Our fourth update in a series on the recently introduced Natural and Built Environment Bill (NBE Bill) and the Spatial Planning Bill (SP Bill).

The Bills have been referred to the Environment Select Committee for further consideration, with the submission period closing on 5 February 2023 (extended from the original date of 30 January 2023).

This update considers the players that will be involved in the new planning regime, their roles, and how they will be expected / required to work together through transition and beyond, and discusses the increased Māori participation provided for under the Bills.

A mix of new and existing players

The NBE and SPA Bills have retained many of the existing players involved in the RMA regime - for example, councils (as consent authorities), requiring authorities and heritage protection authorities. They have also introduced a host of new players, some of which will have an important role moving forward, particularly in terms of plan-making.

The proposed new entities, which we discuss in this update, are:

• Regional Planning Committees (RPC)
• Limits and Targets Review Panel (L&T Panel)
• National Māori Entity
• Iwi and hapū committees / Māori appointing bodies

New player: The Regional Planning Committee

Each RPC will be a new independent statutory committee, with substantive decision-making powers under both the NBE and SPA Bills. It is a key new player that will be at the coal face developing, hearing submissions, and deciding the first iterations of the Regional Spatial Strategies (RSS) and NBE Plans.

Schedule 8 of the NBE Bill sets out provisions that describe what the RPC is, how it is to be constituted, and prescribes composition and funding requirements. Of note, one RPC must be appointed for each region - and once appointed it is to be treated as a committee of all the local authorities in the region (while being independent of all local authorities).

A RPC is required to comprise local authority representatives and iwi/hapū representatives. The Minister “may” appoint a member, but only in relation to the RSS process. At a minimum there must be six members, but there is no upper limit.

Resolving composition of the RPCs could become a point of contention. The NBE Bill requires that the parties “reach agreement” on a composition arrangement, including how many members will be appointed by local authorities and Māori appointing bodies. The Bill provides limited guidance on composition, other than several criteria that include “ensuring that, having regard to the purpose of the NBE and SPA Bills”:

• The size of the RPC supports “effective decision making and efficient functioning”;
• Regional, district, urban, rural, and Maori interests are “effectively represented”;
• Consideration has been given to the purpose of local government; and
• In the case of a region with multiple local authorities, consideration is given to the “different populations of the individual local authorities and the desirability of applying some weighting in respect of that”.

The reference to the purpose of local government is interesting, as one of the purposes in the Local Government Act 2002 (LGA) is to “enable democratic local decision-making and action by, and on behalf of, communities”. In this context, any member appointed by a local authority will be required to work collectively in the best interests of the region of the RPC. They are also empowered to make decisions without any specific authority from their appointing body. These requirements are consistent with the independence of the RPCs, but appear to create some potential tension with the purpose of the LGA. Our initial view on this criterion is that it encourages the RPCs to be made up of members who can represent the views of local authorities (and their communities), while not requiring them to be beholden to any “district” strategies, plans or policies.

If composition agreements cannot be reached, the relevant regional or unitary authority must provide a proposed composition arrangement to the Local Government Commission for approval. This is an effective backstop provision, which could entrench disputes between appointing bodies and make the requirement to “do all things reasonably possible to achieve consensus in its decision making” challenging.

Funding is another matter that may be contentious. The NBE Bill requires that the RPCs are “jointly” funded by all of the local authorities in a region. Iwi and hapū members are not expected to contribute to any RPC funding. The NBE Bill does not provide any real clarity on how funding contributions may be agreed; only that local authorities are to work together “in good faith”. Of note, the NBE Bill does not anticipate or enable funding by any one local authority (for example, funding by only the relevant regional / unitary council), or provide for central government funding. This may be an issue raised by local authorities in submission on the Bills.

New Player: Limits and Target review panel

The L&T Panel is appointed by the Minister to specifically advise on the National Planning Framework (NPF) and the extent to which potential limits or targets are: evidence-based, able to be evaluated, effective, and reliable, and will protect human health and the ecological integrity of the environment. Of note, there is no limit on the number of limits / targets that can be set through the NPF, and it is mandatory for the Minister to consider the advice of the L&T Panel before public notification of the NPF.

