Drawing the RMA battle lines

20:10, Jul 12 2012

It's been fashionable in business circles to say the Government is either ''doing nothing'' or ''not enough'' to spur economic growth.

But that's partly because of the stealthy way important parts of this administration's economic reforms are playing out.

A case in point is the emerging breadth of the Government's agenda for reforming the Resource Management Act.

In place since 1991 and argued about ever since, the RMA is in for its biggest shake-up in more than two decades if the pro-business proposals published last week in the report of a high-powered Technical Advisory Group (TAG) are adopted.

Out will go the presumption that there are environmental ''bottom lines'' that can't be crossed, to be replaced by a new emphasis on ''balance'' between economic and environmental impacts.  

The environmentalist lobby will decry this, business will generally welcome it, and political battle lines will be more starkly drawn if this fundamental change proceeds.

The proposals would also be a big, near-final piece of the wider puzzle that has already produced an Environmental Protection Authority, call-ins to that body EPA for major infrastructure projects, and a new nine-month deadline for resource consent decision making.

Returning to ''balance'' is effectively a reversion to a core principle of the old Town and Country Planning Act, which the RMA replaced, among other laws.

Equally important: this shift has the capacity to unpick the two decades of common law precedent by which the RMA is understood.

It's also worth noting this ''balance'' debate has already played out this year, in the RMA-style legislation to govern economic activity in the Exclusive Economic Zone.  The balance argument won out.

Meanwhile, if the Government accepts the broad thrust of the TAG report, it will effectively be hitting the reset button on the way consenting bodies and the courts are required to consider applications for all resource development on land and out to the 12 mile nautical limit.

Note: this hasn't happened yet. Environment Minister Amy Adams says the Government has yet to consider the TAG's recommendations, along with the recommendations already accumulated from a string of similar studies into how the RMA deals with infrastructure, urban issues, and natural hazards.

In many of the areas of proposed reform, there's cross-party agreement.  No one wants any more subdivisions built on liquefaction-prone land, as happened in Christchurch.

However, the same report proposes watering down such protections as those for outstanding landscapes and preservation of native species and habitats. If that emphasis had been in place earlier, some landmark consent battles might have ended differently.

Meridian Energy's hotly contested Maniototo wind farm, Project Hayes, would have been much harder to turn down because of its impact on an iconic landscape under the RMA recommendations now before Cabinet.

Extrapolate from that single example and the implications are clear. The Government's enthusiasm for progress in controversial areas such as oil, gas and mining, irrigation to expand dairying, and looser urban boundaries to encourage affordable new housing, is well-known.

Its ''growth, not austerity'' message on the economy needs proof urgently.

The four-year process of RMA review initiated by former Environment Minister Nick Smith is on the brink of delivering changes that should ease the path in all those areas.

From environmentalists' perspective, the news is not all bad.  The TAG recommends new, explicit reference to biodiversity, wetland values, and taonga species, as well as the management of natural hazards, and economic, urban and infrastructure issues.

Where the rubber meets the road, however, is in the extent to which the key clauses six and seven of the RMA are amended to reduce explicit protections that currently exist, through the softening of the hierarchy of considerations to be applied to resource consent applications.

The TAG's findings are that while the RMA was enacted by an economically liberal Government, its interpretation by the courts in the intervening 21 years has led to a ''fundamental mismatch or disconnect'' between those early intentions and the way law is now working in practice.

However, an equally credible albeit unofficial alternative technical advisory group formed by the influential Environmental Defence Society (EDS), recommended in its report in May that no changes should be made to the legislation.

The EDS was concerned that ''any changes to these sections be thoroughly considered and widely consulted upon, both as to their societal acceptance and their legal effect''.  

''It would be unfortunate indeed if an amendment designed to simplify and streamline the Act were to result in further doubts arising as to the interpretation of, and the weight to be given to, its most important provisions.''

The Government will almost certainly move carefully in this area.  It rides a knife-edge of public opinion already over its commitment to New Zealand's environmental reputation.   

However, it is also determined to see a slow-growing economy, which struggles to pay its way in the world, grow faster.

In the end, that latter instinct will be the winner.