing RMA. “Either way, the task facing the committee is more than just simple drafting changes.”

The bills reveal that “much work remains to be done”, Upton says. “The time needs to be taken to do that work. Otherwise, it will be left to the courts to determine what this legislation means and to Parliament to make running repairs as it was so frequently called to do with the RMA.”

Chief Justice intervenes

In a rare move, the chief justice has put MPs on notice the reform plans will hit the judiciary’s workload and resources, potentially denting public confidence in the courts. By convention, the judiciary makes submissions to select committees only on matters relevant to its independence, the administration of justice, the operation of the courts and the rule of law.

The lengthy and complex Natural and Built Environment Bill has attracted such a response from the head of the judiciary, who told policymakers their scant consultation with judges will have an impact on their judicial functions. “The judiciary’s experience is that extensive legislative reform is usually followed by a period in which the meaning and effect of the new legislation is litigated through the courts,” Chief Justice Winkelmann says.

‘Strong, if not compelling’

As the reforms enter the final stretch, attention is turning to how the country will handle managed retreat. Past instances have shown how difficult it is to get right after disaster has struck. But proactive managed retreat will likely be even harder to implement, says the Environmental Defence Society (EDS), a non-profit organisation committed to improving environmental outcomes.

In the first of three working papers, ahead of a final report expected at year’s end, the EDS explores the purpose of managed retreat, potential underlying principles, and what it might cost and who might have to pay. “It is clear that because of increasing climate risks, some communities will not be sustainable in the longer term and will need to move. The question is how this might be achieved and what support might be given to affected communities and by whom,” says EDS Policy Director Raewyn Peart. In many cases, managed retreat will be the most cost-effective option. And, if done well, it can have social and environmental benefits, Peart says. But it raises many tricky issues.

“Do we leave people to suffer losses and manage as best they can on their own? Or do we collectively provide the resources to assist those who are most affected?” A separate report, prepared for EDS by Emeritus Professor of Public Policy Jonathan Boston, has concluded a public compensation scheme will be preferable to a policy where the government mandates insurers cover risks associated with sea-level rise and more severe flooding.

“Strong, if not compelling arguments exist that providing some form of public compensation, such as incentivising voluntary cooperation, will minimise the need for state coercion and important legal precedents, especially those related to the compulsory acquisition of private property, will be upheld.”

Arguments against public compensation include the potentially large fiscal costs and equity issues in compensating wealthy owners of beach-front properties.

However, Boston concludes “all the objections to any form of public compensation are unconvincing. Against this, the objections are certainly relevant to the question of how a compensation scheme should be designed”. ■