< December 2022 newsletter


Resource management law replacement a can of worms!

The first two of three new Acts to replace the Resource Management Act 1991 – the Spatial Planning Bill and the Natural and Built Environment Bill – passed their first reading in November and are open for submissions until the 5th February 2023.

The new legislation sets five objectives for the new resource management system.

  • To protect and, where necessary, restore the environment and its capacity to provide for the wellbeing of present and future generations.
  • To better enable development within natural environmental limits including a significant improvement in housing supply, affordability and choice, and timely provision of appropriate infrastructure including social infrastructure.
  • To give proper recognition to the principles of Te Tiriti o Waitangi and provide greater recognition of te ao Māori including mātauranga Māori.
  • To better prepare for adapting to climate change and risks from natural hazards and better mitigate the emissions.
  • To improve system efficiency and effectiveness and reduce complexity while ensuring local input and involvement.

HOW THE NEW RESOURCE MANAGEMENT SYSTEM WILL WORK

The new system places more emphasis on upfront planning, and requires decision-makers to produce three key planning documents: 

  • A National Planning Framework (NPF) on matters of national significance, produced by central government.
  • Regional Spatial Strategies (RSS) based on this Framework, produced by fifteen Regional Planning Committees.
  • Following the approval of an RSS the Regional Planning Committees will develop Natural and Built Environment Plans (NBE plans).
  • Implementation and consenting will continue to be the responsibility of councils.


Diagram: How the new resource management system will work

For an overview see: Key components of our future resource management system.

REASONS FOR CONCERN

In keeping with our commitment to promote democracy, equality of citizenship, and the rule of law, we have reviewed how the new bills impact on these values. We have come to the conclusion that these reforms are more about instituting a co-governance regime than about a better, more efficient resource management system. Our primary concerns can be summarised as: 

  • the enshrining of inequitable rights based on race; and
  • much reduced democratic accountability; and
  • diminished opportunity for local voices to be heard; and
  • increased uncertainty in resource management.

1. Local decision-making and democratic accountability will be greatly reduced

The Regional Planning Committees (RPCs) are required to develop a Regional Spatial Strategy (RSS) under the Spatial Planning Act, and a Natural and Built Environment Plan under the Natural and Built Environment Act. These committees, of which there will be 15, will be made up of representatives of local government, Māori, and central government (central government involvement is limited to the development of the RSS).

Although the RPCs will represent all councils in the region, it is not mandatory for every council to have representation on the committee. The composition arrangements are to be agreed to by councils and an iwi and hapū committee of the region (Natural and Built Environment Bill, sch 8 cl 3). It is also unclear whether council-appointed members must be elected councillors.

In addition to the possible loss of local representation on the RPCs, the legislation specifies that the committees must have a minimum of two Māori representatives out of a minimum membership of six. As the precise shape of the committees will be negotiated between the councils and Māori in each region at a later date, the door is open for 50/50 co-governance of these committees (or worse). Indeed, the Waitangi Tribunal has suggested the Government commits to 50:50 Māori-council composition on the committees, saying this "could take a lot of the heat out of the selection process".

2. The lack of opportunity to hold to account those in decision-making roles

The Regional Planning Committees will be making significant decisions that will impact on the lives and wellbeing of all citizens. These committees will decide how their region will grow and change over the next thirty-plus years. They will be making determinations such as what gets built, where it gets built, how it gets built, and if it gets built. 

If people are going to be put in places of decision-making that have significant impacts on other people's lives, their livelihoods, and their wellbeing, then they should be subject to democratic accountability. The safest recourse would be through the ballot box. But as it stands there will be very little in the way of electoral accountability, and none in the case of the Māori members of the Regional Planning Committees.

3. Consultation requirement adds another layer of bureaucracy

The Regional Planning Committees will be required to consult with iwi authorities of the region during the preparation of the strategies and plans. They will be required to initiate engagement agreements by inviting the following Māori groups to enter into one or more agreements:

  • iwi authorities, and groups that represent hapū, whose area of interest includes any part of the region:
  • customary marine title groups whose customary marine title area under the Marine and Coastal Area (Takutai Moana) Act 2011 includes any part of the region:
  • other Māori groups with interests in the region, if the committee considers that entering into engagement agreements with those groups is desirable to ensure that the views of all Māori groups with interests in the region are properly considered in preparing the region’s plan.

The purpose of these engagement agreements is to provide a mechanism for a committee and Māori groups with interests in the region to agree and record how the Māori groups are to participate in preparing the Regional Spatial Strategy and the Natural and Built Environment plans. They also must agree how the groups’ combined participation is to be funded by the regional planning committee (Spatial Planning Bill, cl 37-41 / Natural and Built Environment Bill, sch 7 cl 9-13).

