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RMA amendments: Some thoughts on the Process

RMA amendments: Press release 4.

Some thoughts on the Process Reforms.

National Interest Many submitters and critics of the Act are keen to have some statement about promoting economic development and employment so as to “balance” the environmental focus of the Act.

While this sentiment is understandable it is difficult to introduce such statements without opening the door to those who are keen to use the Act as an instrument of economic planning.

I believe there are some changes in the wording of Section 5 which could assist, but as there is no intention to modify section 5, I believe that the present focus on improving process, and the setting of national standards and policies may do much to remedy the problem.

Our aim should be to get the Act working well, which means enabling people to generate wealth etc while protecting the environment, regardless of the size, scope or location of the proposed activity.

Certainly we must avoid any changes which open the door to a round of expert witnesses dealing with economic growth, employment, trade, exports, imports, job creation and so on. We are sufficiently burdened with the costs of “experts” on the environment.

The principle of “sustainable management” maintains this focus. “Sustainable development” opens up the court to every theorist in the country. Can we really afford to have Jane Kelsey slugging it out with Gareth Morgan in the Environment Court?

National Policy Statements.

Everyone seems to want more National Policy Statements and yet the contents and track record of the Coastal Policy Statement, the only NPS in existence, hardly inspires confidence. These documents are so remote from the local scene that they draw few submissions except from professional lobby groups and end up being so general as to provide little guidance to decision makers dealing with real “on the ground” conflicts of interest.

Preparing guidelines, templates, and reports on the state-of-the-art are probably more useful activities for MfE than labouring to produce more National Policy Statements. The exception would be National Policy Statements which require councils to adopt standards or rules relating to infrastructure hardware such as cellphone towers. The appropriate standards would then sit “under” or “within” the policy framework.

National Environmental Standards.

National Environmental Standards (NES) seem likely to provide far more benefits than National Policy Statements. However, their generation should involve the interests of the executive as a whole rather than just the MfE. For example the Ministry of Economic Development, the Ministry of Energy, the Ministry of Health, and the Ministry of Agriculture and Fisheries all have a contribution to make to the development of such standards. There is an argument for having a separate agency reporting to, say the Prime Minister, which would generate such standards drawing on all the resources available from both the private and the public sector. The aim would be to make the standard setting agency less political than a single ministry, and to have it enjoy the reputation for neutrality of say the Standards Association of New Zealand.

Call-In Procedure

This procedure has been used only once, probably because it remains subject to appeal so there seems little point. The proposed reforms to make such the Call-in more useful appear to be worth pursuing. There is not sufficient detail in the proposal to comment much further at this stage.

Re-consenting Existing Infrastructure

The proposal to require consent authorities to have regard to existing investments will reduce the present uncertainty.

However, the process should also recognize that new technologies may make existing investments an inefficient use of resources. The proposal to recognize the sunk costs of an investment should be complemented by allowing consent authorities to receive and have regard to comprehensive cost and benefit analysis from any party to the decision making process. (But not from the consent authority itself because that would open the door to economic planning by the councils themselves.)

Resource Allocation

Unfortunately the proposed reforms, as they stand, appear to consolidate the presumption that the most efficient and effective way to allocate natural resources is through the political process. There seems to be no recognition of the role that market led processes can play in the efficient allocation of resources and yet overseas jurisdictions are increasingly turning to such methods, especially for water rights. Changes to Council Hearings

The Centre supports the proposals to improve the skills of decision makers at Council hearings.

However the end result of the proposals to make the first hearing more “rigorous” may work against the interests of private citizens and landowners.

The Environment Court was intended to be a “user friendly” court but this has become so formal that anyone running their own case or trying to avoid the expense of legal costs runs the risk of having costs granted against them for lacking “legal focus”. The process of exchanging evidence, and the subsequent rebuttal evidence, with the consequent narrowing of cross examination rights leaves the lay person floundering in the face of a determined Counsel for Council.

Hence, there seems a strong argument to preserve the Council hearing as a user friendly and comparatively informal first round.

In particular a requirement to exchange evidence could place a huge burden on the small individual applicant who for whatever reason may face objections from 100 or so members of the community. The exercise of the right to require exchange of evidence could be used to overwhelm small players in the process.

Again, the devil will be in the detail. The Centre strongly supports the right of an applicant to choice between Councillors and Commissioners. The Centre also supports the right of an applicant to be heard on the evidence tabled rather than suffer years of delays caused by section 92 requests and simple inaction. At least the applicant can then get to be heard before the Environment Court where the case will be judged on its merits.

If there is to be a central group of commissioners to deal with the proposed call-in procedure, the Centre believes that applicants should have the choice of being heard by such a panel if the Council has failed to process the application or make decisions on notification etc within the allotted time periods. At present there are no sanctions to back up these time periods and councils ignore them at their pleasure.

Changes to the Environment Court

The Centre believes that the proper resourcing of the Court and the improvement in case management is already providing major gains for all parties. Therefore it would seem sensible to let these changes “bed in” rather than introduce changes to the Court procedure, which on the face of it opens up the opportunity for additional hearings to decide on the scope of the hearing. This process appears to be mending itself – so why re-break it?

Consulting with Iwi The Centre has already commented on the proposed reforms in its Press Release 1. Our major concern is with the procedures for “co-governance” being imposed on Councils as part of Treaty settlements. While these fall outside the RMA itself these agreements between Councils and Iwi overturn some of the procedures within the RMA itself and appear to be unconstitutional.

For example, these “memoranda of understanding” typically require Councils to pass on to the local Iwi every application for a resource consent regardless of the status of the activity. Hence, non-notifiable activities, are notified to the local iwi. Although these agreements are negotiated between Councils and Iwi, the Council or the Iwi routinely pass on the Iwi charges to applicants even though the citizens of the district or region have not been parties to the agreement.

These practices are beginning to cause far more aggravation and racial tension than any of the consultation processes of the RMA itself – and of course the RMA gets the blame.

ENDS


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