Comment: For a Government that has repeatedly promised enduring and stable resource management reform, the Environment Select Committee’s recommended changes to the Natural Environment Bill and Planning Bill will take us in precisely the opposite direction.
They are shocking in the extreme for anyone who cares about our natural heritage. The majority of the committee, comprising MPs from National and Act, has taken bills that already favoured economic development and doubled down on that ideology at the expense of the environment.
The committee’s reports run to over a thousand detailed pages; but three things stand out. First, regulatory relief has remained, which will require councils to either pay for public interest environmental protections or do away with them. Second, the legislation’s environmental limits framework has been completely gutted. And third, a breathtaking amount of power and discretion has been vested in the minister, with minimal guardrails.
Consider regulatory relief. Councils across the country may have to pay up to an estimated $2 billion dollars for biodiversity, landscape and cultural protections on private land in their plans. Many of these rules have been in place for years.
Auckland alone, for example, has over 17,000 properties with significant ecological area protections in place, covering 26,000 hectares, including in the Waitakere Ranges – the lungs of Auckland. Preserving these in the new system could cost millions.
The reality is that a lot of these types of controls will have to be jettisoned. Local government, facing rates caps and strong opposition to spending, won’t be able to afford the compensation.
Smaller, cash-strapped rural councils, like those in the South Island High Country, will be acutely vulnerable to this chilling effect on environmental regulation because many manage vast areas of high-value biodiversity or habitat for threatened species.
If councils do persist with protections, the process will be punishing. Creating a ‘relief framework’ will be costly, bureaucratic, litigious and fraught with legal ambiguity and fiscal uncertainty. Long-term planning will be extremely difficult. Regulatory relief poses a very serious risk of bringing the whole system to a grinding halt.
Environmental limits, already weak under the bills, have also been fatally undermined by the committee’s recommendations. A limit is meant to be a biophysical threshold beyond which no more environmental harm is allowed. It’s how much nitrogen can be in a river, how much native bush can be cleared, how much wetland can be lost.
Yet the bills now require nothing of the sort. When setting or changing limits, they direct councils to weigh up the economic aspirations of communities against environmental harm. Under this calculus, dairying dollars may prove to be more important than swimmable rivers.
The bills make it extremely hard for councils to impose enforceable rules to stop a limit being breached, unless voluntary measures have been exhausted first; self-regulation is preferred. And any activity whatsoever is now allowed to breach a limit – whether farming, mining, factories, data centres, or something else – as long as the minister thinks its public benefits would outweigh the harm to the ecosystem or human health.
The committee recommended that the minister be able to set policy direction without even considering whether it would infringe limits. That policy direction then has to be implemented by councils without question, and without recourse to the courts. To hammer home the point, all references to ‘limits’ in the goals of the bills (which guide the minister’s decision making) have been removed, lest they imply some kind of unwanted hierarchy between limits and development.
All this makes an mockery of the term ‘environmental limit’ as most people would understand it.
The amount of power and discretion vested in the minister has increased markedly. Lawmakers received advice from Parliament’s Regulation Review Committee, which described the extensive ability of the minister to change the system through policy direction as a “Henry VIII clause”. In other words, the bills enable the minister to develop secondary legislation that significantly alters the primary legislation’s effect. This highlights that the bills are not only on shaky ground environmentally, but also constitutionally.
Unsurprisingly, all this and much more has elicited a strongly hostile response from Opposition MPs sitting on the committee, who have provided separate minority views. Labour has called the bills an “embarrassment”.
So what might that mean? The prospect of the bills being revisited or even repealed by a new government is very real. That will continue the expense and uncertainty caused by flip-flopping our resource management laws, which New Zealanders have now endured for years. Businesses need certainty; councils need stable planning frameworks; communities should not have to relearn an entirely new system every electoral cycle.
It is time for the Government to hit pause on these divisive and ideologically driven laws, send them back to the committee, and allow time after the election for a more sensible and consensus-driven solution.
