Environmental / Resource Management

Proposed Environmental Legislation not Limited to RMA

While the fate of RMA reform hangs in the balance following the Northland by-election, other environmental legislative proposals are worth keeping an eye on.

Environmental Reporting Bill Makes Progress

In March 2014 we discussed the introduction of the Environmental Reporting Bill. As this Bill has now been reported back to the House of Representatives by the Local Government and Environment Select Committee it is a good time to recap on what it seeks to achieve, and what changes the Select Committee have proposed.

If passed, the Bill will require regular reports to be published on New Zealand's environment. The Government Statistician and the Secretary for the Environment will jointly produce two types of reports:

  • Domain reports on one of the five domains listed in the Bill (air, freshwater, land, marine, atmosphere and climate), with one domain report to be published every six months.
  • Synthesis reports, which analyse trends across all the domains, and must be published once every three years.

The Bill itself does not list the specific topics to be reported in the domain and synthesis reports, with these to be prescribed by regulation on the recommendation of the Minister for the Environment and the Minister of Statistics.

The Select Committee has recommended a number of changes to the Bill:

  • simplification of the purpose, particularly to remove process aspects;
  • increased recognition of Treaty of Waitangi through inclusion of te ao Māori (the Māori world view) as an impact category for each type of report;
  • a requirement to present the reports to the House of Representatives;
  • replacement of a provision restricting disclosure of source information and analysis with a provision protecting the integrity of untested information (non-public information used in the report) prior to the report publication; and
  • a requirement for the Ministers to also consult the public, iwi authorities and local authorities when prescribing the reporting topics by regulation.

Minority reports were made by both the Labour Party and Green Party members of the Select Committee. The key issue of concern raised by both Parties was a perceived lack of independence in the reporting regime as a result of the Ministers' power to prescribe, by regulation, the topics to be covered.

Both Parties considered the Ministers' power to set these topics is incompatible with independent environmental reporting and would allow governments to manipulate environmental data which does not suit them. This was a concern widely held by submitters to the Select Committee.

The Select Committee noted the concern, but concluded that because environmental monitoring comes at considerable expense, it is not appropriate for independent officers to effectively commit public expenditure. Instead they supported the retention of the Ministers' power to prescribe reporting topics by regulation, but bolstered the consultation process to include the public, iwi authorities and local authorities.

The Bill as reported back now awaits a second reading before the House. We expect the Select Committee's amendments to be retained, and for the Bill to pass its second reading on the basis of continued support from Act, Maori and United Future Parties.

Hawke's Bay Regional Planning Committee Bill

Another Bill recently reported back to the House is the Hawke's Bay Regional Planning Committee Bill (Te Pire a Te Komiti Whakatakoto Mahere ā-Rohe o Te Matau-a-Māui).

The Bill gives effect to Government commitments made in treaty settlements and highlights the continuing evolution of iwi involvement in Resource Management Act 1991 (RMA) planning processes.

It seeks to establish a statutory body called the Hawke's Bay Regional Planning Committee (HBRPC) that would consist of an equal number of members of Hawke's Bay Regional Council and the identified tāngata whenua. The purpose of establishing the HMRPC is to allow local iwi and hapū to have input into regional planning and the development and review of a regional policy statement.

The primary tools in the RMA for direct iwi involvement in planning remain iwi management plans and joint management committees. However there is a trend for iwi involvement in RMA planning processes to be included directly in treaty settlement agreements and related treaty settlement legislation. The mechanics and degree of iwi involvement have varied widely.

A novel example is the settlement agreement in respect of the Whanganui River which accorded that river a legal status as Te Awa Tupua and formed a body, Te Pou Tupua, comprised of one Crown appointee and an iwi appointee, to be the river's 'human face'. Under the agreement a 'whole of river' strategy must be developed to identify issues relating to the environmental, social, cultural, and economic health and wellbeing of the River. Local authorities within the river catchment must review their RMA planning documents in light of the Te Awa Tupua status, values, and the strategy.

Another example is the approach taken in the Waikato River and Waipa River Settlement Acts, which require joint management agreements to be entered into between iwi and the relevant local authorities providing for joint planning, consenting, monitoring and enforcement functions in respect of each of the Rivers.

The Hawke's Bay Regional Planning Committee Bill expands iwi involvement to a region-wide level, where a joint committee is formed to review and develop regional RMA documents. However, while the HBRPC represents a collaboration between Hawke's Bay Regional Council and iwi, it remains subordinate to the Council and provides recommendations rather than assuming a decision-making role.

A primary function of the HBRPC will be to review the regional policy statement and regional plan and recommend any changes or variations to the Council. It will also consider and make recommendations in respect of any variations or changes to a regional policy statement or regional plan, and any proposed regional policy statements or proposed regional plans whether initiated by the Council or a third party. The Council will also be required to refer all such variations or changes, and proposed plans and regional policy statements to the HBRPC.

The Maori Affairs Select Committee reported the Bill back to the House with only technical amendments. The Bill now awaits a second reading before the House. We expect the Bill to pass its second reading on the basis of continued support from all Parties.

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The contents of this publication are general in nature and are not intended to serve as a substitute for legal advice on a specific matter. In the absence of such advice no responsibility is accepted by Brookfields for reliance on any of the information provided in this publication.

 

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