When announcing the “new system to make planning easier for everyone”, Minister Chris Bishop said,
“Our new planning system is a once-in-a-generation opportunity to cast off the shackles imposed by the broken Resource Management Act, and set New Zealand on a path to economic growth that lifts our living standards and protects the environment…“Our reforms will strip out duplication in the system, standardise processes, and drive down complexity and compliance costs.”
Casting off the shackles of the RMA will be music to the ears of those who have, for a very long time, been frustrated by the RMA. In 2020 I wrote this:
“If the government wants to get New Zealand working it should get rid of the Resource Management Act (RMA). Even one of its architects, Geoffrey Palmer, has said it’s broken. It is and has been for quite some time, which is why it’s so frustrating that the problem has been allowed to persist for so long, more so because National’s tinkering during its last term made it worse, not better.
“The RMA started out with great intentions. It was sold to the public on the basis that it was “enabling”. Any scheme imaginable could be proposed and proceed providing its effects were no more than minor or could be managed in such a way to be no more than minor. That was seen as a breath of fresh air in juxtaposition to the prescriptive Town and Country planning rules that preceded it.
“What was promised some 20+ years ago by Geoffrey Palmer (Labour) prior to the 1990 election, and then by Simon Upton following National’s victory, and what has eventuated is at opposite poles.
“The implementation of the RMA falls upon local authorities and requires a high degree of discretion. In hindsight, giving the power of discretion to local bodies was never going to work out well for those who rely on the marketplace to earn a living, property developers for example. Planning staff and developers are chalk and cheese, and I suggest that most planners view developers through the same tainted lens that our current government [Labour] views landlords. I gained that perception while working closely with planners during my time as a councillor and member of the planning committee, which included reviewing staff reports for non-notified consents.
“One would have to be visually impaired not to notice that staff were imposing conditions advocated by environmental [lobby] groups. This manifested itself with staff requiring layers upon layers of reports and expert opinions and seeking further expert opinions until they found one favourable to their own views.
“Some, if not most, of these experts engaged by council staff were similarly inclined in their bias. I recall a case where council staff endorsed the view of a tree expert who opposed the removal of four problem trees from the council’s notable tree register. Only when questioned was it revealed that his opposition was because “the Amazon is burning and without trees, the world will die”. It did not seem to matter that the four trees were a common species that were endangering residents and creating a host of other nuisance issues. His view was that there was a greater good – survival of the planet no less. This kind of “expert” extremism is rife throughout the RMA [gravy-train] industry. Rarely does it reveal itself in the text of their reports, but it is embedded in the effect of their recommendations.”
In other words, the effects-based approach that relied on the discretion of planning staff had become captured by vested interest groups intent on advancing their own political agendas or lining their own pockets, and that includes Maori who have latched onto the financial advantages of the special status successive governments have granted them under the pretence of a Treaty partnership.
I have seen it firsthand. During my time as a councillor and consents commissioner, “cultural impact statements” were often photocopied templates sold to applicants as fresh assessments—a lucrative, low-effort enterprise. I was also regularly told of cash payments for consent, which many considered to be extortion but less costly than the alternative, which was to go to a hearing.
A more recent example involves a subdivision application to split a lifestyle property into two titles. The council required consultation with two hapū that they said had kaitiaki status – referred to in the RMA as a Mana Whakahono a Rohe agreement (which translates to “authority to work together within a region”). That agreement gave the hapu guardian status and the right to be consulted on resource consent applications.
The nearest hapu, 20 km away, had no objections. The other was less obliging. Despite their closest marae being some 60 km away, their concerns included the effect an access road would have on nearby juvenile kauri trees (which they considered to be taonga) and potential adverse effects on their cultural and spiritual values.
To address these concerns, the hapu demanded a karakia by a Kaumatua before any earthworks began (at $150 hour plus travel); replacement of all removed native vegetation at a 4:1 ratio (despite the landowner already committing to designate some 80% of the land area as conservation reserve); kaitiaki monitors on-site during the earthworks, (at $75 hour plus travel); and consultant fees ($200 hour).
After various meetings and invoices totalling $3,200, the landowner concluded the hapu had no meaningful connection with his land. He saw it as a scam and resented being placed in a position where the least costly option was to shut up and pay up.
The hope is that new legislation will put an end to the cultural extortion, but will it?
The answer is not a simple yes or no.
What it does do is remove local councils’ authority to enter into Mana Whakahono a Rohe agreements and vest that power in the Crown. So, it will be up to the government of the day (presumably the Minister for Local Government) to decide whether hapu or iwi are given guardianship of an area, with all of the privileges and opportunities to generate income that go with it.
The indication, at least by the current government, is that no new voluntary agreements (like Mana Whakahono ā Rohe) can be established unless they are specifically required by a Treaty of Waitangi settlement.
The status regarding the existing Mana Whakahono a Rohe agreements is clearly spelt out in section 21 of the First Schedule to the Planning Bill. It states, “A Mana Whakahono ā Rohe arrangement that exists or has been initiated immediately before this Act received Royal assent continues in effect”.
However, even where an agreement is preserved, its power in individual resource consents may be diminished because the new laws will raise the legal threshold for notification of an application and override lower notification thresholds stated in the agreements.
In answer to the question: Will the new legislation proposed by the coalition government address the cultural extortion? The answer is a definitive maybe.
The bigger question is why culture should have any place to play in planning laws at all.
Frank Newman served two terms on the Whangarei District Council including as a Resource Consents Commissioner.