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This is the very first occasion on which I have set foot in the Waikato University Law School. As some of you will be aware, I was one of the most outspoken opponents of the establishment of the School. In the circumstances, it was only reasonable that the Law School should avoid beating a path to my door! But since my objections were no match for the University’s persistence, it was inevitable that I should have to come, some day, and do penance. You can imagine, then, my pleasure at receiving the call to confession from my old employers, Stace, Hammond, Grace & Partners; and being granted the indulgence of preaching on a topic of my choosing - the one condition being that I should talk about something of practical value to the profession. In seizing the opportunity so provided, to expatiate again on the meaning of section 5 of the Resource Management Act, I hope I will discharge the burden of my local heresy without asking you to endure statutory purgatory.
Part II of the Resource Management Act (hereafter the RMA) is entitled “Purpose and Principles”. But there is no further mention of principles anywhere in the part. All we have, in section 5, is a purpose clause. And, in simple terms, the purpose of the RMA is said to be the promotion of the sustainable management of natural and physical resources.
What is a purpose clause? The Renton Committee stated that purpose clauses were designed “for the better understanding of the legislative intention and for the resolution of doubts and ambiguities”. It recommended that they should be used “when they are the most convenient method of delimiting or otherwise clarifying the scope and effect of legislation”.[1]
I am not sure how useful a guide this is. What legislative intention, and about what are we concerned? As G C Thornton has warned:
It is very easy to produce a string of rather grand phrases of the kind that would fit well into a party policy document. It is not so easy to compress into few words a summation of the problems sought to be addressed by legislation and the remedy prescribed.
And then, as if to soften the blow, he adds:
It is nevertheless often worth a careful attempt.[2]
Sir William Dale has suggested that a purpose clause is concerned with the reason for legislation - why we have it.[3] A provision of this type will tell us something about the issue that the statute seeks to address and possibly the outcome that is sought.
Burrows has characterised purpose clauses of this type as being “little more than a summary of what the Act expressly says: it may be called the effect of the Act as much as its purpose”.[4]
But as Burrows notes, some purpose clauses go beyond summarising what the Act does and address, instead, “the social, economic or other end which Parliament was hoping to achieve by the Act”.[5]
The distinction between these two types of purpose clauses can be illustrated by reference to section 4 of the Ozone Layer Protection Act 1990 and section 4 of the Museum of New Zealand Act 1992.
Ozone Layer Protection Act 1990
4. Purpose of Act - (1) The purpose of this Act is to help protect human health and the environment against adverse effects resulting or likely to result from human activities which modify or are likely to modify the ozone layer -
(a) By providing for the phasing out by the year 2000 of all but essential uses of controlled substances and for the restriction of the use of other ozone depleting substances; and
(b) By giving further effect to New Zealand’s obligations under the Vienna Convention for the Protection of the Ozone Layer and the Montreal Protocol on Substances that Deplete the Ozone Layer (copies of the English texts of which are set out in the Fifth and Sixth Schedules to this Act).
(2) Every person exercising any power or discretion conferred by this Act shall have regard to that purpose.
Museum of New Zealand Act 1992
4. Purpose of Act - The purpose of this Act is to establish a National Museum that, under the name Museum of New Zealand Te Papa Tongarewa, shall provide a forum in which the nation may present, explore, and preserve both the heritage of its cultures and knowledge of the natural environment in order better -
(a) To understand and treasure the past; and
(b) To enrich the present; and
(c) To meet the challenges of the future.
Section 5 of the RMA is clearly the second type of purpose clause. In describing the Act’s purpose as the promotion of the sustainable management of natural and physical resources, section 5 spells out the end that is sought. The use of the word “promote” is significant in this regard. The section does not describe a particular, defined outcome in the sense that the Ozone Layer Protection Act can state, quite definitively, that it is about “protecting human health and the environment against the adverse effects resulting or likely to result from human activities which modify or are likely to modify the ozone layer”. Rather, it describes a goal which may or may not be achieved (and even then that will be in the eye of the beholder) but the promotion of which will be encouraged through the application of the Act’s provisions.
If Clause 5 had stopped there, without further elaboration, it might well have fallen foul of the Renton Committee’s injunction against statements of purpose that amount to little more than a “mere manifesto”[6] or Professor Dickerson’s “pious incantation”.[7] But section 5(2) then proceeds to a detailed definition of just what sustainable management entails. In doing so, it illuminates the professed purpose of the Act in a way that goes even further than spelling out a desired “end” of the legislation: it erects sustainable management as a principle.
Dale describes a principle as “a statement in general terms, showing on its face, so far as may be, the moral, social, or economic basis on which the statement itself, and the particular provisions which follow it, rest, and which is itself law making”.[8] Or as Bentham, whom Dale cites, put it, “a principle is a first idea, which is made the beginning or basis of a system of reasoning .... a fixed point to which the first link of a chain is attached”.[9]
Attention to principles in legal drafting is sometimes said to invoke a “continental” approach. In preparing for this lecture, I dipped liberally into the extensive literature, with which statute law experts amongst you will be familiar, on the difference between common law and continental traditions. One of the most engaging and provocative accounts I came across was a piece by Nigel Jamieson from Otago University.[10] His description of the continental approach reveals the RMA as a quintessential example of the type: simple rather than complex, general rather than particular, abstract rather than concrete, academic rather than experiential, principled rather than elemental, conceptual rather than textual, substantive rather than procedural, politically motivated rather than legally addressed.[11]
As one who was intensely involved with the drafting of section 5 of the RMA, I am in little doubt that we saw ourselves grappling with an abstract, conceptual, substantive and politically motivated principle that had to be given a meaningful legal expression. Our deliberations were the culmination of a huge expenditure of intellectual effort in seeking to pin down this principle of sustainability. Few legislative initiatives in our history can have generated the amount of paper than did the Resource Management Law Reform process (or RMLR as it came to be known). Working Paper number 24 contains a series of essays on Sustainability, Intrinsic Values and the Needs of Future Generations[12] that illuminate the debate over whether some conception of sustainability should provide an over-arching principle governing the legal framework within which air, land, water and minerals were allocated and regulated. Karen Cronin of the Ministry for the Environment summarised the reasons for and against making sustainability the primary objective of resource management. Of objectives she had this to say:
Objectives are a statement of intention and direction established to guide behaviour and action. They provide an indication of purpose, allow for the reconciliation of subsidiary issues, and can be used to set criteria for monitoring the outcomes of the system and its performance against what was intended.[13]
A key problem with previous legislative formulae governing resource management was felt to be the mixed and sometimes conflicting objectives that governed resource allocation. Section 4 of the old Town and Country Planning Act was typical of this approach, enjoining those empowered under it to adopt as their general purpose “the wise use and management of the resources, and the direction and control of the development of .. [land] .. in such a way as will most effectively promote and safeguard the health, safety, convenience and economic, cultural, social and general welfare of the people, and the amenities” in question.
Such a general and all-embracing description of the purpose of planning arguably provided no guidance at all. It would have been truly remarkable if those empowered under the Act could have conceived of themselves as presiding over the unwise use of resources so as to promote ill-health, danger, inconvenience and a negation of the welfare of people! The meaning of such an expression of purpose could only be discovered in practice, and defined in terms of the facts of each case. Inevitably, that would involve a pragmatic attempt to balance competing claims that might not be easily reconcilable. In the absence of some guiding principle, almost any outcome could be argued to have met the Act’s purpose.
By prioritising the objectives governing resource management and giving pre-eminence to one of them - sustainability - the RMLR process changed all that. Only sustainable outcomes were to be acceptable - in other words, whatever the trade-offs in the circumstances of the case, a highest level trade-off in favour of sustainability had already been made in legislation in advance. Whether sustainability should be the pre-eminent objective was fiercely debated. Cronin recorded the arguments for and against. These, for our purposes, are less interesting than the reasons she gave for having a pre-eminent objective. In abbreviated form, they were as follows:
- certainty of legislative direction and intent;
- clarity of overall philosophy;
- provision of a bottom line against which to judge resource management decisions;
- provision of a framework and clear parameters for decision making;
- a reference point for resolving conflicts;
- avoidance of judicial policy making in respect of questions which involve making choices about values that are essentially political in nature;
- provision of an overall national policy to guide regional and local decision makers;
- a clear yardstick against which the effectiveness of the legislation could be assessed;
and, most revealingly of all,
- making a fundamental value judgement to avoid the obscure and uncertain business of weighing competing objectives.[14]
Or in Cronin’s own words:
Without priority, perpetuation of resource disputes is likely; it would be better to say where we stand once and for all.[15]
It is the value-laden nature of the idea of sustainability that is unavoidable. And the decision to give it pre-eminence - however it was finally defined - inevitably involved erecting a governing principle that carried far more ethical weight and direction than a simple statement of purpose. One of the simplest, and, I think, most telling contributions came from the DSIR who, in an appendix to Cronin’s paper, had this to say:
Sustainability is a general concept and should be applied in law in much the same way as other general concepts such as liberty, equality and justice.[16]
In other words, sustainability involves an ethical dimension over and above anything that it says about outcomes. In my view, section 5 is then somewhat misleadingly labelled a purpose clause. By giving sustainable management pre-eminence over resource management objectives, the Act’s authors sought, in Dale’s terms, to set it up as a fundamental truth, a fixed (and value-laden) point from which all subsequent reasoning should proceed.
