A Green Plan
At The Crossroads
New
Zealand's Resource Management Act: The Transition From Theory to Practice
Leo Koziol, Resource Renewal Institute
Unuhia te rito o te harakeke kei kea te komako e ko? Ki mau koe ki au 'He aha te mea nui te ao?' Maku e ki atu, 'He tangata, he tangata, he tangata.'
Pluck out the centre of the flax bush, and where would the bellbird sing? You ask 'What is the most important thing in the world?' I would reply, 'It is people, it is people, it is people.'
- Ancient Maori Proverb
1. Introduction
New Zealand is one of a handful of nations around the world leading the way in developing innovative approaches to environmental management. In the late 1980s, the government replaced a maze of legislation with one act--the Resource Management Act (RMA)--that has as its core the sustainable management of the natural environment, and therefore protection of the overall quality of life of the people of New Zealand, both current and future generations. This legislative reform process was dubbed the Resource Management Law Reform (RMLR). Alongside RMLR was a massive process of local government restructuring, with the aim of increasing efficiency and improving accountability, clarifying roles and responsibilities, and setting long-term goals and strategies. The restructuring process reduced 800 units of local government to 93, which include 14 elected regional EPA-type agencies with boundaries based upon watersheds. The changes brought about by the RMLR were dramatic. For example, subsidies for agriculture were completely removed, with resultant decreases in pesticide and fertilizer inputs. This paper explores important elements that contributed to the changes, and discusses contemporary themes emerging as the nation transitions from the legislative theory of sustainable management that is embodied in the RMA to the practical implementation of policy now taking place.
2. The Foundation of New Zealand's Green Plan
The roots of New Zealand's green plan can be traced to a number of important historical elements.
Geologically, New Zealand is a set of islands that came adrift from Gondwanaland many millenia ago. As such, it was isolated from the impacts of migrating flora and fauna and from human impacts until about 1,000 years ago. New Zealand has dozens of rare and unique species of flightless birds, plants, and insects. One of the nation's most endangered birds is the flightless Kiwi, the national symbol of New Zealand.
The indigenous people of New Zealand, the Maori, migrated to the land they came to call Aotearoa (translated as "land of the long white cloud") about 1,000 years ago. Their ecological impacts, in the form of forest burnoff and extinction of a number of species, were at first significant. However, over time the Maori people found a balance with nature and introduced spiritual elements of respect for nature into their culture and way of life. Important among these include Kaitiakitanga, which means the stewardship of natural resources, and Turangawaewae, which means "place to stand." The natural setting was an important element in the creation of the Maori people's culture and sense of place and identity, a perspective that is going through a renaissance today.
The most important contemporary element contributing to the development of New Zealand's green plan was that of economic crisis. In the late 1970s, a conservative government came to power with highly protective economic policies and a "Think Big" policy to spur economic growth. These policies, which included petrochemical developments and huge hydroelectric developments, soon proved unsustainable--for example, one project was a highly inefficient natural gas-to-gasoline conversion plant--and sunk the country further and further into debt. The nation's environmental movement became incensed at the pro-development policies of the conservative government, in particular its lack of accountability for environmental costs. A pro-development act in the late 1970s actually removed public accountability processes and legislated the removal of steps out of the permit process.
The Labour government, which came to power in 1984, introduced a sweeping set of economic reforms, transforming New Zealand from one of the world's most closed economies into, arguably, the most open. The promise of a "cradle to grave" welfare state was called into question. Government functions were radically reformed; government operations were separated into core and non-core functions and the non-core were corporatized or sold off. Stated-owned businesses such as rail and postal services were corporatized into profit-making "State-Owned Enterprises" or privatized and sold to pay off the national debt. Central government departments were restructured to give them clearer functionality and direction. Previously perceived as being a "gravy train" for employees, state services became more market-led and market-driven. And sweeping environmental law reform--the RMLR--took place alongside a major local government restructuring process.
