Submission on the draft Natural and Built Environments Bill

The Legislative Basis for the New Zealand Conservation Authority (NZCA) submission

1. The New Zealand Conservation Authority (Authority) 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.
2. 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.
3. 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.”
4. Following the logic of the above powers and functions, the Authority has a vested interest in the Resource Management Act (RMA) reform, and the interface that will have with conservation legislation in order to protect our natural environment for future generations.

NZCA Submission

5. The Authority’s submission is based on its analysis of:
   • The Natural and Built Environments Bill exposure draft
   • New Directions for Resource Management in New Zealand

Appropriateness of ambit

6. The Authority is uncertain that the Bill will efficiently achieve its purpose, by attempting to manage at once both the Built Environment and the Natural Environment, and suggests that useful clarity and better outcomes could result from separating the management of the two distinctive environments into two bills.
7. Land in the Natural Environment is largely made up of Public Conservation Land managed by DOC and, particularly in the North Island / Te Ika-a-Māui, local authorities. Much of the remainder comprises farmland, forestry land, and Māori land. Most statutory management effort for the Natural Environment goes into managing biodiversity and recreation, and allocating private use of public assets (mostly through concessions and permits).
8. On the other hand, the Built Environment is predominately privately owned, and the management effort goes into managing and building public access and infrastructure, and managing adverse impacts of activities on others, i.e. negative externalities. Interaction largely occurs only when the Built Environment expands into the Natural Environment through subdivision and the extraction or other use of freshwater. These activities have, in most respects, little in common. Attempting to use one tool to deal with two disparate problems seldom works.

Te Tiriti o Waitangi

9. The Authority supports the policy intention of Te Tiriti o Waitangi, i.e. all persons exercising powers and performing functions and duties under this Act must give effect to the principles of Te Tiriti o Waitangi.
10. The Authority, however, notes that interpreting section 4 of the Conservation Act 1987, which has near identical wording and has essentially the same intention, has become the purview of the courts, as the legislature has effectively abdicated its rights to interpret the lawful meaning. This has been problematic in managing Public Conservation Land; DOC is still working to understand the full impacts of the 2018 Ngāi Tai Ki Tāmaki Supreme Court decision[1] on its operations, and has been hamstrung for some years in developing its statutory plans as it struggles to understand the full implications of giving effect to section 4.
11. The Authority foresees that, unless there is a rigorous interpretation enshrined in legislation through a clear definition in the Bill, the courts will be forced to make their own interpretations as to what giving effect to the principles of Te Tiriti o Waitangi means, which will be costly, and introduce uncertainty and delays.
12. NZCA recommends that consideration be given to ensuring that all important definitions are clear and unequivocal.

Treatment of Public Conservation Land (PCL)

13. The Authority is unclear if the ambit of the Bill includes PCL, including national parks and reserves, noting that the RMA is binding on such lands at present. The fact that the Bill proposes the Minister of Conservation will make appointments to planning committees, supports the notion that the Bill does include PCL.
14. This view is reinforced by cl 5(1)(a) and 5(3)(c), which de facto assert that Te Oranga o te Taiao is to be upheld over all, which presumably includes PCL, the natural environment.
15. This raises doubt as to if and how DOC’s statutory planning documents would interact with this Bill, and if they do, what priority they would be granted.
16. NZCA seeks clarification on how the Bill is foreseen to impact on the statutory planning documents arising from the Conservation Act 1987, National Parks Act 1980, and Reserves Act 1977.
17. 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.).

Fettering the Crown

18. The Authority observes that clauses 22 and 25 provide the local planning committees the ability to fetter the Crown. This may or may not be intentional.
19. The Authority has noted that the inability of statutory management plans under the Act to fetter the Minister has led to dissatisfaction with environmental groups, whenever the Minister has made a decision contrary to statutory plan objectives and policies. Equally, DOC decision-makers have found this to their advantage on occasions.
20. A clear statement in the Bill allowing the planning committees to fetter or otherwise the Crown could be helpful.

Capacity and capability of planning committee members

21. With 30 years of experience in dealing with statutory planning for PCL, the Authority observes that engaging with Māori: iwi, hapū and whanau, for statutory planning purposes places a considerable administrative and cost burden on Māori. By way of example, there are already some 27 statutory planning documents in Southland alone that deserve or require meaningful consultation with local runanga, which is a significant impost.
22. For too many reasons, runanga are frequently poorly resourced and so may not have the capacity or capability to deal with the demands of dealing with the statutory planning processes in the Bill in a timely or considered fashion.
23. To ensure Māori involvement will be effective, this Bill will need to explicitly find ways to build capacity and fund Māori involvement, while at the same time acknowledging that flexibility will be needed to accommodate the differences between various runanga, hapū and iwi, along with the conditions in the different Treaty Settlements that may exist.