A tidier approach might have been to adopt the formula used in the Fiscal Responsibility Act 1994, a similarly value-laden piece of legislation. In that case there was no recourse to a purpose clause. Rather, the long title of the Fiscal Responsibility Act describes “an act to improve the conduct of fiscal policy by specifying principles of responsible fiscal management and by strengthening the reporting requirements of the Crown”. Detailed principles are then specified in section 4 which revolves around reducing Crown debt to prudent levels, managing fiscal risks prudently and ensuring that over time expenditure does not exceed revenue. The principles flow from a particular view about what constitutes prudent financial management. As such, they erect a standard against which the actions of governments can be assessed in much the same way that the decisions of resource managers can be assessed against section 5 of the RMA.
Sustainable management is, then, enshrined not so much as the purpose of the RMA but its guiding principle. And to be able to build a confident line of reasoning from this fixed point, it is necessary to know just what value judgments are contained within the definition of sustainable management provided in section 5(2). I shall turn to that question presently. But it is appropriate first, to consider the implications of characterising section 5 as a “principles” clause (for which the heading of Part II provides at least limited sanction).
If we are to adopt the Renton Committee’s view that a purpose clause should be used when it is “the most convenient method of delimiting or otherwise clarifying the scope and effect of legislation”,[17] it will become clear that a statutory statement of principle goes much further. To delimit or otherwise clarify the “scope” of legislation is to undertake an exercise of definition at the margin. In other words, there is assumed to be a self-evident statutory mission that will at the margin require clarification.
By contrast, a statement of principle is concerned not with delimiting the outer margins of the statutory instrument but spelling out its motivating core. As such, it goes to the heart of the way in which the Act speaks. Or, as Dale puts it:
A statutory principle should be a general formulation - a ‘first position’ - but it must have a law-making content; it must not merely state a policy, or a philosophy, or an ideal.[18]
If this is the case, it is important that the principle of sustainable management can be clearly stated. The fact that Parliament felt the need to define sustainable management at some length suggests that it is not a principle or concept whose meaning is immediately self-evident. And there is a danger that definitions of this kind invoke all sorts of ingenious semantic dissection. Many in the profession, I expect, are rather hoping that the judiciary will settle the matter. One academic, Martin Philipson of Victoria University, has already urged the Planning Tribunal to be “adventurous and attempt to tackle the clearly difficult task of finding meaning for, and then developing, the philosophical heart of the Act”.[19] Rather, what is required is careful attention to the language of section 5 and Parliament’s intention in choosing the formula that it did.
While I sympathise with Mr Philipson’s enthusiasm to see the philosophical heart of the Act exposed, I don’t believe that it is judicial adventurousness that is required. Section 5 was crafted with great care. And, it was with that effort fresh in my mind, that I spelt out in my third reading speech precisely what we were trying to achieve through section 4. I should like to quote the relevant passage from that speech in its entirety:
Unlike the current law, the Bill was not designed or intended to be a comprehensive social planning statute. It has only one purpose - to promote the sustainable management of natural and physical resources, and it does that in two ways: first, through the allocation of resources in public ownership such as the coast and geothermal energy; and second, through limiting the adverse environmental effects of the use of natural and physical resources. For the most part, decision makers operating under the Bill’s provisions will be controlling adverse effects - especially in the use of private land.
The Bill should be seen as legitimising intervention only to achieve its purpose. To limit the reasons for and the focus of intervention is intended, not only to achieve sustainability of natural resources, but also to facilitate matters for those who seek consents. Benefits will flow from there being fewer but more targeted interventions. Better environmental quality will be achieved with fewer restrictions on the use and development of resources, but higher standards in relation to their use.
The current law allows - indeed encourages - almost limitless intervention for a host of environmental and socio-economic reasons. That has resulted in a plethora of rules and other ad hoc interventions that are intended to achieve multiple and often conflicting objectives. In many instances they achieve few clear objectives, but they impose enormous costs on developments of any kind.
In addition, there was a multiplicity of legislative acts and control authorities relevant to any proposal. The duplications, overlaps, delays, and costs resulted in the call for an integrated streamlined statute with a clear purpose and focus. It was the ability of Sir Geoffrey Palmer to tackle that question and to bring together this panoply of various legislative interventions and mechanisms that will I believe go down as his single biggest contribution to this Parliament.
The Bill has developed during four years of consultation and debate under two governments. I believe that today we have the clear focus of purpose that is needed - and, of course, the purpose is found in Clause 4 which promotes the sustainable management of our natural and physical resources. This clause has been the subject of intense debate by competing parties that have argued alternatively that it is weighted too far in favour of development or too far in favour of the environment. Critics have been pre-occupied with whether an appropriate balance is struck in this clause.
To my mind, that is to miss the point of the clause and, indeed, of the Bill as a whole. Given that the purpose clause of a major code such as this will inevitably invite judicial consideration - probably sooner than later - it is important that certainty is quickly established on this point. To the extent that judicial notice is taken of Hansard - and I hope that it will be taken in this case - I should like to take the trouble to make a carefully considered assessment of the intention of Parliament on this occasion.
It is useful to compare Clause 4 with the language of two predecessor statutes subsumed within this measure - the Town and Country Planning Act 1977 and the Water and Soil Conservation Act 1967. Both Acts make reference to a mode of economic management that has all but vanished in this country. Clause 4 of the Town and Country Planning Act deals with the wise use and management of resources - of the direction and control of the development of a region, district, or area - in order to effectively promote and safeguard health, safety, convenience, and economic, cultural, and social welfare.
The Water and Soil Conservation Act deals with the promotion and control of the multiple uses of natural water and the drainage of land, and with ensuring that adequate account is taken of the needs of primary and secondary industry. There was a strongly dirigiste flavour about the statutes that saw those who exercised powers under them actively directing economic activity and making trade-offs in the interests of wise uses. When the Bill came back to the House before the election it still had a strong flavour of that about it, despite the consolidation that had been achieved.
Sustainable management still included “the use, development, or protection of natural and physical resources in a way which provides for the social, economic, and cultural needs and opportunities of people and communities”. The problem with such a prescription is that it requires the kind of directive and controlling approach to economic and social activity that must inevitably focus on trade-offs reached in a judicative euphoria. Many still feel comfortable with that approach, usually on the grounds that their view of needs and opportunities will win out on the day. In truth, it is an approach to resource use that is fraught with uncertainties for developers and environmentalists alike.
In adopting the present formulation of Clause 4 the Government has moved to underscore the shift in focus from planning for activities to regulating their effects of which I have spoken. We run a much more liberal market economy these days. Economic and social outcomes are in the hands of citizens to a much greater extent than they have previously been. The Government’s focus is now on externalities - the effects of those activities on the receiving environment - and those effects have too often been ignored.
Clause 4 enables people and communities to provide for their social, economic, and cultural well-being. Significantly, it is not for those exercising powers under the Bill to promote, to control, or to direct. With respect to human activities it is a much more passive formulation. People are assumed to know best what it is that they are after in pursuing their well-being. Rather, those who exercise powers under the legislation are referred to a purpose clause that is about sustaining, safeguarding, avoiding, remedying, and mitigating the effects of activities on the environment. It is not a question of trading off those responsibilities against the pursuit of well-being. Well-being is mentioned because the Bill is, of course, about the effects of human agency on the environment. The Bill would be quite unnecessary if there were no human activity.
The Bill provides us with a framework to establish objectives with a biophysical bottom line that must not be compromised. Provided that those objectives are met, what people get up to is their affair. As such, the Bill provides a more liberal regime for developers. On the other hand, activities will have to be compatible with hard environmental standards and society will set those standards. Clause 4 sets out the biophysical bottom line. Clauses 5 and 6 set out further specific matters that expand on the issues. The Bill has a clear and rigorous procedure for the setting of environmental standards - and the debate will be concentrating on just where we set those standards.[20]
My reference to future judicial assessments was a deliberate indication of the political, value-laden significance of clause 4 (section 5 as it became).