Furthermore, the process for preparing a Regional Spatial Strategy must comply with Māori participation arrangements, such as any applicable Mana Whakahono ā Rohe; any relevant engagement agreement; and any relevant iwi and hapū participation legislation or agreement under that legislation (Spatial Planning Bill, cl 33 / Natural and Built Environment Bill, cl 677).

4. The integration of undefined Māori custom into legislation 

Environment Minister David Parker has claimed that the new legislation will make it cheaper, faster, and easier to do things. But provisions point to the possibility (probability?) of messy legal challenges, costing much time, money, and angst. As Dr Oliver Hartwich of the NZ Initiative points out in his commentary published by The Australian:

“This Bill takes the integration of purported Māori custom into the New Zealand legal system to a new level. It prominently enshrines various Māori concepts as sources of law which may not be properly known even to most New Zealand lawyers…..”

As just one of several examples, the NBE bill states that:

“All persons exercising powers and performing functions and duties under this Act must recognise and provide for the responsibility and mana of each iwi and hapū to protect and sustain the health and well-being of te taiao in accordance with the kawa, tikanga (including kaitiakitanga), and mātauranga in their area of interest.” (Natural and Built Environment Bill, cl 6)

Dr Hartwich: 

“These terms are not just legal or political puffery. They present as core elements of the Bill. Tikanga is mentioned 31 times throughout. Mātauranga Māori comes up 26 times. Kaitiakitanga can be found in seven places. They all beat “property right”, which only features three times.”

To add to the uncertainty, the meaning of such terms is far from uniform, reflecting the varied histories and customs of different hapū/iwi. As Supreme Court judge Justice Joe Williams said, it is not for the courts to declare tikanga or to change it, but for tribal experts to define.

As Dr John Robinson writes in Tikanga in law: what does it mean?

“The vagueness of tikanga and the impossibility of combining it with common law would create a lawyers’ nightmare – or, perhaps, a lawyers’ gravy train”.

The NBE is not the first piece of legislation to embed indigenous customs into statute. But more than any other legislation before, the Natural and Built Environments bill and the Spatial Planning bill embody what are presented as Māori legal concepts, writes Dr Hartwich.

“We may thus see the emergence of a new legal system in New Zealand – and perhaps a new system of government, too. The new system seems unlikely to be compatible with key elements of the rule of law, as generally understood.”
“Whatever the motives of the legislators, the Bill warrants wider discussion. Yes, it is “just” a Bill about resource management (important as that is). But it is a dramatic step on a path towards a different legal system: one defined by tribal concepts – and by tribes apparently unconstrained by their non-Māori neighbours.”
“What we are witnessing in New Zealand is the emergence of an altogether different system. It has more in common with George Orwell’s Animal Farm where “all animals are equal, but some animals are more equal than others.”

You can read Dr Hartwich’s full article here:

‘Some more equal than others? NZ has more in common with Orwell than the Magna Carta’

Further legal uncertainty

Another provision fostering legal uncertainty is the requirement that all persons exercising powers under the legislation must give effect to the [undefined] principles of te Tiriti o Waitangi. This replaces the RMA’s current requirement for the Treaty of Waitangi’s principles to be “taken into account.”

There is a substantial difference between taking account of something and giving effect to it. The Supreme Court has ruled that "give effect to" means implement - it is a strong directive.

Advice received from legal firm Simpson Grierson confirms this. (See from paragraph 20).

This directive is fraught with uncertainty, especially as the so-called Treaty principles are up for debate and we are told, “still evolving.”

5. National Māori Entity to police Treaty compliance

An Independent National Māori Entity is to be established. It will have several roles – including monitoring how the resource management system is giving effect to the principles of te Tiriti, providing input into the National Policy Framework, and advising people at all levels of the resource management system.

The National Māori Entity will be an independent statutory entity and will operate independently of the government of the day.

In more detail, the independent National Māori Entity will: 

  • monitor and assess whether the resource management system is giving effect to the principles of te Tiriti (with reports provided to monitored groups, and responses required, to demonstrate consideration of and subsequent actions from the Entity’s findings);
  • provide direct input into the development of the NPF, using its insights and findings from Tiriti performance monitoring;
  • have the opportunity to nominate members to be considered for appointment to the NPF board of inquiry and will have the right to be heard at the board of inquiry hearings;
  • provide advice to those in the resource management system, either proactively or on request;
  • be consulted by the Chief Environment Court Judge when the Judge is making appointments to Independent Hearing Panels (IHPs) as part of the NBE plan development process (noting that nominations of members to IHPs will be determined by those representing the regions). It is intended that Māori will determine the membership of the National Māori Entity. Details on the appointment process are currently being worked through. 

