21 June 2001 Hon Marion Hobbs Speech Notes

Combined Meeting Of The Canterbury Branches Of The New Zealand Planning Institute And Resource Management Law Association, Christchurch, Thurs June 21, 5.30pm

Thank you for inviting me to speak to you this evening. There are a number of things I wish to say to you tonight: Firstly, I want to outline my vision and objectives for the environment, including work on Rio+10. Then I will talk about the Resource Management Act, including the Amendment Bill and the Environment Court.

I consider it important to think about the Act in the broader context of the environmental issues facing New Zealand. In my experience it is easy for those working with the Act on a daily basis to get very concerned about timeframes and the latest Court decision while almost losing sight of why we have the Act in the first place.

We pride ourselves on our Clean Green 100% Pure image, but the environment is in trouble. Many of our urban beaches and streams are unsafe because of contamination from farm runoff, stormwater drains and sewage overflows. Over 1000 of our known animal, plant and fungi species are considered threatened. The loss of natural ecosystems and habitats has turned a once-continuous range of unique ecosystems into a patchwork of isolated fragments. Most of our cities and some small provincial towns periodically experience air quality worse than London's. We have a waste disposal problem - it doesn’t magically evaporate or disappear once the rubbish person picks it up from the gate.

We have to do better. I don’t mean simply that “the government” has to do better. I mean we ALL have to do better - individuals, community groups, pressure groups, local government, lawyers, scientists, planners, journalists, central government, rural residents, urban residents¡K

Thankfully, more and more New Zealanders are waking up to the fact that economic growth doesn’t have to mean dirty air, polluted water, dead wildlife and ruined landscapes. We have in place environmental legislation that puts the protection of the environment at the forefront.

My vision is to:

Make our clean, green image a reality in our cities, towns and rural places.

At the end of the day, I think New Zealanders want relatively simple things, such as being able to swim at a clean beach, to see the horizon on a clear day, to live in healthy and pleasant cities, and to hear native birds singing in their backyards. Unfortunately many people do not recognise that these are under threat. If they do, they are often daunted by the increasingly complex solutions or by the need to limit their own expectations (such as restricting coastal subdivisions). They see environment as "over there" in - for example - a national park¡K but not in their own backyard. And that reflects itself in government expenditure: $100 million for West Coast forests, but $25 million to run the Ministry for the Environment. We spend as much to run MfE as we do to run the Education Review Office.

My vision acknowledges the gap between New Zealand’s clean green image and its somewhat clean, still green around the edges reality. I want to use that acknowledgement as the first step towards motivating change. And I want to involve all New Zealanders in working on the solutions.

This vision is my contribution to the whole-of-government pursuit of sustainable development. I am pursuing six broad objectives to make this vision a reality:

- To motivate and empower people to own the problems and the solutions

- To reduce risks to people and the environment - eg. hazardous substances

- To promote environmentally friendly economic growth - economic growth does not have to mean environmental degradation.

- To cement a close working relationship with local government and iwi

- To forge a strategic alliance with clean, green business to promote sustainable development (eg. the energy savings in The Warehouse)

- To streamline rules and regulations (without compromising the above) so that they are owned and understood and not something left to lawyers and planners.

And I want the Ministry for the Environment to take a very close look at whether the whole system is operating in a way that will help us deliver on these broad objectives. There are four key areas I want the Ministry to focus on:

1. Performance in environmental management: I want to know how we can best monitor environmental results and the performance of local and central government agencies. We need to look at how we provide incentives to councils and other agencies to meet the government’s overall environmental objectives;

2. Promoting Community Action: I want to examine how we promote environmental awareness and action in the community; so that we can set up more effective long-term communication and education programmes.

3. Business innovation: I want to create new approaches to encourage environmental innovation in business. We need to look at how we can “tip the playing field” for those players that are willing to embrace sustainable development.