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Figure One: New Zealand in Profile Population 3.6
million (1996) |
Thus New Zealand's green plan came about as one element of a much broader response to impending economic crisis. An important political element of this transformation policy was the two-party system of government the nation had until 1996. (Until 1996, New Zealand had a two-party 'First-Past The Post' (FPP) form of government. Following a referendum in the early 1990s, New Zealand adopted a 'Mixed-Member Proportional' (MMP) proportional representation sytem, with now a multitude of parties in parliament, and a two-party conservative coalition in power as of 1998.) Under this Westminster form of government (see Figure One) decisions were made by a 12-member cabinet of the ruling party. The Labour government was able to introduce sweeping reforms with little opposition from other parties.
The Labour government began the RMLR process in 1986, with extensive consultations with local governments, business, NGOs, iwi (indigenous Maori tribal groups), and the community as a whole. A broad consensus around the principle of achieving sustainable management of the natural environment came out of this process; that consensus was strong enough to carry the legislative reform to adoption by the conservative National government in 1991.
What emerged from the reform was a piece of unique and innovative legislation. When New Zealand sent its delegation to the Earth Summit in Rio in 1991, it was one of the only--if not the only--nation with legislation already on the books that focused on sustainability as a working model for future environmental management (see Figure Two). The RMA embraced indigenous Maori concepts of the environment, waahi tapu and taonga--literally the natural, cultural, and economic treasures of the nation (Figure Three). As such, the RMA reflected one of the earliest recognitions in law of the commitment of the nation's Treaty of Waitangi, a much-maligned agreement between Maori tribes and the British Crown, signed in 1840, that guaranteed stewardship of natural resources at that time.
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Figure Two: Extract from Resource Management Act Section Five: Purpose of the Act 5. Purpose- The purpose of the Act is to promote the sustainable management of natural and physical resources. In this Act, "sustainable management" means managing the use, development, and protection of natural and physical resources in a way, or at a rate, which enables people and communities to provide for their social, economic, and cultural well being and for their health and safety while - Sustaining the potential of natural and physical resources (excluding minerals) to meet the reasonably foreseeable needs of future generations; and Safeguarding the life-supporting capacity of air, water, soil, and ecosystems; and Avoiding, remedying, or mitigating any adverse effects of activities on the environment. |
Upon the adoption of the RMA in 1991, the stage was set for a historic transition from the theoretical to the practical, in the implementation of New Zealand's green plan by the newly formed local governments throughout the nation.
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Figure Three: Extract from the Resource Management Act Section Six: Matters of National Importance Matters of national importance - in achieving the purpose of this Act, all persons exercising functions and powers under it, in relation to managing the use, development, and protection of natural and physical resources, shall recognise and provide for the following matters of national importance: The preservation of the natural character of the coastal environment (including the coastal marine area), wetlands, and lakes and rivers and their margins, and the protection of them from inappropriate subdivision, use, and development: The protection of outstanding natural features and landscapes from inappropriate subdivision, use, and development: The maintenance and enhancement of public access to and along the coastal marine area, lakes, and rivers: The relationship of Maori and their culture and traditions with their ancestral lands, waters, sites, waahi tapu, and other taonga.
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3. Emergent Themes from a Recent Policy Tour
Half a decade after the RMA was passed, how has New Zealand's green plan fared? In my discussions with the nation's environmental leaders, a number of key themes emerged:
There is a remarkable level of consensus support for the intent behind the RMA approach;
There is a recognition that the nation is in the midst of a process, and that the worth of the overall restructuring processes will only be truly proved within a 20- to 30-year time frame.
Lack of support and resources for nongovernmental organizations (NGOs) is threatening the quality of democratic discourse around implementation of the RMA;
The response from business and industry to the challenge of RMA has been mixed, with a number of sectors embracing the streamlined focus of the act by developing industry standards, while others continue to speak out against the costs imposed of increased environmental standards;
There is a recognition that the onus of proving the nation's green plan is upon local governments, which have responded in widely varied fashion to date;
And, overall, there is a perception that New Zealand's green plan is at an important crossroads.
