Submission on the Resource Management (Simplifying and Streamlining) Amendment

Topic: 

To:
Committee Secretariat
Local Government and Environment Committee
Parliament House
Wellington

Name of person / organisation making submission:
New Zealand Recreational Canoeing Association
PO Box 284
Wellington
conservation@rivers.org.nz

Date: 3 April 2009

This is a submission primarily in opposition to (see position below) the proposed changes to the Resource Management Act contained in the Resource Management (Simplifying and Streamlining) Amendment Bill (the proposal).

Background to NZRCA

  1. Formed in 1957, the New Zealand Recreational Canoeing Association (NZRCA) is the national representative organisation of canoe clubs and recreational kayakers throughout New Zealand. NZRCA is a voluntary, non-profit, incorporated society and is affiliated to the NZ Canoe Federation (NZCF). The NZCF is in turn affiliated to the International Canoe Federation. NZRCA has delegated authority to represent the NZCF and all its member disciplines on advocacy issues.
  2. NZRCA was known as the New Zealand Canoe Association until 1995/6. At this time the competitive canoeing disciplines were spun off into their own associations, the new umbrella body the NZCF was formed, and NZCA renamed itself to the NZ Recreational Canoeing Association to reflect its non-competitive advocacy role.
  3. NZRCA has been an active, responsible and respected participant in RMA processes concerning river systems for many years.
  4. Summary of Submission

  5. The NZRCA opposes those clauses (including clauses 68, 131 - 133, 136, 139, 148) in the proposal that reduce the ability of respected community and public interest NGO's such as the NZRCA from fully participating, responsibly, in the RMA process.
  6. The NZRCA opposes those clauses (including clauses 16, 20, 39 - 40, 59, 66, 82 - 83, 147, 152) in the proposal that will potentially result in poorer decision making and / or environmental outcomes.
  7. The NZRCA supports clause 141 of the Bill which will result in tougher action on those who breach consents.
  8. Detailed Submission

    A. Clauses that reduce the ability of organisations such as the NZRCA from fully participating in RMA processes

    Clause 133 - Security of Costs

  9. The NZRCA argues that the net effect of this clause will be to reduce participation in the public in Environment Court proceedings. Even a significant NGO such as the NZRCA would find it very difficult, if not impossible to provide for security of costs if this was demanded. This requirement would prevent us lodging the many appeals we have lodged which have been resolved at mediation stage rather than the Environment Court.
  10. Even if in practice this provision would be rarely used (it is not entirely clear that this would be the case), unscrupulous applicants may use this clause to intimidate some groups with fewer resources, such as the NZRCA. It is likely we would either withdraw appeal or use our already scarce funds defending a spurious application for security for costs. This amendment is also unlikely to deter anti-competitive appeals as trade compeititors usually have sufficient resources.
  11. The NZRCA seeks that clause 133 is deleted. It suggests that the Court use the existing provision to dismiss "frivolous and vexatious" objections (s279(4)) or seek alternative mechanisms (e.g., greater guidance) to ensure that weak or trade-related cases don't go to the Court.
  12. Clause 131 - Removal of ability of public interest groups to join proceedings

  13. Clause 131 changes, and in all likelihood weakens the ability of a person who did not previously submit, "representing a relevant aspect of the public interest" to become a party to appeals i.e., by amending the relevant wording from "interest greater than the general public" to " an interest greater than the interest the general public has". While the NZRCA endeavours to always become a submitter, inadequate notification may not always allow this to be the case.
  14. This clause is likely to impact NGOs such as the NZRCA significantly, particularly as the number of resource consents where NZRCA has a legitimate public interest is only like to rise dramatically. Already, the NZRCA (which is run on a volunteer basis) struggles to submit on all consents, particularly if they are poorly notified1, and may need to utliise section 274 to join an appeal. The net effect of the amendment will be reduced participation from NGOs such as the NZRCA and/or will stretch already thin resources even thinner.
  15. The NZRCA would also point out that the non-notification presumption (see clause 68) is only likely to increase the need for public interest groups to joing proceedings at the appeal stage.
  16. The NZRCA seeks that clause 131 is deleted.
  17. Clause 68 - Reduced public notification of resource consents

