Submission on Natural and Built Environment Bill and Spatial Planning Bill
IntroductionSubmitted on 5 February 2023: Read the NZCA's submission on the Natural and Built Environment Bill and Spatial Planning Bill relating to resource management reform.
The Legislative Basis for the New Zealand Conservation Authority (NZCA) submission
- The New Zealand Conservation Authority (the Authority or NZCA) was established under the Conservation Act 1987, with members appointed by the Minister of Conservation. It is an independent statutory body with a range of functions, but primarily acts as an independent conservation advisor to the Minister and the Director- General of Conservation.
- The Authority has a role as an objective advocate on matters of national significance and interest in the conservation arena and to provide high quality independent advice to the Department of Conservation (DOC) on its strategic direction and performance.
- The Authority has a range of powers and functions under the Conservation Act 1987, as well as under other conservation related legislation. Under the Conservation Act, Section 6C(2)(c), the NZCA has the power to “advocate the interests of the Authority at any public forum or in any statutory planning process.”
- NZCA submitted on the exposure draft of the Natural and Built Environment
- This NZCA submission is based on its analysis of:
- The Spatial Planning Bill (“SPA”)
- The Natural and Built Environment Bill (“NBA”)
- Te Pūnaha Whakahaere Rauemi o Anamata: Tirowhānui / Our Future Resource Management System: Overview
- The purpose of the NBA has an important role under both the NBA itself and under the SPA. It should provide first and foremost, in clear and certain language, for the safeguarding of the natural environment and its ability to sustain life.
- Instead, the purpose (cl 3) deals first with use and development of the environment. The purpose clause also contains a multitude of concepts, and requires cross- reference to the definition of te Oranga o te Taiao, which contains a further four concepts. The relationship between each part of clause 3 and each part of the definition of te Oranga o te Taiao is not clear or certain, and is further complicated by inclusion of the term “protection” within the “use and development” sub-clause.
- NZCA supports recognition in te Oranga o te Taiao of the intrinsic relationship between iwi and hapū and te Taiao, but considers that the purpose should also recognise the intrinsic relationship of all people with the natural environment that supports all life on this planet.
- Amend the purpose clause to:
“The purpose of this Act is to protect the health of the natural environment and its capacity to sustain life, and to recognise and uphold te Oranga o te Taiao and the intrinsic relationship of all people with the natural environment, by ensuring that use, development, and protection of the natural and built environment—
- supports the well-being of present generations without compromising the well- being of future generations;
- promotes outcomes for the benefit of the natural and built environment;
- complies with environmental limits and targets; and
- manages adverse ”
- Bring the definition of te Oranga o te Taiao into or next to cl 3.
- NZCA does not support the non-hierarchical approach to the NBA outcomes and considers that protection of the natural environment should be prioritised over development and use where the two would conflict.
- Removal of any reference to amenity values is concerning, because amenity includes the value of a place for its recreation use and potential. This is a matter of core interest to NZCA because the Conservation Act’s definition of conservation includes preserving and protecting natural and historic resources for the purpose of maintaining their intrinsic values, and providing for their appreciation and recreational enjoyment by the public.
- Recast the NBA outcomes so that protection of the natural environment should be prioritised over development and use where the two would conflict.
- Include an outcome related to maintaining and enhancing the recreational attributes of the natural and built environment.
Use and development within environmental limits
- NZCA remains supportive of the policy intention of the NBA of providing for use and development to occur within environmental limits. However, this policy intent is not secured by the Bills.
- Of most concern are:
- Setting limits for ecological integrity at “current state” (cl 37(a)).
- This contrasts to the specification in cl 40(2) that environmental limits must be set as a minimum biophysical state for a management unit or the maximum amount of harm or stress to the natural environment that may be permitted in a management unit. In many instances, the maximum harm or stress that should be permitted will be very different to “current state”.
- In some instances, limits have been set for some time (particularly for freshwater, where national bottom lines have been set in the NPSFM). In locations where freshwater is currently below a NPSFM bottom line, the bottom line will no longer be the limit but rather current state will. This undermines the NPSFM and locks in degradation.
- Setting and achieving limits at the management unit scale:
- Management units are set at a size and location sufficient to meet the purposes of cl 37 and 47 (which prescribe the purposes of limits and targets respectively). This is a circular argument.
- Management units are to be set to provide flexibility and to maximise opportunities for appropriate offsetting. This infers an “unders and overs” approach to achieving limits, where enhancement in one area can be used to offset environmental degradation or loss in another This could be effective in theory if there were a sophisticated offsetting system capable of adequately identifying what gain equates to what loss for all aspects of the environment that limits apply to. As far as NZCA is aware, no such system exists.
- Broad provision for exemptions from environmental limits. While environmental features worthy of protection must be tightly defined, exemptions and the public benefits that they must provide are not defined at Specifying that “the activity must provide public benefits that justify the loss of ecological integrity” is simply a return to an overall broad judgment approach that depends on the Minister of the day.
- The ability to set “interim environmental limits” below current state where the environment is expected to get worse, with no provision specifying when that worsening needs to be phased out by.
- Setting limits for ecological integrity at “current state” (cl 37(a)).
