Our submission to the exposure draft of the NBA Bill

This is our submission to the Select Committee on the exposure draft of the Natural and Built Environments Bill

It was published on 5 August 2021 on the New Zealand Parliament website. View.

The Sustainable Seas National Science Challenge was established in 2014 with the objective of “enhancing utilisation of our marine resources within environmental and biological constraints.” Our research addresses the question of how we can best develop our marine economy, while protecting the taonga of our marine environment? To help achieve this, our research focuses on:

• improving marine resource decision-making and the health of our seas through ecosystem-based management (EBM)
• transforming New Zealand’s ability to enhance our marine economy into a blue economy.

EBM involves managing the marine environment in a holistic and inclusive way. This means that competing uses are managed in a way that does not degrade the marine environment. We have developed seven principles for applying an EBM approach which should be taken into account when developing legislation to protect and manage the natural environment:

• Human activities: Humans, along with their multiple uses and values for the marine environment, are part of the ecosystem
• Collaborative decision-making: Collaborative, co-designed and participatory decision-making processes involve all interested parties
• Knowledge-based: Based on science and mātauranga Māori, and informed by community values and priorities.
• Sustainability: Marine environments, and their values and uses, are safeguarded for future generations
• Adapts: Flexible, adaptive management, promoting appropriate monitoring, and acknowledging uncertainty
• Tailored: Place and time specific, recognising all ecological complexities and connectedness, and addressing cumulative and multiple stressors
• Co-governance: Governance structures that provide for Treaty of Waitangi partnership, tikanga and mātauranga Māori

We are working with government, stakeholders and Māori partners to identify what legal, policy and practice tools are needed for EBM, and which spiritual, cultural and social values matter to New Zealanders – and how they can be best taken into account in marine management decisions. Our work has included consideration of the value of participatory, opportunities-based, and kaitiakitanga-based approaches to management and co-governance.

More information can be found here. 

We have included a report for the Committee in Appendix 1 on recommendations for improving marine management including addressing cumulative effects, dealing with uncertainty, and applying environmental limits and targets in the marine environment. This report was prepared to feed into the review of the RMA undertaken by the Resource Management Review Panel.

VIEW THE REPORT

General Comments on the Natural and Built Environments Bill

We note that the Natural and Built Environments Bill before the Committee is only partial draft which is challenging for submitters to evaluate. We expect that submitters will be able to make submissions on the full draft when it is released later in the year.

1. We are pleased to see an emphasis on Te Oranga o Te Taiao which is consistent with an EBM approach but apart from section 5, this doesn't appear to be reflected in the rest of the Bill. It is also unclear what it means for Te Oranga o Te Taiao to be ‘upheld’ or how we ‘enhance the natural environment’?

Limit setting is unlikely to meet the first objective of the reform to protect, and where necessary, restore the natural environment

1. The Natural and Built Environments Bill needs to be aspirational. Managing to limits is not aspirational and is a very blunt instrument particularly if it is implemented at the national level.
2. The parliamentary paper highlights that the requirement for a buffer has been replaced with the more general ‘precautionary approach’. The fact that the Bill frames limits as the minimum standard acceptable does not reflect a precautionary approach and will make meeting the reform objective to protect, and where necessary, restore the natural environment difficult to achieve especially in the marine environment.
3. Limit setting can result in a race to the bottom and provides justification for further degradation of the environment. Setting minimum environmental limits does not provide any buffer against unknown future threats for which the scale and severity of impact may be unknown. There is a lack of clarity in the Bill as to how other stressors would be taken into account when setting limits (e.g. maximum concentration of nitrogen). We need to build resilience into the system to account for cumulative effects and unknown /unanticipated stressors such as climate change.
4. Limit setting may encourage a universal approach to resource management that undermines the flexibility and values of participatory forms of governance and decision-making, and the need for a place-based approach. As one tool of decision making (environmental and social impact assessment) measures of impacts in relation to the potential of environments to absorb them, calculating limits is helpful. However, as a primary principle of a resource management regime it contradicts the EBM principles of adaptability, collaboration, tailored decisions, and co-governance.
5. We recommend that the Bill move away from limit setting particularly at the national level. However, if this remains in the Bill we recommend:
   1. taking a seas to mountains approach to limit setting
   2. that the process for reviewing and changing environmental limits be flexible and adaptable with clear mechanisms for clawing back activities if necessary
   3. the Bill reflects the need for monitoring and trigger points to ensure that action is taken well before an environment limit is reached given the time lag, especially in the marine environment, for impacts to become apparent
   4. consideration of cumulative effects as a key matter in terms of setting limits at both the national and local level
   5. consideration of downstream impacts and feedback loops to inform limit setting
   6. consideration of ecosystem limits instead of environmental limits.
6. Given limit setting will most likely need to be qualitative (rather than quantitative) and based on judgement, it may be useful to develop a list of criteria or matters that the Minister, or other persons, must take into account.

