Submission date: 2 April 2013
Submitted to: Ministry for the Environment

Submission on discussion document ‘Improving our Resource Management System’

Download the discussion document from the Ministry for the Environment website here

About the submitter

This submission is by the New Zealand Conservation Authority (NZCA), P O Box 10420, Wellington 6143. Tel: (04) 471 3211. Email: nzca@doc.govt.nz

The NZCA is a statutory body, established by section 6A of the Conservation Act 1987, having functions centred on policy and planning for land, waters and species managed by the Department of Conservation.

It approves the policy statements called conservation management strategies, which are referenced in the Resource Management Act 1991. The NZCA is listed as a heritage protection authority under section 197 of the RMA 1991.

The Authority has the power to advocate for any conservation matter of national importance, and to take part in any statutory planning process.

The 13 members of the NZCA comprise a diverse group, appointed by the Minister of Conservation on the nomination or recommendation of four specified bodies (4 members), in consultation with three specified Ministers of the Crown (5 members) and after the receipt of public nominations (4 members). 

Defining the problem and targeting changes

The NZCA agrees that the RMA processes generate uncertainty for communities, are excessively litigious in nature, and are not delivering optimal outcomes for the environment.

We are not convinced, however, that the reforms proposed will address these problems. In some cases, we believe that they will instead increase the problems, and further drive unnecessary loss of important public values. Reforms that are needed urgently are not proposed.

We wonder whether this poor targeting of the reform process may be partly caused by inadequate analysis. The discussion document appears to be based on anecdotal evidence and surveys of users, without looking at objective data. Problem statements are not supported by evidence. Problems identified by those working in the conservation field are not mentioned.

Nor is there any analysis of what would be a reasonable balance between different interests. Delays to new initiatives are an inevitable result of processes to ensure that those initiatives will not impose undue costs on other parties. That applies in concessions processes under the Conservation Act as well as in RMA processes. But delays are not necessarily an overall cost to the economy. Whether those delays are justified, and potentially even a positive economic contribution, will depend on whether they allow improved project design, more equitable distribution of costs, and improved community acceptance of the initiative.

Initiatives to cut delays may cause new problems unless the benefits of RM processes are clearly acknowledged and understood. For example, one problem faced by community groups is a lack of public notification of activities with significant implications for the community. Rod Oram in a recent article^[1] noted that only 4% of consent applications were notified to the general public, and only 1% appealed. That level of notification would only be reasonable if plans fully protect the public interest; particularly from our perspective the public interest in land, waters and species that have been set aside for conservation purposes, and public access to rivers, lakes, the coast and land-locked public land. But often plans do not give such protection, and even where they have tried to (e.g. making activities non-complying), consents are still granted. Yet the emphasis in this reform seems to be on further cutting public input, rather than on increasing its effectiveness and addressing the problem of inappropriate exclusion; then picking winners on the basis of financial advantage rather than the more inclusive and multiple public benefits that currently apply.

Another problem for the community is that involvement in consent processes is very expensive, because the process is so litigious. The recent changes to the Act, pushing more major developments into “fast track” processes that remove the local hearing stage, has added to that problem. The feedback from those who have participated in Boards of Inquiry processes is that, without a lawyer and expert witnesses, participation is a waste of time, and that the Boards are not undertaking an inquiry – i.e. trying to determine the right outcome – but rather trying to choose between the arguments of the parties that have the resources necessary to appear. That means that interests that are not represented – aspects of the environment that don’t have active champions, poor communities and others dependent on personal means or voluntary contributions, etc – are not being fully considered.

We believe that other reforms would address those problems for the community, and at the same time deliver more predictable timeframes and lower cost processes that would benefit developers. We believe that there are better ways to resolve these problems, without creating the negative outcomes for the community that the proposed reforms would. Some of the possible alternatives are set out later in this submission.

