Legislative Erosion of the Founding Principles of the Resource Management Act 1991: The 2017 Reforms and Their Impact on Public Participation, Devolved Decision Making and Environmental Bottom Lines

Abstract

This paper describes the policy basis for three principles that have been critical to the Resource Management Act 1991’s statutory scheme and to the achievement of its statutory purpose of sustainable management of natural and physical resources. They are: public participation in decision making, devolved decision making, and environmental bottom lines. It explains how the principles are expressed in the Act. It analyses changes made in the Resource Legislation Amendment Act 2017 and describes how those changes have impacted on the three principles. Particular changes identified as contributing to the erosion of fundamental principles are new alternative planning processes, reductions in public participation opportunities at the submitter and appeal stage and the centralisation of decision making power in the Minister in an ad hoc way that encourages politicised decision making. This erosion has not been compensated for by the provision of an alternative suite of principles. The changes have reduced the coherence of the Act’s legislative scheme, and the likelihood that decisions made under it will achieve sustainable management. The paper proposes that the poor quality legislative reforms are primarily a result of the highly politicised setting in which the amendments were proposed, the co-existence of housing and environment portfolios in the hands of one Minister, the balance of numbers required to pass the reforms and the complex nature of the changes, which neutralised public opposition and scrutiny other than from a core group of participants. These factors were compounded by an unorthodox select committee process. The select committee’s role in hearing from submitters and providing scrutiny of legislation on behalf of the legislature was undermined by undue executive interference and complicit officials and Government committee members. This points to a lack of accountability in the legislative process, particularly (but possibly not exclusively) in the circumstances within which these reforms occurred.