Bruce Malcolm of the Resource Users Association of New Zealand ( RUANZ ) analyses the Resource Management Act 1991 (RMA), and implications for landowners in its implementation by Regional and District Councils - in an address to the Hurunui District SNA group, at Waipara, North Canterbury. There are considerable negative implications in not only the Act itself, but in the Regional and District (Environmental) Plans that are made under it, that have seriously negative consequences for rural landowners, especially pastoral farmers.

Resource users of New Zealand, pastoral farmers and forest owners in particular, for their own protection, need to become better informed about this Act. They should purchase a copy and read it, and amendments to it, and Council Plans made under it. They are strongly advised to network about these matters. If what you read below has implications for you, contact Bruce Malcolm or Brian Swale.


As a separate, but related issue, rural resource owners in New Zealand should be aware that the Department of Conservation, and some environmental NGOs (the Royal New Zealand Forest and Bird Protection Society of New Zealand (Forest & Bird) in particular), are using the provisions of the RMA and other Acts in ways that treat legitimate landowners as if they are interlopers in their own country, rather than being an essential part of the community and society as a whole, and part of the ecosystem. It appears that the Ministry for the Environment staff who are putting up amendments to the Act do not understand the implications of what they are doing. One could be excused for suspecting that there is a covert plan being put into place to severely dis-empower rural resource owners and divest them of the exercise of their ownership and capital assets.



    RESOURCE USERS ASSOCIATION NZ INC
    ADDRESS TO HURUNUI SNA GROUP
      12th DECEMBER 2000

        Bruce R. Malcolm



RESOURCE USERS ASSOCIATION NZ INC
ADDRESS TO HURUNUI SNA GROUP


12th DECEMBER 2000

INTRODUCTION

The 'Framework' Act

The Resource Management Act 1991 (RMA) was introduced by Sir Geoffrey Palmer as a "framework for resource management".

This 'framework' aspect is the feature which inspired Sir Geoffrey to also say that it "is the largest law reform of its kind in the country's history".

It is essential to have a clear understanding as to the nature and impact of this novel 'law reform'.

ESTABLISHMENT OF CONTROL BY REGIONAL AND DISTRICT COUNCILS

As a 'framework', the RMA enables councils to take authoritarian control over widespread unspecified activities and uses, without any basis of legal justification.

This control is established at the commencement of the Act (Section 2 - Definitions ) where five 'activity' categories are introduced with a description of statutory limitations applicable to each.

They are:-
  • permitted
  • controlled
  • discretionary
  • non-complying
  • prohibited
The choice of category for any particular activity or use is entirely at the discretion of each council. This means that councils are given, through the RMA, complete freedom to impose an almost unlimited control and range of conditions.

These Section 2 activity categories are not referenced or made subject to those sections of the Act which place councils under a degree of accountability in the drafting of Plans.

For instance; council application of each 'activity category' should be subject to the prior identification of the specific 'actual or potential effects' as stipulated in Section 30(1 )(b) and Section 31(b). This restriction to be cross-referenced in Sections 30 and 31.

Note that the duties of Section 32 are introduced with an excellent example of a valuable constraint in sub-section (1) which states...... "In achieving the purpose of this Act, before adopting any objective, policy, rule, or other method in relation to any function described in subsection (2), any person described in that subsection shall have regard to- etc"]

It is this restriction which gives substance to challenges under Section 32.


Not only do councils enjoy unchecked discretion in the. selection and control of 'activities', but the 'FOURTH SCHEDULE' [Assessment of Effects on the Environment] of the RMA gives council Plans etc., a higher level of authority than the Act in matters demanded of consent applicants and required under the 4th Schedule.

To illustrate, clauses I and 2 commence as follows .... "Subject to the provisions of any policy statement or plan, etc ~

This opens an opportunity for councils to exercise a broad discretion to base their authority on 'activities', and transfer responsibility for the identification of 'effects' to consent applicants.

The foregoing explanation is not a full treatise on all the 'discretion' (in favour of councils) which can be found in the Act; but it does set a foundation upon which ....