Use and development within environmental limits

24. NZCA supports the policy intention of the Natural and Built Environments Bill of providing for use and development to occur within environmental limits. However, this policy intent is not clearly provided for in the Bill.
25. The overall purpose of the Bill is to enable:
    • Te Oranga o te Taiao to be upheld, including by protecting and enhancing the natural environment; and
    • people and communities to use the environment in a way that supports the well-being of present generations without compromising the wellbeing of future generations.
26. That purpose could be interpreted as returning to an “overall broad judgment” approach where social and economic wellbeing is balanced against environmental wellbeing.
27. The purpose is implemented:
    • by way of environmental limits, which may be formulated as the maximum amount of harm or stress that may be permitted on the natural environment; and
    • by listing environmental outcomes to be achieved, which are a mix of environmental and socio-economic outcomes; and
    • by providing for a national planning framework, which must include provisions directing some of the environmental outcomes, and provisions to help resolve conflicts between or among those outcomes.
28. NZCA is left with the impression that there is considerable scope for:
    • environmental limits to be set in a manner that does not maintain or improve existing environmental quality
    • socio-economic outcomes to be prioritised over environmental outcomes through the national planning framework.
29. NZCA submits that the purpose, environmental limits, and environmental outcomes provisions should be rewritten to ensure that:
    • Environmental limits at least maintain the quality of the environment where current state is adequate to provide for healthy ecosystem functions, and require improvement of current state (over time) where necessary.
    • Socio-economic outcomes are provided for only where consistent with upholding biophysical environmental outcomes.  

Environmental outcomes

30. NZCA supports that public access to and along coast, lakes, rivers, wetlands, and their margins is protected or enhanced, cl 8(e). Water and access to water touches on the New Zealand psyche and sense of being; many New Zealanders would regard water and access to it as their natural right.
31. NZCA submits that many New Zealanders hold similar views regarding mountains, natural landscapes, and PCL; access to them should also be explicitly protected and enhanced, on the same terms as water and lakes.
32. NZCA asserts that more PCL is landlocked, or made inaccessible by private land owners than is commonly recognised, for example, there are essentially only three usable public access routes to the some 360 km² comprising the Takitimu Mountains that overlook Southland, all the more unfortunate as these mountains are a Ngāi Tahu tōpuni site.

Role of the Minister of Conservation and Department of Conservation

33. The Department of Conservation’s statutory functions include advocacy for the conservation of natural and historic resources generally. The Department’s staff are an important source of information about natural and historic resources.
34. 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.

Climate Change

35. 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[2]).  It is critical that there are strong, direct links between the Natural and Built Environment Bill’s 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.
36. NZCA would like to see carbon emissions (and enhanced sequestration opportunities) as a matter for which environmental limits must be set.
37. NZCA considers the cl 8(j) environmental outcome relating to carbon emissions (“greenhouse gas emissions are reduced and there is an increase in the removal of those gases from the atmosphere”) could be strengthened, as under the proposed wording any reduction in emissions or increase in sequestration is sufficient to meet the outcome. A stronger outcome would be achieved by referencing New Zealand’s commitment to be carbon neutral by 2050 (and interim targets).  This should be coupled with clear direction in the national planning framework for how this is to be achieved in the context of land use, emissions and other activities, as anticipated by s 13. 
38. NZCA submits that:
    • Carbon emissions and sequestration should be a matter for which environmental limits must be set under s 7.
    • The cl 8(j) outcome should be strengthened and should reference New Zealand’s 2050 and interim targets.
    • There should be clear direction on achieving those targets through the national planning framework.

The marine environment

39. NZCA considers that the marine environment is frequently overlooked or under-prioritised, in terms of addressing both direct impacts such as fishing and ocean acidification, and indirect impacts on coastal waters and ecosystems as a receiving environment for contaminants from land use and discharges.
40. This under-prioritisation appears to have carried through into the Natural and Built Environment Bill:
    • The main reference to the marine environment is a somewhat ambiguous environmental outcome - “the protection and sustainable use of the marine environment” - in cl 8(n).
    • The mandatory topics that the national planning framework must include does not include the cl 8(n) outcome, which appears to be a significant departure from the mandatory requirement under the RMA to produce a New Zealand Coastal Policy Statement.
    • The relationship between the cl 8(n) outcome and other potentially applicable outcomes (such as cl 8(b) – “ecological integrity is protected, restored, or improved”) is unclear.
    • Environmental limits must be prescribed for biodiversity, and for coastal waters, but it is unclear whether coastal ecosystems require environmental limits (cl 7(4)).
41. One purpose of environmental limits is to protect the ecological integrity of the natural environment. It is important to recognise that in many parts of the marine environment, our understanding of the natural resources that exist and their importance to wider ecosystem functions is very poor.  It will be difficult to determine the ecological integrity (as defined) of many parts of the marine environment as a result.  It is important to ensure that the new Act provides a framework to at least maintain, and in many areas restore, the quality of the marine environment despite imperfect knowledge and data.
42. NZCA submits that maintenance and restoration of the marine environment should be prioritised, including through:
    • a more directive environmental outcome for the marine environment
    • clarity as to which of the other environmental outcomes apply to the marine environment
    • a requirement to include the marine environment as a mandatory topic for the national planning framework
    • a requirement for environmental limits for coastal ecosystems
    • recognition that the marine environment is an area where knowledge and data are particularly limited, and a planning framework that does not require perfect knowledge before impacts must be avoided.

Conclusion

43. We thank the Environment Select Committee for the opportunity to submit on the Bill, and we request to be heard in support.

[1] Ngāi Tai ki Tāmaki Tribal Trust v Minister of Conservation [2018] NZSC 122.

[2] Kevin Hackwell and Maitland Robinson, Protecting our Natural Ecosystems’ Carbon Sinks, June 2021.