<&>Wellington Corpus of Spoken New Zealand English Version One <&>Copyright 1998 School of Linguistics & Applied Language Studies <&>Victoria University of Wellington <&>side one <&>2:30 thank you jonathon um <,,> the resource management act is a complicated piece of law reform and i assume NO KNOWLEDGE on the part of the audience but as this talk progresses <,> er you will find it becomes more intricate <,,><&>3 i want to divide these remarks into FOUR first of all what IS the resource management act <,,> <&>3:00 secondly the BACKGROUND to its development <,,><&>3 thirdly the reform process through which the whole project WENT <,> and fourthly some reflections on the METHOD of reform and indeed whether it's possible to generate any general theory about policy reform at all <,> er that has always seemed to me to be a <,> very intriguing question <&>microphone sound what's that <&>3:30 <&>dialogue and laughter <&>3:36 well the <,> the act itself <,,><&>3 is a very big one it's two hundred and eighty pages or more <,,> and the STRUCTURE of it is essential to understanding of it <,> obviously part one of <&>4:00 this act is simply the ordinary interpretive provisions that one finds in any legislation <,> but for THIS act the interpretation provisions are much more important than for most acts many of the KEY <,> provisions in this act are defined with GREAT particularity and have a LOT to do with how the rest of the act operates and it would be a great mistake for ANYONE using this statute not to pay attention to part one <,,> part two contains the purposes and principles and the principle is sustainability and i'll say a lot about sustainability in a little while <,> but the manner in which the particular provisions in part two interact with each other <,> is extraordinarily <,> dynamic unpredictable unclear and uncertain <,,> and it will await <&>5:00 decisions of the court of appeal before you KNOW how those provisions will work <,> those provisions actually DRIVE this entire statute <,,> the sustainability provision is a very generally stated but quite complex legal definition <,> and it DRIVES everything else <,> in this statute and every act or under the statute whether they be minister of local government or anything else <,,><&>3 PART THREE <,> contains heavy handed regulatory provisions <,> a lot of prohibitions a lot of dos and don'ts <,> a lot of things which say you can't DO any of the following <,,> unless <,,><&>3 and basically the <,> <&>6:00 principle is that in order to DO anything you need a resource <.>management you need <.>a you need a CONSENT under part six <,,> to put anything in the water to ditch it out to sea to contaminate the air <,> you need a resource consent <,,> and there are some things that you just CAN'T do and they are found in part three <,> part four sets out the functions powers and duties of central and local government <,> part seven deals with the vexed question of coastal tendering and indeed one of the untidy provisions of this whole statute relates to the coastline the coastline is NOT tidy from the way in which this statute works because there is a bifurcated set of responsibilities between the department of conservation and the regional councils <,,> and while that is not tidy it survived a long time in the statute and the <&>7:00 review committee of the national government couldn't find a better way of doing it <,> and the basic interplay of the forces there IS <,> er that the <,> regional councils are not trusted to look after the coastline adequately and the conservation organisations were not really prepared to allow them <.>ha to HAVE the same sort of er power that they have in relation to land use plans there is some justification for that on the basis that land use planning in new zealand is a great deal more developed there's a lot more word there's a lot more experience and a much better developed culture about land use planning than there is about maritime planning but er i would not expect that bifurcated control to last very long and I would expect it to provide quite a lot of difficulty <,,> you then go into the question of designations heritage orders the water conservation order provisions and the wild <&>8:00 old wild and scenic river er restrictions that came in in <,> er just about nineteen eighty I think they're kept there are water conservation orders tut unlike a lot of planning legislation overseas this deals with <.>sub divisions there's a whole set of new rules for subdivisions in here and the <.>dis and there's reclamations er dealt with as well <,> the planning tribunal it's er constitution it's structure the planning tribunal is not actually a tribunal it's a court er it's a court of record <.>pr presided over by a district court judge who has particular responsibilities in the planning area er and <,> <.>is in addition to that there are some very very HEAVY enforcement provisions in this act there are very heavy fines managers of companies are open to er vicious criminal penalties even in a personal capacity er and you can't sort of plead superior orders <,> the enforcement provisions of this statute are novel and strong <,,> then there <&>9:00 is the hazards control commission the hazards control commission was POKED in there in a very primitive form to ensure that noone was able to white ant it er so that you actually get a system of regulating hazardous substances in new zealand that at present we lack there is a need for to set standards there is a need for a scientific body to recommend to government how standards ought to be set for hazardous substances and the power to do that is STUCK in the statute all ready to go even though we haven't got a hazards control commission yet it's very important that we get one and it's very important that hazardous substances be dealt with systematically that area is a mess <.>i in new zealand at the moment there were a great <.>d many difficulties encountered in the policy making with the territorial imperative of the department of agriculture and various quangos under its control who wanted to be able <&>10:00 to do things with agricultural chemicals it is a very very fraught and difficult area <,> er then there are transitional provisions the transitional provisions are frankly a mess because noone looked at them er much in the scrutiny process and i expect there'll be quite a lot of er alarms and excursions er as the transition comes about <,,><&>4 now this statute <,,> replaces ALL the major resource statutes that there ARE or were in new zealand in total seventy FIVE other acts of parliament are repealed by this act of parliament there is therefore a net LOSS to the statute book of a lot of pages despite the size of THIS statute you now only have ONE you don't need a lot of OTHERS the main ones that are repealed are the town and country planning act the water and soil conservation act the clean air a great chunk of the local government act about sub <&>11:00 divisions the geothermal energy act the harbours act and the noise control act and a large number of other particular even local statutes er of a er great er <.