  18. This clause reverses the presumption in favour of public notification of resource consents. The NZRCA already finds it difficult to hear about all relevant resource consents even when they are notified (see footnote one). This amendment will make it even more difficult for organisations such as ours to remain abreast of relevant consents.
  19. The clause also states that the consent only needs to be notified when there are adverse effects are more than minor "beyond the immediate environment". The adverse effects of some smaller hydro schemes could arguably be deemed significant, but localised. If there are effects on whitewater amenity value from a proposed consent, then the NZRCA, as the public interest group representing canoeists would seek to become involved. Non-notification does not aid this involvement.
  20. The test of no more than minor beyond the immediate environment is of real concern. A matter of often considerable debate between NZRCA and the applicant is the significance of the effect of the consent. In the case of whitewater amenity value the NZRCA are the experts and the allegation by an applicant that the effects are only minor has sometimes proved to be false.
  21. The NZRCA seeks for clause 68 to be deleted and that current notification conditions are retained.
  22. Clause 132, 136 and 148 - Remove ability make further submissions on policy statements and plans and remove ability to appeal plans unless on question of law except with leave from the Environment Court

  23. NZRCA and its members sometimes submits on regional plans (e.g., Horizons Council One Plan) and policy statements.
  24. Removing the cross submission process could result in submissions, beyond the scope of the original plan, directly affecting parties interests, and those affected parties not being able to take part and defend their rights. If it is left to the discretion of Council to include such parties, there is no certainty in that. The NZRCA considers that a simpler process can be introduced to ensure that affected parties have a fair opportunity to join original submissions.
  25. The implication of the change to appeal rights is likely to be reduced quality in the plans produced. There is no opportunity to test evidence put before the Council and this is likely to result in lower quality plans and greater use of hearing and Court time to sort out unresolved issues and gaining leave to appeal.
  26. The NZRCA would also point out that in most cases appeals on plans are sorted out in mediation prior to the hearing.
  27. The Ministry of Justice in their comments on the proposed Bill also noted that one of the basic right of the New Zealand justice system (a first right of appeal with leave only required for subsequent appeals) would now be foregone.
  28. The NZRCA seeks that clause 132 and 136 are deleted and that current rights to appeal are retained.
  29. Clause 139 - Trade competition rules

  30. The proposed trade competitor rules could unwittingly result in community groups being prosecuted. The clause requires a group to disclose whether they "received, is receiving or may receive direct or indirect help from" a trade competitor. The NZRCA has a wide base of membership covering many profession and it is reasonably likely that a member of the NZRCA or of a club affiliated to the NZRCA who fits this description will have made a financial contribution directly or indirectly to the NZRCA. To top it off, the provisions allow action to be taken up to 10 years after the contravention. This amendment will put a significant and unrealistic impost on NZRCA's already scarce resources if this requirement is enforced.
  31. Of more concern, this provision appears to favour the applicant over the community groups such as the NZRCA as this provision does not apply to the applicant.
  32. The NZRCA seeks that clause 139 be reworked or deleted so that it does not favour the applicant or potentially be used against community and NGOs such as the NZRCA.
  33. B. The NZRCA opposes those clauses (including clauses 16, 20, 59, 82 and 83) in the proposal that will potentially result in poorer decision making or environmental outcomes.

    Clauses 20, 82 and 83 - Minister of Conservation decision making role in respect to restricted coastal activities removed

  34. Although the NZRCA's members are primarily interested in river rather than coastal environments the NZRCA believes that these amendments signal a dangerous precent when the Minister of Conservation's broader role around land use is considered.
  35. Currently, the Minister of Conservation acts on behalf of the people of New Zealand (who are the landowners) and represents conservation interests. However, local or regional interests are not the same as national interests and the Conservation Act is not the same as the RMA. The overall effect of this change is to strengthen the role of the Minister for the Environment at the expense of the Minister of Conservation.
  36. The NZRCA seeks that clauses 20, 82 and 83 are deleted and that alternative reforms are considered in Phase Two that retain the distinction between Conservation and RMA processes and the Crown's role as "owner" but speeds up decision making (e.g., seeking Minister of Conservation's approval first before applying for consent).
  37. Clause 59 - Proposed plans won't have any legal effect until decisions on these rules have been notified

  38. There are appear to be conflicting provisions but the overall intent appears to be to remove requirement that rules in proposed plans have immediate effect. The likely result is that there is likely to be an onslaught of applications prior to any rule which may impose stricter environmental guidelines or processes being notified. To give an example, the NZRCA is seeking that recreational flows are considered in any NPS on environmental flows. Recreational flows are in some cases higher than ecological flows and one would thus expect a "flood" of consent applications for consumptive water use prior to the enactment of any NPS on Environmental Flows, including recreational flows.
  39. The NZRCA seeks that clauses 16 and 59 are deleted.
  40. Clauses 147 and 152 - Removal of "non-complying" status

