Our purpose is to preserve New Zealand's whitewater resources and enhance opportunities to enjoy them safely.

Submission on the Resource Management Amendment Bill 1999

Introduction
CLAUSE 2 - Definitions of environment, amenity values and working days
CLAUSES 13 AND 34 - Contestability of resource consent processing
CLAUSES 10 AND 15 - Commissioner hearings
CLAUSES 39 AND 52 - Direct referral of consent applications to the Environment Court
CLAUSES 37 AND 92 - Further information requests
CLAUSE 92 - Fourth schedule
CLAUSES 2 AND 102 - Consent categories
CLAUSE 9 - Limiting the effect of a proposed plan
CLAUSES 2 AND 37 - Notification of resource consent applications
CLAUSE 41 - Making decisions on resouce consents
CLAUSE 43 - Bonds
CLAUSE 47 - Cancellation of consents
CLAUSE 91 - Second schedule
Additional amendments requested:
Redefinition of control functions
CLAUSE 22 - Redefinition of policy functions
CLAUSES 19 and 21 - National policy statements
Conclusion

New Zealand Recreational Canoeing Association
PO Box 284
WELLINGTON

28/9/99

David Bagnell
Clerk of the Committee
Transport and Environment Select Committee
Parliament Buildings
Wellington

SUBMISSION: RESOURCE MANAGEMENT AMENDMENT BILL 1999

Introduction

The New Zealand Recreational Canoeing Association (hereinafter NZRCA) is the national representative Organisation of canoe clubs throughout New Zealand. The NZRCA is an incorporated society and is affiliated to the New Zealand Canoe Federation which in turn is affiliated to the International Canoe Federation.

Currently there are 20 member clubs with a membership of over 1000. Since the 1950's the NZRCA ( then know as the New Zealand Canoeing Association) has represented the interests of white water canoeists and kayakers (referred to collectively as "canoeists"). The total number of canoeists in New Zealand greatly exceeds the number of members of the NZRCA and the numbers are continuing to increase. Outdoor recreation programs at polytechnics along with many high schools and outdoor education centres now all include canoeing in the syllabus.

The NZRCA is committed to long-term sustainable management of New Zealand's water resources. The Association is a nationally recognised body that has continued to be actively and constructively involved in resource management processes.

All members of the executive of the NZRCA are volunteers. The work and time they put in reflects their ongoing enjoyment of canoeing and their commitment to preserving New Zealand's white water resources for future generations.

Submissions:

Please note that we wish to be heard in respect of these submissions.

CLAUSE 2 - Definitions of environment, amenity values and working days

In terms of the definition of 'environment,' the NZRCA does not oppose the removal of 'social, economic and aesthetic conditions'. The retention of 'amenity values' in the definition of environment' is considered important. Issues about how 'amenity values' are defined are discussed below.

The term 'amenity values' is critical in giving expression to those tangible and intangible attributes that people often value. Recreation values fall within the scope of 'amenity' and should be considered in all resource management processes.

The proposed deletion of 'aesthetic coherence' from the definition is therefore opposed, given the potential adverse effect of aesthetically incoherent views on the natural experience that many canoeists currently enjoy on New Zealand's lakes and rivers.

The NZRCA strongly supports the retention of recreational attributes in the definition of 'amenity values'. The NZRCA opposes the deletion of 'aesthetic coherence'.

The NZRCA opposes the changed definition of working day. The Pre Christmas/New Year period is a traditional festival period, peak season for New Zealand's river users, and a time when it can be very difficult to coordinate the necessary phone conferences, expert advice, etc., needed to establish organisational positions on resource management decisions.

CLAUSES 13 AND 34 - Contestability of resource consent processing

This proposal would not result in the best outcome for the environment and the community. With contestable resource consent processing there will be a major loss in the quality of the decision making process and the subsequent decisions.

At present councils have productive ongoing relationships with submitters and applicants. The benefits from these continuing relationships will be lost if contestable resource consent processing is introduced. Submitters such as the NZRCA have good relationships with a number of councils which enhances the efficiency of the resource consent process. If the resource consent processor was constantly a different organisation, however, it would make it more difficult and confusing for the general public to make contact and provide relevant information in respect of resource consents.

