Submission

Federated Farmers Resource Management Bill Submission

Last week, Federated Farmers submitted on the Resource Management Amendment Bill (“the Bill”).  The RMA is important for our members. Through plans and resulting rules, it impacts on most farm activities and actions, so we need to ensure changes are necessary, pragmatic and achievable.

We agree that reform of the RMA is needed, and we support the government’s current comprehensive review of the RMA, which the Panel is due to report on in mid-2020. However, this Bill pre-empts that review, and could make changes to the RMA that are inconsistent with the direction the Panel might wish to go. The Bill also predetermines outcomes of the Essential Freshwater proposals, which might provide a better way forward than the “new specialised planning process for freshwater” proposed in the Bill.  

We support the Bill’s goal of reducing complexity, increasing certainty, restoring public participation opportunities, and improving the RMA processes. However, we think the Bill is fundamentally at odds with this objective.  We also consider it goes well beyond the stated intent of being a “narrowly-focused set of amendments to address problems that were relatively straightforward to correct”.

We are very concerned with the lack of stakeholder engagement on the proposals, particularly given the late addition of the Freshwater Planning process. The changes have significant repercussions for resource users, councils and ratepayers, and these have not been adequately consulted on.   The Bill adds nothing except to further confuse and complicate a piece of legislation that is already overly confusing and overly complicated.  It creates more bureaucracy and adds to the time delays already problematically inherent in the legislation.

For our key points, see below or see the pdf on this page for the full submission

We have five primary areas of concern with the Bill:

1. The Freshwater Planning Process proposals.

These will simply lead to ‘survival of those with the deepest pockets’, and very little individual input. This has been the case in previous similar fast-tracked planning processes with costly and time-consuming requirements for expert evidence, caucusing, cross-examination and rebuttal of evidence, along with extensive mediation and pre-hearing meetings. It is simply outside the costs and expertise of most submitters, and ultimately becomes overwhelming.

Furthermore, these expensive front-loaded requirements are to be cost-recovered from regional councils (who have no control over what processes take place, at what cost or intensity). It will ultimately be ratepayers (of whom farmers pay significant proportions) who pay the price.

We dispute there is an “urgent need to improve freshwater management and outcomes”. The Bill itself does not need to address freshwater management and the changes proposed are not urgent, even on the timeframes proposed in the Package. 

The proposals are in part based on those in the Auckland Unitary Plan, which was unique given the Council’s significant resources, staff at hand, experts within city boundaries and large ratepayer base. It was also one of the only plan processes taking place at that time, so sufficient expertise was readily accessible, which wouldn’t be the case if all councils were subject to same time requirements. 

We also caution that a requirement to reflect Te Mana o te Wai and Treaty settlements within plans requires sufficient cultural, legal and technical knowledge, resourcing and experience in very complicated matters, and it should be done meaningfully, respectfully and appropriately – not rushed. 

These proposals should instead be considered during the full review of the legislation. 

2. Enabling Environmental Protection Authority (EPA) to take enforcement action under the RMA

The proposal would empower the EPA to undertake investigation and enforcement actions under the RMA. Given time constraints, no appropriate engagement with stakeholders took place. 

The premise for change is that some councils lack capability in regard to their compliance, monitoring and enforcement (CME) functions.  A concern of government (and NGOs) has been that not enough enforcement action is taken. This disregards that fewer enforcement actions could be due to an improving in resource users’ understanding of issues and adaptation of good management practices.

We oppose the proposal. There should not be two agencies able to undertake CME of the same matters, in the same area. Far from increasing local decision making (as part of the Bill’s overarching objective) it instead takes away local powers and passes them to a centralised agency, who can intervene and take over local enforcement action matters. The EPA should only become involved and commence investigation and enforcement actions at the request of the relevant local authority.

The proposed change means that unless that aspect of a Council plan is under appeal, a call-in of consents may occur.  The current rules apply to coastal, water or discharge permits, but the proposal is to add ‘land use consents’ to this list.  Proposals also allow for a call-in of multiple consents concurrently – e.g catchment by catchment.

We have considerable concerns for consent holders.  It is not an easy to obtain consent, particularly in relation to water and associated land-use, where external financing is often required. The proposed changes would impact on investment certainty, making it difficult, if not unlikely, that banks would provide finance, given consent and ongoing investment certainty would not be ‘guaranteed’.  

We oppose the proposal.  The existing RMA provision is sufficient to address concerns. Going beyond that will have significant impact on the certainty of consent, and accompanying investment certainty. This is a matter that should be reviewed as part of the comprehensive review of the RMA

4. Increasing maximum infringement fees under the RMA

There are two primary difficulties with infringement penalties – firstly, any resulting fines directly reduce a person or company’s financial ability to fix the problem. In many cases, the money would be better spent on actual solutions. Secondly, infringement offences are absolute, and those facing the penalty are found guilty automatically, with no chance to query or challenge the matter. 

No justification for the significant increase is offered in the discussion of the proposal in the Bill. We seek deletion of the proposal. These ‘strict liability’ offences should not be subject to unreasonable infringement penalties.  

The Bill proposes to increase the current 6-month statutory limitation period for filing charges for certain offences under the RMA to 12 months.  A risk highlighted in the Regulatory Impact Statement is that this could result in councils taking more time than required to determine whether to prosecute. 

We oppose the proposed increase as it is neither appropriate nor necessary, in that agencies such as councils and the EPA should be able to determine whether or not enforcement action is appropriate within the existing 6 months period. Resource users are entitled to promptness and timeliness in the consideration of complaints against them, and the consideration of issues that may arise in the course of routine monitoring.