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Fundamental Culture Shift in New Zealand Planning Legislation.

By Anna Bensemann Senior Planner, Baseline Group | Nov 22, 2022

There is a general shift in New Zealand legislation to better honour the partnership principles between the Crown and Iwi, embodied in the Treaty of Waitangi. This is distinctly apparent in recent planning-based legislation changes under the Resource Management Act (RMA). Central Government driven National Policy Statements (NPS) for both fresh water and highly productive soils illustrate this fundamental change and arguably have directed some of the most significant changes to compliance measures for modern farming.

New fundamental concepts such as Te Mana o te Wai have been introduced to provide an overarching direction for how fresh water is managed. This concept recognises the vital importance of water and looks to protect the health and well-being of freshwater, seeking to prioritise the health of waterways before human drinking water, and before more commercial uses of water such as irrigation. This concept requires integrated management of freshwater bodies using the concept of ki uta ki tai (from the mountains to the sea).

Co-governance is another key direction promoted by Central Government to enable Tangata Whenua engagement and influence in the decision-making process. There is a real potential for a disconnect to occur where an obligation to actively involve Tangata Whenua in decision making is not supported with funding and resources to make such consultation meaningful. With the RMA largely a user pays system, it has traditionally resulted in applicants having to fund consultation with Iwi, often creating animosity between Iwi and resource consent applicants. This is seen as a significant barrier to development and creates a clear wedge in otherwise small communities.

As with any new piece of legislation, there are different ways of interpretingthese new concepts and requirements. Each Regional and District Council interprets their obligations differently, leading to inconsistent administration and often inconsistent outcomes between regions and districts. There will be some standardisation to interpretations when these concepts are tested through

Environment Court proceedings. Case law decisions tend to take ten plus years to emerge due to the slower processing timeframes for court proceedings. The formal process of litigation is also not for everyone, with deep pockets required to fund the legal system and a greater risk of being turned down.

In the meantime, Councils, Planners, Iwi and farmers alike will have to grapple with what these new concepts and rules will mean on the ground. The real opportunity is to ensure Mahi Tahi (to work together as one) occurs when it counts, to secure a healthy and prosperous environment for all parties involved, including for generations to come.

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