RMLA President’s Report – October 2014

What a conference it was! I lost count of how many people remarked to me that they thought this was the best conference yet. 

The plenary session including Justice Whata, Environment Judge Kirkpatrick and Derek Nolan as to the implications of the Supreme Court decision in King Salmon was a standout for many. Sadly for those that could not attend, this session was delivered under “Chatham House Rules”, so I should probably not say anymore. I cannot avoid noting though, just how valuable the perspectives shared by such an esteemed panel were to me in reflecting further upon the significance of the Supreme Court’s decision, and in particular, to what extent the “overall judgment” approach has survived the judgement.

The keynote addresses from Dr Liz Fisher, Professor J B Ruhl and Professor Nicholas Robinson were simply stunning.  Dr Fisher’s and Professor Ruhl’s papers are available on the RMLA website (and Professor Robinson’s will be soon). 

They all “delivered” in terms of taking us beyond “sustainable management” to thinking about the environmental law frameworks we will need to equip this country to meet the challenges faced in tackling the profound economic and environmental issues in front of us.  Themes such as “Adaptive Governance”, “Resilience”, “Environmental Constitutionalism”, and the need for both foresight and cooperation in anticipating and responding to the issues faced, were left “ringing in my ears” as take homes from these sessions.

Perhaps most profound in terms of impact (to me) was Professor Robinson’s explanation that we have moved from the geological period of the Holocene into what he referred to (and has been officially coined by those who do these things) as the ‘Anthropocene’.  That is, impacts from our activities have become so significant, that in geological terms we are now in a  different age (era) from that occupied by human kind for nearly 12000 years.

To kick the conference off we were treated to a panel discussion (Lindsay Gow, Dr Royden Somerville QC, and (Retired) Environment Judge Kenderdine) as to the origins, aspirations, and degree of success of the RMA, in achieving its intended objectives.  The session was cause for sober reflection, particularly as to those areas where the RMA has perhaps not (at least yet) delivered as well as hoped, for example in terms of biodiversity management and overall water quality.

I further commend you to a paper presented at the outset of the conference by James Palmer, Deputy Secretary (Strategy Sector) at the Ministry for the Environment. This outlines a compelling case for focus within our resource management system “that highlights and prioritises the issues that matter and facilitates community dialogue on these supported by a strong evidential base”.

The paper explains that much of the resource management experience to date has been on (arguably) less important issues, including overregulation (and litigation) over relatively benign activities.

Of interest, James Palmer managed to make a case for both an overall judgment approach and application of “bottom lines”. If you want to understand how that works, visit the website [https://www.rmla.org.nz/librarydoc/index/category/5/order/date_desc/keyword/palmer] and read the paper!

The weekend before the conference we of course witnessed the election of a third term National Government that campaigned on an intent to complete its reform programme commenced with the 2009 Amendment Act.

 A consistent theme I heard expressed not only by plenary and keynote speakers, but also through many discussions over coffee, tea (or something stronger), was what I might describe as “reform fatigue”. 

Dr Fisher reminded us that we need to consider the RMA as a legal framework within which what she described as “hot” environmental issues and problems play out, rather than being a ‘tool’ that can itself solve all of the issues. She referred to the place of such a framework in handling widespread even enduring disagreement, turning this into a constructive or creative force, partly by making it unnecessary for people to agree when agreement is not possible.

One of her conclusions was expressed as follows:

“On the one hand the “hot” nature of environmental law points to its dynamic state while talking of environmental legislation as constitutional points to a desire for stability.  That tension I would suggest is a core focus of environmental constitutionalism.  Environmental law is about a constant search for stable frames knowing full well the fragility of such frames.”

As the National Committee gears up to prepare to make constructive submissions to the long anticipated Resource Management Amendment Bill, the case for “stability” within the framework of the RMA is timely.

Debate has raged far and wide as to whether reform of Part 2 is necessary or desirable and we heard from Sir Geoffrey Palmer about his views on that at the New Plymouth conference in 2013.  Now, with the Supreme Court decision in King Salmon, perhaps the case for encoding the “overall judgment” approach to Part 2 is stronger?  But beyond the broadly supported procedural changes to RMA (planning and consenting) signalled in the 2013 discussion documents, to what extent should we attempt any wider reform to Part 2 (s6 and s7 in particular).

The RMLA itself is unlikely to express a definitive position on that topic given the undoubtedly divergent range of opinion within the membership.  We may however canvass the membership on the case for “caution” over (i.e. a maxi-min approach to) change to the engine room provisions of the Act, that are well established and understood, and which underpin not only operative but an increasing number of second generation policy statement and planning instruments throughout the country.

May I simply conclude after these very high level thoughts, by saying how much I am looking forward to working with the newly elected National Committee.  The Committee is substantially the same as that elected in 2013, but now joined by Rosemary Dixon (in-house legal counsel – Environment at Contact Energy).  We have no doubt a very busy and interesting time ahead of us.  

Our first meeting was on 22 October, where we  confirmed the agenda for the forthcoming year, and appointed our various portfolio holders to oversee that work programme.

They are:

Awards – Andrea Rickard / Rachel Devine / Simon Berry

Courts – Martin Williams / Simon Berry

Strategic Relations – Martin Williams / Kate Barry-Piceno / Maree Baker-Galloway

Legislation and Special Interest Groups – James Gardner-Hopkins / Bianca Tree / Maree Baker-Galloway

Membership Recruitment/Retention – Ian Fraser / Rosemary Dixon

QP Website – James Gardner-Hopkins

Regional/Young RMLA Development / Co-operation – Martin Williams / James Gardner-Hopkins

Road Shows – Kate Barry-Piceno / Ian Fraser / Rachel Devine

Scholarships – Rachel Devine / Rosemary Dixon

Annual Conference – Kate Barry-Piceno / Bianca Tree

I am already looking forward to the 2015 conference in Tauranga, a timely if not overdue “full emersion” into Matauranga Maori. This will be held on 24-26 September 2015 at the ASB Arena.

I hope you enjoy this newsletter and best wishes for a productive final quarter of 2014.

Martin Williams
RMLA President