Resource Management Act 1991


Resource Management Act 1991

Infobox NZ Legislation
short_title= Resource Management Act 1991
long_title=An Act to restate and reform the law relating to the use of land, air, and water.
introduced_by=Simon Upton
date_passed=22 July 1991
royal_assent= 22 July 1991
commencement=1 October 1991
amendments=1993, 1994, 1996, 1997, 2002, 2003, 2004, 2005
related_legislation= Crown Minerals Act 1991
status=Current
The Resource Management Act (RMA) is a significant, and at times, controversial Act of Parliament passed in 1991 in New Zealand. The RMA regulates access to natural and physical resources such as land, air and water, with sustainable use of these resources being the overriding goal. New Zealand's Ministry for the Environment describes the RMA as New Zealand's principal legislation for environmental management. [ [http://mfe.govt.nz/rma/index.php/ Resource Management Act] (from the Ministry for the Environment website, retrieved 2007-07-31)]

As the RMA and the decisions made under it by councils and in courts affect both individuals and businesses in large numbers, and often in very tangible ways, the RMA has variously been attacked for being ineffective in managing adverse environmental effects, or overly concerned with bureaucratic restrictions on legitimate economic activities.

ignificance

The RMA was significant for three reasons. Firstly, the RMA established one integrated framework that replaced the many previous resource-use regimes, which had been fragmented between agencies and sectors, such as land use, forestry, pollution, traffic, zoning, water and air. [Fisher, D. E. (1991), 'The resource management legislation of 1991: A judicial analysis of its objectives', in Resource Management, Brooker and Friend Ltd, Wellington, Vol. 1A, Intro 1-30. p 2, 2nd paragraph.]

Secondly, the RMA was the first statutory planning regime to incorporate the principle of sustainability. [Smith, G. (1997). 'The Resource Management Act 1991 - "A biophysical bottom line" vs "a more liberal regime"; a dichotomy?' Canterbury Law Review 6: 499-538, p 501. ]

Finally, the RMA incorporated ‘sustainable management’, as an explicitly stated purpose placed at the heart of the regulatory framework [Harris, B. V. (1993) 'Sustainable management as an express purpose of environmental legislation: the New Zealand attempt' - 'Otago Law Review' 8: 51-76.] and this purpose is to direct all other policies, standards, plans and decision-making under the RMA. [Fisher, D. E. (1991), Op cit, p 11, 2nd paragraph] Having the purpose of the RMA at the apex of an unambiguous legislative hierarchy was a unique concept worldwide at the time of the law's inception. [Fisher, D. E. (1991), Op cit. p 11, first paragraph.]

Related legislation

The enactment of the RMA had an effect on a large amount of Acts, regulations and orders. The notable acts to be repealed were the Town and Country Planning Act, Water and Soil Conservation Act, Soil Conservation and Rivers Control Act, and the Minerals Act. [Frieder, J. (1997) 'Approaching Sustainability: Integrated Environmental Management and New Zealand’s Resource Management Act'. Ian Axford (New Zealand) Fellowship in Public Policy, 1997. p 12.] The mining and minerals regime was separated from the Resource Management Bill at the third reading stage and was enacted as the Crown Minerals Act 1991. [Palmer, G. (1991). Op cit., p 9.]

* A total of 69 Acts and amended Acts were repealed. (See RMA Sixth Schedule)
* Nineteen regulations and orders were revoked (Seventh Schedule)

However, three of these statutes, provided important elements of the RMA. The Soil Conservation and Rivers Control Act 1941 provided the precedent for catchment-based entities and catchment boards became part of the new regional councils. The Town and Country Planning Act 1977 provided the consenting and planning procedures. [Birdsong, B. (1998) [http://www.fulbright.org.nz/voices/axford/docs/birdsongb.pdf Adjudicating Sustainability: The Environment Court and New Zealand's Resource Management Act] , Prepared by Bret Birdsong October 1998 copyright © Ian Axford (New Zealand) Fellowship in Public Policy, pages 4 & 5.] The Water and Soil Conservation Act 1967 provided the consenting regime and case law for water. [Milne, P. (2005) [http://www.rmla.org.nz/_downloads/Milne_Salmon05.pdf Allocaton of Public Resources under the RMA: Implications of the Aoraki Water Trust v Meridian] . 2005 Salmon lecture, Philip Milne, 1 July 2005, an address given at the July 2005 Salmon Lecture held in Auckland by the Auckland Branch of the Resource Management Law Association, page 154]