For more on the National Māori Entity, see page 50 of ‘Our Future Resource Management System Overview'.

6. Te Oranga o te Taiao statements - another ‘Te Mana o te Wai’ in the making?*

One of the primary purposes of the NBE is to recognise and uphold te Oranga o te Taiao. This concept is defined in the legislation as:

(a) the health of the natural environment; 
(b) the essential relationship between the health of the natural environment and its capacity to sustain life; 
(c) the interconnectedness of all parts of the environment; 
(d) the intrinsic relationship between iwi and hapū and te Taiao.

The legislation makes provision for iwi or hapū to – at any time – provide a statement on te Oranga o te Taiao to the relevant Regional Planning Committee. It is noted that this statement may relate to allocation matters (Natural and Built Environment Bill, cl 106).

The bill is silent on how much weight these statements would carry.

*Te Mana o te Wai statements are a mechanism in the Water Services Entities Act that will enable iwi and hapū to have a significant influence at the operating level.

7. Iwi/hapū and Crown to engage on freshwater allocation

Currently, decisions on freshwater allocation are largely made by local government. However, the NBE proposes significant changes to this system. A Freshwater Working Group will be established, which will develop a process for engagement between the Crown and iwi and hāpu, at the regional or local level, on freshwater allocation (Natural and Built Environment Bill, cl 689-693). 

The outcome of this engagement may be reflected in an allocation statement on the issues relevant to the allocation of freshwater, if agreed between the Minister and iwi and hapū. 

8. Other provisions

Additional to the provisions outlined above, iwi, hapū, and Māori will have the other specific participation, engagement and/or consultation opportunities, such as:

  • Local authorities and Regional Planning Committees will be able to transfer one or more of their functions, powers or duties to an iwi authority or a group representing 1 or more hapū – without needing to provide evidence they represent the appropriate community of interest; can provide greater efficiency; and have technical or special capability or expertise. (Natural and Built Environment Bill, s 650). 
  • The National Planning Framework must consider any relevant customary marine title planning document prepared by a customary marine title group under section 85 of the Marine and Coastal Area (Takutai Moana) Act 2011 (Natural and Built Environment Bill, cl 52) and enable Māori to be involved in the monitoring of environmental limits and targets. (Natural and Built Environment Bill, cl 53)
  • When preparing or updating the evaluation framework, the chief executives must engage with relevant government agencies and local government, regional planning committees, the Parliamentary Commissioner for the Environment, the National Māori Entity, and Māori. (Natural and Built Environment Bill, cl 836)
  • In the appointment of commissioners, the Regional Planning Committee must consult iwi, hapū, and Māori of the region, and appoint at least 1 person with an understanding of tikanga Māori and, as appropriate, the perspectives of the local iwi or hapū. (Natural and Built Environment Bill, sch 7 cl 55)
  • The Chief Environment Court Judge must consult the National Māori Entity regarding the required collective skills, knowledge, and experience for members of Independent Hearing Panels. (Natural and Built Environment Bill, sch 7 cl 93(4)).

This list is only indicative - there is much more………….

Democratic societies emphasize the principle that all people have equal rights. The proposed legislation is at odds with this concept - and therefore democracy - as it delivers to iwi, hapū, and Māori extensive rights not provided to other citizens. By contrast, the public will have limited options to participate, have their voices heard, and hold decision-makers to account.

HAPŪ/IWI/MĀORI ROLE IN THE FUTURE SYSTEM

Crown Law concedes provisions could be seen as discriminatory 

While Crown Law concedes some of the provisions in these two bills could be seen as discriminatory to non-Māori, they justify their finding that the Bill appears to be consistent with the rights and freedoms affirmed in the Bill of Rights Act with dodgy, dishonest, and frankly laughable reasoning, e.g.

See: Crown Law advice on Consistency with the New Zealand Bill of Rights Act 1990: Natural and Built Environment Bill

Timeframe to make submissions causing concern

Submissions are due by 5 February 2023 (extended from 30 January)

As local bodies are pointing out, the timeframe is grossly inadequate as it covers the Christmas and New Year holiday period, when many key planning staff members will be away from councils. In a letter to the Environment Committee chair Eugenie Sage, Canterbury Mayoral Forum chair Nigel Bowen said: “Most councils will have their last meeting of the year in early or mid-December, and do not reconvene until later in January. Indeed, Parliament itself closes for a similar timeframe.”

The letter goes on to say that comprehensive and effective submissions will not be able to be completed.

WHAT YOU CAN DO

Please have your say about our future resource allocation and planning system. The Environment Committee is currently taking submissions. Submissions on both bills close 11:59 pm on Sunday, 5 February 2023. You can submit using the form template on the Parliament site, the links are:

For more chance that your views will be heard, we encourage you to tick the box saying you would like to present directly to the Environment Committee.

