“Almost everyone is frustrated with the Resource Management Act, including environmentalists who believe it has failed its environmental goals. ACT’s proposed Resource Management reforms would simplify and focus resource management law to ensure the health of the air, water and soil, along with biodiversity, are protected alongside strong property rights,” says ACT Environment spokesperson Simon Court.

“A new approach is needed. ACT’s approach would shift management to two laws, an Urban Development Act focused on getting development done in urban areas, and an Environmental Protection Act focused on non-urban areas.

Refocusing regulation on genuine harms

“These laws would be based on five basic principles:

1. Land and the right to peaceably enjoy it belongs to its owner. ACT believes in the fundamental right for people to control and use their land as they wish, as long as it doesn’t infringe on others’ property rights or harm common property (such as rivers). This reflects both Article 2 of Te Tiriti which guarantees tino rangatiratanga to all New Zealanders, and the common law presumption that owners should be able to do what they wish with their land, unless explicitly constrained.

2. Common resources (e.g. lakes, rivers, and fresh air) belong to all, and are managed by democratically-elected local governments. ACT believes in the principle of subsidiarity, in which the communities of the people most directly affected should be the ones in charge of those decisions.

3. Property owners’ legitimate expectations, established through years of law and practice, should be respected. This includes customary rights.

4. Private negotiations and markets are usually a better way to resolve conflicts between property owners and between economic development and environmental protection than rulings from unaccountable officials. If disputes do go to Court, for claimants to have standing they must show that the action will directly affect them or their property economically and/or physically or impede their substantive right.

5. Regulations should be a last resort and only to solve real problems that cannot be solved by private negotiations or markets.

“ACT’s approach is a reversal of the current approach of the Resource Management Act, where regulation is the starting point and property rights are an afterthought. However, ACT believes that focusing regulation on harms to property, including harms to common property such as rivers, lakes, and areas rich in biodiversity, would better focus the regulators on genuine environmental harms.

An Environmental Protection Act

“ACT’s Environmental Protection Act will divide its focus between freshwater management and other discharges into the environment. These two issues differ dramatically in their scope and need to be considered separately.

“Freshwater (dealt with in greater detail in a separate press release) would be managed within minimal environmental limits for takings and discharges. These limits, unlike of the centralised approach taken by Labour, would be set by local communities through their councils. Those with permits to take and discharge would be able to trade their rights, but the total rights could not exceed the limits.

“Discharges to land would be dealt with by a separate regime. Land pollution is largely a private problem because people have every reason not to destroy their own land. However, there are two examples of when regulation is necessary.

“Pollution crossing boundaries needs a response. ACT’s Environmental Protection Act would rely on the tort of nuisance to remedy pollution. Anyone polluting a neighbour’s land could be found strictly liable for damages. This is a much tougher requirement than we currently have, where it is up to council planners rather than actual owners to identify harms to property.

“Long-term, high risk activities such as mining are another area where discharges to land may become an issue for more than the immediate property owner. In this instance, Councils or the central Government Environmental Protection Agency would be able to require bonds be paid to cover any costs of clean up that the operator may later default on.

Preserving biodiversity and property rights

“It is important that New Zealand preserves the remnants of wetlands and areas of significant indigenous bush as a matter of public good. ACT is opposed to the bureaucratic approach of the current Government which effectively seeks to confiscate private land without compensation for public good. The Significant Natural Areas and wetlands proposals by Government are taking private property without any compensation. Across New Zealand there are already models that are working effectively, usually as partnerships between local government, farmers and tangata whenua, such as the QEII Trust or the Kaipara Moana Remediation Programme. ACT will build on this.

“ACT will establish a fund available for local government to allow local government to enter into covenants with landowners to ensure critical wetlands and areas of indigenous bush are protected. Ownership of the land can remain with the landowner, who is also responsible for stock exclusion and pest management, but with financial support from the fund.

Codes of practice for development

“Before the Resource Management Act, New Zealand had a rules-based resource management system. If you followed the rules, you could do it. The RMA shifted to an effects-based system, where you needed a consent based on the presumed effects of your activity.

“Effects based consenting has been extremely expensive. Infrastructure New Zealand estimates that consenting infrastructure costs $1.29 billion per year. This is a major handbrake on the economy that makes New Zealand poorer.

“ACT would introduce a Codes of Practice regime which returns all but the most complex projects to rules based consenting. For example, there are design manuals and standards for building wetlands, sediment, and erosion control, and how to work in water courses. There is even a template for a Bat Management Plan which could be copied and pasted any time large trees need to be removed as part of land development activity.

“Similarly, the placement of standard farming structures (e.g. milking sheds) on already-cleared pastoral land will be exempted. Managing the effects of these developments will rely on Codes of Practice rather than seeking consents for well understood activities.

“ACT’s Environmental Protection Act would go a long way to focusing regulation on real environmental harms, while allowing activities that do not do environmental harm to be carried out faster. It is fresh new thinking to create win-win outcomes for people and the environment.”

ACT's policy document can be found here.

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Simon Court