The Minister for the Environment, David Parker, has set out a bold programme for environmental law reform.[1]
In particular, the reform programme includes amendments to the National Policy Statement on Freshwater Management (NPS-FM) designed to prevent further degradation of water bodies and to achieve significant improvements in freshwater quality within a 5-year period and to reverse “past damage … within a generation”. The “new and more comprehensive” NPS-FM will include objectives and policies to address sedimentation from both rural and urban development, land use, and subdivision. The amended objectives and policies will also focus on “land use intensification”, and to avoid “repeated battles up and down the country on allocation of nutrient discharges” it is likely that the new NPS-FM will include more policies that have direct effect and that do not require regional councils and unitary authorities to go through the sch 1 process under the Resource Management Act 1991 (RMA) to amend their plans in order to give effect to the new NPS-FM.
The programme also focuses on urban development and proposes to establish an urban development authority (UDA) to deliver large projects in a coordinated way based on “improved planning” to remove any “unnecessary constraints on urban development”, encourage spatial planning and efficient road pricing to manage peak commuter demand, and to ensure that infrastructure funding and finance is available in a timely way. These reforms will be implemented by a series of reforms to the Reserves Act 1977, the RMA, and the Local Government Act 2002. However, the current announcement does not appear to include any proposals to amend the Public Works Act 1981 to provide the UDA with compulsory purchase powers for land assembly to facilitate major development projects on brownfields sites within urban limits.
RMA reform is also anticipated, starting with repeal “the worst of the 2017 changes” to the statute. Beyond that, “more comprehensive” reform is possible, based (inter alia) on the “first principles” work currently being undertaken by the Environmental Defence Society. However, the Minister noted that law change alone is unlikely to change regulatory cultures, and expressed some concern that replacing the RMA with a new statutory code could result in “loss of jurisprudence, huge costs, and long delays”. In particular, he observed that the statutory purpose in “Part 2 sets out crucial environmental bottom lines … and I don’t think we should be quick to discard it”.
Strong support was also expressed regarding the work of the Environment Court, and the Minister stated:
I believe that the Environment Court has the capacity to lend its expertise to additional roles under the RMA and perhaps other areas, such as … hearing challenges to notification decisions.
This latter point is important. One of the key points stressed by the Minister at various places in his address is the need for “improved national direction”. Modern developments with environmental courts, such as, the Environment and Land Court in Kenya, the Land and Environment Court of New South Wales, and the National Green Tribunal in India demonstrate the potential for environmental courts to play a significantly wider role within the legal system.[2] They provide foundation for expanding the jurisdiction of the Environment Court to include – adjudicating matters across the full range of statutes listed in the schedule to the Environment Act 1986, criminal enforcement, judicial review, and the power to award damages. In terms of national direction such reforms would bring the Court into synch with the broad institutional oversight enjoyed by the Minister and the Parliamentary Commissioner for the Environment under the 1986 Act.
What is clear is that the Minister has defined the scope for a substantial programme of environmental law reform that could occupy Parliamentary time well into the mid-term of the current Government. Some reform will therefore be possible, but whether grand-scale repeal and replacement of the RMA is politically achievable within this time period may be another question.
Dr Trevor Daya-Winterbottom, Faculty of Law, University of Waikato
[1] Hon David Parker, “Economic Growth within Environmental Limits”, Address to the Resource Management Law Association Seminar, 28 March 2018.
[2] Laurie Newhook and Ceri Warnock (eds) Environmental Law & Management, (2017) 29(2-3) Special issue: Symposium on Environmental Adjudication in the 21st Century.