Beginnings

Following the National Party's antipathy to environmental issues in the 1980s, as expressed in the Think Big economic development projects and the National Development Act, the New Zealand Labour Party went into the 1984 election campaign with a platform of reforming planning and local government institutions and adopting better environmental policies. [Wheen, N. (2002) A history of New Zealand environmental law. pp 261-274, In 'Environmental histories of New Zealand', edited by Pawson, E. and Brooking,T. Oxford University Press, Melbourne, page 269.] The reform policy would involve creating an integrated resource decision making system to replace the existing sectoral based system. The Labour Party environment policy, such as this quote from Part I, paragraph 3, owed much to the Brundtland Commission's concept of sustainable development; [Fisher, D. E. (1991), Op cit. p 2, fifth paragraph.]

to ensure the management of the human use of the biosphere to yield the greatest sustainable benefits to present generations while maintaining the potential to meet the goods and aspirations of future generations

Resource Management Law Reform

In 1987 election the the fourth Labour Government won a second term in office and Deputy Prime Minister Geoffrey Palmer became the Minister for the Environment. Palmer initiated a comprehensive reform project for New Zealand's environmental and planning laws. This was the Resource Management Law Reform or RMLR. Palmer's objectives explicitly included giving effect to the Treaty of Waitangi, cost-effective use of resources, the World Conservation Strategy, intergenerational equity, and intrinsic values of ecosystems. Palmer chaired a Cabinet committee supervising a core group of four people supported by the Ministry for the Environment. The core group developed policy through a series of 32 working papers and through extensive public consultation. In December 1988, the reform proposals were published. In December 1989, Palmer introduced the 314-page Resource Management Bill to the Parliament of New Zealand. The Select Committee process was not completed by the election of 1990 , which Labour lost. However, the new National Minister for the Environment, Simon Upton continued the law reform process leading to the enactment of the RMA. [Palmer, G., (1991). [http://www.ucalgary.ca/~cirl/pdf/Resources34.pdf 'Sustainability - New Zealand's resource management legislation.'] Resources: the Newsletter of the Canadian Institute of Resources Law No 34: 6 pp 3-10.]

Final drafting of the RMA

The new Minister, Simon Upton, noted the divergent views of submitters on the proposed purpose and principles of the Bill. A Cabinet paper of 10 March 1989 argued that the overall objectives and the broad philosophy of the Bill should be stated in a purpose section and clarified in a section on fundamental principles. After the 1990 election, Simon Upton appointed a Review Group to assess the purpose and principle clauses. The group consisted of: Tony Randerson, a lawyer as chair; Prue Crosson (now Prue Kapua), a lawyer; environmentalist Guy Salmon; planner Ken Tremaine; and Brent Wheeler, an economist. [ [http://www.rmla.org.nz/_downloads/speech_aug2001.pdf The Beginnings of the Resource Management Act] , Hon Justice A P Randerson, 'Beyond the RMA', an address given to the Resource Management Law Association (Auckland Branch) at a seminar held on 28 August 2001 to celebrate the 10th Anniversary of the Enactment of the RMA.]

The Review Group considered that the clauses had become a conflicting 'shopping list' of matters advanced by interest groups, with no clear priority. That would result in the 'trading off' or balancing of socio-economic and biophysical aspects. They rejected such a balancing approach in favour of use within biophysical constraints. They considered that the Bill should not have a purpose of sustainable development with a focus on social justice and wealth redistribution. They concluded that purpose of the Bill should be 'sustainable management' and that the critical aspect of that purpose should be intergenerational equity, that is, safeguarding natural resource options for future generations. A second purpose of avoiding, remedying or mitigating adverse effects of activities was added. The purpose and principles sections were consequently rewritten.

Finally, with the approval of Cabinet, Simon Upton added the third 'sustainable management' purpose of 'safeguarding the life-supporting capacity of air, water, soil and ecosystems'. [Upton, S., (1995) [http://www.nzlii.org/nz/journals/WkoLRev/1995/2.html 'Purpose and Principle in the Resource Management Act'] Waikato Law Review 1995 Vol 3, pp 17-55. Also available as [http://www.arcadia.co.nz/rm/Stace_Hammond_Lecture.pdf 'The Stace Hammond Grace Lecture: Purpose and Principle in the Resource Management Act'] ]

Simon Upton stated in his third reading speech to Parliament that the purpose of the RMA was not concerned with planning and controlling economic activity, nor about trade-offs, but about sustaining, safeguarding, avoiding, remedying, and mitigating the adverse effects of the use of natural resources.