Councils have also compiled a lot of environmental knowledge and information in performing the following activities:

  • processing and monitoring resource consents
  • policy and plan investigation, development and implementation
  • design and implementation of state of the environment monitoring and reporting.

The integration of this effort is considered crucial to high quality environmental decision making. Every council's accumulated knowledge resulting from the above responsibilities is considered beneficial to the efficient and well-informed processing of resource consents.

To have various private organisations processing consents would compromise the effective use of the 'information banks' that councils currently hold and maintain. Extra effort would be needed for private consent processors to acquire the knowledge and understanding of resource management issues within each council area. Private resource consent processors will compromise the effective use of state of the environment (SER) monitoring and reporting results.

Not only would private consent processors be less able to benefit from the information banks and good will that councils have accumulated, but competition between consent processors is likely to ensure that information will not be shared between them. The limited availability of relevant information to consent processors can only lead to decisions that are not in the best interests of sustainable management.

The NZRCA has considerable experience as a submitter in resource consent processes. Both the Association and local canoe clubs' experience of consent processing by councils has been mostly positive, with council officers assisting in the provision of information from the applicant as it comes to hand. These officers are clearly accountable to their managers, and councillors, and eventually the ratepayers. Any concerns about failure to deliver and/or impartiality can be appropriately addressed. The amendment proposals potentially compromise the support and communication received from councils.

A further concern is the uncertainty as to what will happen to facilitated resource consents in a contestable environment. In the NZRCA's experience facilitated consents are successful and productive and produce results that please the parties concerned and avoid otherwise inevitable time and cost of litigation.

While it is acknowledged that there are legal guidelines in respect of the notification of consents, the NZRCA is concerned that there has always been a grey zone in the interpretation of this area and that this could lead to increased non notification by private consent processors seeking to produce results faster. Reducing community input in this manner will not lead to the best results for the environment. Please refer to the NZRCA's submissions on Clauses 2 and 37 (notification), that follow.

There are alternative ways of improving the efficiency of resource consent processing. For example the Ministry for the Environment could provide to councils non-statutory guidelines to encourage better practice and provide audits to support this purpose.

The NZRCA is therefore strongly opposed to the introduction of contestable resource consent processing. It would not lead to the best results for the environment. There is a strong possibility that it will not lead to greater efficiency. There are alternatives for improving the efficiency of resource consent processing. Overall the NZRCA is concerned that this aspect of the amendment proposal would result in a negative outcome for the environment, and the community seeking to participate in environmental decision-making.

CLAUSES 10 AND 15 - Commisioner hearings

Putting issues in their regional context is vital to achieving the best results under the RMA, therefore, if commissioners are to be introduced it should be in a form that allows for this fact.

The current situation where commissioners are appointed when appropriate works well. Considering the disadvantages of the proposal there is no need to alter the status quo.

There are other alternatives to achieving an improved decision making process. For example the Ministry for the Environment could provide guidelines for better practice and support audits of council performance in the management of hearings.

Furthermore the costs of the commissioner should not be charged to submitters. The direct result of this would be to discourage public participation, and would therefore be contrary to the spirit and intent of the Act, and counterproductive in determining the best results for the environment. The NZRCA is therefore strongly opposed to this amendment.

CLAUSES 39 AND 52 - Direct referral of consent applications to the Environment Court

Allowing direct referral to the Environment Court will have a similar effect to increasing the formality of council hearings. Submitting parties such as member clubs of the NZRCA with relevant information and opinions will effectively be prevented from taking part due to the increased cost and inapproachability of the process. If this is the case decisions will be made in the Environment Court without the necessary effects information and significantly limit the quality of resource management outcomes..

Another important function that is carried out at council level is the refining of contentious issues. If this step is missed out a disproportionately large amount of time and resources will be wasted at the Environment Court sorting out matters that have been concluded more quickly and cheaply at the council level.

The amendment proposal may also deter use of negotiated processes. The NZRCA has a very positive experience of negotiated consent application, facilitated resource consents and renewal processes, where the Association has been able to participate in a meaningful, successful and productive capacity. Examples include the renewal of ECNZ's consents for the Waitaki, Mangahao and Waikaremoana hydroelectric structures, where effective facilitation by the relevant regional council achieved resolution of potential conflict and eventually supporting submissions from groups such as the Association for the ECNZ applications.

