Mike Doesburg, Partner at Wyn Williams, reflects on resource management law and the quarrying and mining sector over the next year.
As I wrote this article, 2023 was drawing to a close. The year delivered a smorgasbord of change in the resource management space, some elements more palatable than others.
Other significant developments have included the Gazettal of the National Policy Statement for Indigenous Biodiversity and advances in case law, including the Supreme Court’s decision in Port Otago.
As you read this, 2024 will be underway. The year is set to bring further change as the Government looks to cut red tape and rebalance the scale on sustainable management of natural and physical resources.
This article looks ahead at what is currently known about the RMA reform agenda, including in relation to freshwater, whilst anticipating what else could be changed to keep the quarrying and mining sector moving.
The repeal of the Natural and Built Environment and Spatial Planning Acts has long been signalled. A mid-December letter from the Hon Chris Bishop, Minister Responsible for RMA Reform, reaffirmed the Government’s intent to repeal that legislation before Parliament rises at the end of 2023.
Repeal will ensure that the long transition from the RMA to the Natural and Built Environment Act never occurs and will stop in their tracks some processes that are already underway. However, some parts of the Natural and Built Environment Act will be retained. The Hon Chris Bishop has confirmed that the fast-track consenting process will be retained while the Government works on its replacement (due in the first 100 days).
Two further phases of reform are promised: the first through amendments to the RMA to make it easier to consent new infrastructure, build more houses, allow farmers to farm, and enable aquaculture and other primary industries. The second will replace the RMA with a new system, based on the enjoyment of property rights.
Naturally, the suggestion that infrastructure will be easier to consent will be welcome news to the quarrying and mining industry.
Several changes over the last six years have placed significant hurdles in front of quarrying and mining projects – including the National Policy Statement for Freshwater Management 2020, the associated National Environment Standards for Freshwater 2020 and the more recent National Policy Statement for Highly Productive Land (addressed further below).
For now, there is little detail about how infrastructure will be made easier to consent (and whether “infrastructure” will extend to quarries and mines). Some levers the Government might pull could include limiting public notification, narrowing the matters that can be considered when processing such consents, or even prescribing that such consents must be granted (with council discretion limited to conditions).
It may also be that the Government loosens some of the restrictive national direction that has been passed in recent years. Whatever the solution, the quarrying and mining industry should engage directly with the Government to make sure its interests are considered.
In terms of the second step, little is known about the proposed a new system of resource management laws based on the enjoyment of property rights.
A system based on the simple concept that land can be used in any way, provided it does no harm to others could possibly work for urban planning.
However, the concept may unravel when considering large projects that cannot internalise all adverse effects or when dealing with common resources (like water and air).
Undoubtedly much more will be said on this topic as policy decisions are made and the legislation is advanced.
The staged reform of the resource management system will undoubtedly be a hot topic for 2024 and beyond – watch this space.
On 14 December 2023, it was announced that Cabinet has agreed to replace the National Policy Statement for Freshwater Management 2020 (NPS-FM) within 18-24 months. Ministers have said that the existing NPS-FM is extremely complex, expensive to implement and will not deliver the outcomes for freshwater that we can expect.
To recognise the uncertainty this creates, councils will be given an extension to the deadline for providing freshwater plans – from December 2024 to December 2027.
While these issues will be closely watched by the farming and industrial sectors, they will be relevant for the quarrying and mining sector. The NPS-FM provides the policy direction that drives the National Environment Standards for Freshwater 2020 (NES-F), including the provisions relating to the management of wetlands and streams.
It is no secret that the NES-F has impacted plans to establish new quarries or expand existing sites.
If changes to the NPS-FM do result in changes to the NES-F, the sector will be hoping for improved clarity and certainty.
A common theme with recent national environmental standards has been the proliferation of “guidance” documents to help councils and applicants understand how they work, as well as multiple iterations of amendments to fix unintended consequences. The NES-F has multiple accompanying factsheets and has been amended five times since its Gazettal in 2020.
Other national policy statements
The Government’s coalition agreements both speak to a review of the implementation of the National Policy Statement for Indigenous Biodiversity (NPS-IB) and the mapping of new Significant Natural Areas.
Revisiting that document and the narrow exceptions it applies for extractive industries would be a welcome step, but no announcement has yet been made on timing or what any review might look like.
Another sleeping giant in the resource management space is the National Policy Statement on Highly Productive Land (NPS-HPL). The NPS-HPL seeks to protect any class one, two or three soils from subdivision or use other than rural production.
While the NPS-HPL provides exceptions for mineral extraction or aggregate extraction activities, such activities need to demonstrate a significant national or regional public benefit that could not otherwise be achieved using our resources.
As the decision on the Peach Island, Motueka Quarry showed, the threshold in the exception is very difficult to meet (noting that decision is under appeal to the Environment Court).
All indications are that 2024 will bring the start, but by no means the end, of a series of important changes in the resource management space.
While many might be sick of hearing about RMA reform, the proposed staged reform is an important opportunity to increase certainty for the extractive industries that have suffered under recent policy settings.
Review of the NPS-FM is a further important opportunity, which shouldn’t be dismissed as only being important for the farming or industrial sectors. Revisiting the NPS-FM must create an opportunity to revisit the NES-F.
Of course, there is other recent national direction that could be reviewed. The implications of the NPS-IB and NPS-HPL are only beginning to be felt and are likely to create difficulties in planning or consenting new or expanded quarries and mines.
We will certainly be following the evolution of our resource management law closely and hope to use this monthly article to keep you updated as well.