Ministry for the Environment releases wetland regulations discussion document
Following the introduction of the National Policy Statement - Freshwater Management and National Environmental Standards - Freshwater in 2020, it quickly became apparent that the new regime had the potential to create significant, and likely unintended, challenges for developments involving works in and around freshwater bodies. The regime also created some perverse results leading to poorer environmental outcomes. See Fresh problems for freshwater – practical issues with freshwater NPS and NES for more detail on the challenges created by the regulation.
It appears that the Ministry for the Environment (MfE) has listened to the concerns communicated by resource management professionals and industry, with the release of a new Discussion Document containing proposed changes to the wetland regulations. The proposals seek to clarify the definition of wetlands and to provide a consenting pathway for urban development, landfills, cleanfills, managed fills, quarries and mining. These are significant changes that enable development to avoid some of the blighting effect created by the current regime. It should allow development proposals to be assessed on their merits instead of an absolute prohibition and also enable broader environmental outcomes and better ecological effects.
Consultation on the Discussion Document runs until 27 October 2021. You can have your say here.
MfE has also released its finalised Guidance Document on the interpretation of the current NPS-FM and NES-F, which will need to be updated depending on the outcome of the Discussion Document.
National Policy Statement for Indigenous Biodiversity
Another piece of policy to watch out for in the coming months is an exposure draft of the National Policy Statement for Indigenous Biodiversity with an accompanying implementation plan. The Ministry had indicated that this will be released for targeted consultation. MfE has not given any details on what this might entail however, we anticipate that that there will be consultation with industry given that it will be directly affected by the proposals.
Different perspectives on RMA reform – Report from the Select Committee hearings
Submissions on the Exposure Draft containing key elements of the Natural and Built Environments Bill (NBA) closed on 4 August 2021. This was a partial draft of the Bill containing the purpose of the NBA (the "Part 2" equivalent), national direction (what will be known as the "National Planning Framework" (NPF)), and Natural and Built Environments Plans. Our earlier article summarises the key detail of the draft. More than three thousand submissions on the Exposure Draft were received by the Environment Select Committee.
Select Committee hearings were held in August and September with submitters appearing by Zoom once the most recent COVID-19 lockdown had been announced. The Environment Committee hearing submissions is made up of Eugenie Sage (Chairperson, Green), Rachel Brooking (Deputy Chairperson, Labour), Tamati Coffey (L), Simon Court (Act), Anahila Kanongata'a-Suisuiki (L), Scott Simpson (National), Tangi Utikere (L), Angie Warren-Clark (L), Nicola Willis (N).
Key themes
Below we take a look at key themes arising from submissions by various industry and interest groups:
Infrastructure
The key message from infrastructure groups is that the Exposure Draft does not integrate the natural and built environments as well as it needs to – as drafted the Bill favours the natural environment over built environments. The infrastructure sector sees a clear need for the NBA to contain a clear consenting pathway for infrastructure to overcome conflicts with other environmental outcomes and environmental limits. This could be achieved via an acknowledgement in the Bill that environmental limits may be set with specific exceptions or different standards for certain kinds of activities, such as specified infrastructure. Infrastructure submitters also see the NPF as playing a critical part in navigating this pathway-– for this to happen, key stakeholders need to be explicitly engaged in the setting of limits.
While the definition of infrastructure was not included in the Exposure Draft, a number of infrastructure providers submitted on this element, considering that the definition of infrastructure needs to be broad and flexible, covering both public and private infrastructure. Select Committee questions around infrastructure were interested in the definition, in particular as it relates to the scope and the limit of what works should be included.
Māori
One of the key concerns from Māori groups was around the incorporation of Te Tiriti o Waitangi. New Zealand Māori Council and Federation of Māori Authorities Incorporation submitted that Te Tiriti itself be given effect as opposed to its principles, and that Te Tiriti be elevated to sit within the core purpose provision and not a separate section of the NBA. Submissions also sought that Te Tiriti should be given effect to by all parties conducting actions under the NBA. Giving effect to Te Tiri was submitted on by other non-Māori parties who raised queries around what this might mean for non-Crown actors.