These themes are grouped by topic and discussed in greater detail below.
Public Perceptions of the RMA
There is a remarkable level of consensus support for the RMA, across all sectors. This is unusual in a nation so divided by the politics of the past. In part, international recognition of New Zealand's progressive policies has helped in this, along with the economic recovery that began in the mid-1990s. Criticism is leveled at "micro" elements of the RMA rather than at the "macro" base principles of the act. Critics tend to point to weaknesses in certain provisions of the act, or to poor implementation in particular locales. Few question the fundamentals of the RMA nor the positive results that the reform processes have achieved.
Time is an important issue in regard to proving the worth of the act. A number of people I met with stated that New Zealand undertook to do in barely a decade what in other countries would have been a 30-year process of culture change and reform. The difficulties currently being faced are not necessarily unexpected.
In meetings with managers in New Zealand's Ministry for the Environment, the most important theme that emerged is that the RMA is at an important crossroads in its development. The act is maturing as a legislative tool, with many elements of its original intent coming into force and being clarified through the process of case law.
The Challenge to Local Government
The onus is on local authorities to prove the worth of New Zealand's green plan. Some councils are models in this regard, embracing Local Agenda 21 as a policy tool and assessing alternative methods for achieving environmental goals alongside the legislative framework embodied in the RMA. Local authorities have been assisted by a legislative mandate for long-term strategic and financial planning. Many of the new district plans by city and district councils are being built around principles of sustainable management of the natural environment. However, the achievements of the more progressive local authorities are being hindered by the overly complex approach being taken by others and the complete disregard of the new framework by yet other councils.
Waitakere City and the Taranaki Region are among the regional and district/city councils that are incorporating critical principles of the act (effects-based management, sustainability) to develop comprehensive plans. Others are just layering RMA requirements on top of existing plans and not effectively changing the way compliance and other processes are carried out on a day-to-day basis. In some cases this has made the planning processes overly complicated. There is a perception in some circles that the RMA has not delivered in the area of speeding up planning processes, but this should be balanced by the fact that many have forgotten how long and complicated the previous processes were, with multiple permits requiring separate hearings, as opposed to the current system of joint hearing processes.
One government respondent felt that the majority of local authorities are tacking the RMA requirements on top of existing district plans, retaining the status quo rather than asking the fundamental questions that need to be asked regarding sustainable management and taking a "clean slate" approach to developing new management regimes. District councils, which are used to a statutory planning mode of zoning with patterned and prescriptive controls, are finding it difficult to shift to a new way of doing things. Regional councils, on the other hand, are used to non-statutory, effects-based, permit-by-permit processes; to looking at outcomes and thinking backwards to develop management programs for such things as water allocation. However, there is no tradition of statutory planning at the regional level, so many of the regional councils that are developing the optional regional plans, which are statutory in nature, are having some difficulty.
The NGO Perspective
Non-Government Organisations (NGOs) face particular burdens, especially in regards to funding and costs. Representatives of ECO (a coalition of a broad range of environmental NGOs in New Zealand) were quite satisfied regarding the level of consultation with NGOs on various policies, but there is still a strong need for a better funding base for environmental interests. New Zealand's legal structure does not provide for tax-exempt foundation support for NGO operations, as is the case in many other industrialized countries, and this seriously weakens the financial base for NGOs.
From the beginning, NGOs had high hopes for the RMA. However, many of the original elements of the RMA that gave legal aid to NGOs were removed between 1990 and 1991 as the conservative National government came into power. One frequently cited example of the financial difficulties faced by NGOs is the case of the Waihi gold mine, in which individuals lost a case against a large company and were bankrupted. NGO representatives believe that some companies are able to use this issue to intimidate community organizations. Another example is "Save the Sounds--Stop the Wash" campaign, which wanted to slow down the new high-speed ferries going through the Marlborough Sounds. The campaign lost, at a huge cost. This discourages iwi (Maori tribal groups) and community groups from participation.
