Wynn Williams partner Mike Doesburg and solicitor Emma Tod discuss RMA reform and how the quarrying and mining sector may benefit from it.
Continuing its never-ending cycle of reform, the Government has recently released a cabinet paper outlining the goals and principles of the reform of our resource management system, proposed to take shape in three stages.
The first phase – repealing the Natural and Built Environment Act 2023 and Spatial Planning Act 2023 – is now complete. The Government is currently working on phase two, which involves “tinkering” with the existing Resource Management Act 1991 (RMA) through the development of the Fast-Track Approvals Bill and the Freshwater and Other Matters Amendment Bill, and making changes to national direction under the RMA.
Phase three of the reform will involve replacing the RMA and “solving the underlying problems of the RMA that stifle growth and that have frustrated New Zealanders for decades”.
Phase 3 (or what we know about it)
The Government proposes to completely rehaul the RMA and replace this with two new pieces of legislation with clear and distinct purposes – one to enable urban development and infrastructure and another to manage environmental effects arising from activities.
The new legislation is expected to be premised on the enjoyment of property rights as a guiding principle, with a focus on managing material environmental effects.
The Government has indicated that the new resource management system will have several new features, including:
1. Greater use of national direction to reduce the need for resource consents and to simplify council plans.
2. Greater clarity around/strengthening the role of environmental limits and how they are to be developed. The Government has indicated that regional plans should set limits for each environmental domain (i.e. air, water, soils, biodiversity and the coast).
3. Providing one regulatory plan per region jointly prepared by regional and territorial authorities.
4. Providing for rapid, low-cost resolution of disputes between neighbours, and between property owners and councils, with a Planning Tribunal.
These changes, taken together, are expected to provide a more enabling system with certainty, fewer consents (that are approved faster) and less litigation.
Our comment
Some of the Government’s proposed changes will be welcome changes for the quarrying and mining sector.
In particular, the Government has indicated that it intends to narrow the scope of the resource management system and the effects it controls, and shift focus towards managing only adverse effects that are “material”. Provided that there is clear direction around the meaning of “material” and what will amount to a “material” effect, this will narrow the matters that can be considered when processing consents and provide greater clarity for consent applicants.
On a similar note, strengthening the role of environmental limits has the potential to create positive outcomes for the sector. It will provide greater certainty to consent applicants in relation to environmental bottom lines that must be met before a project can proceed.
We emphasise that care must be taken with drafting to ensure that environmental bottom lines are clear, considered and specific. This will leave less room for ambiguity and thereby reduce the likelihood of (and need for) litigation.
The quarrying and mining sector could fall through the cracks of the two new pieces of legislation.
A key concept of the reform is the two new pieces of legislation with clear and distinct purposes. One of these will enable urban development and infrastructure while the other will manage environmental effects.
It is not clear how aggregate and mineral extraction will be managed under the new legislation and whether “infrastructure” will include quarries and mines. Quarrying and mining generally occurs outside the urban environment but is a key element that supports urbanisation.
Careful consideration is required of where the quarrying and mining sector fits into the new system to ensure that it does not fall between the cracks.
Greater use of national direction
The Government has indicated that it will be making large-scale changes to the national direction promulgated under the RMA during phase two of the reform – with seven new national direction instruments and amendments to 14 existing instruments. These changes will carry over into the long-term replacement of the RMA.
We are not aware of the full extent of changes to national direction at this stage. However, Chris Bishop indicated at the Resource Management Law Association Conference that the role of national direction will change. He also indicated that national standards would set minimum requirements for developments, infrastructure and other processes that are currently regulated by consents in order to reduce the number and scope of consents.
While these changes are well intentioned, we consider further thought must be given to the quarrying and mining sector. Consent applicants in the sector currently have to navigate the minefield of regulation set in national direction (i.e. the NES-F, NPS-IB and NPS-HPL) as well as local plans when consenting quarrying and mining projects. The RMA reform presents an opportunity to consolidate national direction relating to aggregate and mineral extraction.
A national environmental standard for quarrying and mining could set minimum requirements for aggregate and mineral extraction across the country. This would make the current system a great deal simpler and fits with some of the themes of the resource management reform – to replace the red tape with clear rules and to provide more certainty.
Focus on private property rights
The cabinet paper reveals some of the Government’s intentions for the new resource management system – premised on the enjoyment of property rights as a guiding principle. The cabinet paper provides that the replacement legislation will not attempt to specify or direct development outcomes that are better determined by landowners and developers themselves in response to demand.
It will also provide property owners with assurance against unreasonable activities next door. In other words, the resource management replacement legislation will likely provide landowners with greater flexibility to use their land in any way they like, provided it does no harm to others.
We have no further details around what this new system might look like at this stage. However, like any large infrastructure provider, consent applicants in the quarrying and mining sector might find it challenging to internalise (or confine) the adverse effects of new or expanded quarrying and mining activities to the project site.
Shifting the focus to “material” adverse effects might go some way towards resolving this issue. However, the new system will need to consider how best to manage adverse effects of large infrastructure projects (including in the quarrying and mining sector).
Conclusion
Phase 3 of the proposed reform presents some welcome changes for the quarrying and mining sector in terms of providing greater certainty for consent applicants (provided these changes are implemented with care).
However, the devil will be in the detail. Thought must be given to how quarrying and mining activities will be managed under the new legislation and how adverse effects that are not confined to the subject site will be managed.
Reform also presents an opportunity to consolidate national direction relevant to quarrying and mining projects to make for a simpler and easier consenting process.
