18 Feb 2024
Can I acknowledge Mayor Alex Walker, Chair of the LGNZ Rural Sector, and Susan Freeman-Greene, Chief Executive of LGNZ.
Congratulations to all elected Mayors and Councillors in the room today, whether you are taking on the mantle of leadership for the first time or whether you’ve had the pleasure of being re-endorsed by your community.
I know from first-hand experience that putting yourself forward for public office isn’t easy, but I also know that it’s worth it. We all get the chance to help shape the future of our communities and build a better New Zealand.
You are all taking office at an extremely important time for local government. The government has just unveiled its proposals to reform the Resource Management Act, the spectre of 3 Waters continues to loom over you, and indeed the whole future of local government is up for review and debate.
What I’d like to do today is talk specifically about the hot topics of RMA Reform and 3 Waters.
On Tuesday the government published their RMA reform package. Two new Bills have been introduced to Parliament with a third to come next year. The Bills will have their first readings next Tuesday and be sent to the Environment Committee, where you and your communities will get a chance to submit – and I encourage you to do so.
There is widespread agreement across Parliament that the RMA is broken. It seems hard to believe now but back in 1991 it was regarded as a liberalising and more permissive regime than the old Town and Country Planning Act 1977 that it replaced.
In practice, the RMA has been a disaster. It has helped produce one of the least affordable housing markets in the developed world. The red tape and bureaucracy it has generated are road blocks to actually getting things built. It is widely seen as having failed to protect the natural environment.
National has argued for fundamental RMA reform for a long time. In the first term of the last National-led government from 2008-11 we made a series of sensible amendments while preparing a fundamental rewrite. Sadly, the electoral arithmetic after 2011 meant we never had the numbers in Parliament to progress comprehensive reform, despite valiant efforts.
It is worth remembering that Labour spent all of 2008-17 arguing against comprehensive RMA reform. They even opposed minor and sensible amendments like removing the requirement to get a resource consent to chop down a tree on your own property.
Now they’re in government with an absolute majority in Parliament, Labour has decided they’re up for RMA reform. We welcome Labour’s conversion to the cause but it is frustrating to think about the lost opportunities in the past decade or more.
Officials like to point out more than 95% of resource consents are approved, as if there is no problem. But that high rate is no measure of success because it does not count the applications for consent that were never lodged in the first place. As a result, houses are much more expensive than they need to be. And because land is an input into everything, we are less productive and less prosperous than we otherwise could and should be.
So, after five years in office, the ultimate question is: will the government’s RMA reforms make it easier to get things done? Will RMA reform make it easier to get houses built and make it easier to deliver infrastructure, while protecting the environment?
Frankly, our initial view is no. We are deeply sceptical the new laws will work as intended. It is likely the legislation is worse than what we have now.
There seems to be a view that because the new Bills have been consulted on for so long and have taken so long to put together, that they must be good.
That’s naïve. Endless consultation doesn’t always need to good law making. Too often it can mean confusion.
We will participate fully in the select committee process to examine the Bills in more detail but the early signs aren’t promising.
First, the Bills will add yet more bureaucracy to a planning system already riddled with it.
Under the new system there will be Regional Planning Committees which sit above existing city, district and regional Councils.
This is yet another layer of government and bureaucracy added to an already labyrinthine planning process.
There will be 15 of these committees, mapping the existing Regional Council boundaries (Nelson and Tasman will be clumped together). The committee membership will be appointed by local Councils, but other than a mandatory Māori membership and a minimum size, the government is leaving it over to each region and mana whenua as to how to constitute each committee.
Our worry is that the arguments over who will be on each committee will take years and cost millions. I’ve seen a few debates in my time over local government amalgamation and reorganisation. These are contentious issues. The Government has provided a way to settle these arguments, but the idea that it will be easy for 15 regions to just figure out who will be on these powerful bodies and get on with it is naïve.
Each committee will have a secretariat. There will be “Statements of community outcomes” and “Statements of regional environmental outcomes” by each Council to feed into the Planning Committee. There will be evaluation requirements. This is yet more bureaucracy.
