The Resource Legislation Amendment Act 2017 (RLAA) received Royal assent on 18 April 2017. Billed as the largest statutory reform exercise since the Resource Management Amendment Act 1993, arguably the RLAA is the culmination of a series of incremental amendments to the Resource Management Act 1991 (RMA) that were set in train by former Minister for the Environment, Hon Simon Upton, in 1998.[1] These amendments have focused primarily on procedural rather than substantive matters, namely, reducing costs and delays, and simplifying and streamlining statutory process. In particular, the amendments have been concerned with preparing National Policy Statements (NPS) and promulgating National Environmental Standards (NES), the process for deciding nationally significant applications via Boards of Inquiry or direct referral to the Environment Court, and more recently with collaborative and streamlined processes for preparing local authority policy statements and plans.
Providing for more efficient process under the RMA is laudable but masks a growing body of literature concerned about the environmental outcomes delivered by the statute. For example, the former Secretary for the Environment, Denise Church, observed that:[2]
What matters most is that we define, and work towards, all of the ingredients of good process, relevant to all decision makers and find ways of measuring performance.
This might, at last, allow us to move on from our fixation with process, to what matters most of all – how we address the gap between New Zealand’s clean and green image and reality, and reduce the current risks to our health, our environment, and our future economic prosperity.
While more recently the outgoing Parliamentary Commissioner for the Environment, Dr Jan Wright, stated that “one problem with the Resource Management Act 1991 … is that it does not encourage prioritisation” in terms of defining what we “should worry about the most” when setting priorities and moving “beyond the reactionary and the fashionable”.[3]
One solution to these apparently intractable issues could be a major statutory reform exercise culminating in the repeal and replacement of the RMA with next generation environmental law based on best international practice as advocated by the Environmental Defence Society (EDS).[4] This solution is attractive and could align with emerging thinking from leading environmental academics, such as, Robin Kundis Craig from the University of Utah (Quincey College of Law) who has questioned whether the nature and scale of environmental issues means that “it’s time to adopt a new approach to natural resource management – resilience”.[5]
However, while major statutory reform could be an attractive option it may ignore one of the fundamental characteristics of modern environmental law, namely, that environmental statutes are typically enacted as framework statutes focusing on core principles and the processes for implementing them via policy statements and plans, consenting, and enforcement. Framework statutes thus leave the detail about defining environmental issues, determining desired environmental outcomes, and the detailed policies and rules for implementation to delegated legislation or subsidiary documents prepared by other executive or sub-national actors. This analysis exposes a real dilemma for law reformers because it is readily aparent that simply replacing the RMA with a next generation framework statute may be unlikely to deliver more timely solutions to environmental issues.
This dilemma can be illustrated by the reform process that led to enactment of the RMA which took two years and eight months to complete, subsequent experience under the RMA over a period of more than 25 years with only five NPS and five NES currently in force (and another four NES in various stages of development), and an incomplete regional plan framework regarding freshwater quality and quantity. Defining core principles has also been sporadic due to the unpredictability of environmental litigation,[6] absent more proactive use being made of declaratory proceedings.
As a result, while a Royal Commission as proposed by EDS would provide a valuable opportunity to take stock and reflect on future reform,[7] the real question regarding the RMA is whether it is capable of assisting the transition to more sustainable environmental outcomes. Jorge Vinuales from the University of Cambridge suggested that the key to this question will be whether the law introduces a rigid framework or whether the “laws and regulations” can be “managed as adaptive systems that try different types on interventions on the basis of different understandings of a problem and adjust accordingly as the results of such interventions are known”.[8] The objective of this adaptive approach is to ensure that laws remain “fit for purpose” over time.
Elizabeth Fisher from the University of Oxford also invited us to reimagine a different environmental future through her insightful plenary session presentation at the Resource Management Law Association’s 2014 annual conference by focusing on the constitutional nature of the RMA. Looking at framework statutes in this way provides a direct connection with the simplifying and streamlining emphasis of RMA reforms since 2009 in terms of enabling executive or sub-national actors to deliver environmental regulation more effectively by bringing into play active constitutional principles regarding devolution and subsidiarity. This analysis may provide a key for moving forward.
