Evaluating the environmental outcomes of the RMA A report by the Environmental Defence Society June 2016 .90 nzc?l?d 0 Property Council New Zealand ?4 EDS 0 A TY Contents Overview 4 Executive Summary 6 Part 1 8 Introduction 8 Project methodology 10 11 Environmental goals of the RMA system International benchmarking 14 Regulatory context 17 Part 2 20 Literature review of existing information on RMA outcomes 20 Case studies 21 1. King Salmon 22 25 2. Pomahaka Minimum Flows 3. Waterview tunnel 27 4. Matiatia Marina 28 5. Denniston mine 30 6. Management of discharges to freshwater 31 7. Sustaining the life-supporting capacity of air 33 8. Preservation of the natural character of wetlands 34 Summary of case studies and focus areas 36 Interviews 37 Part 3 53 53 Key issues and a way forward Summary of findings 53 Key issue identification 53 Appendix 1 Literature review 61 Appendix 2 Interview questions 74 Appendix 3 - Stage 3 scope and approach 75 References 76 Endnotes Evaluating the environmental outcomes of the RMA A report by the Environmental Defence Society June 2016 82 3 ove Overview The purpose of this project is to explore whether the Resource This project has been undertaken Management Act 1991 (RMA) has delivered desired environmental concurrently with a number of other relevant outcomes for New Zealand. It is intended to complement wider thought leadership programmes in the public assessments of the efficacy of the Act. The project is focused and private sectors. These include the Local on gathering the best available information on the state of the Government New Zealand’s ‘blue skies’ environment in New Zealand and the influence of the RMA on that state. working group and the resulting report1, This evidence is intended to help enable an informed discussion on the a report by the New Zealand Council for future of the RMA. Infrastructure Development (NZCID)2, ongoing work by the Productivity Commission related The project is being undertaken in the following three stages which are to urban planning for the Government3 and an being completed in succession: informal working group convened by officials at the Ministry for the Environment. Cross- • Stage 1: The state of the environment and a framework for RMA pollination of ideas from these projects will evaluation enrich the discussion on the future of the RMA, given their common focus. • Stage 2: The environmental outcomes of the RMA • Stage 3: Addressing the key issues: recommendations for the future Stage 1 was completed in December of 2015 and comprised: (a) a brief outline of the background to the RMA; (b) an assessment of the present state of the environment; and (c) an indicative evaluative methodology for Stage 2. The findings of Stage 1 are reported in ‘The state of the environment and a framework for RMA evaluation’ report. This document reports the findings of Stage 2 of the project which examines the influence of the RMA on the state of the environment. Where attribution is possible, we identify where the RMA has generated improved environmental outcomes and where it has failed to do so, with the likely reasons for the respective outcomes. In addition to assessing the influence of the RMA on the environment, we also outline its interaction with other legislation and processes. In Stage 3 of the project, we intend to further analyse the information gathered in Stages 1 and 2 and propose practical legal, policy and practice recommendations to improve outcomes. 4 Evaluating the environmental outcomes of the RMA A report by the Environmental Defence Society June 2016 e Report structure The structure of this report is as follows. Part I provides a short introduction to the RMA system and a brief outline of methodology adopted for this study. It describes the scope of the Act and its environmental goals. It undertakes a brief comparative analysis of the RMA with other approaches taken in other jurisdictions and identifies the key elements of effective environmental legislation. Lastly, it examines the interactions between the RMA and other regulatory instruments to provide a contextual understanding of the legislative landscape and recommendations for further work. Part II sets out the information gleaned from a range of endeavours, including a literature review of known evaluations of the RMA, analyses of five key case studies and three policy focus areas and the results of an extensive programme of interviews. Part II draws this information together tightly, draws some conclusions on the effectiveness of the RMA in achieving environmental outcomes and then identifies some of the key issues underlying poor performance. A digest of these key issues form the basis of an evaluative framework for any future scenario that contemplates even minor reform of the RMA system. This evaluative framework will be implemented in Part III, which investigates alternative scenarios. Appendix 3 of this report sets out an initially suggested methodology for Part III that requires further discussion and development. Evaluating the environmental outcomes of the RMA A report by the Environmental Defence Society June 2016 5 exe Executive Summary 2. A lack of effective strategy and oversight The Resource Management Act has jurisdiction over many of the impacts of human activities on New Zealand’s fragile island of decision-making has reduced the ecosystems, exceptional landscapes and unique wildlife. This report potential to protect environmental concludes that the environmental outcomes of the RMA have not met values, including the capacity to manage expectations, largely as a result of poor implementation, but also due cumulative effects. to a wide range of other factors. Addressing air discharges, most point source freshwater discharges, implementing mitigation and offsetting 3. The incorrect jurisprudence related to the to address unavoidable impacts, standardising decision-making and ‘overall balance’ approach undermined the providing a framework within which most communities can function are potential for environmental bottom lines all achievements it can claim. to be applied. The reset of the case law and other amendments are likely to see The effectiveness of the RMA would seem to have been greatest where this improve. community aspirations are more easily reconciled with extractive interests, but has been weakest where resources are past comfortable 4. Agency capture of (particularly local) allocation limits. The Act has been strongest on adjudicating individual government by vested interests has permitting functions, and weakest on overarching management of reduced the power of the RMA to cumulative effects and other longer term strategic issues. As a result, appropriately manage effects on it has largely failed to achieve the goal of sustainable management to the environment. date. 5. A lack of national direction has limited Globally, studies on the scale and pace of environmental degradation the potential of the RMA system to indicate that these often outstrip the capacity and effectiveness of effectively and efficiently achieve its environmental law to protect the public interest in nature protection. 4 environmental goals. New Zealand reflects this trend, but we note that the wording of environmental law is only part of what determines its influence on 6. Agency capacity has often been outcomes. We identify a range of key issues. Some are symptoms of insufficient to successfully implement other key issues – they are all linked: the RMA and opportunities for central government to provide financial and 1. While the RMA has brought together a lot of decision-making processes, it could be more integrated. There are still key logistical support have generally not been taken. exclusions that should be better joined up to enhance overall environmental outcomes. 6 Evaluating the environmental outcomes of the RMA A report by the Environmental Defence Society June 2016 e 7. The design of implementing This challenge is far from dissipating. Projected population and institutions and allocation of different economic growth will only sharpen pressures on the environment, and mandates requires systematic review restructuring of economic systems will be required to achieve genuine to ensure it is the best means of sustainability (such as ‘curbing the appetite of the affluent’).5 We delivering on statutory aspirations. must recognise the current failings of the RMA and act upon them, to marshal in a new era of more genuine adoption of sustainability. 8. Rigorous evaluation and monitoring of outcomes has been limited, eroding the potential for adaptive governance and robust implementation. 9. A narrow range of instruments has been employed to generate behaviour change which, in many instances, has not been fit for purpose. Better outcomes are likely possible through employing a broader range of approaches, including economic tools. 10. Future reform of the resource management system for New Zealand should proceed only where the anticipated improvements are certain and where any changes are based on robust evidence. The resetting of case law through King Salmon and the ongoing improvement in planning, availability of national direction and rising public expectations signal that the potential of the Act is only just being unlocked. The RMA is the flashpoint for New Zealand’s efforts to grapple with sustainability and it would seem we have some work to do. Evaluating the environmental outcomes of the RMA A report by the Environmental Defence Society June 2016 7 1 Part 1 Introduction The RMA was the first legislation internationally to enshrine the concept For this report, we review not simply the of sustainability in its overriding purpose which is ‘to promote the Act, but the entire resource management sustainable management of natural and physical resources’. Now in system that it encompasses: the wording its 25th year, the profile of the Act remains high amongst observers of the legislation, subordinate instruments, of environmental and economic management and it is highly visible delegated functions and the behaviours of compared with other legislation. Often amended and much-discussed, actors. Therefore when referring to the RMA, the Act’s impact on economic and environmental outcomes is a this report is referencing the RMA system common topic of conversation, although more the former than the holistically. The first place we look is at the latter. present structure and the existing provisions Often missing from this discussion is an empirical element. The critical within the Act to predict and track outcomes: Sections 32 and 35. issue really is, has the RMA delivered on its environmental goals and if not, why not? This is the key question that this report seeks to answer. Considerable effort has been deployed into the RMA system. New Zealand has 11 Since its initial enactment, the Act has been amended 21 times, but regional councils, 12 city councils, 54 district retains broadly the same structure and principles. Part 2 contains councils and the Auckland Council (formed the purpose (section 5), significant matters of national importance by special legislation). Some of the city and that must be recognised and provided for (section 6), and a range of district councils have regional functions ‘other’ matters to which decision-makers must have regard (section (unitary authorities). All in all there are 78 7). Section 8 completes Part 2, directing that the Treaty of Waitangi local authorities.9 Regional and local councils be taken into account.6 The regime provides for national, regional and do not solely work on the RMA, but it does local instruments which contain more specific direction on resource constitute a significant proportion of their management matters, the latter two being devised by sub-national mandate. agencies. National policy statements and national environmental standards are developed through national-scale consultative processes Most of the authorities have at least one plan and generally apply throughout the country irrespective of provisions at in place to implement the Act and sometimes lower levels (although they can be tailored and applied to a limited area multiple plans to recognise different aspects if desired). of their RMA responsibilities. First generation plans took an average of 2.5 years to The structure of the RMA regime was strongly influenced by local promulgate and 3.5 years for resolution of government reform that ran parallel to the review of resource appeals with an overall average of 8.2 years legislation: the creation of regional and district/city councils that would from start to finish. The average cost of first mainly implement the Act. The Local Government Act 2002 extends the generation plans was $1.9 million and each RMA ethos of localised decision-making and considerably empowers plan change (of which there are hundreds local government agencies.7 Most of the broader environmental nationally) costs on average $109,540.10 Most functions are delegated to regional councils. Regional governance did second generation plans are still in progress, not materialise with the RMA although the legislation changes of the so overall figures are unavailable. time significantly strengthened it. Forms of provincial government, regional authorities and catchment boards were among the predecessors (e.g. Auckland Regional Authority).8 8 Evaluating the environmental outcomes of the RMA A report by the Environmental Defence Society June 2016 Regional councils also potentially have an There are clear and comprehensive statutory requirements to oversight function to ensure that the district anticipate and monitor the outcomes of RMA interventions, most and city councils within their boundaries particularly in sections 32 and 35 of the Act. Section 32 performs a implement regional policy and planning similar function to the regulatory impact analysis required of national provisions. This role has been exercised to agencies when they contemplate new national laws, policies and varying degrees, from the former Auckland regulations. Other evaluation requirements exist in other legislation for Regional Council which was often proactive the same agencies implementing the RMA (e.g. Local Government Act in making submissions on district plans and 2002). Section 32 was recently amended to include further criteria on resource consents applications, through quantification and consideration of economic implications of policies. to other regional councils that have been While the amendments did not alter the sustainable management much more ‘hands-off’. Local Government purpose of the Act, one commentator noted: ‘the effect of these New Zealand also acts as an umbrella body, changes will be an inclination to favour planning approaches that providing support and codifying practice in provide for economic growth and which, as a convenient consequence, some instances, while the Ministry for the also do not reduce opportunities for economic growth’.11 Environment leads on other aspects. The Ministry for the Environment produced updated guidance to reflect The costs of policy and planning at a strategic those changes.12 In summary, section 32 requires that: level are primarily borne by regional and local ratepayers. The RMA consenting regime is • a cost recovery system, in which applicants ‘new proposals must be examined for their appropriateness in achieving the purpose of the RMA generally bear the cost of the time taken to process consents, the actions required to • the benefits and costs, and risks of new policies and rules on the service the needs of decision-makers and community, the economy and the environment need to be clearly all specialist reports and planning material. identified and assessed Decision-makers may also recover the costs of monitoring and enforcement of consent conditions. Other parties involved as • the analysis must be documented, so stakeholders and decisionmakers can understand the rationale for policy choices’.13 submitters bear their own costs. All councils and other processing agencies set their The quality of section 32 analyses have often been questioned,14 own fees for consents, hearings and other and seem to be an area in which (or because of which) poor activities within a permitting process. These implementation would manifest. costs can vary significantly and are difficult to predict at the outset. Section 35 gives all local authorities a duty to ‘gather such information, and undertake or commission such research, as is necessary to carry out effectively its functions under this Act or regulations under this Act’.15 A review of the section 35 requirements in the Act affirmed that, in the researcher’s view, they were appropriate and enabled the right information to be collected.16 Despite these statutory requirements, instances of comprehensive monitoring of policy outcomes are rare,17 mainly due to poor agency capacity and weak national direction.18 In the Literature review we briefly appraise a suite of the assessments which are available. Evaluating the environmental outcomes of the RMA A report by the Environmental Defence Society June 2016 9 Project methodology An outcome assessment can only meaningfully contribute to policy This report does not specifically address evaluation if it can link changes in variables to the policy being the impact of the environmental outcomes assessed (attribution). Given the scope of the RMA, and the complexity of the RMA system on Māori. An important of the environment, attribution is a significant challenge. Most policy implication of loss of environmental quality is evaluation studies include a mix of causal and non-causal approaches, the very real impacts on cultural values. Loss usually due to the paucity of data to satisfy information requirements of environmental values translates to loss of for the former.19 A paucity of data certainly characterises this cultural identity and can have significant and subject area, and the complexity of the legislative and the receiving often silent consequences for mana whenua.20 environment make attribution very challenging when general purpose This report does not go much further than data is used to assess overall outcomes. to acknowledge these and to highlight their profound importance, but we recognise that The methodology established for this project was based on our there are others far more adept at setting conclusion that collecting information from a wide range of sources them out that the authors of this report. was the best strategy to formulate an accurate picture of whether the RMA was ‘delivering for the environment’. The methodology was developed during Stage 1 of this project and approved by stakeholders. The methods are discussed in more detail in the earlier report. The overall structure of the project is set out in the diagram below. Figure 1: Overview of the structure of Stage 2 of the project Goals and context Implementation and outcomes Key issues and a way forward 10 • Detailed analysis of RMA • International benchmarking • Regulatory context for the RMA • Effort evaluation of RMA implementation • Literature review of information on implementation and outcomes • Case studies to illustrate key concepts • Interviews with nominated thought leaders on outcomes and the future • Analysis of above information to elicit key issues • Define the scope and nature of Stage 3 Evaluating the environmental outcomes of the RMA A report by the Environmental Defence Society June 2016 Environmental goals of the RMA system The RMA came about during a period of global Structural goals awakening about how finite our resources are, and the corresponding necessity to The RMA reform process set out to achieve 4 underlying goals. First, manage human wants and needs within it endeavoured to consolidate a complex legislative landscape25 the limits of nature’s capacity. While the characterised by process duplication, multiple consent requirements, global discourse revolved mainly around a plethora of decision-making bodies and high compliance and the concept of ‘sustainable development’, transaction costs.26,27 The RMA was intended to consolidate, streamline the words that found their way into the and simplify these processes and provide a ‘one-stop shop’ for RMA were ‘sustainable management’. The resource consents.28 distinction between these terms has been examined at length. In summary, sustainable Second, the RMA provided for integrated management29 as a management is seen as the environmental framework for identifying and resolving complex resource problems.30 (and fundamental) component of sustainable Integration was sought across 4 key areas: media (land, air, water), development – to be achieved without agencies (regional, territorial), legislation (management plans and being compromised by social and economic strategies prepared under other Acts) and across actions over time aspirations. The purpose of this section is (cumulative effects).31 Integrated management was a key aspiration of to identify what the environmental goals of the RMA. Integrated management was a response to the recognition the RMA were beneath this banner, in order to that siloed consideration of environmental and development matters be able to evaluate outcomes against these had limited basis in ecology and ultimately reduced the efficacy of 21 goals. environmental law. For example, the 1987 United Nations report Our Common Future (also known as the ‘Brundtland Report’) noted: Prompted by these developments in international thinking on integrated resource ‘Failures to manage the environment and to sustain management and sustainable development, development threaten to overwhelm all countries. Environment 22 a wholesale reform of New Zealand’s and development are not separate challenges; they are environmental laws occurred during the inexorably linked. Development cannot subsist upon a 1980s. This culminated in the enactment of deteriorating environmental resource base; the environment the RMA, among other initiatives. The RMA cannot be protected when growth leaves out of account the was conceived as a framework for integrating costs of environmental destruction. These problems cannot be and rationalising environmental law in treated separately by fragmented institutions and policies. They New Zealand23 under one common purpose are linked in a complex system of cause and effect.’ – ‘sustainable management of natural and physical resources’.24 In reviewing the genesis Third, the RMA was intended to install a regulatory regime which of the Act we demonstrate that there are two established non-negotiable ‘bio-physical bottom lines’ (in Part 2 of levels of goals under the RMA: those relating the Act) to ensure development occurred within the capacity of the to high level administrative goals (we call environment and the ecosystems that supported it. This was clearly them ‘structural’ goals) and those relating set out in the speech to Parliament by Simon Upton, when the Bill was to the values to be protected (we call these introduced, which referred to the ecological aspects of sub-sections ‘outcome’ goals). Achievement of one set of 5(2)(a)-(c) as constituting ‘biophysical bottom lines’ over and above the goals is in large part dependant on the which other activities could be considered.32 In other words, breaching achievement of the other, and we discuss this of bottom lines was not contemplated. In practice, the Courts took a relationship further later in this report. radically different view when interpreting the legislation, as we will discuss later in our case study of King Salmon and further in the conclusion. Evaluating the environmental outcomes of the RMA A report by the Environmental Defence Society June 2016 11 Whatever the trade-offs in the circumstances of a particular Outcome goals development, a higher level trade-off in favour of sustainability had already been made by the legislation in advance.33 Beyond The second set of goals related to the values those bottom lines, resource users would be left to make their own to be recognised and provided for under the decisions.34 Through establishing clear and consistent bottom lines, Act. These are contained within sections 5, 6 the RMA was intended to achieve better environmental outcomes and 7. We focus on the environmental goals with fewer restrictions on use and development.35 It was intended to (natural environment), but note that the Act be an environmental statute and was not designed to comprehend also addresses a range of other matters (e.g. social purposes36 or to make value judgements about the well-being of historic heritage). people or communities. 