There is also a democratic deficit at the core of the proposals. Right now, territorial and regional councils are all made up of elected members who decide the shape the future of their cities. These new committees will just consist of appointed members. Voters can’t throw them out, at least not easily.
These NBA plans that the committees will be required to produce must give effect to the National Planning Framework determined by the Minister; and will sit within yet more plans – the Regional Spatial Strategy under the Spatial Planning Act.
You are particularly affected by all this change at local and regional planning level. We would particularly like to hear from you as to what you think of the proposed new framework.
The second thing we are concerned about is more legal uncertainty.
The purpose of the new Natural and Built Environment Bill will be to recognise and uphold te Oranga o te Taiao, which is a te ao Māori concept.
Basically, “Sustainable management” as a purpose in the old RMA has been explicitly replaced by “te Oranga o te Taiao”.
I have checked the statute books.
This legal term is completely new to New Zealand law. It’s never been used before. Apparently it has been written for this Bill.
The new regional committees, councils, planners, builders and everyone who has anything to do with the RMA will have to figure out what it means. Good luck.
One option is that everyone decides that te Oranga o te Taiao just means “sustainable management”, the term it replaced. But if Parliament meant that it would say that. The Bills don’t contain that language. When Parliament changes words, the courts assume Parliament intended to do so deliberately and that Parliament must mean something when it does so.
Senior RMA practitioners are telling me that years of legal wrangling awaits over this language.
That means more delays, more costs, and more road blocks in place for new housing and infrastructure.
Add on top of that the change from the requirement to “take account of the principles of the Treaty of Waitangi” to “give effect to the principles of the Treaty”.
This sounds like a small change but as any RMA lawyer will tell you, there’s a big difference between “taking account” of something and “giving effect” to it. The Supreme Court has recently said “give effect to” means “implement” and it is a strong directive. This significantly strengthens the provision. It will make it more difficult to do things not easier.
The government’s argument is that the Conservation Act 1987 already contains that language. It’s true, it does. But the Conservation Act is specifically about conserving and protecting resources. It doesn’t have to solve the problem of choosing between nature and development. Planning does, so the government‘s strategy of transplanting language into a totally different context is deeply misguided.
Third, we are concerned that the balance in the Bills is too far tilted against development and in favour of the environment. The government has sold this as making it easier to do things. We’re all in favour of that. But as usual with this government the substance doesn’t match the spin.
Look at clause 3 of the new Natural and Built Environment Bill. It says the purpose is to “enable the use, development, and protection of the environment in a way that….promotes outcomes for the benefit of the environment.”
The emphasis from the current law is very different. The new law is about promoting the environment, and only if you can promote the environment and comply with environmental limits and te Oranga o te Taiao – whatever that means – will you be able to do things.
That is not a recipe for faster, smoother – it is a recipe for endless argument.
Look at Clause 5, which is a long list of system outcomes.
This is what ALL plans must provide for under the new law.
- Protecting or restoring the ecological integrity, mana, mauri of air, water, soils, the coast, wetlands, estuaries, lakes, rivers, and biodiversity
- Reducing greenhouse gas emissions
- Recognising the relationship of iwi and hapū and the exercise of their kawa, tikanga (including kaitiakitanga), and mātauranga in relation to their ancestral lands, water, sites, wāhi tapu, wāhi tūpuna, and other taonga
- Conservation of cultural heritage
- Protection of customary rights
- Public access to the coast, lakes and rivers.
- Protecting highly productive land
PLUS the use and development of land for housing, business, and the ongoing and timely provision of infrastructure services.
The first obvious point here is how on earth can plans achieve all of that. They can’t. This is a recipe for the same gridlock the RMA delivered.
The second is that it’s very clear where the balance lies. The built environment and infrastructure barely get a look in.
The new Bills look like Environmental Protection Acts. They’re not pro-development acts.
I fear that without major changes to these Bills, New Zealanders will discover in ten years time that they have spent the past decade transitioning into a planning system that is worse than the one it replaced.
So, are there good things in the new Bills?
We’ve been supportive of the fast-track consenting process and it’s good it will be made permanent.
There are some useful changes that support the long-overdue introduction of standards for infrastructure and resource consents.