Traditionally, of course, the courts have declined to refer to Hansard as a source of enlightenment. Lord Scarman, in Davis v Johnson, summarised the reluctance in these terms:
... such material is an unreliable guide to the meaning of what is enacted. It promotes confusion, not clarity. The cut and thrust of debate and the pressure of executive responsibility, the essential features of open and responsible government, are not always conducive to a clear and unbiased explanation of the meaning of statutory language. And the volume of parliamentary and ministerial utterances can confuse by its very size.[21]
For which, read (unless I am very much mistaken): “Don’t take too much notice of politicians - they haven’t much idea what they’re rabbiting on about!” This made the decision in Pepper v Hart very welcome in its extensive review and relaxation of the exclusionary rule with the result that Hansard could thenceforth be used “as an aid to the construction of legislation which is ambiguous or obscure”.[22] The Court noted that recourse to Hansard was only likely to be useful where the “promoter of the legislation has made a clear statement directed to that very issue”.[23]
Whilst I would not admit to ambiguity or obscurity in the phrasing of section 5, I am acutely aware that abstract principles, of the kind that section 5 seeks to enshrine, raise drafting nightmares given their roots in political and philosophical debates. For that reason, I hope my third reading speech provides the sort of “really useful background” that the New Zealand Court of Appeal was referring to in signalling its willingness to refer to Hansard in Devonport Borough Council v Local Government Commission.[24]
Having said that, third reading speeches have their limitations. One is brevity. Each speaker is allowed just 10 minutes to report on the deliberations of the House in its committee stages. Given the party political game-playing that goes on one has, in truth, to observe that many such 10 minute contributions are far too long. But in the case of the RMA we were reporting not just on the committee stages but on a very significant rewriting that had been inserted by supplementary order paper as a result of an extensive review of the Act conducted in mid-stream following the change of government in late 1990. As a result, and despite my best endeavours at that final reading stage, debates recorded in Hansard do not fully illustrate the metamorphosis through which the RMA passed. Whereas bills are usually settled following their report back from the Select Committee, and the second reading debate can then range over the policy reasons for the legislation, the RMA (or at least key parts of it including section 5) straddles two governments, and two terms through the Select Committee. As a result, Hansard is, notwithstanding my attempt to redress the balance in the third reading, less revealing than it might normally be.
With that in mind, it seems to me worth tracing the evolution of section 5 from the Bill’s inception in 1988 through to its passage in 1991. It is a fascinating gestation reflecting, in microcosm, some of the larger political debates being played out during a time of unprecedented institutional upheaval. Naturally, my account of the period 1988 to 1990 is a documentary history since my first hand involvement in the shaping of the Act did not commence until November 1990. But even for the period after then I shall rely principally on the clauses as they were drafted, since any objective assessment of the final shape of Part II can only be made by reference to alternative wordings that were proposed and then discarded or modified. I hope that what follows will provide a useful background for policy-makers, decision-making authorities and legal historians interested in the policy convictions set out in my third reading speech.
The development of Part II of the RMA can be broken down into at least four identifiable stages. They are:
1. Policy development leading up to the publication of a government discussion paper People, Environment & Decision Making: The Government’s Proposals for RMLR 1988.[25]
2. The Bill as introduced in 1989 and then reported back to the House by the Select Committee in 1990.
3. The work of the Review Group on the Resource Management Bill, December 1990 to February 1991, leading to the Supplementary Order Paper of 7 May 1991.[26]
4. Further changes contained in the Supplementary Order Paper of 2 July 1991.[27]
I shall traverse each stage in turn. The texts marked A -I are set out in full in the appendix attached to this article.
The first formal public indication of the Palmer Government’s view of the purpose and objectives of the RMA appeared in the 1988 publication People, Environment & Decision Making: The Government’s Proposals for RMLR.[28] The Cabinet papers that preceded the publication of that consultation document reveal a division of views about how the general purpose and objectives of the Bill should be conceived - a decision that will be familiar to any student of the late 1980s and can, not unfairly I think, be described as a contest between the Treasury and non-Treasury world view.
The non-Treasury view (Text A)[29] was somewhat vague, proposing a list of “matters and values” such as balancing individual rights and public welfare, eliminating or minimising conflicts between users, environmental quality, ecosystems’ values, the needs of future generations and economic and social factors. It was the familiar smorgasbord approach of the Town and Country Planning Act, tweaked to reflect a more contemporary view of environmental concerns but still looking like the basis of a balancing exercise requiring the wisdom of Solomon. Consistent with this, the majority view was opposed to any one value being accorded an overriding or pre-eminent status.
The Treasury view (Text B)[30] proposed, unsurprisingly, a formula for the Act’s general purpose and objectives rooted in a subjective, individualist view of value: “the overall goal of this Act is to ensure that resources (or rights to resources) are allocated to wherever they are most highly valued to society”. It proposed a clear account of the Government’s role, both as owner of resources and as regulator. The general thrust is one that leaves the assessment of value to the market place and reduces the Government’s role to one of regulating the negative externalities that flow from resource use. But even the Treasury view seems to admit the difficulties of a purely individualistic, market-based assessment of value since intervention is justified to ensure that people “in maximising their own welfare also maximise that of society”. The calculus required to determine society’s view is not described but even at this early stage a role for public agencies was implied by the notion that the costs of regulatory control should have “a net benefit to society” compared with the option of not regulating.
Importantly, though, the idea of some sort of cost/benefit analysis to determine the case for regulation was consistent with the majority view that no one value should be overriding. In other words, both sides subscribed to the traditional view that the outcome of resource management conflicts should involve an appraisal of the facts of the particular case. The only difference was one of how that balancing of costs and benefits should be carried out - consciously by wise planners or indirectly by market participants constrained by the rights of other players and, when appropriate, regulations. Neither approach tried to erect some sort of non-negotiable bottom line against which particular resource management conflicts could be assessed.
Sustainable management had not yet even appeared on the horizon. Rather, the majority view proposed that the list of matters and values should include a reference to sustainable “development”, the Brundtland Commission’s touchstone. One assumes that the minority view opposition to its inclusion was rooted in concerns about the uncertainty of the concept and its application.
In the end, the Government of the day ran with the majority view and announced it in People, Environment & Decision Making. The explanatory text following this section provides a detailed insight into the thinking that formed the case for a purpose clause. It was argued that the proposed approach “suggests that the new Resource Management Law must be specific as to purposes and criteria”.[31] And, notwithstanding the traditional, unprioritised approach of the Government’s proposal, it was explained that “this law reform is dealing with resource management laws whose primary function is to limit the adverse spillover effects of people’s activities, and to allocate Crown resources”.[32] It might be doubted that a purpose clause that assigned no priority as between social, economic or environmental factors would lead inexorably to social and economic planning in the name of resource management. But it is clear that the Government saw itself, even at this stage, focusing on outcomes consistent with good environmental management that represented an important shift away from the thrust of the Town and Country Planning Act.
The debate from here on would revolve, to a greater or lesser degree, around how far that concentration on environmental effects would be carried. At this stage there was a heavy emphasis on taking “full and balanced” account of a multiplicity of factors and seeing good resource management as being a means to “enhancing the social, economic and cultural welfare of the community” as well as securing a better environment. The material under consideration for inclusion in a purpose clause is set out as Text C. Many phrases contained in the present Part II of the Act make their debut here - along with a number of concerns that were shared along the way.
Feedback on the Government’s discussion paper and further work by officials led to a Cabinet paper of 10 March 1989[33] that contained an important elaboration of the debate foreshadowed in the earlier Cabinet paper (Texts A and B). The Act was still, at this stage, entitled the Resource Management Planning Act. The decision had been taken to avoid recourse to the long title for interpretative purposes (as had been the fate of the Water and Soil Conservation Act) by spelling out the broad philosophy of the Act through a general purpose section and a section on “fundamental principles” (overall objectives).
The Treasury/non-Treasury division focused on the content of the general purpose clause and whether, in respect of the fundamental principles, the notion of sustainable development should be accorded some overriding status. The alternative approaches to the purpose clause are reproduced as Text D.[34] The majority view wanted to enshrine the idea of “good environmental management” and stressed the importance of focusing on the outcome sought rather than the process by which outcomes should be achieved. The scope of “good environmental management” could not have been broader, being explained as “ensuring environmental (including ecological, social, cultural and economic) well-being”.
Treasury, in sharp contrast, wanted to focus on what it was that the Act would have to deal with - resolving conflicts over the use of resources. Treasury’s objections to the majority view of the core group were threefold. First, it objected to the word “good” as injecting normative value. The objection appeared to be founded on the premise that statements of value, other than by individuals expressing preferences, have no place in public policy. Secondly, it believed that the Act was about resolving conflict between resource users, not environmental management. Thirdly, it objected to the elevation of good environmental management at the expense of efficiency and fairness.
This last concern was reiterated in respect of the debate over a “fundamental principles” clause. Submissions on the Government’s discussion document had been strongly supportive of setting out the principles with a clear indication of the priority to be accorded to them. The majority view urged the Government to reconsider its decision not to accord priority to any particular principle and in particular to look very carefully at the relationship of the sustainable development principle with the others noting that the concept of sustainable development “implicitly involved ecological, economic, social and cultural factors”. The Treasury was clearly sceptical of this analysis and argued that the overall goal of resource management law was seeing that “resources are allocated to the most highly valued alternative”.[35] On this basis they argued that all values needed to be weighed against one another - something one suspects they believed could only sensibly occur in the market place and would certainly not be achieved by according priority to sustainable development.