The Bill provides us with a framework to establish objectives with a biophysical bottom line that must not be compromised. Provided that those objectives are met, what people get up to is their affair. As such, the Bill provides a more liberal regime for developers. On the other hand, activities will have to be compatible with hard environmental standards and society will set those standards. Clause 4 sets out the biophysical bottom line. Clauses 5 and 6 set out further specific matters that expand on the issues. The Bill has a clear and rigorous procedure for the setting of environmental standards - and the debate will be concentrating on just where we set those standards. [(July 1991) 51b Hansard, Resource Management Bill Third Reading, 3018-3020.]

Part 2 Purpose and Principles

The result of Upton's input was that RMA was enacted with a Part 2 consisting of three 'principles' (sections 6,7 & 8) in an unambiguous hierarchy below the overarching purpose of 'sustainable management', set out in section 5. [Fisher, D. E. (1991), Op cit. p 8-10.] Under that section, the RMA has one specifically defined purpose; to promote the sustainable management of natural and physical resources. [Resource Management Act, Section 5(1) - Parliament of New Zealand, 1991]

Definition of sustainable management

The RMA, in Section 5, describes sustainable management as

managing the use, development and protection of natural and physical resources in a way, or at a rate which enables people and communities to provide for their social, economic, and cultural well-being and for their health and safety while-

(a) Sustaining the potential of natural and physical resources (excluding minerals) to meet the reasonably foreseeable needs of future generations; and

(b) Safeguarding the life-supporting capacity of air, water, soil, and ecosystem; and

(c) Avoiding, remedying or mitigating any adverse effects of activities on the environment. [Resource Management Act, Section 5(2) - Parliament of New Zealand, 1991]

Principles

Section 6 is list of matters of national importance that shall be 'recognised and provided for' in achieving the purpose of the RMA; [Resource Management Act, Section 6 - Parliament of New Zealand, 1991]


*natural character of the coastal environment:
*outstanding natural features and landscapes:
*significant indigenous habitats and vegetation:
*public access to waterbodies:
*Maori culture, traditions, ancestral lands, water, sites, waahi tapu, and taonga:
*historic heritage:
*recognised customary activities.
Section 7 is list of matters that all decisions 'shall have particular regard to' in achieving the purpose of the RMA; [Resource Management Act, Section 7 - Parliament of New Zealand, 1991]

*Kaitiakitanga:
*stewardship:
*efficient use and development of natural and physical resources:
*efficiency of the end use of energy:
*amenity values:
*intrinsic values of ecosystems:
*quality of the environment:
*finite characteristics of natural and physical resources:
*habitat of trout and salmon:
*climate change:
*renewable energy.

Section 8, Treaty of Waitangi, states that in achieving the purpose of the RMA, 'account shall be taken' of the principles of the Treaty of Waitangi. [Resource Management Act, Section 7 - Parliament of New Zealand, 1991]

Interpretation

Under the RMA virtually all significant uses of land, air, coastal, or water-related resources are regulated by provisions of the RMA or by rules in regional or district plans or by decisions on consent applications. [Fisher (1991) Op cit.] Plans are to achieve the purpose of the RMA which is 'sustainable management' of natural and physical resources. Most rule-making and decision-making is expressly related back to the 'Purpose and Principles' section, Part II, which contains the statutory definition of 'sustainable management' in section 5. [Harris (1993). Op cit.] Consequently, the interpretation that is to be placed on the definition of 'sustainable management' will be of considerable importance.

Very soon after the enactment of the RMA, Fisher (1991) wrote a substantial legal analysis of the RMA showing that the definition of 'sustainable management' was possibly ambiguous. [Fisher (1991) Op cit. p 28.] In spite of the 'biophysical bottom line' interpretation, as in Simon Upton's third reading speech, being perhaps the most grammatically correct, [Fisher (1991) Op cit. p 17.] Fisher noted that a 'single integrated purpose' definition could be made where providing for human well being was equal with and not subordinate to the 'bottom line' paragraphs a) to c) of s 5(2). [Fisher (1991) Op cit. p 17.]

Some six years after the enactment of the RMA, several decisions on consent applications had been appealed to the Environment Court where s5 was given some degree of interpretation. By 1997, two interpretations of s5 were recognised, 'balancing ' and the 'environmental bottom line'. [Williams, D.A.R. (1997). 'Environmental and resource management law in New Zealand', 2nd edition, Butterworths, Wellington.] However, the only common ground among the varying interpretations was the lack of consistence in the reasoning. [Smith, G. (1997). The Resource Management Act 1991 "a biophysical bottom line" vs "a more liberal regime"; a dichotomy? Canterbury Law Review 6: 499-538, p 521.]