A. The drafting of council plans can be critically assessed and,

B. The adequacy of the RMA in controlling abuse of council DISCRETIONARY privilege can be measured.


PARLIAMENT'S INTENTlON

In view of the contradictory position adopted in most council plans as against what was prescribed by Sir Geoffrey Palmer when he presented the RM Bill to Parliament in December 1989, the following is a summary of the main points of that prescription, as recorded in Hansard:

  1. "It enables people to find out their rights and obligations. That, in itself, is an innovation. Another important change is the reference to uses of land being permitted unless they contravene a plan. That not only gives greater certainty to landowners BUT IT IS INTENDED TO MAKE PLANNING AUTHORITIES MUCH MORE SPECIFIC ABOUT THE SCOPE OF CONTROLS THEY MIGHT IMPOSE, AND THE REASONS FOR THOSE CONTROLS"
  2. "They will be concerned first and foremost- about the EFFECTS of activities. Any controls over activities will need to be justifiable in terms of environmental standards .....
  3. "By shifting the focus from the means (i.e. activities) to the environmental ends (i.e. effects) of resource management the Bill aims to minimise abuse environmental effects.
  4. ... "the Bill will significantly reduce the abuse of private rights previously experienced, ....."
  5. "No landowner will lose rights held in present, and some will be given increased protection."

[ These above-mentioned matters raise essential legal considerations which Sir Geoffrey Palmer, as a specialist constitutional lawyer, would recognize as indispensable to the law drafting operations of planning authorities. ]

NEITHER THE RM BILL nor THE RM ACT were drafted to ensure that any of the above 5 PROMISES were delivered, or alternatively protected by mandatory obligation on councils.

The most charitable observation I can make is that Sir Geoffrey Palmer must have been fervently hoping that councils would 'oblige' by addressing the omissions of the RMA when drafting their Plans.

As a result of Parliamentary devolution of legislative power through this 'framework' Act, councils have been left with the responsibility to define a prima facie case for each 'issue'. (Prima facie means here "evidence strong enough to establish a fact without further proof".)

Note: if councils fail in this responsibility, controls will be on a 'totalitarian' foundation.

PLANS as evaluated against COUNCIL PERFORMANCE

The explanations under this heading are the result of an 8 year intensive commitment to the 'submission' process, relating to Waikato Regional Council documents, and the information now reproduced is drawn from a variety of 'submissions'. It is reasonable to believe that Plans being prepared throughout New Zealand will reveal similar characteristics.

The Introductory Base' upon which 'Plans' are Drafted ,...

1.     ISSUES (i.e. environmental problems] These are required by 'mandatory' direction of Section 67(1) (for regions) and S.75(1) (for districts) of the RMA with the words...... "shall state"-

2.     EFFECTS - These are a 'functional' requirement under Section 30(1)(b) RMA The instruction is not in 'mandatory' legal language.

3.     SECTION 32 COMPLIANCE - The required 'duties' are mandatory, but there is a degree of flexibility in the manner in which councils comply. A challenge of any objective, or rule maybe made 'in the submission process'.

4.     OBJECTIVES - 'Mandatory' as in I. above.

5.     POLICIES - 'Mandatory' as in I. above.

6.     METHODS - 'Mandatory' as in I. above; includes RULES.

Although not part of the Section 67 and Section 75 mandatory sequence, items 2 ('effects') and 3 ('S. 32 compliance") are placed in the administration order to which I believe they have been assigned by the RMA.

'Effects' should be identified with the 'Issues'.   [If there are no 'effects' there are no 'issues'.]

This is essential to give Plans the much lauded 'effects base' and enable councils to provide 'prima facie' cases to justify possible control.

'S. 32 Compliance' duties are required, by the RMA, to be carried out before... "adopting any objective, policy, rule, or other method".

