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New Zealand's Environmental Legislation

There remains a large number of laws that touch on resource management (see Table 4.1). An outline of the major pieces of environmental legislation is set out below.

Resource Management Act 1991

By bringing together laws governing land, air and water resources, the Resource Management Act (RMA) introduces a totally new approach to environmental management. The Act's 'eco-system' approach recognises that elements of the environment do not stand alone, and that effects of human activities on the environment are not discrete.

Sustainable management

The Resource Management Act has a single, overarching purpose: to promote the sustainable management of natural and physical resources. In the 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 well-being and for their health and safety while:

  • sustaining the potential of natural and physical resources (excluding minerals) to meet the reasonably foreseeable needs of future generations;
  • safeguarding the life-supporting capacity of air, water, soil and ecosystems; and
  • avoiding, remedying, or mitigating any adverse effects on the environment.

This recognises that people need to use resources for their welfare, but that in doing so we must not, either singly or cumulatively, compromise the ability of the environment to continue to provide those resources, or other indirect services (such as erosion control) to the community.

The concept of sustainable management is derived from that of sustainable development. Sustainable development was coined in 1987 by the World Commission on Environment and Development (World Commission on Environment and Development, 1987), and developed at the 1992 Rio 'Earth Summit' (see Box 4.4). It is a widely embracing concept, requiring environmental sustainability as well as economic viability and social justice.

In comparison, the concept of sustainable management in the Resource Management Act leaves the pursuit of economic and social goals to other mechanisms available to government and the community, e.g. our taxation and welfare systems. While recognising that there are social and economic consequences from the use of resources, the Act attempts to ensure that the environment's sustainability is not compromised by the pursuit of those concerns.

Table 4.1: New Zealand's environmental and related legislation.
Key laws relating to the environment
  • Biosecurity Act 1993
  • Conservation Act 1987
  • Crown Minerals Act 1991
  • Environment Act 1986
  • Fisheries Act 1996
  • Forests Act 1949 (with 1993 amendment)
  • Hazardous Substances and New Organisms Act 1996
  • Ozone Layer Protection Act 1996
  • Resource Management Act 1991
  • Wildlife Act 1953
Other laws relating to the environment *
  • Agricultural and Pastoral Societies Act 1908
  • Agriculture (Emergency Powers) Act 1934
  • Animal Control Products Ltd Act 1991
  • Animal Identification Act 1993
  • Animal Remedies Act 1967
  • Animals Act 1967
  • Animals Protection Act 1960
  • Antarctic Marine Living Resources Act 1981
  • Antarctica Act 1960
  • Antarctica (Environmental Protection) Act 1994
  • Atomic Energy Act 1945
  • Building Act 1991
  • Continental Shelf Act 1964
  • Crown Forest Assets Act 1989
  • Crown Grants Act 1908
  • Crown Research Institutes Act 1992
  • Customs Act 1966
  • Dangerous Goods Act 1974
  • Dog Control and Hydatids Act 1982
  • Driftnet Prohibition Act 1991
  • Dumping and Countervailing Duties Act 1988
  • Electricity Act 1992
  • Energy Companies Act 1992
  • Energy Resources Levy Act 1976
  • Explosives Act 1957
  • Fertilisers Acts 1960 and 1982
  • Foreshore and Seabed Endowment Revesting Act 1991
  • Forest and Rural Fires Act 1977
  • Foundation for Research, Science and Technology Act 1990
  • Franklin-Manukau Pests Destruction Act 1971
  • Gas Act 1992
  • Harbour Boards Dry Land Endowment Revesting Act 1991
  • Harbours Act 1950
  • Historic Places Act 1993
  • Import Control Act 1988
  • International Energy Agreement Act 1976
  • Irrigation Schemes Act 1990
  • Lake Wanaka Preservation Act 1973
  • Land Act 1948
  • Land Drainage Act 1908
  • Land Transport Act 1993
  • Litter Act 1979
  • Local Government Act 1974
  • Manapouri-Te Anau Development Act 1963
  • Māori Fisheries Act 1989
  • Māori Land Act/Te Ture Whenua Māori 1993
  • Māori Reserved Land Act 1955
  • Māori Vested Lands Administration Act 1954
  • Marine Farming Act 1971
  • Marine Mammals Protection Act 1978
  • Marine Pollution Act 1974
  • Marine Reserves Act 1971
  • Maritime Transport Act 1994
  • National Parks Act 1980
  • Native Plants Protection Act 1934
  • New Zealand Nuclear Free Zone, Disarmament
  • and Arms Control Act 1987
  • New Zealand Walkways Act 1990
  • Pesticides Act 1979
  • Plant Variety Rights Act 1987
  • Queen Elizabeth the Second National Trust Act 1977
  • Radiation Protection Act 1965
  • Rangitaiki Land Drainage Act 1956
  • Reserves Act 1977
  • Road User Charges Act 1977
  • Scientific and Industrial Research Act 1974
  • Soil Conservation and Rivers Control Act 1941
  • Southland Electricity Act 1993
  • Sugar Loaf Islands Marine Protected Area Act 1991
  • Synthetic Fuels Plant (Effluent Disposal) EMP Act
  • Taranaki Harbours Act 1965
  • Tarawera Forest Act 1967
  • Territorial Sea and Exclusive Economic Zone Act 1977
  • Toxic Substances Act 1979
  • Trade in Endangered Species Act 1989
  • Transit New Zealand Act 1989
  • Transport Act 1962
  • Treaty of Waitangi Act 1975
  • Treaty of Waitangi (Fisheries Claims) Settlement Act 1992
  • Waikato Raupatu Claims Settlement Act 1995
  • Wild Animal Control Act 1977