Please share information about the legislation with your friends and family – it is vitally important the public are made aware of the proposed changes to resource management.

REFERENCES

Parliament: The Natural and Built Environment Bill

Parliament: The Spatial Planning Bill

Ministry for the Environment: Key components of our future resource management system

Ministry for the Environment:

Bell Gully: Transformation in short supply as new environment and planning bills echo previous legislation

Crown Law advice on compliance with the Bill of Rights Act 1990: Natural and Built Environment Bill and the Spatial Planning Bill

MEDIA COVERAGE

The Australian: Some more equal than others? NZ has more in common with Orwell than the Magna Carta

Sunlive: RMA reforms: Local voice a key concern for council

Property Council of NZ media release: A shiny new system or the Wazgij of planning systems?

NZ Herald: No co-governance in RMA reforms - Environment Minister David Parker

The Platform: Mayor of Napier Kirsten Wise on the Resource Management Act

Stuff: Councils frustrated at 'unreasonable' timeline for submissions on RMA reforms

Australian Journal of Water Resources July 2020: Ngā Puna Aroha: towards an indignous-centred freshwater allocation framework for Aotearoa New Zealand

COMMENTARY

Dr John Robinson: Tikanga in Law: What does it mean? (NZCPR)
Anthony Willy: Stepping off the Bench Part Two - Tikanga Māori (NZCPR)

Go back to the December 2022 newsletter


RELATED ARTICLES


Report on the Constitutional Kōrero 2022 conference

A conference to discuss the progress of formal constitutional recognition of indigenous peoples in their respective countries was held at the University of Auckland on 21-23 November. The Constitutional Kōrero 2022: Transforming New Zealand’s Constitution conference brought together indigenous lawyers and academics from New Zealand, the Pacific, North America, Australia, Asia, Latin America, Greenland, Scandinavia and Africa. Continue reading

Pharmac to change drug funding priorities

The Government’s key driver for its current health sector reforms is to secure better and “more equitable outcomes for all New Zealanders, but in particular for Māori, Pasifika, disabled people, and other priority populations.”  An emphasis on equity of outcome forms much of the focus of the Pae Ora (Healthy Futures) Bill, which will come into effect on 1 July 2022. We have previously covered the new legislation in PAE ORA - THE RADICAL CHANGE TO OUR HEALTH SYSTEM Continue reading

The 'decolonisation' of civics and citizenship education

“The definition of ‘civics’ must also be broader than simply liberal democratic notions premised on the idea of indivisible sovereignty. The definition must look beyond the existing constitutional arrangements and carefully incorporate Indigenous constitutionalisms and aspirations”  - NZPSA Civics Citizenship and Political Literacy in Aotearoa New Zealand: A Public Discussion Paper Continue reading

Loss of local control but greater role for iwi/hapū in resource management

Your chance to have a say on the preliminary draft of the Natural and Built Environments Act - one of three to replace the RMA - is running out fast. This opportunity closes in 2 days’ time - at 11:59 pm on Wednesday 4th August. There is not much in the preliminary draft of the Government’s proposed resource management reforms that will meet the stated aim of reducing the cost and time taken to consent projects or simplify the rules for building houses. On the contrary, rather than simplify some of the proposals will add to the complications.  Continue reading

Preferential treatment for iwi under proposed Fast Track Consenting Bill

We are asking for your help to fight against legislation currently being drafted by the Government which clearly discriminates in favour of iwi, while the rest of us would effectively be marginalized. The issue is urgent - the Government plans to push this legislation through by late June - under urgency and with minimal public input under the pretext of COVID-19. Continue reading

Action Plan for Healthy Waterways

Thank you to everyone who took the opportunity to make a submission on the Government’s 'Action for Healthy Waterways' discussion document. Around seventeen and a half thousand submissions were received, reflecting much interest in the proposals. From a democracy point of view, it is of great concern that several proposals point to the undermining of the democratic control of water, and include the intention to require local authorities to compulsorily include a vague and undefined set of values and interests in the management of the water bodies and freshwater ecosystems in their region. Continue reading

Plans to widen the scope of CVAs

It has been quite some time since we covered the issue of Cultural Values Assessments (CVA). This does not mean they are no longer an issue. To the contrary – the taniwha has been quietly working in the background, sharpening its teeth – as evidenced by reports on a project undertaken to research the effectiveness of the CVA process for influencing resource management and consenting in Auckland, and recommending ways to increase iwi/hapu involvement in the resource consent process. Continue reading

Resource Management Act to be reviewed – again!

Environment Minister David Parker has launched an "overhaul" of the Resource Management Act (RMA), seeking to cut complexity and costs and better protect the environment.  Continue reading