Another example is cited in a recent study by the University of Victoria Policy School of the effectiveness of the Waikato Regional Policy Statement (RPS). A graduate student looked at the processes of submissions, hearings, cross-submissions, and appeals, focusing on the participation across various sectors, including iwi, community and individuals, industry, government, and so forth. The study found that most community-based groups drop out earlier in the process than government or industry.
An important amendment to the RMA was adopted two years ago, giving cases before the Environment Court the same status as those taken to the High Court. The net effect is that people who appeal are required to put up a bond to meet the costs of other parties if they lose their case. Because many Environmental Court cases involve corporate interests asking for large sums, this has had the effect of discouraging appeals, which has also led to less jurisprudence being developed--the purpose and principles of the act are not being clarified as much as they could or should be.
In the view of one respondent, many of the original principles of the RMA are not being delivered on in practice. Many councilors and city planners--even, to some extent, Environmental Court judges--are stuck in old mindsets. This respondent felt that the challenge of the RMA lies in translating an ideal into pragmatic reality.
The Business Sector: Issues and Challenges
The RMA faces some strong opposition from business interests. There have been serious attacks on the RMA by some parts of the business sector. Both the Reserve Bank and the Business Roundtable, as well as BOMA (Building Owners & Managers Association), are highly critical of the act on a number of levels. Business sector criticism of the act focuses mainly on the costs of processes, both for applicants and opponents, and also on "vague" costs--alleged additional costs for certain economic activities.
At the same time, there are some encouraging signs from business. These include the adoption by some of voluntary standards and agreements: for example, the Pork Industry Board has developed performance standards and a code of practice for piggeries in an attempt to avoid the constant litigation around establishing new piggeries. All members of the board (essentially, all pork producers in the country) must meet these high environmental standards, which were developed in consultation with the Ministry for the Environment. Unfortunately, most local authorities are not up to speed on this, which has caused some difficulties.
Another plus for businesses, a government respondent stated, is that deregulation in New Zealand has created a much better environment for business than is the case in many other countries. New Zealand's regulatory system is much more streamlined than those in the U.S. or Australia, for example.The RMA is not high on the list as an attractant for business investment, but it is there.
There is increasing recognition of market developments in the area of environmental technology. Two particular examples cited were the Wool Board's involvement in developing wool products to clean up oil spills, and biotech to eradicate opossums without harming other fauna.
One area of concern is that the rules being developed by local authorities are a reflection of the worst players in the business sector: for example, forestry laws have to deal with "cowboy foresters" who take a slash-and-burn approach. Thus the rules and standards are often more complicated and stringent than is necessary for the majority of businesses; all businesses are made to suffer for the behavior of a few.
A statement by the nation's Parliamentary Commissioner for the Environment during my visit stated that business in New Zealand has a long way to go in terms of environmental responsibility, compliance with ISO 14000 standards, and so forth. On the positive side, however, is the increase in awareness of environmental issues.
Other Issues
A number of respondents noted a number of other significant conceptual and political issues that need to be worked through over time.
One NGO respondent pointed to conceptual problems with regard to effects-based legislation, in that it is reactive rather than proactive. "How are we going to respond to development issues?" this respondent asked. The permitting process developed under the act, for example, is totally reactive: permits are either accepted, rejected, or granted conditional acceptance. There is a need to widen the process to include examination of a range of alternatives, particularly in regard to issues such as transport and management of non-point-source emissions.
One government respondent stated that there is a problem of "over-planning"--using regulation where performance measures would do. The aim should be to restrain only where effects are adverse, using "risk-based assessments" with an "80/20" rule regarding adverse effects. Ultimately, the district plans should free up processes for economic development, but this is less the case than it should be.