Changes to Part 2

The Authority strongly opposes the proposals of the Technical Advisory Group. Its report provides little justification for its proposals, and does not add further evidence in support of these major changes.

The document states that there “may” be an under-weighting of the economic benefits of projects because of section 6. But there is no evidence provided to support this, and many of the groups we talk to would argue that the section 6 matters are the ones that are being neglected in favour of purported economic benefits.

The TAG seems to wish to remove all weightings, and leave each individual hearing to determine an appropriate “overall balance”. That is clearly contrary to one of the Government’s objectives – greater national direction and protection of nationally important values, and increased certainty. Such an approach would add rather than remove uncertainty, and increase the overall costs of hearing processes.

In contrast, the proposals in the water reforms offer a national objectives framework and clear bottom lines that would deliver greater certainty and lower costs. We consider this approach to be a potentially useful response to issues such as nationally important landscapes. For example, the wind farm industry would greatly benefit from clear national direction identifying nationally important landscapes, and clear requirements for their protection. This would reduce the risk of the industry investing in inappropriate sites, and avoid associated hearing costs for all parties.

We note that there is now good science to support identification of many of the values in section 6. The Geopreservation Inventory identifies and ranks important landforms, geological features and mineral deposits. The Department of Conservation’s threat classification and prioritising processes allow important habitats and areas of vegetation to be identified. New tools, such as the Freshwater Ecosystems of NZ GIS tool, allow the comparative value of different natural heritage features to be objectively assessed.

There is also good case law on some of the provisions, such as natural character. The proposed changes would remove that case law, creating new uncertainty and legal costs for all parties.

In addition, the TAG proposes deletion of a number of provisions in section 6. These are of grave concern to the Authority. The Authority opposes the proposal to delete references to amenity values, water-down public access considerations and remove consideration of the intrinsic value of ecosystems. It recommends that the current wording of section 6(d), section 7(c) ands section 7(d) be retained.

Public access is very important to New Zealanders; almost regarded as a “birthright” for want of a better phrase. It is constantly under threat and the revised wording would make it much easier to ignore or give away. To the Authority’s mind, this also sets up an inconsistency with the legislative approach of the, relatively recent, NZ Walking Access Act 2008.

Section 7(c) is the only provision in that section that directly addresses recreational attributes of the environment. Recreational attributes make a critical contribution to the lifestyle of New Zealanders, and to the tourism industry. They also help encourage the active lifestyles that are now recognised as a major contribution to good health. If anything, there would be an argument for increasing the emphasis on recreation in the RMA, ensuring that important recreational values are protected, and encouraging the creation of new recreation opportunities.

The requirement to have particular regard for the intrinsic values of ecosystems serves two very useful functions:

• Firstly, it provides the philosophical foundation for setting environmental bottom lines. An understanding of intrinsic values and their past and future state, will drive the bottom line setting. Removing this clause will mean environmental bottom lines are less robust.
• Secondly, this is the key clause that drives the integrated planning that the RMA is supposed to achieve. Without this clause, the planning framework will be less robust.

The Authority does not oppose in principle addition of matters to Part 2, provided that they are indeed principles or purposes that are the focus of Part 2. We would, however, wish to see clear justification for any additions, and care to ensure that their effect is predictable. For example, it is unclear to us whether the proposed new (g) refers to the benefits of resource use, or the benefits of efficiency of use. We would support the latter but do not consider that the former should be added to Part 2.

We would also like to see matters of that type kept in a separate section 7, not included with nationally important heritage values that should be protected (section 6 matters).

We do not support the new section 7 proposed by the TAG. Methods are neither principles nor purposes. Matters of process should be confined to a separate section or schedule and not included in Part 2. It is in any case unclear what problem some of these provisions are intended to address. They would add further scope for legal arguments and uncertainty.

