The new, old law that no-one can seem to kill

Saturday, 27 January 2024

Five years of work and many millions of dollars went into an ambitious overhaul of the country’s resource management laws. It took most of a Tuesday evening to chuck the end result in the bin.

The previous Government went to exhausting lengths to replace the Resource Management Act (RMA), the foundational New Zealand environmental law.

The result was a new system meant to last generations, touching every part of society; the health of the environment, the shape of our cities, the flow of the economy. It was the stuff of legacies.

That legacy survived for just 123 days.

Everyone in politics wanted to have a crack at the RMA. The law, first passed in 1991, was visionary in its time but had crumpled under its own weight. More than 20 substantial amendments had been stapled onto it: By 2017, a law that was originally 382 pages had grown to 796, a brick of a document only slightly shorter than The Luminaries.

More importantly, the law was failing in its twin goals - protecting the environment while enabling land development.

Its record speaks for itself. Since the RMA passed, many parts of the environment have deteriorated, particularly freshwater quality and biodiversity. Housing is expensive and scarce, driven by exorbitant land values. Resource consent costs have exploded and delays are frequent.

The degree to which the RMA is responsible for those failings is debatable; it became an easy scapegoat. But there was no doubt that, across the political spectrum, the prevailing view was that the RMA was not working.

That’s why few were mourning its death when it was replaced in August, 32 years after it had become law. No more would that unpleasant, ubiquitous acronym - often spoken quickly, like its own word, Arremay - rattle through hallways in council offices and court rooms.

So it was understandable that some politicians had complicated feelings when they chose to bring it back just a few months later.

“Never in a million years did I think I would be up here speaking to support the reintroduction of the Resource Management Act,” ACT MP Andrew Hoggard said in Parliament last month.

“Spending many years complaining about it, it seems a very weird position to be in, bringing it back. However, sometimes you've got to take a step back to be able to go forward.”

In overturning Labour’s law, the National-led coalition swallowed a dead rat. It brought back the RMA - a law no party in Parliament supports, and which National had itself pledged to kill - for one last dance while it prepares its own replacement.

It is a curious dilemma; possibly unique, and hints at how politically contentious environmental management has become. No party in parliament supports the status quo, but because they cannot agree on a replacement, they are stuck in a legislative tit-for-tat.

Will New Zealand ever get rid of the law nobody wants?

Bipartisan origins

Three decades ago, an incoming National Government had a choice. Would it scrap its predecessor’s plans for a new resource management law, or see it through?

This was the context of the RMA’s enactment in 1991, one eerily similar to the scenario that played out last month.

The RMA had been largely put together by Labour’s Sir Geoffrey Palmer in the late 1980s.

It was a policy response to the gigantic infrastructure projects that flourished under Robert Muldoon’s government, and reflected an emerging understanding that development was good for the economy, but often bad for the environment. It was thought useful to have a law outlining how to manage these conflicts.

The law was not passed before the 1990 election, which Labour lost. But instead of scrapping the plan, the new minister for the environment, Simon Upton, chose to see it through. With some changes, he ushered the RMA into law in 1991.

“The RMA owed its longevity, in part, to its bipartisan origins,” Upton - who is now Parliamentary Commissioner for the Environment - wrote this week.

“It is a pity that [in 2023] more effort wasn’t made to achieve the same result. We will never know if a deal could have been reached to carry the reform over to a new Parliament, for further study, before enactment.”

The RMA has become a lode-bearing beam of New Zealand law and encompasses contentious philosophical questions; property rights, the role of Government, and the environment.

This naturally makes it a venue for political disagreement.

Every person will hold a different view on what environmental laws should protect, and what trade-offs between the environment and the economy - if any - are acceptable.

The RMA, for example, has enabled the spread of dairy farming on the Canterbury Plains and the consequential impact on water quality. It has been heavily implicated in the housing crisis and the lack of suitable infrastructure in cities.

“Resource management is always political,” says Dr Jeff McNeill, an honorary research fellow at Massey University and an expert on environmental policy and planning.

“Pure and simple, it’s defining who gets what. It's about winners and losers.”

This makes any attempt to introduce a new resource management system a potential minefield.

For a Government to pass it into law is one thing; keeping it in place, and allowing it to endure for decades like the RMA, is another.

“It relies on trust to make things happen, and there’s always the temptation for some short term gains by burning that trust and just going for it,” McNeill says.

“If a politician can see a possibility of an expedient political gain to be made then they’re quite capable, it turns out, of doing it.”

The replacements

The Labour Government was in the hot seat. By 2017, there was a growing consensus inside and outside Parliament that the RMA was becoming unworkable.

National had wanted to reform it when Sir John Key was prime minister, but coalition agreements in its second and third terms made it too difficult. It settled for numerous amendments instead, but later publicly rued the missed opportunity.

An unlikely coalition of advocacy groups in 2019 - led by the Environmental Defence Society (EDS) and the Employers and Manufacturers Association - was pressuring the Government to bite the bullet.

“We did a lot of work on the need for reform,” says Gary Taylor, chief executive of the EDS.

“We established that by looking at environmental outcomes, and we found that they were not good. Then we looked at purpose principles, underlying norms and values and did a lot of very detailed thinking and put that to the Government.”

The Government formed an independent panel to examine the RMA’s performance and recommend a replacement. It made it clear that, despite an offer from then-National leader Judith Collins, it would not be a bipartisan effort.

“They had nine years to fix it,” Environment Minister David Parker said at the time, referring to National.

“They didn’t, so we’re getting on and doing it. We are the government. It’s our duty to govern and we’re governing.”

The panel’s conclusions, released one year later, were much as expected.

