Sam Cooper

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LWST302 Essay

Friday 29th July, 2016

In 1991, a large revolution took place in New Zealand’s Resource Management system, with the new

Resource Management Act 1991 replacing the Town and Country Planning Act. This was a significant

change because the Town and Country Planning act had an ‘activities based’ approach, compared

with the Resource Management Act’s ‘effects based’ purposive approach (Rennie, 2011, p. 4). The

key purpose of the RMA legislation is the ‘sustainable management of natural and physical

resources’ (Resource Management Act 1991). The purpose of this essay is to investigate whether the

purpose and principles of the Resource Management Act 1991 actually achieve positive

environmental outcomes that assist and increase people’s well-being, as well as resolving conflict

that the Act has caused since its implementation (Nolan, 2011, pp. 105-118). It will firstly explain the

importance of the purpose and principles of the Act, which is on the whole referred to as the ‘engine

room’ of the Act (Nolan, 2011, p. 105). It will cover the ambiguity issues surrounding the Act,

supported by a case law example in the Northland region in the 1990’s. Finally, the essay will

evaluate how the New Zealand’s Legal system resolves RMA issues, in particular, the purpose and

principles in light of checks and balances.

Part 2 of the Resource Management Act 1991 (Sections 5 – 8) – the purpose and principles – is the

most important part of the Act. It gives the guidance for achieving positive environmental outcomes

through a purposive approach which drives the interpretation of the act, which then enables the

overall well-being of people and communities (Palmer, 1990, p. 93; Dawson, p. 8). The most

important function of Part 2 to consider when making decisions (Dawson, p. 8) is the overall purpose

of the Act (s 5), which is the ‘sustainable management of natural and physical resources’ (Resource

Management Act 1991). Natural and physical resources include land, water, air, soil, as well as plants

and animals (Nolan, 2011, p. 111). This Act’s purpose of sustainable management is significant

because it drives the interpretation and operation of the entire legislation. In reality, sustainable

management is the balancing of social, environmental and economic needs when using natural and

physical resources, with emphasis on protecting the environment in order for all people in society –

present and future – to achieve their social and economic targets. This enables decision-making that

leads to positive environmental outcomes. (Palmer, 1990, p .94). In simpler terms, it means that

natural and physical resources are allowed to be used, but must be used in a way that achieves the

purpose of the Act in s 5 (Nolan, 2011, p. 112). Alternatively, positive environmental outcomes are

also achieved by the formulation of national policy statements and environmental standards, as Part

2 of the Act gives guidance to writers of Regional and District plans all around the country (Palmer,

1990, p. 96). Ultimately, Part 2’s purpose forms the basis for the Environment Court and local

authorities to make decisions (Dawson, p. 8), however, the principles of Part 2 of the Act, ss. 6 – 8,

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need to be carefully considered because they too are crucial to achieving the purpose of the act in s

5 (Palmer, 2013, p. 18).

The principles and relationships of Part 2, ss. 6 – 8 of the Act, are essential to understand because

they are an integral part of achieving the overall purpose of the Act in s 5. The principles cover a

wide variety of affects that are important for district and regional plan writers and decision makers

to consider when making land use decisions relating to the use and development of natural and

physical resources (Nolan, 2011, pp. 126-127). These sets of principles are ‘recognising and providing

for’ matters of national importance (s 6), ‘having particular regard’ for other matters (s 7) and ‘taking

into account’ the principles of the Treaty of Waitangi (s 8) which gives weight to Maori when making

land use decisions (Resource Management Act 1991; Nolan, 2011, p. 149). In terms of the

relationships between functions of ss. 5 – 8, Derek Nolan states that S 6, matters of national

importance, has a greater significance than s 7. He argues that ‘recognising and providing for’

matters significant to New Zealand means doing more than having regard and taking into account,

particularly when the Act deals with resource consents. Therefore, the recognition and inclusion of

the seven matters of national importance such as protection of natural character of the coastal

environment, are very crucial in regional and district plans in achieving s 5’s purpose (Nolan, 2011, p.

127). However, while s 7, isn’t considered as important as s 6, Williams (1997) believes there are

three important matters that should have ‘specific mention’ and be given ‘particular regard’ in

relation to achieving the Act’s purpose. They include Kaitiakitanga (7a), amenity values (7c) and

intrinsic values of ecosystems (7d) (Williams, 1997, p. 88). While the purpose and principles of the

Act are important to understand, many people in society, from communities all the way to Court

judges, have identified insecurities in it. This is mainly ambiguity around interpreting Part 2 of the

Act when implementing new laws and resolving issues. Hence, there have been several amendments

and ‘fiddles’ to the Act since its implementation in 1991 (Palmer, 2013, pp. 17-18).

