Thursday, December 3, 2015

Frank Newman: More RMA reforms

The Resource Management Act is making history - as New Zealand's most amended piece of legislation. The latest amendments are being made possible by a deal between the National and Maori parties. 

The changes don't go as far as National had originally intended - they do not have the numbers in Parliament to change the principles of the Act, so it remains primarily an environmental protection document.

Here's a brief summary of some of the changes being proposed:

Requiring councils to follow national planning templates. This is a welcomed change that will put an end to local council staff interpreting the vague notions of the RMA in a manner that suits their own thinking. It’s astounding that this form of guidance was not part of the original Act. The government says the changes, "will improve the consistency and reduce the complexity of plans. This will substantially reduce the volume of planning documents across the country because most provisions will be standardised". They quote the absurd situation of there being 50 different definitions of ‘building height’. There are actually hundreds of equally absurd examples - some have more serious consequence, like the criteria by which a "significant landscape" is assessed. At the moment those criteria are nebulous expressions like the "colour of the night sky" dreamt up, no doubt, by distinguished landscape consultants.

A faster consents process. They say, "The Bill provides three different tracks by which a council can produce a plan: the existing track that now has tighter timelines, a new collaborative track, and a streamlined track". The collaborative track is where various stakeholders agree on planning changes before the formal process kicks in. That sounds very much like the existing mediation process that happens prior to matters going to the Environment Court, which have become a field day for lawyers, planners and vested interest groups.    

Reduced requirements for consents. They say, "The Bill eliminates the need for thousands of minor consents by giving councils discretion to not require them, by introducing a new 10-day fast-track for simple consents and by removing requirements for consents where they are already required under other Acts." Having resource consent exemptions for low level work is sensible, but passing that discretion onto local authorities is not. The same degree of discretion is already given to local authorities for building consents – as specified in clause 2 of Schedule 1 of the Building Act. Each consenting authority is supposed to have developed guidelines so Fred Dagg member of the public knows what's what or not, when it comes to needing a building consent. It's an admirable theory, but does not translate into great practice. In 2011 the Ministry for Business, Innovation and Employment found many councils were not using their exemption powers and they were of the view that people were being required to obtain building consents when they should have been exempted from doing so. Some councils, the Whangarei District Council for example, do not even have a guideline policy for the public. That’s very convenient for council staff because it means they can treat every matter that comes before them on a case by case basis, as they alone see fit.

I see no reason why resource management exemptions will be any less slanted in the way they are drafted to suit council staff. If so, they will have no practical effect in reducing uncertainty for those who are required to live by their rules.

Perhaps one of the most significant changes to the Act is one that gets the least attention in the documents supporting the Bill. The Environment Minister says, "The Bill is a compromise with the Maori Party and they have strongly advocated for better processes for iwi to be involved in council plan making. Councils will need to engage with local iwi on how they will involve them in their resource management processes. The objective is to ensure iwi are consulted on issues that are important to them..."

As it happens, the requirement to consult with iwi is already embedded into the RMA as they are already assumed to be affected parties when it comes to having status in resource consent applications. One can only assume those rights will be extended to include matters such as representation on local authority decision making committees and presumed rights to natural resources, like fresh water.

All in all most of the proposed changes are rhetoric rather than substance. The vast number of changes made to the RMA since it was first introduced shows how fundamentally flawed the Act was at the time - and is today. In practice the proposed changes are more likely to be a step backwards rather than forwards, as is being promised.


Graeme said...

I'd be happy to see standardisation provisions of RMA. I say this as a submitter to numerous district plans in the early days (early 1990s onwards) in a professional capacity. I thought it absolutely ridiculous then, as now, that each council "did its own thing" to arrive at outcomes which in many cases were not too dissimilar (but rarely identical) to others'. I do hope we have some sense at last.

But for the resource consent consultants, it was absolutely fabulous! They could apply the base document developed with their first couple of local authorities as their template for others, thus recouping their costs several times over, and from what I could tell, this replication didn't lower the charges to subsequent councils. But they didn't mind! - just pass the "costs of democracy" on to ratepayers, and while we're there, we'll just increase our planning department numbers to cope. No sweat!

Do I sound a little cynical? I've dealt with councils far too long to be anything but, I'm afraid.


Anonymous said...

Words and meanings
“Equality” is a wonderfully versatile word, as Dr Muriel Newman demonstrates in her marathon letter 'The worst of MMP' (Thurs 14 Jan). “National has sold out the principle of equality” she opines about the government securing Maori Party support for 'compromised' RMA reforms. She means racial equality, of course.
I see her letter coincides with a 'Keep Water Kiwi' campaign – perhaps implying iwi are not Kiwi – on her NZ Centre for Political Research website, an ACT mouthpiece, where Dr Don Brash offers a very similar opinion. “When Governor Hobson invited Maori chiefs to sign the Treaty of Waitangi, he clearly thought that he was inviting those chiefs to accept the sovereignty of the Queen and to live in New Zealand with … British settlers, as one people”.
Maori concurred, according to Brash. He even cites Winston Peters, “behind closed doors they (National) are negotiating away fundamental rights that should be the same for all New Zealanders”. Peters describes the EPA's requirement to “proactively take into account Maori interests and the principles of the Treaty of Waitangi” as “National’s separatist approach” before Brash concludes New Zealanders overwhelming want to be “one people not two, as Hobson clearly intended”.
Sometimes “one people” smacks of “if you're not with us you're against us” to me.
Even if Maori agreed to this “one people” equality concept – questionable due to Treaty versions and oral translation – the problem is Pakeha very quickly set about dismantling Maori collectivised society, including many successful business ventures, and separating their land from them. In other words, the British authorities and settlers failed to keep their side of the “one people” bargain. The more Pakeha reneged on equality the more the idea looked like simple expediency to Maori.
Subsequent events in New Zealand's history make it perfectly understandable that Maori, Iwi Leaders and the Maori Party all want proactive consideration in law making and affirmative action generally. This may not be “the tail wagging the dog” at all, it may be the dog rubbing its tummy or scratching at fleas? “Favour” is not the same thing as separatism. Apartheid was separatism. In the political arena everyone seeks favour. Property developers seek favour. Environmentalists seek favour. Do we seriously expect Maori not to?
The issue is partly racial but needn't be racist.
Next ask the questions begged by Newman's letter. First, if this is the worst of MMP, what would be the best of FPP? A majority government simply passing whatever laws it likes? Favouring whoever it wants? Favouring those who support it financially perhaps?
Secondly, ACT and the Right constantly ascribe this equality across peoples' racial differences; meaning "yes". Is it also applicable to people's different housing, education or income? Here the same word, denoting “absolute equality”, is regularly used with precisely the opposite intention; meaning "no". Many people actually reject the idea of “equality of opportunity”, it being deemed impossible. I wonder if equality is applicable to basic human rights?
Of the RMA reforms, which appear necessary, the Maori Party says “iwi were not looking to introduce more barriers to development or planning, but wanted to be involved from the outset to avoid problems later down the track”.
Labour's Megan Woods says, "We will be looking to see if the bill elevates private property rights above wider community interests”.
The Green Party says, "The more than 200 proposed changes in the bill need to be carefully scrutinised … The bill appears to significantly increase the minister's powers at the expense of local councils and to further politicise environmental decision making". (RNZ 26 Nov 2015)
If we take everybody at their word here, Newman included, these are all perfectly legitimate concerns.