Radical changes to the Resource Management Act

For the first time, a government has proposed changes to the heart of the Resource Management Act, writes Tom Bennion.

There have been many changes to the Resource Management Act 1991 over the past few terms of government. Both Labour and National and their various coalition partners have claimed that the Act doesn’t work fast enough or provide enough certainty to developers. In my experience, the greatest delays are not for medium- or large-scale projects, but for quite small developments. Who hasn’t been amazed at the paper work required, for example, to build a small deck or house extension?
Bigger projects have bigger budgets, and many manage to get approved on a “non-notified” basis — that is, they can successfully convince council officers that they mitigate any adverse effects to such an extent that public notice and a public hearing are not required. Nevertheless, both Labour and National have created new faster processes, including easier tests of non-notification, and “all in one” processes for big developments, such as special boards of inquiry, which are aimed at ensuring even swifter hearings of proposals which the government has pre-determined are of national importance.
Now, for the first time, a government is proposing to make significant amendments in the heart of the Act, the purpose and principles sections. These sections currently follow a layout where councils and courts must consider, first, whether a proposal affects some “matters of national importance” (section 6), then a series of lesser, but still important, matters (section 7), and then form an overall judgment on whether a proposal represents “sustainable management” (section 5). Special regard also has to be had to the Treaty of Waitangi if Māori issues are involved (section 8). A strength of the current law is that it provides a clear hierarchy of values. Matters in section 6 are of paramount importance in any resource consent decision. This includes Māori links with ancestral lands and waters. They are a “matter of national importance” which must be “recognised and provided for”, along with a short list of other section 6 key issues including “preservation of the natural character of the coastal environment”, “protection of outstanding natural features and landscapes”, and “protection of historic heritage”.
The main amendment which is proposed, and the one likely to bring about the greatest changes, is the intention to create a large single list of items in section 6 and remove the section 7 list of lesser requirements.
The potential impacts of this on Māori are significant. National’s proposal to lengthen the list in section 6 involves weakening the wording of some parts of it, but more significantly, to include further matters of national importance, such as “the efficient provision of infrastructure” that are given equal footing alongside the existing matters in section 6.
What might this mean practically? In a famous case in 2002, McGuire v Hastings District Council, the Privy Council said that the requirement to recognise and provide for Māori links with ancestral land meant that new roading might need to take alternative routes that were less than ideal in traffic terms, to avoid affecting Māori values. The new amendments would change this balance, since they would require a council or court to regard any new road as nationally important in its own right, and weigh that against Māori values.
Another practical impact is that the Act currently says that “outstanding natural features and landscapes” must be protected as a matter of national importance. The proposed amendment would limit this protection only to features and landscapes that have already been listed in council plans. This means unlisted features of importance to Māori in coastal or inland landscapes might be vulnerable to new developments. Trying to get them all listed in plans nationwide would be an enormous and time consuming task.
In light of all this, it is interesting to see that the government’s coalition partners, including the Māori Party, have expressed doubts about the changes. If they pass, the irony may be that large controversial projects face more, rather than less litigation, and possibly lengthier delays, as everyone works out just how radical the new changes are.