The Committee stages of the Resource Management (Consenting and Other System Changes) Amendment Bill, together with an Amendment Paper, was scheduled for debate in Parliament yesterday. The Amendment Paper has not been subject to Select Committee scrutiny or public submissions.

“The proposed ability to override local democracy by the Minister is free from constraints, such as meaningful criteria, and is heavily biased towards development imperatives," says EDS chief operating officer and lawyer Shay Schlaepfer.

“There’s nothing balanced here. The Government is systematically dismantling our environmental laws.

“The changes are unprecedented and challenge our constitutional norms and sense of fair play. It has to stop,” concluded Shay Schlaepfer.

EDS's initial summary of the key changes:

Amendment paper No 347 to the Resource Management (Consenting and Other System Changes) Amendment Bill.

1. Red lining plans

The Minister has a new regulation making power which allows him to modify or remove provisions of a Regional Policy Statement or regional or district plan. Before doing this, the Minister must be satisfied that:

• The provisions have a negative impact on economic growth, development capacity, or employment.
• They aren’t there because they recognise Treaty settlements (and other commitments like mana Whakahono a rohe).
• They don’t stop the plan giving effect to national policy statements or make it inconsistent with national environmental standards.
• There’s a process to go through, including an investigation to gather evidence, report on its findings, feedback from councils and consultation with parties likely to be affected.

Key points

This is alarming overreach.

It gives the Minister an ability to rewrite bits of plans that he doesn’t like, at his discretion.

It tries to create a different purpose to the RMA, one that gives primacy to economic growth, development capacity, or employment, but only for the Minister.

It ignores the environmental rationale of provisions, and enables the Minister to trample on environmental protections at will.
It undermines policy and plan making processes, and policy and plans that have undergone extensive community consultation and testing, including by the Courts.

Reference to national direction and Treaty settlements, and the ability for councils to provide comment are inadequate guardrails.
The disclosure statement says that “together, these measures ensure the power can only be used where there is clear evidence and robust scrutiny”.

This minimisation of impact is breathtakingly misleading, given that ‘evidence’ is only needed of an impact on economic growth, and ‘scrutiny’ is in the form of a report that the Minister prepares himself and comment by councils that can be ignored.

It is completely at odds with local democracy. Consultation is only with affected persons, which is different to the RMA’s assumption that policy and plans have public input.

Selective rewriting of plans (picking and choosing provisions) will undermine their coherence based on a completely arbitrary range of factors.

Combined with the plan-stop provisions, this amendment essentially transfers all planning functions from local government to the Minister. It is unprecedented.

The change should not proceed. At minimum, the proposal needs to change to (1) restrict the power to district plans and (2) exclude provisions reflecting matters of national importance under the RMA.

2. Stop-plan provisions

There are to be no proposed plans and policy statements, changes to plans and policy statements, or any variations of those until 31 December 2027, unless an exemption applies/is obtained.

Where a proposed planning instrument has already been notified and heard, the plan stop will not apply. Where the proposed planning instrument has been notified but not been heard, or has a hearing set to begin more than 5 days after commencement, the instrument must be withdrawn unless an exemption applies.

Some exemptions are automatic. They include:

• Those using the streamlined planning process
• Those using the intensification streamlined planning process
• Those that implement new national direction (after the legislation commences) if it requires it
• Those using the freshwater planning process to give effect to the Nation Policy Statement for Freshwater Management 2020 (NPS FM)
• Those called in or directed for changes by the Minister under s 25A/B
• Those relating to natural hazards
• Those giving effect to Treaty settlements, Kermadecs, Sub-antarctic islands.
• Private plan changes are excluded too – but only if they haven’t been adopted by councils.

Councils can also apply for exemptions, but the Minister determines these based on criteria in proposed s 80V, namely that they would:

• Better enable water services
• Address unworkable and inefficient provisions
• Respond to RMA amendments
• Better manage climate change [presumably adaptation, but it’s not clear]
• Manage erosion risk
• Uphold Treaty settlements
• Respond to a recommendation of the Environment Court
• “Enable work to be progressed that, for any other reason, the Minister considers appropriate”.

Key points

This transfers most planning authority to the Minister, who gets to gatekeep which plan changes/reviews are allowed to continue for the next 2.5 years.

Changes are prevented irrespective of council functions or what the purpose of the RMA requires.

Automatic exemptions are largely about development.

It’s alarming that private plan changes are not stopped. This says it all – it’s not actually about efficiency/consistency with the new system, it’s about allowing development and stopping environmental protections.

Although it is good that plan changes implementing the NPS FM are automatically exempted, that will depend on the adequacy of upcoming changes to the NPS FM.

The criteria for allowing council plan changes/reviews to be given an exemption by the Minister are limited, and are not at all focused on protecting the environment. They don’t even include giving effect to existing national direction, other than the NPS FM and national direction published after commencement.

It gives the Minister an open ended discretion to accept plan changes that enable ‘appropriate’ work to be progressed.

3. Thermal generation

The definition of a ‘specified energy activity’ is expanded to include the establishment, operation, maintenance, or upgrade of thermal electricity generation facilities.

This means that the one year timeframe for deciding consents is no longer just for renewables and network/storage facilities (as it was under the Bill previously), but also for new/upgraded fossil fuel generation facilities.

Key points

This is a giant step backwards for the country’s energy transition and completely at odds with its climate commitments.

Fossil fuel power generation will now be fast tracked through the normal RMA consenting process (as well as FTAA), putting it on an equal footing with renewables.