Resource Management (Natural and Built Environment and Spatial Planning Repeal and Interim Fast_track Consenting) Bill

2.1. Are there any publicly available inquiry, review or evaluation reports that have informed, or are relevant to, the policy to be given effect by this Bill?

YES

Reports used to inform the development of the NBA are relevant to the transitions and savings provisions and to the retention of NBA fast-track provisions.  These are listed in Appendix 1.

2.2. Does this Bill seek to give effect to New Zealand action in relation to an international treaty?

NO

2.3. Were any regulatory impact statements provided to inform the policy decisions that led to this Bill?

NO

Cabinet suspended the requirement for Regulatory Impact Statements for decisions relating to 100-day plan proposals (taken within the 100-day period) that solely involve the repeal of legislation [CAB-23-MIN-0468].

The extension of the deadline for councils to notify freshwater planning instruments is not covered by the 100-day exemption and, due to time constraints, a RIS was not developed.  Instead, the Treasury and Ministry for the Environment have agreed that decisions to change the deadline will be subject to post-implementation assessment in line with other 100-day Plan initiatives, and when Cabinet makes further decisions relating to commitments to replace the National Policy Statement for Freshwater Management 2020 (NPS-FM).

2.4. Has further impact analysis become available for any aspects of the policy to be given effect by this Bill?

NO

2.5. For the policy to be given effect by this Bill, is there analysis available on:

(a)   the size of the potential costs and benefits?

NO

(b)   the potential for any group of persons to suffer a substantial unavoidable loss of income or wealth?

NO

The Bill was prepared under urgency. Analysis of the costs and benefits or potential loss of income or wealth attributable to the policy has not been considered.

2.6. For the policy to be given effect by this Bill, are the potential costs or benefits likely to be impacted by:

(a)   the level of effective compliance or non-compliance with applicable obligations or standards?

NO

(b)   the nature and level of regulator effort put into encouraging or securing compliance?

NO

This Bill does not introduce any new legislative provisions as it reverts to previous law and transitions/saves some existing provisions. The RMA has remained in force alongside the NBA and SPA and, with some small exceptions like the new fast-track provisions, has continued to be the relevant resource management law. The Bill represents no change for most users.  It does not create new obligations or standards, or substantively impact existing obligations or standards. Given the timeframe for the repeal, a cost-benefit analysis was not undertaken.

3.1. What steps have been taken to determine whether the policy to be given effect by this Bill is consistent with New Zealand’s international obligations?

This Bill does not introduce any new legislative provisions as it reverts to previous law and transitions/saves some existing provisions. There are no changes to impact on New Zealand’s international obligations.

3.2. What steps have been taken to determine whether the policy to be given effect by this Bill is consistent with the principles of the Treaty of Waitangi?

Due to limited time, high-level Treaty impact assessments were provided to Cabinet on the NBA and SPA repeal [CAB-23-MIN-0473] and the extension of notification date for freshwater planning instruments [CAB-23-SUB-0468]. The assessments identified that this Bill has implications under the Treaty of Waitangi due to the complex interactions between Treaty settlements and the resource management system, including in relation to water, and the greater role in planning and decision-making that iwi/hapu would have had under the NBA, which is now being repealed. They also noted Waitangi Tribunal findings in relation to the RMA in terms of recognition and protection of Māori interests.  

Given the timeframes for the repeal, only limited engagement with Post-Settlement Governance Entities and other Māori groups has been able to occur.

3.3. Has advice been provided to the Attorney-General on whether any provisions of this Bill appear to limit any of the rights and freedoms affirmed in the New Zealand Bill of Rights Act 1990?

YES

Advice provided to the Attorney-General by the Ministry of Justice, or a section 7 report of the Attorney-General, is generally expected to be available on the Ministry of Justice's website upon introduction of a Bill. Such advice, or reports, will be accessible on the Ministry's website at http://www.justice.govt.nz/justice-sector-policy/constitutional-issues-and-human-rights/bill-of-rights-compliance-reports/advice/

3.4. Does this Bill create, amend, or remove:

(a)   offences or penalties (including infringement offences or penalties and civil pecuniary penalty regimes)?

