Cabinet approves exposure draft of RMA replacement

Topics covered in this article: RMA, RMA & Local Government

Mary Hill

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Phone: +64 7 927 0590
Email: mhill@clmlaw.co.nz

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Bachelor of Arts, Bachelor of Laws (First Class Honours), University of Canterbury

Master of Commercial Law (First Class Honours), University of Auckland

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A first draft of the proposed Natural and Built Environments Act (NBA) was approved by Cabinet today.  The draft Bill and explanatory paper are available at the following links [draft Bill / explanatory paper].  The NBA is the key piece of legislation proposed to replace the RMA.  As anticipated, the NBA addresses both the natural and built environments (land use planning and environmental regulation). 

The draft Bill (being called an “exposure draft”) has been released for stakeholder and public feedback before it is introduced to Parliament.  The intention of this novel approach is to test and improve the draft Bill before it is formally reviewed by Parliament, and to inform the two other pieces of legislation being developed to compliment the NBA (the Strategic Planning Act (SPA) and the Climate Change Adaption Act (CCAA)).  A second select committee process will then take place in the usual way, when the full Bill is introduced to Parliament in early in 2022. 

The exposure draft is not the full proposed legislation.  Rather, it includes some key provisions including the purpose of the NBA (including a Treaty of Waitangi clause), a structure and some high level content relating to the proposed “National Planning Framework”, and requirements for “Natural and Built Environments plans”. 

Some key observations from our initial review:

  • The concept of “Te Mana o Te Taiao” referred to in the Randerson Review has been amended to refer to the (perhaps broader and more culturally appropriate) concept  of “Te Oranga o Te Taiao”.  Upholding Te Oranga o Te Taiao will be a key purpose of the NBA.
  • In achieving the purpose of the NBA, any use of the environment must comply with specified environmental limits, and outcomes for the benefit of the environment must also be promoted.
  • The effects management hierarchy of avoid, remedy and mitigate has been retained as part of the purpose provisions. 
  • There will be a new focus on the effects of activities on climate change.
  • As anticipated everyone performing functions or exercising powers under the NBA must “give effect to” rather than take account of the principles of Te Tiriti o Waitangi.  Guidance on what this means will be included in future provisions of the NBA rather than the “National Planning Framework” (NPF) to be developed by the Minister as previously anticipated.  The NPF must give effect to the principles of Te Tiriti.
  • There will be an “outcomes based approach” for both environmental and development objectives – a shift away from the current focus on avoiding adverse effects.
  • The National Planning Framework:
    • Will be one integrated and comprehensive set of regulation addressing priorities, pressures and opportunities for the environment and give direction on reconciling tensions between these goals.
    • May prescribe environmental limits or may prescribe a process for “planning committees” to set these, allowing flexibility for circumstances and locations.
    • Will include or require mandatory environmental limits for fresh and coastal waters, estuaries, air, soil and biodiversity.
    • Will either be given effect to through NBA plans, or (for some aspects) have direct legal effect.
    • May be developed in part by boards of inquiry and / or overseen by an independent body.
  • The NBA will have “implementation principles” although these are yet to be developed (examples are included).
  • The legal relationship between the NBA, SPA and CCRA has not yet been resolved. 
  • As anticipated there will be one plan per region developed under the NBA by “planning committees” rather than local authorities.  These plans must include environmental limits and give effect to the NPF, and be “consistent with” regional spatial strategies.  They must seek to resolve environmental conflicts.
  • Planning committees will be made up of a representative of each local authority in a region and mana whenua and a representative from DOC.
  • There will be a reduced role for resource consents but they will still be required.

Our key observation is that there is much left out of the draft.  This should leave considerable scope for stakeholder influence.

If you have any questions on the exposure draft or would like assistance in making a submission, get in touch with our RMA team