We would particularly like to comment on the proposed sub-section (3) of the new section 7, regarding offsets. The Authority has a strong interest in the issue of offsets. While we support the principle of offsetting some types of impacts, the international experience with offsetting has been far from positive, and we do not believe that including the term in the Act would be helpful. Types of offsetting that are appropriate can already be used as forms of “remedy”, “mitigation” or “financial contribution”. These terms provide a far clearer description of what these different types of offsetting achieve.

One gap in the Act that we believe should be addressed in this reform is the lack of any precautionary principle. The Fisheries Act 1996 has an information principle that is an example of a statutory provision that addresses the precautionary principle. It reads:

All persons exercising or performing functions, duties, or powers under this Act, in relation to the utilisation of fisheries resources or ensuring sustainability, shall take into account the following information principles:

(a) decisions should be based on the best available information:

(b) decision makers should consider any uncertainty in the information available in any case:

(c) decision makers should be cautious when information is uncertain, unreliable, or inadequate:

(d) the absence of, or any uncertainty in, any information should not be used as a reason for postponing or failing to take any measure to achieve the purpose of this Act. 

Submission in relation to Part 2 matters:

Sections 6 and 7 should remain unchanged, other than by the addition of any new matters that relate to important national values (e.g. the proposed additions on natural hazards).

Sections 6 and 7 should not be combined, and section 6 should continue to be limited to important public values that should be recognised and provided for. Other values, such as economic values, should be added to section 7.

A priority for new national direction should be direction to improve consistency of interpretation of section 6 matters, using available objective, scientific assessments of values.

The TAG’s proposal for a new section 7 on process matters should not be accepted. A separate section encouraging a precautionary approach should be added instead to Part 2 of the Act, as stated previously.

National direction

The Authority strongly supports an increased use of national instruments to:

1. ensure that nationally important values are protected;
2. ensure that best science is used in RM work; and
3. reduce the costs to communities of participation in RMA processes.

That said, we have doubts about the benefits of national instruments targeting particular industries (e.g. plantation forestry and renewable energy). These could progressively lead to inequities between industries, and an inappropriate balance between economic and other community values.

For example, the NPS on renewable electricity generation appears to treat all renewable electricity generation as having net benefits, even where they have major impacts on other activities, or on other electricity generators. It does not provide direction on how to minimise the impacts of renewable electricity generation, nor direction on those impacts on national values that should be avoided (e.g. nationally important rivers and landscapes). It therefore provides no greater certainty for either generators or the public.

In terms of the potential for inequities, we would cite the proposal in relation to plantation forestry setting controls on stream crossings. The effects of stream crossings are not, however, specific to the plantation forestry industry. Why should any benefits or any costs of having national direction be targeted to that particular industry? Would it not be better to have an NES on stream crossings that applies to all industries, or to place such controls within water-related direction?

One important potential value for national direction is to ensure that best science is used. We are strongly attracted to the approach proposed in the water reforms for a national objectives framework. That would allow the science to be done once, with the best available expertise, in a non-adversarial setting, and then applied to all relevant cases. We would like to see that approach adopted for other technical matters, including biodiversity protection.

We believe that this approach has particular merit where the science is uncertain, but an agreed approach is essential to provide certainty for investors. For example, we consider that national direction on how predicted effects of climate change are to be incorporated into plans would reduce the sort of problems being faced by the Kapiti council and residents. While any projected sea level rise or water yield change predictions may prove to be wrong, it is important that all councils are using the best available predictions, that there is some stability in the predictions being used, and that the scientific basis for those predictions is the same in all regions.

We would also like to see increased national direction in areas that are being neglected by councils in their plans. The impacts of wilding trees and other pest problems arising from land-use change is one issue that this Authority has examined in the past, and that may benefit from national direction. Another that we have looked at more recently is the protection of a representative range of rivers. I have enclosed the Authority’s paper on this topic and invite you to consider its recommendations. (www.doc.govt.nz/protectingnewzealandsrivers)

The Authority cautiously supports further development of the proposal to have some national direction developed on a faster timeframe, but would need to see further details before it could support a fast track. Our experience is that many of the delays in the development of national direction are simply the result of poor process and inefficiency, and that the process in the Act is not a major problem. National direction must be stable, and it must therefore be carefully designed, with wide input. Rushing its development is likely to lead to future amendments, defeating one of the main purposes.

