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Reviving innovation

New Zealand’s Resource Management Act under review

· Catriona McNaughton,New Zealand,Legislation,Analysis

Sparked by the repeal of legislation introduced before a change of government and ultimately delivered following another change, New Zealand’s Resource Management Act (1991) managed to navigate complex and competing requirements across environment, economy and community. It was praised for the balance of priorities, which at least in part may have arisen from its cross-party development. Now, almost 30 years old and weighed down but countless (and usually one-sided) reforms and amendments, it is set for extensive review.

Having repealed the National Development Act in 1986, one of a number of pieces of legislation introduced by the Muldoon Government that gave significant and inappropriate power to Cabinet to override Acts of Parliament (essentially removing the checks and balances which provided for environmental protection) on the basis of reducing delays for development, the relatively new Labour government recognised the need to establish something in its place. They created the Resource Management Law Reform project, one of the most significant law reforms New Zealand had seen.

The project was tasked with developing an extraordinary piece of legislation: incorporating more than 50 separate Acts, covering a broad spectrum of issues (air, water, coast, land management) and streamlining planning and development while balancing environmental needs. It was well funded and much of this was allocated to extensive public consultation which created early public acceptance and a long runway of momentum for the resulting Bill. However, the consultation ultimately delayed the Bill so that it was only ready three months before the election with no time to pass it. Despite this, the newly elected National Government was largely supportive of the intent of the Bill, possibly as a result of the public momentum, ultimately passing it in July 1991 after relatively few changes.

At the time of its introduction, the Resource Management Act was praised internationally for the incorporation of environmental impact assessment as a critical part of the planning framework and for the balance of economic and environmental objectives. The language of the Act was purposefully open to allow for successive governments to provide guidance on its delivery the responded to emerging challenges. Despite its age, the review announced by the Arden Coalition Government represents the first major review of the Act. This is largely because it was designed to allow for central government intervention.

National policy statements and environmental standards were intended to be set by central governments under the Act to enable action, but these levers have been largely unused. Instead, over almost 30 years central governments have amended bits and pieces, responding to pressure from development and other lobby groups, eroding the overall framework and adding significant length and complexity to the Act. The most recent reforms introduced in 2017, which aimed to reduce public notification and appeals to support development, have reportedly resulted in adverse outcomes where developers are intentionally non-compliant in order to ensure they retain the ability to appeal a non-favourable council decision.

A core issue with many of these reforms is their incremental and one-sided nature, having generally not required (or not sought) the kind of consensus or expert insight that went into the original Bill’s development. The current government, while making its own short term changes including rolling back some of the 2017 amendments, has committed to establishing a full and extensive review. Interestingly, this review mirrors its original development in that will likely coincide with an election and require cross-party support and therefore, at least in some way, a balance of competing priorities.

The review is a however, a monumental task. Originally comprehensive and now almost double the length through amendments, the government faces the challenges of a far more politically engaged public with respect to the environment, the contradictory priorities of their coalition partners and the new framework of the Welfare Budget increasingly highlighting the need for key developments like low cost housing which are currently facing challenges, delays and additional costs in planning permissions. But the current Members of the New Zealand Parliament have demonstrated an ability to comprise and work together to achieve monumental legislation, passing the Zero Carbon Bill nearly unanimously. During the Bill’s final reading, Opposition leader Simon Bridges said: “This bill is a product, and it’s not so much as I wanted, but it is a product of compromise, and compromise shouldn’t be a dirty word in politics.”

The final review report is due to the Minister for Environment in May 2020 with consultation on proposals for legislative change expected to occur through the 2020 calendar year, leading up to the election in November. Cross-party support of the principles, as well as the extensive public engagement, were the foundation for a highly progressive, comprehensive and innovative Act in the first instance and we can hope that a similar situation may create a similar outcome this time around.

Catriona McNaughton is Manager - Communications at FPL Advisory.

FPL Advisory is a team of specialists resolving risks and creating opportunities with respect to government. We work with public sector and corporate clients to execute strategies for owning and managing change.