37 For the purpose of section 5, goals include: Fourth, national and local government were intended to have specific roles.38 Bottom lines were to be set at the national level. (a) sustaining the potential of natural and Responsibility for implementing national direction was allocated to local physical resources (excluding minerals) to government.39 The RMA was designed as a framework, not a blueprint, meet the reasonably foreseeable needs of giving local authorities wide discretion to identify the most efficient future generations; and means of achieving the Act’s purpose and meeting the needs of the community. The framework, however, is not all encompassing. (b) safeguarding the life-supporting capacity of air, water, soil, and ecosystems; and This research focuses on matters within the control of the RMA, where attribution is both fair and possible. The RMA deals with land, (c) avoiding, remedying, or mitigating any air, freshwater and the coastal marine area in general with some adverse effects of activities on the specific exclusions - fishing being the most notable. Much legislation environment. has been brought about since the RMA, to address specific issues, due to actual or perceived issues with the parent Act. For example, The section 6 matters of national importance the Resource Management (Waitaki Catchment) Amendment Act are somewhat more directive and we focus 2004 was introduced to address transboundary issues and ambiguity primarily on sub-sections 6(a)-(c). The three between Otago and Canterbury Regional Councils with respect to bottom lines for the environment set out in river management. The Hauraki Gulf Marine Park Act 2000 and the this section are: Waitakere Ranges Heritage Area Act 2008 were also seen as necessary bespoke statutes due to similar jurisdictional issues (and failures of implementation of existing instruments). (a) 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: (b) the protection of outstanding natural features and landscapes from inappropriate subdivision, use, and development: 12 Evaluating the environmental outcomes of the RMA A report by the Environmental Defence Society June 2016 (c) the protection of areas of significant Effort evaluation indigenous vegetation and significant habitats of indigenous fauna: The intention was to collate current data on the implementation of the Act, including the actions taken by relevant agencies and the In section 7, a suite of further matters are resourcing devoted to implementation efforts, to provide a picture set out that are less important than the two of current practice. The inputs such as data on compliance costs, preceding sections, but nevertheless enjoy litigation expenses, personnel numbers of other stakeholders (NGOs, particular priority over unreferenced values. the private sector and the wider public) was also to be documented Excluding recent additions (i.e. ‘the ethic where possible. of stewardship’) and excluding (strictly) non-environmental values (the efficient use Overall, the information was much harder to access than expected, and development of natural and physical particularly in a consistent format that could be easily compared and resources) there are three key aspects of then be related to environmental outcomes. It is possible that the section 7 that relate to the protection of the National Monitoring System from the Ministry for the Environment environment. could, over time, collate a useful database of relevant information. What information on costs and effort that was available is included in (d) intrinsic values of ecosystems: this report in relevant sections. (f) maintenance and enhancement of the quality of the environment: (g) any finite characteristics of natural and physical resources: Taken together, these goals follow a clear hierarchy and recognition of environmental bottom lines and the need to manage resources having regard to intergenerational equity. These goals can be achieved via a range of means from outright avoidance of impacts through to the emerging tool of biodiversity offsetting.40 We return to an assessment of whether these goals have been achieved in Part III. Evaluating the environmental outcomes of the RMA A report by the Environmental Defence Society June 2016 13 International benchmarking Environmental management was once of only Cost effectiveness peripheral importance to governments around the world, but that has changed in the past Environmental laws are disruptive to economic aspirations by their few decades. It is now a central function of very nature and the reasons for their existence are often not clearly government in most countries to manage evident to stakeholders. As such, their cost is a major point of protected areas, address weeds and pests, contention. The costs and delays surrounding the processes within any protect threatened species and manage regime are commonly criticised and certainly so in New Zealand. For natural hazards. To that end, environmental example, the Ministerial foreword for the 2013 discussion document law has been touted as one of law’s ‘great outlining proposed amendments to the RMA (including Part II) in 2013 success stories of the twentieth century’. noted: ‘The costs, uncertainties and delays of the current resource These new dimensions of governance have management system are affecting New Zealand jobs, infrastructure wide implications for business, the public and productivity, and they place an unfair burden on communities’.45 and the environment.42 Therefore, one Cabinet papers since appear to accept at face value that the costs could argue that Western society is in the are both high and unjustified, and cause unnecessary delays.46 41 formative stages of developing coherent governance systems for natural resources. Leading industry advocate Federated Farmers has also been a The Resource Management Act 1991 was vocal critic. Federated Farmers estimated the costs of the RMA at at the forefront of this transformation and $80.9 million a year, and noted that 73% of the farmers affected 25 years on, few other countries have by the RMA want it to be changed. Primary concerns listed attempted legislative reform so ambitious. 43 are frustration at having to gain consents for ‘normal farming activities’, the impact on landowners of protection of significant The characteristics of good environmental sites, advocacy by non-local environmental groups, the time and policy are that it alters behaviour adequately expense incurred complying with the Act and dealing with the and it does so in a way that is cost-effective Department of Conservation through resource consent processes.47 and appropriate to the needs of the community. Other key aspects of effective However, the oft-cited concept that the RMA is too expensive environmental law, particularly in addressing and is a handbrake on economic growth should not be taken at cumulative effects, are the application of face value. First because there has been little quantification of the a strategic approach and integration of benefit of constraining the impacts of human activities on public decision-making. goods, in order to paint the rest of the picture. The ‘costs’ are 44 First and foremost in measures of success, however, is that the incurred by interests that consume public goods, and the cost might law is effective at altering behaviour in otherwise be borne by communities. For example, a consenting the way intended, in this case achieving charge and a discharge levy on effluent into a freshwater ecosystem its environmental goals. This is the overall might increase the costs, but is likely to substantially improve question that this report seeks to answer, and the public interest outcomes of the legislation. As such, cost in we will return to it in the concluding sections. simple terms is a poor indicator of validity of a policy approach. The second aspect is cost effectiveness, then relevance, accountability and integration. We briefly discuss these elements in that order. 14 Evaluating the environmental outcomes of the RMA A report by the Environmental Defence Society June 2016 Integration The findings of international research also often run counter to the notions of environmental law creating unnecessary Integration is a means of reducing compliance costs and improving costs and barriers to economic growth. For overall environmental outcomes. The RMA set out to achieve integrated example, Yale Law Professor Daniel Esty decision-making, through consolidating permit applications into a ‘one demonstrated that stringent regulatory stop shop’. This was also intended to enable a fuller consideration regimes and powerful legal institutions of the effects of a proposal compared with a more fractured regime. were catalysts of more widespread The RMA has been characterised, many times over, as an excellent and rapid economic growth than in example of integrated management: it was referred to as ‘masterful’ weaker contexts. by Frieder.52 48 International research demonstrates that stringent environmental requirements are not necessarily Recent evaluations have cast aspersions on this, although the detail obstacles to economic development, is not available. For example, in 2015, the OECD noted that New but that this relies on employing a Zealand ranked poorly with respect to ‘single contact points, single applications and integrated permitting’.53 It is fair to say that some range of efficient and fit-for-purpose mechanisms to drive behaviour change. 49 matters sitting outside the Act reduce the level of integration; such as effects on climate change of emissions arising from consented Policy is about behaviour change, and there proposals and the extraction of fish. However, relative measures may is a wide range of policy types that can be useful here. Integration, despite deficiencies in some specific areas, be used. New Zealand – particularly with is an overall strength of the RMA compared with most other regimes. respect to environmental issues – tends to favour either non-regulatory approaches or traditional regulation. In 2015, the OECD concluded that New Zealand had the lowest use of economic instruments of any country surveyed.50 This under-use of flexible instruments (e.g. economic instruments) has likely had implications for the RMA system’s outcomes. For example, New Zealand’s reticence to employ alternative approaches for water allocation, such as pricing and trading, has had major implications for our freshwater ecosystems.51 The availability of flexible instruments is, therefore, potentially an area in which the outcomes of the RMA could be improved. Evaluating the environmental outcomes of the RMA A report by the Environmental Defence Society June 2016 15 Accountability Wide provision for public participation, and appeal rights, is also an important check A key determinant of success is whether there is accountability for on power of agencies under the RMA. The the outcomes from legislation. Ensuring that there is consequences emphasis on public participation was a for not complying with the Act, or meeting its aspirations, is crucial for reaction to limited prior public engagement long term success. The RMA has a significant amount of accountability in environmental matters. It is an area built in and around it for the effective exercise of procedures, but less where the RMA has often been recognised for the achievement of outcomes. The Ministry for the Environment as a world-leading statute. Certainly the is charged with the administration of the RMA. Its role is to provide diligent efforts of non-vested participants in oversight, track progress and evaluate performance among other planning processes have been responsible functions under section 24 of the Act. The Minister is able to for some important environmental outcomes intervene where councils are not performing under section 25(1) over the life of the Act (e.g. King Salmon, and in respect of a wide range of other matters (including proposals discussed later). This important aspect of of national significance under section 141). There are no provisions accountability has been steadily eroded that specifically give the Ministry for the Environment responsibility through successive amendments to the RMA; for the outcomes of the implementation of the Act, however. with present reforms proposing to reduce it even further. The accountability provisions A number of other statutory agencies have roles under the RMA. The in the Act are strong compared with many Department of Conservation has a statutory advocacy role under the other jurisdictions, but are at significant Conservation Act 1987 that – although significantly reduced in recent risk by attrition of public participation. years54 – has provided a valuable check and balance on decision makers. The Department also has a crucial role in coastal management, Monitoring and enforcement of the through assisting the Minister in formulating the New Zealand Coastal requirements of the Act is often lacking, Policy Statement under the RMA itself. The Parliamentary Commissioner despite comprehensive provisions and a for the Environment is an Officer of Parliament, independent of range of tools being available. What little government, charged with an important investigative role. The role research that has been done in this area of the specialist Environment Court has been very powerful indeed, has generally reported poor overall rates of providing a judiciary that is appropriately qualified, appointed for life compliance,55 weak exercise of compliance and well able to adjudicate some of the tough and complex matters monitoring functions by agencies and a failure that a less specialised judge or commissioner might struggle with. to follow through and use formal enforcement tools in many cases.56 The reasons for this Local government organisations are primarily accountable to include poor allocation of resources to these their electorates, although oversight bodies in addition to the functions, and a reluctance to exercise the Ministry for the Environment exist in respect of most of their functions especially where they are counter to functions. These include the Auditor General, the Ombudsman, the vested interests. Without robust exercise of Department of Internal Affairs, the Minister of Local Government, these functions, the effectiveness of the RMA the State Services Commission, the Serious Fraud Office and is most certainly being undermined. There of course the police and other agencies on other matters (e.g. are clear signs of improvement however, Worksafe New Zealand). Such oversight bodies are able to hold particularly from regional councils, and these local authorities to account, but only within the scope of their own enhancements to practice require greater particular mandate. They have little ability to directly intervene support from all levels of government. and the accountability still does not extend to taking explicit responsibility for the environmental outcomes of the system. 16 Evaluating the environmental outcomes of the RMA A report by the Environmental Defence Society June 2016 Regulatory context Summary The interactions of the RMA with related legislation and processes (both direct and indirect) have an important bearing on its The RMA is 25 years old this year, and functionality and the outcomes it enables. Interplay of the RMA has retained international renown as and other legal instruments can be direct (intertwined processes a revolutionary piece of legislation, that always or usually occur together) and indirect (rules that despite frequent and often ill-considered address similar environmental issues to those covered by other amendments. Enshrining sustainable legislation, but from a different perspective).The RMA interacts management and denoting a range of with a large range of national legislation. Some – though not cutting edge concepts for its time (e.g. all – of these have material implications for the environment. life supporting capacity of ecosystems) made it a world first. While there are A much more detailed analysis is necessary, than is feasible within doubtless areas in which improvement the scope of this project, to unpack these issues. We do however of the regime are possible, there is little set out the key interfaces divided into 5 categories: Infrastructure, evidence that the basis for the Act, and Conservation, Social and Cultural, Extractive and Administrative. Some framework it provides, is seriously lacking. legislation spans a number of interfaces due to its broad implications Primary weaknesses are found in the for resource management (e.g. Local Government Act 2002). interpretation and implementation of the provisions, as we will discuss later. Table 1: Table of legislation that interacts directly or indirectly with the RMA Infrastructure and planning Local Government Act 2002 Land Transport Management Act 2003 Public Works Act 1981 Conservation Act 1987 Wildlife Act 1953 Conservation Reserves Act 1977 Marine Mammal Protection Act 1978 Marine Reserves Act 1971 Local protection acts Health Act 1956 Social and Cultural Te Ture Whenua Māori (Māori Land) Act 1993 Treaty of Waitangi Act 1975 Marine and Coastal Area (Takutai Moana) Act 2011 Heritage New Zealand Pouhere Taonga Act 2014 Fisheries Act 1986 Forests Act 1949 Extractive Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012 Crown Minerals Act 1991 Local Government Act 2002 Environment Act 1986 Administrative Property Law Act 1952 Crown Pastoral Land Act 1998 Local Government Ratings Act 2002 Evaluating the environmental outcomes of the RMA A report by the Environmental Defence Society June 2016 17 Infrastructure and planning Conservation legislation Economic and community development, The RMA interacts with a wide range of conservation and associated including infrastructure, is managed within legislation. All these acts cover separate but related aspects of a suite of legislation which has a strong conservation and environmental management and their years interface with the RMA, including the of assent span nearly forty years. Conservation legislation is Local Government Act 2002 and the Land generally concerned with preservation of species, ecosystems Transport Management Act 2003. While and their habitats. The Conservation Act 1987 and the Reserves most infrastructure development sees Act 1977 are also the primary legislation for the management of these Acts all being relevant at the same land protected for the purposes of conservation, while the Marine time, there is only limited formal interaction Reserves Act 1971 is the marine equivalent. The Wildlife Act 1953 between them. The New Zealand Council and the Marine Mammal Protection Act 1978 both focus on species for Infrastructure Development has long (although habitat protection is possible under both). In preparing criticised this weak relationship, particularly policy and planning instruments under the RMA, decision-makers in respect of institutional alignment and are directed to have regard to matters covered by other legislation the process for making funding decisions. 57 (including plans and instruments formulated under them). The confined space, high need for revised transport networks and high populations Where an activity requires permission under more than one Act, of urban areas exacerbate the effects of their interaction can be troublesome. For example, the RMA these interactions. In 2015, the government and the Wildlife Act 1953 interaction has been studied at some charged the Productivity Commission with length in recent years. The studies have concluded that under- investigating urban planning in New Zealand. implementation of the Wildlife Act 1953 and over reliance on RMA It is likely that this inquiry will recommend processes has had negative implications for wildlife, because the alterations that will affect the RMA. RMA does not have such a strong focus on protection and is more 58 likely to allow loss.59 Losses may also be uneven. For example, the protection of individual species is often ‘easier’ to deal with than ecosystem or habitat level impacts, and may be focussed upon to the overall detriment of the environment (i.e. the species may be translocated out of harm’s way, but ecosystem damage proceed). The lack of integration between the RMA and marine legislation more generally has been examined in depth, and recommendations include statutory changes to achieve a better basis for integrated management.60 The patchy regulatory regime in the marine area has deleterious consequences for the environment, exacerbated by the large expanse of ocean requiring management, the relatively poor amount of information about marine ecosystems, and the weak funding model that limits resources to do so.61 Resolving the patchiness is likely to require regulatory reform to make clear the roles of various relevant agencies and to ensure mechanisms for both protection and use interact coherently. In the meantime, various non-statutory processes have been initiated to develop alternative approaches, such as the Sea Change – Tai Timu Tai Pari process.62 18 Evaluating the environmental outcomes of the RMA A report by the Environmental Defence Society June 2016 Resource extraction Social and cultural issues Regulation governing resource extraction is A key dimension of the RMA – and perhaps the area which is least partly contained within the RMA (management understood – is its interaction with social and cultural legislation of environmental externalities, land use etc) including the Health Act 1956. However the health interaction but is mainly outside it. Key Acts include has been instrumental in the effectiveness of the RMA approach the Fisheries Act 1996, Forests Act 1949, to addressing air quality (see our discussion later). Where Crown Minerals Act 1991 and several others. environmental and social concerns are aligned, the instruments The main interplay of these regimes is can work together to achieve outcomes with broad benefits. The where proponents of development must interplay of these two has recently been evident in the Canterbury seek permissions under two or more Acts Region, in which human health impacts of water contamination have to undertake a single activity or where sparked concerns from the Canterbury District Health Board.64 the activities under one Act may have implications for activities conducted under The relationship between the RMA and Māori rights and interests another or the values it provides for. has been much more fraught – whether based on statute or agreements. The RMA contains specific instruments to recognise For example, the Fisheries Act 1996 and Māori (e.g. transfer of powers and iwi management plans), but the RMA overlap in several respects and in the main they have been weakly implemented and decision- link weakly.63 Fishing activity is managed making powers have rarely been delegated to iwi as anticipated. under the Fisheries Act 1996 but regional Under the Wai262 claim to the Waitangi Tribunal, these and other councils also have marine biodiversity grievances were set out. The Tribunal recommended a range of functions under the RMA. The impact of changes to how the RMA is implemented to address these issues.65 fishing activity on marine biodiversity falls into this overlap, which has largely become The dominance of the RMA in day-to-day development is perceived a gap. Conversely, impacts of activities by some to ‘crowd out’ other more defined Acts. For example, on habitats of importance to fisheries, are Gregory and Stoltz expressed concern that the relationship managed by regional councils under the RMA, between the RMA and the Heritage New Zealand Pouhere Taonga but few linkages have been made between Act 2014 will result in historic heritage values slipping through the catchment and fisheries management. gaps due to overlaps and poor institutional design. The authors recommended giving RMA agencies full jurisdiction over permissions and enforcement functions, while Heritage New Zealand retained the broader special interest function of advocacy and education.66 The identification of this ‘uneasy’ relationship demonstrates another situation where an overlap may become a gap. The RMA is a large and influential piece of legislation that has interactions with many other statutes. Where these interactions are not coherent, where roles are not defined or where there are overlaps or gaps, negative impacts on the environment do transpire. Any comprehensive work anticipating reform of the RMA system should turn its mind to institutional design, alignment and the interplay of other legislation and functions with the RMA. Evaluating the environmental outcomes of the RMA A report by the Environmental Defence Society June 2016 19 2 Part 2 Literature review of existing information on RMA outcomes This section sets out a range of known information on the