11 November 2024 • 12 minute read

Legislation changes in resource management in New Zealand

There has been a flurry of legislative developments and announcements over the last quarter as the Government continues to progress with its reforms of the Resource Management Act 1991 and national direction. This article summarises key legislative and policy developments, including:

The Government's announcement on "Stage 3" reform.
Latest developments on the Fast-track Bill.
The passing of the Resource Management (Extended Duration of Coastal Permits for Marine Farms) Amendment Act 2024.
The passing of the Resource Management (Freshwater and Other Matters) Amendment Act 2024.
Changes made to the National Policy Statement (NPS) for Highly Productive Land 2022 and proposed changes to the Resource Management (National Environmental Standards for Commercial Forestry) Regulations 2017.

MAJOR ANNOUNCEMENT ON REPLACEMENT FOR THE RMA

The Government's announcement of its "Stage 3" reform of the Resource Management Act 1991 (RMA) created quite a stir¹, as the priorities and timeline for a comprehensive reform were announced.

Read our article about this announcement, RMA Reform Phase Three: Déjà vu – another replacement RMA, and the Government's RMA Reform Phase Three Fact Sheet for further details.

DEVELOPMENTS FOR THE FAST-TRACK APPROVALS BILL

The Fast-track Approvals Bill (Fast-track Bill) was introduced to the House on 7 March 2024 and proposes to give ministers broad powers to approve certain proposals. The Fast-track Bill has attracted a wide range of criticism from all parts of the political spectrum.

The Environment Select Committee Report was released on 18 October 2024. You can read our update on the significant changes Fast-track Approvals Bill: key changes and implications for projects in New Zealand, for more information. The Fast-track Bill received nearly 27,000 submissions, making it one of the Bills receiving the most submissions in New Zealand history. The Fast-track Bill is expected to go before Parliament for its second reading in November.

There have been two major developments while the Select Committee Report was awaited. Notably, a number of changes previously announced by the responsible Ministers were also addressed in the Select Committee Report.

On 25 August 2024, the responsible Ministers announced a number of changes to the Fast-track Bill², which included:

Projects will be referred to an expert panel by the Minister for Infrastructure alone, who will be required to consult the Minister for the Environment and other relevant portfolio Ministers as part of that referral process.
Final decisions on projects will not sit with Ministers but with the expert panel.
Expert panels will include expertise in environmental matters; will include an iwi authority representative only when required by Treaty settlements; and will include Māori development expertise in place of mātauranga Māori.
Applicants will be required to include information on previous decisions by approving authorities, including previous court decisions, in their applications for the referring Minister to consider.
Timeframes for comment at the referral and panel stages will be extended to give parties, including those impacted by a proposed project, more time to provide comments.

The Government released the list of "Schedule 2" projects on 6 October 2024, which will be able to use the fast track process. The listed projects were considered to have significant regional or national benefits. The list includes 149 projects out of the 384 projects that applied for inclusion. These projects include:

58 housing and land development projects
43 infrastructure projects
22 renewable electricity projects
11 mining projects
8 quarrying projects
7 aquaculture and farming projects

The list quickly attracted public criticism regarding the lack of environmental protections in the Fast Track process and the inclusion of projects that have previously been rejected by the courts, such as the proposal by Trans-Tasman Resources to extract 50 million tonnes of seabed material (iron sands), for which resource consents were quashed by the Supreme Court.³

THE RESOURCE MANAGEMENT (FRESHWATER AND OTHER MATTERS) AMENDMENT ACT 2024

The Resource Management (Freshwater and Other Matters) Amendment Act 2024 (FW Act) reflects part of the current Government's "second stage of reform" of the resource management system. The FW Act amends:

the National Policy Statement for Freshwater Management 2020 (NPS-FM),
the National Policy Statement for Indigenous Biodiversity 2023 (NPS-IB),
the Resource Management (National Environmental Standards for Freshwater) Regulations 2020 (NES-F),
Resource Management (Stock Exclusion) Regulations 2020 (Stock Exclusion Regulations),
and the Resource Management Act 1991 (RMA) itself.

Read our previous article summarising the Bill, Legislative update: key changes in resource management.

The FW Act was passed on 23 October 2024, received royal assent on 24 October 2024, and came into force on 25 October 2024.

This followed the Select Committee Report on the Resource Management (Freshwater and Other Matters) Amendment (FW Bill) released on 30 September 2024.⁴ Some of the key amendments recommended by the Select Committee that have been included in the enacted FW Act are:

Amendments to NPSIB: The Select Committee recommended clarifying that the suspension of the NPSIB requirement on councils to identify new significant natural areas in plans does not alter the functions or requirements of local authorities and decision makers to protect biodiversity and does not affect policy statements, proposed policy statements, plans, proposed plans, or changes under the RMA that were initiated or in progress but not completed before the Bill's commencement.
Intensive winter grazing: The FW Bill proposed generally repealing the intensive winter grazing and intensification regulations. The Select Committee recommended including new regulations preventing intensive winter grazing closer than five metres to the bed of any river, lake, wetland, or drain and prohibiting intensive winter grazing within or adjacent to any critical source area. Vegetation must be maintained as ground cover over critical source areas (excluding cultivation or harvesting of annual crops).
Amendments to national directions: The Select Committee recommended that the Minister should have to consider the scale and significance of an amendment and provide reasons for any decision to amend an NES (which can be done without consultation or submissions). The Select Committee recommended inserting a new section in the FW Bill to ensure that matters in Part 2 of the RMA, including sustainable management, are considered when reporting on a national direction proposal. The Select Committee also recommended changes to allow the Minister to “extend” timeframes for implementation rather than “change”, so that timeframes for implementation cannot be brought forward unexpectedly.
Extending proposals to resource consent applications made but not yet determined: The Select Committee also recommended that changes to sections 92, 104, and Schedule 4 (identifying that the hierarchy of obligations in the NPS-FM does not apply to resource consents) should apply to consent applications lodged but not yet decided, as well as new consent applications.

