By: Lucy de Latour, Alyssa Langford
Section 7 of the NBA introduces the concept of “environmental limits” in relation to the natural environment.  These may be formulated as either:
  • the minimum biophysical state of the natural environment (or a specified part of that environment).  For example, the maximum amount of ammonia in a water body, or minimum amount of dissolved oxygen in a water body; or
  • the maximum amount of harm or stress that may be permitted on the natural environment (or specified part of that environment).  For example, the maximum amount of water that can be taken from a water body.
The purpose of the limits is to protect the ecological integrity of the natural environment and/or human health and, in setting these limits, the Minister (or the planning committee in the case of plans) must apply the precautionary approach.

Limits must be prescribed for air: biodiversity, habitats, and ecosystems; coastal waters; estuaries; freshwater and soil.  They may also be prescribed for other matters, provided the limit’s purpose is to protect the ecological integrity of the natural environment and/or human health.  Limits are to be set out in the national planning framework (NPF) or, if the NPF provides for it, in plans.
It is acknowledged in the Parliamentary Paper that accompanies the NBA exposure draft[1] that some limits will not be easy to quantify or will be drawing on imperfect data.  Because of this, and the requirement to apply the precautionary approach, the NBA provides for limits to be qualitative (descriptive) as well as quantitative (set using numbers). These may be set at different levels for different circumstances and locations.

All persons (including people, companies and the Crown) using, protecting, or enhancing the environment must comply with environmental limits.

Comment

Other than a few select documents (e.g. National Policy Statement for Freshwater Management (NPSFM)), the current national direction under the RMA does not generally set limits or bottom lines.  Largely, any decisions in relation to limits/bottom lines have been left to regional or territorial authorities to set through their plans, at a level they consider appropriate, based on the unique circumstances of an area. 

The NBA will result in a significant departure from this status quo, by requiring a raft of limits be prescribed, either in the NPF, or in plans.  For a limit to be set in a plan rather than the NPF, the NPF must specify that this is to happen and must prescribe how the region’s planning committee determines the limit. 

This will, in many respects, take planning decisions (such as what is appropriate in a particular area) away from local government and the community, and put those decisions in the hands of central government. 

Schedule 1 of the NBA is to set out the process for the preparation and maintenance of the NPF, however it has not yet been drafted.  The Parliamentary Paper states that the process is intended to, among other things, provide for effective and proportionate public consultation, allowing reasonable time and opportunity for input.  It will also provide opportunities for early engagement with decision-makers, including local government, on spatial strategies and NBA plans – this could include requirements for consultation on policy intent and draft content in the NPF.  If this consultation is truly effective, it should go some way to counteract the shift of decision-making power from local to central government.

Submissions

If you feel strongly about any of the above, we encourage you to make a submission.  Submissions are due by 4 August 2021 and can be made here: https://www.parliament.nz/en/pb/sc/make-a-submission/document/53SCEN_SCF_INQ_111944/inquiry-on-the-natural-and-built-environments-bill-parliamentary#RelatedAnchor
 
[1]              The Parliamentary Paper sets out explanatory material relevant to the NBA exposure draft, including the policy intent behind the NBA content/drafting.
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