effectiveness and underqualified staff. The second of the RMA at protecting the environment. Overall, there is a surprising most common factor cited for poor dearth of empirical analysis of the outcomes of the RMA for the implementation was a lack of national environment. Appendix 1 contains a summary of 19 national scale guidance. In 2008, Enfocus prepared a and 4 regional studies; they span a time period from the mid-1990s paper for the Environmental Defence Society through to 2015. While the list is not exhaustive, it contains most of that set out the seven key obstacles to the the empirical studies on RMA outcomes undertaken at a national scale. development of national instruments under While many are based on interviews with key informants and policy the RMA. Those factors include national analysis of instruments, several examine in detail the environmental direction only addressing topics when outcomes of the Act on the ground. A subset of regional studies is also they are difficult and highly contentious, included, generally carried out by councils under section 35. Given that the difficultly ‘government’ experiences in 25 years has passed since the RMA was enacted, a more detailed and reaching a single policy position in the face comprehensive evaluative literature might be expected. of different and opposing mandates and highly variable support for these initiatives Sir Geoffrey Palmer drew attention to this gap in monitoring and by local government agencies (i.e. those that evaluation in 2015. He identified some likely causal factors as being will ultimately implement the policy and store the cost of research, low priority given to such activities, complexity much of the required information to do so).68 of problems and methods to assess them, and lack of interest in This lack of national guidance has been noted outcomes particularly at a political level. The long term consequences for some time and national direction has been of a lack of empirical evaluation has also meant that legislative change more forthcoming in recent years. has been ‘seat of the pants’ and based on ‘popular sentiments’, where more robust amendment would arise from more systematic Weak implementation is also attributed to approaches.67 agency capture (such as lack of enthusiasm for setting strong limits for freshwater due What evaluation has been carried out has a common theme of finding to a preponderance of agricultural interests underwhelming outcomes for the environment, particularly with respect in the council)69 and poor institutional design to strategic issues such as cumulative effects. Failings, however, (see the Parliamentary Commissioner for appear less to do with the wording of the Act itself and more to do the Environment’s discussion of air quality). with related matters, such as political will, resourcing, agency capture, These findings echo outcomes elsewhere in institutional design and the influence of distorted jurisprudence. The our research and we return to them at the evaluations to date identified very similar drivers of poor environmental end of this report. The limited amount of outcomes. The most commonly identified constraints were predictable empirical information is certainly concerning. and generally uniform. Any future reform considerations must deeply engage with the need for better monitoring 20 The factor most commonly cited was poor capacity of agencies. of policy effectiveness, greater transparency Constrained capacity referred to lack of financial resources (the of outcomes and a robust link of outcomes local government funding model is the subject of concern), low to mechanisms for effecting agency research capacity, little funding to investigate policy innovations accountability. Evaluating the environmental outcomes of the RMA A report by the Environmental Defence Society June 2016 Case Studies The literature review of existing information on RMA outcomes, summarised in the previous section, has highlighted a significant lack of information on policy effectiveness Table 2: Table of five case studies Case study and outcomes throughout the RMA system. New Zealand has rich experience of the implementation of the RMA over 25 years, across a wide range of settings, and detailed Proposal was for 9 additional salmon farms in 1. King Salmon areas of environmental management. The specific case studies were chosen (it included both a private consents). learnings, a case study approach was determined under the Act and three broader the Marlborough Sounds plan change and resource learnings are possible. To help elicit such used, focussing on five high profile cases Brief description Pomahaka Minimum Flows ‘reset button’ on more than two decades of jurisprudence (see key issues). Proposal was a plan absence of coherent allocation change to refine water regimes are widespread allocation in a catchment challenges under the RMA, so a in Otago. case study focusing on this will Proposal was a large of environments. The role of the RMA in decision, consent, monitoring and reporting law under the RMA, as it hit the likely provide useful insights. activity types impacting on different types evaluated through analysing submission, EDS v King Salmon is pivotal case Declining water quality and the 2. to collectively represent a broad suite of influencing the environmental outcomes was Reason for selection roading infrastructure 3. Waterview Tunnel documents and undertaking key stakeholder upgrade in Auckland to remove reliance upon a single transport route to West Auckland. It went through a fast-track RMA interviews. process Major infrastructure in urban areas commonly attracts significant attention and is necessarily disruptive. The Waterview Tunnel project provides an opportunity to unpack those issues. Proposal was for a 4. Matiatia Marina marina on Waiheke Coastal marine area management Island, including berths, is an important component of the car-parking and other RMA. This case study showcases structures with ecological the influence of the NZCPS also. and landscape impacts. The environmental effects of 5. Denniston mine Proposal was for a 157ha mining are addressed under coal mine on the West the RMA, and the Denniston Coast. case is both controversial and illustrative. Evaluating the environmental outcomes of the RMA A report by the Environmental Defence Society June 2016 21 1. King Salmon In addition to the case studies set out above, Background three focus areas were chosen to elicit key learnings about the RMA’s effectiveness at In October 2011, the New Zealand King Salmon Company (King managing wider goals. These focus areas are: Salmon) sought to establish 9 salmon farms in addition to the 6 it already operated in the Marlborough Sounds. For 8 of the proposed 6. Avoiding, remedying or mitigating the adverse effects on freshwater ecosystems sites, marine farming was a prohibited activity under the Marlborough Sounds Resource Management Plan. King Salmon sought a private plan change to amend the activity status to discretionary for those 7. Sustaining the life-supporting capacity of air 8. Preservation of the natural character sites and lodged concurrent resource consent applications. At the 9th site resource consent was sought as a discretionary activity. The proposal was heard in the first instance by a Board of Inquiry of wetlands and the protection of as a matter of national importance. The Board granted plan them from inappropriate subdivision, changes making salmon farming a discretionary activity for 4 of use, and development the proposed sites at Papatua in Port Gore, Ngamahau, Waitata and Richmond, and also granted resource consent for those Each will be discussed in brief and an sites. It refused consent for the remaining 5 sites, including overall summary will combine findings to the White Rock site where a plan change was not required. determine relevant learnings for this project. EDS and Sustain Our Sounds Inc (SOS) appealed the decision on separate grounds. Sustain Our Sounds appealed the Board’s decision with respect to all 4 sites. It had 3 main arguments on appeal: that there was inadequate information on water quality issues for the Board to reach a decision, that the Board was incorrectly influenced by adaptive management measures, and that even if adaptive management was available those measures should be part of the plan and not in the resource consent. The Supreme Court unanimously dismissed the SOS appeal. Importantly, because EDS’s appeal in respect of the Papatua site was successful, in practical terms the failure of the SOS appeal only affected the 3 remaining sites: Ngamahau, Waitata and Richmond. EDS opposed the plan change and consent in respect of the Papatua site. The Board had recognised that Papatua in Port Gore is an outstanding natural landscape (ONL) and an area of outstanding natural character (ONC), and that the proposed salmon farm would have significant adverse effects on those values. It recognised that as a consequence, if the plan change was granted in respect of this site, policies 13(1)(a) and 15(a) of the NZCPS would not be complied with. Despite this, the Board granted the plan change. The Board found that that under section 67(3) of the RMA it was required to ‘give effect to’ the NZCPS ‘as a whole’, and to reach an ‘overall judgement’ on King Salmon’s application in light of the principles in Part 2 RMA. 22 Evaluating the environmental outcomes of the RMA A report by the Environmental Defence Society June 2016 EDS appealed this decision to the High Analysis of the outcomes for the environment Court which dismissed the appeal and confirmed the Board’s approach. Leave The Supreme Court decided by majority that the appeal must be was then granted to appeal directly to the allowed. It found that the plan change in relation to Port Gore did not Supreme Court. The two key questions comply with section 67(3)(b) of the RMA because it did not give effect in front of the Supreme Court were: to Policies 13 and 15 of the NZCPS. This meant that the salmon farm proposed for the Papatua site did not proceed. The outcomes for the • • Whether the NZCPS and its standards environment were positive in that Papatua and Port Gore retained must be complied in relation to ONCs and higher quality and more intact natural landscapes and greater natural ONLs and, if so, whether the Port Gore character. Development was directed towards areas more able to plan change complied with section 67(3) absorb the impacts: the 3 remaining sites at Ngamahau, Waitata (b) of the RMA even though it did not give and Richmond for which the Supreme Court confirmed the plan effect to Policies 13 and 15 of the NZCPS. changes and consents subject to adaptive management conditions. Whether the Board was correct in its use Reasons for the outcome of the overall judgement approach. The Court held that the protection and preservation of the environment are a core part of sustainable management as expressed by Part 2. The NZCPS gives substance to Part 2 in the coastal environment. Although Part 2 of the RMA does not give primacy to environmental preservation or protection, lower order planning documents can and Policies 13(1)(a) and 15(a) do in requiring protection of ONCs and ONLs. The requirement to ‘avoid’ adverse effects in these policies is a strong direction that, when ‘giving effect’ to the NZCPS in lower order planning documents, must be implemented. This means that, in the context of a plan change, they are not merely relevant considerations to factor into a broad overall judgement, but they are environmental bottom lines which must not be compromised. Plan provisions are to be read together and reconciled, with those provisions with the more directive wording prevailing. The Court found that there were three limited exceptions to this: invalidity, incomplete coverage or uncertainty of meaning. Evaluating the environmental outcomes of the RMA A report by the Environmental Defence Society June 2016 23 Comparative analysis Summary A number of similar applications also in ONLs have been declined: The effect of the Supreme Court’s decision extends far beyond the Marlborough • KPF Investments Limited’s application70 for resource consent Sounds. Stronger protections now apply to to convert a mussel farm to a salmon farm at Danger Point in areas identified as exhibiting outstanding Pelorus Sound, an ONL under the Marlborough Sounds Plan: In natural values, in particular in the coastal 2014 the Environment Court reversed the Council’s decisions environment. The decision confirmed that the and declined consent. Importantly, the Court found that in the RMA contemplates, and is partly premised on, context of resource consent decisions the overall judgment the concept of environmental bottom lines. approach still applies because decision-makers are only required The RMA provides for a hierarchy of planning to ‘have regard’ to plan provisions not ‘give effect’ to them. documents to flesh out the principles in Part Nonetheless, it refused consent on the basis that, after placing 2 in a manner that is increasingly detailed in all relevant considerations in the balance, the purpose of the both content and location. Each document RMA would be better achieved if consent was declined. must ‘give effect’ to, or implement, those that precede it. This is not a balancing exercise • Clearwater Mussel Limited’s application71 for resource consent at a policy level. It requires decision-makers for a non-complying activity to extend an existing marine farm to identify those policies that are relevant off Camel Point at the mouth of the Tennyson Inlet, an ONL and pay careful attention to the way in which under the Marlborough Sounds Plan: In 2016 the Environment they are expressed in order to reconcile Court confirmed the Council’s decision to refuse consent. them. Some provisions are expressed in such directive terms that the decision-maker In contrast, similar applications (not in ONLs) have been granted: has no option but to implement them and those provisions can require protection or • Knight Somerville Partnerships’ application72 for resource preservation of the natural environment. consent to establish a mussel farm in Beatrix Bay, Pelorus For example, ‘avoid’ in the context of the Sound, not identified as an ONL under the Marlborough NZCPS means to not allow, or prevent the Sounds Plan. (2014): In 2014 the Environment Court confirmed occurrence of, and is a stronger direction. the Council’s decision to grant consent. The Court found that Policies 13 and 15 of the NZCPS did not apply and the application was consistent with Policy 8 of the NZCPS. • West Mussels Distributors Limited’s application73 for a marine farm located off the western coast of Stephenson Island in Whangaroa Bay, Northland, which the Court determined was not an ONL: In 2014 the Environment Court confirmed the Council’s decision to grant consent. 24 Evaluating the environmental outcomes of the RMA A report by the Environmental Defence Society June 2016 2. Pomahaka Minimum Flows It is evident from planning processes Background post the King Salmon decision that the RMA is now more effective in protecting The Pomahaka Minimum Flows project was to be implemented outstanding and high natural value areas by Proposed Plan Change 3B undertaken by the Otago Regional in the coastal environment. Questions still Council. The plan change introduced a primary and supplementary remain over the implications for other parts allocation regime for the Pomahaka catchment, in southwest Otago, of the natural environment. The Courts have a tributary catchment of the Clutha River. Prior to the RMA, the values indicated that the same approach should be of the Pomahaka were recognised and protected by a Local Water taken to the National Policy Statement on Conservation Notice which expired in 1991 when the new legislation Freshwater Management.74 There is ongoing was enacted. There had been growing concerns in the catchment debate about how (or if) the management over deteriorating water quality since the late 1990s, primarily as a framework for outstanding areas in the result of significant conversion to intensive farming, and a network NZCPS, for example ONLs, should be applied of mole and tile drains being installed throughout the catchment. to ONLs outside the coastal environment given that section 6 of the RMA affords The introduction of the National Policy Statement on Freshwater the same level of protection to all ONLs. Management in 2011 (revised in 2014), together with existing provisions of the Otago Regional Plan: Water prompted the Further, the Supreme Court’s decision introduction of minimum flows and an allocation regime through was focused on the requirement for the plan change. The plan change was notified in August of 2014 lower order plans to ‘give effect to’, or after four community workshops. These workshops unpacked implement, higher order ones. Different the key issues with stakeholders present, before a solution was wording applies to decision-making on reached. The decision of the Council was released six months resource consent applications, where later (February 2015), and with no appeals being lodged, the decision-makers are only required to ‘have change become operative in June of the same year.75 regard to’ directive provisions, including numerical bottom lines. This undermines the effectiveness of the RMA in achieving its goal of providing for development within the capacity of the environment. Possibly the most critical learning from the King Salmon decision is the importance of case law from the Supreme Court in providing clarity of purpose and interpretation. Evaluating the environmental outcomes of the RMA A report by the Environmental Defence Society June 2016 25 Analysis of outcomes Summary The Otago Fish and Game Council stated that the plan change was a The plan change was developed through ‘significant step in the protection of the river’ while the Otago Regional early consultation with all stakeholders, was Council noted it was a ‘positive outcome’ to not have to litigate the not appealed and was operative within one matter, as a result of energy being put in early with collaboration year of its notification, proceeding through through workshops.76 Strong recreational interests were undoubtedly a Schedule 1 process. The plan change a factor in the protection of the river which illustrates that the cultural, was a positive step for the environment recreational and amenity values of river protection are potentially and demonstrated timely compliance with influential in planning decisions, and perhaps more so than intrinsic emerging national and regional direction. values. The plan change was made operative on 1 June 2015. The plan change process demonstrates the efficacy of the Schedule 1 process There were many existing consents for abstraction in the catchment. where a compromise is able to be reached These had varying minimum flows which had been set on an ad hoc between the relevant interests at the table. basis. Some consents lacked a minimum flow entirely. All consents in the catchment were subsequently called in under section 128 of the RMA, and the minimum flows were applied to all but two of them. Several irrigators wished to be heard on this matter. However, the Council only granted two exceptions to the minimum flow, with these being for very small takes (< 5 litres per second) in mountain tributaries far from the minimum flow site. Reasons Strong interest from anglers and other recreational users of freshwater somewhat ‘smoothed the way’ for this plan change to occur, and enabled a demonstration of the functionality of the Schedule 1 process. Federated Farmers and Fish and Game came to a compromise in which water abstraction and environmental values were both able to be protected to their satisfaction, and in a way that met legislative requirements and was accepted by the community. This plan change one was rapid, inexpensive compared to more contentious processes and achieved an outcome that appeared to have broad community buy-in. The Otago experience demonstrates that a plan change is more likely to escalate to the Environment Court where a compromise is difficult to strike. 26 Evaluating the environmental outcomes of the RMA A report by the Environmental Defence Society June 2016 3. Waterview tunnel Background Analysis of the outcomes for the environment The Waterview Connection will complete The Board of Inquiry granted the designations and consents applied the Western Motorway Ring Route, a 48km for in mid-2011. The project will result in both negative and positive motorway route between Manukau in the environmental outcomes. Likely negative impacts include wildlife south and Albany in the north of Auckland. impacts (although some wildlife was translocated out of harm’s way), It provides a bypass route around central and permanent loss of sections of the foreshore and seabed, existing Auckland, ending the city’s reliance on a mangrove habitat, ecotones, and natural recreation space. Notably, a single motorway spine for road travel across section of mangroves in the proximate marine reserve will be removed. the region. The New Zealand Transport However, there will be numerous positive environmental effects Authority’s application for notices of including restoration and extension of open space, extensive re- requirement and resource consents for the vegetation and new planting, protection requirements, extensive weed proposal was publicly notified in 2010. It and pest management and better water treatment for runoff. Monitoring was considered by a Board of Inquiry, in requirements also form part of the conditions to help track actual the first instance, as a proposal of national environmental outcomes and to ensure they are what were anticipated. significance. A nine month fast-track process, with appeal rights limited to points of law, Reasons for the outcome applied. It was not subject to appeal. The Board approved the proposal on the basis that the safeguarding The project included the construction of of the life supporting capacity of air, water, soil and ecosystems twin tunnels, 2.4km long, each carrying could be ensured by the imposition of appropriate (and complex) three lanes of traffic. There was also an conditions. These conditions required a combination of avoidance, interchange at Great North Road consisting of remediation, mitigation, restoration, environmental compensation four ramps connecting the southwestern and and financial contributions, all underpinned by extensive management north-western motorways to complete the and monitoring plans. The specificity and complexity of the Western Ring Route. The project also included conditions was critical in ensuring that restoration and environmental community infrastructure such as recreational compensation activities adequately responded to the adverse effects. facilities, upgraded parks and improved and Their implementation will be important over time. In relation to the extended cycling and walking connections. permanent occupation of the coastal marine area, the mitigations The original design was for an overland road proposed were intended to address the adverse environmental effects. instead of a tunnel: tunnels were opted for to expedite the decision-making process and Comparative analysis reduce the level of community opposition (at much greater financial cost). The magnitude Other large scale motorway proposals have also been consented, of the proposal, even in its modified again subject to extensive and complex conditions (e.g. Waikato form, meant the potential environmental Expressway in 2009). Wellington’s Basin Reserve Flyover was not effects were extensive including effects consented however, being declined in the High Court in August on landscape, coastal natural character, 2015. Transmission Gully (also in Wellington) was approved vegetation, fresh and sea water quality, with extensive mitigation actions being required, provoked by coastal processes, natural ecology, air, experts in other agencies taking part in the proceedings (e.g. and amenity. The Board found that Policies Department of Conservation under its advocacy functions). 