A glimpse of what we might expect from the long-awaited Resource Management Act (RMA) Phase Two reforms is now available with the release last week of the report from the Technical Advisory Group (TAG) on sections 6 and 7 of the RMA.
This Brief Counsel provides a quick overview of the TAG’s recommendations.
The TAG was appointed to:
“...provide independent advice to the Minister for the Environment on any changes needed to section 6 and 7 of the Resource Management Act 1991 (RMA) to improve the functioning of the RMA, relative to 20 years’ practical experience of its operations; the Government’s environmental and economic objectives; and the broader second phase of resource management reforms.” 1
The TAG’s Terms of Reference included giving “...greater attention to managing issues of natural hazards noting the RMA issues arising from the recent Canterbury earthquakes”.2
Why are sections 6 and 7 important?
Sections 6 and 7 list the matters which RMA decision-makers must “recognise and provide for” (section 6) or “have particular regard to” (section 7) when achieving the purpose of the RMA in section 5.
The architects of the RMA intended that it would be “effects-based”, so that an activity would be allowed provided its effects were consistent with sustainable management and with the environmental bottom lines in subsections 5(a), (b) and (c) of the Act.
The TAG’s view is that sections 6 and 7 were intended to flesh out these subsections by prioritising and emphasising particular “environmental” issues which were to be safeguarded for the national interest. However, the Report notes that the courts have not interpreted the RMA in the way anticipated by the Government,3 instead applying an “overall broad judgement” approach to Part 2 of the RMA.
Based on this key finding, the TAG recommends a number of amendments so that the RMA better reflects current case law and practice. The alternative (changing the law to confirm the original intentions for the RMA) was seen as more radical:
“Indeed, if the Government were desirous of upholding the environmental bottom line approach formerly thought to be the correct interpretation of the Act then significant amendment should be made to the Act, because that is clearly not the law as established by judicial interpretation.” 4
Align section 6 with current judicial practice by explicitly recognising the “overall broad judgement” approach to interpreting RMA principles.
Replace sections 6 and 7 with a new section that expresses principles clearly subservient to the sustainable management purpose.
Drop references to protection, preservation, maintenance and enhancement from provisions dealing with natural character, outstanding natural features and landscapes and public access to the coast, wetlands, lakes and rivers.
Give explicit recognition to certain “use and development” principles – in particular regarding natural hazard risk management; the planning, design and functioning of the urban and built environment, and significant infrastructure.
Remove some matters currently in sections 6 and 7 which the TAG considers no longer warrant mention, or where there is duplication. Some of these proposed deletions will be controversial – e.g. “amenity values” and “trout and salmon”.
Add a new section 7 specifying methods and objectives to be adhered to by RMA decision-makers. These include timely, efficient and cost-effective resource management processes; the use of concise and plain language; specific recognition of “environmental compensation” (which is increasingly being suggested for large projects); encouragement of collaboration between district and regional councils, and recognition of private property rights.
The Report also suggests a number of consequential amendments to definitions, a requirement for combined regional and district natural hazards plans, and changes to the subdivision provisions to reflect the importance of natural hazards.
What happens next?
The Report is part of a much larger body of work, including the deliberations of the Land and Water Forum and the local government reforms. Decisions made within these different work streams will have to be integrated and consistent with one another, requiring careful management by officials and policy-makers.
The TAG Report is not Government policy, and the Minister does not intend to formally consult on it. However, the Government is interested to hear what you think of the TAG’s ideas. If you would like to provide feedback on the Report, we can help you do this.
Our thanks to Nicky McIndoe for writing this Brief Counsel. For further information, please contact the lawyers featured.