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1 Introduction

1.1 The origins of the Resource Management Act

The RMA came into force on 1 October 1991 after four years of intense work. It replaced more than 20 major statutes and 50 other laws related to the environment (some dating from 1889), and was the largest law reform exercise in New Zealand's history. During the development of the RMA, the significant environmental problems facing New Zealand were identified. The views of many people were sought on the best ways of tackling these problems.

Until the law reform project began, a number of laws and administering agencies had been developed to address environmental problems as they arose. The result was a rather ad hoc collection of uncoordinated approaches, with considerable conflicts, gaps and overlaps. This led to some environmental problems not being adequately addressed, while multiple requirements sometimes created unreasonable delays.

The RMA set out to create a more streamlined, integrated and comprehensive approach to environmental management. A review of local government at the same time provided legislators with an ideal opportunity to simplify the way the new legislation would be implemented.

The RMA was groundbreaking legislation. At the time of its enactment, no other country had a mechanism for managing the quality of land, air and water under a single law. Since that time, many other countries have moved to develop integrated environmental legislation.

1.2 The purpose of the Resource Management Act

We are justifiably proud of the beauty, majesty and productivity of New Zealand. We do not suffer some of the serious difficulties of more heavily populated countries. Nevertheless, there is no room for complacency. Despite our relatively low population, we have had a profound influence on the quality of our environment. The clearing of forests, draining of wetlands, use of the land for farming, and the growth of our towns and cities have dramatically affected water quality in our rivers and streams, our bird life, our soil resources and our historic heritage, including cultural sites.

Our growing population and the towns and cites, industries, and transport that support us have placed pressures on our soils, groundwater, rivers, ocean, estuaries and air quality. Introduced pests such as possums, rats and weeds are increasingly threatening our indigenous species. As a nation we contribute to global emissions of greenhouse gases and ozone-depleting substances. For more information on the environmental pressures facing New Zealand refer to The State of the Environment information on the Ministry for the Environment's website at:www.mfe.govt.nz/state/

Essentially, the problem is that some of the actions we take are not sustainable in the long term. Some of our actions can cause irreparable damage to our environment. While those activities enable us to pursue our interests, they may not allow our children, grandchildren or descendants to pursue their interests.

The way we manage the environment is crucial to our economic and social welfare. New Zealand's farming, fishing and forestry industries are totally reliant on our soil and water resources. Increasingly, our overseas markets and consumers want to know that the products they purchase are healthy, safe and produced in an environmentally sound way. Our tourism industry also trades on New Zealand's clean green image. On a local scale, we can also affect the quality of life for ourselves, our neighbours and our communities through our actions. The vitality of our economy and our standard of living is inextricably linked to the health of our environment.

The RMA is one step toward addressing these issues and recognising the importance of the environment to our continued economic, social and cultural welfare. It is a key tool in the pursuit of the New Zealand Government's vision of a clean, healthy and unique environment, sustaining nature and people's needs and aspirations (as stated in the Environment 2010 Strategy published in 1995).

The stated purpose of the RMA as contained in section 5 of the Act is to promote the sustainable management of natural and physical resources. For the purposes of the RMA, 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 -

(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.

1.3 What 'sustainable management' means in practice

The RMA establishes a framework within which the environmental effects of our activities can be identified and properly dealt with. It is expected that people will seek to provide for their own social, economic and cultural well-being and for their health and safety. The RMA does require people to consider the effects of pursuing those interests on the matters outlined in (a), (b) and (c) above.

Terms such as natural and physical resources and the environment are defined very broadly in the RMA. Natural and physical resources include land, water, air, soil, minerals, energy, all forms of plants and animals, and all structures. The environment includes people and communities as well as what we usually think of as 'natural' ecosystems. The definition of environment recognises that as humans we value it on our own terms.

The definition of effect contained in section 3 of the RMA also shows the legislation's wide-ranging interests. Effect includes:

  • any positive or adverse effect
  • any temporary or permanent effect
  • any past, present or future effect
  • any cumulative effect
  • any potential effect of high probability
  • any potential effect of low probability but with a high potential impact.

Achieving sustainable management requires a number of assumptions. It is generally assumed that future generations will require the same sorts of things we enjoy such as clean beaches, fresh air and quiet neighbourhoods. It is about passing on the stock of such natural and physical resources to the next generation in no worse condition than they are now, and in sufficient quantity to meet future needs. We also need to set benchmarks or 'bottom-lines' to safeguard the life-supporting capacity of our air, land and water. The assumption here is that a certain amount of impact on, or degradation of, the environment can be tolerated. The requirement to avoid, remedy or mitigate adverse effects on the environment provides an opportunity to either prevent those effects, or if this cannot be achieved, reduce the effects to an acceptable and practical minimum.

