The RMA road map: infrastructure crossroads

To help the government’s goal of “building infrastructure for growth”, the foundations of the Resource Management Act are being quietly reviewed, without a scrap of evidence that infrastructure is being impeded by the current law

The headline bits — the Environmental Protection Authority, freshwater management — of ‘phase two’ of the Resource Management Act (RMA) reforms are good. There are some other bits.

The government has a priority of “building infrastructure for growth”. It has already reviewed the Resource Management Act (RMA), to “streamline and simplify” it. This first phase of the reforms, introduced in the first 100 days, was pretty straightforward about its intentions, and pretty good too, on the whole.

But buried in here and here, not headlined or at all straightforward, is the prospect of section 6 or 7 reform, to put in a reference to infrastructure.

Work was ongoing until at least late last year, as two pieces of advice show: from the Infrastructure Technical Advisory Group in August 2010 [rec 21, pp 23-24], recommending a section 6 amendment; and further more equivocal advice in September from a group of consultants, that said section 7 would be better, but neither idea was very good.

It may be that nothing comes of it; or, it may be that our environmental bottom line is being rewritten on a political whim.

Part 2 of the RMA sets out the Act’s basic building blocks — cornerstones, they’ve been called — for all decisions. The purpose of the Act, in section 5, is to “promote the sustainable management of natural and physical resources”. Section 6 requires preservation and protection of “nationally important” matters: coastal environment, landscapes, significant indigenous vegetation, significant habitat of indigenous fauna, and so on. Section 7 requires decision makers to have “particular regard to” some other listed matters (for example, listed first, ‘kaitiakitanga’). Section 8 incorporates Treaty principles.

It’s not as if these core sections of the Act have never been amended. For example, under the last government, the Energy and Climate Change Amendment Act 2004 added paragraphs to section 7 about climate change, energy efficiency, and renewable energy. Nor were they perfect to start with:

The long list of values in sections 6 and 7 do not represent an inviolable charter of environmental values for New Zealand. Rather, they began in the context of the various political trade-offs that precede reforms of the scale of the RMA, and have been supplemented over time … Case law analysis demonstrates that the way a number of these provisions are expressed is fundamentally unclear and/or open to a variety of subjective interpretations …

However, they haven’t been amended in quite the way now being discussed.

Introducing the RMA, in 1989, then Minister for the Environment Geoffrey Palmer said that it:

… will promote sustainable management of natural and physical resources, and with that will provide for considerably greater efficiency in the planning and consent processes … It will enable the growth and development we seek, while protecting the environment that nurtures us all … while the Bill aims to achieve good environmental outcomes — certainly better environmental outcomes than are possible under the combined effect of present legislation — it is concerned with balance.

The balance, though, lay in the requirement to preserve and protect nationally important parts of the environment, and promote sustainable development.

According to the consultants, reporting in September, “The purpose of the Act was not to ‘balance’ the environment and development in such a manner as to allow environmental values to be traded away when the economic and social benefit was sufficiently great”.

And, “It was not considered as either necessary or appropriate to provide, in the purpose [of] the Act, for activities necessary for social and economic well-being. Indeed to do so, it was argued, risked encouraging functionaries to engage in social and economic planning when that was precisely the field of endeavour the Act sought to depart from.”

And, although “both Court decisions and subsequent amendments have diluted the ‘pure’ vision of instigators of the RMA … there is still a discernable line in interpretation of Part 2 as a whole that has not been crossed”:

That line arguably forms the bulwark against resource management decision-making degenerating into express trading-off decision-making where there are no bottom lines and proponents of resource use need only to demonstrate the benefits to justify environmental effect. Introducing infrastructure as a section 6 or 7 matter does risk upsetting this delicate accommodation by crossing that threshold.

Infrastructure would be the first addition or amendment to those sections that is about economic and social benefit. The current section 7 reference to “the benefits to be derived from the use and development of renewable energy” has an infrastructure angle, but, in the end, it boils down like all the other current matters to sustaining the environment.

The novelty of course, in itself, doesn’t make it wrong. The Act has already had to evolve, to better realise the vision Palmer articulated for it.

However, the consultants took a sample of infrastructure cases, and found that:

the sample indicates a success/failure ratio for infrastructure cases of 8:3 (i.e. a 72.73% success rate with one decision outstanding … the 72.73% success rate overall would suggest that Part 2 as a whole allows infrastructure projects a better than even chance of getting through.

There is simply no evidence that the environmental bottom line is an obstacle, to infrastructure.

They also found that, “In more recent cases, there is a tendency for the Court to question the benefits case more rigorously, and to place greater demands on applicants from certain section 6 and 7 provisions”. There was some frustration about the “time consuming and litigious” nature of planning and consenting processes. But this wasn’t the fault of Part 2: “These challenges are accepted by and large by many providers as being part and parcel with the process of gaining approvals for projects in an adversarial system.”

In any event, sometimes delay, deterrence, decline and a decrease in scope may be appropriate given the other values at stake. In each case, there is a judgement to be made as to whether “frustration” is warranted in the circumstances of the case. Important as infrastructure is to the well-being of New Zealand, no one has suggested it should not be subject to proper scrutiny.

From a decision-making point of view, there was less concern about section 6 or 7 amendment than the possibility that section 5 might be altered. “Such a change would result in a fundamental change in the Act’s core values, which would alter their decision-making process. They were concerned that … case law would be significantly affected.” A section 6 or 7 change, on the other hand, would not change evidence decision-makers hear already about the benefits of infrastructure, or the fact that clashes between infrastructure and other section 6 and 7 values come down in the end to a decision under section 5.

From a policy and legislative point of view, though, it risked ‘opening the floodgates’. There would be pressure for other economic activities to be lifted up into the Act — irrigation in Canterbury might be one example — raising the spectre of ’picking winners’, and a Part 2 that morphs into such a clutter of factors, that it devalues all of the factors, but particularly the original ones.

A number of alternatives to amendments were considered and we are of the view that any one of these, or even a package of these, will address the concerns of infrastructure providers, with fewer risks to the purpose and principles of the RMA.

One of these alternatives included taking infrastructure out of Part 2, altogether — arguably, analogous to the Act’s approach to water conservation orders. Governed by a separate purpose under section 199, that applies “notwithstanding anything to the contrary in Part 2,” those orders are “in effect, an admission that Part 2 may deliver a ‘balance’ when the policy objective would not be served by a balance but only by absolute protection. In the case of infrastructure, it may be similarly argued that a balance is some times inappropriate.”

It would be the inverse of water conservation orders, which, like section 6, are about protection and preservation — more protection and preservation than conferred by the core provisions. A similar section for infrastructure would use the same tool, but for a completely opposite purpose: development, without the usual constraint. It would fundamentally undermine RMA philosophy.

“Ultimately, the decision around whether Part 2 should be amended is as much political as it is technical,” the September report concluded.

That’s why, if and when this resurfaces, it should be opposed. There is no actual problem, and therefore, no case for dickering around with the heart of the RMA, in a very fundamental way.