why NZ’s resource laws won't change overnight after this election

RMA – three letters that have struck fear into a generation of farmers, developers, politicians and anyone building a house. Or so legend would have it.

Whatever its original goal of promoting sustainable management of natural and physical resources, the Resource Management Act (RMA^[1]) has long been dogged by claims of unnecessary and inefficient rules that strangle innovation and progress.

The subject of any number of reviews since its inception in 1991, the act was finally replaced in August this year with the Natural and Built Environments Act (NBEA^[2]).

This new law established a framework that replaces the RMA’s plethora of regional, city and district plans with a single, unified system. At the centre of it sits te Oranga o te Taiao, a concept taken from te ao Māori that is described in the official literature^[3] as:

[…] an intergenerational ethic that speaks to the health and wellbeing of the natural environment, and the essential relationship between a healthy environment and its capacity to sustain all life.

For the Labour government that introduced the NBEA, it is mission accomplished. But with the election campaign into its final weeks, there is still great uncertainty about what will happen if there’s a change of government. In short, is the RMA really gone?

Town and country

Labour’s main potential coalition partner, the Green Party, appears committed^[4] to the new legislation. But the centre-right and right parties have other ideas. National, ACT and NZ First all want the NBEA gone.

National and NZ First both want to resurrect the RMA as an interim measure while new legislation is developed. National promises to repeal the NBEA^[5] with some urgency, before its new regional planning panels are established.

One of National’s proposals is to split the management of built and natural environments into different laws. There is logic to this – the former is about improving quality of life for individuals and communities, while the latter addresses the sustainability of underlying biophysical systems within which we live.

Read more: Incremental environmental change can be as hazardous as a sudden shock – managing these ‘slow-burning’ risks is vital^[6]

Put another way, one enables us to live, the other makes life worth living. For example, long commute times and poorly designed dwellings degrade the quality of life for the people affected. But they don’t directly affect biodiversity or natural water quality. The two are related, but the goals are separate.

For its part, NZ First wants to^[7] “temporarily reinstate the RMA before replacing that with a Town and Country Planning Act modelled on legislation used by the Republic of Ireland”. This harks back to 1977 legislation of the same name, which created many of the problems the RMA was designed to address.

In fact, the Irish model quoted by NZ First is not dissimilar to Labour’s NBEA. Both avoid market-led decision making by developing national and regional planning frameworks. But “Project Ireland 2040^[8]” is far more ambitious, incorporating the United Nations sustainable development goals^[9] and seeking to integrate economic development and education within the planning mix.

Back to court

The NBEA and Irish policies represent a far more planned economy than we’ve become used to since the mid-1980s. Perhaps because of that, ACT simply promises to repeal the NBEA without resuscitating the RMA^[10].

The party proposes separating urban development from environmental protection, and wants to focus environmental management on property rights. Changes to property should be allowed unless they directly affect others in some way.

Read more: Trees, rivers and mountains are gaining legal status – but it's not been a quick fix for environmental problems^[11]

The policy is reminiscent of 19th century laws and the reliance on a “tort of nuisance” for dispute resolution. Don’t like what the neighbours are doing? Take them to court – more specifically, a planning tribunal established to settle disputes and determine compensation when negotiations break down.

Theoretically elegant, this solution inevitably involves significant legal costs and would potentially pit individuals with limited resources against large corporations or city councils. (It’s also unclear who would speak for the trees and fish, who will struggle to get to the planning tribunal.)

In practice, such a policy could see some very upset property owners who find their neighbours building medium-density units or social housing. And in theory, without environmental laws and some rules in a city plan, it would still be a property dispute even if they planned a “harmless” waste dump.

Read more: Freshwater quality is one of New Zealanders’ biggest concerns – water-trading 'clubs' could be part of the solution^[12]

The once and future RMA

If there is a change of government, then, what might we expect? Firstly, it is worth remembering the bipartisan origins of the RMA. While it was instigated by a Labour government in the 1980s, it was National that saw the bill into law – with very little substantive change to the draft legislation.

Indeed, Shane Jones, now number two^[13] on NZ First’s list, was an architect of the original RMA during the law reform process at the time.

National in 2024 might also decide that unpicking the NBEA could achieve little other than to scratch healing scabs. If a National-led government opted to simply make changes at the margins, these might include re-configuring the composition of the regional planning committees to meet any concerns about co-governance from coalition partners.

But much of what is now in place under the RMA will keep ticking over anyway. The NBEA has a long transition period, with the Ministry for the Environment advising it will be ten years before it becomes fully functional.

Any new government will need time to develop new legislation if it wants to make significant change. In the meantime, environmental management will be business as usual under the RMA system, regardless of the election result. Complaining about it may well be the other constant.

References

1. ^{^} RMA (www.legislation.govt.nz)
2. ^{^} NBEA (environment.govt.nz)
3. ^{^} described in the official literature (environment.govt.nz)
4. ^{^} appears committed (www.greens.org.nz)
5. ^{^} repeal the NBEA (www.national.org.nz)
6. ^{^} Incremental environmental change can be as hazardous as a sudden shock – managing these ‘slow-burning’ risks is vital (theconversation.com)
7. ^{^} NZ First wants to (www.nzfirst.nz)
8. ^{^} Project Ireland 2040 (www.gov.ie)
9. ^{^} sustainable development goals (sdgs.un.org)
10. ^{^} NBEA without resuscitating the RMA (www.rnz.co.nz)
11. ^{^} Trees, rivers and mountains are gaining legal status – but it's not been a quick fix for environmental problems (theconversation.com)
12. ^{^} Freshwater quality is one of New Zealanders’ biggest concerns – water-trading 'clubs' could be part of the solution (theconversation.com)
13. ^{^} number two (www.nzfirst.nz)