Both items I and 2. can only be meaningfully operative on the basis of 'specificity in 'issue' identification. [ not through 'generalisations' as is the case with the Waikato Regional Plan]

In this Council's Plan (the Waikato Regional Council) ....
  • 'lip-service' (only) is paid to 'effects'. In substance, The Plan not only takes an 'iron' grip over 'activities/uses' but also establishes an autocratic, all-embracing general authority over 'resources'. This is outside council brief; under the Act, which is to deal with 'issues' (i.e. problems). And is, of course, ULTRA VIRES.
  • Section 32 compliance has not, and cannot be performed unless the 'issues' are individualized. For instance ... how can the 'alternative means' of S32(1)(a)(iii) be considered when all 'resources' have been brought under council legislative control, leaving nothing more to be considered? And, how can 'the likely benefits and costs of the principal means' be calculated when any 'means' are lost in the generalised non-specific 'resources'?
The above two matters accurately explain why the Council Plan does not fulfil Sir Geoffrey Palmer's promises and why it will never be anything else but a TOTALITARIAN document.

The 'Water' section of the Plan is covered by one 'higher order issue' in seven parts of generalised propositions / assumptions which may or may not point to environmental problems This is called the 'generic' approach and further reveals the undemocratic intent in the drafting of the Plan.

[Also, some 'objectives' in the 'Land' section are linked to the 'higher order' generic master 'Water' 'objective]

The Plan advises that 'ground water management' is addressed 'at the 'policy', 'methods', and 'rule' levels'. This means there is no 'ISSUE' or 'OBJECTIVE' and that there is no stated justifiable environmental issue to address. In spite of this, 'rules and conditions' will be imposed simply because the Council perceives a 'resource' over which it cannot resist controlling!

Objectives that read as follows ..

"Net improvement of water quality";
"Net reduction in the adverse effects";
"An increase in the quantity and quality" ...

indicate that the Plan is directed at managing 'quality' instead of addressing the 'effects of activities' which affect quality.

Following a logical intelligible sequence from 'issues' through to 'methods' is impossible. 'Generalisation' makes sure of this.

In the matter of 'contaminants' the Plan 'sports' a rule to cover all contaminant situations which are 'not permitted by any rule'. This 'cover-all' rule is directly taken from Section 15 of the RMA and consequently embraces the very wide non-specific definition of 'contaminants' in Section 2 of the RMA for use in Council enforcement, These omitted and/or unknown contamination matters are taken under Council control as 'Discretionary Activities' ('requiring resource consents')

Needless to say, this practice is ULTRA VIRES. (Ultra vires means here "exceeding the legal powers of the court, etc.". In other words they don't have the legal power to do what they are atttempting to do.)

If by-passing the requirements of the Act in this manner is left unchallenged there will be NO POINT IN HAVING PLANS AT ALL.

Indeed, if this and other 'generalising' practices are to be condoned, there is no reason why large areas of the Resource Management Act should not be placed in bulk under 'Discretionary Activity' control.

This type of control has already been established. It is just obscured in a welter of written words, and further concealed in meaningless consultation.

In any event, the 'sustainable management' process of Section 5 of the RMA is A FOCUS on PROBLEM SOLVING, NOT RULE MAKING. The Plan in question contains rules which erroneously focus on methods for achieving environmental standards with no relevancy to predetermined 'effects'.

In almost every case where the Plan states a 'Controlled Activity RULE' there are matters over which the Council "reserves control". Included in these 'matters' is a frequently repeated obligation for resource consent applicants to identify and address 'EFFECTS' These should have been identified, by the Council, at the outset of the management process.

This situation is certain evidence that the Plan IS NOT EFFECTS BASED [Note: the responsibility, with costs is transferred to the consent applicant ! ]

STAFF ADVICE and RECOMMENDATIONS to its COUNCIL

Councils administer with almost total reliance on the experience of staff and the direction senior management recommend. For this reason, 'Staff Reports' etc, are usually an accurate presentation of Council policy and the rationale behind decision-making.

In my experience the Staff are usually very sensitive in protecting a position where, through delegated authority, they can exercise unfettered power. The following circumstance is worth repeating .....
  • "Along with other submitters we requested 'baseline' data from which any 'effect' is measured.

    Included in the Staff response was a comment that some of the data was in other unpublished technical information" and, .. "In areas where baseline data was not available scientific information and observation strongly supports the concIusions that are reflected in the individual objectives, policies and methods in the Plan". All that this explains is that ... on the one hand 'baseline data' is available; and on the other there can be a lack of baseline data."