We cannot achieve the reform objectives without greater recognition of cumulative effects and integration with the marine environment

1. We agree that the case for integration is strong. However, there is little reference to the marine environment and cumulative effects in the Bill and therefore a lack of integration across ecosystems. If this is not a focus in the Bill, we will end up with a system similar to the current situation where the marine environment, which is strongly influenced by land-based activities, is dealt with separately. Without this integration, it is hard to see how environmental outcomes and objectives will be achieved.
2. It is unclear in the Bill how success against certain outcomes will be measured and the levers available to take corrective action for outcomes that are not being achieved. For example, how will setting an environmental outcome to “promote sustainable use of the marine environment” achieve different results compared to the current system (given sustainable use of the marine environment is already a requirement of the RMA) and how will progress against achieving this outcome be measured or addressed?
3. There is a strong likelihood of conflict as many of the outcomes will need to be traded off against each other – what guidance is there for decision-makers about which outcome takes precedence? Te Oranga o te Taiao could provide a guide as to how these decisions should be made.
4. The Bill should explicitly clarify how it will interact with other legislation or policy in the marine area for example the Fisheries Act, the New Zealand Coastal Policy Statement. This is currently a tension between the resource and marine management system that should not be ignored.
5. There is a need to focus on outcomes and targets as often, we don’t know what environmental limits are due to a lack of information. This approach also fits more clearly with the Māori world view, with Te Oranga o te Taiao, and with an approach that encourages participation in development objectives and design and considers opportunities at a local level.
6. In addition, we recommend that:
7. in order to align with the reform objective to protect, and where necessary, restore the natural environment, the outcomes for the marine environment in the draft Bill should include environmental restoration as well as protection
8. the National Planning Framework take a mountains to sea approach, as recommended in the Parliamentary Commissioner for the Environment’s report on estuaries
9. there is greater recognition of the need to manage cumulative effects in the Bill.
10. We agree with the suggestion in the parliamentary paper that it would be useful for the legislation to clarify the importance that management decisions are made with a clear understanding of the values and associations that different people hold in relation to the environment and how these are relevant to particular decisions under consideration. We would recommend that the legislation mandates enhanced local participation in decisions making.

Comments on specific clauses

Clause 3

1. This should include a definition of cumulative effects.
2. Precautionary approach definition is unclear.
3. Definition of a structure – this appears to exclude all structures in the coastal marine area – for example, oil and gas installations and aquaculture farms. Is this intentional?

Clause 5

1. It would better reflect the objectives of the reform if 1(a) included “restoring” after “enhancing”.
2. 2(a) is unclear – what constitutes use? Only that which is consented under the RMA? ‘Not exceed environmental limits’ would be stronger and more aligned with achieving environmental outcomes than ‘comply with’.
3. See previous comments recommending the inclusion of a trigger for action when approaching an environmental limit.
4. 2(b) is unclear – what does promote mean and what is a benefit? This clause could refer to supporting that enhance ecological integrity (which is already defined).
5. This should include cumulative effects in terms of avoiding, remedying and mitigating.

