From two steps back to one very large, and hopeful, step-forward is how I see recent environmental policy and the direction of its travel into 2024. By Mike Doesburg, Partner, Wynn Williams Environment & Planning and Local Government team.
The last few years have seen such a tsunami of new resource management regulation that environmental law practitioners have struggled to keep up, let alone people who have more productive things to do with their daily lives.
Highlights include changes to the National Environmental Standards for Freshwater (solving some problems with wetlands and creating new problems), a new National Policy Statement for Highly Productive Land and, the elephant in the room, that is the repeal and replacement of the Resource Management Act 1991.
However, something with important and wide-ranging implications has escaped the attention of many.
The National Policy Statement on Indigenous Biodiversity (NPS-IB) was gazetted on 7 July 2023 and took effect from 4 August 2023. The media release about the NPS-IB was tucked away in a wider media statement about consultation on “a national biodiversity credit system to support landowners”.
What was missing from the media statement was just how significant the changes will be.
The NPS-IB in a nutshell
As a National Policy Statement, councils must “give effect” to the NPS-IB when formulating their planning rulebooks for their districts or regions and decision-makers must have regard to the NPS-IB when making decisions on resource consents and other environmental approvals.
The NPS-IB was developed to help protect and maintain the unique biodiversity in our country. It aims to maintain indigenous biodiversity so that there is no overall loss in indigenous biodiversity. The NPS-IB seeks to achieve this by, among other things:
- Directing councils to identify significant natural areas (SNAs) and manage the adverse effects of new activities on SNAs. Under clause 3.8(1), every territorial authority (district or city council) must undertake a district-wide assessment of the land in its district to identify any areas of significant indigenous vegetation or significant habitat of indigenous fauna that qualify as SNAs. Plans identifying SNAs must be notified by 2028.
- Under clause 3.10(2), requiring that adverse effects on SNAs from any new subdivision, use or development is avoided unless an exception in clause 3.11 applies. The effects that must be avoided include:
- Loss of ecosystem representation and extent.
- Disruption to sequences, mosaics, or ecosystem function.
- Fragmentation of SNAs, or the loss of buffers or connections within an SNA.
- A reduction in the function of the SNA as a buffer or connection to other important habitats or ecosystems.
- A reduction in the population size or occupancy of Threatened or At Risk (declining) species that use an SNA for any part of their life cycle.
- Identifying areas used by listed highly mobile fauna (such as birds and bats that use large areas) and including rules in planning rulebooks to manage adverse effects to maintain viable populations of those fauna.
Exceptions for mining and quarrying
Clause 3.11 provides exceptions to clause 3.10(2), including exceptions for mineral extraction, aggregate extraction and coal mining in certain circumstances:
- Clause 3.11(a)(i) provides the first exception. It applies to “specified infrastructure”, which includes regionally or nationally significant infrastructure identified in a policy statement or plan. Some quarries may qualify as regionally significant infrastructure and be able to rely on this exception.
- Clause 3.11(a)(ii) provides an exception for mineral extraction that provides significant national public benefit that could not otherwise be achieved using resources within New Zealand. In addition to the high threshold of demonstrating that there are no other resources to satisfy demand, the exception expressly does not apply to coal mining.
- Clause 3.11(a)(iii) provides an exception for aggregate extraction that provides significant national or regional public benefit that could not otherwise be achieved using national resources.
- Clause 3.11(a)(iv) provides an exception for the operation or expansion of any coal mine lawfully established before the commencement date of 4 August 2023. After 31 December 2030, this exception applies only to such coal mines that extract coking coal. Chances are that lawyers will still be arguing about what the “operation or expansion of any coal mine” means when the December 2030 date rolls around.
For any of these three exceptions to apply, there must also be a functional need, or operational need, for the activity in that particular location and there must be no practicable alternative locations (clauses 3.11(b) and (c)).
Finally, the exceptions are not “get out of jail free cards”. If any exception applies, the activity is not required to avoid adverse effects on SNAs, but is still subject to regulation.
Such activities must demonstrate that the effects management hierarchy has been applied (which provides a cascade from avoiding effects through to minimising, remedying, offsetting or compensating for adverse effects).
What this means for mining and quarrying
The mining and quarrying industry simply cannot ignore the NPS-IB and its implementation. If areas surrounding existing or prospective mines and quarries are identified as SNAs, mining and quarrying activities are likely to be constrained. The requirement to avoid the effects referred to above is onerous and can be a consenting roadblock.
While the exceptions in clause 3.11 may help some operators, they are far from comprehensive and still require that effects are thoroughly addressed. A choice not to participate in the forthcoming processes to identify SNAs is a choice by the industry to give way to a potentially less than rigorous process, and a wilful acceptance of the consequences of improperly identified SNAs.
Roadmap into 2024
At the time of writing, the election ‘result’ was still under negotiation between National, Act and NZ First.
National has made a range of promises in its 100 Day Action Plan. We can gain some sense of what is coming in 2024 by linking the Action Plan up against the policy positions of Act and NZ First.
In the resource management space, the first 100 days will likely bring the introduction of legislation to:
- Repeal Three Waters legislation.
- Repeal the legislation that would reform the RMA – the Natural and Built Environment Act 2023 and Spatial Planning Act 2023.
- Retain a fast-track consenting regime for certain projects.
- Begin efforts to double renewable energy production, including working to issue a National Policy Statement for Renewable Electricity Generation.
In the longer term, National’s Blueprint for a Better Environment sets out six ways it proposes to reach its goal of restoring degraded environments, protecting threatened species, supporting our rural communities, and celebrating the natural beauty of our country to build a greener, more prosperous, and environmentally conscious nation. These are:
- Cleaning up freshwater.
- Boosting biodiversity.
- Delivering for the climate.
- Protecting and celebrating our oceans.
- Reducing waste.
- Fixing planning laws.
So what will this all mean for the industry? While there is a clear desire to better balance preserving the environment while encouraging investment and development, how that translates into the resource management system remains to be seen.
There is an obvious opportunity to seek that the incoming Government revisits recent policy direction (including the NPS-IB and the current balance Te Mana o te Wai sets for freshwater).
However, any subsequent changes are likely to be six months to a year away.