Other areas of concern raised by Māori submitters were around the meaning of the NBA purpose of Te Oranga o te Taiao. Submitters sought that the definition be clarified to make it clear that it signifies the environment as an integrated system, with Te Mana o Te Wai in the NPS-FM seen as an example. Māori representation and funding were other significant submission points. There was also a strong preference to see freshwater allocation addressed within the NBA.
The Select Committee was particularly interested in the governance elements of the New Zealand Māori Council and Federation of Māori Authorities Incorporation submissions.
Development interests
Submissions by developers, were generally supportive of the NBA but considered that it will in some cases make consenting and development more difficult. One example was that it is difficult to see how meeting all of the listed environmental outcomes will make the process less bureaucratic and burdensome. The development sector also considered that the Exposure Draft favours the natural environment over urban development. Submissions sought changes to ensure that the NBA clearly recognises the importance of, and adequately provides for, development. Specific submission points sought:
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recognition of development in the purpose clause;
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strengthening of the urban and housing environmental outcomes, but also a recognition that good urban development is not just about housing;
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recognition of private property rights and existing rights across property;
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more granular consideration of environmental limits at local/regional levels; and
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the inclusion of a hierarchy/conflict resolution mechanism to deal with tensions in environmental outcomes.
The Select Committee was particularly interested in the tensions between enabling development and environmental bottom lines, and whether or not the NBA would make it easier to build infrastructure and unlock more land for housing.
Environmental groups
The Environmental Defence Society (EDS) considers that the purpose of the NBA is a substantial improvement on the purpose of sustainable management in the RMA. However, it submitted that the relationship between protecting the natural environment and using it should be one involving a clear hierarchy, which needs to be more strongly articulated. EDS supports the concept of environmental limits but seeks to strengthen them so that limits, once set, cannot be eroded or weakened later. EDS also considers that the NBA should require targets to be set for "improvement" where limits have already been exceeded. Likewise the EDS submission seeks the strengthening of the positive outcomes specified in the NBA with firmer language, requiring outcomes to be "pursued" or "recognised and provided for".
Contrastingly Forest & Bird does not support the Exposure Draft as it stands and believes it should be rejected. Forest & Bird's preference is the retention of the current RMA, with some amendments as necessary. The submission considers that the Exposure Draft lacks any clear requirement to protect nature or the natural environment, much less achieve prioritisation of the environment. With respect to environmental limits, Forest & Bird submits that it is not clear if the limits will be true limits. Like EDS, it seeks improvement targets if a natural resource is degraded beyond an acceptable limit. Forest & Bird's submission also focuses on the implications of the NBA for climate change and emission reductions. It submits that environmental limits should be consistent with emission reduction plans and environmental outcomes must help reach the emission reduction plans. Forest & Bird also seeks that the positive outcome of reducing greenhouse gas emissions should be prioritised above other outcomes in the list.
The submissions of both groups are concerned about the incorporation of compensation and offsetting in the mitigation hierarchy.
Select Committee questions to Forest & Bird showed that the Committee is considering the appropriateness of the extended power and decision-making responsibility to the Minister for the Environment contemplated by the Exposure Draft. And ultimately, the million dollar question, can the NBA achieve both better environmental outcomes while also making it clear how development can happen quicker?
Next steps
The Select Committee is due to report back to Parliament on its findings on 22 October 2021. Any changes arising from the Select Committee report will be made before the full Bill is formally introduced.
There will be further opportunity to give feedback on the reforms next year when the full Bill is introduced to Parliament along with the Strategic Planning Bill. A standard legislative and select committee process will follow with the aim of the NBA and Strategic Planning Act being passed into law in this parliamentary term. The Government is working towards the introduction of the draft Climate Adaptation Act in 2023.
MfE has also indicated that it is working on a transition programme and will seek input around measures to support the successful transition to the new system as the programme develops.
This article is intended only to provide a summary of the subject covered. It does not purport to be comprehensive or to provide legal advice. No person should act in reliance on any statement contained in this publication without first obtaining specific professional advice. If you require any advice or further information on the subject matter of this newsletter, please contact the partner/solicitor in the firm who normally advises you, or alternatively contact one of the partners listed below.