Three strikes against David Parker’s RMA reforms

Roger Partridge
Sunday Star Times
2 April, 2023

This month, Environment Minister David Parker’s Resource Management Act reforms will be consigned to the dustbin of history. Provided, that is, Prime Minister Chris Hipkins is listening.

Three extraordinary interventions during March point to the reform’s inevitable demise.

The first occurred at the start of the month. Chief Justice Helen Winkelman took the highly unusual step of publicly warning, in a submission to the Environment Select Committee, that Parker’s reforms would disrupt the courts.

The chief justice cautioned that “extensive litigation” would follow the reforms and overburden the courts.

By constitutional convention, the judiciary should not be seen to interfere with parliamentary law-making. However, the convention has a narrow exception. The judiciary may express concerns relating to proposed legislation that directly affects the operation of the courts, the administration of justice or the rule of law.

Against this background, the chief justice’s intervention is sobering.

Submitters before the Environment Select Committee, including The New Zealand Initiative, repeatedly pointed to the vague language, the lack of coherence and the unworkability of Parker’s RMA reform proposals.

The high threshold required for the chief justice’s intervention means the judiciary shares those concerns. And that they are so serious they will adversely affect the administration of justice. Strike one against Parker’s reforms.

Strike two came from Environment Commissioner Simon Upton.

Upton is well versed in planning law bungles. After all, it was Upton who, as the Bolger government’s Environment Minister, delivered the RMA into law in 1991.

But even Upton sees the perils of Parker’s proposals. Indeed, his submission to the Select Committee says the reforms are so flawed the environment might be better off if they were scrapped. Parker’s reforms, he said, “weld a wide range of unprioritised outcomes into what is supposed to be the basis for environmental law.”

Even if the proposals are substantively amended, Upton questioned whether they can deliver an enduring framework. “As they stand, they substitute the uncertainty of new law with novel definitions and complex ambitions for the relative certainty of amending the existing legislation,” he said. Upton concluded that a better approach would be achieved through comprehensive amendment of the RMA.

Just in case the Prime Minister had not got the message, last week the Environment Committee chair, Green MP Eugenie Sage, delivered strike three.

Speaking at the Environmental Defence Society conference in Auckland, Sage said she wanted Parker’s reform proposals sent back for more public consultation. The Select Committee process was moving too fast. Too many changes were needed to the 859-clause Bill to do the reform process justice. “I don’t think we can get it panel-beaten… in the time we have available,” she said. Instead, she proposed the Government release a new exposure draft incorporating amendments from the Select Committee process, followed by further public consultation.

Sage was at pains to point out she was speaking as a Green MP rather than the Select Committee chair. But her views are her views, regardless of which hat she wears.

The last thing the Prime Minister will want in the lead-up to the election is the Greens joining ACT and National in a chorus of disapproval over Parker’s reform proposals.

So just what is wrong with the reforms? For such a complex reform exercise, the problems with can be succinctly stated.

They include multiple conflicting objectives with no mechanism for evaluating costs and benefits to resolve trade-offs.

They largely disregard property rights, so will have a chilling effect on investment.

They presume that planners know best – and will be able to predict society’s complex and diverse future needs.

They will undermine local democracy by conferring planning decision-making powers on new regional entities.

And perhaps worst of all, they introduce a Pandora’s Box of new amorphous concepts.

A generation or two of lawyers have got rich litigating the meaning of the RMA’s core concept of “sustainable development.” New requirements like “enabling the use… of the environment in a way that supports the well-being of present generations without compromising the well-being of future generations,” will have environmental lawyers licking their lips.

Not to mention the new “fundamental principle” of Te Oranga o te Taiao. This principle is defined to include the relationship between iwi and individual hapu and the environment. It places untested, undefined and unpredictable race-based considerations at the centre of the planning process.

It is no wonder submitters have warned that Parker’s new laws will be worse than the RMA he wants to repeal. That is some achievement.

Since taking over as Prime Minister, Hipkins has shown a ruthless determination to dispatch anything in the way of his Government being re-elected. So far, this has resulted in two so-called policy bonfires.

While these have largely involved dumb ideas being deferred, it would take a brave punter to bet against Parker’s reforms being struck out.

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