The contest between legislating for an holistic statement of value and a process for reconciling individually held values was resolved by subsuming all values within the concept of sustainable management (stated as a purpose) rather than “good environmental management”. Text E shows the Bill as introduced and amended by the Select Committee in 1990.[36] By transferring sustainable development as a fundamental principle into sustainable management as a purpose, the problem of an overriding principle was neatly side-stepped (or obfuscated depending on your view). As I have already indicated, I consider that sustainable management is a principle despite the title of the clause. But whether, as initially conceived, it constituted a clear, fixed point is another matter. The thrust of clause 4(2) - managing resource use “in a way, or at a rate, which enables people to meet their needs without unduly compromising the ability of future generations to meet their own needs” - seems to be one formulation of the so-called precautionary principle (although the insertion of “unduly” by the Select Committee left considerable room for manoeuvre). But the “considerations” that followed and were deemed to be “included” in the definition indicated a balancing process that would have left the likely outcome of the legislation less than certain. Providing for the “social, economic and cultural needs and opportunities of people and communities” alongside maintaining and enhancing the quality of the environment “including the life supporting capacity of the environment and its intrinsic values” set up a contest that would have seen intense debate over the nature of undue compromise.
The “fundamental principles” found their way into a simple principles clause, clause 5, with the injunction that they were matters to whose importance regard should be had. Here the all-embracing (and potentially conflicting) consequences of the holistic “good environmental management” approach were clearly apparent: the effects of activities were assessed in terms, not just of ecosystems, but “economic, cultural, social and general well-being”. The maintenance and enhancement of the natural environment sat alongside the potential of the use, development and protection of resources to contribute to the well-being of communities. Even the Treasury’s desire to inject cost/benefit analysis into the process was included (although the Select Committee opted for the softer “advantages and disadvantages” formula). And for good measure it was provided that the priority and weight to be given to the principles was “to be determined by the decision maker depending on the issue before him ... and the nature of the decision required”.[37]
In short, despite erecting sustainable management as a species of precautionary principle under cover of a purpose clause, the process of making judgments about what amounted to avoiding the undue compromise of future generations involved considerations so mixed that the consequences of any particular application of the principle were likely to be highly unpredictable. For all that, the move from “good environmental management” as a means of securing well-being to “sustainable management” as a means of securing the interests of future generations marked a major shift of emphasis. Curiously, the explanatory notes to the Bill, despite being unusually discursive, make nothing of this, blandly noting that “sustainable management is a broad concept which reflects aspects of use, development and protection. It is also related to resource management processes which are fair, sufficient and practical”. It is almost as if the draftsman was unclear which view had prevailed.
A change of government in late 1990 led to the appointment of a review group chaired by Tony Randerson whose task it was to examine a range of issues and concerns that, in the view of the newly-elected Government, had not been adequately finessed by the Select Committee. Included in the Review Group’s brief was a reassessment of the purpose and principles clauses.
In the discussion document which the Review Group published in December 1990, it noted that the sustainable management of resources was essentially about safeguarding the options of future generations in making use of our natural and physical resources.[38] This focus was contrasted with the Brundtland Commission’s adoption of “sustainable development” as something much wider, embracing such things as the global redistribution of wealth.
The Review Group then set about redrafting clause 4 with two aims in mind. The first was to propose an amended definition of sustainable management with the aim of
(1) increasing certainty and workability, (2) striking a reasonable balance between present and future requirements for the use, development and protection of natural and physical resources and (3) defining the relationship between biophysical and socio-economic considerations.[39]
Secondly, the Review Group sought to give greater emphasis to the fact that the Bill signalled a shift away from the direction and control of development to the control of effects noting that, “despite the significant and pervasive” thrust of the Bill, it had not been reflected in the purpose clause. The redrafting of clauses 4 and 5 proposed by the Group is set out as Text F.[40]
Redefined, sustainable management was retained as the primary purpose of the Bill. A second main purpose of avoiding, remedying or mitigating the adverse effects of activities on the environment was made subject to the first “so the avoidance of adverse effects could not preclude the proper application of the first principle”. Significantly (in view of future debate about the meaning of the word “while”) the Review Group believed that its formula made resource use by the present generation “subject to the safeguarding of the interests of future generations”.[41] The words “without unduly compromising” the interests of future generations were discarded on the ground that “this would clearly involve decision makers indulging in predictions as to the future which would be difficult or impossible to apply in practice”. They chose instead the more familiar legal test of reasonable foreseeability.[42]
The Review Group decided not to define sustainable management. Rather, it chose to rely on the clause 5 principles as explanatory of the sorts of matters to be taken into account in achieving the purposes of the Act. The refashioned clause 5 was an amalgam of the “considerations” set out in the original purpose clause and some of the old principles clause. In line with the Group’s quest to focus the Bill on effects, the Select Committee’s reference to assessing the potential advantages and disadvantages of any objective, policy or proposal was changed to “the likely positive and negative consequences”. Whilst not going back to a cost/benefit approach, the change ensured a focus on the effects of resource management initiatives rather than a discussion of their merits which would, inevitably, be rooted in the prejudices of their authors rather than the views of those affected by them.
The more familiar and tangible elements of traditional resource management which had previously been lumped in with the other clause 5 principles were then separated out as matters to be recognised and provided for in a new clause 5A modelled on section 3 of the old Town and Country Planning Act.
Finally, the Review Group decided that its spring cleaning had made the priorities of the purpose and principles clauses sufficiently clear to do away with the original clause 5(3) that decision-makers should give the principles priority and weight as they saw fit in the circumstances. The Review Group subsequently described the clauses it had inherited as being influenced by
various interest groups [seeking] to change the balance of the Bill according to their preferences” with the result that “there had emerged a growing list of matters to be taken into account but with no clear guidance for decision makers as to the relative weight and priority to be given to the various factors.[43]
Commenting on its own efforts, the Group concluded that
it is considered that much of the inherent conflict in the ‘shopping list’ approach has been removed or clarified by the creation of the new section 5A and by the redrawn Clause 4(1) which better defines the balance between socio-economic and biophysical concerns.[44]
The Review Group then sought submissions on its handiwork before presenting a final report to the Government in February 1991. The Group reported that there was no real argument on the part of submitters that high environmental outcomes should be secured but it recorded a frequently expressed wish for certainty in environmental standards to improve investment certainty.[45] As a result, it offered a further redrafting of the purpose and principles provisions in the interests of greater certainty and workability (Text G). Without adding any new material, clause 4 was recast to provide a single, simple purpose - sustainable management - which was then “defined” using the balance of the material previously found in clause 4(a) and the second purpose contained in clause 4(b). The Review Group made it clear that in doing so it had discarded the balancing of socio-economic and biophysical aspects proposed by the Select Committee’s version of clause 4 and replaced it with a version that “conceive[d] of the biophysical characteristics of resources as a constraint on resource use”.[46] This preference for measurable, biophysical bottom lines was the Review Group’s most significant contribution reflecting, no doubt, the arguments in favour of certainty and workability advanced by resource users.
The Review Group made important observations about the test of reasonable foreseeability which it had introduced into clause 4’s protection of future generations. The test had attracted some criticism on the basis that it would not protect against unforeseen factors and therefore allow a less risk-averse approach, potentially at the expense of future generations. The Review Group commented that it saw no reason why reasonable foreseeability should undermine the importance of retaining options for future generations. Importantly for the future interpretation of this provision, it distinguished reasonable foreseeability in this context from its use as a standard in cases of negligence. The latter, it noted, involved the application of the test in hindsight; by contrast, the test proposed by clause 4 involved a prospective or forward-looking assessment of risks in anticipating the options open to future generations. It should, they concluded, “enable a reasonable and balanced assessment of intergenerational needs without imposing serious evidentiary difficulties in the conduct of litigation”.[47]
Having restructured clause 4, the Review Group then proposed a reordering of clauses 5 and 5A. Clause 5A was retitled “Matters of National Importance”. But, whereas its provisions had previously applied “notwithstanding anything to the contrary in sections 4 and 5”, the Group came to the conclusion that everything in the Bill should be subject to the sustainable management requirements of clause 4. To reconfirm the importance of the matters referred to, however, it was placed immediately after clause 4 and prior to the principles clause following it. The Review Group explained, however, that the importance of the principle should not be underestimated, emphasising and explaining “the concept of sustainability and its biophysical dimension”.
The Review Group’s conclusions were then handed back to the Government and it is at this point that I had to take responsibility for the precise words that would end up in an amending supplementary order paper. I proposed two significant changes to clause 4.[48] The first was a softening of the reference to future generations in clause 4(2)(a). The paper in which I took my recommendations to the Cabinet records my view that the Review Group’s formulation
somewhat overstates our present day responsibilities to future generations. There should not be any implied responsibility to positively redistribute resources in favour of future generations. Rather, the responsibility of present generations should be to sustain the potential of natural and physical resources to meet the reasonably foreseeable needs of future generations.[49]
The Cabinet accepted this view.
