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A glimpse of what we might expect from the long-awaited
Resource Management Act (RMA) Phase Two reforms is now
available with the release last week of the report from the
Technical Advisory Group (TAG) on sections 6 and 7 of the
RMA.
This Brief Counsel provides a quick overview of the
TAG's recommendations.
The TAG was appointed to:
"...provide independent advice to the Minister for the
Environment on any changes needed to section 6 and 7 of the
Resource Management Act 1991 (RMA) to improve the functioning of
the RMA, relative to 20 years' practical experience of its
operations; the Government's environmental and economic
objectives; and the broader second phase of resource management
reforms." 1
The TAG's Terms of Reference included giving
"...greater attention to managing issues of natural
hazards noting the RMA issues arising from the recent Canterbury
earthquakes".2
Why are sections 6 and 7 important?
Sections 6 and 7 list the matters which RMA decision-makers must
"recognise and provide for" (section 6) or "have
particular regard to" (section 7) when achieving the purpose
of the RMA in section 5.
The architects of the RMA intended that it would be
"effects-based", so that an activity would be allowed
provided its effects were consistent with sustainable management
and with the environmental bottom lines in subsections 5(a), (b)
and (c) of the Act.
The TAG's view is that sections 6 and 7 were intended to
flesh out these subsections by prioritising and emphasising
particular "environmental" issues which were to be
safeguarded for the national interest. However, the Report notes
that the courts have not interpreted the RMA in the way anticipated
by the Government,3 instead applying an "overall
broad judgement" approach to Part 2 of the RMA.
Based on this key finding, the TAG recommends a number of
amendments so that the RMA better reflects current case law and
practice. The alternative (changing the law to confirm the original
intentions for the RMA) was seen as more radical:
"Indeed, if the Government were desirous of upholding
the environmental bottom line approach formerly thought to be the
correct interpretation of the Act then significant amendment should
be made to the Act, because that is clearly not the law as
established by judicial interpretation."4
Key recommendations
Align section 6 with current judicial practice by explicitly
recognising the "overall broad judgement" approach to
interpreting RMA principles.
Replace sections 6 and 7 with a new section that expresses
principles clearly subservient to the sustainable management
purpose.
Drop references to protection, preservation, maintenance and
enhancement from provisions dealing with natural character,
outstanding natural features and landscapes and public access to
the coast, wetlands, lakes and rivers.
Give explicit recognition to certain "use and
development" principles – in particular regarding
natural hazard risk management; the planning, design and
functioning of the urban and built environment, and significant
infrastructure.
Remove some matters currently in sections 6 and 7 which the TAG
considers no longer warrant mention, or where there is duplication.
Some of these proposed deletions will be controversial –
e.g. "amenity values" and "trout and
salmon".
Add a new section 7 specifying methods and objectives to be
adhered to by RMA decision-makers. These include timely, efficient
and cost-effective resource management processes; the use of
concise and plain language; specific recognition of
"environmental compensation" (which is increasingly being
suggested for large projects); encouragement of collaboration
between district and regional councils, and recognition of private
property rights.
The Report also suggests a number of consequential amendments to
definitions, a requirement for combined regional and district
natural hazards plans, and changes to the subdivision provisions to
reflect the importance of natural hazards.
What happens next?
The Report is part of a much larger body of work, including the
deliberations of the Land and Water Forum and the local government
reforms. Decisions made within these different work streams will
have to be integrated and consistent with one another, requiring
careful management by officials and policy-makers.
The TAG Report is not Government policy, and the Minister does
not intend to formally consult on it. However, the Government is
interested to hear what you think of the TAG's ideas. If you
would like to provide feedback on the Report, we can help you do
this.
Footnotes
1 Review of sections 6 and 7 of the Resource
Management Act 1001 - Technical Advisory Group Terms of Reference,
page 1. 2 Ibid 3 TAG Report, Page 17 4 TAG Report, Page 18
The information in this article is for informative purposes
only and should not be relied on as legal advice. Please contact
Chapman Tripp for advice tailored to your situation.
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