Introduction

New Zealand has a delegated environmental regulation regime.

This paper explores the perceived and actual role of central government in environmental regulation in New Zealand. It focuses on the provision of guidance to local decision-makers, and why this guidance has not materialised to the extent expected. Guidance here is taken to mean policy direction and standard setting from a national perspective, particularly through national policy statements (NPSs) and national environmental standards (NESs) but not limited to those tools.

New Zealand, through the Resource Management Act 1991 (RMA) and the Local Government Act 2002 (LGA), has a legislative framework that provides for integrated regulation (covering local planning and environmental effects) at regional and local levels. That planning was intended to occur within a context of guidance from central government that has largely not materialised.

Central government has not fully used its available tools for providing guidance – why?

This paper does not directly propose a different approach, for example complete local delegation of decisions, or the more centralised planning controls and funding arrangements seen in England. Rather the core question addressed is how existing guidance tools have been used and whether this is likely to or should change. This may lead to wider conclusions about the viability of the existing structure, but that question and the development of alternatives are a different debate.

Previous papers have explored general issues of delegation and devolution in the New Zealand context (Guerin 2002, Claridge and Kerr 1998, Kerr, Claridge and Milicich 1998). Those discussions are relevant to this more focused paper but are not reviewed in depth here.

The paper first outlines the current structures for environmental regulation at national and local government levels in New Zealand and the limited linkages between them. It then explores the reasons for making decisions at each level, the causes of tension between them, and the inherent constraints that the design approach of the RMA places on how central government can influence outcomes. This then allows some tentative conclusions about guidance options going forward.

Current central and local government stru ctures for environmental regulation

“Environment” is a term that can be given very wide or narrow meaning depending on circumstances and intent. A narrow meaning can relate solely to ecological functions while wider meanings can include social or economic aspects.

The RMA is comprehensive and principle based.

The drafting of the RMA reflects this ambiguity. Part II specifies matters to be provided for, have regard to, or be taken into account. These matters cover everything from natural character to public access, Maori culture, historic heritage, efficient use and development, amenity values, trout and salmon habitat and the Treaty of Waitangi. Balancing between these matters is at the core of the application of the RMA.

In defining and achieving environmental outcomes under the RMA, both national and local government go through similar stages. Central government has more up-front discretion in defining outcomes through legislation. The stages are to firstly define the outcomes that are to be sought. The second stage is to determine the tools that will be used for the purpose and how they will be combined. The third stage specifies who will make the initial decisions on their application to specific circumstances. These are initial decisions since all such decisions are subject to court review. Decisions can be by elected persons (Ministers or councillors) or independents (hearing commissioners or boards of inquiry).

Table 1 gives examples of outcomes that have been specified in New Zealand and the methods that legislation, mainly the RMA and LGA, has provided for achieving them.