Officials will next month deliver to Environment Minister Nick Smith the first of what will be six monthly progress reports on the Government’s Phase Two resource management reforms.
The report will begin scoping the different work streams.
This Brief Counsel looks at the Phase Two work programme and provides some guidance on how business might best engage with it. Chapman Tripp will produce further Brief Counsels on the issues as they emerge.
Contents of the Phase Two “package”
The ten work streams under the Phase Two banner are, in no particular order:
- Urban planning
- Water allocation
- The design of the Environmental Protection Authority (EPA)
- Resource Management Act issues not dealt with at Phase One, and
- The alignment of the RMA with:
- The Building Act
- The Conservation Act
- The Forests Act, and
- The Historic Places Act.
But don’t expect 10 discrete work streams
We understand that the Minister favours a sector-based approach where possible. This might see some of the statute interface work slotted into larger work streams as appropriate. Further, the list is provisional. The Minister has an open mind, for example, about how much of a problem there is with the Forests Act and it may be that any issues here are quite confined and can be resolved quickly.
And there are some very large scoping decisions still to be made
...About the EPA.
Our understanding is that it is no longer safe to assume that previous indications of the breadth of the EPA’s role still apply. It is still likely that it will take over ERMA’s mandate and that it will be responsible for priority processing under the RMA. But whether it will also take over the MfE’s responsibilities for the development of National Environmental Standards (NES) and National Policy Statements (NPS) seems now to be very much up in the air.
The NPS function especially does not sit well with an arm’s length Crown entity as NPSs are essentially policy directions from the Government to RMA decision makers and therefore have a very strong component of Ministerial and Cabinet prerogative.
The NES function is more technically focussed and, as such, more amenable to administration by the EPA although there is, of course, an element of politics in it – e.g. choices for standards over water and air quality.
More problematic is working out how the EPA should interface with regional councils and territorial authorities without creating an overlap in functions and additional bureaucracy.
A likely scenario, in our view, is that the Phase One EPA model (basically a few MfE staff with a new badge) will remain in place pending the outcomes of the other work streams – particularly those relating to infrastructure and to water.
On 8 June 2009, the Government announced its new strategy “New Start for Fresh Water” (see www.mfe.govt.nz/issues/water/freshwater). It is of course intentionally broad and aspirational, although it does emphasise:
- central government direction and leadership,
- an allocation regime which provides for ecological and public purposes (including Treaty considerations) and seeks to maximise return from the remaining water available for consumptive uses,
- the contribution water infrastructure (including storage) could make to improved water use, and
- the importance of addressing scientific, technical and capability gaps (perhaps a signal for how an EPA might influence the future functions of regional councils?)
his work stream will be jointly led by the MfE and Land Information New Zealand and will intersect with the Infrastructure Unit within Treasury. We know that the work will include a review of the designations regime. Yet to be decided is whether the Government thinks significant change is needed or just a few tweaks. Also in the mix are proposed amendments to the Public Works Act to shorten it and to provide more generous compensation to landowners.
About the RMA wash-up.
We know that this will pick up ideas raised by the Technical Advisory Group and by submitters on the Resource Management (Simplify and Streamline) Amendment Bill but considered too complex to be dealt with in Phase One. Still to be decided by the Minister is whether the scope for further reform will be large or narrow and technical. We expect further light may be thrown on that once the Phase One reforms are back in the House for enactment towards the end of this month.
The reform process and the opportunities for engagement
Against the backdrop of Phase One, a question in many of your minds is whether there will be genuine opportunity in Phase Two to influence policy, hopefully well before legislation is introduced.
We think that opportunity will be there, provided that you keep in step, be pro-active, keep your focus on the core issues, and try to work collaboratively.
Key contacts within MfE will be Craig Mallett (Manager Natural Systems Policy) and Tim Bennetts (Manager Built Systems Policy). Craig and his team will look after water,aquaculture, and Phase One spill over issues. Tim’s team will look after “built systems” policy, including infrastructure. By contrast to Phase One, we expect that MfE will have a clearer leadership and coordination role in the policy development for Phase Two.
Technical Advisory Groups and the Land and Water Forum will be important sounding boards and policy shapers, especially for some of the more specialised work streams. Aquaculture will be one and arguments can be made that infrastructure and urban planning should be others. Chapman Tripp would be happy to facilitate this should clients wish.
Officials are taking a “problem definition” approach. This offers significant scope for industry input. Define the nature of the problem, including cost and investment impacts, and provide evidence to support your position.
Water – a case study in stakeholder participation
The Land and Water Forum (made up of the previous Sustainable Land Use Forum and the Turnball Group) is a non-governmental group entrusted by the Minister with developing policy ideas for addressing water allocation, water quality and water infrastructure. They are required to report back with recommendations to go to the Cabinet by 30 July next year.
This is an extraordinary level of engagement, verging on the role traditionally played by Commissions of Inquiry. The Government’s hope is that the Forum – which covers stakeholders from urban, industrial and rural interests as well as those interested in land management – will be able to forge a broad policy consensus. This will require considerable dexterity given public sentiment against the use of price-based mechanisms, the likelihood that existing rights may need to be clawed back where there is over allocation and also given the need to negotiate a solution which will be acceptable to Maori (and the Maori Party).
Of course, bearing in mind the important stakeholder interest Maori have in water policy, it is also intended that there be ongoing discussions between the Crown and iwi leaders and between officials and Maori advisers.
Chapman Tripp was able to help co-ordinate a joint response among network utility operators to the designation provisions in the Phase One reforms and considers that there would be value in doing this again at Phase Two – particularly in relation to infrastructure and, potentially, also to urban planning once we have a clearer idea of how this work stream will evolve.