When it was introduced in 1991 the Resource Management Act 1991 (RMA) was hailed nationally and internationally as both ambitious and pioneering. A significant part of its innovation was that it provided a single and integrated process for making resource management decisions that replaced a multitude of different statutes, decision-makers and processes.
This integrated approach provided the platform for the RMA’s other innovation - its effect-focused, rather than activities-focused approach. While the RMA was first introduced by a Labour Government in 1989, it was advanced by the succeeding National Government and was at the time considered to represent cutting edge free market thinking. The all-embracing nature of the legislation was hailed as a great leap forward in unlocking our economic future.
In more recent times, the Government interventions have created a number of resource management regimes to address particular imperatives. When considered as a whole, these interventions represent a substantial move away from a nationally uniform process for environmental decision-making to a far more diffuse, interventional and exceptionalist framework. This exceptionalism can be seen in a range of examples driven by an array of justifications.
The most obvious and justified example can be seen in Christchurch. The Christchurch earthquakes clearly represented unique and exceptional events. As such they were always going to see the RMA’s widespread public participation and thoughtful, but time-consuming reflection abandoned in favour of a more expedient and prescriptive approach to ensure that the rebuild could occur as quickly as possible. These events do mean though that Christchurch works - and will work for some time - under its own planning regime. While this approach has widespread support now, patience could well become more strained as the months of the rebuild stretch into years and the results of rapid decision-making bear fruit.
While the Christchurch earthquakes were patently exceptional events justifying an exceptional response, other interventions have been justified by less dramatic concerns. In 2010 the Government intervened to remove the Canterbury Region’s elected members and replaced them with appointed Commissioners. The stated motivation for this was to try to better manage allocation of Canterbury’s fresh water resources, which were identified as being of unique importance. More controversially, this was justified, because the Government considered the Regional Council was so uniquely dysfunctional as to need fundamental and urgent reform. This intervention means that Cantabrians have been singled out to be served by a Regional Council which has less democratic connection with them than those of us living elsewhere in New Zealand.
While Canterbury might have led the way in leaving the RMA’s inclusive fold, Auckland’s role as the country’s primary economic engine has meant it has also not been spared a custom-built resource management regime.
The reorganisation of local government in Auckland collapsed the local and regional functions into one ‘super council’ structure which is unique to the rest of the country, even among other so-called unitary authorities. Because of the significance of local government to the administration of the RMA, this results in Aucklanders having a different relationship and interface with the RMA than those outside Auckland. This difference has been emphasised by the approach that has been adopted to Auckland’s new planning scheme. Faced with having to consolidate its various legacy planning instruments into a single cohesive plan, the Government - at Auckland Council’s behest – has introduced a one-off and customized process which streamlines the RMA’s usual processes for advancing a new plan. Government and local government clearly see that exceptional times demand exceptional responses. Some potentially affected property owners have however loudly doubted both the justification and the response.
There are more opaque examples, including the increasing use of Boards of Inquiry for specific large projects and the Waikato River Authority. The latter, under 2010 Waikato Treaty settlements regulatory control of the Waikato River, once exclusively held by the Waikato Regional Councils, is now shared with the Waikato River Authority, a body with iwi and government appointees. This results in a structure of decision-making in respect of the Waikato River catchment which is unique to the Waikato.
In addition to the innovations which have already occurred, Government led discussions about Auckland’s urban boundary suggest that in the future the pace of targeted reform will continue.
At its introduction, the RMA represented a truly integrated system of resource management decision-making which applied throughout the country. In recent times a more exceptionalist approach, sometimes clearly justified, at other points less convincingly so, has eroded that coherence. The question of whether this is a good or bad thing is one which will eventually need addressing though because the appetite for targeted Government intervention does not yet appear to be satisfied.
Source: Australasian Legal Business Magazine (issue 11.02, March 2013).