Submission: ELI response to the proposed Planning Bill and Natural Environment Bill (replacing the RMA)
The Environmental Law Initiative has provided a submission to the Environment Committee on the Government’s proposed Planning Bill and Natural Environment Bill, which together are proposed to reform the Resource Management System.
The following is a summary of our key points. You can read our full submission by clicking on the image or button at the bottom of the page.
Summary
The Bills remove established environmental limits, enable more pollution by opening new rights not previously legally available to polluters, limit public standing to participate, as well as judicial review rights, hollow out existing accountability mechanisms, and establish potential conflicts with the Wildlife Act 1953.
We are concerned about the speed at which the Bills have been developed, with little to no public consultation in the policy development process. The public has been given very limited time to provide submissions, raising questions about the quality and democratic legitimacy of the policy process. We strongly oppose the progression of the Bills through to law.
General issues
The Bills are a very significant reform that affect the lives of every person living in Aotearoa New Zealand and every facet of the environment on which we depend, yet many important components are isolated and have not been integrated with each other.
While amendments could be made to improve integration, ultimately, the lack of a purposive statement of intent for the Bills is the most fundamental issue. As written, they describe a means without an end. The purpose statements should communicate or signal reasons for the Bills, give a concrete administrative basis, or guide interpretation; however, as drafted, they only direct bureaucracy rather than achievement of any measurable outcome.
If seen through, these Bills would result in untenably weak environmental laws that could not feasibly endure.
Te Tiriti o Waitangi
The Tiriti o Waitangi clauses in the Bills propose an inadequate (and notably different) approach to section 8 of the RMA. This change weakens protections for Māori interests and is inconsistent with Te Tiriti o Waitangi itself. We also consider that in the absence of further steps, initiated by councils themselves, this clause could expose councils to legal challenges due to common law-based Tiriti o Waitangi requirements being stronger than this clause.
Environmental limits
Regarding environmental limits, we welcome the use of the concept in the Natural Environment Bill but the ability to make and uphold these limits needs to be stronger and more tightly prescribed. Clause 11 of the Natural Environment Bill, which provides for the protection of environmental limits alongside other “goals” is inadequate. The requirement to merely “seek to achieve” these goals is very weak and inconsistent with the idea that these limits will actually function to limit environmental harm. There is also no clear hierarchy between the goals, meaning that the protection of environmental limits is to be weighed up against competing goals.
The ability for councils to ‘lower’ an ecosystem health limit so long as they provide a justification report does not uphold the protections needed for environmental limits. Further, the requirement to assess the impact of environmental limits against matters including the economy undermines the environmental protection these limits can provide. We strongly submit that these provisions be redrafted, with no ability for limits to be weakened.
Water Pollution Limits
The proposals erase our most fundamental statutory limits on water pollution, which have been legislated for in various ways for over 60 years. As proposed, Regional Councils could legally issue rights to pollute to levels that have not been previously allowed by our legislation (historically, these have been described by MfE as prohibitions on gross pollution, or bottom lines). This is an unprecedented regression of environmental protections which is inconsistent with the stated purpose and “goals” of the Bills, Te Tiriti o Waitangi, and with international environmental law.
Without the historic bottom lines, there is no longer any requirement that permits and plans prohibit pollution such as “conspicuous oil or grease films” or “any significant adverse effects on aquatic life”; these are standards that have historically constrained councils’ ability to allow pollution.
Barriers to public participation and review
Public participation provides important checks and balances on decision-making that affects our environment. Yet the Bills introduce provisions that limit standing for participants, a significant shift that risks cutting out experts, or groups who have a legitimate interest, including ELI. Limitations on judicial review have the potential to completely limit recourse for parties without standing. This could also incentivise strategic submissions and create major jurisdictional problems.
Compliance, monitoring and enforcement
There are fundamental problems in the compliance, monitoring and enforcement framework, with the new provisions substantially weaker than their RMA counterparts. There is no quantitative or qualitative standard for state of the environment monitoring, creating monitoring for the sake of monitoring, and the system risks avoidable environmental degradation. This is a serious flaw, given a consistent criticism of RMA has been its poor implementation.
Regulatory relief
On regulatory relief, we fundamentally oppose the idea that regulation of the use of shared resources for the public good should lead to private compensation. More pragmatically, it is unclear to ELI why the Government would direct already insufficient council budgets to be used for private benefit. Should this provision persist, we strongly recommend that it is counterbalanced by an environmental takings regime which seeks compensation from industrial users of public resources such as air, water and biodiversity. The current Bills appear blind to the fact that private interests benefit significantly from these resources yet pay next to nothing for the privilege.
Wildlife Act
Finally, we have significant concerns about clause 128 relating to Wildlife Act approvals. The Wildlife Act is the mainstay of wildlife protection, yet the Bills would require councils, who are not equipped with the expertise, resources or national oversight, to make decisions about protected species. Such a system would result in severely weakened protections for wildlife and is inconsistent with the absolute protective purpose of the Wildlife Act. Clause 128 should be deleted.
Conclusion: A step backwards for environmental protection
Taken together, the Bills would substantially weaken New Zealand’s environmental safeguards. They remove longstanding limits on pollution, introduce new rights for polluters that have never existed in law, diminish public participation, restrict judicial review, and create major uncertainties that undermine the stated intent of building an “enduring” planning system.
Replacement of the RMA with the Bills as proposed would result in untenably weak environmental laws that could not feasibly endure as desired. If the goal is still to create an enduring system, the law must also get fundamental environmental protections right.