4. Environmental legislation and institutions: I want better integrated management of waste and hazardous substances under RMA and HSNO (and I am willing to go "up the pipe" to achieve this rather than stick slavishly to looking at environmental effects). I want less litigation and more alternative dispute resolution. I want new mechanisms for promoting national policy, consistency and standards. I also want to think about alternative institutional models that will improve capacity and leadership at the national level.

In conclusion, I am signalling a strategic shift in direction. It means recognising the gap between the clean green image and reality. It means seeing environment as an economic opportunity not just a cost. It means working both from the bottom up (which I had already begun through Rio+10 and similar community awareness programmes) and from the top down (through stronger leadership, promoting best practice, developing more standards and reviewing the institutional capacity to deliver these things).

So that's my broad vision for the environment.

As a first step to involve the community I’ve recently asked ordinary New Zealanders, through the Rio+10 programme, what they think about the state of our environment. The Programme has two key objectives.

The first - and more important - is getting people in the community thinking and talking about the state of our environment. The second is getting public input on the environment as a contribution to New Zealand’s report to the World Summit on Sustainable Development next year.

The Ministry for the Environment has now distributed more than 10,000 Rio+10 starter packs to organisations, families and schools around the country. We have close to 1,000 responses, with dozens more arriving every day. We now have less than a month to go in this programme. I would urge you to contribute your views, either on the simple response form or in more detail if you prefer.

I will feed the information we receive back to the next earth summit in South Africa next year. It will be interesting to see how many people who fill out a Rio+10 report card think that our clean green image is a myth.

The strong level of interest shown in the Rio+10 community programme indicates to me that many people do care. To a very large extent New Zealanders' cultural identity is intertwined with our landscape, our outdoors lifestyle, and our perceptions of the quality of our environment. People want to be involved in thinking about our environment and its essential connection with our quality of life.

The RMA plays a key part in my vision for the environment.

A group of six Ministers has recently been established to consider compliance cost issues and the Resource Management Act. There are a number of Government initiatives currently in progress, which relate to the RMA:

- The Resource Management Amendment Bill

- The Ministerial Panel on Business Compliance Costs set up by the Minister of Commerce

- Resourcing of the Environment Court

- Ministry for the Environment work on best practice and monitoring

The essential purpose of the Ministerial Group on Resource Management is to look at the Resource Management Act from a broad whole-of-government perspective. There are, of course, several different Government Departments each with their own purpose, which can sometimes pull in opposite directions. The key here is the pursuit of sustainable development - considering the RMA and social, economic and environmental issues all together.

The Ministerial Group is therefore seeking solutions that are not just the best for the environment, or conservation, or commerce, but for all New Zealanders. This will help promote innovation and economic growth that creates jobs and at the same time is environmentally sound.

The Resource Management Amendment Bill was introduced to the House nearly two years ago by former Environment Minister Simon Upton. I inherited the Bill, and the new Government made it clear that we had concerns with some of the radical changes proposed by the Bill as introduced.

The Government considers that the Resource Management Act is fundamentally sound - but we are eager to reduce compliance costs provided it does not undermine sound environmental protection and community participation. We do not support the introduction of contestable resource consent processing, mandatory hearings' commissioners on request, and direct referral of consents to the Environment Court. This is because they would compromise environmental outcomes and reduced opportunities for public participation (and the extent to which they would reduce time and costs is always debatable anyway).

We also do not support transferring the archaeological provisions of the Historic Places Act into the RMA. Transferring the archaeological provisions from the Historic Places Act and devolving responsibility to local authorities would be detrimental because local authorities do not have the funds nor the expertise to deal with archaeological matters. However, we recognise that the current system for the protection of historic heritage is not performing as well as it could be, and therefore support strengthening the recognition of historic heritage within the Act.

The Local Government and Environment Select Committee presented its report in the House on 8 May 2001. The Select Committee’s report is yet to be debated by Parliament - the timing for this debate is uncertain, but it could happen in late July or early August. It was envisaged that the Amendment Act would come into force on 1 October 2001, but this might have to be extended depending on how long it takes for the Bill to get through the House.