Example

A company wishes to develop rural land on the coast for a golf course. The beaches along that section of the coast are very popular with the public and are an important area used by local hapū for gathering kaimoana. Streams that support indigenous fish and plant life run through the property. The property also has a number of stands of indigenous lowland forest that are relatively rare.

The RMA expects the company to demonstrate that its proposal will not limit the opportunities available for future generations by, for instance, permanently inhibiting public access along the beach or hapū ability to gather kaimoana. The company might be required to demonstrate how it can avoid loss of public access to the coast by, for instance, handing ownership of a strip of land above the high tide mark to the local council for use as a public reserve. The company might also need to show that any earthworks associated with the golf course would not irreparably damage the streams that run through the area to the extent that they are unable to support hapū using the area to collect kaimoana, or existing habitats for fish and plants. If some sediment is likely to be discharged to local streams as a result of the earthworks, the company might indicate how this adverse effect could be minimised by routing runoff through settling ponds and maintaining riparian vegetation along the stream banks during and after the construction phase. Finally, the company may need to indicate what measures it will take to preserve the stands of bush by, for instance, incorporating them into the design of the golf course.

1.4 What 'sustainable management' is not

The RMA does not intend to prevent progress, innovation, economic growth, or increases in the standard of living. Neither is it a mechanism for balancing the economic or social benefits of a particular proposal against its adverse environmental effects, or for making decisions about the merits of one use of land over those of a potential competitor.

This does not mean that the RMA has been developed without any regard for the economic, social or cultural welfare of New Zealanders; quite the opposite in fact. The RMA requires a focus on the environmental effects of activities. The underlying assumption is that any use, development or subdivision should proceed if there are no adverse environmental effects, or if those effects can be avoided, remedied or mitigated. The RMA does not provide councils or other decision-makers with the ability to direct investment through regulatory controls.

Example

A company wishes to establish a furniture-making factory in a small New Zealand town. The proposal will create 100 jobs, use locally sourced exotic timber and be of great economic and social benefit to the local community, which suffers from relatively high unemployment. It is not necessary for the company to show how the jobs created will outweigh any negative impact on a competing furniture manufacturer in a nearby town. Neither does the company need to demonstrate how the benefits of the proposal outweigh any adverse environmental effects, such as the effects of noise on neighbouring residential properties or the effects of the discharge of dirty water from the factory into a nearby stream. While the social and economic benefits of the proposal will be considered and are important, the RMA requires the company to demonstrate how it will tackle those adverse environmental effects and take measures to prevent or minimise their impact.

The RMA provides an environmentally conscious framework within which people can make their own decisions. It focuses on the effects of activities rather than activities themselves, and demands that all methods developed under the RMA must be justified in terms of the environmental effects they seek to address.

1.5 Principles of the Resource Management Act

To help decision-makers and others in achieving the purpose of the RMA - sustainable management - a number of explicit principles are set out in the Act. The principles are set out in three sections of varying importance:

  • matters of national importance
  • other matters
  • Treaty of Waitangi.

These principles must be given appropriate consideration in the day-to-day implementation of the RMA. The full list of principles is given in Appendix 1.

1.5.1 Matters of national importance (section 6)

Matters of national importance identify parts of the environment that New Zealanders hold in particularly high regard that must be recognised and provided for, including:

  • the natural character of the coastal environment, wetlands, lakes and rivers, and public access to those resources
  • outstanding natural features and landscapes
  • significant indigenous vegetation and habitats
  • the relationship of Māori and their culture and traditions with their ancestral lands, water, sites, wāhi tapu, and other taonga
  • historic heritage
  • recognised customary activities.

Historic heritage means those natural and physical resources that contribute to an understanding and appreciation of New Zealand's history and cultures, deriving from archaeological, architectural, cultural, historic, scientific and technological qualities. It includes historic sites, structures, places, and areas; archaeological sites; sites of significance to Māori, including wāhi tapu; and surroundings associated with the natural and physical resources.

1.5.2 Other matters (section 7)

The RMA specifies a number of other matters that decision-makers must have particular regard to (see Appendix 1). These include:

  • kaitiakitanga: the exercise of guardianship by the tāngata whenua of an area in accordance with tikanga Māori in relation to natural and physical resources
  • the ethic of stewardship
  • the efficient use and development of natural and physical resources
  • the efficiency of the end use of electricity
  • the maintenance and enhancement of amenity values
  • the intrinsic values of ecosystems
  • the maintenance and enhancement of the quality of the environment
  • any finite characteristics and natural and physical resources
  • the protection of the habitat of trout and salmon
  • the effects of climate change
  • the benefits to be derived from the use and development of renewable energy.