In cities there are more controls and a greater desire to retain existing constraints. The motivating force here is to protect property values, which is not an objective of the RMA. The RMA aims to promote a new, open way of thinking, in which councils look at a range of options and alternatives, utilizing strategic planning mechanisms alongside a district plan. From this perspective, statutory planning is part of a much broader process. The regulatory framework focuses on environmental effects upon the biophysical world; ways to draw in much broader economic and social concerns still need to be worked out.
One positive outcome of the RMA that was pointed out by numerous respondents is the joint hearing process for permits. For example, a permit for a freeway extension in Wellington recently went through a joint hearing process with both regional and local representation, resulting in important cost and time savings.
One respondent stated that there have been real cost savings under the RMA as a result of less regulation, but that there is still a long way to go--more costs can be cut. This will be easier once more case law has been developed and staff expertise increases through experience and training.
Several respondents mentioned a statement by the New Zealand Planning Institute to the effect that the tangible financial benefits of the RMA are only just beginning to filter through the system.
4. Conclusion
The implementation of the RMA is facing many challenges. The learning curve has been steep for politicians and the staff of local governments alike. NGOs, which have an important role to play in improving discourse as the green plan progresses, remain under-financed and threatened by high court costs. But overall, the majority of people I interviewed felt that the outlook remains positive. They see the RMA as part of a long-term, 30-year culture change.
New Zealand's green plan is an important example of innovative environmental management that people around the world can learn from. It shares important elements with other green plans, such as the Netherlands'--in particular a consensus-building process among NGOs, community, government, and business. It tells an important and unique story about how societies can undertake a major shift toward a more sustainable future.
AFTERWORD
In April 1998, an important review of New Zealand's environmental legislation commenced. The Environment Minister, Simon Upton, released a report he had commissioned to stimulate national discussion of the RMA and its associated implementation frameworks. The report is a "think-piece" written by Owen McShane that reviews the RMA with a particular focus on its inherited role of land-use planning. This report is available on the Internet at the minister's web site: http://www.arcadia.co.nz
Although the report is highly critical of particular aspects of the RMA, Upton has stated that the founding principles of sustainable management are not up for review. In a speech in April 1998 to planning professionals, he said that "There will be no change to the purpose of the act, to the control of bio-physical environmental effects, or to matters of national importance." An extensive consultation process on the McShane report has begun.
ABOUT THIS REPORT
Leo Koziol is a New Zealander working for the Resource Renewal Institute in the United States. In May 1997, he returned to his homeland to assess progress in the implementation of its green plan--the Resource Management Act (RMA).
New Zealand's green plan--embodied in the Resource Management Act of 1991--replaced 57 management, urban planning, and environmental laws; reduced 800 units of government to fewer than 100; and established watershed-based regions for the purpose of resource management. This historic legislation was the result of the largest public participation process in the nation's history.
Mr. Koziol met with people in the government, academic, and NGO (non-governmental organization) sectors, and found a nation at an important crossroads in the implementation of its innovative environmental policies, as it moves from the legislative theory of sustainable management to the reality of implementation of the concept in regional and district plans. This paper explores the important themes which emerged during his visit.
APPENDIX ONE: LIST OF NEW ZEALAND INTERVIEWS, MAY 1997
1. Tom Fookes, Planning School, University of Auckland
2. Representatives of ARC*PEACE Aotearoa/New Zealand Delegation to Habitat II
3. Marilyn Waring, Social Policy School, Massey University (Albany Campus, Auckland)
4. Staff & Politicians, Waitakere City Council
5. Planning Staff, Northland District Council
6. Representatives of ECO (Environmental NGO)
7. Staff Members at Ministry for the Environment
8. Member of Parliament/Environment Spokesperson & Policy Advisor, Green Party/Alliance
9. Policy & Planning Staff, Wellington City Council
10. Representatives of World Wide Fund for Nature (WWF) New Zealand
11. Staff of GMV Associates (Planning Consultancy), Wellington
12. Mayor & District Manager of Wairoa District Council