Wednesday, November 16, 2022

Peter Dunne: Resource Management Act (RMA) has been contentious

For the last thirty years the Resource Management Act (RMA) has been contentious. Introduced by Labour under Sir Geoffrey Palmer in 1989, the legislation was still making its way through Parliament when the House rose for the 1990 general election.

The incoming National Government sent the Bill back to a select committee for fresh consideration, before finally passing an amended version in late 1991. Already, at that point, an issue that was to bedevil the RMA for the rest if its life had emerged. Although National, along with just about everyone else, expressed support for the ambitions of the RMA to promote sustainable development and bring together more coherent resource management processes, getting durable agreement on what that meant in practice was much more difficult.

That was hardly surprising, given that the RMA consolidated more than fifty existing planning statutes into a single piece of legislation, consequently overriding much of the already established case law on planning and development. Unfortunately, at the time of its passage in 1991, little attention was paid to ensuring regional councils, who were to be the principal agencies involved in administering the new law, were properly resourced. In fact, in a separate piece of local government legislation passed around the same time, the National Government significantly gutted the powers of regional councils, meaning the RMA was launched in a vacuum.

A key feature of the RMA was the ability of central government to issue national policy statements on various areas of concern to guide regional councils in their application of the law. However, few national policy statements have been issued over the last thirty years, further compounding the ability of regional councils to implement the RMA as intended. In too many cases, they have been left guessing the intent of the law.

The upshot was an extremely cautious approach by regional government, borne out of the 1991 curb in its powers, and the initial lack of case law, to the administration of the RMA. This manifested itself in bureaucratic and drawn-out consent processes, to make sure all the right boxes were ticked, to protect councils from legal or other backlash. Inevitably that meant higher costs than ever contemplated to consent applicants, to pay for these lengthy processes.

Consequently, pressure quickly began to build to “tidy up”, “streamline” or “just get rid off altogether” the RMA. But here is where the initial inherent conflict between the RMA’s core ambition of promoting sustainable development and making the legislation work as intended, clashed head-on again and again. Successive governments were wary of radical changes to the RMA, lest they be accused of weakening the key principles underpinning the RMA. Such changes as were made were structural and procedural, rather than fundamental.

The last National-led government attempted the most sustained approach of recent times to reforming the RMA, but it failed to achieve that because of the strong suspicion that its intention was really to gut the RMA altogether, to satisfy the interest of developers, rather than make it work more effectively. On that basis, it was unable to get the political support it needed to progress change. Had its Minister at the time adopted a less doctrinaire and more pragmatic approach, significant progress could have been made to tidying up many of the RMA’s problem areas and introducing the provision of adequate housing into its objectives. But its unwillingness to make reasonable compromises to preserve the principles on which the RMA was founded, meant that, unfortunately, the opportunity was lost.

The present government’s three stage approach to reforming resource management law announced this week is the boldest change since the introduction of the original Resource Management Bill over thirty years ago. But it faces many of the same problems. These arise from the sheer bulk and complexity of the reform process.

Expert comment that the changes now being proposed will likely take a decade to bed down and begin to work as intended highlight the problem. The government introduced the first of three reform bills to Parliament this week, with the remaining two to follow over the next couple of years. But between now and the end of 2032, there will be four general elections, making it very difficult to predict with any certainty whether these Bills will ever see the light of day, let alone proceed in the manner currently envisaged. The opposition from National and ACT and the muted support from the Greens suggest the passage of the Bill introduced this week could be rocky.

It is true that the Minister for the Environment has worked long and hard to bring this package together, and he deserves credit for that. However, as he shown in his other portfolio of Revenue where his laudable pet project to establish a legislated set of tax principles to guide future tax legislation has stalled, he is not nearly as good at building political consensus for major changes, as he is on the detail. Yet for the resource management reform programme he has outlined to get off the ground, let alone be completed and survive the next decade and beyond, far greater political consensus than currently exists will be required. Otherwise, the story of the RMA over the last thirty years will be repeated.

The Resource Management Act was fundamentally a good concept, but the failure and unwillingness of our legal, governance and administrative systems over the last thirty years to come to grips with its intentions ultimately sealed its fate. Now, with the prospect of a new resource management regime ahead, hard lessons need to be learnt and applied to prevent the problems that derailed the RMA occurring all over again.

Building political consensus for the changes being proposed should be at the top of those lessons. The early responses to this week’s announcements suggest such consensus is still a long way off.

One can therefore be forgiven for feeling a sense of déjà vu.

Peter Dunne, a retired Member of Parliament and Cabinet Minister, who represented Labour and United Future for over 30 years, blogs here:

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