But overall, we’re sceptical the Bills are the wholesale change that is required.
National will closely consider the Bills at the committee and we will have more to say next year.
Let me now turn to the vexed issue of 3 Waters reform.
First, a legislation update for you all.
The Water Services Entities Bill has just had its second reading in Parliament after being considered by the Finance and Expenditure Committee.
Despite strong opposition, no fundamental changes to the legislation have been made – in fact, it has been made worse.
I encourage you to check out Simon Watts’ strong speech on the issue yesterday.
We understand the government intends to ram the Bill through its remaining stages of Parliament under urgency next week.
We’re told that the second and third three waters bills are not far away either.
So where does National stand on 3 Waters?
We agree on a couple of things with the government.
First, there is undoubtedly an issue with water infrastructure management in New Zealand. We agree with the need for investment and change.
Second, we support the establishment of Taumata Arowai, the water regulator, and we agree with the need for economic regulation of water services.
But we have fundamental disagreements with the government after those basic points of consensus.
We have major concerns with what the government has proposed.
We’re opposed to the four big mega entities because they’re too big and strip power away from local communities. They’re highly unlikely to generate the economies of scale that some people say they will.
We’re opposed to the confiscation of community assets built up through generations and the transfer to unaccountable mega entities. The government insists Councils continue to own water assets. Any fair reading of the legislation makes it clear that it is fiction.
We’re opposed to the radical co-governance arrangements that will result in opaque and confusing governance structures but won’t improve the provision of water infrastructure to the public.
The co-governance provisions in the Water Services Entities Bill are genuinely extraordinary.
We’re opposed to the extensive provisions for mana whenua – and only mana whenua - to submit Te Mana o te Wai statements. These statements will be incredibly legally significant. Water service entities have to respond to them and give effect to them.
Parliament has just endorsed the government’s changes to extend the scope of Te Mana o te wai statements to cover geothermal and coastal waters.
So 3 Waters has become 5 Waters.
The sad thing is there is a middle path – a third way – through this contentious issue.
That path works with local government, not against them, and focuses on partnership, not antagonism.
From my conversations around the country, people know that the status quo isn’t acceptable.
They’re up for change.
They’re just not up for what the government is proposing.
The government has given the middle finger to local government, and the thousands of people up and down the country opposed to 3 Waters and said it is their way or the highway.
The Communities for Local Democracy group have provided really good work. It’s been ignored by the government.
Mayors Brown, Mauger and Gordon put forward another compromise option. It’s been ignored.
The government won’t compromise on co-governance. They won’t compromise on the four mega entities. And they won’t compromise on asset confiscation.
National has been doing work on an alternative model for 3 Waters. My colleague Simon Watts, our Spokesperson for Local Government, has been leading that work. I know many of you have met with him. I’m working closely with him alongside our wider Infrastructure and Transport team.
We’ve been clear that we will repeal Labour’s 3 Waters reforms. We will replace them with a workable model developed in partnership with local government, not against them.
What will that model include?
First, independent water quality and economic regulation.
These are very important. Over time, that will drive infrastructure investment decisions and sustainable pricing.
Second, collaboration and cooperation over compulsion.
We are not obsessed with the idea of four mega entities. Instead, we encourage Councils to work together, and there will likely be a variety of arrangements that Councils decide to use, such as regional CCO arrangements.
The point is that one size doesn’t fit all. The problems in Auckland aren’t the same as those facing you as rural and provincial Councils, so a top-down, centrally-driven approach won’t work.
Third, communities must retain local ownership, and entities must be accountable to local communities.
Fourth, no co-governance with iwi. That’s totally off the table. Of course, mana whenua should be involved and have a voice at the table. But the idea that only mana whenua can have a say in water management is just wrong, and I think most New Zealanders think so too.
Fifth, 3 Waters reform needs to be financially sustainable for Councils. Central government can and should play a role here, particularly in the transition.
So, if we win office late next year, we will repeal Labour’s flawed 3 Waters reforms and replace them with a regime as I’ve just outlined.
Thank you for the opportunity to speak to you today and I look forward to your questions.