Fast Track RMA Covid Bill is being rushed through Parliament

The RMA Covid Bill which will take away the community input from up to 1800 projects is being rushed through parliament.  Submissions close on Sunday Night 11.59pm 21 June.

The fast track COVID-19 Recovery (Fast-track Consenting) Bill is being put through a very short Select Committee process. Rather than allowing a month for submissions and a several month Select Committee process, the Government has only given the Environment Select Committee 8 days to receive submissions, hear submissions and report back to Parliament.

The Government’s aim is to pass the Bill by the end of June and the Act is proposed to remain in force for 2 years but there is no justification for this period.

ECO considers the Government has not justified the introduction of this Bill. It removes public input, overturns their principles of public engagement they developed for the RMA Review and the Resource Management Amendment Bill. Only ACT voted against the introduction of the Bill. National supported the Bill to the Select Committee process as did the Greens.

The Bill deprives the public of input but allows input from a limited list of organisations who will be given a very short period (10 days) on a proposal. For example only four environmental NGOs are proposed to be consulted on projects (Schedule 6, clause 17(6)):

(n) Environmental Defence Society Incorporated; and
(o) Generation Zero Incorporated; and
(p) Greenpeace of New Zealand Incorporated; and
(u) Royal Forest & Bird Protection Society of New Zealand Incorporated.

ECO can see no reason why the list in clause 17(6) is not replaced by a general provision that any person or organisation can make a submission.  Limiting the groups will only lead to further poor decision making as key information is bound to be missed as it is likely to be in the hands of local people or varied experts.  There is no requirement to consult scientific expert bodies.

The Bill is complicated legislation as it runs to 83 pages and 136 clauses and lessens environmental protections and enables fast tracking of projects with hugely damaging impacts.

The purpose of the Bill (section 4) is very employment focused:
“The purpose of this Act is to urgently promote employment growth to support New Zealand’s recovery from the economic and social impacts of COVID-19 15 and to support the certainty of ongoing investment across New Zealand, while continuing to promote the sustainable management of natural and physical resources.”

Surprisingly the employment focus is lost in the decision-making clauses in the Bill. The problem for the Government is that infrastructure projects provide few jobs per dollar invested compared to many other projects or activities many that do not require RMA Consents.

The Minister for the Environment (combined with the Minister of Conservation for coastal projects) is the gatekeeper under the Bill deciding which projects get the green light and are referred to the fast track panel for approval on any designation and consent conditions. The flawed Environmental Protection Agency assists the panel. Members of the panel are appointed at the discretion of the Minister further politicising the decision making process.

The Bill lacks major transparency provisions. There is no requirement for the Minister for the Environment to publish any proposed project application for fast-tracking. The Government has refused to release the list of projects that have been applied to become “shovel-ready” projects.

The Bill is weak on climate change. It allows considerations of the impact of climate change on the project but not the impacts of the project on climate change.

The decision making provisions do not include consideration of the precautionary principle which should be standard in this legislation.

The information and environmental assessment requirements are less than those under the RMA. There is limited protection of threatened and endangered species and ecosystems.

The Minister for the Environment is the key gatekeeper for projects and also appoints the people to the decision making panels and also determines their term.  There is no requirement to hold a hearing.  It unclear what of this process is to be made public.

The Bill also put in place very limited ability to appeal to the High Court and prohibits a final appeal to the Supreme Court.  There is no ability to appeal decisions of the Panel to the Environment Court.

The Bill lists 11 projects (Schedule 2) which will be directly referred to fast-tracking panels.  These include an irrigation project near Kaikohe  (LP16) and further Auckland motorway expansion between Papakura and Drury (LP15).  There is no assessment of whether the projects will result in less greenhouse gas emissions and put us on a pathway to achieve greenhouse gas reduction targets.

The Government has refused to release the list of the other projects that might be considered once the Bill is passed or what criteria is being used to whittle down that list.  Over 1800 “shovel-ready” projects have been put up and amongst those suggested include mining projects, wetland drainage, and more roading projects.

The Bill includes a list of permitted activities that NZ Transport Authority and KiwiRail will be allowed to carry out (Schedule 4). It enables some mangrove removal and dredging, and some removal of vegetation from significant natural areas and significant ecological areas.

Given the highly truncated process for comments there are sure to be flaws and omissions in the Bill.