The second change I proposed was to move up from clause 5 reference to “safeguarding the life-supporting capacity of air, water, soil and ecosystems”. Even though the Review Group had emphasised the biophysical nature of resources, it had not made explicit reference to them in its drafting of clause 4. I held the view, along with some members of the Review Group, that reference to the biophysical limits of natural and physical resources was necessary if some reasonable basis for taking account of the needs of future generations was to be established. Again, the Cabinet endorsed my view.
My insertions evidenced an increasing interest on the part of officials, and myself, in carrying the Review Group’s emphasis on environmental effects even further. This also lay behind the new clause 5(2) which sought to introduce the idea that those responsible for adverse environmental effects should not only have to mitigate them (as provided for in clause 4) but should also have to provide compensating benefits. The idea of net compensation benefit was in our minds, but the further we went the more we realised that an effects-based view of the statute made an internalisation principle the logical approach to resource management. If we were to discard once and for all the planning for and control of activities, our only concern should be with the internalisation of any adverse environmental effects. Our view had moved inexorably in the direction of the Treasury’s market-driven world in which the Government’s proper statutory concern was with the externalities of market outcomes and, to minimise the dead weight costs of regulation, seeking to create incentives to internalise those externalities wherever possible.
There was, however, concern that clause 5(2) as we had proposed it fell somewhat short of its goal and further feverish drafting by officials and Review Group members was requested. The result (Text H)[50] saw the prohibition on taking account of trade competition, formerly attached to clause 4, become clause 5(2) and the refined internalisation provision as clause 5(3). Persons permitted to impose adverse effects on the environment were required to provide offsetting environmental benefits to the extent that it was practicable in the circumstances. This in turn led to extensive new definitions of “adverse environmental effects” and “offsetting environmental benefits” in a new clause 5(4). It was the high tide mark of an intensive push towards a new, tradeable approach to environmental externalities that had gathered momentum over the preceding months. Confident that the focus of the Act had been delimited to exclude social, economic and cultural externalities, the Treasury officials were much less reserved about having resource users internalise the costs their activities might otherwise impose on the environment, or at least provide compensation for them.
The Cabinet Committee’s agreement was, however, conditional upon criteria being drafted to provide guidance on the application of the words “external” and “circumstances” in clause 5(3) or, in their absence, the development of a more discretionary clause. Neither was achieved. The agreement to the clauses set out in Text H was rescinded a week later “pending further consideration of the issue covered in the clauses by ministers concerned”.[51] And here the paper trail ends. The pressing need to bring a supplementary order paper back into the House and a growing realisation that the supporting policy work had not been done to introduce a fully fledged internalisation principle saw a return to where we had started. With only minor changes, the SOP finally introduced on 7 May 1991 reverted to the formula previously agreed by the Cabinet (Text H) shorn of any reference to compensating benefits.
The Supplementary Order Paper of 7 May was something of a high watermark as far as stretching the biophysical bottom line and sustainable management goes - in tone if not in substance. The amended SOP of 2 July (Text I) that followed on from the Select Committee’s scrutiny of the earlier SOP reflected subtle changes of language to accommodate resource user sensitivities though not, in my view, any change in substance. Predictably, perhaps, large resource users felt that the new clarity of focus on environmental effects would be at the expense of economic development. The Natural Resource Users Group, commenting on clause 4, stated that the nation could not afford “a form of environmental elitism whereby the establishment of a ‘biophysical bottom line’ prevails over communities”.[52] One suspects that they had resource users rather than communities in mind.
In the end, the language of ensuring that, in providing for current needs, the needs of future generations were sustained was transmuted into enabling people to meet their current needs while sustaining the needs of future generations. The final formula was in fact very close to that initially recommended by the Review Group but which we had temporarily moved away from in our quest for an austerely biophysical approach. A concerted last minute attempt by the Chairman of the Select Committee to have me reintroduce into clause 6 a provision balancing public interest in achieving the purpose of the Act with any private interests in the “reasonable use of private or public property” was resisted. Such a move would have inevitably destabilised the notion of an environmental bottom line and replaced it with an indeterminate balancing exercise. But as a concession to anxious resource users “the efficient use of development of natural and physical resources” was reinstated in the principles clause. To have suggested that any resource use compatible with the purpose of the Act should be anything other than efficient would have been surprising. The concession was, to my mind, harmless in terms of the bottom line. In practice, as we shall see, the use to which this phrase has been put is proving to be not without its problems.
Only Ministers and their officials, exhausted after piloting complex legislation through the House, feel a brief sense of finality at the point of enactment. For those fated to administer the statute and interpret it, enactment is only the beginning. Having picked the legislation up halfway through and been responsible for putting considerable effort into refining Part II, I left the Environment Portfolio not long after its enactment, aware that there was considerable speculation about just how far the pendulum had swung away from the old world of balancing uses in favour of controlling adverse effects. Returning to the portfolio two years later I was surprised to find the issue still unresolved in the minds of many commentators and to this day there remains a degree of doubt about where section 5 draws the line.
In view of the fact that the Act did not come into effect until mid 1992 and the fact that operative documents under the Act are still being put in place, it is perhaps not surprising that the available case law on Part II remains thin. But, in any case, most applicants for resource consents under the Act can find ways of shaping their applications to fit within operative plans and rules. Situations that challenge the boundaries of the Act or seek to query its purpose are likely to be the exception.
It is important, none the less, for practitioners and administrators alike to internalise (if you will forgive the term) a clear understanding of the purpose and principles of the RMA. Without that, we will not see a coherent implementation of its very significant objectives.
I have made my own contribution to that process by way of a detailed analysis of section 5 in a speech last year to the Resource Management Law Association. I expressed the view then that, whatever section 5(2) has to say about economic or social activities, the matters set out in sub-paragraphs (a) (b) and (c) must be secured. They cannot be traded off. They constitute a non-negotiable bottom line. Unless it is a bottom line, sustainable management ceases to be a fixed point or pre-eminent principle and sinks back into being a mealy-mouthed manifesto whose meaning is whatever decision-makers on the day want it to be. I hope that my description of the gestation of section 5 reinforces my contention that this all-important purpose clause does in fact set up a principle to guide the entire Act.
I also suggested that the Act’s purpose was not one that involved inquiring into what constitutes people’s social, economic and cultural well-being or how they should achieve it. Rather, it was about managing natural and physical resources. Sustainable management will amount to managing the use of those resources in a way that secures the matters in sub paragraphs (a) (b) and (c). But they are not being managed or used in a vacuum. They are being used by people and our view of resource use must inevitably be an anthropocentric one. But whilst it goes without saying that people have to be able to provide for their well-being, they must do so in a way that is consistent with sustaining the potential of resources to meet the needs of future generations, safeguarding the biosphere’s life support systems and avoiding, remedying or mitigating adverse effects on the environment. The Act makes no judgments about the well-being of people or communities - it does not provide guidance on that matter, nor does it invite administrators or judges to pronounce on it.
I cannot deny that it is a philosophically liberal position that endorses the value pluralism of contemporary society. We deliberately avoided a definition that sought to define sustainable management as a state of social, cultural, economic and environmental well-being. To have done so, would, of course, have allowed decision-makers to enquire into the social, cultural and economic effects of resource use on people, thereby returning us to a world of resource allocation by wise planners rather than market participants. That has not stopped one geographer arguing for just that interpretation on the basis that people and communities can provide for their social, economic and cultural well-being only by ensuring that the matters in sub paragraphs (a) (b) and (c) are provided for. Attractive though the argument may be for those who support a philosophical view in tune with Deep Ecology or something similar, it is not the philosophical premise to which the Bill’s authors were attached. People and their communities were assumed to know more about their many different conceptions of well-being than planners could ever hope to.
It follows from this that the Act is, likewise, not concerned with the “need” for any particular resource use. A statute concerned with the effects of resource use is not concerned with adjudicating between competing needs for resources which will, by definition, depend on the extent to which people and communities are prepared to pay for them. Distributional questions are the province of the tax system not the resource management system. Certainly, the notion of planning for the allocation of resources according to some centrally determined view of need has no place in the sort of market economy on which we rely today.
Notwithstanding that, attempts continue to be made to use the Resource Management Act to sanction particular uses of resources regardless of their environmental effects. One particular focus for this sort of activity is section 7(b) which, as I have noted, was reinstated by the Select Committee at the last minute. Section 7(b) requires those exercising powers and functions under the Act to have particular regard for “the efficient use and development of natural and physical resources”. This has emboldened some councils to argue, and the Planning Tribunal to concur, that they are thereby empowered to control uses in the interests of efficient resource use. As a result, section 7(b) is in danger of becoming a catch-all which enables consents to be turned down. Some interpretations of “efficient use and development” are very broad indeed. For instance, with respect to controls on land use, the phrase has been taken to provide justification for dictating the “best use” for a site. In other words, some wise person will choose the land use they consider to be the most appropriate. Not surprisingly, that will tend to match that wise person’s particular prejudices rather than the preferred uses that market signals are reporting. Where the Tribunal has determined that land has a high potential value for primary production, subdivision for residential use has been ruled to be in conflict with sustainable management as it is not an “efficient” use of land.