From the Association's perspective, Council facilitation of negotiated agreements can be a very efficient and effective way to achieve positive outcomes for the applicant, environment and the community. Under the proposed amendment, all consents are more likely to be refer-red directly to the Environment Court. The amendment is therefore likely to entrench adversarial approaches to resource management dispute resolution, and may deter use of negotiated resolution of contentions issues.

The NZRCA is therefore strongly opposed to the proposal.

CLAUSES 37 AND 92 - Further information requests

The Association has assessed an extensive number of consent applications affecting New Zealand's rivers. A general observation is that many, although by no means all, of these applications fail to adequately address the effects of the proposal on recreation values, particularly canoeists. The submissions lodged by the Association, member clubs, and individual canoeists therefore often express concerns at the lack of information contained in the application documents, and the inconsistency with the requirements of RMA section 88 and the 4th Schedule. The measures to improve the quality of AEEs are therefore largely supported. Brief comments on the amendment proposals include:

Rejection of deficient applications: The NZRCA supports making the ability of local authorities to reject deficient applications more explicit.

Clarifying information requirements for decisions on notification and distribution of commissioned reports. The amendments to section 92 suggest some positive change. However in the suggested s92A there is no requirement that the specially commissioner report be made available to submitters and/or affected parties. If affected parties are to be able to assess the effects of proposals they must have all information available. Furthermore this information must be provided to them with adequate time for assessment of same information. It is submitted that this clause be amended to require making reports available to submitters and applicants at the same time, and within reasonable time before the hearing ie., at least 15 working days in advance.

However the ability of applicants to veto further requests for information and independent reports will not result in improved environmental impact assessment. Consent authorities must have the information that they judge necessary to assess and decide applications. Giving applicants the power to refuse requests for such information will not lead to fully informed decisions.

The NZRCA is therefore opposed to this proposal.

CLAUSE 92 - Fourth schedule

The NZRCA and member clubs have experienced major problems in the past with applicants frequently lodging deficient AEEs that do not adequately assess the effects of their application on recreation values. This inadequacy can often be attributed to inadequate consultation.

This has led to a significant amount of extra work, resources and time for both the NZRCA as submitter, and for the applicant

This highlights the urgent need for the production of better AEEs. The fourth schedule needs to be followed more stringently by applicants to achieve this result. To weaken the requirements of the fourth schedule would result in even more deficient AEEs, increased burden on affected parties, and subsequently more contention and litigation.

Consultation is a very important aspect of the fourth schedule. The NZRCA has always been very willing to participate in consultation free of charge, and this is obvious in the history of our dealings with major applicants such as ECNZ. To omit the need for consultation would lengthen the resulting process disproportionately as it would create the need for further clarification of important issues affecting the resource in question and possible appeals to the Environment Court. These inefficient results would be prevented if a greater emphasis had been placed on consultation in the first place.

The NZRCA is therefore strongly opposed weakening of the Fourth Schedule and is strongly opposed to the proposed amendment to the consultation clause of the schedule.

The NZRCA supports the omission of "socioeconomic" from clause 2 (a).

CLAUSES 2 AND 102 - Consent categories

The abolition of non-complying activity status is opposed. The additional tests imposed by RMA section 105 for non-complying activities is considered useful to assess those activities or effects that are considered out of the ordinary, and inconsistent with the objectives and policies of the relevant plan.

These threshold tests are reasonable and provide a necessary bottom line safety net to ensure potentially destructive activities and their effects are adequately controlled. Removing the non-complying category increases the risk that such activities will have an irreversible and serious effect on the environment.

The NZRCA is opposed to the proposed amendment.

CLAUSE 9 - Limiting the effect of a proposed plan

The NZRCA believes it is important that regional and district plans be brought within the requirements of the RMA sooner rather than later. This concern is especially in relation to those regional plans that manage the adverse effects on rivers including water quality. The amendment proposal would slow this implementation, at the cost of significant adverse effects.

This amendment appears to be based on a mistrust of councils' ability to produce workable proposed plans. The Association believes a more positive change would be to support councils to produce better plans, including a an appropriate level of technical assessment, a thorough section 32 assessment, and clearer understanding of the consultation needed to gain community acceptance of the proposed provisions.

