RMA reforms: Allocation under the New RMA
The Natural and Built Environment Bill (NBA) heralds the end of a traditional first-in first-served approach to resource allocation, particularly in respect of freshwater.
The NBA introduces three resource allocation ‘principles’ – which are sustainability, equity, and efficiency. The National Planning Framework (NPF) can give further detail on the meaning of these principles, and they are a consideration when making directions concerning allocation in the NPF. Regional planning committees must also have regard to the resource allocation principles when making allocation rules in the Natural and Built Environment Plans (NBE Plans).
In general terms, the NPF can give direction on allocation matters, including methods for allocating natural resources such as by consensus, the standard consenting process, the affected application process, auction or tender. Of these, most are self-explanatory in meaning, although consensus is not explained (as between whom), and the “affected applications process” sounds like a reference to ‘affected persons’. The affected applications process is in fact a process which enables a comparative merits based assessment of competing applications. In these cases, the value of the investment of the existing consent holder is not a consideration for decision makers when considering applications to renew resource consents, and the priority renewal provisions will not apply.
With respect to freshwater specifically there are further provisions to be aware of:
- A Freshwater Working Group is to be established to make recommendations on freshwater allocation (including engagement between the Crown and iwi/hapū). It is to report to the Minister for the Environment by 31 October 2024 who must then present a response to the House of Representatives within 6 months.
- This process may lead to an allocation statement on issues relevant to the allocation of freshwater if agreed between the Minister and relevant iwi/hapū. This can happen at varying spatial levels, and will inform the relevant NBE Plan.
- The NPF must not use a market-based allocation method for the taking, diversion or use of freshwater.
- The NBE Plan must include 1 or more allocation methods for the taking, diversion or use of freshwater (and anything else the NPF directs).
- Provision is made for shorter term freshwater consents so as to create greater opportunity for NBE Plans to effect change. The allocation provisions are designed to assist Māori and others with underdeveloped land to access water.
- Issues regarding Māori rights and interests in freshwater remain live and are not affected. In what seems a novel statutory drafting technique, the NBA states that “any rights or interests in freshwater or geothermal resources are preserved, consistent with assurances given by the Crown to the High Court in 2012, and recorded in New Zealand Māori Council v Attorney-General  NZSC 6,  3 NZLR 31 at ”.
The Ministry for the Environment’s ‘Overview’ document released with the NBA states that shorter-term consents will be issued under the RMA for freshwater takes and discharges during transition to the NBA - these consents must expire within three years of the relevant NBE Plan being notified. These transitional provisions are presumably designed to integrate with the above allocation matters relating to freshwater.
The Overview also states that many detailed commencement, savings and transitional provisions are not included in the NBA, so those with freshwater takes will need to stay abreast of developments affecting freshwater consents and allocation.
Submissions on the NBA are open until 5 February 2023. Please get in touch if you would like to discuss the NBA or make a submission.