Frank Newman: The Commissioner who still doesn't get it

The Parliamentary Commissioner for the Environment’s advice on the repeal of the RMA and its replacement legislation has been largely ignored by the select committee hearing submissions. And rightly so.

As the incoming National Minister for the Environment in 1990, Simon Upton inherited the foundational Resource Management Bill left behind by Geoffrey Palmer’s outgoing Labour government. Upton took charge of steering the legislation through Parliament. Upton had the opportunity to kill it then. He embraced it instead. While one can assume Upton had the best of intentions, his naivety seeded the legislation’s inherent flaw that inevitably led to its demise. Quite simply, the “enabling” legislation gave radical vested-interest groups a liberty that enabled them to seize control of the process to the detriment of the community as a whole.

An opening remark in his submission on the reforms suggests he is no less naïve now than he was then:
“…it is worth recalling that a wide cross-section of New Zealanders have convinced themselves that ‘the Resource Management Act (RMA) is broken’. We have heard this from Ministers, business leaders and environmental groups. I have always been sceptical of these claims. They have been advanced – often on the basis of anecdote – to promote completely different narratives.” (page 1)

It seems everyone accepts the RMA is a dog — except Simon Upton.

He does, however, see positive aspects of the reform, including:

- Making it easier to electrify and decarbonise the economy (presumably he does not mind the additional cost to the economy and the subsequent loss of industry and jobs).

- More consistent zoning, fewer plans, and standardised rules and methodologies.

- A greater range of compliance and enforcement tools available to regulators (more tools to penalise).

- The creation of a Planning Tribunal as a division of the Environment Court (acting like a Disputes Tribunal to challenge council decisions but limited to non-notified applications).

- Levies that may be charged for the use of resources to raise revenue (more ways for councils to fund their bureaucracy).

Some are positive, but it is telling that Simon Upton would consider some to be positive when their effect would be to obstruct or disable development.

Upton says the main negative aspect of the legislation is that it places too much control in the hands of Ministers. He warns that “there is a greater risk that direction will flip-flop as political tides ebb and flow.”

The fact that the RMA was amended some +20 times before we were put out of its misery suggests it was precisely the “political ebb and flow” that killed the enabling intent of the original Act. Giving the Minister greater influence is a negative and poses an even greater risk should that Minister be part of a Labour/Greens/Māori coalition — but so too is the present scenario, where control sits in the hands of iwi and activist council staff who are not subject to democratic accountability.

Simon Upton could not, it seems, help himself by intertwining his views on compensation for property rights and colonisation:

“Members will have a range of views about where property rights start and stop. I find it easy to understand why landowners would bristle when faced with regulations that tell them to protect physical structures for the enjoyment of the community at private expense. On the other hand, for reasons deeply intertwined with the history of colonisation and dispossession of land, I find it very hard to understand how anyone could claim to be compensated for rules designed to protect sites of significance to the original occupants of Aotearoa.”

I would have thought the fact that Māori have benefited from numerous “full and final” compensation settlements is an argument supporting compensation to private property owners when their property rights are taken from them without their consent.

While Upton appears to welcome compensation to Māori for the loss of their property rights, he seems to take a different view when it comes to compensation for the dispossession of property rights for non-Māori. He says:

“The Bill effectively reasserts a right to destroy biodiversity which, if curtailed, must now be compensated for by ratepayers… The fact remains that local authorities with small rating bases, but significant biodiversity at risk, will be unable to afford to protect it all. Government funding to support biodiversity protection will be needed in order for some councils to meet any sensible biodiversity limits.”

The committee is right to ignore the opinions of the Parliamentary Commissioner for the Environment. It makes one wonder why we have one at all. Perhaps a better alternative is to shut down his office and save the taxpayers $5 million a year.

Footnote
Here is the Commissioner's submission to the select committee: HERE >>>

Frank Newman is a retired investment analyst and accountant. He served two terms as a councillor on the Whangarei District Council and is the author of numerous books on investment matters.