Randerson Report – RMLA analysis – Part One
Author: Madeleine Wright – Biodiversity Knowledge Hub Leader
This is the first article in an 11-part series providing ‘bite size’ analyses of the New Directions for Resource Management in New Zealand or the ‘Randerson Report’. This article highlights features of the Report’s proposed Natural and Built Environments Act (“NBEA”) and Strategic Planning Act (“SPA”), that directly relate to, or are likely to impact on, biodiversity.
- The inclusion of Te Mana o te Taiao in the purpose of the NBEA could be seen to place biodiversity front and centre in resource management decision-making. The Report explains that Te Mana o te Taiao is based on the Kaupapa Māori hierarchy of obligations starting with the health of the natural environment, moving to essential health needs of people, and then to other consumptive uses. Biological diversity is an integral component of the natural environment. The extent to which Te Mana o te Taiao results in prioritisation of the health of the natural environment in practice will depend on how it is defined and how decision-makers are directed to consider it.
- The NBEA introduces a focus on “outcomes” that must be provided for by those exercising functions and powers under the Act. Four of those outcomes are biodiversity focused:
– protection and enhancement of areas of significant indigenous vegetation and significant habitats of indigenous fauna (“SNA”). The key difference between this outcome and the wording of s 6(c) RMA is the inclusion of the requirement to “provide for…enhancement” as well as protection.
– enhancement and restoration of ecosystems and restoration of viable populations of indigenous species. Again, this introduces a more proactive element to statutory directives relating to biodiversity management.
– maintenance of indigenous biological diversity and restoration of viable populations of indigenous species. This elevates what is currently in the RMA as a regional and district function to an overarching outcome to be secured. The meaning of the term “maintenance” has been a source of controversy under the current system. This is not addressed by the Report but whether it should be defined in the Act or via subordinate legalisation is something that should be considered. The draft NPS for indigenous biodiversity (“DNPSIB”) proposes a definition.
– protection and restoration of taonga. Specific species of flora or fauna, natural areas, or ecosystems can be taonga. In some instances, an area may be taonga and a SNA, thus qualifying for protection and enhancement under two NBEA outcomes. Whether this would result in a different approach to protecting and enhancing the area is something that could be considered going forward.
- The NBEA introduces a requirement for the Minister to prescribe environmental limits through national direction for “the quality and extent of terrestrial land aquatic habitats for indigenous species” and to identify and prescribe SNAs and “methods are requirements to give effect to” the ecosystem and biodiversity outcomes outlined above. This puts the effective and appropriate management of biodiversity at a place of prominence in the NBEA. It also raises questions about the interface between new legislation and existing or pending national direction. The DNPSIB includes criteria and a process for SNA identification, and a comprehensive management framework. Alignment with any new legislative requirements will need to be considered. This process needs to be approach with caution as SNA identification and how biodiversity should be protected and managed inside and outside of SNAs has been controversial across the country.
- Environmental limits and national direction are intended to drive and be reflected in new combined regional and district plans. This would likely see a more consistent approach to biodiversity management across the country and between districts in a region. Given the specificity of the proposed outcomes and limits, it would also likely see a ratcheting up of the protection afforded to biodiversity in a number of plans and a greater focus on proactively seeking out restoration opportunities.
- The Report’s SPA would require mandatory regional spatial planning. A requirement that these strategies to be consistent with national direction suggests that SNAs and areas earmarked as providing restoration opportunities would be identified, however this is not clear. It is also not clear whether factors such as the time required to identify SNAs and the importance of including the community in this process, and how this would fit with the timing of a regional spatial strategy, have been considered. The SPA process would not limit or cover functions under the Fisheries or Marine Reserves Act, and it does not appear to capture the Conservation or Reserves Act. This raises the question as to whether the spatial strategy produced would adequately and accurately identify biodiversity values present on the ground and potentially impacted by the NBEA. An option for addressing this would be to require regional spatial strategies to identify marine reserves, conservation land etc. but have no impact on the operation of those legislative instruments.
- Changes are proposed to the distribution of functions between regional and territorial authorities. Regional authorities are expressly tasked with overarching, strategic responsibility for the maintenance of biodiversity and the setting of policies to that end. Territorial authorities would not (it appears) retain a specific biodiversity-related function. However, they would retain responsibility for land use controls as they relate to biodiversity with regional authorities tasked with “supporting” the development of such controls.
- The Report examines the resource consent process in depth and recommends a suite of changes. Of those, the one with the most identifiable impact on biodiversity is the proposed change to current s 104 RMA that a consent must not be granted if it is contrary to an environmental limit or binding target. It appears this would have the effect of making identified limits, which include limits relating to biodiversity, ‘bite’ at the resource consent level.