6 and 10 of the NZCPS pointed towards the appropriateness of the proposal. Evaluating the environmental outcomes of the RMA A report by the Environmental Defence Society June 2016 27 4. Matiatia Marina Summary Background The outcomes for the environment were In late 2013 Waiheke Marinas Limited applied to establish a marina in considered by the Board to be negative in Matiaitia Bay, Waiheke Island. The original project included 160 berths, the short term and most likely positive in the two breakwaters, reclamation providing 55 car-parking spaces, 20 long term. Whether this in fact occurs cannot new piles for moorings, dredging and related works. Near the end be determined until a number of years post of the hearing the size of the proposal was reduced to 112 berths cessation of construction in 2017, and when and the reclamation was abandoned in favour of a parking deck. the full extent of environmental remediation, restoration and compensation actions have The proposal had a number of potential adverse effects on been undertaken. It will also rely on effective the environment, the most significant being impacts on the implementation of the long term management landscapes and natural character of the Bay. The proposal would and monitoring plan. The proposal shows also fundamentally change the coastal ecology of the area where that, if high expectations are placed on the marina structures were to be located, but this was found not developers to adequately address adverse to contain any rare or unique features and so any effects were environmental effects, positive outcomes largely dismissed (apart from pollution from anti-fouling which was can be achieved and within tightly defined considered in some depth). The proposal was heard in the first timeframes. These expectations are in part instance by the Environment Court, as a non-complying activity, communicated by expert witnesses from under the direct referral provisions of section 87G of the RMA. other organisations working to improve the proposal under their advocacy functions. Analysis of the outcomes for the environment The Environment Court refused to grant consent to the proposal in December 2015. The applicant did not appeal and subsequently went into liquidation. The outcomes for the environment were positive, in that Matiatia Bay retained higher quality landscapes, greater natural character and more intact coastal ecology. 28 Evaluating the environmental outcomes of the RMA A report by the Environmental Defence Society June 2016 Reasons for the outcome Other contextual factors which may have contributed to the outcome The Environment Court largely declined the failure of the applicant to engage meaningfully with local iwi, and the proposal on the basis of landscape effects, despite the Bay not containing any outstanding natural landscapes or any high or outstanding natural character in its entirety (although some elements had higher natural character values). In the Court’s summary of its decision it stated that ‘the adverse landscape effects, particularly in reference to the breakwaters and deck, were significant was the high level of conflict over the proposal in the local community, Matiatia Bay being the gateway to Waiheke Island for numerous visitors. Comparative Analysis Other recent similar applications have gone ahead. • Whangamatā marina: Granted consent for 209 berths in 2008 • Tairua marina: The original application for a 150-berth marina was declined. Subsequently a proposal for a 95-berth and largely unmitigated and therefore marina was granted consent by commissioners in 2009, with contrary to relevant provisions. The Court appeals to the Environment Court subsequently resolved. also found that there would be detraction from the future enhancement of the environment, as the vegetation in the areas matures [75% of the landscape catchment was in permanently protected conservation and covenanted areas]. The balance between encouraging location in areas of already compromised natural character, and protecting those remaining natural • Sandspit marina: Granted consent for 131 berths in 2012 Summary The RMA is capable of protecting coastal landscape and natural character values even where these are not outstanding. The stronger provisions of the NZCPS 2010 assist with this, as does having strong elements were not struck by the proposal.’ clear direction in the Council planning documents and credible and The Court noted that it was not possible to to be achieved where it is an all or nothing decision, in that the activity provide any meaningful mitigation for the marina. It was not possible to screen it say with planting, or to nest it into a valley, as can be done on land. It was either in the right place or it wasn’t, so it was essentially appropriately qualified experts involved. Protection seems more likely is appropriate or not in the proposed location and effects cannot be effectively mitigated, so a ‘half-way’ house is not available to the decision-makers. This demonstrates that mitigation strategies may be invoked under the Act to enable inappropriate development to proceed, and confirms the need to exercise caution with their application. an all or nothing decision as to whether it was appropriate within the context of the Bay. In addition, the relevant planning documents contained provisions that emphasised the importance of maintaining the landscape character of Maitiatia Bay and these appear to have helped the Court to reach the conclusion that the proposal was inappropriate within the setting of the Bay. Evaluating the environmental outcomes of the RMA A report by the Environmental Defence Society June 2016 29 5. Denniston mine Background Analysis of the outcomes for the environment In 2012 Buller Coal Limited applied for The proposal was granted by the Council and appealed to the resource consents to establish an open- Environment Court by the West Coast Environmental Society and cast coal mine on 157ha of the Denniston the Royal Forest and Bird Protection Society (Forest and Bird). The Plateau. The proposal was a discretionary Environment Court, after a number of intervening decisions from activity under the district plan. Coal was to superior courts, confirmed grant of consent subject to extensive be extracted from a single seam and the conditions. Central government called on the appellants to withdraw overburden removed to access the coal their objections, prompting concerns being raised by Forest and Bird would eventually be placed in an engineered about the appropriateness of political intervention in a legal process.78 landform designed to resemble as far as possible the existing landforms. Recognising The overall outcome for the environment is difficult to assess. In the that it could not avoid, remedy or mitigate area where mining activities will take place the outcomes will be completely the adverse effects of the mining negative in that the existing flora and fauna will be lost or relocated activity, the applicant proposed to establish and the landscape further scarred. Some of the loss (including of an offset mitigation and compensation local endemic species) was known to be permanent and irreversible. package, including site rehabilitation In areas where the offset and compensation conditions apply the and predator and pest control areas. environmental effects would be positive with existing flora and fauna enhanced, better protected and monitored. Post-closure rehabilitation It was accepted by the parties that, of the site aims to achieve positive environmental outcomes also. It if granted, the proposal would have a is unclear, however, whether the positive impacts effectively address number of adverse effects on the Plateau’s the irreversible losses enabled by the approval (i.e. the trade-off). landscape and ecology, in particular on significant indigenous vegetation and Reasons for the outcome habitats of indigenous fauna, including locally and nationally endangered plant The Environment Court took an ‘overall balance’ approach in reaching species and ecosystems. The report for the its decision. It weighed the adverse and positive environmental effects Access Arrangement by the Department of against the regional and national economic and employment benefits Conservation listed many species that are of granting the proposal. In effect, it concluded that the purpose of the of conservation concern which had been Act would be best met, and both considerations addressed, through found within the footprint of the proposed granting the consent subject to stringent environmental management mine. Further, the life that the post-mining conditions. Environmental gains in areas other than the application site, rehabilitated ecosystems might support to be achieved through biodiversity offset conditions, were critical. 77 in future would be less fit, rich and diverse than those presently existing. The landscape effects were of less significance than the ecological impacts because the Plateau was not an outstanding natural landscape. 30 Evaluating the environmental outcomes of the RMA A report by the Environmental Defence Society June 2016 6. Management of discharges to freshwater Comparative analysis Background Other similar applications for mining The requirement to avoid, remedy or mitigate adverse impacts on activities have also been granted. For freshwater (when applied to point source pollution) would logically example, Solid Energy’s application to require sensible curtailment of existing discharges, restriction on new establish and operate a coal mine in the ones in addition to an overall management of the cumulative effects Waimangaroa Valley was granted by the of many ‘minor’ discharges together on ecosystems. Regional councils Environment Court in 2005. The mine have the primary responsibility for the management of discharges footprint affected 105ha of a 1,600ha area to freshwater bodies. Council freshwater mandates are generally of significant indigenous vegetation which exercised in two ways: the establishment of objectives, policies and was home to kiwi and endangered snail rules within policy and planning documents and implementation of species. The Court concluded that post- non-regulatory programmes. Industry groups also have standards closure rehabilitation of the site, translocation to which some operators adhere and social license to operate can of the significant red tussock wetland be an important driver for ‘beyond compliance’ improvements. 79 vegetation and predator fencing around non-mine affected areas would meet the protection requirement under section 6(c) of the RMA subject to robust monitoring. Granting consent was considered to provide for the economic well-being of the region. Summary Resource consents for high impact activities can still be granted despite adverse environmental effects. In situations where total avoidance, remediation or mitigation of adverse effects is not possible an applicant can offer a biodiversity offset or environmental compensation to cover the deficit. The environmental gains or losses associated with these steps are not certain. Grant of resource consent on the basis of a proposed offset or compensation means that environmental loss at the subject site will occur, and the environmental gains made from the offset or compensation may not exactly match those losses. Economic gains appeared to justify grant of consent despite uncertainty around environmental protection. Evaluating the environmental outcomes of the RMA A report by the Environmental Defence Society June 2016 31 Analysis of outcomes for the environment Reasons for the outcome Prior to the RMA, point source discharges were considered to Despite difficult circumstances, many councils be the primary concern over diffuse discharges. In the past few have made genuine efforts to manage decades, significant progress has been made in clearing up or environmental effects on freshwater and better managing all but a few of them. have curtailed most point source discharges 80 Management of point- source pollution to freshwater bodies is an area in which the RMA relatively effectively since the advent of appears to have been relatively successful. Point source pollution the RMA. Public pressure has also been now accounts for only a small minority of discharges to freshwater influential, as point source discharges are (3.2% of total nitrogen and 1.8% of total phosphorous to the sea). 81 easy to spot and are often smelly or otherwise very noticeable. The aesthetic impacts of The most obvious improvement has been in the improved management these discharges, and the relative simplicity of visible and unappealing discharges (blood, carcasses, agricultural of addressing them through treatment chemicals and raw sewage) although these do continue in some innovations, likely enabled substantial areas. For example, many regulatory bodies continue to operate ailing progress too. Simple and low-cost solutions sewage schemes that are non-compliant with their own controls on are less likely to be available for non-point point source discharge. This has generated significant controversy, sources and managing these may require particularly when the cost of rectifying the scheme has been restrictions on land use and other rules significant (it usually is) and ratepayers are unwilling or unable to fund with significant economic consequences. it. For example, the Manawatu District Council’s Feilding wastewater scheme has been periodically non-compliant for some 16 years.82 Summary A commensurate improvement in water quality has not been noted The case study of point source pollution overall, however, due to rising diffuse pollution rates (brought about management compared with diffuse by agricultural intensification) which are now considered to be the pollution demonstrates many of the key primary proximal driver of poor water quality. themes found in analysis of RMA outcomes. 83 The value of dairy exports increased from $2.5 billion to $11.4 billion between 1992 and The RMA appears to have been relatively 2012. successful in addressing ‘easy’ issues for 84 In 2015, New Zealand had 6.3 million dairy cattle compared with 3.5 million in 1992.85 Between 1989 and 2013, total nitrogen levels which technical solutions are available. in rivers increased 12 percent, with 60 percent of the 77 monitored However, the failure to coherently address sites showing statistically significant increases). These trends are diffuse pollution has undermined these the reverse of trajectories of improvement of freshwater quality advances. Weak national direction, poor almost everywhere else in the OECD.86 This increase has undermined agency performance, the influence of political the progress made in addressing point source discharges. pressure towards enabling development with weak regard for environmental bottom lines and an absence of flexible tools that could smooth the way for better outcomes have all forced water quality decline. Rising public expectations, supportive case law such as King Salmon and renewed energy from central government all signal a phase shift in freshwater management, however, that will likely help to turn the tide of decline. 32 Evaluating the environmental outcomes of the RMA A report by the Environmental Defence Society June 2016 7. Sustaining the lifesupporting capacity of air Background Analysis of outcomes for the environment The RMA concept of ‘life supporting capacity’ In 2004, National Environmental Standards for Air Quality were is important in its intention, but subtly made operative, setting a minimum level of health protection for misguided by definition. In scientific terms New Zealanders (introduced as Resource Management (National even the most hostile air quality can still play Environmental Standards for Air Quality) Regulations 2004). These host to certain (specially adapted) forms were revised later in 2004 and in 2005, 2008 and 2011. There is of life. However, taking a pragmatic view of strong evidence to indicate an improvement in air quality since the its objective, it can be presumed that – like RMA came into force. For example, premature deaths due to air- water – it would logically require sensible borne particulate matter dropped by 14% between 2006 and 2012.87 curtailment of existing discharges, restriction In Auckland, airborne particles have reduced by 75% over the past on new ones, and overall management of fifty years.88 Technological advances in home heating (such as with the cumulative effects of many ‘minor’ heat pumps) have been influential in improving air quality, prompted discharges on the ‘life-supporting capacity’. by regulatory approaches and Australia New Zealand Standards.89 Section 5 of the Act includes an overarching Reasons for the outcome reference to air, but specific direction is not found in sections 6 and 7. All councils The significant investment in regularly updated and well-monitored have air quality management roles under national direction on air quality has produced results, in tandem with the RMA. Regional councils have primary other measures such as technological advances in home heating. responsibilities for air discharge management. The effort is in contrast to other environmental measures. The key District councils perform a more limited, but drivers for this attention under the RMA have been human health important, role. They can employ a range of and the aversion of future health costs.90 Little of the motivation has mechanisms to control where activities with come from wider environmental concerns, demonstrating that where air effects are located and how they operate human wellbeing is at risk, attention is timelier than for ecological (including under the RMA, bylaws under the concerns alone. This is expected and logical. This echoes previous Local Government Act 2002 and in respect analysis that noted that NESs are most likely to eventuate where of domestic fires, the Building Act 2004). there is clear evidence that avoiding duplication of lower level policy Other central government agencies, including development is beneficial and where human health is at risk.91 the Energy Efficiency and Conservation Authority have provided significant support Summary to achieve good outcomes for air quality. A combination of regulatory change and technological improvement has improved New Zealand’s air quality, primarily motivated by human health concerns. This case study illustrates that where technical solutions are available, and national direction is clear, good environmental outcomes can be achieved. Evaluating the environmental outcomes of the RMA A report by the Environmental Defence Society June 2016 33 8. Preservation of the natural character of wetlands Background Analysis of the outcomes for the environment Wetlands (including estuaries) are widely At a national level, no dedicated policy for wetlands exists. While identified as being imperilled globally, an estimated 70 wetlands meet the criteria to be recognised as a and New Zealand is no different. Less Wetland of International Significance (under the Ramsar Convention) than 10% of our original wetlands remain just six have formally been granted this status. This is despite the nationally, and they are patchily distributed limited legal consequences that follow from listing (i.e. all Ramsar throughout the country. sites are automatically added to Schedule 4 of the Crown Minerals 92 The RMA defines the preservation of the natural character of Act 1991). Wetlands are considered to only a minor degree in the wetlands as a matter of national importance National Policy Statement on Freshwater Management, and suitable under section 6. The New Zealand Coastal attributes are not yet found in the National Objectives Framework. Policy Statement 2010 provides further and more detailed clarification on these Notwithstanding slow progress nationally under the RMA, regional and requirements in Policy 13(2). Natural district councils have made significant headway on the protection character is a continuous variable, varying of wetlands compared with the situation prior to the RMA. A recent from pristine through to highly modified study of the protection of wetlands by the RMA demonstrated that all and excludes built structures.93 The regional plans have some kind of regulatory barrier to wetland loss, protection of wetlands is undertaken in a however 60% only restrict activities in scheduled wetlands rather range of ways, mainly through voluntary than all wetlands.95 The research also showed that rules are most initiatives and regulation under the RMA. 94 restrictive in areas that have suffered the most loss and with the highest populations of people (likely in recognition of their rarity). Indeed, losses – particularly of smaller wetlands - have continued since the advent of the RMA, particularly in areas that have experienced high levels of agricultural intensification (e.g. Southland).96 The RMA has likely constrained the loss of wetlands and prompted the restoration of existing ones and the creation of further wetlands through mitigation requirements within consents. Because councils do not collectively record the scale and nature of mitigation requirements, it is difficult to know this for sure. Wetland areas are often vested in adjacent reserves or otherwise set aside in consent processes. Outside of the RMA many wetland reserves have been added to the conservation estate through other means. Between 1990 and 2013, the extent of wetland protected by the Department of Conservation increased from 48% to 60% (an increase of 29,000 ha) of the remaining amount (10% of original extent) –largely attributable to tenure review.97 While losses in extent are ongoing, reducing the vulnerability of areas through legal protection is a positive step. 34 Evaluating the environmental outcomes of the RMA A report by the Environmental Defence Society June 2016 Reasons for the outcome The policy emphasis on scheduled wetlands demonstrate that values which are of high importance and which can be easily identified are more likely to be protected under the RMA than more dispersed values (lots of smaller wetlands impacted by cumulative loss). This is because the focus on ‘significance’ under the RMA (section 6) may – when not applied well – actually undermine aspirations to ‘maintain biodiversity’ (as per section 30). This concern is mitigated by the increasing assessment of all wetlands as significant (e.g. such as under the Proposed Auckland Unitary Plan). Wetlands can be impacted by activities some distance away, such as the draining of water tables, and this impact is unlikely to be highlighted in a relevant consent processes. Wetlands, like all freshwater systems, are often more severely impacted by the downstream consequences of poor land use (diffuse pollution etc.) than by direct damage. As a result of this somewhat indirect relationship, such impacts have been less well managed than direct physical impacts to wetlands themselves and are harder to track and address. The removal of wetland drainage subsidies in the 1980s, more comprehensive inclusion in protected areas and other factors such as improved public understanding of wetlands have likely also been influential in slowing their loss: in addition to RMA planning instruments. Summary The RMA has sufficient mechanisms to adequately protect wetlands from degradation and would seem to have been partly successful in doing so (by recognising significant wetlands in plans, undertaking monitoring and building public appreciation through community engagement projects). The RMA has performed more effectively in protecting the extent of wetlands, and most particularly scheduled wetlands than protecting condition. Performance has been poorer on managing cumulative impacts on smaller and more dispersed wetlands and on managing indirect impacts of land use on wetland ecosystems. Weak monitoring and enforcement has also undermined outcomes, and must be strengthened across all activities where wetland ecosystems are at risk. Evaluating the environmental outcomes of the RMA A report by the Environmental Defence Society June 2016 35 Summary of case studies and focus areas A detailed analysis of five case studies and three focus areas was The advances in the management of point undertaken to elicit some key learnings. The cases studies enable source pollution are positive, and an evolving a richer analysis of specific themes that can be fed into the overall policy context for freshwater and tools to assessment. However, specific case studies do not enable a discussion manage diffuse pollution are promising. The of whether the Act is performing with respect to wider matters, such air focus area demonstrates that, where as cumulative effects. The three policy focus areas achieve this and there are human health imperatives and demonstrate that the RMA is likely more effective in respect of specific technical solutions, progress has been matters than in addressing wider, more strategic and long term issues. greater. The wetlands and freshwater cases demonstrate that agencies are struggling In the King Salmon analysis we learned that jurisprudence has with the management of cumulative been incorrect for much of the time the Act has been in place. (particularly indirect) effects. The ongoing Having had that aspect corrected, it is likely that an overall loss of wetlands also demonstrates that improvement in RMA outcomes for the environment will be seen the focus on ‘significance’ may beget more in coming years. For example, the overall balancing process loss and undermine broader ‘maintenance’ undertaken in the Denniston case may not have played out had approaches for environmental values. it occurred post-King Salmon, and as a result, significant loss of indigenous fauna and flora may not have been consented. The Pomahaka Minimum Flows case study demonstrates the functionality of Schedule 1 when applied with sufficient community buy-in and the presence of a workable compromise, while the Matiatia Marina case also shows that declining of consent is possible even where a landscape is not ‘outstanding’. The Waterview Tunnel case demonstrates the challenge of provision of infrastructure in a confined urban space, but even in that case, substantive gains for the environment can be planned into the project. The case studies do illustrate that the widely held perception that the RMA has likely slowed or prevented some inappropriate development is probably true. The three focus areas included the management of discharges to freshwater, the protection of the life-supporting capacity of air and the protection of the natural character of wetlands. All three areas demonstrate that agencies have undertaken some effort to address these matters of importance, although success has been variable across and within focus areas. They also demonstrate that in some cases the influence of human activities on the environment has been far more effectively avoided, remedied or mitigated under its auspices than might have been possible under previous legislation (e.g. point source pollution and loss of wetlands). 