In September last year, we released an update on the introduction of the Resource Management Amendment Bill to Parliament, which marked the first stage of the Government's proposed reform of New Zealand's resource management system. Public submissions closed in November, and the Environment Committee has now released its report on the Bill, which includes a suite of recommended amendments.
The Committee has recommended a number of changes to the way climate change matters may be considered under the Resource Management Act (RMA). If incorporated into the final version of the Bill, the amendments would remove the statutory barriers to consideration of the effects of activities on climate change under the RMA. These changes are significantly more far-reaching than the Bill's stated purpose, which was to "reduce complexity, increase certainty, and reinstate public participation opportunities … [and] to improve freshwater management and outcomes."
The Committee has also recommended the Bill provide clarification on various procedural matters, in particular to the proposed new freshwater planning process.
The Bill, as reported back from the Committee, will now go to Parliament for its second reading. Although no date has been scheduled, we expect some delay in the next stage of the legislative process due to COVID-19.
Climate change
According to the Committee, a significant number of submissions raised issues relating to climate change, particularly how the RMA interacts with New Zealand's broader climate change policy. While acknowledging that this is one of the matters currently being considered by the Resource Management Review Panel, the Committee has still recommended significant changes to the Bill that will fundamentally alter the RMA's role in addressing climate change.
As amended by the Committee, the Bill would remove the statutory barriers to consideration of the effects of activities on climate change in both the plan making and resource consent processes by repealing sections 70A and 104E. Currently, these provisions bar councils from having regard to the effects of the discharge of greenhouse gases on climate change in the planning and consenting processes, respectively, except in relation to the use and development of renewable energy. Rather than simply repeal the existing barriers, however, the Bill would also add "emissions reductions plans" and "national adaptation plans" to the list of matters that local and regional authorities must consider when making and amending their regional policy statements, regional plans and district plans.
These changes would not come into force until 31 December 2021, to allow time for national direction and policy to develop around local government decision-making on climate change, and to align with the release of the first emissions reduction plan. However, the Committee has recommended that this transitional period does not apply to decision-making by boards of inquiry and the Environment Court. These bodies would be granted the ability to take into account global environmental impacts (including mitigating climate change – not just adapting to climate change) from the date of the Act's commencement.
Freshwater planning process
The introduction of a separate planning process for freshwater was one of the most significant changes proposed by the Bill when it was introduced last September. The Committee has recommended a range of amendments to this new process, which relate primarily to the procedural and administrative aspects of the hearings process and composition of freshwater hearings panels.
Among other things, the Committee proposes to expand the ability of regional councils to develop alternative solutions when rejecting a recommendation from a freshwater hearings panel, and to add further rights of appeal in situations where a regional council accepts or rejects a recommendation that is outside the scope of submissions.
Changes have also been made to the Bill to include an express requirement for the Chief Freshwater Commissioner to consider the need for freshwater hearing panels to have appropriate and sufficient collective knowledge and expertise on a range of key matters. These include judicial processes/cross-examination, freshwater quality, quantity and ecology, tikanga Māori, te Mana o te Wai, local water use and any other "subject areas likely to be relevant".
Comment
The RMA has expressly barred consideration of the effects of activities on climate change in the plan development and resource consenting processes since 2004. There is also a significant body of case law affirming Parliament's intention that such matters be addressed at a national level, rather than on a local or regional basis. The amended Bill proposes to reverse this position, and place a positive obligation on local and regional councils to consider climate change matters when preparing or changing their plans.
While greater recognition of, and provision for, climate change matters under the RMA has been foreshadowed by the Government in its announcements regarding resource management reform, such changes were signalled to be coming as part of the second phase of the Government's reform program. As these changes were not proposed in the version of Bill released for public feedback, many significant users of the RMA, including key infrastructure providers and industrial operators, have not had an opportunity to comment on amendments that, if passed, will effectively reverse the established position on the consideration of climate change issues under the RMA.
With the Government's focus, understandably, on combating COVID-19, it has not yet released anything indicating its position on the changes proposed by the Environment Committee. It is therefore unclear to what extent these changes will be incorporated into the final version of the Bill, or what they may mean in practice.
If you would like further advice, please get in touch with one of our experts.