It has been sent to the Environment Select Committee with a report back by 29 June.

Written submissions can be made via the Parliament website, and must be made by 11.59pm on Sunday 21 June 2020.

Greenpeace has set up a page to assist making submissions https://www.greenpeace.org/new-zealand/story/have-your-say-on-the-covid-19-recovery-fast-track-consenting-bill/

And 350.org have produced a submission guide with more detail https://350.org.nz/covid-19-response-fast-track-consenting-bill-submission-guide/

Court of Appeal judgement on seabed mining celebrated

A resoundingly successful win in the Court of Appeal turning down offshore seabed mining is a cause for great celebration, especially by conservation organisations. The outcome of the case fully supports ECO’s often pressed argument that New Zealand decisions on activities in and on the sea must give effect  to our obligations to “protect and preserve the marine environment” under the UN Convention on the Law of the Sea (UNCLOS, or LOSC). ECO was not a party to the appeal.

The case concerned the Environmental Protection Authority’s (EPA’s) issue of a seabed mining consent to Trans Tasman Resources (TTR) in the South Taranaki Bight. This included a consent to discharge massive amounts of processed sand from a huge proposed seabed iron sands mining operation.

The case against the EPA’s consent, was taken by Greenpeace NZ, Kiwis Against Seabed mining (KASM), Forest and Bird, the Taranaki-Whanganui Conservation Board, and Ngati Ruanui Trust  and a range of fisheries interests and other organisations.

The Court roundly criticised the EPA’s Decision Making Committee (DMC) for many errors of law. Central to the case is the relationship of international law to the application of New Zealand law. In this case, the law in question is the Exclusive Economic Zone and Continental Shelf Act 1994 (EEZ&CSA). ECO pushed to have international obligations including UNCLOS recognised in that Act – and in others.

We have also pressed the Ministry of Primary Industry to take seriously our international obligations relating to fisheries, and our Ministry for the Environment to recognise our international obligations relating to the environment and to biodiversity.

Justice Goddard in the Court of Appeal laid this out emphatically in the 3 April 2020 Judgement, going to the nub of the case in her first paragraph on the Reasons for the decision:

“[1] The United Nations Convention on the Law of the Sea (LOSC)  [1994] provides that New Zealand has a duty to protect and preserve the marine environment. New Zealand has the sovereign right to exploit the natural resources of its exclusive economic zone (EEZ) pursuant to New Zealand’s environmental policies, and in accordance with that duty. The Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012 (the EEZ Act) provides for the use of the natural resources of New Zealand’s EEZ in a manner that is consistent with New Zealand’s international law obligations, including the LOSC duty to protect and preserve the marine environment.”

The Second paragraph of the decision recognised the obligation to recognise iwi Treaty of Waitangi rights:

“[2] The Treaty of Waitangi (the Treaty) requires the Crown to respect the interests of iwi in relation to the marine environment and its resources, including (as we explain below) the kaitiakitanga relationship between iwi and the marine environment. The EEZ Act provides for decisions to be made about the use of the natural resources of the EEZ in a manner that recognises and respects the Crown’s responsibility to give effect to the principles of the Treaty.”

The judgement is clear and decisive. We expect that decision makers under the Fisheries Act, the RMA, Conservation and other Acts will now have to ensure that those international obligations are given effect in marine-related decision making.

Great credit is due to those people and organisations who took and ran this case, and particularly to Rob Enright, Duncan Currie, Cindy Baxter of KASM and Forest and Bird. It is a lighthouse case that will show the way for marine law navigation.

You can download the judgement here: CA573/2018 [2020] NZCA 86 [778 KB PDF]

Cath Wallace
ECO Co-Chair

Mining Still threatens the Coromandel: How did this happen?

 

The mining industry, and their political stooges, are always shouting about ‘checks and balances’ to shut down our arguments. They claim that we are scaremongerers, making mischief, stirring – a range of derogatory, dismissive things. They are quick to point out that there are a number of ‘tests’ in the Resource Management Act (RMA) that will ensure that the environment is protected and that impacts are minimised, and that many of these will give our communities an opportunity to have a say.

There are a range of issues with this argument – the RMA has been changed beyond all recognition since its inception in 1991; public participation elements were gutted back in 2013, there is severely limited knowledge of the RMA and how it works amongst the general public, the provisions that would enable participation, more publicly available information etc varies from Council to Council – as does that Councils ability and resourcing to evaluate highly technical information… the list goes on.