The members must collectively have knowledge and expertise in a range of areas, including ecological integrity, environmental science, and mātauranga Māori. In practice, it strikes us as though the L&T Panel will have both an oversight and instructive role, ensuring that there is an evidential basis for any limits / targets, and sense-checking the Minister’s proposals in terms of their overall sufficiency. The requirement to ensure that the limits / targets are effective and reliable will be of critical importance, particularly if they are to result in achievement of the proposed system outcomes. The specific focus on environmental protection may present a risk, particularly for those with a land interest in sensitive ecological areas. How that focus is reconciled with the achievement of “timely provision of infrastructure” (another system outcome) could require careful thought, with the potential that carve outs from certain limits are required.

An increased role for Māori under the new regime

The NBE Bill creates new entities to better represent Māori interests, and provisions that provide for better incorporation of tikanga and mātauranga Māori, and which give greater weight to te Tiriti and Māori concepts. Significantly, Part 1 includes a new purpose: to recognise and uphold te Oranga o te Taiao - a new concept that relates to the health and interconnectedness of all parts of the environment, and the intrinsic relationship between iwi and hapū and te taiao.

Other important changes include:

• A new system outcome, which requires that the NPF and all plans must recognise and provide for the relationship of iwi and hapū to their ancestral lands, water, sites, wāhi tapu and other taonga.
• A new principle, which requires that all persons (exercising powers and performing functions) must recognise and provide for the responsibility and mana of each iwi and hapū to protect and sustain the health and well-being of te taiao in accordance with the kawa, tikanga, and mātauranga in their area of interest.

This new principle captures several overlapping requirements, and our initial view is that the requirement to “recognise and provide” relative to “the kawa, tikanga, and mātauranga in their area of interest” could be interpreted as giving priority to those matters, particularly in circumstances of uncertainty. The phrase “recognise and provide for” has been well litigated under the RMA, and requires that an actor makes provision for the relevant matters. As the areas of interest are yet to be defined and could be debated among iwi and hapū, and the requirements of “kawa, tikanga, and mātauranga” are new and not yet resolved, there is clearly work to be done to understand and clarify for all interested parties how this principle is to be applied.

We note that there is no guidance in the NBE Bill in relation to the weighing of (potentially) different or competing tikanga or kawa, or how to determine which iwi or hapū has standing, which may well lead to litigation.

New player: National Māori Entity

The National Māori Entity is a new independent statutory entity that is required to provide advice on Treaty of Waitangi issues to entities that it monitors (being local authorities, Ministers and Crown agencies), or at the request of certain entities. As well as providing monitoring and advisory functions, it will also be involved in the preparation and review of the NPF.

New player: Iwi and hapū committee / Māori appointing bodies

Iwi and hapū representatives are a key component of the RPC. The process for appointment of these representatives appears complex (and will be more so in certain regions), and involves the formation of an iwi and hapū committee for a region. This new committee will first identify the Māori appointing body(ies), who will then appoint member(s) to the RPC.

Unlike the Māori appointed members of the RPC, the iwi and hapū committees and Māori appointing bodies are not provided with clear funding avenues through the NBE Bill. Given the increased involvement of Māori in the new system, this may be a concern to mana whenua.

Māori involvement more generally

Through plan making under the NBE Bill and the creation of the RSSs the RPCs will be required to set up engagement agreements with Māori groups. These groups may be iwi or hapū, customary marine title groups, or other Māori groups that have interests (where the RPC consider it appropriate to have the other Māori group included). The NBE Bill does not specify what these engagement agreements should contain.

Our comments

One of the underlying intentions of these reforms has been to remove politics from plan making processes. A primary way in which this is achieved through the Bills is to establish the new, independent, statutory RPCs, which will effectively take over the existing functions of regional and territorial authorities in Part 5 of the RMA. The statutory independence of the RPCs, and duty of RPC members to act collectively “across the region”, shifts the focus away from individual districts, and may provide a platform for bolder decision-making without the same risk of accountability at the voting box.

While we expect that the reduced accountability of the RPCs (versus the current council decision-makers) will be of concern to both councils and communities alike, this recast model will (in principle) remove political influence. What remains to be seen is whether the appointment process will prove contentious, as this is where political interference may still be possible (eg council’s appointing members holding firm on particular matters or issues). The terms of the appointment policies adopted by local authorities will be of real importance on this point.

Finally, and also from an accountability standpoint, the NBE Bill affords the RPCs separate legal standing, so any local authority is able to bring appeal against a decision of the RPC (if an appeal right is triggered).

For our other updates on the proposed new legislation, click the 'Beyond the RMA series' tag above. 

Special thanks to Gemma Plank for her assistance in preparing this article.