YES

(b)   the jurisdiction of a court or tribunal (including rights to judicial review or rights of appeal)?

YES

In repealing the NBA, offences and penalties provisions revert to those in the RMA section 338 and 339. Two offences created by the NBA will cease to exist, these being: contravention of any condition of a resource consent (NBA s701(1)(c), and contravention of s669 which imposes a duty to comply with an enforceable undertaking (NBA s701(1)(f)).

The Bill also has the effect of removing civil pecuniary penalties (NBA s717).  These provisions had not come into force.

The Legislation Act applies general savings provisions that allow the continuation of compliance and enforcement proceedings under way, and the investigation and taking of action for offences committed during the period the NBA was in effect.

The Bill (Schedule 1) specifies some transitional and savings provisions to provide certainty to regulated communities about how some process matters in the NBA are applied up to and following repeal.

By returning to the RMA, maximum penalties for offences return to 2 years imprisonment.  The effect is to reestablish the availability of jury trials under the jurisdiction of the District Court.

3.4.1. Was the Ministry of Justice consulted about these provisions?

NO

The Bill re-establishes the RMA as the primary legislation for resource management, with some transitional and savings provisions. Apart from the removal of two offences created by the NBA, there are no substantial policy changes.

3.5. Does this Bill create, amend or remove any provisions relating to the collection, storage, access to, correction of, use or disclosure of personal information?

NO

3.6. Has there been any external consultation on the policy to be given effect by this Bill, or on a draft of this Bill?

NO

Due to the associated timeframes for the Bill, only limited engagement has occurred with local authorities, Post-Settlement Governance Entities and other Māori groups.

3.7. Have the policy details to be given effect by this Bill been otherwise tested or assessed in any way to ensure the Bill’s provisions are workable and complete?

NO

4.1. Does this Bill contain any provisions that could result in the compulsory acquisition of private property?

NO

4.2. Does this Bill create or amend a power to impose a fee, levy or charge in the nature of a tax?

NO

4.3. Does this Bill affect rights, freedoms, or impose obligations, retrospectively?

NO

4.4. Does this Bill:

(a)   create or amend a strict or absolute liability offence?

NO

(b)   reverse or modify the usual burden of proof for an offence or a civil pecuniary penalty proceeding?

NO

4.5. Does this Bill create or amend a civil or criminal immunity for any person?

YES

Schedule 1 contains a no compensation clause (Clause 19). It states that a “person is not entitled to any compensation or other payment or benefit for any of the following that arises from the enactment or operation of this Act: (a) any adverse effect on their rights or interests: (b) any loss or transfer of their functions, duties, powers, office, or employment: (c) any other loss or damage suffered or likely to be suffered by the person.”

Adverse outcomes that would give rise to compensation claims are not expected from this Bill. The clause is included to preclude claims for compensation in the event that the repeal Bill creates unanticipated situations.

4.6. Does this Bill create or amend a decision-making power to make a determination about a person’s rights, obligations, or interests protected or recognised by law, and that could have a significant impact on those rights, obligations, or interests?

NO

4.7. Does this Bill create or amend a power to make delegated legislation that could amend an Act, define the meaning of a term in an Act, or grant an exemption from an Act or delegated legislation?

NO

4.8. Does this Bill create or amend any other powers to make delegated legislation?

YES

The NBA SPA Repeal Bill includes the following relevant clauses:

·         Clause 7 of Schedule 1 gives the Governor-General power to make regulations by Order in Council to provide a process for giving effect to Mana Whakahono ā Rohe and joint management agreements, if necessary, as part of the transition.

·         Clause 8 of Schedule 1 modifies the regulatory powers associated with the fast-track process, to align with equivalent RMA regulation making powers.

·         Clause 18 of Schedule 1 gives the Governor-General power to make regulations by Order in Council to facilitate the orderly transition from the NBA to the RMA. The power is limited to transitional and savings provisions and regulations made under this power will be secondary legislation.

These powers are needed given the speed of repeal and the need to adapt to situations as and if they arise.

Schedule 2 includes various amendments, some of which restore regulatory powers to those that existed prior to the NBA being enacted.

4.9. Does this Bill contain any provisions (other than those noted above) that are unusual or call for special comment?

NO