>inclu including er the Clutha empowering act laughter <,,><&>3 now <,,> the purposes and principles <,> part of the act are the GUTS of it if you want to understand the logic of how this act works you have to govern <.>part you have to master part two of it <,> which deals with sustainable management of natural and physical resources <,> and sustainable management of natural and physical resources is the PRIME factor a secondary factor are facts matters of national importance in section six <,> they are heavily <&>12:00 environmental those provisions there are also in section seven some matters which are not quite as important AGAIN but which still have to be taken into account and then in section eight there is the treaty of waitangi provision about the principles a weaker formulation of that than one finds for example in the state owned enterprises act section nine not sure that the legal significance of that is very great it may very well be that parliament doesn't want to each day to give great weight to the principles of the treaty of waitangi but so long as <.>the the thing is mentioned in the act at all that's enough for the court of appeal and won't deter THEM from any decision that they want to make <,,> now exhales <,,><&>5 the PURPOSE which governs the entire statutory edifice <,> is to promote the sustainable <&><.>mis pronounced stustainable management of natural and physical resources <,> and for those <&>13:00 of you who like statutory interpretation and that should be all of you if you want to know anything about public policy er then you will find that there is a pretty intricate interplay in section five section five one says the purpose of this act is to promote the sustainable management of natural and physical resources <,> but er <,> we also find <,> in section five two <,> that <,> managing the use development and protection of natural and physical resources in a way or at a rate which enables people and communities to provide for their social economic and cultural wellbeing and for their health and safety <,> WHILE sustaining the potential in natural and physical resources excluding minerals cos that was chopped out of this bill and put in the crown minerals act <,> to MEET the <.>fores reasonably foreseeable needs of future <&>14:00 generations AND safeguarding the life supporting capacity of air water soil and ecosystems AND avoiding remedying or mitigating any adverse effects of activities on the environment <,> now believe me the way in which those words and that provision apply to particular cases provides very considerable scope for doubt <,> and what <.>the basic philosophy for this statute is is to say there is a single governing principle the principle of sustainable development <,> and the statute provides a process that you must go through and the processes may or may not lead to the relevant resource consent er which will enable a developer to do er what the developer wants <&>15:00 to do <,> now <,,><&>3 developers are going to have to make strong economic arguments about jobs about er infrastructural er <,> effects on the local economy of their developments <,,> and basically it will NOT be easy in my judgement for developers to succeed with very big developments here the <,> sustainability principle clearly puts limits <,,> on development <,,><&>4 section six contains matters of national importance <,> er those matters <,> the preservation of the natural character of the coastal environment is a very important one of those <,> and um notice the word inappropriate here which governs all that the word inappropriate is probably a slightly weaker <&>16:00 formulation than in the old law where it was er unnecessary <,> er but nevertheless i think that the coast is pretty secure under this wetlands lakes rivers and their margins <,> and then there are the other factors outstanding natural features of landscapes protection of significant indigenous vegetation and habitats of indigenous fauna maintenance enhancement of public access and relationship of maori and their culture now those things are important but NOT as important as the principle which drives the whole act in section five <,> section seven contains a number of other matters <,,> <&>seven syllables of Maori efficient use of development of natural physical resources <&>17:00 amenity values ecosystems and er a lovely little number that the acclimatisation society's put in at the last minute protection of the habitat of trout and salmon not being indigenous you see actually that provision is reasonably significant if you look at some of the previous er decided cases of the planning tribunal and water catchment <,> um <,> now <,,> the section eight treaty provision is in those terms <,,><&>4 one of the first decisions that was made in the policy generating er process of this ACT was to ensure that the ownership provisions <,> of resources were NOT dealt with <,> er we had a lot of consultation with maori and came to the conclusion er that if we took some of the advice that property rights should be er the way to run this thing then the property rights should be allocated and all the crown <&>18:00 mineral resources and then everything else you could think of er and then you would use the property rights model as a MEANS of adjusting er the dispute the problems you'd get into you'd get into MASSIVE treaty problems i mean for example water water's <.>a quite an important resource you want to ask electricorp about it sometime er and er you will find er that if maori claims water under the treaty er you were really gonna be BUYING a BARREL of problems if <.>you if you dealt with er the OWNERSHIP so i put ownership OUT on one side to the chagrin of some er policy advisers and said do we want to PASS this statute the purpose of statutes is to PASS them <.>a and if you want to argue about property rights go ahead but this is not a theoretical exercise this is a law <&>18:55 reform exercise