*A further 18 laws (along with their 40 amending acts) were repealed by the Resource Management Act in 1991.

Figure 4.3: Resource Management Act

The purpose and principals of the Resource Management Act are "Sustainable management of natural and physical resources".

Under the Act, Central Government deals with resource issues of national importance, Regional Councils deal with soil, water, air, pollution and coast, and District Councils deal with land, subdivision and noise.

From the Act comes National Environmental Standards (optional), National Policy Statements (optional), and the New Zealand Coastal Policy Statement (mandatory). These all lead to Regional Policy Statements (mandatory) which integrate land, air and water.

Environmental standards lead to regional plans (optional), and the Coastal Policy Statement leads to Regional Coastal Plans (mandatory). With Regional Policy Statements, these lead to District Plans (mandatory). Individually they lead to Resource Consents and Permits associated with water, coast, discharge, land and subdivision.

Effects-based approach

The RMA's approach differs from the approach of previous legislation by concentrating on the environmental effects of human activities, rather than on the activities themselves. This means that, regardless of who carries out an activity, it is the environmental effects that result from the activity that are the determining factor as to whether the activity is permitted in any particular location. It also means that, if a particular industrial activity can meet a community's environmental standards, that business should be able to operate in the area. Resource users must consider how their activity will affect the environment.

Focusing on environmental outcomes rather than activities also provides incentives for resource users to come up with efficient and creative ways to achieve good environmental results. People can be rewarded for devising new ways to use resources while promoting environmental sustainability.

Management controls

The Resource Management Act embodies three conceptually separate but related functions:

  • it allocates access to, and use of,common property natural resources (fresh, coastal and ground water, geothermal energy and water, the surface of lakes and rivers, riverbeds, the foreshore and the seabed);
  • it controls the discharge of contaminants (pollutants) to air, land and all water including ground, fresh and coastal water; and
  • it manages the adverse affects of all activities using land, air, or water.

The RMA sets out a series of duties and restrictions. Under the Act, everyone has a duty to avoid, remedy, or mitigate adverse effects on the environment, notwithstanding the requirements of consent permits. The duties and restrictions also mean that nobody can use natural resources such as water, air or the coast unless the RMA or a consent under it says so.

No-one may discharge any contaminant to water or onto land in a way which might enter water. In the case of air and land discharges, any person operating industrial or trade premises is prohibited from discharging any contaminant without a consent (permit).

Although the presumption for the use of natural common property resources is very strict, the ropposite applies to the use of private land. Here, activities such as the right to erect a building, are deemed to be permitted unless constrained by provisions in statutory plans under the Act.

Responsibilities

Responsibilities for environmental decision making under the Act are allocated to the community most closely affected by the use of that resource. A decision is therefore made by the community that will deal with the effects and that can best understand the environmental issues at stake. This means that the government, and district and regional authorities, are required to identify the environmental risks in their area, and develop policy statements and plans containing ways to regulate activities in response to those threats. These plans and policies are constructed in a hierarchy, depending on the degree of action needed to address the perceived threat. (see Figure 4.3) Regional councils and territorial authorities use a common process for developing all plans and policy statements.

Central government can develop national policy statements and environmental standards to address environmental issues affecting the whole nation (such as management of the coastal zone or minimum ambient air quality to protect health -see Box 4.2). The government's statements and standards set policy boundaries from which local authorities develop their own policies and regulations.

