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RMA reforms will increase uncertainty, says top law firm

Thursday 5th September 2013

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Fundamental changes to the Resource Management Act will produce no more certainty than the current law and will introduce new conflicts that the courts will have to untangle, says top law firm DLA Phillips Fox.

In an opinion prepared for the Environmental Defence Society, the firm warns that merging Sections 6 and 7 of the RMA, which deal with the hierarchy of considerations for any application to use resources, "will simply create a longer 'shopping list' of principles that decision-makers can choose from."

"The new list incorporates matters of a fundamentally different nature to existing Section 6 matters, which often conflict with them. Where a conflict arises, it will usually not be possible to make actual provision for both (or all) of the matters provided."

As a result, the reforms are unlikely to lead to the key benefit claimed by Environment Minister Amy Adams, of ensuring that decisions on resource consent applications will be reached more swiftly than at present.

"The reforms will perpetuate the uncertainty and subjectivity inherent in the current 'overall broad judgment' approach," say Phillips Fox partner Robert Enright and senior associate Vivienne Holm in response to the recently released government discussion paper on RMA reform proposals.

They suggest also that the reforms are at odds with the approach the government is taking on freshwater reforms, where environmental bottomline conditions will be used as a way to create certainty.

"In the context of freshwater reform, the government has recongised the importance of understandable and enforceable environmental bottom lines, but these reforms fail to do so."

Among the changes accompanying the proposed merging of Sections 6 and 7, Adams is including new tests designed to ensure that private property development rights are not unduly impinged and to increase the weighting of economic benefits against environmental impacts.

It is this change, rather than a focus on faster outcomes, that has stirred opposition among environmental activists, concerned the RMA's exclusive focus on sustainable development will be watered down by bringing economic considerations into law designed to protect the environment.

"For example, (under the current RMA) the protection of outstanding coastal landscapes is treated as more important than the efficient use of resources," says Phillips Fox. "Under the proposals, these considerations will be given equal weight.

"In our view, improved national direction could be achieved by setting a clearer benchmark about when a Section 6 matter should be 'sacrificed' to achieve a conflicting goal."

The firm raises concerns that by removing reference to the concept of an "ethic of stewardship" altogether, the reforms "could be interpreted as deliberate decision to limit the scope of guardianship type considerations," including the Maori concept of kaitiakitanga, which has been recognised by the courts.

Collaborative processes, which freshwater reforms have encouraged, may also be undermined, the Phillips Fox opinion says.

In a statement, Labour Party environment spokesperson Maryan Street said Adams "should either go back to the drawing board, or own up and admit that her changes are designed to promote ease of development without proper care and protection of the environment."

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