All of these things add up to a huge warning – we can NOT rely on the RMA to protect the environment from mining.

Lets think now about the timeline of the exploration and now mining permit application at Wharekirauponga; lets see how many opportunities for broad (or even any, other than limited with tangata whenua) public participation and consultation there has been in this process, this process that has seen Oceana Gold invest such a significant amount of money in ‘just looking’ at Wharekirauponga – public Conservation land that’s home to several threatened species, including the worlds most threatened frog, the Archey’s frog.

To clarify, this Mining Permit Application is actually over part of two Exploration Permit areas. So where so far has the public, the potentially affected communities, the people who work in, do conservation in, tramp in, camp in, hunt in etc, had an opportunity to have any say at all? Lets take a look back…

The permit was initially granted on 22 May 2003 over 3650ha to HPD New Zealand Limited. Three years later an extension of land, followed by ‘permit dealings’ (where shares in the permit were traded amongst a couple of different companies) were all granted. Next an extension of duration, another permit for more land, another share change, two more extensions of land, another change to the shares all granted. Then finally, 2016 Oceana took over, appraisal extension of duration and change of conditions all granted and now Mining Permit application – under evaluation.

Couldn’t see any mentions of public consultation in there? That’s because, in the 16 years that this area has been being ‘explored’ for gold, there has been none (zero, nada, zip, zilch). Does that mean that there has not been any resource consents required under the RMA for this ‘little look’? No – in this case it has involved clearing multiple plots of bush in a Significant Natural Area – that is a place that is special within the district – which must require consents, it has involved proposals to relocate significant threatened species populations (which has failed in the past), it has involved requiring access to freshwater, which also must be consented.

But, we got NO say at any stage. And now, one of the big arguments that Oceana uses to pile on the pressure to let them continue, to build yet more toxic tailings, to mine and undermine public Conservation land, to question the integrity of Aotearoa New Zealand’s Government Ministers (El Salvador, anyone?!), is that they have already invested so much ‘exploring’ and that the RMA will protect the environment.

Along with the Industry at large, this company must not be allowed to get away with ‘speaking out both corners of their mouth’. Time to call them on it – they are not sustainable, they do not care for our country. They have shareholders, they want profit. Simple.

Gold mining is not our future.

Please do contact us if you would like a copy of the timeline of this permit – 16 years of the industry doing what they want without any community consultation.

Coromandel Watchdog Co-Ordinator

Democracy in the marine environment? Yeah right!

Opinion piece by Helen Campbell

The first shots have been fired in this government’ s plans to reduce costs and make processes easier for those in the aquaculture (marine) industry and to exponentially expand aquaculture activities and to ignore the current and future impacts of these activities on the marine environment. The cannon used for these shots is enshrined in the Resource Management Act 1991 – check out sections 360A-360C. [This was passed in 2011 and introduced the Minister of Aquaculture into the RMA.]

These sections, which enable the government through an Order In Council (an “Executive” decision), to amend regional coastal plans, by regulations, without public notification or the ability to appeal to the Environment Court, as has been in the past required by Schedule 1 of the Resource Management Act.

The National Environment Standard (NES) for Marine Aquaculture is the first salvo to be fired in a “priority” range of changes the government intends to make to the aquaculture processing regime. Still to come are proposals for industry growth outside of existing space, and/or creation of new space, which are likely to follow the same framework.

The NES deals, in particular, with reconsenting process and biodiversity matters. The proposal will replace existing regional coastal plans and change second generation plans currently under preparation. These changes will not follow Schedule 1 of the Act – that is, no public input will be possible. While the legislation states that proposed regulations “will continue to give effect” to the New Zealand Coastal Policy Statement as well as any regional policy statement, it is clear that aspects for the former – such as strategic planning, biodiversity, natural character, natural landscapes and features, have only been given token if any recognition. Councils currently reviewing policy documents including regional policy statements will be required by the Ministry for Primary Industries, the Minister of Aquaculture, and the Department of Conservation to comply with the political moves, again with no notification or rights to appeal.

The proposed NES overrides the (current) 2010 New Zealand Coastal Policy Statement (NZCPS) and significant recent case law that has emphasised the importance of the objectives and policies of the NZCPS; including requirement for “appropriate activities in appropriate places”.