Harris (2004) states that the "broad overall judgement" is most commonly accepted interpretation of sustainable management. [Harris, R. 2004. "Development v Protection, an introduction to RMA and related laws", page 57, Chapter 3A, 'Handbook of Environmental Law' ISBN 0959785183, Edited by Rob Harris, published by theRoyal Forest and Bird Protection Society of New Zealand Inc., Wellington, First Edition, 2004.]

Skelton and Memon (2002) reviewed the introduction of sustainable development into the RMA and the evolution of case law that had lead to the "broad overall judgement" interpretation. They also criticised Simon Upton and the Ministry for the Environment for interpreting 'sustainable management' in section 5(2) of the RMA as a matter of biophysical environmental bottom lines. Skelton and Memon concluded that the "broad overall judgement" (a 'weighing', rather than a 'balancing' approach) is the interpretation of 'sustainable management' now favoured by the Environment Court. [Skelton, P. and Memon, A. (2002). [http://www.rmla.org.nz/_downloads/RM%20Journal%20March%202002.pdf Adopting sustainability as an overarching environmental policy] . Resource Management Journal 10(1), March 2002, p 8-9.]

The 'broad overall judgement' approach is not without critics. Wheen (2002) argues that the broad overall judgement interpretation reduces 'sustainable management' to a balancing test with a bias towards tangible economic benefits over the intangible environmental concerns. [Wheen, N. (2002) A history of New Zealand environmental law. pp 261-274, In 'Environmental histories of New Zealand', edited by Pawson, E. Brooking,T. Oxford University Press, Melbourne. p 273.]

Upton et al (2002) responded to Skelton and Memon's paper by noting that the Review Group on the draft resource management bill had quite intentionally drafted section 5(2) to emphasise biophysical constraints in order to move away from the overly broad and unweighted list of socio-economic and environmental objectives in the Town and Country Planning Act. They concluded;

In our view, the plain wording of section 5 is easy enough to understand without recourse to concepts like sustainable development that are not referred to, or the insistence that an anthropogenic reading of the section must necessarily involve weighing up everything against everything else. [Upton, S., Atkins, H. and Willis, G. (2002). Section 5 re-visited: a critique of Skelton and Memon's analysis, Resource Management Journal 10(3), November 2002, p 10-22. [http://www.rmla.org.nz/_downloads/RM%20Journal%20Nov_02.pdf RMLA Journal] and [http://www.arcadia.co.nz/rm/section5.htm available on Simon Upton's website] ]

Resource consents

The RMA requires that certain uses of natural resources require a specific authorisation by a resource consent. As part of an application for resource consent, an Assessment of Environmental Effects (AEE), a report similar to an Environmental Impact Assessment, is required. This assessment, in theory, includes all potential impacts on the environment, including those that are only long-term, with 'sustainability' as a strong, though not yet clearly legally defined part of the Act.

Opinions

The Act has regularly made headlines since its introduction, receiving the blame for the failure of a number of high profile projects, such as the Project Aqua hydro dam.

Proponents of the RMA argue that it ensures the sustainable use of resources for the foreseeable needs of the present and future generation, and also recognises the importance of indigenous rights in the mitigation process. In this respect, the RMA is a pioneering act in the area of sustainable development. Other advantages cited are the umbrella function, which (at least in theory) allows all consent decisions about a project to be considered in one process, freeing applicants from the need to research and apply for all the various permits they would otherwise have to apply for their development. It is also noted that the RMA is 'effects-based'. In other words, instead of a proposal needing to be on a list of approved or permitted developments or activities, if the applicant can prove that the 'effects' of the development on the environment are unproblematic, then he or she is allowed to go ahead. In practice however, this proof is often elusive, especially with new or contested activities or developments.

Environment and conservation groups

New Zealand's largest conservation organisation, the Royal Forest and Bird Protection Society of New Zealand considers that;
* public participation is minimised as that 95% of all resource consents are granted without public notification,
* less than 1% of applications for consents are declined (MfE 1999-2000 survey),
* businesses equate public participation with added costs, but the OECD considers New Zealand to have low environmental compliance costs,
* consenting is an uneven playing field, as developers have better access to legal, planning, scientific experts than the public,
* the absence of national environmental standards and national policy statements has led to inconsistency between councils. [ [http://www.forestandbird.org.nz/rm/costsofrma.pdf 'Valuing Our Environment - The costs of the RMA'] Kate Mitcalfe, Environmental Lawyer, Royal Forest and Bird Protection Society of NZ Inc.]