The Select Committee received and considered nearly 400 submissions, and produced a very lengthy commentary as part of the reported back version of the Bill. If you haven’t already done so, I recommend that you read it. I consider the Select Committee’s report to be a well-reasoned and carefully considered document. The changes proposed will ensure that the processes of the Act work better, without compromising what it was originally set up to achieve - a healthy environment for all New Zealanders.

The reported back Bill provides for a greater range of matters to be included as national environmental standards and clarifies how national environmental standards affect existing resource consents. It also improves the current provisions in the Act for the making of national policy statements, by allowing the Minister (me) to develop terms of reference for the Board of Inquiry, and to remove some of the excessive steps in the national policy statement preparation process.

The Government is committed to providing more national guidance in the form of national policy statements and national environmental standards. The Select Committee’s recommendations will facilitate this, and help to address criticism that the Act has been implemented inconsistently across the country.

The Select Committee agreed that the archaeological provisions from the Historic Places Act should not be transferred into the RMA and recommended that there should be a new matter of national importance, for the recognition and protection of historic heritage. The Select Committee also agreed that the three most controversial things in the Bill - contestable resource consent processing, mandatory hearings' commissioners on request, and direct referral of consents to the Environment Court - should not proceed.

However, the Select Committee has recommended quite a few amendments that will improve the implementation of the Act with respect to costs of compliance and efficiency. The default period for the lapsing and cancellation of consents has been extended from two years to five years. The list of matters a consent authority must consider when making a decision on a resource consent application is simplified (which should hopefully reduce the length of decisions on resource consents and judgments from the Environment Court). The minimum lease term qualifying as a subdivision is extended from 20 years to 35 years. A time limit is introduced for territorial authorities to approve a survey plan of subdivision (within 10 working days). Local authorities will be allowed to send out a summary of their decisions rather than having to send out a full copy of the decision. Rules in proposed plans that have reached the point of being beyond challenge will replace corresponding rules in the old operative plan. There will be an increased ability for local authorities to delegate powers, duties and functions to employees. The list goes on.

There have been some complaints that the amendments to the Bill sought by industry and other applicants to reduce costs and speed up processes were dismissed by the Select Committee. However, the statistics reveal that 95% of applications are processed as non-notified, and about 82% of all resource consents are processed on time. This suggests that the vast majority of consents are processed reasonably smoothly - many business delays are in fact the result of poor understanding or practice on the part of applicants and their advisers. Changes to the Act won’t solve such problems.

I think the biggest problem with respect to costs and delays is the backlog at the Environment Court. To back up my view, since becoming Minister for the Environment in late 1999, I’ve received an ever-increasing number of complaints about the costs that the delays being experienced in the Environment Court are imposing on the country. Some are saying that these delays are the most troublesome and costly part of the whole resource management process.

I don’t think this is acceptable and in the remainder of my talk here tonight I want to explain to you some of the initiatives that are underway to improve this situation. Before doing this, however, I think it worthwhile to reflect on when and where the existing delays came from.

Before the first generation of RMA plans reached the point where people could start referring matters to the Environment Court, the Court had a fairly manageable workload. In 1993/94, for example, there were only 506 matters awaiting determination by the Court (at that stage, the Planning Tribunal). During the mid to late 1990’s many councils had begun to reach the point where their decisions on the content of the plans were allowed to be challenged by submitters and other interested parties in the Environment Court. This is when we start to see the workload entering the Court exceeding its disposal capacity. As at the end of last month, we had reached the point where there were 2988 matters on the Environment Court’s books, 1861 (62%) of which were plan references.

In spite of their best efforts, the Environment Judges have been swamped by this workload to the point where more matters are entering the Court than are being disposed of. Last year, for example, 1270 new matters were registered and 1195 were heard or otherwise disposed of. This was a big improvement on the year before when there were 2263 new matters and only 1380 disposals.