These legislative changes constitute a significant loss in the democratic processes that are inherent in the Resource Management Act (RMA) and will undoubtedly mean that the purpose of the Act will be undermined and that natural and physical resources, including marine ecosystems, degraded for future generations.

Issues to consider include lack of adequate information or direction on:
• Relationship between the NZCPS 2010 and the NES/regulations e.g. the recent Supreme Court case (and other decisions) emphasise the need for adverse effects on Outstanding Natural Features and Landscapes (Policy 15) to be avoided. This Supreme Court case and other case law shows that the values of landscape must be assessed as if existing structures were not in the site under consideration. This directive also relates to Outstanding Natural Character (Policy 13) and Biodiversity, ecosystems and habitats etc. (Policy 11). No existing farms, until this decision, have been assessed in accordance with this.

Strategic planning: This often is not dealt with in the planning stages; and a “strategy” the occupation of space by marine farms is effectively privatisation of the “commons”. The specific impacts of marine farming whether it is shellfish or “fed” fish is not, despite the discussion documents protests, adequately know: there is a huge “knowledge gap” which has been acknowledge by various agencies including the Ministry for Primary Industries, and proven by case law.

Policy 7 (2) NZCPS requires the identification by councils of the coastal processes, resources and values that are either under threat or at significant risk from adverse cumulative effects with thresholds (zones, standards and targets) to be set in plans (or specification of acceptable limits) to assist in determining when activities causing cumulative effects are to be avoided. These effects of course need to consider all impacts on the coastal marine area: e.g. urban activities including development, fishing and dredging, forestry sedimentation, climate change etc. as well as actual aquaculture activities including those associated with feeding and harvesting.

The “connectivity” of ecosystems within the marine environment is still largely unknown. No information on the state of strategic planning throughout NZ has been assessed by the Ministries involved in this exercise. Without this crucial information no extension in the terms of the current farms should be permitted, but should continue to be assessed as discretionary activities with public/community/iwi/scientific input.

• Adaptive management – many consents are granted with condition that allows for adaptive management: in active adaptive management, managers design practices so as to discriminate between alternative models, and thus reveal the “best” management action. This sometimes involves testing practices that differ from “normal”, in order to determine how indicators will respond over a range of conditions. In passive adaptive management, managers select the “best” management option, assuming that the model on which the predictions are based is correct. Both passive and active adaptive management require careful implementation, monitoring, evaluation of results, and adjustment of objectives and practices. Active adaptive management usually allows more reliable interpretation of results, and leads to more rapid learning.

• Existing and “deemed” permits – many consents have been granted or extended by a process that involved no public consultation either through consent applications or planning processes. Many of these decisions were made on an ad hoc basis, encouraged by the years of ad hoc consideration of how to best handle the legislation that consents should be “permitted” under. This has meant that the “appropriateness” of a particular farm in a particular site may never have ever been assessed. Much has changed in the marine environment since the 1970’s and change is the one constant that can be depended on in the marine environment. No environmental limits or “carrying capacity” of the environment has been contemplated in the NES; despite the objective!

• “Inappropriate areas for aquaculture”: The NES states that the public, once the regulations are in place, will be able to participate in 2nd generation plan changes on where councils should assign areas as being “inappropriate” for marine farming….. but if the NES is in place and councils must make plan changes that comply with the regulations then all of the existing farms will already have “restricted discretionary” status which is tantamount to being able to stay in perpetuity! No public/community involvement.

• “Certainty”: The NES has been written to provide “certainty” for the aquaculture industry and its investors, but not for the general public over an area of the public domain that cannot be “owned”. The discussion document admits that public input has been useful but then proceeds to exclude just those opportunities.

• Effects on biodiversity – “token” points relate to management practices to minimise (not avoid) “marine mammal and seabird interactions – particularly entanglement, but not habitat exclusion”! The resting, feeding and breeding places of for instance seabirds are ignored, as well as areas for fishing breeding e.g. elephant fish. All “restricted discretionary activities and Categories 3 & 4 (change to fed finfish species) only require “management practices” to minimise marine mammal and seabird “interactions” – not avoidance.