36 Evaluating the environmental outcomes of the RMA A report by the Environmental Defence Society June 2016 Interviews Much knowledge about the implementation All potential participants were invited for an interview on 7 March of the RMA has yet to be documented, and so 2016. Most replied very rapidly and interviews were conducted remains in the heads of end-users. As a result, throughout the month of March, concluding on the 31st of March. interviews were identified as a potentially rich Where an initially nominated interviewee was unavailable, or did not source of information on the effectiveness of respond, a suitable replacement was found. A total of 48 interviews the RMA. This approach is supported by the were completed, taking an average of 22 minutes each. Interviewees literature which recognises that conducting and their organisations have been kept confidential and are recorded interviews with key informants is an effective and analysed based only on their sector. The participants shared their means of eliciting contemporary issues in a personal view, and may not necessarily have had a view in line with given subject area. their organisation or sector’s overall perspective. Some scene-setting 98 For this project semi- structured interviews were conducted with questions were asked to provide context. a range of key experts and practitioners on the performance of the RMA in achieving good environmental outcomes and the results analysed. Semi-structured interviews Table 3: Distribution of sector membership among interview participants were chosen as a methodological approach, # Sector N because they enable participants to elaborate 1 Central government 5 2 Local government 6 3 Māori representatives 5 4 Consultants 7 5 Resource users 9 6 Public interest advocacy 7 7 Legal profession 5 8 Academia 4 on their experiences more richly than closed questionnaires.99 Interview participants were selected purposefully, based on their known involvement in RMA implementation. A range of different sectors and areas of expertise were represented relatively evenly throughout the pool of interviewees. Questions were not provided in advance of interviews, which were conducted over the phone or by Skype (one was in person due to scheduling constraints). Total 48 A combination of open and closed fixedvalue questions were used and a full list of questions is included as Appendix 2. Evaluating the environmental outcomes of the RMA A report by the Environmental Defence Society June 2016 37 Question 1: Please self-rate your knowledge of the RMA, its subordinate instruments and agencies on a scale of 0-10. Question 2: How would you rate the present quality of the different areas of the environment (Private Land, Public Land, Freshwater, Marine) in NZ on a scale of 0-10? (With zero being very poor and 10 being very high quality). The first question asked all participants to The second question required participants to rate the quality of self-rate their knowledge of the RMA system different areas of the environment on a scale of 0 (very poor quality) to on a scale of 0 (very poor knowledge) to 10 (very high quality). The purpose of this array of sub-questions is to 10 (very high knowledge). Self-ratings both ‘warm up’ participants to considering the state of the environment ranged from 2 to 10 with a median of 7.1 and and to elicit some notion of their views on the absolute state of the a mean of 7.2. These results indicate that different areas of the (natural) environment. Participants were not interviewees generally viewed themselves asked to explicitly rank areas in terms of quality but their answers as being relatively experienced with the Act. were analysed to provide such rankings in the second half of Table 4. Only 2 responded with a value below 5; one from the ‘Resource Users’ group and one from All sectors rated public land as being the highest quality overall, a community group in the ‘Public Interest although 11 specifically noted that a failure to manage it sufficiently Advocates’ group. Overall, central government for pests and other uses was eroding its value. The second highest respondents and resource users rated their rating overall was for the marine environment, although several noted knowledge lowest overall, while academics that they understood it least well of all four areas and 5 declined to rated their knowledge the highest. Different answer the question on that same basis. Nine participants rated fishing personalities will of course rate their own impacts as a significant concern in the marine area, along with others knowledge differently, so the comparative including marine biosecurity threats and the impacts of run-off. value of the figures is limited. However, these numbers do reflect that most people Private land was ranked variously throughout the sectors but was felt they were very familiar with the Act and third overall, while freshwater was fourth (lowest) overall with an therefore able to comment in some depth. average rank of 4.3 on the scale of 1-10. Many participants found it difficult to nominate a single figure for private land and freshwater (in particular) due to a large spatial variation. For example, there is a significant difference in quality of upland and lowland areas, the latter greatly more degraded; and between private lands actively managed for conservation purposes and that being developed or intensively farmed. An average across all areas was requested and the relatively low score for freshwater and private land does suggest that degraded areas would have been scored very low indeed. 38 Evaluating the environmental outcomes of the RMA A report by the Environmental Defence Society June 2016 Table 4: Responses to Question 2 about quality of different areas of the environment (top level is percentages, bottom is ranking) Sector Private Public Freshwater Marine Central government 4.8 7 6 6.1 Local government 5.3 5.8 3.5 3.5 Māori representatives 4.4 6.8 3.8 5.8 Consultants 4.8 5.6 3.4 5.2 Resource users 5.3 7 5.5 6.9 Public interest advocacy 3.1 5.8 3.7 5.6 Legal profession 5.3 5.5 3.3 5 Academia 5 6.2 5.5 5.2 Total 4.7 6.2 4.3 5.8 Sector Private Public Freshwater Marine Central government 4 1 3 2 Local government 2 1 3= 3= Māori representatives 3 1 4 2 Consultants 3 1 4 2 Resource users 4 1 3 2 Public interest advocacy 4 1 3 2 Legal profession 2 1 4 3 Academia 4 1 2 3 Overall 3 1 4 2 Evaluating the environmental outcomes of the RMA A report by the Environmental Defence Society June 2016 39 Question 3: Overall, has the quality of the environment declined or improved under the RMA? (Declined significantly/declined somewhat/stayed the same/somewhat improved/significantly improved). People are uniquely connected to place, and it is likely that the condition of people’s local areas or the areas they most frequently spend time in would influence their choices in this regard. Only 9 respondents thought it had improved or stayed the same, with those responses distributed across most categories. It is clear that most people are aware of, and are concerned by, declines in the natural environment, and noted them as being recent (post 1991 as opposed to being historical). Indicators commonly mentioned for negative trends included impacts of intensive land uses (conversion, non-point source discharges and abstraction for irrigation), increases in sediment discharge from forestry, poor quality coastal development and a failure to address climate change. Drivers for positive trends identified included community and landowner conservation initiatives in addition to those of agencies. Table 5: Responses to Question 3 on environmental decline or improvement Q3 Rank 1 2 3 4 5 Sector N Dec Sig Dec Some Same Imp Some Imp Sig Central government 5 0 3 1 1 0 Local government 6 1 5 0 0 0 Māori representatives 5 4 1 0 0 0 Consultants 7 2 3 0 0 2 Resource users 9 1 5 0 3 0 Public interest advocacy 7 3 3 0 1 0 Legal profession 5 2 3 0 0 0 Academia 4 3 0 1 0 0 OVERALL 48 16 23 2 5 2 33.3 47.9 4.2 10.4 4.2 % The results show that 81.2% of respondents Enhanced on-farm and industrial practice, management of point thought the environment had declined since source discharges, management of air emissions, and technological 1991, either somewhat or significantly. advances in home heating were all cited as examples of improvements. Several participants noted that, overall, the RMA has avoided more significant declines and that we were ‘better off’ under the RMA than under the prior regime. The influence of the RMA on the protection of the environment is examined further in Question 4. 40 Evaluating the environmental outcomes of the RMA A report by the Environmental Defence Society June 2016 Question 4: How influential do you think the RMA is on the protection of the environment? (Not influential at all/somewhat influential/very influential). Question 5: What is your view of what the environmental goals of the RMA are? What does success mean to you? The RMA is only one component of our The open response provided for in Question 5 reflected the environmental management system and it assumption that people’s impressions of the environmental goals does not apply to the entire environment. were likely to vary (particularly given difficulties in establishing In response to Question 4, 60.4% of all exactly what they are in the legal system). There was remarkable participants noted it was ‘somewhat’ congruence on responses however, with most participants influential and 35.4% said it was ‘very making reference to ‘sustainability’ or ‘sustainable management’. influential’. A common theme among free-text Many highlighted the importance of integrated decision-making responses was that the influence of the Act within the Act and the need for environmental bottom lines. was diminished due to poor implementation including as a result of political pressures and the power of vested interests. Examples cited included the aggressive advocacy of the agricultural industry to reduce constraints on intensification, and individual efforts in defence of private property rights in general. One participant described the Act as essentially a dispute resolution tool that could not be blamed for underlying failures to reconcile our economic and environmental aspirations: ‘Blaming the RMA for the state of the environment, is a little like blaming marriage guidance for the rate of divorce’ Participant, Local Government. Several others noted things would have been much worse in the absence of the Act, although most acknowledge that that assertion is hard to confirm in the absence of a real-life counterfactual. Evaluating the environmental outcomes of the RMA A report by the Environmental Defence Society June 2016 41 Question 6: Have these goals been achieved? (Yes/Partly/No) and (Why/why not?) Only one participant of the 48 said the goals of the RMA have been A little more than a third of respondents said achieved, and this response was caveated (as being relevant only the Act had not achieved its environmental to their home region as they considered themselves unfamiliar with goals, while the majority felt it had been other areas). ‘partly’ successful in doing so. Reasons for perceived failure or suboptimal outcomes include: Table 6: Responses to question 6 on whether the RMA has achieved its environmental goals • Q6 Rank 1 2 3 Sector N No Partly Yes Central government 5 2 3 0 Local government 6 0 5 1 Māori representatives 5 5 0 0 Consultants 7 2 5 0 Resource users 9 2 7 0 Public interest advocacy 7 4 3 0 Legal profession 5 2 3 0 Academia 4 1 3 0 OVERALL 48 18 29 1 37.5 60.4 2.1 % That the culture of planning (ie. agency behaviour, institutional capacity and resourcing) didn’t alter to match the visionary ambitions of the Act • That proactive strategy has been absent and big picture changes have not been able to be made, such as toward lower impact industries and away from favouring incumbents, positivist strategies and the management of cumulative effects. • That sufficient guidance and direction were not given by central government to the agencies given new mandates with no idea how to give effect to them and agency accountability was minimal for poor outcomes. • That political pressure has constrained the ability of councils to execute their environmental responsibilities and eroded political will to apply positive measures. 42 Evaluating the environmental outcomes of the RMA A report by the Environmental Defence Society June 2016 ‘The RMA sat over a system geared up ‘A decade into the RMA implementation I spent some time in to deliver something very different and the US. I put up a picture of my process that was linear – and wasn’t capable of delivering the vision compared with their processes it was excellent. Their processes of the Act.’ looked like spaghetti. New Zealand’s RMA is fantastic in an Participant, Public Interest Advocacy international context – that criticism is less about the machinery and more about every resource management decision in the world having winners and losers. Those who lose, criticise the Where goals were noted to have been process – but actually they are mostly lashing out at the fact achieved, at least in part, that was often that they have lost.’ cited as being a result of community Participant, Resource Users or public advocacy actions (such as by NGOs) rather than those of agencies. The positive influence of the sole compulsory Questions 7-9 focussed on the different levels of implementation National Policy Statement (New Zealand of the RMA. Participants were asked to rank on a scale of 0-10 the Coastal Policy Statement) for providing effectiveness of central government, regional councils and district direction and clarity was commonly councils at exercising their environmental responsibilities under the highlighted as an area of relative success. RMA. The phrasing of this question was specifically designed to direct participants toward considering the environmental roles of these The RMA was, however, widely noted as an bodies and away from potentially conflicting roles in economic and improvement on prior regimes and good social development. This is to assist in pinpointing the elements of the compared to elsewhere, and improvements regime that are generally meeting expectations and those that form the were also noted to the RMA system over time. greatest or most obvious barriers to good environmental outcomes. While recognising that improvements could be made to procedures, one respondent noted that RMA processes are rather more integrated than most other areas of the world. Evaluating the environmental outcomes of the RMA A report by the Environmental Defence Society June 2016 43 Question 7: The RMA is implemented in a devolved way, but there is a role for central government. On a scale of 0 to 10, how effectively has central government exercised its responsibilities to the environment under the RMA? The effectiveness of central government in exercising its environmental The free-text responses demonstrated responsibilities was ranked overall at 3.3 on a scale of 0-10. significant congruence in the concerns held Highest overall rating was given by resource users (4.8), closely about central government effectiveness. followed by central government proponents themselves (4.6). Two key observations stand out, commonly Lowest ratings (2.4) were given both by Public Interest Advocacy highlighted across all sectors: and Māori representatives. Legal Professionals and academics also favoured low scores. The ranges of scores varied considerably (a) Central government has demonstrated within all groups with the exception of Legal Professionals. significant reluctance to provide national guidance to lower level agencies Table 7: Responses to Question 7 on effectiveness of central government (0-10) (b) Where central government has become involved, it often has not been for the Q7 Rank 1 2 3 Sector N Ave Min Max Central government 5 4.6 3 7 Local government 6 3.7 2 5 Māori representatives 5 2.4 0 6 Consultants 7 3.1 1 5 Resource users 9 4.8 2 8 Public interest advocacy 7 2.4 0 6 been present, more positive and consistent Legal profession 5 2.6 2 3 environmental outcomes might have been Academia 4 2.5 1 5 OVERALL 48 3.3 1.4 5.6 benefit of the environment, but more resembled unsophisticated intervention for political purposes These findings demonstrate widely held disappointment with the actions of central government in relation to the RMA. It is evident that, had these weaknesses not achieved. This is not a new observation, indeed since its promulgation the languid contribution of central government has been earmarked as a major factor undermining the Act’s potential. 44 Evaluating the environmental outcomes of the RMA A report by the Environmental Defence Society June 2016 Question 8: The RMA (day to day) is primarily implemented by local government. How effectively (on a scale of 0-10) in your view, have regional councils exercised their responsibilities to the environment under the RMA? Overall effectiveness of regional government was ranked at 4.8, although more than half (25) participants noted significant ‘Regional councils are a very mixed variation in the effectiveness of regional government throughout bag – not necessarily broken and I the country. As such, scores were often expressed as averages on think they have developed some good a spectrum of perceived effectiveness. From responses it was also policy, but they are fundamentally clear that there was a gulf between the potential of the regional conflicted in many areas.’ governance model and the outcomes it has achieved. In theory, Participant, Resource Users there is clear loyalty to the structure. As Lindsay Gow earlier noted; ‘I championed the creation of regional authorities and consider they have been, and still are a most effective means of discharging Political interference, lack of resourcing, integrated resource management responsibilities’. failure to undertake monitoring and 100 That may be so, but the limited scores suggest that while the model may have compliance, failure to reconcile conflicting promise in theory, that promise is not translating into practice. mandates and a general absence of accountability for outcomes were commonly cited in the negative. These were in addition Table 8: Responses regarding effectiveness of regional councils (0-10) to Q7 matters such as a lack of central Q8 Rank 1 2 3 Sector N Ave Min Max Central government 5 5.6 5 6 Local government 6 5.6 4 7 Māori representatives 5 3.8 0 6 Consultants 7 4.7 2 6 Resource users 9 5 0 7.5 Public interest advocacy 7 3.3 1 7 Legal profession 5 4.3 3 5.5 Academia 4 6.2 5 7 OVERALL 48 4.8 0 7.5 government direction. Several practitioners noted that a combination of a lack of guidance and oversight and political pressure had led to significant use of discretion in what aspects of their mandate they exercised most energetically (and that generally this has meant economic aspirations have won out over public interest aspirations). ‘By and large they have been a total disappointment and a big mistake and are generally disconnected and focussed on rural relationships and vested interests.’ Participant, Public Interest Advocacy Academics ranked regional councils highest overall, with an average score of 6.2, followed by central and local government, both giving averages of 5.6 on the scale of 0-10. Public Interest Advocacy gave regional councils the lowest score, followed by Māori representatives. There was greater overall variation in the figures given (a range of 7.5 compared with 5.2 for central government), perhaps reflective of variation in agency effectiveness nationally. Many participants were complimentary of council efforts despite the difficult circumstances, while others were very dismissive of their efforts to date. Evaluating the environmental outcomes of the RMA A report by the Environmental Defence Society June 2016 45 Question 9: The RMA is primarily implemented by regional and district councils. How effectively (on a scale of 0-10) in your view, have district councils exercised their responsibilities to the environment under the RMA? The effectiveness of district and city councils was ranked only very slightly below regional councils overall, with one participant ‘They don’t seem to focus much on declining to comment. Māori, Public Interest Advocacy and Academics protecting existing natural areas – they ranked district and city councils lowest of all (3.6-3.8), while Local don’t seem to know the purpose of Government ranked themselves highest in effectiveness (6). Where the RMA. They also pander to farmers. participants ranked this level of government higher than regional Council is farmers and therefore councils, several noted that it was because their job was more the RMA’s mana is taken away by ‘narrow’ and therefore ‘easier’ than that of regional councils. On the bureaucrats who have an interest in other hand, it was widely noted that city and district councils are the agricultural industry.’ commonly significantly under-resourced to cope with their mandate Participant, Māori and somewhat overwhelmed by it. Another strong theme was that they summarily disregard their environmental responsibilities and ‘pretend they just don’t exist’. A few participants also highlighted sometimes excessive attention to detail to the exclusion of appropriate focus on the ‘bigger issues’. Some participants identified this level of government as being particularly vulnerable to agency capture by vested interests, while others stated the opposite: that they were much less vulnerable than their regional counterparts. Table 9: Responses regarding effectiveness of district and city councils (0-10) 46 Q9 Rank 1 2 3 Sector N Ave Min Max Central government 4 5 3.5 6.5 Local government 6 6 4 7 Māori representatives 5 3.6 0 6 Consultants 7 5 2 7 Resource users 9 4.9 2.5 7.5 Public interest advocacy 7 3.8 0 6.5 Legal profession 5 5 3 7 Academia 4 3.7 2 7 OVERALL 47 4.7 0 7.5 Evaluating the environmental outcomes of the RMA A report by the Environmental Defence Society June 2016 Questions 7-9 Summarising the data across central, regional and district/city councils there are some interesting patterns that emerge. Table 10 represents the relative score of each level of government in Questions 7-9. The overall trends note that all sectors gave the lowest score overall to central government (including Central Government). Regional Councils and District and City Councils were ranked most effective an equal number of times. Regional councils were ranked highest by Central Government, Māori, Resource Users and Academics, while Local Government, Consultants, Public Interest Advocacy and Legal Professionals gave highest scores to District and City Councils. This likely reflects a theoretical support of the concept of regional government, but disillusionment due to poor day to day outcomes. Table 10: Comparison of ranked responses on agency effectiveness Q7-9 Rank 1 2 3 Sector N Central Regional District Central government 5 3 1 2 Local government 6 3 2 1 Māori representatives 5 3 1 2 Consultants 7 3 2 1 Resource users 9 3 1 2 Public interest advocacy 7 3 2 1 Legal profession 5 3 2 1 Academia 4 3 1 2 OVERALL 48 8 4 4 Evaluating the environmental outcomes of the RMA A report by the Environmental Defence Society June 2016 47 Question 10: The RMA interacts with a range of legislation, sometimes addressing similar issues or different dimensions of issues covered by other instruments. How effectively does the RMA function with or alongside other legislation? Participants were asked to consider the interplay of the RMA with More fundamentally; participants’ views of other legislation and consider how well the Act interacts with others how well they expect the Act to function on a scale of 0-10. Participants were able to outline case studies with or alongside others were evidently relevant to their specific area of expertise. Most responses were very different. Several noted that the commonly ring-fenced to the participant’s area of interaction/ RMA does not have to work well with expertise only, and four participants declined to comment at all. other Acts, and conflicts and overlaps are normal and navigable. Others felt that the opaque regulatory interactions Table 11: Responses on interaction of the RMA with other legislation undermined the effectiveness of the system significantly, by increasing discretion: Q10 Rank 1 2 3 Sector N Ave Min Max Central government 4 5.25 3 8 Local government 6 6.3 4.5 7 Māori representatives 4 4.6 0 7.5 discretionary system that draws Consultants 7 5.8 3 7.5 different balances from one day to the Resource users 8 4.8 2 9 Public interest advocacy 6 5.2 3 8 Legal profession 5 5.2 2 7 Academia 4 5.5 2 8 OVERALL 44 5.3 2.4 7.7 ‘I think that government has resorted to ambiguous wording (e.g. appropriate) resulting in a highly next.’ Participant, Resource Users Others cited instances where there was no alignment and should be, while others specifically noted that area as being one where interaction is particularly There was a great degree of variation in responses to this, probably reflecting the various interfaces respondents are familiar with. The mid-range score from all sectors sometimes obscures wide variation within sectors as evident from the ranges noted. It should be noted functional. It is clear from this survey that unpacking the mechanics of regulatory interplay is much needed, and at a deeper level than the scope of this project. that where difficulties were identified, another participant often noted that same area as one that functioned reasonably well. 48 Evaluating the environmental outcomes of the RMA A report by the Environmental Defence Society June 2016 Question 11: How important, in your view (on a scale of 0-10), is public participation to the environmental outcomes of the RMA? This suggests that public participation is generally acknowledged by everyone to be important in principle, but its quality undermines that. Two commonly identified key roles of public participation were (a) the ability to provide information the decisionmaker may not otherwise find out from the Public participation is a controversial area of the RMA. This agency or the applicant, and (b) the ability to survey was an opportunity to gather perspectives on its establish community buy-in for the proposal. importance in relation to the environmental outcomes of the Act. Participants were asked what their view of the importance of public participation to the environmental outcomes of the ‘Important and expected element of RMA was? They were to rank its importance on a scale of 0-10. processes, but the act also allows for All participants responded to this question, and most had well it to be misused to delay proceedings.’ developed and strong views on it. Given its prominence as a Participant, Central Government ‘talking point’ of the RMA, that is perhaps not surprising. Several participants identified early public Table 12: Responses on the importance of public participation (0-10) consultation (i.e. at the planning/strategy stage) as being much more effective Q11 Rank 1 2 3 Sector N Ave Min Max Central government 5 6.8 2 9 Local government 6 8.2 8 9.5 Māori representatives 5 9.4 8 10 Consultants 7 8.1 5 10 Resource users 9 7.2 1 10 Public interest advocacy 7 8.6 8 10 Legal profession 5 9.4 8 10 Academia 4 8.2 7 10 the system.’ 10 Participant, Academia OVERALL 48 8.2 1 than consent-stage engagement. Several participants observed that public participation was sometimes misused to advance private property interests (e.g. NIMBYs) rather than being for a public interest purpose. ‘A lot of urban stuff is just bickering – and the RMA is a low cost dispute resolution service when there is no real environmental issue at all – need to yank that out and stop it swamping Overall, the importance of public participation was ranked very The RMA’s success in limiting trade- high at an average of 8.2. Māori and Legal Professionals rated it competition motivated participation highest (9.4) while Central Government rated it lowest (6.8). Erring was noted by several participants as a to the lower end of the scale were Resource Users, while Public positive step, but the tendency for public Interest Advocacy was one of the groups that rated it highest participation to be more about protecting (perhaps logically so). There was significant variation in the self-interest is widely noted. Overall, the scores given and much discussion within free-text responses. importance of public participation was high, but there was a strong sense that it Those that rated it lowest did so because they felt that public needed to be more meaningful and better participation was a good thing in theory, but that it was often misused implemented on all sides. The present or poorly carried out, such that its role and value were undermined. proposed changes that would further Equally, others rated it very highly with a caveat that it ranked highly restrict participation directly and reduce only where it was effective and meaningful. Māori were particularly the likelihood of consent notification were vocal about rapid and meaningless consultation that was not based on generally viewed as a negative step, as good practice and did not have any influence on eventual outcomes. it did not address the quality issue. Evaluating the environmental outcomes of the RMA A report by the Environmental Defence Society June 2016 49 Questions 12 and 13 Medium changes were those that Participants were asked two questions on the future of the Act. the Act and its subordinate instruments but Question 12 was ‘in your view, are there changes needed to retaining the overall structure as it stands (for improve environmental outcomes from the RMA?’ Participants example, an overwrite to simplify and tighten could answer Yes or No. Following this question, participants were the Act or the inclusion of the ability to asked a further ‘blue skies’ question: ‘Have you considered what consider the impacts of a proposal on climate “life after the RMA” might be like and what kind of framework might change). Just under one third of participants eventually take its place? If so, what are your thoughts?’ Where were categorised in this way. The final group a participant suggested significant change, the timeframe over were those that posited substantial regulatory which they thought that change should occur was also sought. For change, such as entirely new Acts or starkly ease of analysis, these questions are analysed conjunctively. different institutional design, even if they necessitated some significant review of were uncertain of what that change was. Best Virtually no participant felt the status quo was delivering judgement was used in these categorisations, for the environment. In respect of Question 12 (are there and they were not made on the basis of changes needed?) all but 1 respondent answered yes. an explicit selection by participants. Key issues identified included poor agency accountability, More than half of participants thought there complexity and slowness of processes and a lack of appropriate was certainly case for change, but that case guidance and resourcing. 47 of 48 respondents were of the view is primarily for only minor tweaks and external that change was necessary to improve the outcomes of the RMA. improvements to other factors. The need However, the scale and extent of suggested changes differed to strengthen implementation was usually substantially between participants. Overall, there was a strong cited, with participants being generally united preference for small to medium changes, in preference to large on the fact that implementation had been scale and highly disruptive processes – see out in Table 13. sub-par, such that the potential of the Act had not really been unlocked. Improvements A retrospective categorisation ranked the level of change needed such as increasing agency oversight, from small to medium and then large. Small was defined as minor national direction and changing funding changes, largely directed at improving implementation with only minor arrangements were commonly proposed. changes to the Act (for example, more national guidance or minor amendments to address known anomalies or areas where there was a lack of clarity, such as section 32). The majority of most groups fell into this category. This was consistent with the significant emphasis placed by participants on failures of implementation being more influential than the Act itself on suboptimal environmental outcomes. 50 Evaluating the environmental outcomes of the RMA A report by the Environmental Defence Society June 2016 In the medium category (a little under one third of participants) suggested changes were more significant, but generally retained the Question 14 overall structure of the Act and the present institutional arrangements. Participants were invited to make Cumulative as they are (in that the changes in section 2 also include additional comments on anything related the minor changes in section 1), further changes were recommended to the questionnaire subject. The answers by this group. Examples of more significant proposals include a specific sometimes fitted easily within the scope of process for urban planning matters, the inclusion of impacts on climate earlier questions, but many were broader change within the present Act and enhanced strategic planning in scope and addressed more fundamental functions within or above the current legislation. Urban development matters. Several themes appeared including: was cited as an area of concern by a number of sectors – whether due to insufficient legislation or poor implementation, the notion that urban • planning was not a strength of the present system was widely held. The need for a cultural shift toward sustainability (instead of attempting to manufacture it with law when the context is hostile to it). Table 13: Responses regarding the issues with and future of the RMA Q12-13 Rank 1 2 3 Sector N Small Medium Large Central government 5 2 2 1 Local government 6 5 1 0 Māori representatives 5 3 2 0 Consultants 7 5 1 1 Resource users 9 2 4 3 Public interest advocacy 7 4 1 2 Legal profession 5 3 2 0 Academia 4 3 1 0 OVERALL 48 27 14 7 56.2 29.2 14.6 % • The need for a stronger focus on the outcomes, rather than procedural matters • The need for evidence-based changes, in preference to ‘knee-jerk solutions to non-existent problems’ Far fewer participants occupied the third category – just 14% (7) of participants. Proposals mooted in this category include the splitting of the present RMA functions into a dedicated environmental protection Act and providing a separate planning framework, dividing urban and rural planning and substantive reviews of institutional arrangements. While this is a minority view for the purpose of this survey, the prospect of major reform should still be entertained as a possibility, particularly if it is deemed capable of also improving the lower level issues commonly highlighted across the dataset. However, it would appear that the perception of a need for extensive change is not widely held at this stage. Evaluating the environmental outcomes of the RMA A report by the Environmental Defence Society June 2016 51 Summary of interview outcomes Overall, the survey elicited a surprising A second key trend is that the underperformance of agencies, most depth of information on what people thought particularly central government, is considered material to the poor of the regime. Some areas demonstrated outcomes under the Act. This widespread concern demonstrates that significant convergence, while others any future reforms of the RMA must necessarily delve into institutional evidenced a wide variety of often conflicting design to ensure that aspirations can be met – this is in line with views. While it is a small sample size earlier research recommendations.102 Another key theme was the compared to the number of people involved emphasis on the importance of public participation in principle by in some aspect of resource management, virtually all participants. Strikingly however, was the preponderance the range of views expressed suggested it of concerns about its quality – both the quality of the engagement captured an ample variety of perspectives. from agencies and the coherence of community input. There is clearly much work to be done to better unlock the potential of public Key trends indicate that most participants participation under the RMA, and it would seem that proposed are concerned about the declining quality reductions in public participation are not moving in the right direction. of the environment and note that decline to have been recent. This runs counter to Finally – the most key learning from the interviews – from responses to the often dominant view that the decline in the questions and also in general discussion – is that New Zealanders New Zealand’s environment was historical are quite loyal to the overall framework of the RMA and broadly support and that it has improved. Scientific data the principles. That the principles can resonate still so loudly 25 years supports the notion of much recent on is a testament to their strength. This drives home the message loss across most ecosystems 101 and it is that poor implementation is the major failing of the RMA system positive to note that most participants to date. It calls into question whether large scale change will really have a realistic view of the overall state achieve more if the implementation issues are so profound. Perhaps and trends of environmental quality. more pragmatically, this finding demonstrates that any future reform of the system must play close heed to power relationships, funding models, distribution of capacity and expertise and accountability if it is to achieve materially improved environmental outcomes. 52 Evaluating the environmental outcomes of the RMA A report by the Environmental Defence Society June 2016 3 Part 3 Key issues and a way forward Summary of findings Key issue identification Of the evaluative studies identified and reviewed, virtually all of This section draws out the key issues which them demonstrated suboptimal outcomes for the environment and have been identified through the various primarily (but not exclusively) as a result of weak implementation. elements of this study and aligns them with Suggested reasons were common across many studies and the two sets of goals of the RMA as identified included a lack of national direction, often poor agency capacity, in Part 1. We provide further comment where political capture and weak monitoring and enforcement. It will relevant on matters that are not directly always be challenging to form a conclusive view of the efficacy related to environmental outcomes, but are of the Act in achieving its environmental goals in the absence overall concerns evidenced in our analysis. of sufficient factual information, but the foregoing information The issues identified in this report are not is comprehensive and does paint a relatively clear picture. exhaustive. There are many more reasons for the failure of the Resource Management Act The series of interviews were interesting and very enlightening. 1991 to achieve many of its environmental They demonstrated the views from many quarters on the RMA, its goals. Identifying the key issues helps to subordinate instruments and the agencies implementing it. While there direct attention to the areas most in need of were a wide variety of perspectives some significant convergence was analysis, enhanced implementation or change. obvious. The interviews provided useful input into the analysis of the The relative influence of each key issue will other sections of this report. Overall they demonstrate a loyalty to the likely vary geographically and in respect of overriding principles of the Act and its general framework, despite clear the area of planning being considered. and significant concerns with its interpretation and implementation. Overall, participants attest to underwhelming outcomes of the Act and largely blame implementation. From the information preceding, it is clear that while the RMA has certainly been effective in some areas, outcomes have failed to meet most expectations. The scale and rate of environmental degradation provides a clear indication of this, as do the findings of the empirical evaluations that have been undertaken. There is a significant gap between the statutory aspirations of the RMA and the outcomes actually achieved. All of this information in combination paints a picture of a world-leading piece of legislation implemented relatively poorly from day one. Outcomes for the values it was to protect are commensurately underwhelming. Evaluating the environmental outcomes of the RMA A report by the Environmental Defence Society June 2016 53 A consolidated decision-making process An integrated decisionmaking framework The Resource Management Act undoubtedly drew together a suite of previously entirely disconnected processes. The ability to address Integrated management was a key aspiration planning and permissions for a diverse range of activities under a of the RMA. Integrated management single piece of legislation (and usually a single agency) has most was a response to the recognition that certainly introduced efficiencies not available before its assent. siloed consideration of environmental and Where an application must be made under both regional and district development matters had limited basis in planning instruments, it is possible that the applications can be heard ecology and ultimately reduced the efficacy together reducing time and cost expenditure (section 102(1) RMA). of environmental law. Achieving integrated management is reliant upon a functional Notwithstanding this progress, interactions on the periphery of the strategic layer of analysis above day to day Act do warrant further analysis. There are areas of relevant decision- procedural aspects. This review demonstrates making that are excluded by the Act or disconnected when they two key issues arising from poor should or could occur together. For example, the effects of emissions implementation of integrated management: from consented activities under the RMA on climate change cannot be taken in to consideration by decision-makers. At the time of the amendment, the rationale was that an effective Emissions Trading 1. An inherent favouring of incumbent users of resources System (ETS) would be promulgated alongside the Act (and that it would address the national interest in emissions mitigation and avoid 2. A failure to manage cumulative effects103 duplication). While this was arguably sensible at the time, the failure of the ETS to drive such behaviour change has been well noted. The RMA system’s inherent favouring of incumbents contributes significantly to the The interplay of the RMA and other legislation is a complex issue poor environmental outcomes of the Act. and we recommend that further research be undertaken to Commonly raised in interviews was the establish clear problems definitions and determine the benefits absence of sufficient strategy to favour or otherwise of amalgamating matters of concern. Short- low-impact activities over high-impact sighted or knee-jerk changes without a clear understanding of existing activities. Examples include the the actual consequences of them, or a narrow consideration of ‘first in, first served’ nature of freshwater those consequences, is likely to result in perverse outcomes allocation and the rolling over of consents that may harm both the economy and the environment. that authorities are generally reluctant to challenge. That concern appears reflected in Key outcome: While the RMA has centralised a lot of decision- recent comparative research that noted that making processes, there are still key exclusions that could be New Zealand (among other countries) has a better joined up to enhance overall environmental outcomes preponderance of policy mechanisms that are ‘vintage-differentiated’, meaning they favour incumbents over new entrants (irrespective of relative environmental impact).104 54 Evaluating the environmental outcomes of the RMA A report by the Environmental Defence Society June 2016 Environmental outcomes are often Failure to manage cumulative effects stands out as a key failing of undermined by poor strategic decision the RMA system in this respect. They have been poorly managed making – this means we do not necessarily under the RMA, most particularly with respect to diffuse pollution look at the best economic use for an from agricultural activities.105 Evaluations of cumulative effects area, we just bow to existing users. This management pin this failure on a common set of issues, including characteristic has doubtless prevented (and most particularly) a lack of effective strategic oversight of better environmental outcomes, perhaps decision-making coupled with often a lack of political will and low most particularly in the area of freshwater agency capacity to undertake necessary tasks (also identified management. The weak strategic aspect of elsewhere as key issues in of themselves). It is fundamentally very RMA implementation has arguably prevented difficult to manage cumulative effects on a case by case basis. While it from effectively dealing with many Regional Policy Statements and other high level instruments have complex issues including climate change, often set strategic goals, implementation of them has generally been biodiversity loss and urban development. weak - too weak to constrain cumulative effects in many respects. The favouring of existing uses was There are clear signals that our implementation of strategy is the commonly highlighted in our interviews, subject of concern and fairly so. However, it could be argued that particularly by resource users of non- the architects of the Act intended for this to be the case. Upton’s dominant industries, as not enabling us vision for the RMA was one in which proactive planning would to have the ‘big conversations’ about not occur: bottom lines would be set and economic development where we want to go economically. This was to occur over and above those according to market drivers. quote exemplifies this perspective: If such a view no longer reflects public aspirations for the RMA, then this is potentially an area in which change is needed. ‘When you put in an RMA application, Key outcome: A lack of effective strategy and oversight of decision- there is not an assessment of whether making has reduced the potential to protect environmental this is the best use of the resource. values, including the capacity to manage cumulative effects It concentrates on what’s the effect. We’ve not made the big picture choices successfully; we focus on the application by application.’ Participant, Resource Users Evaluating the environmental outcomes of the RMA A report by the Environmental Defence Society June 2016 55 Protecting environmental bottom lines Political pressure to weaken controls Agency capture and the duelling economic and environmental The RMA was predicated upon the need to mandates of councils arose time after time as drivers of poor develop stringent minima over and above outcomes throughout the interviews. Concerns about capture which economic activities could occur. It is vulnerability were highest among participants in the Local abundantly clear that, these controls have Government and Public Interest Advocacy groups and to a generally not been set or reliably observed. lesser extent Resource Users and Legal Professionals. As noted by Dr Jan Wright in her submission to the Government on Improving our Resource Management System: a Discussion Document ‘Huge variation throughout the country. The politics is very in 2013, ‘the primary purpose of the RMA significant. Farmers dominated [regional council] and goldminers is to protect the environment, and in so got a hard time and farmers got away with everything.’ doing, it must inevitably lead to restrictions Participant, Local Government of various kinds’. 106 Limited political will to sufficiently curtail economic development and rigorously exercise environmental ‘Those dominated by farming interests are less likely to give functions is a common finding of research appropriate attention to environmental outcomes. There is very into the outcomes of law in New Zealand. poor enforcement and poor resourcing to that function.’ Participant, Legal Profession Unfortunately, agencies have been slow to set environmental bottom lines, and development has hardly waited for them. Until the King ‘Without higher level direction, the regional councils are Salmon case law, the ‘overall balance’ vulnerable to sector group capture. In [region] – the council approach of the RMA system undermined the chairman is a Fonterra board member.’ prospective influence of bottom lines anyway. Participant, Local Government Given that the reset button has been pushed, it would seem that setting and observance of environmental bottom lines is rather more Concerns about the preponderance of agency capture as a likely in the years to come than in those past. driver of poor outcomes is also found in the literature, including recognition that the principle of subsidiarity that the RMA is built Key outcome: The incorrect jurisprudence upon, leaves lower tier agencies more vulnerable to capture.107 related to the ‘overall balance’ approach A small ratepayer base and therefore limited budget, a remote undermined the potential for environmental area and poor services may mean individual agencies have bottom lines to be safeguarding. Resetting difficulty attracting competent councillors, staff or contractors and the case law is likely to see this improve. effectively constraining the political power of vested interests. Key outcome: Capture of (particularly local) government by vested interests has reduced the power of the Resource Management Act to appropriately manage effects on the environment. 56 Evaluating the environmental outcomes of the RMA A report by the Environmental Defence Society June 2016 National direction To manage capture and ‘rise above’ its influence, subordinate Central government’s reticence in providing regarding the RMA has mainly focused on repeat amendments to promised national direction has generally the Act, often without evidential background, and with significant left the 78 regional and local government public opposition. The same enthusiasm was not applied to the agencies to formulate their policies and provision of either direction or direct support to agencies charged plans in the absence of any clear notion with day to day implementation. Any financial savings at the central of the end game. It should be noted that government level of minimising the leadership role were more than variation in practice and approach between offset by ballooning costs borne by councils, their communities agencies is not in itself a certain driver of and developers. A specific example is the allocation of water rights. poor environmental outcomes. There are The Act fails to directly address allocation, and there is broad stark differences throughout New Zealand scope for agencies to implement whatever scheme they consider between ecosystem types, community appropriate. This hands-off approach is recognised as being a key make-ups and other variables that preclude driver in the failure of regional councils to adequately manage water detailed one size fits all approaches. A under the RMA.108 This area is however going through significant bespoke regional or district approach in reform, the consequences of which will take time to materialise. agencies need support and direction. Central government activity respect of some matters may in fact improve the likelihood of a positive environmental Key outcome: A lack of national direction has limited the potential outcome. However, a combination of poor of the RMA system to effectively and efficiently achieve its direction, low capacity and the effects environmental goals of capture have likely rendered the lack of central direction more damaging. Evaluating the environmental outcomes of the RMA A report by the Environmental Defence Society June 2016 57 Agency capacity In respect of some councils, lack of effort has The agencies charged with implementing the RMA have undoubtedly tried to exercise their mandates to the best struggled: and some much more than others. The paucity of even non- of their ability. But this has often led them statutory good practice guidance emerging from central government to being embroiled in high levels of local was quickly evident soon after the RMA was promulgated, and conflict and expensive legal proceedings, the then Parliamentary Commissioner for the Environment – Helen which could have been substantially reduced Hughes – initiated a Local Government Review Programme in 1994 or even avoided by the provision of clear, to ‘raise strategic issues about the role of the RMA in continuing to strong national direction. Coupled with a lack contribute to the goal of sustainable development and to propose of formal direction, there is clear evidence some actions to advance the RMA’s contribution to this end’. of a failure of central government to provide not been the problem – they have diligently 109 support to local government when needed. The OECD in 1997 also recommended much more action in this regard early on and has continued to do so.110 The capacity of It was evident from the interview responses agencies to deliver on the RMA has been a prevailing concern of and literature review, that the agencies those that have evaluated the RMA. It has been commonly identified charged with responsibilities under the Act as a key contributor to poor outcomes (see Literature review). often do not have access to the resources to 111 match their delegations. Further, the funding arrangements would seem to be barriers ‘Generally the Act has done a lot to empower local government to effective management. Capacity is also and it should be doing more to hold them to account to produce to some extent a result of political will. The improvements. They have loads of power to do things, including resources allocated to different functions the power to do nothing.’ vary in accordance with the political priority Participant, Academia of different tasks. It is not fair to simply blame councils for not achieving outcomes – there are systemic issues at play. Many agencies under the Act would presumably have better exercised their roles had they been resourced to do so. Reviewing funding of local government would provide an opportunity to address the resource shortfall, to put in place a more resilient fiscal basis and to enable local government to have capacity where it matters. It would be sensible that a review of these elements would form part of any reform related analysis. Key outcome: Agency capacity has often been insufficient to successfully implement the RMA and opportunities for central government to provide financial and logistical support have generally not been taken. 58 Evaluating the environmental outcomes of the RMA A report by the Environmental Defence Society June 2016 Institutional design Monitoring and evaluation Separate but related to the above point, is In the absence of a culture of evaluation and accountability, running the fundamental design of the RMA system blind is the only alternative. The underwhelming environmental and whether it is optimised for the delivery outcomes of the RMA demonstrate the consequence of this of good outcomes. There are several areas absence. The poor attention paid to monitoring and enforcement, in which clearer demarcation of agency roles the poor evidentiary basis for many of the past reforms (and could be useful, where governance models indeed those presently proposed), the lack of data on policy need refining or where decision-making effectiveness and the overall limited agency accountability all functions could be combined. For example, point to the same problem: the failure to rigorously evaluate the PCE identified that better institutional outcomes and consequences and to respond accordingly. design could enable air quality aspirations to be more effectively met. Wallace and others A strong example is the present proposals to amend the Act to have noted that the institutions charged with address concerns primarily rooted in the implementation of the managing the RMA and Wildlife Act 1953 RMA in an urban setting. Applying the ‘solutions’ proposed there interplay do not work together well. Peart are arguably undermining the functionality of the Act in all other also identified that institutional arrangements contexts. If a culture of evaluation was more deeply embedded for the administration of urban planning and drawn upon to inform reforms, it is possible – although not were far from optimal certain – that improved proposals would emerge that contained 112 - particularly major infrastructure – and that change was needed. solutions that fit actual (and not just perceived) problems. Key outcome: The design of implementing Ministry for the Environment monitoring has focused heavily on institutions and allocation of different process and very little on outcomes. It is hoped that the advent of mandates requires systematic review the Environmental Reporting Act 2015 and the National Monitoring to ensure it is the best means of System may look to improve this. Under the current approach it is delivering on statutory aspirations. seems more likely that a lengthy consent processing timeline would attract auditing attention than abject environmental consequences of languid policy. At a consent level, the failure to adequately monitor and enforce the Act such as to achieve its purpose is well described also. Key outcome: Rigorous evaluation and monitoring of outcomes has been limited at all levels, eroding the potential for adaptive governance and robust implementation. Evaluating the environmental outcomes of the RMA A report by the Environmental Defence Society June 2016 59 a Broader range of instruments required Conclusion Low capacity of agencies and a lack of time for or prioritisation This report concludes that the environmental of evaluation have somewhat predictably resulted in a lack of outcomes of the RMA have not met policy innovation. While this is not true for all agencies – many expectations, largely as a result of poor have developed novel and interesting approaches to addressing implementation. While aspirations were high, community challenges (e.g. Lake Taupo Nutrient Model) – overall a the outcomes have not ultimately reflected narrow array of tools have been deployed to help achieve regulatory the desires set down in 1991. Overall, the mandates. Where economic instruments have been employed it implementation of the RMA has been weak. has been through bespoke systems that have been very costly. Institutional performance (with respect to environmental outcomes) has been National direction that set out the range of methodologies variable and often poor. There has been little available and provided support to lower level agencies trying to consequence for poor performance and thus implement them would have been very helpful, but little has ever little drive for improvement by some agencies. been provided. Recent research demonstrates that agencies have The oversight body – the Ministry for the limited knowledge of such mechanisms and require assistance to Environment – has been historically quite put them in place. remiss in adjudicating the implementation 113 This lack of progress runs counter to the RMA’s aspiration of implementing a free market regime.114 It should be of the RMA, and many regional councils noted, however, that use of economic instruments has been similarly have been slow to hold their district and city limited in other environmental management matters, although much councils to account. While there are signs of opportunity exists improvement, much more focus is required. 115 and the need for it is increasingly recognised. 116 Key outcome: A narrow range of instruments has been employed to This report demonstrates two key outcomes: generate behaviour change which, in many instances, has not been (a) the weight of evidence available points to fit for purpose. Better outcomes are likely possible through employing serious implementation issues with the Act, a broader range of instruments, including economic instruments. and (b) prior reform has often proceeded with limited evidentiary basis to the demise of the overall coherence of the system. This means that reform endeavours should pay close heed to whether unrealised outcomes are a result of poor design, or poor implementation. Only one of those can be significantly addressed through regulatory change. Where regulatory change is contemplated, it should only be undertaken on a strong evidence basis to ensure that solutions fit problems. 60 Evaluating the environmental outcomes of the RMA A report by the Environmental Defence Society June 2016 app Appendix 1 Literature review The literature review is divided into national scale analysis and regional or local studies and all are arranged in date order under the two headings. 1 Citation OECD, 1996 and 2007, OECD environmental performance reviews, OECD Publishing, Paris, available at http://www.oecd.org/env/country-reviews/environmentalperformancereviewsnewzealand2007.htm Description This was the first and second of New Zealand’s environmental performance reviews by the OECD. International evaluation of environmental management in New Zealand that was very wide ranging. We focus on the RMA specific observations, but other findings are of course somewhat relevant. The second highlighted declining freshwater quality as being a key issue for New Zealand to grapple with. Key findings The first review noted the major change that the environmental management system had undergone, recognising that it was still in transition. The review noted that the RMA reforms had addressed previous concerns about the cumbersome nature of regulation in the 1980s. The OECD noted that the RMA was coherent in design, and ambitious in intention – flagging that implementation would be crucial to its success. A lack of national guidance and the outdated approach of many implementing agencies were already evident. Recommendations included more direction at a national level to give subsidiary authorities clear targets and strengthening central government support. Evaluating the environmental outcomes of the RMA A report by the Environmental Defence Society June 2016 61 2 Citation Planning Under Cooperative Mandates Research Programme (FRST-PGSF) produced various citations over three stages (see references for those drawn upon specifically) Description PUCM Phase 1 evaluated the quality of policy statements and plans produced under the RMA and the organisational factors that influenced their preparation (1995-98); Phase 2 evaluated the quality of plan implementation through resource consents (1998-2002); Phase 3 studied environmental outcomes from plans, including outcomes for iwi and hapū (2002-2006) (there was a Phase 4 that evaluated the preparation and implementation of long-term council community plans under the new LGA 2002 also). Key findings Phase One of the project found that most regional and district council documents struggled with the ambition inherent in the Act. The blame for this was generally placed on weak government support and guidance, as councils were not capable of meeting the expectations of the legislation. Phase Two analysed how well the plans were being implemented in practice. Phase Two demonstrated a significant implementation gap, owing to disconnects between the plans and the consents being issued under them. A narrow array of techniques being employed and widespread issues with poor capacity of the agency in question led to generally underwhelming implementation. Phase Two also identified that councils favoured traditional approaches over innovative ones (again attributed to low capacity as well as other factors like weak central guidance and ambiguous policies). The weak government approach was identified as a key cause of limited outcomes, as was low capacity. Where capacity was higher, implementation too was more robust. Phase Three developed and applied a Plan Outcome Evaluation methodology. The research also produced a range of practice guides. 3 Citation Lynch, H, 1997, Evaluating RMA performance : the role of Section 35(2) monitoring, Masters Thesis, Lincoln University Description Assessed the potential of section 35(2) to provide the data necessary to evaluate section 5 and whether that information was being collected. Key findings Demonstrated that s35(2) was appropriate and prompted the production of sufficient data, but that councils were not collecting the data. The reasons for this information failure include a lack of capacity and a lack of guidance at a national level. 62 Evaluating the environmental outcomes of the RMA A report by the Environmental Defence Society June 2016 4 Citation Peart R, 2004, A Place to Stand: The Protection of New Zealand’s Natural and Cultural Landscapes, Environmental Defence Society Description This research explores the loss of natural and cultural landscapes to inappropriate subdivision and development through an analysis of institutions, planning documents and environmental outcomes. Key findings The RMA is failing to stem the loss of important landscapes, in favour of short term economic priorities without acknowledging how economically important they are to our international brand, and particularly to our tourism industry. The importance of landscape (despite being a matter of national importance under the Act) was given limited recognition by regional and national government and management approaches were largely ineffectual (from assessment through to consenting). The outcome of these failings was reduced landscape values. 5 Citation Oram R, 2007, ‘The Resource Management Act: now and in the future’, In Conference Proceedings - Beyond the RMA: An in depth exploration of the Resource Management Act 1991, Conference held at Langham Hotel, Auckland: Environmental Defence Society Description Secondary research from existing information and primary interview research to provide supplementary insights. Key findings Effectiveness of the Act is ‘patchy’ and best in rural areas with relatively abundant natural resources and for small local consents. The RMA cannot cope with fully allocated resources, over allocated resources or cumulative effects and is not able to manage large scale or long term issues (strategy). Unresolved conflict between private property rights and the public interest remains due to weak national guidance and poor capacity in agencies. Business attitudes to the RMA are very negative (even though its burden is not empirically quantifiable), but stem more from implementation than the Act itself. Overall support to retain the Act was found to be high. Concern was expressed that the main thrust of all the amendments has been process improvement rather than refining the purpose (i.e. what it’s trying to achieve). Evaluating the environmental outcomes of the RMA A report by the Environmental Defence Society June 2016 63 6 Citation Peart R, 2007, ‘The RMA compared to international best practice’, In Conference Proceedings - Beyond the RMA: An in depth exploration of the Resource Management Act 1991, Conference held at Langham Hotel, Auckland: Environmental Defence Society Description This paper critically reviewed the RMA next to international exemplars. Key findings The RMA remains world-leading in respect of integration and public participation, but has slipped behind in respect of sustainability and planning aspects. The paper made a large number of recommendations on what could be altered to enhance outcomes. Some of these recommendations have been or are being actioned (introduction of and ethic of stewardship and improving availability of standardised definitions between council plans), but most have not (improving urban planning approaches, clarifying roles of councils in respect of managing urban sprawl, actively encouraging front-loading of consultation and holding the line on proposals to diminish public participation. 7 Citation Lynch, H, 1997, Evaluating RMA performance : the role of Section 35(2) monitoring, Masters Thesis, Lincoln University Description Assessed the potential of section 35(2) to provide the data necessary to evaluate section 5 and whether that information was being collected. Key findings Demonstrated that s35(2) was appropriate and prompted the production of sufficient data, but that councils were not collecting the data. The reasons for this information failure include a lack of capacity and a lack of guidance at a national level. 64 Evaluating the environmental outcomes of the RMA A report by the Environmental Defence Society June 2016 8 Citation McNeill J, 2008, The public value of regional government: how New Zealand regional councils manage the environment, PhD Thesis, Massey University, available at http://mro.massey.ac.nz/bitstream/handle/10179/724/02whole.pdf?sequence=1&isAllowed=y Description Combination of secondary and primary research (144 questionnaires and an unspecified number of key informant interviews) examining the value of regional councils. Key findings McNeill investigated the role of ‘the formal institutional arrangements and configurations of regional councils’. The low public value of the regional councils – even considering variability and some improvement – was due in part to councils exercising only narrow functions despite a broad mandate and an overall lack of national direction. The research concluded that there is a need to clarify the role of regional councils with respect to environmental management and that overall, they’d far from met expectations. 9 Citation Peart R, 2008, Integrating the management of New Zealand’s coasts: challenges and prospects, http://www.waikato.ac.nz/fass/Conserv-Vision/proceedings/Peart.pdf Description Two case study areas analysed, with the help of interviews with 60 stakeholders Key findings The RMA does not sufficiently manage allocation of public resources where the market does not operate; neither does it manage proactive allocation due to the first come first served approach. Lack of clear measures of success more widely has made progress tracking and accountability unlikely to eventuate. There is a lack of integrated planning within councils due to horizontal and vertical splitting of functions and focus areas. Instances of integration are generally local, while the complexity of integration and lack of a statutory context constrains its introduction at higher/strategic levels. Evaluating the environmental outcomes of the RMA A report by the Environmental Defence Society June 2016 65 10 Citation Memon A, B Painter and E Weber, 2009, Integrated catchment management within the RMA framework in New Zealand, https://researcharchive.lincoln.ac.nz/bitstream/handle/10182/4453/research_report_Memon_ Painter_Weber.pdf?sequence=1 Description Evaluated the use of integrated catchment management in New Zealand, particularly under the RMA Key findings Water governance has not used integrated catchment management, and bottom up (locally-led) and top down strategies are required at a national policy level, drawing on strengths of each. It is imperative that the RMA regime gets better at integrated catchment management to achieve sustainability goals. 