  • The reason for these contradictory remarks is found in another 'Staff Report' where we discover the Staff introducing 'effects' at the 'rule-making' stage, for the purpose of setting 'THRESHOLDS' between 'rules' in order to control 'activities'.

    It is stated that these 'thresholds' can be based "on professional judgement (i.e Staff opinion !) rather than a scientifically defensible threshold". [ Who needs baseline data when staff opinion is available ? ]

  • This change in the administrative use of 'effects' is not surprising in view of the fact that the Plan is designed to control 'resources' rather than address environmental problems.

  • Relying on a Court ruling in an isolated case, 'professional judgement' (i.e. staff opinion) is claimed to be preferred to 'proof' and that the 'standard of proof is not relevant'!
Council Powers - As regulations were promulgated at the end of 1999, becoming effective from 1st February 2000, it is of interest that councils can now exercise 'JUDICIAL' authority in the form of 'instant fines'.

Section 343(c) of the RMA states

"Where an enforcement officer observes a person committing an infringement offence, or has reasonable cause to believe such an offence is being or has been committed by that person, an infringement notice in respect of that offence may be served on that person".

This judicial function is, by delegated authority, in the hands of a council staff member and his delegated power can be exercised on the basis of SUSPICION only! Let's trust that the officer is having 'a reasonable day' when he/she is required to make 'a reasonable decision'.

Note: Councils now enjoy all 3 branches of government ... i.e. administrative, legislative and judicial.

RESOURCE MANAGEMENT AMENDMENT BILL 1999

'The EFFECTS base Principle'

The RMA, at present, contains a 'catch-all' activity section, Section 76(4)(e) which reads as follows .. "A rule may require a resource consent to be obtained for any activity not specifically referred to in the plan".

In the 'Proposals for Amendment' (released in November 1998) the Ministry for the Environment explained that "The deletion of section 76(4)(e) will help ensure that district plans are focussed on effects," and further...

"If section 76(4)(e) was repealed it would have little impact on effect-based plans - a catch-all rule is not usually needed for these types of plans."

And so, Section 76(4)(e) is to be repealed by the Proposed Amendment Bill. There will be widespread approval for this action, especially from submitters who have sought in vain to persuade councils to produce 'Effects Based' Plans.

In view of the above-mentioned official concern regarding 'effects-based plans' why does the Bill remove the following function in an amendment to Section 30(I)(b)? ....
  • "The preparation of objectives and policies in relation to any actual or potential effects of the use etc...."
And why does the Bill sacrifice the following matter in repealing the 'Second Schedule' of the RMA?
  • "Setting objectives and policies for any actual or potential effects of any use, development, or protection of kind described in section 9 which are of regional significance ".
These changes have more than just the potential to destroy all hope of having 'effects-based' Plans.

In addition, provision has been made, in the Bill, for an activity category called "Certain activities to be treated as discretionary activities and prohibited".

At the initial discussion stage, these activities were called 'Innominate' (i.e. having no name; not yet identified; unknown). Councils are given such wide discretionary power it would appear that this 'Innominate' category is a replacement for Section 76(4)(e). (Note: I understand that the wording in the Bill does not accurately explain the intention behind the amendment. It will need to be clarified before the legal profession have to address it! ]

National Policy Statements (NPS) and National Environment Standards (NES)

The Amendment Bill contains provisions which will require local authorities to amend 'regional policy statements' and 'plans' to conform with NPSs to remove any 'inconsistency or conflict' between the national and local statements.
Similarly, to insert rules in plans or amend policy statements and plans to conform with NES regulations.

These 'statements' and 'standards' will not be subject to the same public scrutiny process as are council plans etc.

It appears to me that through these National documents the Government will be able to impose the same type of regulatory controls as do councils;   without   providing   justifying   proof.


Bruce R Malcolm,
President
RUANZ
12th December 2000
If you have any enquiries regarding the content of this article, please contact:

Bruce R Malcolm, here, at glenhillfarm@xtra.co.nz
Tel: +64 03 577 5998