Clause 7

1. This suggests the limits to be proposed can be on the stressor (b) or receptor (a). See previous comments about the need to account for cumulative effects and future unanticipated stressors.
2. There needs to be a standard approach to limit setting included here including the matters to be taken into account, but this approach needs to be flexible in regard to local concerns and invites the participation of affected groups.

Clause 8

1. It is not clear what ‘promoting’ constitutes or how it could be measured. We recommend replacing ‘promoting’ with ‘achieving’ which provides greater certainty that environmental outcomes will be met.
2. The NPF and plans must promote the protection and sustainable use of the marine environment. Sustainable use is an outdated term and approach that only appears to be referenced in the Bill to in relation to the marine environment. We therefore recommend replacing “the protection and sustainable use of the marine environment” with “an ecosystem-based approach to the protection and use of the marine environment”.
3. There is a rule of statutory interpretation that the specific overrides the general meaning that the language in clause 8(n) could trump any broader rules about protecting the environment.

Clause 14

1. The strategic directions here are very important and should be brought forward into the normative provisions or go into the Strategy Planning Act. It is important they are consistent with / aligned with Part 2.

Clause 18

1. The purpose and scope of the implementation principles (or why these are needed) is unclear. To avoid duplication or inconsistency we recommend moving these into Part 2.

Clause 23

1. The Bill includes a number of actions to be undertaken but not who is responsible for them. Under this clause, for example, who is responsible for appointing planning committees?

 

Suggested ideas in the parliamentary paper	Comments / suggestions from Sustainable Seas
Increasing efficiency and reducing complexity in the resource management system
Increased central direction and tools, for example: greater accountability mechanism for councils in exercising governance of their planning functions centralised digital tools and platforms including providing national data sets, standardised methods and models (eg natural hazard data, water allocation) developing controls through national standards where these are more appropriate than bespoke planning controls  (eg silt control for subdivisions and roads) developing template standards that are available for councils to adopt as appropriate standardised methods for assessing significance or determining technical matters (eg the interaction between natural character,  indigenous biodiversity and outstanding natural landscapes).	This seems clearly focused on the terrestrial environment and that to be effective and efficient it needs to have an integrated approach that covers mountains to sea.
Efficiency in NBA plan development and content, for example: streamlined and more flexible consultation requirements for plan development requiring written submissions rather than oral standardised templates for residential zones limiting detailed amenity/urban design rules such as centres policies and business zone restriction setting a minimum enabled development capacity within residential zones (eg under the National Policy Statement for Urban  Development 2020) stricter controls on the use of expert evidence stricter controls on information requirements, including when (RMA section 37 equivalent) requests are used (eg request for further information and time waivers) robust processes for managing complaints greater accountability mechanism for councils in exercising governance of their planning functions.	The NPF could be used as a mechanism to reduce costs if the upfront planning is done effectively and this leads into remitted activities within an overall plan.
Reframing the RMA definition of ‘adverse effects’, including strengthened proportionality requirements for obligations to avoid, remedy or mitigate adverse effects on the environment.
Enabling simplified resource consent processes, for example: limits on the information that can be requested in consent applications deemed permitted activities and less use of discretionary activity status national consenting pathways standardising consent conditions design guidelines and use of urban design panels for medium and high density developments pre-consented model or multiple-use house/townhouse designs enabling better evaluation of the national or regional opportunity costs.	Could also include the use of non-statutory processes. Spatial planning for regions/areas will reduce conflict and hence time involved in consents
Enabling more effective dispute resolution and participation, for example: reviewing the role and processes of the Environment Court and appeal rights in planning and consenting processes simplifying formal first instance processes such as Board of Inquiry, direct referral to Environment Court, and Freshwater Commissioners use of inquisitional rather than adversarial proceedings in forums effective support for iwi, hapū and Māori participation.
Measures to speed up the delivery of infrastructure, for example: removing statutory hurdles to designations and consents classifying specified infrastructure as a ‘controlled’ activity (eg for climate change mitigation and adaptation, to comply with health and safety requirements) streamlining the Public Works Act objections process and designations appeal processes alternative funding mechanisms for infrastructure (wider than development contributions).