In an effort to achieve increased clarity and true representation, limiting the effect of a proposed plan is therefore considered not the best option. Aiming for increased consultation at early stages of the planning process is more likely to produce a proposed plan that win represent the final form of the plan. If this consultation is undertaken and this result achieved then there is little need to limit the effect of the proposed plan. Councils should be required to consult extensively and could be required to produce a draft plan initially. In this way the subsequent proposed plan will be as close as possible to the final result.

The NZRCA opposes the amendment.

CLAUSES 2 AND 37 - Notification of resource consent applications

Consultation which often occurs as the result of public notification is important to the efficient and representative processing of resource consents. To reduce notification could potentially result in bodies such as the NZRCA missing out on being notified. Without knowledge of the recreational importance of particular water resources consents that do not protect these resources risk being granted. Consequently such decisions would have to be appealed. To reduce notification could therefore not only result in a decision detrimental to the environment, but could also lead to increased inefficiency in the form of increased litigation in the Environment Court.

If the application is of the character that it must be notified, this fact is more important than the time that would be saved by not notifying. By not notifying resource consents of this character the public input that characterises the representative approach of the RMA will be greatly damaged. It is not considered logical to jeopardise the opportunity for a fully informed consent to be granted in exchange for a process that is merely more efficient.

Community input should not be reduced as it is this input that adds to the quality of the environmental outcomes under the RMA. Quality of environmental outcomes can only be guaranteed by a fully informed consent process.

It is only a relatively small number of consents that are notified at present. Surely the best results in the case of these applications can only be achieved through a process which allows for the provision of all relevant information, interests and opinions which result from notification. The best result for the environment and the community will not be achieved by speeding the process up and neglecting to consider the above factors. Instead pre-notification consultation, pre-hearing meetings and other informal meeting procedures can be used to reduce the time and cost involved greatly.

In the NZRCA's experience consultation may still be required in some cases of controlled and discretionary activities. Such activities still could have implications for issues such as safety in water resources, and to determine the exact implication of these issues the NZRCA and its member clubs must be notified and consulted with.

The proposed definition of "minor" requires clarification.

The NZRCA is therefore strongly opposed to the amendments that limit public notification, exempt controlled and limited discretionary activities from notification, amend the definition of "public notice" and generally to strengthen the presumption towards non notification.

CLAUSE 41 - Making decisions on resouce consents

The suggested changes to section 104 are quite significant and raise major concerns.

The proposed amendment does not specifically include National Water Conservation Orders, draft National Water Conservation Orders or designations and heritage orders. Draft and operative National Water Conservation Orders are important documents to guide the sustainable management of nationally important water bodies, and exist for a number of rivers in New Zealand, including the Motu, Rakaia, Mohaka (Draft), Kawarau, Motueka (Draft) and Buller (Draft). A requirement to consider the provisions of a draft NWCO is also considered appropriate. The status of these orders and their place in the planning hierarchy should therefore be made explicit as they recognise the outstanding character of resources that is to be protected.

Regional Policy Statements and National Policy Statements should not be removed as relevant considerations. The context that these statements provide can only enhance and not be detrimental to the making of decisions on resource consents. Where there is ambiguity or uncertainty in a rule policy statements can provide an excellent tool for interpretation and clarity of meaning.

The amendment to subsection 2 (neglecting to make controlled and restricted discretionary activities subject to Part II) is opposed. Achieving the purpose of the Act must be primary aim of decisions made in accordance with sections of the Act.

The NZRCA is therefore strongly opposed to these amendments.

CLAUSE 43 - Bonds

Allowing bonds to remain in place beyond the term of the consent is a positive proposal. The effects of activities such as river reconstruction, on long term processes of river morphology, ecology and overall natural character, are often not immediate and only become clear well after the term of the consent has expired.

Bonds provide a valuable safety net for major projects with potential, long term adverse effects. This proposal will have a positive result

The NZRCA supports this amendment.

CLAUSE 47 - Cancellation of consents

In certain situations it is important that the NZRCA is informed before a consent is cancelled. For example the periodic release of dammed rivers requires consent and the cancellation of such a consent greatly affects the interest of the NZRCA.