Under the Act, Regional councils are charged with achieving 'integrated management of the natural and physical resources of the region'. Each council is required to draft a Regional Policy Statement identifying environmental issues and responses of significance for its region. It must also draft and administer a Regional Coastal Plan and may draft and administer other regional plans. All regional policy statements and plans must be drafted so they 'are not inconsistent' with any national policy statements or environmental standards in place at the time.

Regional councils also have responsibility for granting resource consents to occupy the coast; to carry out activities in river beds; to use natural water including underground, geothermal and coastal waters; to discharge contaminants to air, water or land; and to control certain activities on land for the purposes of soil conservation, hazard mitigation, and to protect the quantity and quality of natural water in accordance with the provisions of the Act, the Regional Policy Statement, and any regional plans.

Under the Resource Management Act, territorial authorities are charged with achieving "integrated management of the effects of the use, development, or protection of land and associated natural and physical resources of the district" (emphasis added). Territorial authorities must draft district plans identifying environmental issues of significance relating to land use for the district, and setting down any restrictions and controls on land use and subdivision taking into account the issues identified in the Regional Policy Statements and any regional plans that affect that area, and in national policy statements or environmental standards.

The territorial authorities also grant resource consents for subdivision of land and for activities on land where these have been determined as necessary in the district plan in accordance with the provisions of the Act and the district plan.

Analysis of alternative mechanisms

The Resource Management Act does not presume regulation is the only, or necessarily the best, way of dealing with environmental problems. Built into it is a requirement for decision-makers to carry out an appropriate assessment of alternative mechanisms. These include providing information, undertaking works and services, providing subsidies and the use of economic instruments-for example, tradeable water permits.

The Act sets a strict requirement that, before adopting a policy statement or plan or national environmental standard, decision-makers under the Act must analyse the alternative means of achieving the environmental outcomes sought, and choose the most cost effective one (or combination) in the circumstances.

Consents

The RMA has a common process for all consents, whether for land, subdivision, water, the coast, or the discharge of contaminants.

Rules in plans also provide for the degree and type of scrutiny of proposals for resource consents (permits). There are five levels of consents: permitted, controlled, discretionary, non-complying and prohibited. Anyone proposing an action requiring a consent must carry out an impact assessment of the effects of that proposal. Plans can set out the particular impacts that the community wishes to examine and control. If there is no plan, or if the plan does not contain environmental criteria, the applicant must ensure that all adverse impacts on the environment are identified and measures to avoid, remedy or mitigate them are identified and developed.

Where a proposal needs more than one consent, these will be dealt with concurrently and by a joint hearing where necessary. This mechanism applies within and between agencies also.

Monitoring

The RMA requires local authorities to monitor:

  • the state of the environment in their jurisdiction or area;
  • whether their policy statements or plans are working as intended;
  • whether resource consents and their related conditions are being properly carried out.

Where this monitoring indicates a discrepancy from the original target, the local authority must act to resolve this-either by changing the target or the measures needed to achieve compliance.

For further information about the RMA, see Ministry for the Environment, 1994b, 1994c, 1994d, 1994e.

Box 4.2: Environmental standards and guidelines

The Ministry for the Environment coordinates development of environmental standards and guidelines to help local authorities and resource users implement their responsibilities under the Resource Management Act (RMA). Standards and guidelines help define the 'environmental bottom line' of sustainable management described by the Act by setting values and targets for environmental quality.

Guidelines contain recommendations for the attainment of certain aspects of environmental quality. They can identify specific targets for environmental outcomes, incentives for resource managers to work towards those outcomes, different means for achieving them, and ways of measuring progress towards them. They are not legally enforceable in themselves, but provide a useful means for standardising practice. They can be incorporated into local authorities' policies and plans (and then become legally enforceable), and some can be translated into codes of practice for industry groups.

Standards differ from guidelines in that they are legally enforceable and apply nation-wide. The RMA provides for national environmental standards to be enacted in the form of regulations. Standards for the use, development and protection of natural and physical resources can relate to:

  • noise
  • contaminants
  • water quality, level, or flow
  • air quality
  • soil quality in relation to the discharge of contaminants.

In October 1995, the Ministry for the Environment published a paper detailing the principles and processes for developing standards and guidelines (Ministry for the Environment, 1995c). These include the principle that standards and guidelines should prescribe the minimum amount of regulation to best achieve the desired environmental outcome, that they should consider impacts on other parts of the ecosystem, and that they should employ a precautionary approach which takes account of the uncertainty in the measures prescribing environmental quality. The paper also states that standards should be developed only where the advantages of protecting national values or providing national consistency outweigh the advantages of regional resource management.

