Paving over paradise?

How big a throwback is the RMA Fast-Track Legislation? What's to be done?

It didn’t feel like an accident that Green Party Co-Leader James Shaw closed out his political career playing favorites on RNZ’s Saturday Morning – with an obscure version of Big Yellow Taxi, which gives us the ~50 year old lyrical notion of “paving over paradise and putting up a parking lot.” Many commentators have remarked on the similarity to Muldoon’s Think Big era, and our NGOs have universally howled in pain.

These are reasonable responses, and some have been quite worthwhile to listen to. Yet none are really getting cut through or grasping at what is always New Zealand’s greatest opportunity.

In short, we win when we’re so far behind we’re ahead.

And I’ll explain how there may be that opportunity here, after covering a lightly edited version of the comments I’d posted at the Science Media Centre before the legislation had appeared.

Would Manapouri or its second tailrace have really benefited from “fast-tracking?

The introduction of fast-tracking legislation comes on top of the fast repeal of the replacement for the Resource Management Act (RMA). I was perhaps hopeful there’d be an insightful solution proposed, but based on what we know about advances in environmental science to managing risk, the new process will likely bring us back toward the nightmare that plagued environmental protection decades ago. To summarise that situation simply from the environment’s perspective:

every loss is permanent but every victory is temporary.

To back up, it’s been clear that neither side of politics is happy with the Resource Management Act (RMA). Industry and environmental organisations had even less love for the RMA, and didn’t fall in love with the last Government’s legislation that replaced the RMA. The fast repeal of that legislation combined with fast-tracking about to be introduced into Parliament will most likely only change the balance of unhappiness. But it is a big change, backwards when we could have had a big step forward.

What’s changed? Looking backwards, the RMA enshrined a form of cost-benefit analysis that could turn bespoke for every new problem. It tended to give victory to the biggest purse, best experts or cleverest legal team.

What would a forward step look like?

The RMA is only 33 years old but it predated the solutions to problems from acid rain to climate change. While we’re still working on climate change, nearly everyone understands that the Earth and its ecosystems have limits and it is best to set achievable targets, which allow us all to live within or return to the limits. 

The replacement for the RMA put these concepts in place in each type of problem where they could be applied to setting the balance between protecting the environment and enabling resource use. Perhaps the new legislation was more complicated or confusing that we’d have liked because it incorporated a paramount principle from te ao Māori to guide everything in manner consistent with Te Tiriti o Waitangi Treaty of Waitangi, and required getting from the system we have now to the new system.

Looking forward, clear limits and targets were seen as a way to build a common strategic framework and common forms of evidence across a range of major issues. This would have, once complete, provided certainty to processes where every decision seems to hard fought and often won by those who can pay for the best lawyers and experts.

If fast-tracking only does that faster, it will remove less risk than we think, and risk is the bane of industry investment for developments, whether they’re about mining or renewable energy. Keep in mind that recognising limits and the processes of nature better could have made working with mana whenua and upholding Te Tiriti o Waitangi Treaty of Waitingi responsibilities easier and better over time. A durable solution for the future, that is stable across the political spectrum, would be more desirable than a process that looks most likely to be a step back toward a past that created environmental problems rather than solving them efficiently.

How bad is it?

The Fast-Tracking Bill is deeply worrying but not for some of the reasons the Environmental NGOs and visible journalism have focused on. I read the whole bill through last Thursday night and had it in my mind as Friday’s interviews rolled out. Honestly, I’m left thinking Chris Bishop will be smirking that he opened up some trap doors and enjoyed seeing who fell in?

• There’s no projects on the list? Nope. It’s a process.

• All the power in the hands of ministers? Nope. There is an expert panel operating a process two levels, very much like independent panels for plan changes and the judges and commissioners in Environment Court.

• There’s no transparency? Nope. There could be at least as much transparency as there is in many consent processes now, but if it looks bad there’s still no way to stop it except the next election.

• Fast and without community submissions is bad? NIMBYism has proven there is a problem with leaving too much opportunity to knock down proposals, from better urban housing to renewable energy.

But it is bad for specific reasons that turn the tables strongly against the environment and return the decades old vibe that has plagued environmental conservation: every loss is permanent and every win is temporary.

• Asymmetry of opportunity: Projects can keep being proposed over and over again. Ministers can seemingly return projects to panels until they can be approved as desired.

• Asymmetry of process, resources and timing:

  • The expert panels could be appointed with a pro-development bias.

  • The timescales will disadvantage Māori, communities, and NGOs with standing who can’t assemble information and respond to a case that could be under preparation for months or years before the fast-track process kicks off giving them a narrow window.

  • Government and industry will be funded but it appears Māori, communities, and NGOs have no financial support that would allow them to respond justly and equitably on their own behalf or on behalf of the environment.

What can be done?

Forest and Bird CE Nicola Toki has a sense that protest could work, but what if all the renewable energy projects are rolled out just in time for the protest?

The Green Party, with James Shaw in his last week as Co-Leader did not mince words, and by making the risk clear may have a workable long-term strategy.

This strategy also opens room for what really can be done now via the Select Committee Process – and potentially improve the Bill into something that could be a more durable first step in building RMA reform that could work across politics and better enable the concerning issues noted above to be understood and addressed.

Water exits a Manapouri tailrace into Fiordland.

Submissions are open

Although the Bill was introduced under urgency, there’s a normal timeframe for submissions – closing April 19.

And focussing on the following in submissions and finding other insights could make a difference:

• Identify and fund an independent role for agencies, such as the Ministry for the Environment or Department of Conservation, or a new entity, to advocate for the environment and begin preparing consistent information for major classes of projects likely to be proposed, providing a pathway for recognising limits and targets over time so that they can be considered consistently in both project selection and project approval.

• Provide financial support for Māori, communities and NGOs to participate justly and equitably without slowing down the processes unfairly, modelled on the Community Legal Funds or the Community Conservation Fund.

• Identify and consider how projects may work and whether the approval conditions are likely to work. For example, how and when should provisions such as land swaps or restoration are mandated.

• Consider and improve the transparency and potential for appeal.

• Identify ways the process can be improved and learn over time.

Most of all, don’t view it as a fait accompli that can’t be improved to leave room for improvements in environmental science. Yes, it is a step backward for the application of environmental science. It is a step backward for environmental NGOs who have proved far more effective at winning in court than in helping to design insightful and efficient legislation. Consider making a submission on the points above and share any others that are useful!

By the time we see the final bill after the Select Committee process, we’ll know where this stands.