While one of the issues regarding experience with the RMA to date is that local authorities have arguably been left in a policy vacuum, absent operative national guidance, to address environmental issues in an uncoordinated way – this experimentation provides a wealth of information about what works and what doesn’t. Potentially, this puts New Zealand in a position to distill the best from this regulatory experience and to harness this via next generation statutory planning documents.
For a small jurisdiction with limited central government resources expecting nationally led solutions from the exective in all cases is unlikely to be realistic. However, constitutionally New Zealand has a well developed system of local government to which important functions, powers and duties are routinely devolved. This points in the way of greater collaboration between central and local government in the preparation of NPS and the promulgation of NES.
Various methods have been used in the United Kingdom to prepapre national and regional planning policy guidance. Typically, such guidance is prepared by the relevant Minister. But when preparing regional policy guidance for East Anglia a collaborative approach was used, and a standing committee of all local authorities in the region was established with each council being represented by elected councillors and expert members of staff. This collaborative method removed the need for consultation before the guidance was notified and avoided litigation risk after notification because all relevant stakeholders were involved in the process and reached consensus agreement on the final guidance submitted to the Minister for approval.[9] In New Zealand, the Waikato Regional Council has proposed that it should “partner” with other stakeholders to “advocate” for legislative change by government regarding a range of freshwater allocation options.[10] While the Waikato Freshwater Strategy remains to be implemented, this strategic leadership may provide an opportunity for “bottom up” collaborative policy making similar to the UK experience in East Anglia. The initial media response is that the strategy could transform water law and policy in New Zealand. Notably, the news brief from the Resource Management Law Association observed that:[11]
Although Waikato Regional Council is the first local authority to develop such a strategy, the issues it is grappling with are not unique to the Waikato and the solutions the strategy recommends can be scaled nationally.
Bringing these themes together, while progress with implementing the RMA has been slow and concerns about the environmental outcomes actually delivered under the statute remain, the RMA provides a flexible framework structure that is amenable to further adaptive amendments to ensure that it is fit for purpose. To date the approach to implementation of the RMA has been “top down” and, apart from non-statutory ventures such as the Land and Water Forum, collaboration is currently limited to local authority plan preparation. However, providing a statutory basis for collaboration between central and local government and other stakeholders in preparing NPS and NES could assist with more rapid “bottom up” implementation to fill the current voids in the RMA statutory architecture. Additionally, building consensus through a collaborative approach to national guidance would make good use of the wealth of local authority experience accumulated to date, and could potentially result in more concise local authority policy statements and plans. This would be consistent with New Zealand’s common law tradition.[12] But monitoring and adaptive management are likely to be key components of any successful reform.
Dr Trevor Daya-Winterbottom, Faculty of Law, University of Waikato
[1] Minister’s Reference Group Report and Recommendations (Ministry for the Environment, Wellington, 21 September 1998).
[2] Denise Church Councils, commissioners and courts: who should make resource management decisions (Paper presented at RMLA 7th Annual Conference 1999) 14.
[3] Jan Wright “The Environment: What matters most?” [2015] RM Theory & Practice 11-12.
[4] www.lawfoundation.org.nz.
[5] Melinda Harm Benson and Robin Kundis Craig The End of Sustainability (University of Utah College of Law Research Paper No. 83, 7 May 2014).
[6] North Shore City Council v Auckland Regional Council [1997] NZRMA 59; Environmental Defence Society Inc v The New Zealand King Salmon Company Ltd [2014] NZSC 38.
[7] EDS Media Release 29 March 2017.
[8] Jorge E Vinuales Law and the Anthropocene (University of Cambridge, Cambridge, CEENRG Working Papers 2016-4) 63.
[9] Trevor Daya-Winterbottom “Blue Horizons” August 2011 RMJ 21-24.
[10] Waikato Regional Council Waikato Freshwater Strategy (Waikato Regional Council, Hamilton, 30 June 2017) ii.
[11] RMLA News Brief – August 25 (www.rmla.org.nz).
[12] Daniel L Shapiro Legality (Harvard University Press, Cambridge, 2011).