  41. The likely result of this change is at minimum, significant uncertainty in the interim and alot of plan changes, the extent of which means that the plan changes are unlikely to occur in the timeframe suggested. Furthermore, if the outcome of those plan changes can only be appealed on a point of law, this puts the whole integrity of the process at risk.
  42. There is also an implicit assumption of a lower environmental standard as after three years all "non-complying" activity not yet re-categorised will default to the less restrictive "discretionary" category rather than prohibited.
  43. Non-complying status at the very least sends a strong signal that a particular activity is likely considered inappropriate, unless it can be shown otherwise (by passing the gateway test). An example of this is currently, Canterbury's proposed regional plan (NRRP), classifies the Hurunui River catchment as being an important natural area, to receive a high level of protection. Damming one section of the river is prohibited, but in the remaining sections damming and taking are non complying. It this status was removed to simply discretionary, it significantly weakens the message that this is a special catchment worthy of protection, and weakens the protection afforded to it.
  44. The NZRCA seeks that clauses 147 and 152 are deleted.
  45. Clauses 66 - Applicants have ability to veto Councils seeking further information

  46. Clause 66 allows an applicant to veto Councils seeking further information and proposes to delete the current provision which allows Councils to reject a proposal if there is insufficient information to enable it to make an application.
  47. NZRCA is opposed to this clause and ask that it is deleted. To give an example why, consultants employed by applicants to assess the effects on whitewater amenity are often not experts in this area. The NZRCA has supplied supplementary evidence in hearings (e.g., on flow rates and amenity values) which has influenced the decision made as the effects became significant rather than minor.
  48. Clauses 39 and 40 - National Environmental Standards are a maximum rather national minimum

  49. The Bill proposes that NES are maximum standards rather than minimum standards. The NZRCA seeks that clauses are amended so that NESs are minimum standards.
  50. Filing fee for appeal increase from $55 to $500.

  51. The NZRCA is opposed to the proposed increase in filing fee. The change is intended to help deter vexatious litigants. It is the NZRCA's view that the increase is unlikely to have a material effect - if a litigant has vexatious motives, it seems unlikely they would be deterred from taking part, if reasonably resourced.
  52. However the increase could deter participation from already stretched, responsible parties such as the NZRCA, or individuals, directly affected by an activity, but with limited resources. For many people and groups, $500 is a lot to come up with in 15 working days, and even the prospect of obtaining MfE Legal assistance funding in the long term will not assist at that early stage. This is particularly true in the case of a national body such as the NZRCA who may need to file appeals for several cases in a financial year. The change could result in making legal remedy unavailable to directly affected, responsible participants.
  53. The great majority of appeals to Environment Court, both generally and that the NZRCA is involved in, are settled in mediation. The increased filing fee deters mediation as well as actual court proceedings. Mediation is a particularly efficient process and needs to be encouraged in order to accomplish the stated goal of streamlining the RMA.
  54. C. The NZRCA supports clause 141 of the Bill which will result in tougher action on those who breach consents.

  55. The NZRCA supports the following amendments contained in clause 141:
    1. An increase in the maximum fine from $200K to $300K for individuals and $600K for corporations
    2. The Environment Court having the power to review a resource consent where the consent holder is repeatedly in breach of conditions
    3. The Environment Court has power to require new conditions as well as fines for breaches.

The NZRCA wishes to be heard in support of our submission.

1 An example would be the Matiri hydro electric power scheme (near Murchison, Buller region). The regional council, Tasman District Council chose to advertise only in the Nelson Mail, not in The Press nor in the Murchison local newspaper despite the fact most of the users of the Matiri River come from Christchurch and further afield. As a result, the NZRCA had to put in a late submission.. The Nelson Mail was not even delivered in Murchison on the days it was advertised due to floods. The result was that many locals were not aware of the scheme nor was the largest canoe club that regularly uses the Buller region including the Matiri River, and happens to be Christchurch based Fortunately, the Council accepted the late submission, however had they not the NZRCA would have had to avail itself of section 274 on appeal.

Address for service of submitter:
PO Box 284, Wellington
Fax/email: conservation@rivers.org.nz
Contact person: Tony Ward-Holmes, Conservation Officer