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Central Government Guidance and the Resource Management Act - PP 05/02

The central government role

Central government has to define what outcomes are significant and how they are to be achieved. This includes the division of responsibility between levels of government, and the extent to which the exercise of those responsibilities is empowered or constrained. Methods for achieving national outcomes can be direct, through prescriptive regulation or funding of projects, or indirect, through a local government process that can be guided by principles and supported by guidance or resourcing.

Central government can state its policy approach, and set standards on technical matters.

Outcomes are set at the national level primarily through legislation, primarily the RMA. These outcomes must then be interpreted by local government and the courts. There is some scope for elaboration of the legislative text. This can occur for the RMA through either NPSs setting out policy principles, or NESs, which are effectively regulations providing more prescriptive controls on narrower issues. Regional policy statements and plans must give effect to provisions in an NPS that affect the statement or plan, but the NPS does not override or replace Part II of the RMA. Part II controls what such statements or plans must contain and sets the primary criteria for decisions on individual applications for resource consents.

After more than a decade of experience with the Act, the system for setting and achieving environmental outcomes in New Zealand should presumably be settling down. This would also suggest a sufficient understanding of its strengths and weaknesses to have identified where guidance is required, and for central government to have provided it.

In practice central government has made little use of its tools.

However, the extent to which this settling down has occurred is variable. Considerable experience has been built up in operating the RMA, but that experience has also exposed gaps in available instruments.[3] There is a debate underway on the extent to which those gaps represent fundamental flaws in a devolved system or are simply errors in implementation that can be fixed (eg, through additional national support and guidance). Experience has also highlighted issues such as a focus on prescriptive regulatory approaches and of course the influence of local politics.

That experience has also highlighted where issues of capability arise within local and central government in the Act’s application. This includes a simple lack of the scientific understanding and data needed to deliver on some outcomes, whether due to funding issues or simply the constraints of a small country.

Further, external pressures are forcing all levels of government to confront issues where national coordination or resourcing is necessary or where local and national interests can conflict. A prime example is freshwater. Shortages require allocation between uses, such as irrigation and electricity generation, which have differing local and national impacts. Meanwhile the increased run-off from more intensive agriculture is a factor in falling water quality affecting national health and environmental outcomes. At what point does the national interest justify overriding a local interest in weaker or stronger standards, or prioritising one outcome above others?

These questions are inherently difficult to answer, and highlight a reason why the level of guidance has not met public expectations. There has been only one NPS (on coastal policy) and there were no NESs until 2004.

The New Zealand Coastal Policy Statement (NZCPS) is mandatory, was gazetted in May 1994 and is currently under review. The context for the NZCPS is that the Minister of Conservation approves it, as well as regional coastal plans, restricted coastal activities (the Minister is the consent authority and has an appointee on the hearing committee), vesting of reclaimed land and tendering of space in the coastal marine area. This context gives the NZCPS a quite distinct status.

Anecdotal reasons for the lack of guidance may not tell the full story.

Anecdotal reasons for the lack of other guidance often cited include spending priorities within central government, the fact that the “call-in” mechanism changes the decision-maker but not the decision framework, and the cumbersome nature of the NPS mechanism. It is also difficult to define such guidance in the absence of experience with application of the Act (some plans are only just coming into force) and a reluctance to constrain local communities. For all these reasons, and probably others, the extent of central government involvement in environmental policy is a very live issue.

The current proposed changes to the RMA (see Table 2) will increase the Government’s options but do not themselves help with decisions on when and how those options should be taken up. Later sections of this paper explore whether there are deeper reasons for the lack of such action to date and if so what it means for the future.

Table 2 – Proposals for improving the RMA
NPSs

The board of inquiry now required for each proposed policy statement will be optional. Instead, the Minister could engage in consultation.

It will be possible to specify that certain provisions can be included in council planning documents without the need for normal local planning processes.

NESs in some cases will be able to apply absolutely (without scope for council variation), or to require councils to show that it is necessary if they want to set standards that are stricter.

Modifying call-in

Call-in powers for the Minister for the Environment will be extended to applications for private plan changes, designations and heritage orders (ie, not just resource consents).[4] The board of inquiry hearing the consent application will be required to have certain skills and will be selected from a standing body of commissioners. Appeals will be allowed only on points of law.

A ”menu” of alternatives to call-in will include:

  • providing information about the national interest through a submission on a proposal
  • funding an independent coordinator to ensure processes are run effectively
  • directing that an application be heard jointly if more than one council must give consent
  • appointing a person to the hearing panel.

Source: [www.mfe.govt.nz/publications/rma/improving-rma-national-interest-sep04/index.html]

Notes

  • [3]For example, the RMA was not really designed to handle allocation of natural resources held in common, but rather focused on management of activities on privately owned land, and did not compel councils to cooperate on issues with cross-boundary impacts.
  • [4]Call-in allows the Minister to establish a board of inquiry to consider a resource consent application.
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