The premise of new environmental legislation is to improve on the workability of the RMA to deliver better outcomes for people and communities while at the same time protecting the environment.
The case for that premise is well proven.
In addition, due to the lack of clarity in the law and subjective elements exercising the law, prejudicial bias is a constant hindrance to people and communities seeking positive outcomes.
There has not been a case proven that would say that the environment is worse off.
Indeed, if further work was done to properly quantify environmental effects one could contend that the environment is vastly improved.
Using the premise of threatened species is specious in itself.
Regardless, if the real intent is to improve legislation for better outcomes then this preliminary draft falls far short of the mark.
Above all, the 3 core objectives for high quality law…(Legislative Guidelines)
Fit for purpose.
Accessible for users – easy to find, easy to navigate and understand.
1. Cl 3. Interpretation.
This is where definitions are provided for words used within the legislation.
This is the first aspect of concern with the proposed Bill.
If the Cl 5 Purpose uses maori words, then in accordance with the Legislation Guidelines,
those words should be defined.
‘to enable Te Oranga o te taiao’
What does Te Oranga o te taiao’ mean?
‘kaupapa’ is understood to mean ‘ground rules’ or body of principles that create law’.
Unless the interpretation is clearly understood when used within a legislative context, then the construct of the law fails to meet the thresholds of the Legislative Guidelines.
For example ‘tikanga’ is commonly understood to mean the notions and connotations of justice and fairness’, and can apply to anyone.
However, ‘tikanga maori’ confines that notion or connotation of justice and fairness to maori only.
Te Ao Maori – means the maori world or maori world view.
Te Ao on its own would ergo mean anyone’s world view.
Why is this important?
The Legislative Guidelines – for which there is a ‘Checklist for Officials’ state the following principles…
3.4 Relevant common law rules and principles and tikanga should be identified.
In the previous drafting of the RMA the common law of Rights in Property was completely ignored and continues to be abrogated heedlessly.
3.5 Any conflict or interaction between new legislation and the common law should be explicitly addressed in the new legislation.
4.1 Legislation should be consistent with fundamental constitutional principles including the rule of law.
4.2 Legislation should be consistent with the principles of the Treaty of Waitangi.
4.3 Legislation should be consistent with the dignity of the individual and the presumption in favour of liberty.
4.3 New legislation should protect property rights.
The Guidelines themselves state the following…
Many of NZ’s principles exist in the common law and are reflected in legislation such as..
The Constitution Act; The NZ Bill of Rights Act 1990; Public Finance Act 1989;
…English statutes such as the Magna Carta 1297 and the Bill or Rights 1688.
The Rule of Law:
Principles… Everyone is equal before the law.
The law should be clear and clearly enforceable.
There should be an independent, impartial judiciary.While the principles of common law and constitutional rights are well articulated, the principles of the Treaty are not.
These principles should be included and should be clear and easily understood by all.
1) The Treaty quite clearly cedes government to the crown.
2) Offers protection and the unqualified exercise of their chieftainship over their lands etc.
3) ‘give them the same rights and duties of citizenship’
Who represents the interests of those not maori if there is conflict arising from ill considered law?
Given the proposed inclusion of maori words such as tikanga and matauranga – the context of use will compromise and conflict with constitutional principles.
e.g. NZBORA – Freedom of conscience, religion, expression, association, assembly and movement.
2. Freshwater – now means all water except coastal water and geothermal water
This should exclude water captured and stored by people by way of tanks or ponds etc.
Land – now includes land covered by water and the airspace above the land and includes the surface of the water.
Should exclude buildings as it does in the Interpretation Act.
Structure – means any building, equipment, device or other facility that is made by people and fixed to land and includes any raft.
This is an overly broad interpretation. Some discretion in its application may be necessary.
5. Cl 5. Purpose.
Te Oranga o te Taiao to be upheld.
Cl 5 (3) states that Te Oranga o te Taiao incorporates
(a) The health of the natural environment and
(b) The intrinsic relationship between iwi and hapu and te taiao and
(c) The interconnectedness of all parts of the natural environment and
(d) The essential relationship between the health of the natural environment and its capacity to sustain all life.
There is an intrinsic relationship between all peoples and the environment.
What is the rationale for identifying iwi and hapu to the exclusion of all others? Or according them special recognition over others when we are all equal in the law?
Cl 8. Environmental Outcomes.
(f) The relationship of iwi and hapu, and their tikanga and traditions, with their ancestral lands, water, sites, wahi tapu, and other taonga is restored and protected
This outcome should be for the lands and other taonga that fall within their own possession in accordance with the Treaty.
If it is expected that these protections and restorations are to become the responsibility of Council and resource applicants then that is an unacceptable barrier to others and a breach of common law rights.
This is already the case with many instances able to be cited where the lack of clarity about the intention of law in regard to iwi has been created while government fudges a way forward and is a constant obstacle ..
This is underscored by Cl 18 Implementation Principles.
(b) recognise and provide for the application, in relation to (te taiao), of (kawa, tikanga (including kaitiakitanga) and matauranga maori)
This is a never ending piece of fiscal string to be paid for by local authorities and resource consent applicants.
This is compounded by the following…
(e) recognise and provide for the authority and responsibility of each iwi and hapu to protect and sustain the health and well being of (te taiao).
If te taiao is the environment, that would suggest that whoever is responsible for implementing the legislation will also be having to fund iwi and hapu for both the natural and built environment just for them.
That is just another burden of cost for hard working mums and dads who pay the rates that Councils will need to meet this demand.
This is the fundamental doctrine throughout this proposed law which will give rise to inequity and injustice in the law.
Where are the definitions?
Why just for maori?
Why is religion and a lack of scientific rigour compromising the integrity and robustness of our law?
(g) The mana and mauri of the natural environment are protected and restored.
Given the definition of the words what does this actually mean?
(h) Cultural heritage, including cultural landscapes, is identified, protected and sustained through active management that is proportionate to its cultural values.
Who is required to do this?
(i) Protected customary rights are recognised.
Does that include all peoples customary rights to fish? And their common law of rights in property?
National Planning Framework.
This proposal to have the NPF as subordinate legislation is not supported.
Regardless of its status, the local has been gutted in favour of centralised planning.
That being the case, a full consultative process must be undertaken for any planning changes identified as legislation, subordinate or otherwise.
This is especially important when stated in Cl 15 (c) have direct legal effect without being incorporated into a plan or provided for through a regional special strategy.
Sandra Goudie is a retired Mayor and former Member of Parliament.