1.5.3 Treaty of Waitangi (section 8)

The RMA requires that those making decisions under the RMA must take into account the principles of the Treaty of Waitangi. The Treaty is one of New Zealand's founding documents and establishes the relationship between the Crown and Māori as tāngata whenua. Other recent New Zealand legislation requires that consideration be given to the principles of the Treaty.

The principles of the Treaty of Waitangi are an interpretation of the Treaty's text. Their definition, while continuing to evolve, has been assisted by their consideration by the Court of Appeal and the Waitangi Tribunal. In the broadest sense the principles of the Treaty, to date, have been interpreted as including:

  • the right of government to govern and make laws (kawanatanga)
  • the right of iwi and hapū to self-management and control of their resources in accordance with their tribal preferences (rangatiratanga)
  • the principle of partnership and a duty to act in good faith (partnership)
  • the duty on the Crown to actively protect Māori in the use of their resources and taonga (including the provision of redress for past injustices).

The requirement to take into account the principles of the Treaty of Waitangi means that those with statutory functions under the RMA should be informed of, and actively consider, the concerns and needs of tāngata whenua.

Further reading on the principles of the Treaty of Waitangi

Further reading: Taking into Account the Principles of the Treaty of Waitangi: Ideas for the Implementation of Section 8 Resource Management RMA 1991 published by the Ministry for the Environment in 1993, discusses the principles of the Treaty of Waitangi and their application to resource management. Kaitiakitanga and Local Government: Tāngata Whenua Participation on Environmental Management, Office of the Parliamentary Commissioner for the Environment (PCE), 1998, gives an overview of improvements and ongoing difficulties in tāngata whenua participation in RMA processes since an earlier investigation by the PCE in 1992. Māori Council Engagement Under the Resource Management Act 1991,Te Puni Kokiri, 2006, provides a more complete view of the ways councils and Māori are working together under the RMA. For more information visit the Treaty of Waitangi website.

1.5.4 General obligations, duties and restrictions

An important principle underlies the way the RMA defines and allocates the obligations of all New Zealanders: That those whose activities have the potential to adversely affect the environment in some way should bear the costs of avoiding, remedying or mitigating the consequences of their actions. In practice, this principle is reflected in the following ways in the RMA:

  • In almost all circumstances, the RMA binds the Crown. This differs from previous legislation, which allowed the Crown leeway on some environmental matters that private or public interests did not have.
  • A landowner can use land for any purpose unless the RMA, or a plan produced under it, limits use on the basis of the environmental effects an activity would cause.
  • Activities in the beds of lakes, rivers and the coastal marine area, the subdivision of land, the taking or use of water, and discharges into the environment are not allowed, unless expressly provided for in a plan or resource consent.
  • Existing uses of land, some existing permissions or authorisations established before the enactment of the RMA, and many discharges to air and land enjoy continued protection.
  • Every New Zealander has a general obligation to avoid, remedy or mitigate adverse effects on the environment.
  • Resource users and developers are responsible for avoiding, remedying or mitigating the environmental effects of their activities. This principle is central to the resource consent process.
  • Anyone exercising functions, duties and powers under the RMA is required to avoid unreasonable delay.The RMA actually specifies time periods for processing applications for resource consent, lodging submissions and other processes.

1.5.5 Tāngata whenua involvement in the RMA

Tikanga Māori encompasses a complex system of customs and values to conserve, manage and protect natural and physical resources. In the Māori worldview, all natural and physical elements of the world are related through whakapapa (genealogy) and each is controlled and safeguarded by spiritual beings. All living things have mauri. The protection and maintenance of mauri is essential. Māori concepts and practices such as tapu, rāhui, mana, kawa, kaitiakitanga and mauri can be used to achieve sustainability of resources. Māori environmental management is holistic and incorporates the needs and values of people while recognising the interrelatedness of the natural and physical world.

