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Environmental Legislation An Act For Developers

"NZ's primary piece of environmental legislation has increasingly become an Act for developers"

Notes for Jeanette Fitzsimons speech on the first reading of the Resource Management Act Amendment Bill, to be delivered to Parliament on Thursday 16 December 2004. Embargoed until delivery. Please check against delivery.

This Bill claims to be about improving the Resource Management Act. It is actually a fundamental change to the original purpose of the Act, which was protecting the environment and public participation in decision-making. Instead, we have vastly increased ministerial powers to override the decisions of communities and local councils.

This Bill has six main objectives but none of them even pretend to be about improving environmental quality or slowing environmental destruction.

This is a Bill the National Party should be proud of. It has campaigned for years to make the RMA more developer-friendly and if National had introduced this Bill, Labour would be expressing outrage alongside us. But there is now little difference between Labour and National on the question of public participation in planning, or the protection of the natural environment.

We have had numerous RMA amendments since the Act was passed in 1991 and none of them have aimed to improve environmental outcomes. We have had numerous reviews of how the Act is working. There have been reviews of compliance costs, timeliness, and how well it works for developers, but never has there been a review of how well it works for the environment. The fact is that, aided by numerous amendments and case law, the RMA doesn't work for the environment.

New Zealand's primary piece of environmental legislation has increasingly become an Act for developers and this Bill takes it further in that direction.

It is legislation that is driven by government panic that democracy may actually work and communities may make decisions about how they want to live which don't accord with the Government's plans. We know from the Growth & Innovation Survey that most New Zealanders value their quality of life and the quality of their environment more highly than higher economic growth. But that is not the Government's view, so it has given itself draconian ministerial powers to override local decision-making and ram through unpopular projects.

All of this is supposed to be in the national interest, but there is no definition of national interest in the Bill. It seems it is whatever the minister says it is. We do, however, have a definition of infrastructure, which is appropriate because this is really the infrastructure bill. The ministerial overrides are primarily to enable a smooth passage for infrastructure projects like motorways, large dams or hydro projects, transmission lines, or landfills. In each case, where an unpopular giant project is proposed to be foisted on a local community, there will be alternatives - instead of motorways, we could have better public transport and urban planning; instead of hydro projects, we could have wind or energy efficiency; instead of landfills, we could have better resource recovery; instead of transmission lines, we could have more local generation and fuel-switching. But only the large, expensive, unsustainable option is to receive a free-ride under this legislation, further entrenching the dominance it already has.

To disguise just how draconian this Bill is, the Government has had to resort to doublespeak.

The first objective of the Bill is supposedly to give clear guidance to decision makers on how to take national interest matters into account. This so-called "guidance" takes a number of forms.

Turning to clauses 20 and 21, we find that "guidance" may involve forcing all councils to abandon environmental standards they have set with their communities for air and water quality, and to replace them with lower standards set by Government. Environmental standards, provided for since the Act was passed, have been unused until recently, when standards for dioxins and for air quality were developed. The Greens have always supported having standards and have frequently called for this part of the Act to be used. But the Act provides for standards to be a minimum below which councils may not go, in the interests of protecting the environment. Now they are to become a maximum level of environmental quality, which may not be exceeded.

We also find that environmental standards may be used to require a council to make a certain activity a permitted use with no conditions and no requirement for a resource consent. One can only wonder what unpopular activities this is designed for. Food irradiation plants? Coalmines? Transmission lines? Environmental standards are by this Bill to become anti-environmental standards, another example of doublespeak.

Further "guidance" is to be available in the form of National Policy Statements (NPS). As first conceived in the Act, these were robust statements of policy that would survive several changes of Government and guide local decision-making. To achieve this broad level of support, they were developed by an independent board of inquiry with a consultative public process. This, too, was too democratic for successive governments to use, so in 2003 it was streamlined to make it easier for ministers. But still we have no NPS. So now it is to become a creature of the minister, who can use any process he likes as long as there is an opportunity for public comment and someone reports to him on the submissions. There is no longer any requirement for hearings and the whole process could be undertaken by a junior staff member and the minister. This will of course not have the robustness intended by the Act and local authorities will be bound by National Policy Statements that change with every government.

Consent hearings and applications for plan changes can now be snaffled up by the minister and given to an appointed board at the request of the applicant who thinks they may not get what they want from the local community. There will be no right of appeal, except on points of law, against the decisions of these ministerially appointed boards.

So much for ministerial intervention for Government's pet projects for infrastructure. There are also serious concerns about changes to the way local decision-making will work.

If an applicant fails to give relevant information about a project, a council can no longer require that it be provided. A developer can refuse to provide additional information, and effectively dare the council to turn the application down for that reason. Theoretically, they will have to weigh up that risk, that their project may fail to get consent because they have not provided enough information. In practice, we know that will generally not happen. Councils will instead make decisions in ignorance, not knowing what they don't know. The less information that is disclosed, the less opportunity there is for objectors to contest it. It is a recipe for non-disclosure and decisions based on poor quality information. The Ministry tried this on in 1999 in the previous amendment Bill. It was thrown out by the select committee with the minister's agreement. Now they are trying it on again.

The first consent hearing, by the council or its appointees, is to be made much more formal. We support the training to be provided and required for councillors on hearings committees. It is long overdue and widely supported.

We also support encouragement for those on the hearings committee to test evidence that is given and to be trained in testing evidence. This cannot, though, replace testing by cross-examination at the Environment Court.

The proposal is that with a stronger first hearing, the Environment Court should not rehear any evidence that has been heard, and that no new evidence should be able to be presented except with the leave of the court. The court must decide whether evidence has been properly tested at the first hearing and refuse to hear it again if it has been. But there will have been no cross-examination at the first hearing because this is not allowed, and rightly so, at that stage.

The only outcome I can foresee is that every Environment Court appeal will begin with several days of legal wrangling about whether certain pieces of evidence have been properly tested. It won't be an easy decision for the court, as there are no transcripts of council hearings. With sufficiently sharp and well-paid lawyers, it will be possible to establish that all evidence that is disputed must be heard again and cross-examined. The hearing will be made longer, more complex and much more costly, and once again the developer with the deep pockets will outbid the community group trying to protect their neighbourhood.

The Explanatory Note for the Bill describes the purpose of this schemozzle as "to enable consent processes to be undertaken in a manner that is effective and efficient, and that provides certainty of process for applicants". It certainly provides certainty: big money will win, even more easily than it does now. As for effective and efficient, only from the perspective of lining lawyers' pockets.

Council hearings are stacked against community groups in several ways. They must have all their evidence and witness briefs in at the start - an easy task for a corporate with paid staff but an onerous one for unpaid community groups. They may not bring new evidence later. The council has new powers to strike out a submission if they find it to be vexatious or frivolous and refuse to hear evidence if they find it to be not relevant. Lawyers will spend a lot of time arguing at the new compulsory pre-hearing meetings that their opponents should not be heard at all.

And finally, just to complement the Foreshore and Seabed legislation, a local authority may, after satisfying many sub-sections, set up a joint management agreement with another body such as an iwi organisation - presumably, where matters of special significance to Maori are at stake - but may then act alone without the agreement of its partner and may terminate the joint management agreement unilaterally with 20 days' notice. I can't see iwi organisations flocking to take advantage of this generous provision to participate in managing natural resources in which they have a particular interest.

The Greens will not vote for this legislation. There are some clauses we support but they are vastly outweighed by the matters I have mentioned. We will, however, listen hard to submissions and work to improve it at select committee.


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