Since the Act’s implementation in 1991, there has been ambiguity around several issues when

dealing with particular balances of the Act, causing significant confusion when making decisions

around policy, and when granting resource consents (Palmer, 2013, p. 12). Rather troublingly, it has

caused many decisions to be made by the Courts, which slows down the overall process of achieving

positive environmental outcomes, and it is judges who often have the overall final rule of

judgement. One of the many examples of the Act’s confusing interpretation is whether there is need

for balancing between the definition of sustainable management in s 5(2) of the Act – ‘managing the

use, development and protection of natural and physical resources’ (s5), and its following

subsections, (a), (b), (c), which are considered environmental bottom lines (Nolan, pp. 112 – 114).

Problems have arisen in law cases over the years because the meaning of sustainable management

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in s 5(2) is interconnected to its subsections by the term ‘while’, which is seen by New Zealand law

commentators as ‘ambiguous’ (Williams, 1997, p. 75). This ambiguity has made it difficult for

decision makers in Parliament and Councils to measure social and economic aspects versus the

‘physical environmental factors’ in terms of significance, scale and degree (Nolan, 2011, p. 114).

An example of a relatable issue around conflicting values of s 5 which ended up in the Environment

Court is the case Mangakahia Maori Komiti v Northland Region [1996] NZRMA 193. The

Environment Court had to carefully weigh up and balance potential economic benefits for farmers

(5(2)) taking water for irrigation use, against natural character values (2a) of significance to Tangata

Whenua, which was the Mangakahia River. The Judge’s decision was to uphold the granting of the

consent to the farmers in the Northland Region as water levels were deemed appropriate enough to

prolong the consent, considering the potential economic benefits. As a result of cases similar to the

above (related to s 5), it proves that these interpretation issues of the Act are enabling the Courts to

have the final rule of judgement on cases, which leads to the Courts having overall jurisdiction in all

RMA legal decision making in New Zealand (Miller, 2011, pp. 23-24). More alarmingly, the cases are

challenging whether the purpose and principles of the Act are functioning properly in our society.

When any issues surrounding the purpose and principles of the Act arise, they can be resolved

through the three branches of New Zealand’s legal system. These branches are the Executive,

Parliamentary/Legislature and Judiciary, all of which have tensions between them and attributing

checks and balances (Decision Maker, 2003a). Generally, the Parliamentary system creates, and

passes legislation and policy. However, due to Parliament’s many other constraints it faces on a daily

basis, it often requests the Executive Council to carry out functions that recommend new laws. This

is known as ‘delegated legislation’ (The Legislation Design and Advisory Committee, p. 55). The

Executive Council is made up of several Crown Ministers which meet regularly to discuss and

recommend laws to Parliament (The Governor General, 2016). Alternatively, the Executive Council

hears advice from Government departments/agencies. New laws initiated by the Executive can

potentially include the proposing of amendments to the purpose and principles of the Resource

Management Act 1991 (New Zealand Government, 2016; Ministry for the Environment, 2016). An

important aspect of checks and balances in the Executive branch is that all matters discussed in

meetings must remain strictly confidential to all members of the Executive Council in order for it not

to reach the public eye or parliament too early (The Governor General, 2016). Another key aspect of

the checks and balances is that the Executive Council takes measures to ensure that every new law

that Parliament implements is fair, as it is the Parliamentary legal branch that makes the final

decision in implanting new laws or updating them (Decision Maker, 2003).

The Parliament/Legislature branch has the overall power to implement new RMA laws and

legislation in two ways, which aim to achieve positive environmental outcomes, and relate them to

the purpose and principles of the Act. Firstly, as already explained, laws can be made through the

advice of the Executive Council. Secondly, Parliament can make laws through a Bill (which can

include a reform or amendment) that goes through normal legislative and Select committee

processes in Parliament which will be discussed in the House of Representatives as well as the Select

committee. When a bill is sent to the Select committee, members of the public generally have the

chance to make a submission allowing public opinions to be heard at a public hearing (New Zealand

Parliament, 2016). In terms of checks and balances, new laws made in the Parliament branch allow

for the Judiciary to interpret legislation when there is a Court hearing to resolve issues relating to ss.

5 – 8 of Act (Courts of New Zealand, n.d).

The Mangakahia Maori Komiti v Northland Region [1996] NZRMA 193 case law example explained

earlier in this essay serves as a real life example as to how the Judiciary (Courts) resolve ambiguity

issues by attempting to correctly interpret the Act’s purpose as well as the principles. Resource

Consents are the most common cases that end up in the Courts, as councils are unable decide the

outcome of a consent due to a ‘conflict of interest’ of aspects in the Act, which requires a Judge to

review, and interpret the purpose and principles (ss. 5 – 8), which often leads to amendments to the

Act. This will determine the overall fate of the consent which attempts to produce positive

environmental outcomes (Ministry for the Environment, 2016a; Nolan, 2011, p. 55). Checks and

balances in the Judiciary branch are reflected when judges find that the Government has breached

the law, and are then able to take the required precautions to amend the situation (Decision Maker,

2003a). Rivers-McCombs (2011) argues that the Judiciary system has total control over the rest of

the other two branches. This can be seen as unfair because it threatens principles of the Doctrine of

the separation of the three branches, which enable checks and balances to function between the

branches. If one branch dominates over another, in this case the Courts, it goes against the rule of

law, and influences the Act more than any other branch (Rivers-McCombs, 2011, pp. 52-53).