The process for developing standards and guidelines aims to ensure widespread public consultation and peer review. Several drafts, and submissions on them, are called for at several stages in the development process. A significant element of the process for developing standards is a formal 'section 32' report, which is an evaluation of the alternatives to, benefits and costs of, adoption of the proposed standard.

To date, no national environmental standards have been enacted. However, several guidelines have been developed, some of which may be enacted as standards in future. To date, guidelines developed by the Ministry for the Environment are:

  • Guidelines for Subdivision, October 1991
  • Australian and New Zealand Guidelines for the Assessment and Management of Contaminated Sites, January 1992
  • Ambient Air Quality Guidelines, June 1994
  • Water Quality Guidelines No 1, June 1994: control of undesirable biological growths in water
  • Water Quality Guidelines No 2, June 1994: water colour and clarity
  • Above-Ground Bulk Storage Containment Systems Guide, July 1995
  • Odour Management Under the Resource Management Act, June 1995
  • Cleaner Production Guidelines, May 1994: an update of case studies was published in October 1995
  • Landfill Full Costing Guide, June 1996.

The Ministry for the Environment is also coordinating development of guidelines on coastal and fresh water bathing quality, toxic contaminants in water, stock drinking water, instream flows, organochlorines management, air emissions source testing, and marine pollution.

The Ministry of Health also develops guidelines, especially where use of resources can have effects on human health. Guidelines published by the Ministry of Health to date include:

  • Draft Health and Environmental Guidelines for Selected Timber Treatment Chemicals Ministry for the Environment and Ministry of Health, 1993
  • Air Pollution Monitoring in New Zealand 1960 - 1992 Institute of Environmental Science and Research Limited, 1994
  • Energy Efficiency Opportunities from PCB Phase-Out Energy Efficiency and Conservation Authority and Ministry of Health, 1994
  • Microbiological Methods for Monitoring Saline Recreational Waters, 1994
  • Drinking Water Standards for New Zealand, 1995
  • A Guide to Health Impact Assessment: Guidelines for public health services and resource management consent agencies and consent applicants Public Health Commission, 1995
  • Guidelines for Drinking-Water Quality Management, 1995
  • Guidelines on the Management of Leadbased Paint Joint Public Health Commission and Occupational Safety and Health Service, 1995
  • Risk Assessment: a 'user friendly' guide: Guidelines for public health services and resource management agencies and consent applicants Public Health Commission, 1995
  • Interim National Quality Standards, 1995
  • Guidelines for Management of Asbestos in the Non-occupational Environment, 1996
  • Information about Selling, Packing, Handling and Storing Poisons, 1996
  • Priorities and Procedures for Contaminated Site Investigation Version 1, Institute of Environmental Science and Research Limited, 1996
  • Protocol for Drinking Water Monitoring Programmes Based on Rapid Test Systems such as Colilert/Colisure, 1996.

Crown Minerals Act 1991

The Crown Minerals Act controls mining rights to Crown-owned minerals. It deals with the allocation of property rights. It establishes minerals programmes and sets royalty regimes for the various mineral ores. Permits are granted for prospecting, exploring and mining in accordance with these programmes and subject to the royalty regimes and appropriate conditions.

Three permissions are required before mining can start:

  • a right to the mineral resource
  • a right to access to the land on which or under which the mining will take place
  • environmental consents to carry out the activity.

A mining permit does not confer any right to access-this must be negotiated between the permit holder and the landowner. In the case of Crown land, access conditions are determined in accordance with the legislation under which the land is being managed.

The Resource Management Act controls the environmental effects resulting from the use of those rights. Mineral depletion is therefore exempt from the sustainability provisions of the RMA, but the environmental impacts of the mining and use of minerals on other resources may be addressed under the RMA.

Environment Act 1986

The Environment Act 1986 established the Ministry for the Environment and authorised appointment of the Parliamentary Commissioner for the Environment. In addition to establishing these new administrative agencies, it entrenched the Government's commitment to include environmental issues as a key element in its policy-making formula. One of its objectives is to ensure that, in the management of natural and physical resources, full and balanced account is taken of:

  • the intrinsic values of ecosystems
  • all values which are placed by individuals and groups on the quality of the environment
  • the principles of the Treaty of Waitangi
  • the sustainability of natural and physical resources
  • the needs of future generations.