The Authority has concerns about the proposed approach to Ministerial directions on plan changes. The Minister of Conservation approves coastal plans and can make changes to the plans. But that legislation requires that the Minister be actively involved in the earlier stages, and make his wishes clear through a submission. This helps to develop a more collaborative approach between central and local government, and ensures that the Minister’s requirements can be fitted into the overall context of the plan and what the community is trying to achieve.

The proposal in the discussion document seems to place the Minister outside the planning process, and allow for intervention at any time. This means that the community could have been through a long and contentious planning process, and then, after finally getting agreement, have the Minister step in with a completely new approach. The Authority could not support that approach to central government involvement in plan making.

Submission in relation to national direction

The Authority supports increased use of national direction.

We would like to be consulted on any work to identify priorities for development of national direction. Areas of particular interest to the Authority, and where national direction would be useful, are biodiversity management, climate change effects on natural resources, biosecurity effects of changing land-uses, and protection of rivers.

The Authority does not currently support a proposal for a fast track for national direction, but would cautiously support further development and analysis of the concept.

The Authority does not support the specific approach to Ministerial direction on plans set out in the discussion document. We believe it should be replaced by a proposal that requires the Minister to be an active participant in the planning process, and provide his/her directions within that process.

Resource management plans: one plan and plan templates

The Authority does not support the idea of having one plan per region. This proposal does not appear to be addressing a real problem, or to be particularly workable. If having district and regional planning separate provisions is a problem, we believe that local government reform could provide an appropriate solution. For example, all resource management regulatory planning could be placed with regions, with districts developing local government plans that have some weight in the RM process. But, without a problem statement, it is hard to know what issue the proposal is trying to resolve.

The multiple documents problem can be readily addressed through templates and standard document dissemination systems.

The Authority considers that regional policy statements provide a valuable mechanism for integrating resource management policy. This allows broad policies to be agreed with communities, and then implemented through plans. We are not sure what would be achieved by removing this mechanism, and fear that the result would be a more fragmented, less complete consideration of issues. The conservation management strategies and national park management plans developed under conservation legislation for which the Authority is the decision maker, take account of the protections provided in regional plans. If they were no longer available, compensatory adjustments would need to be made to those plans developed under conservation legislation.

The Authority supports the provision of a national template to ensure more consistency in how plans are developed. A template approach is now being used for conservation management strategies (referred to above), and that approach is proving to be very positive.

The Authority would also support increased national direction setting out appropriate plan provisions for addressing particular issues. The national objectives framework for water appears to be one useful way to do that. Community resources could then be focused on identifying values and resolving conflicts between values, with the actual plan wording then taken from a standard.

Submission in relation to plans

The Authority supports the development of national templates and other national guidance to make plans more consistent, and reduce the costs of writing them.

The Authority does not support having a single plan, and considers that there are better ways to address the only problems cited in the document.

Providing for future needs

The Authority agrees that planning needs to clear address future needs, and provide clear direction for the development of urban areas.

The RMA removed the directive planning approach in the Town and Country Planning Act, and that appears to have had a negative effect on urban planning, including issues such as the loss of high quality soils.

It is important that our cities are planned to ensure that they function well, while maintaining important natural and historic heritage values. The market cannot plan our cities, because no individual player has all the information needed, and an individual developer will be driven by incentives that do not fully reflect the wider community interest.

Submission in relation to future needs

The Authority would like to see a greater emphasis in the Act on proactive planning, particularly to develop urban areas that deliver high community amenity, value historic heritage and promote indigenous biodiversity, and work with rather than against natural processes (e.g. hydrology and geomorphology).