Overall, it is significantly important for all of New Zealand’s society to understand the purpose and

principles of the Act when making, or reviewing any decision surrounding land use, particularly in

the form of a consent in order to achieve positive environmental outcomes. It is the concept of

‘sustainable management’ that is important to refer to when reading the Act. The Act’s

implementation has caused tremendous complexity, illustrated by confusions in interpreting the

wording of ss. 5 – 8. There will always be winners and losers when dealing with the Act’s purpose

and principles, as the Court often has the final say on many policy and planning decisions, which go

against the nature of checks and balances of the three legal branches. As a result, New Zealand’s

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legal branches cannot accurately resolve issues surrounding the purpose and principles of the Act,

which will give New Zealanders the environmental outcomes they want (Rivers-McCombs, 2011, pp.

52 – 53; Nolan, 2011, pp. 105 - 127).

Note: In this essay, the word ‘Act’, is referred to as the Resource Management Act 1991 at all times.

References

Courts of New Zealand. (n.d). The Relationship Between Courts and Other Branches of Government. Retrieved on July 25, 2016, from https://www.courtsofnz.govt.nz/about/system/role/government

Dawson, A. (2013). How to Defend (and Attack) the Resource Management Act: The Principled Consequences of Reducing Public Participation in Environmental Decision-Making. (otago site)

Decision Maker. (2003). Checks and Balances. Retrieved on July 23, 2016, from http://decisionmaker.co.nz/guide2003/hlw/checks&balances.html

Decision Maker. (2003a). How it all fits together. Retrieved July 23, 2016, from http://decisionmaker.co.nz/guide2003/tbp/howitfits.html

Mangakahia Maori Komiti v Northland Region [1996] NZRMA 193

Miller, C. (2011). Implementing Sustainability: The New Zealand Experience. NY, Routledge.

Milligan, J & Turley, D. (1998). Resource Management Act: Emergent Themes and available techniques. No publication details.

Ministry for the Environment. (2016, March 17). About the resource management reforms. Retrieved on July 28, 2016, from http://www.mfe.govt.nz/rma/rma-reforms-and-amendments/about-resource-management-reforms

Ministry for the Environment. (2016a). An everyday guide: Applying for a resource consent. Retrieved on July 27, 2016, from http://www.mfe.govt.nz/publications/fresh-water/everyday-guide-applying-resource-consent/everyday-guide-applying-resource

New Zealand Government. (2016). How Government Works. Retrieved on July 24, 2016, from https://www.govt.nz/browse/engaging-with-government/government-in-new-zealand/

New Zealand Parliament. (2016). How a Bill Becomes Law. Retrieved on July 25, 2016, from https://www.parliament.nz/en/visit-and-learn/how-parliament-works/how-laws-are-made/how-a-bill-becomes-law/

Nolan, D. (2011). Environmental and Resource Management Law (4th ed). Wellington, New Zealand, LexisNexis NZ Limited

Palmer, G. (2013). The Resource Management Act – How we got it and what changes are being made to it: Address to Resource Management Law Association Devon Hotel, New Plymouth, 27 September 2013.

Palmer. (1990). Environmental Politics: A Greenprint for New Zealand. Dunedin, New Zealand, John Mclndoe.

Resource Management Act 1991

Rennie, H. (2011). Effects-Based Planning and Property Rights: Reflections on New Zealand’s Resource Management Act.

Rivers-McCombs, S. (2011). Planning in Wonderland: The RMA, Local Democracy and the Rule of Law. New Zealand Journal of Public and International Law, 9(1), 43-83. Retrieved on July 29, from

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http://www.victoria.ac.nz/law/centres/nzcpl/publications/nz-journal-of-public-and-international-law/previous-issues/volume-91,-june-2011/Rivers-McCombs.pdf

The Governor General. (2016). The Executive Council. Retrieved on July 23, 2016, from https://gg.govt.nz/content/executive-council

The Legislation Design and Advisory Committee. (2015). Delegating law-making powers to the executive. Retrieved on July 27, from http://www.ldac.org.nz/assets/documents/13.-Delegating-law-making-powers-to-the-executive.pdf

Williams, D. (1997). Environmental Management and Law (2nd Ed). Wellington, New Zealand, Butterworths.

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