• Effects on benthos – again token words relate to “reefs and biogenic habitats” and “benthic values and the seabed” with qualifiers added such as “significant”. The vulnerability of certain areas of other areas/habitats/ecosystems is ignored.

• Ability to have “more stringent or lenient activity classification”. This statement is very questionable…. and singularly unhelpful. When and how does a council make such a decision when its” rights” have been overcome by this NES and there is no Schedule 1 process to get public/scientific input? Again the assumptions are made that plans adequately identify import “values” and “characteristics”.

• Sites of “particular importance” to the industry. No indication of what criteria will be used for identification of such sites or what rights do the public have for objection? The example given, Wainui Bay, Golden Bay has been subject to many objections over many years, is in an area of ONFL, and is outside of AMAs established in Golden Bay as a consequence of a significant enquiry and Environment Court case. An appeal against a plan change to make these a “controlled” activity – that is no decline is possible, is currently underway.

Submission
Go to https://www.mpi.govt.nz/news-and-resources/consultations/proposed-national-environmental-standard-for-marine-aquaculture/ for the Discussion Document and proposed regulations. Read the proposals. Submissions are due by 5pm, Tuesday 8 August 2017.

Helen Campbell is a Friends of Nelson Haven & Tasman Bay committee member with an interest RMA coastal planning issues

ECO executive: sounds like you?

The ECO Executive has made submissions in the last few weeks on the Resource Law Amendment Bill, the Marine Protected Areas review, the Trans Pacific Partnership treaty, the Te Kuha mine proposal, the Emissions Trading Scheme Review and the Mokau mine application.

All this requires work and dedication – which your Executive is committed to.  We do however need more members on our Executive and welcome applications from suitably qualified and interested people!  Could this be you?  Please consider if you would like to step forward and offer your skills and interest to the essential work of ECO – there is no other New Zealand environmental organisation doing what ECO does.  Email the office or call us on 04 385 7545 to discuss.

Ecological transition in Hawke’s Bay

In this third article in a series reviewing the responses to a survey ECO undertook on ecological restoration and conservation work being performed by the voluntary sector in New Zealand, ECO HECUA intern Emily Donaldson looks at the work being done by the Ahuriri Estuary Restoration Group:

Transitioning from fresh water to open coast, estuaries support a diverse range of habitats and human activities, serving as an integral part of  our New Zealand cultural identity. The complexity of these ecological systems proffer many ecosystem services including food production, recreational opportunities, trade hubs, and processing contaminants from the land.

The intricacy of the ecological interrelationships and ecosystem processes demand comprehensive research and precautionary management. Current New Zealand estuarine ecosystems still harbour high biodiversity, despite many stressors, such as the location of most major cities near estuarine ecosystems.

Thankfully, environmental groups and organizations like the Ahuriri Estuary Restoration Group, Forest and Bird, and the Department of Conservation are looking after these critical and fragile ecosystems. Ahuriri Estuary Restoration Group aims to sustain the health of this estuary primarily through weed control and plantings, typically over about 40 hectares of the lower estuary. This volunteer group formed in 2003 after fire destroyed an area of 10 year old plantings in the lower Ahuriri estuary, working to plant native species (manuka, flax, kowhai, and more), clean-up rubbish, maintain signage and tracks, and remove many weeds, such as wattle and boneseed.

The Restoration Group keep track of some of its exceptional work; in taking ECO’s Environmental Group Survey, they contributed even more information on their commendable efforts. 300 to 600 plants are put in each year, typically in the winter. Although the group honed in on 40 hectares initially, they indicated that the estuary requires 200 hectares of attention. Devoting 150 person-days of work as well as 1,200 volunteer hours, the group is also taking on an advocacy role for conservation and restoration. The stewardship of this estuary and its tangible results were acknowledged in the survey: “The site has been transformed from a weedy area with few native plants to a well vegetated asset to the local area. Wildlife habitat enhanced and weeds reduced.”

To find out more about the Ahuriri Estuary Restoration Group, click on the following links:

http://www.naturespace.org.nz/groups/ahuriri-estuary-restoration-group

http://www.doc.govt.nz/get-involved/volunteer/groups/hawkes-bay/ahuriri-estuary-volunteer-group/

Read up on the specifics of New Zealand estuarine ecosystem services at:

http://www.landcareresearch.co.nz/__data/assets/pdf_file/0004/77044/1_16_Thrush.pdf