The RMA provides for tāngata whenua involvement in the management of resources in a number of ways. Decision-makers must:

  • recognise and provide for the relationship of Māori and their culture and traditions with their ancestral lands, water, sites, wāhi tapu and other taonga (section 6(e))
  • recognise and provide for the protection of historic heritage from inappropriate subdivision, use and development (section 6(f))
  • recognise and provide for the protection of recognised customary activities (section 6(g))
  • have particular regard to kaitiakitanga (section 7(a))
  • take into account the principles of the Treaty of Waitangi (section 8 - see section 1.5.3 of this guide).
Recognised customary activities

These are activities carried out in accordance with customary rights orders. Customary rights orders recognise the customary use, a particular activity, or practice that has been carried out in an area of the public foreshore and seabed since 1840. Customary rights orders are made by the Māori Land Court or the High Court.

For more information visit: Foreshore and seabed

Additionally, tāngata whenua, through iwi authorities, must be consulted during the development of plans and policy statements (see Section 2.2 of this guide). Councils must take into account iwi/hapū management plans, where these have been developed and lodged with the council, when developing policy statements and regional and district plans. To ensure they meet their obligations under the RMA, councils have a responsibility to actively consider the resource management needs and concerns of tāngata whenua when making decisions.

Kaitiakitanga

Kaitiakitanga is central to Māori resource management, and carries an obligation to protect the mauri of a resource. The word 'kaitiaki' is derived from the verb 'tiaki', which means to guard, conserve, nurture, foster or protect. In a simple sense, 'kaitiaki' can be translated as guardian and 'kaitiakitanga' as the act of guardianship.

Mauri

Mauri is the life essence or force that binds the physical and spiritual elements of all life. Everything has mauri, including land, lakes, rivers, air and people. However, it is the actions of people that maintain, enhance or destroy the mauri of a resource.

1.5.6 Community involvement in decision-making

Underlying the RMA are two key principles about the community's involvement in decision-making. These reflect New Zealand's obligations as a signatory to Agenda 21 in 1992, which states that to improve planning and management systems they should be delegated to the lowest level of public authority consistent with effective action.The principles are:

  • That decisions on environmental matters are most appropriately made by the communities directly affected by those decisions. As detailed later in this section, councils have a key role in implementing the RMA, in close consultation with their communities. Councils are charged with describing and identifying the local environment, according values to the environment, assessing proposals to use resources against those values and monitoring the effects of their plans and decisions.
  • That community participation is vital to effective resource management. The RMA establishes various mechanisms that enable individuals to influence the decisions of those with statutory functions. Councils rely on local communities to help them identify aspects of the local environment to be valued and protected, and to assess the effects of individual proposals.

1.5.7 Alternatives to regulation

Decision-makers are required to actively consider alternatives to regulation in preparing policy statements and plans. Many people are familiar with the regulatory side of the RMA (eg, the development of rules in plans and the resource consent process), but it is less commonly realised that local authorities pursue a wide range of objectives without using regulatory tools. In doing so, the RMA and its administrators recognise it is not fair for resource users and landowners to bear the entire cost of actions that will benefit the wider community and environment. Often, non-regulatory approaches are funded from general rates, sponsorship or some other contribution from the community.

Examples

Councils may contemplate developing plan rules to preserve stands of indigenous vegetation, wetlands or historic buildings. The rules may require people to apply for resource consent to clear areas of native forest or modify or demolish historic buildings. However, many councils and environmental trusts also provide grant assistance to landowners to fence and covenant forest or supply paint and materials for renovating historic homes and shops. Regional councils and the Landcare Trust provide advice and assistance on sustainable forms of land management in erosion-prone hill country areas. Such programmes can be acceptable, positive and practical alternatives to regulation under the RMA.

The regional policy statements that are produced by regional councils should broadly indicate any non-regulatory approaches they intend to take. Regional and district plans produced by councils may also include any non-regulatory approaches they intend to take, or these can be identified in other council documents. Long term council community plans and the annual plans produced by councils in accordance with the requirements of the Local Government Act 2002, may indicate the priorities and levels of funding that will be made available during forthcoming years to support the non-regulatory initiatives.

Opportunities to influence the contents of plans produced under both Acts are explored in some detail in Section 4 of this guide.

1.6 Other environmental legislation

Despite the RMA's all-embracing intentions, it is not New Zealand's only environmental legislation. Other legislation also relates to climate change, energy efficiency, land, minerals and other resources, as well as land administered by the Department of Conservation including national parks and reserves.

1.6.1 Land

A large body of both common and statutory laws affects land, for example the Property Law Act 1952 and Te Ture Whenua Māori Act/Māori Land Act 1993.

1.6.2 Land administered by the Department of Conservation

The Department of Conservation was formed in 1987 when the Conservation Act 1987 was passed. The Conservation Act sets out the roles and responsibilities of the Department including the management of land held under the Conservation Act. The Department of Conservation also manages national parks under the National Parks Act 1980 and other land under the Reserves Act 1977.Waterways within national parks and reserves are managed under the RMA.