Reducing appeals and improving hearing processes

While it is superficially attractive to streamline planning and consent processes by removing mechanisms such as Environment Court appeals, the Authority does not consider that this is a desirable approach.

One of the effects of the EPA Board of Inquiry process has been that there is no longer a process in which all members of a community can express their views, without needing to have a lawyer, expert witnesses, etc. The cost of effective involvement in EPA processes is beyond the resources of most community groups.

Another effect of removing de novo appeals is that the remaining decision-maker knows that they cannot be held accountable for making poor judgements. Because the RMA is not very specific, appeals on points of law will not correct bad decisions made by councils. The Environment Court has required significant changes to decisions in many cases, confirming the view of many community groups that poor decisions are being made. The use of independent commissioners to carry out hearings does not solve that problem, but takes the democratically-elected council out of the process.

In addition, the High Court has little RMA experience, and cannot bring to its work the sort of expertise that the Environment Court has been able to develop.

For these reasons, we do not support the sort of streamlining of processes that has been a feature of recent reforms of the RMA, and is proposed in the discussion document.

That said, we agree that the current decision-making processes are far from ideal. But we would recommend the following as more appropriate ways to improve the system.

We believe that the most important change would be to reduce the adversarial nature of the processes.

We support the recommendation of the Land and Water Forum to increase the use of collaborative processes for identifying and reconciling community values. These processes will allow the areas of true disagreement to be narrowed, and increase community cohesion, and therefore the ability of the community to work together to develop solutions to resource management issues.

We would also like to see the scientific and technical work removed from adversarial processes and managed through those that encourage collective development of best science, and adoption of appropriate precautionary approaches where there is uncertainty.

The current adversarial process, even with the addition of conferencing/hot-tubbing, is resulting in a number of negative effects on resource management decisions:

• The choice of experts depends on who is hired by the various parties. That in itself will result in a less than optimal mix, but the effect is made worse by the “gaming” that is happening, with applicants buying up expertise to prevent it being used by other parties. For example, in the Mokihinui case, the best bryophyte expert was used by the applicants to look at vascular plants, while the bryophyte evidence was presented by an entomologist.
• It is inevitable that experts will seek to present the information in a way that suits their clients, and avoid introducing data or evidence that would be to their client’s disadvantage. Also that clients will shop for an expert that suits them. This means that the public confidence in the “experts” is being steadily undermined, and again we are not getting the best science. Bias is also creeping in as a result of companies wishing to promote the use of models for which they have expertise or own, when other models may be more appropriate.
• The process is slow and expensive.
• Many experts do not wish to participate in processes that will include cross-examination by lawyers who are not there to promote best science, but rather to try to undermine the evidence of experts who are raising issues that do not suit their legal case.
• Scientific issues where no party has an expert are simply ignored. For example in relation to biodiversity it is unusual for any attention to be given to invertebrates and non-vascular plants – around 95% of our biodiversity.
• If there is no contrary expert, the evidence of the applicant or council is not scrutinised, even if there are significant questions raised about it by submitters.
• People with a strong knowledge of the area, including amateur naturalists, fishers, iwi, are generally excluded because they do not have a professional qualification that is relevant. In contrast, evidence by a professional will be accepted even if that person has only visited the site once, and does not have a strong knowledge of the local conditions. 

We also support the proposals for more templates and NESs, to allow good science to be done once and then used in multiple processes. That will significantly reduce the costs of processes, allowing councils and other parties to devote more resources to collaborative processes, data collection, project design, etc.

Submission in relation to planning and hearings

The Authority opposes the proposals in the document. They do not appear to address a clear problem, and will exacerbate rather than correct the problems created by the adversarial process. Development of collaborative and non-adversarial technical processes should be the priority for improving planning and consent processes.

