2012 in review: text of my piece for the Resource Management Journal on the changing legal landscape, and writing loudly on the political wall
All over the country, on land and at sea, the legal landscape is changing. In pursuit of balance, the National government is rewriting laws that have sustained and built our environment.
The results are good - in parts. Other parts so deeply undermine the precarious balance so far achieved, that they compromise the whole.
Passed in August, EEZ (Exclusive Economic Zone) legislation to manage our oceans was long overdue. Forest & Bird was pleased to see Environment Minister Amy Adams’ last-minute change to provide for sustainable management in its purpose clause.
And yet, the new Act remains weaker than its land-based equivalent: the Resource Management Act (RMA), which applies out to 12 nautical miles. There can be no doubt that Parliament’s 2012 intention differs from that in 1991; moreover, the Act will lack the Environment Court guidance on appeal that helped the RMA.
Conservation Minister Mrs Wilkinson is rewriting Marine Reserves legislation that has sat before Parliament since 2002, expected to govern reserve proposals out in the EEZ. Meanwhile, development hurries on. At the time of writing, government had not ruled out making oil exploration a permitted activity under EEZ regulations. Advice suggests this would be unlawful, contrary to both the spirit and the letter of the new Act. Once the regulations are done, the EEZ Act will commence.
Now, attention is turning to more local resource management.
Mrs Adams is considering TAG (Technical Advisory Group) proposals on RMA reform. There will be two RMA reform Bills, one of them introduced before Christmas, the other in 2013. The Crown Minerals (Permitting and Crown Land) Bill has also been introduced, and sent to the Commerce select committee.
In September Forest & Bird joined our colleagues - the Environmental Defence Society, Fish & Game, Guy Salmon from Ecologic, Greenpeace NZ, and WWF New Zealand - in an open letter to Mrs Adams about the TAG’s recommendation that sections 6 and 7 of the RMA should be rewritten. The letter expressed collective alarm that the government is considering such radical and poorly developed ideas, and explained at some length why.
The TAG has fallen foul of government policy. Far from simplifying and creating certainty, it would reopen 20 years’ worth of law and learning under the RMA to politicisation and litigation if its proposals were adopted. It would have the side-effect of requiring re-interpretation of the whole Act, and invalidating much of the local-level planning done under it.
The first RMA Bill, being called non-controversial by Minister Amy Adams, is of serious concern for urban trees, birdlife, and Auckland. If this is 'non-controversial', one can only wonder at what is to come.
Other suggestions include further “streamlining” of RMA and concession decision-making under the Conservation Act, to the likely disadvantage of the latter, if the Crown Minerals Bill is any guide.
That Bill gives effect to Ministerial promises made in July 2010, following consultation on mining in national parks. In it, the Conservation Minister’s powers are very cynically undermined.
Promises about adding Schedule 4 category land automatically to that schedule, not removing any land from the schedule, and publicly notifying “significant” applications to mine on public conservation land are kept. But what is “significant” is at the discretion of Ministers. A new “economic benefits” factor is to be added to access decision-making, and the Minister of Energy and Resources will have a new role. The Conservation Minister’s powers under various Acts to classify the land that she administers are given to the Governor-General by Order in Council, involving all Cabinet Ministers. The purpose clause of the Act is rewritten: from being an Act to restate and reform the law, to one that is about promoting mining.
The pattern of “balance” asserting itself in these laws, where some good things are offset by other things, where economic development is weighed against environmental protection - or worse, development is the priority and the environment can wait - is a fallacy.
The bottom lines written on to our statute books 20 years ago, perceived as obstacles, currently being dismantled, are our fulcrum. From 1987 to 1991, Labour and National together laid down some passable foundations. More pressing than the challenge of squeezing out an extra percent or two of compound growth is managing it, within limits.
According to the TAG, New Zealanders’ values had changed, therefore, the RMA was now out of date. According to Energy and Resources Minister Phil Heatley, “they [who have concerns] are not really New Zealand”.
And yet, New Zealanders’ love for nature showed again in 2010, when 40,000 of us occupied Queen St, 37,000 more wrote submissions, and the government backed down. Surveyed by DOC in 2012, 69 per cent of respondents agreed: conservation is at the heart of what it means to be a New Zealander.
There are some environmental boundaries it would be political suicide to cross. The government is testing them.