One decision I am aware of went so far as to refuse consent even though the lot proposed for residential use was conceded to be presently unsuitable for agricultural purposes. But the judge went on to muse that economic conditions might change in the future and, given the lot’s high quality soils, it had sufficient potential value for primary production for him to disallow residential use.
In another instance not far from here a proposed commercial use of rural land, already used for lifestyle purposes, was turned down because it would have made its reversion to an agricultural use even less likely.
It was never the intention of Parliament that councils and tribunals should sit in judgement on what is and is not efficient. Efficient resource allocation is best achieved through price signals - price signals which include the costs of remedying environmental impacts - not some third party view of what the world should look like.
In my view section 7(b) is concerned with the same issues that are dealt with in much greater detail in section 32. Parliament intended to pass an Act that would improve environmental outcomes without causing the inefficient use and development of resources where that use is consistent with sustainable resource management. In my view, having particular regard for the efficient use and development of resources should involve councils and planners asking whether their approach to sustainability is one that will allow price signals to communicate information about scarcity and demand so that investment decisions are made prudently. It goes without saying that section 7 is subject to section 5 and, as I hope I have made exhaustively clear, section 5 is not a charter for the central planning of investment decisions.
The issue of “need” reared its head in a rather different way in the recent report of the Board of Inquiry into the Stratford Power Station. There, need for a new thermal power station was considered at some length, the Board concluding that
the RMA contemplates positive and adverse effects being balanced. The social and economic benefits of the power station may be one such positive effect if a need for additional power is demonstrated.[53]
Although the Board’s reasoning is not entirely clear on this point, it seemed to spring from the view that, since it would have been possible to avoid the adverse effects of carbon dioxide discharges by not building the power station (in other words by avoiding the discharge altogether in terms of section 5(2)(c)), an inquiry into the need for the power station was therefore relevant. The positive social and economic effects of meeting that need could then be weighed against the adverse effects of the discharge.
In my decision, I made it clear that I did not consider that “avoidance” enjoyed some preferred status as the means of addressing adverse effects and that disproving the need for the station to construct an argument for avoidance was not legitimate. I summed up the position thus:
The Act’s purpose is to allow people and communities to provide for their well being however they may view that, while ensuring that certain environmental bottom lines or constraints spelt out in section 5(2)(a)(b)(c) are observed. The appropriate test to apply is whether the discharge permit sought meets the tests of sustainable management. This will allow a weighing of the positive and negative environmental effects if mitigation (as against avoidance or remediation) is considered to be appropriate.[54]
In other words, the fact that someone proposes to use natural and physical resources is prima facie evidence of need. Whether or not the use will occur, of course, will depend on whether the resource user is prepared to pay the costs associated with sustainable use - “in a way or at a rate” which secures the substance of section 5(2).
The rules in regional and district plans and any standards promulgated under the Act that, for the time being, give expression to what sustainable practices are, will of course be arrived at through political processes that reflect prevailing values in the community. There is a bottom line provided by the statute, but the fact that the Act is about promoting sustainable management makes it clear that how far we advance towards that goal will depend on attitudes and values over time.
The attitudes and values that coalesced behind the RMLR initiative included a realisation that the environment was not a dispensable and infinitely absorptive sump for the unwanted and unintended consequences of resource use. That realisation holds profound consequences for consumer society as we presently experience it. In the same way that the notion of “development” dominated our thinking for over a century, the notion of sustainability has come to dominate the thinking of many people. The RMA was undoubtedly ahead of its time in institutionalising this way of thinking. But it remains backward-looking in other respects. I do not for one moment believe that we have yet developed allocation mechanisms to match the progressive policy thrust of the Act. We are still stuck with planning mechanisms that better fit a world of direction and control.
The next great phase of reforms must be the development of resource allocation instruments that are more compatible with an economy that leaves individual resource users to get on with their own businesses provided they meet the requisite standards. That will leave politicians and administrators focusing on the things that are properly the concern of public decision-making processes: deciding how fast we move in promoting the Act’s goal and how we measure our progress. Those are the political and ethical issues that will be imposed on any regime for environmental protection. It is my concern that frustration with inadequate processes and mechanisms may yet undermine confidence in the goal of sustainable management. If that were to happen we would be in danger of being urged to shoot a worthy mission rather than defective mechanisms.
Extract from ALG (88) 46, “Resource Management Law Reform: Phase 2 Report”, 22 November 1988.
(a) agree that the general purpose and objectives of the Environment and Planning Act must recognise:
(i) the Treaty of Waitangi;
(ii) costs as well as benefits;
(iii) that no one value should be overriding; and
agree that the general purpose and objectives should be based on the general format as suggested in the Majority Core Group report and cover matters and values such as:
(i) balancing individual rights and public welfare;
(ii) eliminating or minimising conflicts between uses;
(iii) environmental quality;
(iv) ecosystem values;
(v) needs of future generations;
(vi) economic and social factors;
Extract from ALG (88) 46, “Resource Management Law Reform: Phase 2 Report”, 22 November 1988.
“ The overall goal of this Act is to ensure that resources (or rights to resources) are allocated to wherever they are most highly valued to society.
The Government’s role should be to:
(i) Allocate Crown resources so as to provide the highest possible expected present value from the possible streams of future benefits;
(ii) To intervene in people’s rights and resources when:
- it is necessary to avoid or mitigate a nuisance which is or could have adverse effects on others;
- it is necessary to ensure that people in maximising their own welfare also maximise that of society;
- the costs of regulatory control have a net benefit to society compared with the option of not intervening”.
(Minority View)
Extract from “People, Environment, and Decision Making: the Government’s Proposals for Resource Management Law Reform”, Ministry for the Environment, December 1988.
1 To acknowledge that good environmental management is essential to the well-being of New Zealand;
2 To ensure that, in the management of natural and physical resources, full and balanced account is taken of all relevant factors, including:
a the intrinsic values of ecosystems;
b all values which are placed by individuals and groups on the quality of the environment;
c the sustainability of natural and physical resources;
d the needs of future generations;
e the principles of the Treaty of Waitangi;
f economic and social factors.
3 To encourage the proper management, development and conservation of natural and physical resources for the purpose of enhancing the social, economic and cultural welfare of the community and a better environment.
4 In respect of the management, use or development, and conservation of New Zealand’s resources the provisions of this Act shall be administered for the purposes of:
a ensuring their management in a manner which provides sustainable benefits to present and future generations of New Zealanders;
b lessening and minimising adverse social, physical, economic and environmental impacts of their use or development;
c ensuring effective and objective evaluation of plans or proposals for their use or development;
d eliminating or minimising conflicts between uses or activities;
e managing the development of regions, districts and areas in ways that will most effectively promote and safeguard the health, safety, convenience, and the economic, cultural, social and general welfare of the people and the amenities of those regions, districts and areas;
f ensuring an effective balance between individual rights and public interests;
g providing opportunities for effective public participation in planning decisions;
h enabling the best approach to be adopted for resource management decision making;
i empowering the Minister, regional or territorial government to take such action as necessary to deal with the effects of the use of resources without infringing the rights of individuals except to the extent that there is some demonstrable public benefit;
j protecting rare and/or representative samples of the flora and fauna, natural communities, habitats, ecosystems, and the genetic diversity, landscapes and historic places which give New Zealand its recognisable character and values;
k minimising or preventing the adverse effects of natural or human-made hazards.
Extract from ALG (89) 11, “Resource Management Law Reform: Report on “Objectives and Purposes”, 14 March 1989.
1 Objectives and Purposes
a note that alternative wordings to “Resource Management Planning Act” as the Short Title may need to be considered, in view of the submissions and depending on meaning of terms “resource management “ and “planning” and the scope of the Act;
b agree that the Long Title should be a mechanical clause not intended to have any interpretive effect, and that the broad philosophy of the Act could be embodied in a General Purpose section and a section on Fundamental Principles (overall objectives);
c agree that the General Purpose of the Act should include the ideas that:
i the Act should be based on a set of Fundamental Principles for Resource Management;
ii the Act should make reference to the Treaty of Waitangi;
AND THAT
EITHER
iii good environmental management, that is ensuring environmental (including ecological, social, cultural and economic) wellbeing, and a fair and efficient process of decision making is essential to the wellbeing of New Zealand and its inhabitants;
iv the Act is aimed at encouraging/promoting good environmental management based on a set of Fundamental Principles;
OR
v that the purpose of this Act is to encourage the resolution (before and after the fact) of conflicts over protecting or using the environment in a way that maximises the wellbeing of the community as a whole (Treasury recommendation);
2 Fundamental Principles
a agree that the Fundamental Principles (overall objectives) for resource management should include both outcome and process principles;
b note that many submissions have called for a priority amongst the Principles and have indicated a preference for sustainable development to be the basic principle for the law; and
EITHER
c confirm that no principle be overriding and that the notion of sustainable development be included alongside the other Fundamental Principles (Treasury recommendation);
OR
d agree that the Core Group carry out a detailed analysis of submissions and report further on the exact wording of the law with respect to the relationship between a sustainable development objective and other statements of General Purpose or Fundamental Principles, presented in the form of draft sections;
Extract from the Resource Management Bill, as reported from the Committee on the Resource Management Bill, 14 August 1990.