Renewal of ECNZ's consents for the Waitaki, Mangahao and Waikaremoana hydroelectric structures has achieved conditions guaranteeing a minimum number of recreational releases per annum, for kayaking purposes. These conditions seek to mitigate the effects of the hydro-structures, and are therefore integral to achieving sustainable management. Any deletion of these consents, and associated conditions, would adversely affect the interests of the NZRCA, member clubs, and individual canoeists. The tests provided for in section 126 that ensure affected parties are consulted should therefore be retained.

The NZRCA is therefore strongly opposed to this amendment.

CLAUSE 91 - Second schedule

Councils require all the guidance that is available in the creation and operation of instruments under the RMA. To remove the second schedule would be to remove the only specific information on what may be provided for in policy statements and plans available to councils. The increased clarity provided by second schedule is extremely useful. Such removal will only lead to further uncertainty and lack of cohesion between regions.

The NZRCA opposes the proposal and instead recommends that the second schedule should be retained and strengthened.

Additional amendments requested:

Redefinition of control functions

The Ministry for the Environment's November 1998 "Proposals for amendment to the Resource Management Act" contained an option of making regional councils responsible for the control of the surface water and the use of land in the beds of rivers and lakes. We note that this proposal has been removed from the Resource Management Amendment Bill. We would recommend that this proposal be reintroduced.

It makes sense to transfer the control of the surface water and the use of land in the beds of rivers and lakes to regional councils. Having one council controlling the whole of water bodies is likely to achieve more integrated and efficient water resource management, and is therefore considered a significant improvement. It will go towards ensuring consistency in policies relating to water bodies. Relationships between the regional councils and those with interests in water bodies may be enhanced and made more efficient. It may be easier and more efficient for the one council to build up an information bank in respect of the water resource.

CLAUSE 22 - Redefinition of policy functions

The NZRCA experience of regional policy statements is that they provide extremely useful high level policy direction on the sustainable management of the natural and physical resource within a region. It is clear that some first generation RPSs are unnecessarily specific in describing resource management issues and prescribing solutions. Second generation documents are likely to be significantly different from those produced in the first rounds. Improved performance may also be achieved through better guidance and support from agencies such as the Ministry for the Environment. Overall the NZRCA is of the view that:

  • RPSs are essential documents to provide a strategic overview of the resource management issues within regions; and
  • RPSs provide an essential interface between national priorities and direction from the RMA, Biodiversity Strategy, National Policy Statements (including the NZCPS) and National Water Conservation Orders, and local and regional responses.

The amendment proposals to narrow regional council functions, make regional policy statements options, and limit the scope of regional plans, are therefore opposed.

CLAUSES 19 and 21 - National policy statements

National policy statements have the potential to provide worthy guidance to bodies making decisions under the Act. The provision of National Policy Statements should, theoretically, make the role and considerations of these bodies more clear. National Policy Statements would also play a very useful role in the hierarchical structure of the Act which is not yet being used to its full potential.The important factor is that National Policy Statements are introduced as soon as possible. Whichever alternative is believed to achieve this should be introduced.

Conclusion

The NZRCA thanks the Select Committee for this opportunity to comment on the the Resource Management Amendment Bill 1999. The Association carefully considered its comments and seeks to provide a perspective that the committee finds both informative and valuable .Overall, while there are several well thought-out proposals in the amendment bill, the NZRCA is concerned that many of the significant changes proposed will have major, negative effects, including the following:

  • many changes proposed are likely to impose a considerable cost on councils and ratepayers in amending plans to achieve consistency with the amendments.
  • proposals that increase the formality of initial hearings could lead to the prevention of important information being made available.
  • proposals that aim to increase efficiency could have the opposite effect as the benefits of facilitated resource consents and information banks could be lost.
  • quality decisions for the best environmental outcomes depend on a fully informed decision making process which is most efficiently achieved through consultation. A number of improvements could be achieved through better implementation, increased support from agencies such as the Ministry for the Environment:
  • efficiency in councils performance could be achieved by alternative methods, for example the Ministry of the Environment could provide good practice guides and support audits to this purpose, promotion of excellence etc.

Yours faithfully
Maree Baker
Conservation Officer
New Zealand Recreational Canoeing Association

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