Consent processes

The Authority does support firm timelines for decisions, which provide certainty to all parties. But these need to be workable timeframes. The 9 months allowed for EPA Board of Inquiry processes is insufficient to allow good decisions to be made in a fair process when, inevitably, there will be conflicting views. We recommend that at least 12 months be allowed for major decisions, and that there be more ability for the decision-maker to decide at the beginning of the process that a longer timeframe is appropriate given the technical or community complexities.

Tight timeframes also need to be accompanied by improved mechanisms for ensuring that applications have fully covered all effects, and that the interests of all potentially affected parties have been considered in designing the application. Communities should not have to continue to pay the costs of filling the gaps in poor applications.

The Authority does not consider 10 days to be long enough for a council to thoroughly assess a consent application. It is important that there is enough time to allow technical experts to be consulted, and the application to be fully considered. If this is to be included, the definition of “straightforward” should be very tight, for example limiting this to controlled and limited discretion activities. This should certainly not apply to non-complying activities.

The Authority is strongly opposed to the proposal to allow approved exemption for minor rule breaches. If a rule matters enough to be included in a plan, it deserves to be enforced. Allowing exemptions is a recipe for cumulative impacts that undermine the entire intent of the plan, and for deliberate breaches of plans. We do not understand what “very nearly permitted” is intended to mean, or who would be deciding that it did not affect other parties. The proposal will undermine certainty for those whose values or investments are being protected by plan rules.

The Authority does not support the proposals relating to notification. In our view, the current problem is that too few activities are being notified, resulting in communities being excluded from decisions that affect them, and important information held by community members not being available to the decision-maker. The focus in reform should be on making hearing processes efficient and effective, not on further reducing community involvement. People do not make submissions unless they have real concerns, and those concerns should be heard and resolved.

The Authority does not know why there is a desire to limit the scope of consent conditions. It is vital that councils are able to address any impacts. Limiting the ability to impose conditions can only result in either effects not being addressed when they could be, or activities being declined because those effects could not be addressed through conditions.

The Authority, on balance, considers that fixed charges for consents are desirable, provided this does not result in significant cross-subsidisation between applicants, or subsidies by ratepayers.

The Authority has yet to see benefits from the new EPA process, but the early community view seems to be that it is simply a rubber stamp for poorly designed proposals that a Minister has labelled as “nationally significant”. The Authority from the outset has been concerned at the lack of conservation expertise on the EPA. The process has not brought improved expertise or rigour, or more user-friendly processes. The reforms proposed in 3.3.11 will not solve the problems communities have identified about the EPA process.

We do not therefore support the proposal to expand the use of alternative processes such as call-in. If there are problems with the normal process, those problems should fixed, rather than having alternatives put in place for some applications.

Natural hazards

The Authority would support reforms to improve natural hazard management. In our view, it is vital that the Act clearly signals the need for developments to be designed to fit with natural processes, including likely future natural processes, rather than relying on changing those processes.

For example we would like to see increased use of buffers and managed retreat, rather than seawalls, groynes, stop banks and channelization that significantly damage community values.

We would also like to see further national direction on technical assessment of hazards, to reduce costs to councils and communities, ensure best science is used, and increase consistency. 

Iwi/Maori participation

The Authority strongly supports meaningful involvement of iwi in resource management decision-making. While we do not have any concerns with the proposals included in the document, we are not sure that they will achieve that goal. 

Heritage Orders

Heritage orders are not addressed in the discussion paper but it seems possible that these are in scope for additional work on the RMA. As identified at the outset of this submission, the Authority is named in the Heritage Order section of the RMA and therefore has a direct interest in it. The application process for someone who wishes to undertake works on a property protected by a heritage order is very unclear at present. The Authority considers it would be useful for the RMA to provide some guidance in this regard. It would also expect that there would be a requirement on the local authority to advise the relevant Heritage Protection Authority when they receive an application for either a resource consent or a building permit on a site that is subject to a heritage order. The Authority asks that it be consulted from the outset on any proposals to amend the Heritage Order provisions of the RMA.

Yours sincerely

Dr Kay Booth
Chairperson