Discharges

The Select Committee recommended changes to section 107 of the RMA, which previously prevented a discharge permit from being granted if a council was satisfied that the discharge was likely to result in any significant adverse effects on aquatic life. Section 107 was not subject to submissions and was not part of the original FW Bill, but these changes were sought by several primary industry submitters in response to recent High Court decisions.⁵ In summary, the recommended change was:

We recommend inserting clause 23A to amend section 107 of the RMA. This would enable a discharge permit or a coastal permit to be granted where the discharge may contribute to significant adverse effects on aquatic life, if the consent authority:

is satisfied that receiving waters are already subject to significant adverse effects on aquatic life;
imposes conditions on the consent;
is satisfied that those conditions will contribute to a reduction of those significant adverse effects on aquatic life over the duration of the consent.

The committee also recommended inserting clause 44 to make clear that the proposed amendment in clause 23A applies to all resource consent applications, including those already lodged with a consent authority.

These changes were adopted as new section 107(2A) in the enacted FW Bill, representing a significant and somewhat unexpected change to section 107’s application to discharges.

Amendments to the freshwater planning regime

By way of an Amendment Paper, the Government also made changes to the FW Bill (section 80A(4A)-(4B)) to prohibit regional councils from publicly notifying a freshwater planning instrument (plan change) to give effect to the NPS-FM before either the replacement of the NPS-FM or December 2025 (whichever is sooner). The Minister for the Environment can grant an exemption from this requirement based on a listed set of grounds (including natural hazards/flood protection) or "for any other reason the Minister considers appropriate". The stated reason for this change is to "provide farmers the clarity they need around freshwater management, minimise inefficiencies and duplication for councils, and prevent unnecessary costs for ratepayers".

This prohibition will have retrospective effect to 22 October 2024 (when the Amendment Paper was introduced). Presumably, this means that any freshwater planning instrument notified before this date will still continue. However, regional councils that have yet to give effect to the NPS-FM will have to wait until it is replaced or until the end of next year.

RESOURCE MANAGEMENT (EXTENDED DURATION OF COASTAL PERMITS FOR MARINE FARMS) AMENDMENT ACT 2024

The Resource Management (Extended Duration of Coastal Permits for Marine Farms) Amendment Act 2024 (Marine Farms Act) was enacted on 27 August 2024. The Marine Farms Act amends the RMA to automatically extend all coastal permits for aquaculture by 20 years, but not beyond 2050. It is currently awaiting royal assent to commence.

The Marine Farms Act provides an opportunity for a one-off review by a consent authority of the conditions of a coastal permit that has been extended, within two years of the extension. However, this review is optional and can only be initiated by the consent authority with the "concurrence" of the Director-General of MPI, meaning there is no guarantee of a review.

Further, consent authorities will bear the cost of a review. The review cannot focus on amending the duration, species, or area covered by the consent, limiting the ability to review a coastal permit for purposes necessary to promote sustainable management. No hearing can be held as part of the review, and the inquiry is specifically directed at promoting resources directly related to the marine farm rather than the broader environment. A consent authority’s decision on a review is limited to appeals to the High Court on questions of law.

OTHER CHANGES

Changes in force to the National Policy Statement for Highly Productive Land

The NPS for Highly Productive Land 2022 has been amended. These changes were gazetted on 16 August and came into effect on 14 September 2024.

The amendments primarily address what has previously been considered a mistake. The development and construction of new specified infrastructure on highly productive land is now directly referenced within the potential exceptions in clause 3.9, which pertains to the requirement for territorial authorities to avoid inappropriate use or development of highly productive land that is not land-based primary production. This amendment reflects the policy direction in Policy 8 of the NPS, ensuring that highly productive land is protected from inappropriate use and development.

This amendment clarifies that the activities related to the development, operation, or decommissioning of specified infrastructure—including (but not limited to) its construction, maintenance, upgrade, expansion, replacement, or removal—are potentially within the scope of what can be considered an exclusion from inappropriate development. However, it must also be demonstrated that there is a functional or operational need for the use or development of specified infrastructure on highly productive land.

The amendment also adds greenhouse and intensive indoor primary production to the list of activities that may not be considered inappropriate.

Changes to the national environmental standards for commercial forestry

The Government announced changes to the Resource Management (National Environmental Standards for Commercial Forestry) Regulations 2017 (NES-CF) on 5 September 2024.⁶ The Forestry Minister stated that the Government will make several changes to the NES-CF to "ensure councils have the tools they need". In particular, the Government proposes to:

repeal regulation 6(4A), which states that a rule in a plan may be more stringent or lenient than the NES-CF regulations relating to afforestation;
modify regulation 6(1)(a), which states that a rule in a plan may be more stringent than the NES-CF regulations if the rule gives effect to an objective developed to give effect to the National Policy Statement for Freshwater Management; and
improve slash management standards to clarify rules around slash on low-risk land.

The intended outcome is to significantly reduce councils' ability to introduce more stringent or lenient rules within their districts/regions. Consultation on the amendments to the NES-CF is expected to open soon.