Rod Oram's Sunday Star-Times column for October 7th, 2012 - Gutting the RMA

October 6, 2012 at 3:40pm

By Rod Oram

 

It’s easy to forget how much we’ve grown as a nation over the past 20 years. Our population has increased by 27% to 4.4m people, our economic activity by 72% in volume terms and our national dairy herd by 73% to 4.5m cows, to name three key measures.

 

So far we’ve coped reasonably well in environmental terms, with some serious exceptions such as polluted waterways. But ecosystem pressures are getting very intense for rural and urban economies. Many water catchments can’t take any more dairy farming; and urban sprawl threatens amenities around our towns and cities.

 

Thus it’s time to ask two crucial questions. Has the Resource Management Act helped or hindered our growth since it became law 21 years ago? And is it fit for purpose for dealing with escalating pressures now and in coming decades?

 

It’s impossible to conclusively answer the first question. We can’t describe what growth would have looked like under the myriad of laws the RMA replaced or how they might have evolved instead of the RMA.

 

With the RMA, though, we pioneered a new approach to dealing with the adverse environmental impacts of economic development. Rightly, the Act is widely admired internationally for doing so.

 

The RMA does kill a few projects but it often results in improvements to and approval of contentious projects, thereby building something of a public consensus on them. Importantly, the large majority of applications are granted more readily.

 

There can be issues of cost and timeliness of the system, which need to be fixed. These often colour people’s views of the RMA and kill discussion about what the RMA has achieved.

 

Ask, yourself, though, what might New Zealand look like today if we’d had 20 years of much more lightly regulated growth? And would that have delivered more and sustainable economic value?

 

While we’re struggling with the answers the government has beaten us to it. It is sure the RMA is impeding economic progress and so is considering gutting it.

 

To arm itself for the battle, it instructed a Technical Advisory Group led by Auckland barrister Alan Dormer to suggest how to overhaul the RMA. The TAG’s  report delivers the goods. Its recommendations add up to a fundamental rewrite of the Act.

 

Right from the start, though, the TAG is on very shaky grounds. It argues that national environmental priorities have changed a lot since the RMA was enacted. It never quite spells out how. But the clear implication is that more people these days share the government’s view that more economic development is a good thing.

 

Many of us indeed believe more growth is desirable. But only if the growth plays to our environmental strengths rather than devalues them. After all, we are more dependent on our natural environment for earning our living than any other developed country. 

 

This is far more than just an agricultural issue. It matters a lot to how we entertain and educate foreigners through tourism and study, and encourage researchers, investors and other urban wealth creators here, not to mention what it means to us Kiwis.

 

If the government is in any doubt it might want to consider the political landscape. The Green Party was founded the year before the RMA was enacted. At last year’s election it took 11% of the popular vote and 14 seats. It will likely hold the balance of power at the next election.

 

So, yes, public priorities have changed. But in the opposite direction from the TAG’s view. More people feel more strongly about good growth in tune with the environment than ever before.

 

The TAG is wrong on many other assertions it makes. It says, for example, that the RMA can’t adequately handle issues such as infrastructure, natural hazards and urban form. Thus, it says, the only solution is to radically rewrite sections 6 and 7, the operational heart of the Act.

 

Yet, the report itself cites two studies that show more than 90% of infrastructure applications get their consents. But rather than overhauling the RMA, the government could lift the performance by drawing up further national policy statements in the sector similar to the ones in place on renewable electricity generation and transmission lines.

 

Similarly, the RMA’s handling of hazards, urban form, timeliness and cost would all benefit from further improvements in processes.

 

Instead, though, the TAG is proposing fundamental changes in the principles of the RMA. One it recommends adding is that the consent process acknowledges “the significant benefits to be derived from the use and development of natural and physical resources”.

 

As a coalition of environmental groups have written in a letter to Environment Minister Amy Adams, “This wording is presumptive: it suggests that there are always significant benefits to be derived from use and development of resources, rather than there being significant benefits from their non-use. As such, it creates a bias toward development which is inappropriate in the context of section 5 and at odds with the philosophy of the RMA.”

 

Overall the changes “would shift the RMA from being a statute that enables development while managing its adverse effects, to one that actively promotes certain categories of development.”

 

The TAG report also seriously downplays the disruption such a radical overhaul of the RMA would cause. In particular it would significantly undermine the 21 years of case law that guide effective process and outcomes.  Re-establishing new precedents would take years, creating delays and deep uncertainties in everything from council plans to economic development applications.

 

Separately from the TAG report, the government is also considering seriously crimping or even ditching the environment court by, for example, turning the judicial work over to the high court.

 

But this is yet another example of the government drastically exaggerating the problem. Most consents are granted without going to court and those that do are often settled without a full trial. If the environment court is downgraded or disappears, we would lose very valuable judicial expertise and checks.

 

If the government persists in this unwise attack on the RMA it will destroy the broad political and public consensus that enables the consent process to deliver enduring economic and environmental outcomes. It would pay the price at the next election.