DON BRASH - RMA Reform: A step forward. But concerns for equal citizenship

The following is written in Don's capacity as trustee for Hobson's Pledge:

It is almost the end of 2025 and, as you may know, the Government has recently introduced to Parliament the two Bills it seeks to replace the Resource Management Act (RMA) with.

The Bills were pushed through first reading under urgency and have been referred to the Environment Select Committee. We will shortly be able to make submissions.

We have already looked at the Bills and sought some initial legal advice. As you can anticipate, there is a lot to take in, but I wanted to give you some initial impressions.

In short, we are raising the alarm about aspects of these new laws because they will, if passed into law in their present form, embed race-based decision-making throughout New Zealand’s planning system. The new Bills are called the Planning Bill and the Natural Environment Bill. The names make the purpose of each Bill clear, with the first Bill focused on planning, consents and so forth while the latter, the Natural Environment Bill, is focused on environmental protection.

While presented by the Government as a ‘modern planning system’ they are introducing highly prescriptive Treaty clauses, mandatory iwi consultation requirements, and permanent recognition of Treaty settlement co-governance privileges, all of which undermine the fundamental democratic principle that all New Zealanders should be equal before the law.

There are required consultations with iwi authorities, special development pathways for Māori land, and instructions to give ‘equivalent effect’ to Treaty settlements.

Here at Hobson’s Pledge we cannot support any laws which create a two-tier system where rights and influence depend on ancestry. Yes, Māori have interests in land, development, and the environment, but so does every New Zealander.

We also reject the idea that somehow your ancestry means you care more for the environment than others do. Every Kiwi loves the beauty of this land, just as every Kiwi will want a nation that is economically prosperous.

We will be preparing more resources and information for you, including a dedicated website, to assist with submissions (once open) but for your information a few of the issues we have already found include:

1. The Government has included a new Treaty clause in these Bills. At first glance, it looks more comprehensive and prescriptive than the current RMA law. The Government seems to be trying to set out in advance the Treaty obligations under the Bill, avoiding the open-ended obligations seen in legislation like the RMA and the Conservation Act about the "principles of the Treaty." But this is unlikely to work. The Courts have made it clear that the Treaty is so "constitutionally important" that it will not recognise any attempt by Parliament to limit its impact unless Parliament comes out and says, quite explicitly, this is what it's trying to do. We will be encouraging the Government to limit the scope of this clause and reduce the opportunities for Treaty activism in our Courts.

2. The new Bills also have included what we could best describe as a special carve out for Treaty settlements. The intent appears to be to preserve Treaty Settlements in largely the same form as they existed under the RMA, meaning co-governance arrangements provided for in Treaty settlements (like those in place over parts of the Waikato River) will continue to exist in the same form. This means the likes of Joint Management Agreements (if in a Treaty settlement) will continue and in practice mean that iwi will receive additional consultation rights in both the plan-making and consent functions.

3. When it comes to resource consents, Māori authorities are to be given guaranteed pathways to influence planning decisions while the general public have fewer opportunities. The Government has rightly noted they are reducing the number of situations that require a resource consent and consequently people needing to seek iwi approval. But, and this is important to understand, the new Bills require that local authorities must consult with iwi before any public notification of district and regional plans. Furthermore, the relevant local authority must have regard to any advice that comes back. The same is true if the Minister is proposing any national instruments; again, iwi must be consulted before anyone else.

As you can imagine, this is quite significant and gives tangata whenua first-mover advantage. They will have significant influence over the content of proposed plans before they are given to the wider public for submissions. The importance of this right given to iwi by the proposed laws should not be underestimated.

4. The new Bills continue to provide for sites of significance to Māori, but they are no longer a matter of national significance. We are seeking further legal advice, but it would seem that the legislation’s goal of protecting these sites sits alongside the other goals of the proposed laws, including the recognition of private property rights. It also seems that such significance will be managed nationally and could even come with the need to compensate landowners if impacted by a claim of significance.

5. There is some good news around the Mana whakahono ā rohe agreements (MWRAs). Supporters will recall that councils have used these agreements to create de facto co-governance arrangements. Egregiously, these MWRA’s once agreed cannot be altered or terminated except by the consent of the parties.

Positively, the Coalition Government is proposing that there be no new MWRA’s once Royal Assent is given to these two new Bills. However, any existing agreements will continue in force. This appears to fly in the face of the Government’s stated intent of making development easier, as such agreements are restrictive and burdensome.

While we had hoped that MWRA’s would be scrapped in their entirety - and something we have been lobbying Ministers for for months - it is a small step forward that there will be no new ones. Expect, however, a hurried rush by iwi and some councils to get said agreements in place before the law changes come into effect.

While there are good things about these new Bills - and the current RMA most certainly needs to be replaced - we do want to loudly and clearly sound the alarm that what is being proposed will leave New Zealand divided by ancestry. Every New Zealander has an interest in development and the environment. The continuation of a system that gives extra, or special rights, to one group based on their ethnicity and not others is discriminatory. We should not be dividing New Zealanders as, sadly, these new Bills provide.