14 March 2016
The Committee Secretariat
Local Government and Environment Select Committee
Submission in opposition to clause 105 of the Resource Legislation Amendment Bill 2015
- The Soil & Health Association of New Zealand Inc. (Soil & Health) was incorporated under the Incorporated Societies Act 1908 on 4 December 1942. Soil & Health’s objectives broadly include soil health and the promotion of organic gardening and farming. It has approximately 3000 members, chiefly composed of organic agriculturalists (incl. farming and horticulture), secondary producers, retailers, restauranteurs, and enthusiasts. Its age and membership make it both the oldest and largest representative organic organisation in New Zealand.
- Soil & Health welcomes the opportunity to comment on the Resource Legislation Amendment Bill 2015 (the Bill), which seeks to amend the Resource Management Act 1991 (RMA). This submission concerns clause 105 of the Bill, which proposes to include new ministerial regulation-making powers under section 360D into the RMA.
- Soil & Health opposes proposed section 360D on the grounds that ministerial regulations would override the power of local authorities to control land uses under the RMA, and the participatory and evidentially based decision-making process under the Act, and require the removal of provisions in RMA plans which conflicted with such regulations.
- Clause 105 of the Bill proposes to insert section 360D, which would give the Minister for the Environment (Minister) the power to issue regulations to prevent, or remove, rules in council planning documents that in his or her opinion duplicate, overlap with, or deal with the same subject matter in other legislation.
- Section 360D risks ministerial regulations that override planning decisions designed to address particular local needs and conditions. In particular, it would override participatory and evidentially based decisions under the RMA concerning the:
- objectives, policies and the rules designed to achieve integrated management of resources and land-use:
- environmental effects which are appropriate when use and development occurs; and
- adverse effects which cannot be appropriately avoided, mitigated or remedied.
Genetically Modified Organisms
- Soil & Health is particularly concerned that proposed section 360D would likely be employed by the Minister to overrule RMA planning documents which seek to regulate genetically modified organisms (GMOs) on the basis that they duplicate central government regulation of GMOs under the Hazardous Substances and New Organisms Act 1996 (HSNO).
- Such an approach would be contrary to Principal Environment Court Judge Newhook’s decision in Federated Farmers of New Zealand Ltd v Northland Regional Council  NZRMA 217.
- Judge Newhook’s decision makes it clear that HSNO is limited to making decisions about the import and release of new organisms (including GMOs) into New Zealand. The RMA, on the other hand, is concerned with planning for the integrated management of resources and land-use in light of unique regional/district needs and conditions.
- Accordingly, Judge Newhook states at paragraphs  to  of his decision that:
 … I find that there is nothing present in these pieces of legislation to prevent the establishment of objectives, policies and methods to achieve integrated management of natural and physical resources in the broad terms directed by the RMA.
 I consider that there is a readily identifiable policy reason for that in these pieces of legislation, read together. Once having been approved for import and release into New Zealand under HSNO, regional authorities can provide for use and protection of them together with other resources in a fully integrated fashion, taking account of regional needs for spatial management that might differ around the country for many reasons, not the least of which might include climatic conditions, temperatures, soils, and other factors that might drive differing rates of growth of new organisms and/or of other organisms, as just a few of perhaps many examples. I agree with the opposition parties that the RMA and HSNO offer significantly different functional approaches to the regulation of GMOs.
- Soil & Health acknowledge that Judge Newhook’s decision was appealed by Federated Farmers. The appeal was heard in early February of this year, and it is anticipated that a decision will be available for the Select Committee at the time public submissions on the Bill are to be heard.
- Soil & Health does not consider Federated Farmers was able to raise any points of law in support of its appeal, and fully expects that the High Court will uphold the Environment Court’s decision and dismiss the appeal.
- The Soil & Health Association strongly opposes the proposed insertion of section 360D into the RMA on the grounds that it will enable the Minister to override regional and district plans that have been implemented in order to achieve integrated management of local resources and land uses.
- It is clear that the Minister could use section 360D to pursue the incumbent National Government’s policy of limiting GMO decision making to central government bodies (i.e. the Environmental Protection Agency).
- However, the use of ministerial a regulatory power to override RMA plans concerning the use of GMOs would be highly inappropriate in light of the Environment Court’s ruling that the RMA is the only statutory instrument through which GMO use can be managed so as to address the unique needs and conditions to different regions and districts.
Name: Marion Thomson
Position: Co Chair
The Soil & Health Association
PO Box 340002
Phone: 06 8775534