Rethinking the RMA: the need for enduring reform

The Resource Management Act was on the statute book for 32 years and 32 days. Its successors, the Natural and Built Environment Act and the Spatial Planning Act, survived just 123 days.

While Sir Geoffrey Palmer was the architect of the RMA, it fell to me to be its enactor. Sir Geoffrey’s government ran out of time to enact his reform. The Opposition, of which I was part, agreed to carry the Bill over and enact it. While some important changes were made, the final Bill drew heavily on the work of the previous Government. Following a review led by Tony Randerson, the law was enacted within six months.

That course could have been adopted again. The RMA owed its longevity, in part, to its bipartisan origins. It is a pity that more effort wasn’t made to achieve the same result. We will never know if a deal could have been reached to carry the reform over to a new Parliament, for further study, before enactment.

An unwieldy coalition of interests supported David Parker’s reforms. On the one hand, development interests attributed any roadblocks to ‘the RMA’ – often without any more detail than that. On the environmental side, the premise was advanced that failure to achieve better environmental and planning outcomes under the RMA was the result of deficiencies in that statute – deficiencies that ostensibly required new law to be passed.

The panel assembled by Mr Parker to diagnose the ills of the RMA – chaired, 30 years on, by the same Tony Randerson – made some sensible diagnoses about matters of process and higher-level spatial planning. But I found the panel’s big insight unconvincing – the claim that, because the RMA failed to mention a raft of developmental outcomes as being important, it was strangled by a focus on the effects they might cause.  

The panel’s solution, adopted by the Government, was to name a shopping list of outcomes and require conflicts between them to be resolved through national or regional direction. That would have entailed political direction over a vast array of economic, social, cultural and environmental matters.

Beyond that, the new statutes introduced many new concepts and terms, raising the prospect of years of litigation to ascertain their meaning and effect.

My submission to the select committee on the NBEA outlined how many of the proposed changes could have been effected simply by amending the RMA. There is no reason the new Government can’t do the same with the changes it wants to make.

Did the RMA fail?

The reach of legislative ambition is a matter of political preference. But from an environmental point of view, the RMA’s more modest purpose was, to my mind, well capable of delivering better environmental outcomes if we had wanted them.

Our failure to do so over three decades reflected choices that had nothing to do with the text of the legislation. I would single out three problems all of which originate in the political world:   

• A lack of willingness to use some of the powers that the RMA provided. If elected leaders do not wish to impose limits on environmental pollution, don’t blame the legislation.
• Insufficient investment in high-quality information to support any sort of regulations. Handing regulatory power to elected leaders is always going to be a hazardous business if we lack the information needed to tell us whether their policies are making a difference.
• An inability to articulate the scale of the transition that tackling environmental problems will impose on some communities let alone how such a transition might be accomplished.

The consequences of these shortcomings are evident in rural New Zealand where water quality is, in many catchments, well below acceptable levels. We have a national penchant for agreeing on aspirational environmental outcomes but a reluctance to carry them through into the field. In some places, land use will have to change or reduce its intensity. But the only significant changes so far have been driven by the accidents of climatic damage or the incentivised conversion of land to forestry as a means of avoiding fossil fuel emissions reductions.

The business of tackling over-allocated catchments or higher discharges of pollutants than the environment can assimilate has barely begun. The technical and governance challenges of linking farm-level outcomes with overall catchment carrying capacity are profound. Change won’t be affordable without new tools. Despite years of talking about it, we don’t seem able to devise allocation regimes that match the productive market economy we say we want.

The role of local government

None of this easy. There are no simple solutions. We have relied to date almost exclusively on regulations. Market-based instruments can supplement these, but they are not a panacea. Look at the arcane complexity of the emissions trading scheme if you doubt me. And remember, every single bundle of property rights in New Zealand reflects the regulatory interventions of decades. People make fun of city dwellers defending their ‘leafy suburbs’. But they’re leafy because the right of those living there to subdivide their land was taken away decades ago and many have since paid a premium to purchase the amenity provided by that leafy, regulated environment.

My experience with the RMA leaves me with a distinct sense of modesty about what legislation can achieve. Sir Geoffrey rightly saw the sense of distilling 57 separate statutes into a single coherent code. His push for integration was one I supported and continue to do so.

But where Sir Geoffrey and I were mistaken was in our estimation of the capacity of local government to operate the Act. In the wake of the upheavals caused by the National Development Act, subsidiarity seemed a protection from ministerial override. More active national direction would have helped but environmental management is about managing real places. Expecting devolved tiers of government to amass the capacity to regulate well and consistently was an expectation too far.  

Any furthering tinkering with the RMA cannot avoid mature reflection on the relative roles of central, regional, and local government. In my submission to the select committee I commented extensively on roles and accountability. Any future RMA reform should consider its interaction with the Local Government Act.

The environment needs to be the centre of any reform

At a fundamental level, the health of the environment underlies everything else we hope for. Any reform should think about environmental management in three layers, each of them spatial and each with its own accountability structure.

The first is biophysical – the natural environment on which we depend and with which we interact. This layer requires a long-term view, and a degree of independence from short-term political pressures. The complexity of the natural environment means that the technical and financial resources of central government will be needed to do this well. Returning some key monitoring, reporting and enforcement tasks to the centre makes sense. A significantly re-tooled Environmental Protection Authority is the obvious candidate to fulfil this role.

The second layer concerns the spatial form that land use development takes and the way in which long-lived infrastructure connects it. This layer is all about integrating outcomes of a socio-economic nature. Provided this is done in a way that runs with the grain and assimilative capacity of the underlying landscape as detailed in the first layer, there is no reason why directly elected regional councils should not be fully accountable for this layer. The sequencing of these two layers is crucial.

Finally, a third layer concerns the world of local communities embedded within the first two layers. This is all about the needs and preferences of local communities about their own place. Elected councils are best-placed to make these place-based rules – provided they are consistent with the biophysical and regional spatial layers.

It’s those provisos I would emphasise. The economy is a subset of the environment, not vice versa. That’s why I proposed a shockingly simple purpose clause to frame the whole business:

The purpose of this Act is to:

(1)          Protect the health of the natural environment and its capacity to sustain life.

(2)          Subject to (1), enable people and communities to provide for their needs and the needs of future generations.

Any re-thinking of the RMA will need to protect the environment whilst curing some of the indisputably cumbersome processes that came to be associated with the Act.

I hope efforts will be made to build cross-party support for whatever eventuates. Environmental management law that flip-flops following every general election will not be good for either our economy or our environment.