EDS releases concerning assessment of RMA reform proposals

EDS has released its comprehensive analysis of the
Government’s proposals for a new resource management
system and, overall, finds the design concerning.

In
March, the Government’s Expert Advisory Group (EAG)
released its recommendations for a new resource management
system. The release included a table with Cabinet’s
high-level responses.

“EDS has added to the table,
so it now shows the key recommendations of the EAG,
Cabinet’s decisions on them, and EDS’s position,
colour-coded to reflect our assessment of the risk to the
environment,” said EDS RM Reform Director Dr Greg
Severinsen.

“Some of the recommendations
are likely to improve the existing system. For example,
it’s positive to see a commitment to the need for clear
environmental limits, not just a system that continually
balances development with environment – although a lot
will depend on their scope and detailed design. It’s also
positive to see spatial planning or constraints mapping
feature as a tool for signalling where development should
proceed and where it should not.

“Many
proposed changes to the mechanics of the system also look
good. There are measures to make planning simpler and faster
(including a national e-planning portal), and for fewer and
more consistent plans. Stronger compliance monitoring and
enforcement provisions look promising too.

“However,
the EAG’s recommendations and related Cabinet decisions
reveal considerable risks to the environment. Fundamental
changes will be needed in some key areas to make the new
laws acceptable.

“For example, a system that’s
limited to managing just the ‘externalities’ of land
uses would fail to address some of the most pressing
resource management issues we face, like restoring degraded
environments, or creating well-functioning urban
environments. We strongly disagree that the central purpose
of land use law is ‘the need to protect a person’s use
and enjoyment of their land’.

“Further, a broad
framework for regulatory takings, where controls more
stringent than national standards would trigger a
presumption of compensation, would disincentive local
environmental protections even when required to protect a
threatened species. This is an especially egregious concept
that needs to be dumped.

“There are other risks that
could be minimised through careful legislative design. For
example, splitting the RMA into two statutes for
‘planning’ and ‘environment’, while not a great
idea, could be made to work if both Acts are properly
integrated. If they aren’t, we could see extremely
concerning outcomes like environmental protections being
made subservient to development or excluded from land-use
decisions. There’s still a lot of confusion about how the
two statutes would work.

“Our table
identifies several other risks, including that a new
permissive regime could unfold without first identifying
high value areas deserving of protection, and in the absence
of an independent regulator to ensure evidence based
limit-setting and appropriate checks in the
system.

“Overall, while we agree the
RMA requires reform, there are elements here that could
steer us completely in the wrong direction. If the
Fast-track Approvals Act is any indication of where we are
heading, there are good reasons to be seriously concerned.
Replacing the RMA needs careful, thoughtful, nuanced
thinking and we have seen little of that for the fast-track
process.

“The speed of policy development is another
concern: fast law is often bad law. What we don’t need is
another round of repeal and replacement when the government
changes, but that will be the likely outcome if this isn’t
done right.

“EDS will continue to engage in good
faith as detailed policy development continues at pace,”
concluded Dr
Severinsen.

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