RMLA President’s Report : April 2014

Dear Members

The Prime Minister’s announcement of an early (September) election gives cause to consider where we are at with our resource management system, as we approach the end of this second term of a National led government.

At the recent New Zealand Law Society (NZLS) Environmental Law Intensive I found myself observing that the system practitioners currently operate within bears little resemblance to that which we had all grown used to, and perhaps even fond of, prior to the 2009 Amendment Act.

This Government has unashamedly progressed significant reforms through a period within which the economy has rebounded from the global financial crisis, and alongside its Business Growth agenda.

One session at the NZLS Intensive centred around a so called new “planning paradigm” with emphasis given to the following emerging trends and components within our current resource management system:

  • Greater national direction from national instruments than previously available
  • Proposed National Templates and National Objectives Frameworks (Freshwater management)
  • Unitary plan models, including the alternative procedure for the Environment Canterbury (Land and Water Regional Plan) and Auckland Combined (Unitary) Plan
  • Collaborative planning processes (including as envisaged for fresh water management more generally under the 2013 reform proposals)
  • New section 32 requirements
  • Board of Inquiry processes
  • Developments in the Environment Court processes including techniques for further advancing efficient appeal resolution

It was noted that some 15 Boards of Inquiry have been appointed (primarily under the 2009 Amendment Act EPA procedure) involving some 70 Board of Inquiry member appointments, to determine a wide range of major project and infrastructure developments in the past 5 to 6 years.  This model of decision making has clearly become a dominant component of our current system, and involvement in the processes involved has no doubt been a major work focus for many members over the period.

Over the same period since 2008, we have seen the coming into force of an Emissions Trading Scheme under the Climate Change Response Act 2002, amendments to the Crown Minerals Act to encourage development of Crown owned minerals and streamline and coordinate procedures across the relevant regulatory agencies, the passing of the Exclusive Economic Zone (Environmental Effects) Act 2013 and associated regulations, the setting of a bespoke process for the Auckland Combined plan, amendments to section 32, the promotion of significant reform initiatives in relation to both fresh water and the overall resource management planning and consenting processes (that would include an alternative the First Schedule procedure as well as amendments to Part 2), and – most  recently- further investment in an expanded Environment Court bench.

Collaboration is clearly in vogue, yet  being advanced as the preferred approach alongside the high pressure and speed (some would say brutally so) more conventional litigation model of the Board of inquiry route for major projects that has equally emerged to the fore in recent years.

All in all, this is quite a ‘stock take’, and a lot to keep up with.

But is what we see emerging the right (better or best) system for our environment and economy, for a country with a comparatively small population?  Do we know how well it is working in terms of achieving sustainable environmental outcomes in an efficient and effective manner?

The purpose of our 2014 Conference is of course to explore that very question.

The recent history of reform I have just outlined provides something of a platform for a broader conceptual assessment of the resource management system we will need over the coming generations.  The essential paradox that must be resolved as I see it is how to conceive and design a system that trends towards greater simplicity, workability and efficiency (as well as effectiveness), while the issues the system must grapple and address with become increasingly significant, diverse and complex.

As we track towards September, the Association continues on with its work and in both good health and spirit.  The RMLA Executive met again with the Ministry for the Environment on 21 March, discussing among other things the Ministry’s contribution to the forthcoming conference, along with a planned road show training series promoted jointly between the Ministry, RMLA and NZPI regarding the new section 32 requirements.

We were introduced to the Ministry’s Water Directorate headed by Catherine Neill.  Catherine explained that she oversees some 50 staff across 8 teams within the directorate (one of two within the Ministry), testament to the significance placed by central government on fresh water management.

In February, Maree Baker-Galloway and I attended the second annual Academic Symposium at Victoria University and enjoyed a stimulating range of presentations from leading academics throughout New Zealand, as well as from Professor David Hodas, Widener University (Wilmington, Delaware).  The third Academic Symposium, promoted through the Association’s Academic Advisory Group, will take place as an adjunct to the conference in Dunedin. We thank Nicola Wheen (Otago University) for assuming the role as convenor of this important group operating within the RMLA umbrella.

I am currently working my way round the North Island contacting the Regional Branch Chairs and in that context, would like to welcome aboard the joint Wellington co-chairs, Nicky McIndoe (Kensington Swan) and Maia Wikaira (Kahui Legal), and in Christchurch, new Chair, Gerard Cleary (Anthony Harper), and thank them for taking on that role.

Our next National Committee meeting is in Tauranga, when we will also meet with the local branch committee to commission planning for the 2015 conference.  On the agenda at that meeting will be the sponsorship review paper that Kate Barry-Piceno has prepared, along with a report from Andy Carr regarding guidance frameworks for promoting the young RMLA initiative within the Association.  A further initiative we are advancing is to maintain a broad ranging membership with a healthy degree of industry and engineer participation. You may be interested to know that lawyers make up roughly 30% of the RMLA membership, and planners another 30% – suggesting some measure of balance as things stand, i.e. 30-40% of RMLA members are (fortunately I hear you say) neither planners nor lawyers.

In mid April, the Executive will meet with the Executive of the New Zealand Planning Institute to discuss matters of mutual interest and promote coordination and awareness of our respective activities across the two entities.

Might I conclude with an acknowledgement of the passing of an environmental law giant, Professor Joseph Sax. Professor Sax was instrumental in the very genesis of the RMLA, presenting an address to an International Conference on Environmental Law in Sydney in June 1989 called “The Law of a Liveable Planet” that inspired our founders to form the Association as a counterpart to its Australian equivalents. He also presented one of the more exceptional keynote addresses I have witnessed, regarding water management at the RMLA Dunedin conference in 2009.  Professor Sax spoke of the need for flexibility and responsiveness in any water management framework, where rights of allocation and use are tempered to cater for the public good needs to which water must be applied, and that should in event of conflict, prevail.

I could do no better than to leave you with that thought! Enjoy the rest of this month’s newsletter.

Martin Williams
RMLA President