11 Citation Sinclair, Knight, Mertz, 2010, Regional council practice for setting and meeting RMA-based limits for freshwater flows and quality, Ministry for the Environment, available at http://www.oag.govt.nz/2011/freshwater/docs/managing-freshwater-quality.pdf Description In 2010, the Ministry for the Environment commissioned a report that identified barriers within regional councils to setting and meeting freshwater quality limits. Key findings The barriers identified within regional councils included a lack of: 66 • Political will to set limits for non-point source pollution • Stakeholder/community buy-in to the issues associated with non-point source pollution • Guidelines or robust science to translate ecological, cultural, amenity, and recreational values to limits • Understanding of how to trade and balance social and economic outcomes • Time and resources to develop specific limits for catchments. Evaluating the environmental outcomes of the RMA A report by the Environmental Defence Society June 2016 12 Citation Fenemor A, D Neilan, W Allen and S Russell, 2011, Improving water governance in New Zealand: stakeholder views of catchment management processes and plans, Policy Quarterly, 7 (4), 10-19 http://igps.victoria.ac.nz/publications/files/136fb7d43b1.pdf Description The research was based on interviews with 56 stakeholders and observations of water management planning by regional and unitary councils. Key findings The research concluded that the governance of water has received less attention than the technical and infrastructure development aspects of it, and that this lack of focus is likely to undermine progress in the other areas. Increasing focus on governance regimes will ensure that water management planning is more effective at achieving its aims by better allocating resources and justifying the reasons for decisions being made. 13 Citation Office of the Auditor-General, 2011, Managing freshwater quality: challenges for regional councils, September 2011, available at http://www.oag.govt.nz/2011/freshwater/docs/managing-freshwater-quality.pdf Description This review of regional council efforts in the freshwater policy space used four regional councils to track the management of freshwater nationally and identify areas of concern. This review also considered how well the councils were performing their s35 monitoring functions. Key findings All councils had policies, some very innovative, and they were challenged the most by non-point-source pollution. Two of the four councils were not meeting their s35 requirements for monitoring of plan effectiveness, two were carrying out their duties in respect of freshwater management adequately and a further council partly so. The key challenge they faced was managing the rural sector’s desire for economic development to address the public interest in water protection. Significant concern was expressed at the intervention of elected officials in technical enforcement matters. Evaluating the environmental outcomes of the RMA A report by the Environmental Defence Society June 2016 67 14 Citation Myers S C, B R Clarkson, P N Reeves and B D Clarkson, 2013, Wetland management in New Zealand: Are current approaches and policies sustaining wetland ecosystems in agricultural landscapes? Ecological Engineering, 56 107-120 Description This paper is a review of the strength of policy for wetland protection in regional and district councils around the country. Many (particularly smaller) wetlands are located on private land and regional and district rules controlling impacts on them are their primary protection. Key findings • The most restrictive rules apply in areas having suffered the most loss and with the highest populations • All regional plans have some kind of regulatory barrier to wetland loss, but only 60% restrict activities in • Monitoring is variable and rules are not often enforced • National and regional scale data on wetland extent and condition is sparse, but what is available shows scheduled wetlands significant declines • A series of regional studies all demonstrated net loss of wetland extent and condition in Southland, Auckland, Taranaki, Waikato, Canterbury and particularly the loss of smaller wetlands. 15 Citation Brown M A, B D Clarkson, B Barton and C Joshi, 2013, ‘Ecological compensation: an evaluation of regulatory compliance in New Zealand’, Impact Assessment and Project Appraisal, 31, 34-44 Description Empirical analysis of compliance based on field assessments of 81 sites, according to consistent methodology for compliance assessment developed in association with relevant experts. Cases were drawn from a pool of consents in which proactive mitigation or offset measures were required of consent holders. Key findings Ecological mitigation requirements were met in 64.8% of cases overall and less than half of those with practical environmental outcomes was carried out (with the balance being procedural actions). There was clear evidence of a lack of monitoring and enforcement. 68 Evaluating the environmental outcomes of the RMA A report by the Environmental Defence Society June 2016 16 Citation Brown M A, B D Clarkson, R T Stephens and B J Barton, 2014, ‘Compensating for ecological harm - the state of play in New Zealand’, New Zealand Journal of Ecology, 38(1), 139-146 Description Empirical analysis of mitigation requirements across 112 cases, comparing loss and gain against key principles derived from international research. Key findings Policy vacuum leading to inadequate exchanges and a lack of an even playing field. The poor quality of many exchanges demonstrated that the resource management decision making process was commonly trading off significant ecological losses for more minor (and much less certain) ecological gain. 17 Citation Daly D, 2014, Planning for underwater anthropogenic noise in New Zealand’s Ccastal marine area, Masters Thesis, University of Otago, Dunedin, available at https://ourarchive.otago.ac.nz/bitstream/ handle/10523/5656/DalyDwayneM2015MPlan.pdf?sequence=1&isAllowed=y Description Project reviewed the extent to whether regional councils were adequately managing underwater noise, which is a matter within their jurisdiction. Key findings 14 out of 17 plans did not refer to underwater noise at all, and the only instance in which rules existed which put limits in place was in the Auckland region. Lack of awareness, expertise and resources were primarily cited as the reason for the lack of action in this area. Evaluating the environmental outcomes of the RMA A report by the Environmental Defence Society June 2016 69 18 Citation Becher S A, 2015, Cumulative effects and New Zealand’s Resource Management Act: an institutional analysis, (Thesis, Master of Planning). University of Otago https://ourarchive.otago.ac.nz/handle/10523/5732 Description This research entailed a document analysis of a range of planning instruments to evaluate the potential of New Zealand’s resource management institutional arrangements for anticipatory CE management (CEM). A complementary case-study of management of CEs from on-site effluent treatment (OSET) in Clyde (Central Otago, NZ) assessed whether current implementation of the RMA realises that potential. Key findings The RMA usual approach of predict and controlling adverse effects on a case by case basis is insufficient for managing cumulative effects, and requires a framing that is more adaptive. The research identified two key barriers to the improved management of cumulative effects: grandfathering of impact rights and a lack of an ability to fund initiatives that take a wider view than any individual consent could. These key issues were found to be exacerbated by partial implementation of the Act (i.e. not all aspects provided for are implemented in practice), lack of strategic guidance and a lack of willingness to accept the cost of initiatives that could effectively manage cumulative impacts. 19 Citation Wright, J M, 2015, The politics of sustainability in New Zealand: a critical evaluation of environmental policy, practice and prospects through a case study of the dairy industry, PhD Thesis, University of Waikato Description Theoretical discourse analysis applied nationwide to the dairy industry and then at a local scale – in both instances focusing on the RMA Key findings Demonstrated that power struggles nationally undermine the sustainable development potential of the Act, although good outcomes are possible at a local scale through grassroots initiatives where community participation is widespread, noting: The study concludes that an overwhelming emphasis by the government and the dairy industry on economic productivism has trumped any concern about environmental sustainability enshrined in the Resource Management Act, although interventions driven by a sustainable development discourse remain possible on a local scale. 70 Evaluating the environmental outcomes of the RMA A report by the Environmental Defence Society June 2016 20 Citation Parliamentary Commissioner for the Environment, 2015, The state of air quality in New Zealand: commentary by the Parliamentary Commissioner for the Environment on the 2014 Air Domain Report, available at http://www.pce.parliament.nz/media/1256/the-state-of-air-quality-in-new-zealand-web5.pdf Description This report is a commentary on government assessment of air quality under the Environmental Reporting Bill. While it is not strictly an RMA evaluation, air quality is nested within the RMA regime and the report – based on secondary information and an analysis of the environmental reporting document – does make some statements of interest about the RMA. Key findings The institutional alignment of the RMA and air quality may be constraining effective investment in air quality initiatives: ‘It may be that public money spent by regional councils subsidising ‘clean heat’ appliances would be better spent on smoking cessation programmes. But the boundaries between what regional councils are responsible for and what public health agencies are responsible for mean that the question cannot even be considered.’ Selected regionalised studies This selection is far from exhaustive, but sets out some of the examples of regional evaluation studies available. Many councils have done several within their exercise of s35 monitoring. Citation Taranaki Regional Council, 2009, Effectiveness and efficiency of the Regional Coastal Plan for Taranaki, Background report, available at http://www.trc.govt.nz/assets/Publications/policies-plans-strategies/ regional-plans-and-guides/regional-coastal-plan/eercp09.pdf Description An internal review of the Regional Coastal Plan 12 years after it was made operative in 1997 under s35(aA) of the RMA. Review considered how effective council’s approach had been to regulating coastal activities, based on available data. Key findings Outcomes monitoring of plan provisions focused on output monitoring, as data available on this aspect was much more comprehensive. Expected environmental outcomes (no longer required to be set out within a plan) were tracked to guide effectiveness measurement. Review noted the limited monitoring undertaken in respect of certain measures including maintenance of biodiversity etc. The limited data appeared to constrain the ability for the review to contain a clear conclusion regarding environmental outcomes. Evaluating the environmental outcomes of the RMA A report by the Environmental Defence Society June 2016 71 Citation Whangarei District Council, 2010, Is our District Plan working after 5 years in operation? A report on the efficiency and effectiveness of objectives, policies and other methods in the Operative Whangarei District Plan, http://www.wdc.govt.nz/PlansPoliciesandBylaws/Plans/DistrictPlan/Documents/District-Plan-Efficiencyand-Effectiveness-report.pdf Description Section 35 analysis of the plan undertaken by the council. Key findings The review found mixed results. There was good evidence of effectiveness resulting from the use of flexible subdivision approaches (such as clustering and transferable development rights), the insight and guidance offered by national instruments (NZCPS) and alternative approaches applied in urban areas for localised developments (Town Basin). Examples of low effectiveness related primarily to ensuring the protection of environmental values. For example permissive vegetation clearance rules resulted in significant habitat loss, exacerbated by the difficulties of monitoring the impacts of permitted activities on vegetation extent. Citation Wellington City Council, 2013, Shaping up 2013 District Plan monitoring and research report, http://wellington.govt.nz/~/media/about-wellington/research-and-evaluation/built-environment/2013shaping-district-plan-monitoring.pdf Description Section 35 report for the District Plan which included an analysis of a subset of consents and stakeholder interviews. Key findings Key concerns were compliance costs (engaging professionals and meeting strict rules instead of focusing on ‘good results’) and confusing navigation of the plan due to multiple versions at any one time (exacerbated by inconsistent interpretation by planners and decision-makers and high level of information required in AEEs). It suggests that more focus should be placed on creativity and developing alternative solutions, reducing the need for costly expert input and reducing notification frequency/costs. 72 Evaluating the environmental outcomes of the RMA A report by the Environmental Defence Society June 2016 Citation Canterbury Regional Council, undated, Plan implementation review of The Land and Vegetation Management Regional Plans Part I and Part II, Report No. U07/92 http://ecan.govt.nz/publications/Plans/Landandvegefinal.pdf Description Analysis of the effectiveness of Land and Vegetation Management Regional Plans Part I and Part I Key findings In addition to smaller scale outcomes, the review noted that ‘the scale, extent and intensity of monitoring carried out in relation to these plans over the last 10 years has not been sufficient to establish the effectiveness of policies and methods in achieving the anticipated environmental outcomes’. Evaluating the environmental outcomes of the RMA A report by the Environmental Defence Society June 2016 73 app Appendix 2 Interview questions 1. Please self-rate your knowledge of the RMA, it’s subordinate instruments and agencies on a scale of 0-10 Parts of the Regime 7. The RMA is implemented in a devolved way, but there is a role for central government. On a scale of 0 to 10, how effectively 2. How would you rate the present quality has central government exercised their responsibilities to the of the different areas of the environment in NZ on a scale of 0-10 (with zero being environment under the RMA? Explain very poor and 10 being very high quality) Private Land, Public Land, 8. The RMA (day to day) is primarily implemented by regional and Freshwater, Marine district councils. How effectively (0-10) in your view, have regional Explain councils exercised their responsibilities to the environment under the RMA? 3. Overall, has the quality of the environment Explain declined or improved under the RMA? Declined significantly/declined somewhat/ 9. The RMA is primarily implemented by regional and district councils. stayed the same/ somewhat improved/ How effectively (0-10) in your view, have district councils exercised significantly improved Explain 4. How influential do you think the RMA is on their responsibilities to the environment under the RMA? Explain 10. The RMA interacts with a range of legislation, sometimes the protection of the environment? addressing similar issues or different dimensions of issues covered Not influential at all/somewhat influential/ by other instruments. How effectively does the RMA function with or very influential alongside other legislation etc? Explanation and examples 5. What is your view of what the environmental goals of the RMA are? What 11. How important, in your view, is public participation to the does success mean to you? environmental outcomes of the RMA. (0-10) Explain 6. Have these goals been achieved? a. Yes/Partly/No 12. In your view, are there changes needed to improve environmental b. Why/why not? outcomes from the RMA? Yes/No a. What are they? 13. Have you considered what ‘life after the RMA’ might be like and what kind of framework might eventually take its place? If so, what are your thoughts? a. How urgent do you think succession is? 14. Anything else you’d like to add? 74 Evaluating the environmental outcomes of the RMA A report by the Environmental Defence Society June 2016 pend Appendix 3 Stage 3 scope and approach The scope of Stage Three of this overall Institutional arrangements project entails a scenario development exercise that – drawing on the key issues The institutional arrangements of the RMA are presently struggling identified in this Stage Two – will compare to deliver on the aspirations of the Act. They require review and future possible scenarios against the status potentially some reorganisation. Agency capture may be too difficult to quo, and evaluate them based on the manage within the current structure, and may require a reconsideration meaningful improvements they would likely of where mandates should lie. make across the key issues. Scenarios would span a full range of possibilities from relatively Tool availability minor reform to very comprehensive changes, potentially with modular components that can A narrow range of instruments has been employed to generate be shared between scenarios. behaviour change under the RMA which, in many instances, have not been fit for purpose. Better outcomes are likely possible through Based on the key issues identified, employing a broader range of instruments, including economic the assessment framework should instruments. These tools include strategic planning mechanisms, comprise consideration of the following strategies to better manage cumulative effects and the promulgation matters: legislation content, institutional of effective regional and national instruments.The reasons for the slow arrangements, tool availability, power uptake of these tools should be examined and, where gaps exist, new relationships, monitoring and evaluation. tools promulgated to enable agencies to carry out their roles. Coupled with substantial improvement across these key issues, it would be important Power relationships to ensure that future designs retain the strengths of the RMA approach (primarily Agency capture of (particularly local) government by vested interests procedural strengths, despite minor has reduced the power of the RMA to appropriately manage effects difficulties). Importantly, future reform of on the environment.117 Future scenarios should anticipate the power the resource management system for New imbalance between vested interests and the public interest, and the Zealand should proceed only where the role of agencies in managing those clashes. Addressing agency capture anticipated improvements are significant and will require heightened transparency and accountability and potentially based on robust evidence. the promulgation of flexible supporting instruments which will align the Legislation content divergent interests of stakeholders.118 It will also require retention of quality opportunities for public participation and bolstered recognition of the role of public interest advocates. While the RMA has centralised a lot of decision-making processes, it could be more Monitoring and evaluation integrated. There are still key exclusions that should be better joined up to enhance overall A lack of effective strategy and oversight of decision-making has environmental outcomes. There is also a need reduced the potential to protect environmental values, including to more clearly enshrine strategic case law the capacity to manage cumulative effects. Rigorous evaluation and such as the King Salmon decision in some monitoring of outcomes has often been limited – either at a plan level form. or at a consent level, eroding the potential for adaptive governance and robust implementation. We need to very much improve the veracity of monitoring and evaluation and to enable this, clear goals are needed at a strategic level. 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Insights from new cross-country measures of environmental policies, Environment Directorate, Organisation for Economic Cooperation and Development, available at: https://www.beehive.govt.nz/sites/all/files/Do-Environmental-Policies-Matter-for-Productivity-Growth-Insights-fromNew-Cross-Country-Measures-of-Environmental-Policies.pdf Evaluating the environmental outcomes of the RMA A report by the Environmental Defence Society June 2016 81 end Endnotes 1 Local Government New Zealand, 2015 45 Ministry for the Environment, 2013 2 New Zealand Council for Infrastructure 46 http://www.mbie.govt.nz/info- Development, 2015 3 http://www.productivity.govt.nz/news/ new-inquiry-urban-planning services/housing-property/housing- affordability/document-image-library/ addressing-housing-supply-and- 4 Benidickson et al, 2011 affordability-cabinet-paper.pdf 5 Benidickson et al, 2011 47 Federated Farmers of New Zealand, 6 RMA, Part II 2007 7 Borrie et al 2004 48 Esty and Porter, 2005 8 McNeill, 2008 49 Working Party on Integrating 9 http://www.localcouncils.govt.nz/ lgip.nsf/wpg_URL/About-Local- Government-Index?OpenDocument 10 Erickson et al, 2003 11 Perception Planning, 2013 12 Ministry for the Environment, 2014 and Development, 2015 51 New Zealand Institute for Economic Research, 2014 15 RMA, s35(1) Environmental and Economic Policies, 16 Lynch, 1997 2014 17 OAG, 2011 54 Brown et al, 2015 18 Lynch, 1997 55 Brown et al, 2013 19 Coglianese, 2012 56 http://www.stuff.co.nz/business/ 20 Dick et al, 2011 farming/79897095/damning-report- 21 http://www.un.org/esa/agenda21/ slams-ecans-lack-of-action-over- University Press, 1987 (commonly referred to as the Brundtland Report) Atmospheric Research Limited, 2010 84 http://www.stats.govt.nz/tools_and_ services/newsletters/price-indexnews/oct-13-dairy-exports.aspx 85 http://www.stats.govt.nz/tools_ index-news/oct-13-dairy-exports. 50 Organisation for Economic Cooperation 53 Working Party on Integrating Environment and Development, Oxford Feilding-wastewater-non-compliance 83 National Institute of Water and and_services/newsletters/price- 14 Enfocus Ltd, 2011 Common Future, World Commission on District-Council-slammed-over- 2014 52 Frieder, 1997 22 In particular, the release of Our standard/news/76567822/Manawatu- Environmental and Economic Policies, 13 Ministry for the Environment, 2014 natlinfo/countr/newzea/inst.htm 82 http://www.stuff.co.nz/manawatu- cattle-in-waterways 57 New Zealand Council for Infrastructure Development, 2015 58 http://www.productivity.govt.nz/news/ new-inquiry-urban-planning aspx; http://www.stats.govt.nz/ browse_for_stats/industry_sectors/ agriculture-horticulture-forestry/ AgriculturalProduction_HOTPJun15prov. aspx 86 OECD, 2007 87 Ministry for the Environment and Statistics New Zealand, 2015 88 Parliamentary Commissioner for the Environment, 2015 89 Ministry for the Environment, 2014 90 http://www.mfe.govt.nz/air/overviewair-quality/air-pollution-and-newzealands-air 91 Enfocus Ltd, 2011 92 Ministry for the Environment, 1997 93 http://www.environmentguide.org.nz/ issues/natural-character/ 59 Wallace, 2009 94 Myers et al, 2013 23 Frieder, 1997 60 Mulcahy et al, 2012 95 Myers et al, 2013 24 Resource Management Act 1991, 61 Brown et al, 2015 96 Ledgard, 2013 62 http://www.seachange.org.nz/About- 97 Robertson, 2016 section 5. 25 Nolan, 2011 Sea-Change/Our-approach/ 98 Tremblay, 1957 26 Frieder, 1997 63 Rosenberg et al, 2009 99 Kaplowitz et al, 2008 27 Resource Management Bill, Explanatory 64 http://www.stuff.co.nz/business/ 100 Gow, 2014 Note. 28 Frieder, 1997 farming/78100722/canterbury- 101 Brown et al, 2015 rumblygut-outbreak-linked-to-dairying 102 McNeill, 2008 29 Definitions, RMA 65 Waitangi Tribunal, undated 103 Becher, 2015 30 Frieder, 1997 66 Gregory and Stoltz, 2015 104 Working Party on Integrating 31 Nolan, 2011 67 Palmer, 2015 32 Upton, 1991 68 Enfocus Ltd, 2011 33 Upton, 1995a 69 See research confirming similar factors 34 Upton, 1991 at play, such as Sinclair, Knight, Mertz, 35 Upton, 1991 2010 Environmental and Economic Policies, 2014 105 Green, 2013 106 Parliamentary Commissioner for the Environment, 2013 36 Upton, 1995b 70 [2014] NZEnvC 152. 107 Walker et al, 2008 37 Upton, 1995b 71 [2016] NZEnvC 21. 108 Nyce, 2008 38 Resource Management Bill, Explanatory 72 [2014] NZEnvC 128. 109 Parliamentary Commissioner for the Note. 73 [2014] NZEnvC 92. Environment, 1998 39 Frieder, 1997 74 [2014] NZHC 3191 110 OECD, 1996 40 Brown and Penelope, 2016 75 Otago Regional Council, 2014 111 Bachurst et al, 2002 41 Lazarus, 2004 76 Gibb, 2015 112 Peart, 2007 42 Network for Business Sustainability, 77 Department of Conservation, 2013 113 Brown, 2016 78 Hartley, 2012 114 Richardson, 1998 43 Oram, 2007 79 C74/2005. 115 Stephens et al, 2016 44 Network for Business Sustainability, 80 Davies-Colley, 2009 116 Dickie, 2016 81 Howard-Williams et al, 2013 117 Wright, 2015 2011 2011 118 Stephens et al, 2016 82 Evaluating the environmental outcomes of the RMA A report by the Environmental Defence Society June 2016 dn NZCID, EDMA and Property Council New Zealand would like to thank the staff and supporters of the Environmental Defence Society for the provision of the photographs that illustrate this report. Evaluating the environmental outcomes of the RMA A report by the Environmental Defence Society June 2016 83 . . .. up 10?? . ~52! . L. .1 u. .