The RMA had “not sufficiently protected the natural environment” nor “achieved good outcomes for our urban areas”, it said - the two jobs it was ostensibly meant to do.

It laid out a potential replacement, comprising two laws: A Natural and Built Environment Act (NBEA), which would replace most of the RMA’s environmental protection functions, and a Spatial Planning Act (SPA), requiring regions to plan development decades in advance.

Hidden among this blizzard of acronyms was a subtle philosophical shift.

The RMA was effects-based, meaning it generally allowed people to do what they wanted, as long as the environmental impacts were mitigated. This had a death-by-a-thousand-cuts effect: Minor damage from individual projects would collectively, over time, degrade the environment.

The replacement would instead be outcomes-based. It would be clearer about what can happen, where, and focus on driving environmental improvements, not just minimising damage.

In short: The new system would focus on what should happen, not just what could happen.

Labour adopted the overall structure as its policy, and promised to pass a law in its second term. After a landslide election victory, and with no coalition partners in the way, it steamrolled ahead.

Easier said than done

Labour had a simple pitch: The new system would slash red-tape, cut costs, and make things happen more quickly, while also enacting stronger protections for the environment.

It sounded appealing.

The RMA is famously cumbersome, and not only due to the numerous amendments stacked on top of it over the decades.

Because every council needs at least one plan for implementing the RMA - and most have several - there has been an explosion of planning documents. Nationally, they number well over 100, thickets of bureaucracy spread like gorse across the landscape.

When the RMA was created, central Government was meant to guide councils with National Policy Statements (NPS) - basically national environmental limits - they would have to comply with.

This didn’t happen for nearly two decades. Councils were left wandering on their own, and the environment had little protection. Some important parts of the environment, such as biodiversity, still don’t have an NPS three decades later.

The promise of Labour’s new system would be to reduce the number of plans to 16. They would be put together by regional committees, and include strong guidance from central Government, including environmental bottom lines.

The plans would clearly lay out what can and can’t happen. This would, in theory, front-foot the fights that tend to happen at the resource consent stage; more things would be allowed by default, meaning fewer consents, meaning less bureaucracy.

Combining this with environmental bottom lines would mean councils would have no way to abrogate their responsibilities.

While there was general support for the thrust of the reforms, when the draft laws were unveiled, they received harsh criticism.

A common one was the stated purpose of the law, which was to uphold “Te Oranga o te Taiao”, a concept from te ao Māori that broadly means the intergenerational health and well-being of the environment.

This had echoes of the RMA. Its purpose had been to “promote the sustainable management of natural and physical resources”, which was radical at the time. Nowhere else was the concept of sustainability at the heart of a critical environmental law.

To the RMA’s authors, this meant there were environmental limits that could not be crossed. But when it ended up in the courts, they found differently; they said the RMA could be interpreted to allow for economic factors to be weighed up alongside the environment.

If a council was presented with an economically beneficial development that would cause minor environmental damage, they could weigh all the factors and decide in favour of the economy. This came to be called the “overall broad judgement” approach, and was how the RMA was interpreted until it was quashed by the Supreme Court in 2014.

Some saw this as a critical flaw of the RMA: It was too vague in its purpose. “Te Oranaga o te Taio,” a term never before used in law, might have faced the same legal obstacles.

For environmentalists, the law’s approach to environmental bottom-lines was also a problem. While the concept was good, the actual bottom-lines were to be set at the environment’s current state. This meant a polluted river, for example, could legally stay polluted.

From the development side, there was scepticism that the new laws could make things happen faster.

National MP Chris Bishop, now the minister for RMA reform, made hay of the fact several energy companies said the new laws would be a barrier to decarbonisation.

Combined, these and other criticisms were deemed enough to justify National’s decision to not support the law.

“The clear feedback on the Government’s bills is that they will make it harder to get things done, will not improve the environment and will actually be worse than what we have got now,” Bishop said in June, while announcing National would repeal the laws if it won the upcoming election.

Long live the RMA

And so 2024 began with the RMA as law of the land (again).

National made some quick patch overs. It temporarily kept in place a fast-track consenting scheme from Labour’s law, and has said it will soon introduce its own scheme for quickly consenting infrastructure.

Its longer-term plan - a full-blown RMA replacement - is likely to be introduced near the end of the current term, meaning it will be passed into law by the next Government.

For now, the prospect of bipartisan RMA reform seems dead. After more than five years of work, Parliament is back to square one.

McNeill says he has little faith the coming years will produce much-needed change. “I don't hold hopes that anything courageous, in a good way, is going to come out of this Government for the environment, sadly.”

Taylor, from the EDS, says the swift repeal of the laws under urgency is a poor start.

“It’s constitutionally abhorrent to take a major legislative reform process and chop its head off in the dead of night through urgency without any public scrutiny or opportunity to comment,” he says.

(Bishop has said the Government did not relish using urgency powers to revoke the laws, but had clearly stated its intentions before the election: “We took to the election a proposal to repeal these Acts by Christmas, and we are doing so.”)

While the EDS had criticisms of Labour’ laws, Taylor says the solution is not to start from scratch. It leaves councils stuck in a “void of uncertainty”, unclear what they should be planning for.

“It’s just too big an ask to go back to a blank slate and start over again,” he says. “We know from recent experience that takes four or five years and a huge amount of resource.”

He proposes instead a pragmatic revision of the RMA - an idea also promoted by Upton and McNeill - that would keep the better parts of Labour’s law, with targeted changes.

On whether bipartisanship of the type seen in the RMA’s origins will ever be repeated, Taylor is cautiously optimistic.

“It’s possible if people grow up.”