PART II
PURPOSE AND PRINCIPLES
4. Purpose - (1) The purpose of this Act is to promote the sustainable management of natural and physical resources.
(2) In this Act, “sustainable management” means managing the use, development, and protection of natural and physical resources in a way, or at a rate, which enables people to meet their needs (now without) without unduly compromising the ability of future generations to meet their own needs, and includes the following considerations:
[Struck Out]
________________________________________________________________________
(a) The efficient management of natural and physical resources:
(b) The maintenance and enhancement of the life-supporting capacity of the environment:
________________________________________________________________________
[New]
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(a) The maintenance and enhancement of the quality of the environment, including the life-supporting capacity of the environment and its intrinsic values:
________________________________________________________________________
(c) The use, development, or protection of natural and physical resources in a way which provides for the social, economic, and cultural needs and (opportunities of the present and future inhabitants of a community) opportunities of people and communities:
(d) Where the environment is modified by human action, the adverse effects of irreversible change are fully recognised and avoided or mitigated to the extent practicable:
(e) The use, development, or protection of renewable natural and physical resources so that their ability to yield long term benefits is not endangered:
(f) The use or development of non-renewable natural and physical resources in a way that sees an orderly and practical transition to adequate substitutes including renewable resources:
(g) The exercise of kaitiakitanga which includes an ethic of stewardship.
[Struck Out]
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(3) For the purposes of Part IX, the meaning of sustainable management does not include paragraphs (b), (c), (d) or (g) of subsection (2).
________________________________________________________________________
5. Principles - (1) To achieve the purpose of this Act, all persons who exercise functions and powers under this Act shall have regard to the importance of -
[New]
________________________________________________________________________
(i) The preservation of the natural character of the coastal environment, wetlands, and lakes and rivers and their margins; and
(ii) The retention of natural landscapes, landforms, and indigenous vegetation; and
(iii) The protection of heritage values, including historic places and waahi tapu:
________________________________________________________________________
(f) The relationship of Mori and their culture and traditions with their ancestral lands, waters, sites, and other taonga:
(g) The potential of the (development, use) use, development, and protection of natural and physical resources to contribute to the wellbeing of (the community) communities:
[New]
________________________________________________________________________
(h) The maintenance and enhancement of public access to and along the public estate, including the coastal marine area, lakes and rivers.
________________________________________________________________________
(2) Without limiting subsection (1) or precluding the use or development of coastal marine areas where appropriate, all persons who exercise functions and powers under this Act in relation to coastal marine areas shall have particular regard to the importance of the (maintenance) preservation of the natural character of the coastal environment.
[Struck Out]
________________________________________________________________________
(3) Subsections (1) and (2) do not limit the matters to which persons may have regard when exercising functions or powers under this Act in order to achieve the purpose of this Act.
(4) This section does not apply in respect of functions or powers under Part IX.
________________________________________________________________________
[Struck Out]
________________________________________________________________________
(a) The maintenance and enhancement of the quality of the environment:
________________________________________________________________________
(b) The actual or potential effect of an activity or natural process on the whole of the environment, including its actual or potential effect on -
(i) The health and safety, and the economic, cultural, social, and general wellbeing of people and communities:
(ii) Ecosystems, ecological processes, physical processes, and natural biological diversity:
(iii) The ability of future generations to meet their needs:
(c) An appropriate balance between the public interest in achieving the purpose of this Act and any private interests in the reasonable use of private or public property:
[New]
________________________________________________________________________
(ca) The efficient and effective management of natural and physical resources:
________________________________________________________________________
(d) The potential (costs and benefits) advantages and disadvantages of any objective, policy, or proposal to the environment:
(e) The maintenance and enhancement of the natural, physical, and cultural features which give New Zealand its character, and the protection of them from (inappropriate) unnecessary subdivision, use, and development including -
[Struck Out]
________________________________________________________________________
(i) The maintenance of the natural character of the coastal environment and the margins of lakes and rivers; and
(ii) The retention of natural landforms and vegetation; and
(iii) The recognition and protection of heritage values including historic places and waahi tapu:
Extract from “Discussion Paper on the Resource Management Bill”, prepared by the Review Group, December 1990.
APPENDIX 2
PURPOSE AND PRINCIPLES
Clause 4 Purposes
The purposes of this Act shall be:
(a) To promote the sustainable management of natural and physical resources by managing their use, development or protection in a way, or at a rate which provides for the social, economic and cultural wellbeing of people and communities while safeguarding, to the extent reasonably foreseeable, the ability of future generations to meet their needs in relation to natural and physical resources; and
(b) Subject to paragraph (a), to provide and promote effective methods to avoid, remedy or mitigate the adverse effects of activities on the environment.
Clause 5 Principles
(1) To achieve the purposes of this Act, all persons who exercise functions and powers under this Act shall have regard to the following considerations:
(a) The use, development and protection of renewable natural and physical resources so their ability to yield long term benefits is not endangered;
(b) [The use or development of non-renewable natural and physical resources in a way which sees an orderly and practical transition to adequate substitutes including renewable resources];
(c) The maintenance and enhancement of the life-supporting capacity of the environment [and its intrinsic values];
(d) The exercise of kaitiakitanga which includes an ethic of stewardship;
(e) Where the environment is modified by human action, to avoid, remedy or mitigate to the fullest extent practicable of the adverse effects of irreversible change;
(f) The actual or potential effect of an activity or natural process on the whole of the environment, including its actual or potential effect on -
(i) The health and safety, and the economic, cultural, social and general wellbeing of people and communities;
(ii) Ecosystems, ecological processes, physical processes, and natural biological diversity;
(iii) The ability of future generations to meet their needs.
(g) An appropriate balance between the public interest in achieving the purpose of this Act and any private interests in the reasonable use of private or public property.
(2) Subsection (1) does not limit the matters to which persons may have regard when exercising powers and functions under this Act in order to achieve its purposes.
(3) To achieve the purposes of this Act, all persons who exercise functions and powers under this Act shall in considering an objective, policy, method or proposal assess the likely positive and negative consequences.
5A Matters to be Recognised and Provided for:
(1) Notwithstanding anything to the contrary in sections 4 and 5, all persons who exercise powers and functions under this Act shall particularly recognise and provide for:
(a) The maintenance and enhancement of the natural, physical and cultural features which give New Zealand its character and the protection of them from unnecessary subdivision, use and development including:
(i) the preservation of the natural character of the coastal environment (including the coastal marine area), wetlands and lakes and rivers and their margins; and
(ii) the retention of natural landscapes, landforms and indigenous vegetation; and
(iii) the protection of heritage values, including historic places and waahi tapu;
(b) The maintenance and enhancement of public access to and along the public estate, including the coastal marine area, lakes and rivers;
(c) The relationship of Mori and their culture and traditions with their ancestral lands, water, sites and other taonga.
Extract from ENV (91) M 4/3, “Resource Management Bill: Review Group’s Recommendations”, 26 March 1991.
4 Purpose - (1) The purpose of this Act is to promote the sustainable management of natural and physical resources.
(2) In this Act, “sustainable management” means managing the use, development and protection of natural and physical resources in a way or at a rate which ensures that, in providing for the social, economic and cultural well-being of people and communities, -
(a) the potential of natural and physical resources (excluding minerals) to meet the reasonably foreseeable needs of future generations is sustained; and
(b) the life-supporting capacity of air, water, soil and ecosystems is safeguarded; and
(c) the adverse effects of activities on the environment are avoided, remedied or mitigated.
(3) This Act shall not be used for the purpose of restricting competition or trade practices.