These figures translate into cases having to spend unreasonable lengths of time in the Court system. The Department for Courts has stated that the average disposal time for matters in the Environment Court has risen from 8 to approximately 24 months. Although some variability would obviously need to be factored in to this estimate to take account of regional differences and of the differences between plan references and resource consent appeals, it does indicate the extent of the problem.

The Minister for Courts and myself announced last week the first in a series of initiatives to improve this situation; that is that a new permanent judge is to be appointed taking the total number of Environment Court Judges to 9 - 2 more than at the start of this year. This combined with an extra $2.1 million of expenditure in the Environment Court will not only enable the Court to offer the public more available hearing time, but will also give it the opportunity to bolster the team of people who provide the Judges with the essential research and case management support that they need.

This will help significantly to reduce the length of the delays. It won’t, however, address the backlog problem over night. To a certain extent, we have to accept that many of the reference matters in particular are tending to be very complex and lengthy and also very reliant on the resources that the local authority has available to inject in to reference disposal. Many councils simply wouldn’t have the cash flow available to them to go any faster even if there was unlimited capacity in the Environment Court. Another theme emerging from the present batch of references is that it is usually necessary to deal first with the major “principal setting” reference cases, followed only then by the more numerous “particular issue” or “site specific” cases.

To be truly effective and durable, it is also necessary that the extra resources be complemented by in depth research into the extent, nature, causes and costs of the delays. That the delays are multifaceted and interconnected is evident from factors such as the amount of hearing time lost through late settlements, the unavailability of legal counsel, and the ability to confine a case to the genuinely relevant issues. It is fundamental that our response to the delays is not based on perception or superficial analysis.

The Ministry for the Environment with the assistance of the Tribunals Division at the Department for Courts is presently carrying out research with a view to ensuring that future decisions about the operation of the Environment Court are made with the benefit of the most robust information available. A crucial part of this research involves talking to people like yourselves who have to live with the delays on a daily basis. You are the people who know what needs to be done. You should contact the Ministry if you’d like to put forward your thoughts and experiences.

You may’ve also heard about the review of case management that the new Principal Environment Judge is undertaking. I understand that she has written to the New Zealand Planning Institute, all district law societies, and the Resource Management Law Association seeking suggestions from members about ways of improving the Court’s management of cases. I urge you to get involved in this process.

I believe that the combined effect of these three initiatives (the extra resourcing, the Ministry for the Environment research and the work of Judge Allin) will help us improve the efficiency of the Environment Court while at the same time safeguarding the opportunity that the RMA provides to people to participate in the resource management process and to produce quality decisions on what are, after all, very complex, contentious and important issues.

The Bill does make some changes that should directly help the Court. Parties intending to join proceedings will need to provide notice to the Environment Court of their intention to appear within 30 working days of receiving a notice of appeal (this may be waived on application to the Court). These parties will be obliged to identify their concerns and provide reasons when they lodge their notice to join proceedings.

One of the amendments you will perhaps be most interested in is allowing

notification decisions to be challenged in the Environment Court rather

than in the High Court. I consider that the Environment Court is better

placed as a specialist court to deal with these matters. The judicial

review procedure in the High Court is expensive and time consuming for

all the parties involved. This is a significant impediment to a

challenge of a notification decision.

I acknowledge that this amendment will increase the workload of the

Environment Court. However, the extra resourcing should help in this

regard, and I consider the benefits to outweigh the disadvantages. It will be important that we monitor the effects of this amendment on the Environment Court closely so that additional measures can be implemented if necessary.

The Bill also removes the requirement for all parties to have to consent to an Environment Commissioner hearing a case without an Environment Judge present. The use of Commissioners, as opposed to Judges, aids the Court to deal more quickly with minor matters.

There you have it. My vision for the environment. And some information about current issues on the RMA. I, or Ministry for the Environment officials, would now be happy to answer any questions you may have.

Thank you

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