Business interests

Critics of the act argue that the resource management process is a barrier to investment, being unpredictable, expensive, protracted and often subject to undue influence from local lobby groups, especially the indigenous Maori iwi.' [http://freeradical.co.nz/pdf/Cresswell_article.pdf 'It's Time to Drive a Stake Through the Heart of the RMA] ' (PDF) - 'the free radical', June/July 2004] A typical business viewpoint is expressed by the New Zealand Business Roundtable. [ [http://www.nzbr.org.nz/documents/submissions/submissions-2004/waitaki_catchment_bill.pdf 'Submission on the Resource Management (Waitaki Catchment) Amendment Bill'] , New Zealand Business Round Table, February 2004, paragraph 2.1]

'The NZBR has long expressed concerns that are widely shared in the business community about the RMA. It is a cumbersome, time-consuming and costly piece of legislation that adds considerable uncertainty to business decision-making. It is a major impediment to the country's economic growth.'

The Business Round Table has also argued that the RMA contains core concepts, such as sustainable management, intrinsic values, Treaty principles, kaitiakitanga and the definition of the environment, which are 'hopelessly fuzzy'. [ [http://www.nzbr.org.nz/documents/articles/articles-2006/061020contest.htm 'Contest of Environmental Policy Ideas Welcome'] by Roger Kerr, published in the Otago Daily Times, 20 October 2006.]

Companies have used it to hinder the operations of their competitors, ["We can find plenty of examples where competing businesses use the Act to restrict competition" such as "petrol stations and supermarkets". Business New Zealand Chief Executive Simon Carlaw, quoted in King, D. (2003). RMA a costly business. RMA costly to development enterprises, say business leaders. The Press, Christchurch, 3 June 2003.] ["Mayor wants development objections limited" - "The New Zealand Herald", Thursday 21 February 2008] even though the law specifically states that business competition is not to be a factor in decisions about giving consent. [Resource Management Act, Section 104(3)(a) - Parliament of New Zealand, 1991]

Other business critics argue that the RMA is destructive of property rights.

Also especially criticised was the inability to restrict submissions against a project to those directly affected, and the need to go through a Council-level hearings phase even when it was already apparent that a case would eventually go to the Environment Court.

The RMA has also been blamed for preventing Project Aqua, a major hydroelectric scheme, by making compliance, respectively the compliance process, too costly. [http://www.nzherald.co.nz/section/3/story.cfm?c_id=3&objectid=3558845 Speed up RMA, says business] - New Zealand Herald, Monday 5 April 2004]

Maori

New Zealand's indigenous Maori have in return argued that decisions made under the RMA do not adequately take into account the interests and values of New Zealand's indigenous people. [' [http://nzsses.auckland.ac.nz/conference/2004/Session5/36%20Morgan.pdf A Tangata Whenua Perspective on Sustainability using the Mauri Model] ' - Morgan, Te Kipa Kepa Brian, 2004, paper presented at the International Conference on Sustainability Engineering and Science, Auckland, New Zealand, 7–9 July 2004]

See also

* District Plan (the main planning instrument of the RMA at District Council level)
* Environment Court (the court dealing with Resource Management Act matters)

References

Further reading

* Forest and Bird, 2004 'Handbook of Environmental Law' ISBN 0959785183 (Considered the standard commentary on the RMA)

External links

* [http://www.legislation.govt.nz/act/public/1991/0069/latest/DLM230265.html New Zealand Government legislation] - Full text of the current Resource Management Act 1991.
* [http://gpacts.knowledge-basket.co.nz/gpacts/public/text/1991/an/069.html The Resource Management Act 1991] The original Resource Management Act as enacted in 1991.
* [http://www.mfe.govt.nz/publications/rma/ Ministry for the Environment] RMA Web Page.
* [http://www.mfe.govt.nz/publications/rma/aee-guide-aug06/ Ministry for the Environment] - guide to preparing an AEE.
* [http://www.rmaguide.org.nz/ The Community Guide to the Resource Management Act 1991] Free Online version, navigate via left side bar, 2nd Edition, Environmental Defence Society.
* [http://www.rmalink.org.nz/index.php RMAlink] - community RMA information resource.
* [http://www.rma.net rma.net] Court Decisions under Resource Management Act.


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