5A Matters of national importance - In managing the use, development and protection of natural and physical resources, all persons exercising functions and powers under this Act shall recognise and provide for the following as matters of national importance:
(a) The preservation of the natural character of the coastal environment (including the coastal marine area), wetlands and lakes and rivers and their margins and the protection of them from unnecessary subdivision, use and development:
(b) The protection of outstanding natural landscapes from unnecessary subdivision, use and development:
(c) The retention of significant areas of indigenous vegetation and the protection of the habitat of fish and indigenous fauna:
(d) The maintenance and enhancement of public access to and along the coastal marine area, lakes and rivers:
(e) The relationship of Mori and their culture and traditions with their ancestral lands, water, sites, waahi tapu and other taonga:
(f) The maintenance and enhancement of the natural quality of the environment:
5 Other Matters - (1) In managing the use, development and protection of natural and physical resources, all persons exercising functions and powers under this Bill shall have particular regard to:
(a) The maintenance and enhancement of amenity values:
(b) The recognition and protection of the heritage value of sites, buildings, places and areas:
(c) Any finite characteristics of natural and physical resources:
(d) The exercise of kaitiakitanga.
(2) With respect of any remaining adverse effects under clause 4 (2) (c) of this Bill, these shall, to the fullest extent practicable in the circumstances, be compensated for by environmental benefits to those aspects of the environment adversely affected, by the person causing the effects.
Extracts from ENV (91) M 6/4, “Resource Management Bill: Purpose and Other Matters”, 9 April 1991.
f agreed that clause 4(3) as described in ENV (91) M 4/3 (a)(ii) be replaced by a new clause 5 (2) below:
5(2) All persons exercising functions and powers under this Act, in relation to managing the use, development and protection of natural and physical resources shall not take account of the adverse effects of trade competition on the social and economic well-being of any person.
g agreed that the wording of clause 5(3) be as follows:
(3) To achieve the purpose of this Act all persons exercising functions and powers under this Act in relation to managing the use, development and protection of natural and physical resources shall -
(a) In accordance with this part; and
(b) In accordance with applicable regulations, policy statements and plans, if any; and
(c) To the extent that it is practicable in the circumstances -
ensure that any person permitted to impose an adverse environmental effect [within the meaning of subsection (4)], shall provide offsetting environmental benefits.
subject to officials from the Ministry for the Environment, Treasury and the Department of Conservation drafting criteria for inclusion in the Bill which provide guidance on the application of the words “extent” and “circumstances” in clause 5(3);
k agreed that the wording of clause 5(4) be as follows:
(4) For the purposes of subsection (3), -
(a) The phrase “adverse environmental effect” means a material adverse effect on -
(i) All natural and physical resources; or
(ii) Ecosystems (excluding people and human communities); or
(iii) Public health and safety; or
(iv) People’s appreciation of amenity values; or
(v) Persons, to the extent that their economic wellbeing-
(A) Directly derives from natural and physical resources which are adversely affected; and
(B) Suffers directly from those adverse effects on such resources; or
(vi) Persons, to the extent that they suffer directly from adverse effects on ecosystems (excluding people and human communities) -
but does not include any effect on any person to which that person has consent in writing.
(B) The phrase “offsetting environmental benefits” means benefits to any one or more of the matters specified in subparagraphs (i) to (v) of paragraph (a) (which wherever practicable shall be to that aspect of the environment where the adverse environmental effect is imposed) but does not include any payment of cash other than a financial contribution within the meaning of section 93(6) or regulations.
Supplementary Order Paper No. 40, 2 July 1991.
PART II
PURPOSE AND PRINCIPLES
Clauses 4, 5, and 6: To omit these clauses, and substitute the following clauses:
4. Purpose - (1) The purpose of this Act is to promote the sustainable management of natural and physical resources.
(2) In this Act, “sustainable management” means 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 -
(a) Sustaining the potential of natural and physical resources (excluding minerals) to meet the reasonably foreseeable needs of future generations; and
(b) Safeguarding the life-supporting capacity of air, water, soil, and ecosystems; and
(c) Avoiding, remedying, or mitigating any adverse effects of activities on the environment.
5. Matters of national importance - In achieving the purpose of this Act, all persons exercising functions and powers under it, in relation to managing the use, development, and protection of natural and physical resources, shall recognise and provide for the following matters of national importance:
(a) The preservation of the natural character of the coastal environment (including the coastal marine area), wetlands, and lakes and rivers and their margins, and the protection of them from inappropriate subdivision, use, and development:
(b) The protection of outstanding natural features and landscapes from inappropriate subdivision, use, and development:
(c) The protection of areas of significant indigenous vegetation and significant habitats of indigenous fauna:
(d) The maintenance and enhancement of public access to and along the coastal marine area, lakes, and rivers:
(e) The relationship of Mori and their culture and traditions with their ancestral lands, water, sites, waahi tapu, and other taonga.
6. Other matters - In achieving the purpose of this Act, all persons exercising functions and powers under it, in relation to managing the use, development, and protection of natural and physical resources, shall have particular regard to -
(a) Kaitiakitanga:
(b) The efficient use and development of natural and physical resources:
(c) The maintenance and enhancement of amenity values:
(d) Intrinsic values of ecosystems:
(e) Recognition and protection of the heritage values of sites, buildings, places, or areas:
(f) Maintenance and enhancement of the quality of the environment:
(g) Any finite characteristics of natural and physical resources:
(h) The protection of the habitat of trout and salmon.
[*] BA, LLB (Hons) (Auck), M Litt (Oxon); Minister for the Environment, Minister of Research, Science and Technology, and Minister for Crown Research Institutes.
[1] The Renton Committee, The Preparation of Legislation (1975 Cmnd 6053) para 11.8.
[2] Thornton G C, Legislative Drafting (3 ed, 1987) 180.
[3] Dale, Principles, “Purposes and Rules” (Spring 1988) Statute Law Review 15, 24-25.
[4] Burrows, J F Statute Law in New Zealand (1992) 108.
[5] Ibid.
[6] The Renton Committee, op cit, para 11.8.
[7] Cited in Turnbull, “Problems of Legislative Drafting” (October 1983) Queensland Law Society Journal 225, 228.
[8] Dale, op cit, 24.
[9] Bentham, J The Theory of Legislation, cited in Dale, ibid, 18.
[10] Jamieson, “The New Look Legislation” (1991) NZLJ 24.
[11] Ibid, 25.
[12] Resource Management Law Reform Core Group, Sustainability, Intrinsic Values and the Needs of Future Generations, Working Paper No 24 (Wellington, Ministry for the Environment, July 1989).
[13] Cronin, “The Relationship Between sustainability and Other Objectives for Resource Management”, ibid, Part A paper 4, 1.
[14] Ibid, 4-5.
[15] Ibid, 4.
[16] DSIR comments, Appendix to Cronin, ibid, 9.
[17] The Renton Committee, op cit.
[18] Dale, op cit, 19.
[19] Philipson, “Judicial Decision Making under the Resource Management Act 1991: a Critical Assessment” (1994) 24 (2) VUWLR 163, 165.
[20] (July 1991) 51b Hansard, Resource Management Bill Third Reading, 3018-3020.
[21] [1978) 1 All ER 1132, 1157.
[22] [1992] UKHL 3; [1993] 1 All ER 42, 164 (per Lord Browne-Wilkinson).
[23] At 79 (per Lord Bridge of Harwich).
[24] [1989] NZCA 137; [1989] 2 NZLR 203, 208.
[25] RMLR, People, Environment and Decision Making: The Government’s Proposals for RMLR 1988 Discussion Document (Wellington, Ministry for the Environment, December 1988).
[26] Review Group, Report of the Review Group on the Resource Management Bill (Wellington, Ministry for the Environment, February 1991).
[27] Resource Management Bill, Supplementary Order Paper No 40, 2 July 1991.
[28] RMLR, supra note 25.
[29] ALG (88) 46 Resource Management Law Reform: Phase 2 Report 27 November 1988, 3.
[30] Ibid, 4.
[31] Ibid, 19.
[32] Idem.
[33] ALG (89)11 Resource Management Law Reform: Report on “Objectives and Purposes”, 10 March 1989, Department Paper.
[34] Ibid. Cabinet Top.
[35] Ibid, 6.
[36] Resource Management Bill, 14 August 1990.
[37] Ibid.
[38] Review Group, Discussion Paper on the Resource Management Bill (Wellington, Ministry for the Environment, December 1990) 7.
[39] Ibid, 4.
[40] Ibid, Appendix 2.
[41] Ibid, 6.
[42] Idem.
[43] Review Group, supra note 26, 5.
[44] Review Group, supra note 38, 7.
[45] Idem.
[46] Ibid, 8.
[47] Ibid, 8-9.
[48] ENV (91) M4/3 Resource Management Bill: Purpose and Other Matters 9 April 1991.
[49] ENV (91) 15.
[50] ENV (91) M6/4 Resource Management Bill: Purpose and Other Matters 9 April 1991.
[51] CAB (91) M14/6b.
[52] Departmental Report on Supplementary Order Paper No. 22 to the Planning and Development Select Committee, June 1991.
[53] Report of the Board of Inquiry, Proposed Taranaki Power Station - Air Discharge Effects (February 1995) 28.
[54] Decision of Hon Simon Upton, Minister for the Environment, Air Discharge Permit Taranaki Combined Cycle Power Station (Wellington, Ministry for the Environment, March 1995) para 66.
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