On Tuesday, the Government released the greatly anticipated exposure draft for the Natural and Built Environment Act (NBA), set to be the key piece of legislation to replace the Resource Management Act.

The exposure draft has been released for stakeholder and public feedback before it is introduced to Parliament. The reason for this novel approach is to “test and improve” the content of the Bill before it goes into the formal Parliamentary process - Minister Parker noting that “This is a once in a generation opportunity to get this right, so we want to make sure we do get it right.”

The exposure draft does not cover the contents of the full Bill, but instead provides an early look at key aspects. In this article, we focus on four of those, being the shift in focus in the new Part 2, Te Oranga o te Taiao, the National Planning Framework (NPF), and the Natural and Built Environment Plans (NBA plans).

Matters which are not included in the exposure draft, and which will come later, include:

1. process to develop the NPF and NBA plans;
2. consenting;
3. existing use rights;
4. allocation of resources, and economic instruments;
5. compliance, monitoring and enforcement;
6. water conservation orders;
7. designations and heritage orders;
8. subdivision;
9. the function and roles of Ministers and agencies, as well as regional councils and territorial authorities in the system.

Part 2 - more protective plus more outcome-driven

The heart of the exposure draft is a revamped Part 2, consisting of a modified purpose statement, a requirement to give effect to (rather than have regard to) the principles of Te Tiriti o Waitangi, a requirement to prescribe environmental limits, and a long list of environmental outcomes that must be promoted.  We can see value in a clear statement of priorities, but we anticipate there will be considerable debate about whether such a long list of matters to be promoted truly provides the clarity about prioritisation.  It will be important for the remainder of the Bill, and the planning documents prepared under it, to provide meaningful direction about how competing and potentially conflicting priorities are to be reconciled. 

Despite the inclusion of several development-focused outcomes in proposed section 8, the overall balance in Part 2 appears to have swung firmly towards environmental protection.  For example, use of the environment must comply with environmental limits, and only protective outcomes are acknowledged in the proposed statutory purpose provision, indicating that these outcomes would be ranked above development outcomes in any competing process.

Te Oranga o Te Taiao

Upholding Te Oranga o te Taiao has been identified as one of two purposes of the NBA. The Parliamentary Paper released alongside the exposure draft states that upholding Te Oranga o te Taiao and being more explicit about the intrinsic relationship between iwi, hapū and te Taiao also better reflects te ao Māori within the system.

This represents a slight shift from the recommendation in the Randerson Report, which proposed recognition of “Te Mana o Te Taiao”. The Freshwater Iwi Leaders Group and Te Wai Māori Trust suggested Te Oranga o Te Taiao, because in their view, it more appropriately reflects a Te Ao Māori approach, and encapsulates the intergenerational importance of the health and well-being of the natural environment.

For the purpose of the NBA, the definition of Te Oranga o te Taiao incorporates:

• the health of the natural environment
• the intrinsic relationship between iwi and hapū and te Taiao
• the interconnectedness of the natural environment; and
• the essential relationship between the health of the natural environment and its capacity to sustain all life.

Importantly, Te Oranga o te Taiao is not being advanced as a standalone proposition within the purpose of the NBA. As with Te Mana o te Taiao, it is intended to be connected to, and supported within, other NBA provisions that provide for the better alignment of the RM system to Te Tiriti o Waitangi and te ao Māori.

National Planning framework (NPF)

Part 3 of the NBA provides for the NPF, which will be the central tool for strategic and regulatory direction from central government on the use, protection and enhancement of the natural and built environments in the interests of all New Zealanders.

This part of the NBA responds to the recommendation in the Randerson report that the set of national directions be integrated, and conflicts between instruments resolved. The NPF seeks to address criticism of the current RMA that limited, and sometimes conflicting, national direction documents have led to unresolved conflicts between national priorities, and inconsistent policies being developed in RMA plans. The NPF will be made as regulations, and may set directions, policies, goals or methods, or provide criteria, targets, or definitions.

Based on the large number of competing environmental outcomes that must be promoted under proposed section 8, creating a NPF that truly enables all of the outcomes that are being sought will be a significant challenge. 

Natural and Built Environments Plans (NBA plans)

The exposure draft has adopted the Randerson Report’s recommended approach to plan formulation, involving the creation of a comprehensive plan for each region, known as an NBA plan. These plans will replace the existing regional policy statements, regional plans and district plans, and will be developed by a plan committee consisting of representatives from local government, central government and mana whenua.

The intention is to consolidate over 100 policy statements and regional and district plans into approximately 14 NBA plans, to aid integration of the resource management system and reduce the potential for conflicting policies.

NBA plans notably differ from the existing planning framework in that they will be required to manage the environment within the express limits that are decided for each particular region. These plans will also be required to identify and provide for matters significant to the particular region, meaning that each plan will have different priorities.

Plans will also be expected to resolve environmental conflicts in the region, in order to give plan users more certainty, leaving fewer matters for resolution at the consenting stage, in comparison to the RMA framework.

The Parliamentary Paper notes that the Government is still considering the best approach to NBA plan preparation and decision-making, and feedback on these plans will be instrumental in shaping the draft legislation going forward.

How can you get involved?

A unique, two-stage select committee process is being used for preparation of the NBA, reflecting its significant role in the reform of New Zealand’s resource management system. The first stage is the select committee inquiry into the exposure draft, which will be carried out by the Environment Committee (Committee) before the Bill is formally reviewed by Parliament.

The inquiry is expected to take 12 weeks, and the Committee will invite the public to make submissions during this period. The Committee inquiry will then report its findings back to Parliament, and these will feed into work on the NBA, and inform the development of the Strategic Planning Act and the Managed Retreat and Climate Change Adaptation Act. As a result, this is a valuable opportunity for stakeholders to express their opinions on the exposure draft, and make recommendations to the Committee. For more information on how to make a submission to the Committee, see the New Zealand Parliament webpage here: Make a submission. Submissions close on 4 August 2021.

The second stage will involve a normal legislative process, and is expected to kick off when the full Bill is introduced to Parliament in early 2022. This stage of the process will provide a further opportunity for stakeholder and public submissions on the Bill.