- While the NBA also provides for targets (which is supported), these can relate to the natural and built environment (and so could conflict) and are only mandatory where the Minister considers there is “unacceptable degradation” (cl 50). The matters that would constitute unacceptable degradation represent a very poor environmental state; environmental improvement should be mandatory far before the point is reached where there is “irreversible or significant harm” to ecological integrity.
- The NBA provides for a limits and targets review panel to advise the Minister, but they are not required to advise on the first National Planning Framework.
- Provide for meaningful environmental limits to be set on the recommendation of the limits and targets review These limits should be set at the lowest state at which ecological integrity will be safeguarded and human health provided for, and at not less than current state (where current state is presently higher than a limit).
- Instead of environmental limits applying across a management unit, they should apply to specific environmental features. Offsetting as a method of achieving limits should only be provided for where a credible, robust system capable of accurately measuring losses and gains exists.
- Targets should be For indigenous biodiversity, target-setting should be based on the Vision and Objectives of Te Mana o Te Taiao – the Aotearoa New Zealand Biodiversity Strategy.
- Activities for which exemptions may be provided should be tightly
Places of national importance
- NZCA is concerned that the identification and protection of places of national importance is dealt with in the back end of the NBA, in a section relating to NBE This makes the importance of these places unclear in relation to Regional Spatial Strategies and the National Planning Framework.
- NZCA finds the various different effects management frameworks in cl 14, cl 61 and cl 559 confusing and recommends that these provisions be simplified and clarified.
- The definition of place of national importance is supported, except to the extent that only areas with “outstanding” natural character have national importance. The NBA does not appear to provide any protection for natural character unless it is
- The requirement to set criteria for identifying significant biodiversity areas, and the considerations relevant to setting criteria in cl 228 are supported. However, NZCA does not support the carve-out for significant natural areas in the coastal marine area or freshwater (cl 556), or the direction that criteria for significant biodiversity areas in the coastal marine area must not include representativeness (cl 558(2)), as there is no ecological basis for these carve-outs.
- Restructure the provisions for places of national importance so that they are included in the “front-end” provisions applicable to all NBA and SPA
- Clarify/simplify the various effects management frameworks. Ensure management of effects on biodiversity is consistent with the Te Mana o Te Taiao – the Aotearoa New Zealand Biodiversity Strategy.
- Provide a level of protection for natural character even where it is not
- Retain provisions relating to significant biodiversity, without the marine carve-
Integration with conservation planning
- NZCA submits that the Bill should ensure that there is good integration between resource management planning and conservation planning (in the form of Conservation Management Strategies, Reserve Management Plans, National Park Management Plans etc). At present these documents are not required to be considered in planning or consenting decisions.
- Amend NPF, NBE Plan, RSS and resource consent decision-making provisions to make conservation planning documents a matter to give effect to (in plans) and have regard to (in consent decisions).
Role of the Minister of Conservation and Department of Conservation
- The Department of Conservation’s statutory functions include advocacy for the conservation of natural and historic resources The Department’s staff are an important source of information about natural and historic resources.
- NZCA submits that it is important that the Department and the Minister of Conservation are enabled to effectively participate in planning and consenting under the new regime. This includes participating in:
- Setting environmental limits
- Designing the National Planning Framework
- Designing Natural and Built Environment Plans
- Planning Committees: NZCA recommends that a representative of the Department of Conservation is included on Planning Committees.
- NZCA recognises that the effects of climate change and ocean acidification are two of the most significant issues facing New Zealand’s species and ecosystems. At the same time, there is significant potential for native ecosystems to play a critical role in mitigating the effects of climate change (such as through controlling pest browsers). It is critical that there are strong, direct links between the NBA approach to controlling land use change, use of the marine environment, and emissions, and the Climate Change Response Act 2002, so that there is good alignment of desired outcomes.
- NZCA considers the outcome relating to carbon could be At present it is not really an outcome at all: the reduction of greenhouse gas emissions is achieved by any reduction, no matter how small. The NBA should adopt or cross reference the targets in the Climate Change Response Act.
- There should be a requirement to “give effect to” the Emissions Reduction Plan and National Adaptation Plan in the NPF, RSS and NBE Plans rather than just a “not inconsistent with” requirement.
- The cl 5 system outcomes should be strengthened and should reference New Zealand’s 2050 and interim targets under the CCRA.
- The NPF, RSS, and NBE Plans should be required to give effect to the ERP and
- There is a lack of integration between spatial planning in RSSs under the SPA (which comes first) and identification of places of national importance in NBE Plans (which comes later). The requirement for NBE Plans to be consistent with RSSs could well result in areas that should be protected as places of national importance not being so protected, because the same areas have been identified in a RSS as suitable for development.
- One of the areas to be identified in spatial plans is “areas of the coastal marine area that are appropriate for development or significant change in use”. Given our limited understanding of the ecological values of the coastal marine area, NZCA considers that it is not possible to definitively decide, on a region-wide scale, that areas of the coastal marine area are appropriate for development or significant change in use”.
- Amend the requirement for NBE Plans to be consistent with RSSs so that it is subject to subsequent identification of places of national importance.
- Soften the language of cl 17(1) to refer to areas of the coastal marine area that may be appropriate for development or significant change in use.
- We thank the Select Committee for considering our
- We wish to be heard in relation to our