If you wish to use land administered by the Department of Conservation for commercial purposes you need to obtain permission from the Department. This permission is called a concession.

For more information visit the Department of Conservation's website.

1.6.3 Wildlife

If you disturb or threaten wildlife, you may be subject to the provisions of the Wildlife Act 1953 or the Marine Mammals Protection Act 1977, which the Department of Conservation is also responsible for administering along with the Marine Reserves Act 1971. Indigenous biodiversity is managed under the RMA.

For more information visit the Department of Conservation's website.

1.6.4 Mining

If you want to mine for coal or other minerals the Crown Minerals Act 1991 will apply. The Crown Minerals Act provides the means by which the Crown allocates rights to the exploitation of mineral resources such as gold, gas and coal. The environmental effects of mining and resource exploration are dealt with under the RMA.

1.6.5 Local government

You may want to influence the way councils allocate resources for environmental projects. Under the Local Government Act 2002, many councils pursue a wide variety of environmental initiatives. They may, for instance, establish recycling initiatives, develop work programmes for improving the appearance of town centres, and establish grant programmes for protecting stands of native bush or wetlands. Opportunities to influence such programmes are provided by the annual planning exercises that all councils must undergo, along with the process required to establish long term council community plans. These plans set out what type of community people would like to live in and the things they would like to see happen in their community.

The Local Government Act also provides councils with an ability to enact bylaws. Councils can enact bylaws about things such as public health, the use of roads, drainage and sanitation. Councils also usually administer anti-litter bylaws. Under the RMA, district and city councils are also major service providers. They maintain local roading networks, provide rubbish removal and disposal services, and provide and manage libraries, parks, sports fields, and water and wastewater services. Regional councils are responsible for transport planning and providing public passenger transport.

If you seek to establish a bar or nightclub you will need to obtain a licence to sell liquor from the local district or city council, which has responsibilities under the Sale of Liquor Act 1989.

Proposals to use public reserves may require permission from the local council. The Reserves Act 1977 provides them with a statutory basis for managing local parks, reserves and sports grounds.

The Ministry of Health and city and district councils maintain an interest in public environmental health issues through the Health Act 1956.

1.6.6 Buildings

If you want to construct a building or other structure you will be subject to the provisions of the Building Act 2004. This Act oversees the standard and safety of buildings and their construction. District and city councils administer the Building Act and require all work to comply with relevant building codes. The Health and Safety in Employment Act 1992 governs safety in the workplace (including building sites) and is administered by the Department of Labour's Occupational Safety and Health Service.

1.6.7 Fisheries

Taking fish for commercial purposes requires an application to the Ministry of Fisheries under the Fisheries Act 1996. The Māori Fisheries Act 1989 and the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 settle claims relating to Māori commercial fishing rights and provide for customary fishing rights and Māori participation in managing and conserving New Zealand's fisheries.

1.6.8 Timber

Proposals to mill indigenous timber on private land may, in addition to possibly requiring resource consents from councils under the RMA, require the approval of the Ministry of Agriculture and Forestry under the provisions of the Forests Act 1949.

1.6.9 Climate change

The Climate Change Response Act 2002 puts in place a legal framework to allow New Zealand to ratify the Kyoto Protocol and to meet its obligations under the United Nations Framework Convention on Climate Change.

1.6.10 Other statutes

The Ozone Layer Protection Act 1996 helps New Zealand meet its international commitments to reducing the use of ozone-depleting substances. The Antarctica (Environmental Protection) Act 1994 looks after New Zealand's Ross Dependency, while the New Zealand Nuclear Free Zone, Disarmament and Arms Control Act 1987 restricts the movement of nuclear weapons in the country.

The Energy Efficiency and Conservation Act 2000 is the legislative basis in New Zealand for promoting energy efficiency, energy conservation and renewable energy. The Act established the Energy Efficiency and Conservation Authority (EECA).

Many iwi have Treaty of Waitangi claims settlement Acts which include specific input into conservation and resource management.

The Hazardous Substances and New Organisms Act 1996 details how to assess the effects associated with the importation, manufacture and release of such materials. The Biosecurity Act 1993 controls the spread of pests and weeds that have already gained a foothold in New Zealand.

The Historic Places Act 1993 aims to promote the identification, protection, preservation and conservation of the historical and cultural heritage of New Zealand. The New Zealand Historic Places Trust is the agency who seeks to protect, preserve and conserve New Zealand's historical and cultural heritage.