Resource management reform milestone – Environment Committee reports on NBA exposure draft

2 November 2021

A key milestone has been reached in the Government’s programmed resource management law reforms. Yesterday, the Environment Committee released its report on the exposure draft of the Natural and Built Environments Act (NBA).

The report is the Committee’s first opportunity to comment on the NBA – and the public’s first opportunity to get a glimpse of potential changes to the NBA before the full text of the bill is introduced to the House in late 2021 or early 2022.

In summary, the report recommends the elevation of both environmental limits and built environment considerations, while continuing to defer resolution of the tension between these potentially competing outcomes into the National Planning Framework (NPF) and Natural and Built Environment plans (NBE plans), which are to be prepared by central and local government after the passing of the NBA.

The report also makes a number of other recommendations, particularly relating to the role of Māori in the new system.

Environmental limits have priority

One criticism of the current resource management system is that environmental limits or “bottom lines” are either non-existent or optional. The NBA exposure draft requires the introduction of mandatory environmental limits to protect the ecological integrity of the natural environment and/or human health across six areas – air, biodiversity, coastal waters, estuaries, freshwater and soil – in order to strengthen the protection of the natural environment under the new system.

The Environment Committee’s report supports the introduction of environmental limits and recommends a range of amendments to further strengthen their role in the NBA.

These include:

  • Amending the purpose clause to clarify that environmental limits have priority, and are not subject to other goals related to wellbeing.
  • More clearly stating that environmental limits can only be set for the purposes of protecting the ecological integrity of the natural environment and/or protecting human health, and should not be extended to other values such as culture or landscape.
  • Enabling limits for other matters to be set by the Minister in the NPF, or local councils in NBE plans.
  • Imposing a duty on persons acting under the NBA to comply with environmental limits.

A number of further matters regarding environmental limits will be deferred to the NPF or NBE plans, including transitional limits, criteria for decision makers to consider when setting limits, and the decision on whether to set limits at a national or regional level.

But enabling development in the built environment is also key

In addition to a range of recommendations to more clearly prioritise and strengthen environmental limits, the Environment Committee has also recommended amendments to place a greater emphasis on the ability to develop the built environment.

These include:

  • Amending the purpose clause to give more prominence to the built environment, so that the purpose is more clearly linked to the outcomes for housing, infrastructure, and cultural heritage in relation to the built environment.
  • Amending the purpose clause to better reflect the dual goal of enabling development within the parameters of environmental limits, alongside protecting and restoring the natural environment.
  • Clarifying that the intention to protect and restore the natural environment is to be achieved “overall” through the NPF and NBEA plans, rather than as a requirement of every consent.

Importantly, the Committee’s report recommends that the Government consider whether the NBA should include exceptions to environmental limits for “justified” matters – in particular infrastructure. The report does not clarify how these exceptions would be framed or where they would reside in the system, but it is suggested that the exceptions could be included in the NPF.

Resolving the potential conflicts

The resolution (or lack thereof) of potential conflicts between protecting and restoring the natural environment and enabling development has been a key focus of discussion amongst resource management practitioners and in submissions on the NBA exposure draft.

The Environment Committee’s report acknowledges this tension between potentially competing outcomes and that it will need to be resolved, but recommends that this be resolved in the NPF and NBE plans, rather than confronted head-on in the NBA.

Unhelpfully for participants in the system seeking clearer guidance now, the report:

  • Confirms that there is no hierarchy between the outcomes stated in the NBA exposure draft, although these can be consolidated into 13 outcomes rather than 16.
  • Recommends that while the NBA should provide some direction on how conflicts should be resolved, such as procedural requirements and a direction that “policies that achieve synergies between outcomes are to be preferred over those that achieve one at the expense of another”, the actual resolution of conflicts should occur at the NPF and NBE plans stage.

As outlined above, this is consistent with a wider trend in the Environment Committee’s report, which is that a significant amount of the important detail of how the NBA will operate and be implemented will be deferred to the NPF and NBE plans. This leaves key issues largely unanswered and uncertain, such as the pathways for infrastructure and housing development which may impact on environmental limits.

Other recommendations, particularly relating to Māori

In addition to these two themes of elevating environmental limits and development of the built environment, the Environment Committee’s report makes a number of other recommendations that particularly relate to the role of Māori in the new system:

  • The NBA should be more directive. For example, the purpose of the NBA should “require” rather than “enable” Te Oranga o te Taiao – defined in the NBA as incorporating the health of the natural environment, the interrelationship between all New Zealanders and the natural environment, the interconnectedness of the natural environment, and the essential relationship between the health of the natural environment and its capacity to sustain life – to be upheld, and “require” or “provide for” rather than “promote” or “enable” environmental outcomes and the protection of the natural environment. Further direction should also be included throughout the NBA on how to uphold Te Oranga o te Taiao and give effect to the principles of Te Tiriti o Waitangi / The Treaty of Waitangi.
  • More work is required to provide the detail for successful implementation. Further work with iwi and Māori is required to clarify local government’s role in upholding Te Tiriti partnership, and the bodies through which partnership can be given effect to, for example national and regional co-governance bodies or mana whakahaere councils.
  • References to Māori need to be clarified. The report acknowledges that there are many references to different descriptors in the NBA exposure draft, such as “iwi and hapū”, “Māori”, and “mana whenua”. Further conversations are needed to establish the correct terminology, keeping in mind that different parts of the NBA will reflect different contexts and functions.
  • The Government should consider provisions preserving the issue of Māori rights and interests in freshwater. Numerous submissions suggested that resource management reforms cannot proceed without addressing the issue of Māori rights and interests in freshwater, or that these should not be precluded by the reforms. The report recommends that the Government consider including in the NBA, either a preservation provision to clarify that the NBA would not affect the rights and interests in natural resources, including freshwater, or a set of principles to develop policy objectives relating to natural resources, including freshwater governance, management, and allocation.
Next steps

Cabinet will now consider the Environment Committee’s recommendations before introducing the full text of the NBA bill into the House later this year or in early 2022. There will then be a second, full, Select Committee submission and hearing process.

You can read our previous update on the reform process here.

If you have any questions about the matters raised in this article, or you would like to speak to us about preparing a submission on the full NBA bill when it is introduced, please get in touch with the contacts listed or your usual Bell Gully adviser.

Disclaimer: This publication is necessarily brief and general in nature. You should seek professional advice before taking any action in relation to the matters dealt with in this publication.