Hazardous Substances and New Organisms Act 1996

The passing of the Hazardous Substances and New Organisms Act in June 1996 represents one of the most significant reforms of environmental legislation since the Resource Management Act. The Act has a strong focus on environmental protection, although the actual level of environmental and human health protection will be set through regulations yet to be developed. The Act establishes the Environmental Risk Management Authority (ERMA) to assess and decide on applications to introduce hazardous substances or new organisms into New Zealand.

Biosecurity Act 1993

The Biosecurity Act was introduced in 1993 to restate and reform the laws relating to pests and unwanted organisms. It covers the quarantine, importation and monitoring of pests and unwanted organisms, and provides for pest management through regional or national pest management strategies. Any minister can recommend development of a national pest management strategy for an organism that is a pest 'of national importance', and regional councils can propose a strategy for controlling pests 'of regional importance'.

Criteria for identifying the need for a strategy are not just environmental; they include considerations of economic well-being, cultural concerns, as well as the viability of rare or endangered species, soil structure and water quality. The Act provides for cost-benefit analyses to be made of the pest's potential impacts before strategies are implemented. The roles and responsibilities of land-owners, regional councils and others and the cost-sharing for the management of the pest are then allocated on the basis of the nature and extent of the threats posed by the pest.

Conservation Act 1987

The Conservation Act 1987 establishes the Department of Conservation, and defines its mandate for managing and promoting the conservation of New Zealand's natural and historic resources on Crown-owned land. These resources include plants and animals; the air, water and soil they live upon or within; landscapes and landforms; and historic resources as defined under the Historic Places Act 1980. The Act sets up a system of land protection, and describes the variety of lands held for conservation purposes. These include ecological, sanctuary or wilderness areas and conservation parks. The Act also makes the Department of Conservation responsible for managing the recreational and tourist use of natural and historic resources within the protected estate.

Fisheries Act 1996

The Fisheries Act 1996 implements a system for ensuring sustainability of New Zealand's fishing resources. The Act aims to provide for the use, conservation, enhancement and development of fisheries resources so that people can provide for their social, economic and cultural well-being while:

  • ensuring that the potential of those resources to meet the foreseeable needs of future generations is maintained; and
  • avoiding, remedying or mitigating any adverse effects of fishing on the aquatic environment.

The Act therefore incorporates sustainability as its underlying principle. This means that the long-term viability of stocks for each species, the biological diversity of the aquatic environment, and human interests in using fishing resources are all considerations under the management system. A Quota Management System provides for the sustainability of fisheries resources. Under this system, the Minister of Fisheries can put in place fishing quotas for specific stock.

Under the Act, a Total Allowable Catch is set for species managed under the Quota Management System (covering commercial, recreational and traditional Māori fishing activity). This is reviewed annually for each species covered by the system. From this, a Total Allowable Commercial Catch (TACC) is established and commercial fishers acquire rights to harvest fish by purchasing or leasing Individual Transferable Quotas (ITQs). ITQs are expressed as a proportion of the TACC for each fishery, and therefore change as the TACC increases or decreases in response to the assessed health of the fishery.

Forests Amendment Act 1993

The 1993 amendments to the Forests Act 1949 affected the management of natural forests. The Amendment does not apply to land controlled by the Department of Conservation, but applies to most other private and public natural forests. Its purpose is to promote the sustainable forestry management of indigenous forest land. The Act defines sustainable forestry management as "the management of an area of indigenous forest land in a way that maintains the ability of the forest growing on that land to continue to provide a full range of products and amenities in perpetuity while retaining the forest's natural values". It requires areas of natural forest available for timber production to be managed under sustainable management plans defining, among other things, rates of harvest calculated on the forest's capacity for regeneration. It also provided for unsustainable logging in natural forests to be phased out by July 1996.

Wildlife Act 1953

This is the main law protecting wildlife on land and in New Zealand's territorial waters. It provides that wildlife sanctuaries, management reserves and refuges can be established for the protection of wildlife and their habitats. Species are classed under schedules to the Act according to their need for protection.

Ozone Layer Protection Amendment Act 1996

The 1990 Ozone Layer Protection Act was amended in June 1996 to bring New Zealand's ozone laws up to date with changes to the Montreal Protocol. Instead of specifying particular controls, the new Act enables controls to be imposed through regulations. This means that it is now easier to meet changing obligations under the Protocol. The new Act also sets up a system for accreditation of workers dealing with ozone-depleting substances. This will require these workers to have sufficient technical knowledge to comply with their obligations under the new Act.