New Zealand Law Society - Concern about freshwater management proposals

Concern about freshwater management proposals

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The New Zealand Law Society is concerned about the intended process for amending the National Policy Statement for Freshwater Policy (NPS-FM), it says in a submission to the Ministry for the Environment.

Before 2005, the Environment Minister was required to appoint a Board of Inquiry to inquire into, and report on, any proposed national policy statement, the Law Society said in its submission on a discussion document on proposed amendments to the National Policy Statement for Freshwater Management.

A proposal to replace the Board of Inquiry with an entirely new process was proposed in the Resource Management Amendment Bill 2005. That was not, however, supported by the select committee that considered the bill.

“Section 46A of the Resource Management Act (RMA) now allows the minister to choose between the Board of Inquiry process and an alternative process where there is no hearing of submissions and the board is replaced by a single person.

“Four national policy statements have been put in place since 2005: the NPS on Electricity Transmission in 2008, the NPS for Renewable Electricity Generation in 2011, the New Zealand Coastal Policy Statement in 2010, and the NPS for Freshwater Management in 2011. All four were developed using the traditional Board of Inquiry process, rather than the alternative process. The alternative process therefore has not been used to date and remains untested.

 “The Law Society questions the decision to follow the alternative process in this instance … the minister has not made clear the reasons for adopting the alternative process and the Law Society questions its use in light of the significant amendments signalled in the discussion document. The nature of the proposed amendments and the matters in s46A(2) of the RMA indicate that the alternative process for amending the NPS-FM is not appropriate.”

The Law Society notes that a Board of Inquiry was formed in 2010 for the implementation of the NPS for Freshwater Management (NPS-FM) and queries why there is a different process to be adopted for subsequent amendments to the same document.

“The use of the alternative process for these amendments to the NPS-FM creates an unfortunate precedent for the further suite of freshwater management reforms [that] will follow,” the submission says.

The Law Society also questions the appropriateness of using an NPS for the proposed amendments (some of which go beyond objectives or policies, and are intended essentially to operate as rules or regulatory “bottom lines”) and suggests that they might be better suited to inclusion in a companion National Environmental Standard (NES).

A series of other Law Society concerns were also raised in the submission, available at www.lawsociety.org.nz/news-and-communications/law-reform-submissions.

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