Resource management reform has some desperate lessons to learn, Bernard Jennings writes.
New Zealand is replacing the Resource Management Act (RMA) with two new Bills now before Parliament. After 30 years watching the RMA become exactly what it wasn’t designed to be, we risk repeating the same mistakes.
The RMA wasn’t supposed to be complex. Parliament passed it in 1991 to replace the prescriptive Town and Country Planning Act with something simpler and more enabling. Within a decade, it had become as unwieldy as the system it replaced. Resource consents became expensive and slow. District plans varied wildly. Simple projects required extensive analysis.
How did this happen? Not through conspiracy or incompetence, but through five predictable mechanisms.
First, ambiguous language invited expansive interpretation. Terms like "sustainable management" and "amenity values" were deliberately flexible. But flexibility in law creates interpretive space. When councils and courts encountered these undefined terms, they gave them meaning. Each interpretation seemed reasonable in isolation, but collectively they expanded the Act’s scope far beyond what Parliament intended.
Second, multiple decision points accumulated requirements. The RMA created layers where rules could be added: national policy statements, national standards, regional policy statements, regional plans, district plans and consent processes. At each level, decision-makers added requirements that seemed sensible individually but created cumulative complexity.
Third, professional incentives favoured comprehensive analysis. Council planners work for risk-averse institutions facing potential litigation. Their career advancement comes through "rigorous" analysis — meaning comprehensive, detailed, cautious. Consultants are paid for time and expertise; complex applications generate more revenue. These aren’t criticisms of individuals, they’re observations about systemic incentives that predictably produce complexity.
Fourth, precedent created path dependency. Once one council required certain information, these became precedents. Other councils followed suit. Professional practice converged on the more comprehensive approach with no mechanism to shift it back.
Fifth, each "clarification" added rather than simplified. Between 1991 and 2020, the RMA was amended over 30 times. Most amendments added provisions in new sections, requirements and processes. Very few removed anything.
These five mechanisms weren’t unique to the RMA. They’re structural dynamics that will operate on any similar system unless actively prevented. And the new Planning and Natural Environment Bills contain the same vulnerabilities.
The Bills have genuine improvements: clearer hierarchy of instruments, standardised plan provisions, tighter timeframes. But they also have ambiguous terms that will require interpretation, multiple decision points where requirements can accumulate and the same professional incentives that drove RMA complexity.
The Bills also introduce entirely new complexity: environmental limits frameworks requiring sophisticated technical analysis, market-based allocation mechanisms with no RMA precedent and a dual-Bill structure splitting land use from environmental management.
This pattern isn’t inevitable, but preventing it requires conscious design choices. Terms need precise definitions. Decision points need clear presumptions favouring enablement. Unnecessary requirements need active culling, not just careful addition.
Which brings us to the Treaty provisions, an area where clarity matters enormously but the Bills create significant risk.
The Crown has Treaty settlement obligations. These are specific, negotiated agreements with iwi: particular co-governance arrangements, specific resource allocations, defined consultation processes. The Crown is legally bound by these settlements, and rightly so. The Bills must ensure these settlement obligations remain intact.
But the Bills go beyond settlements. They include vague references to "Treaty responsibilities," undefined "arrangements," and requirements for "equivalent effect" without specifying equivalent to what. These terms create interpretive space similar to the RMA’s ambiguous language.
This isn’t about opposing Treaty obligations. It’s about distinguishing actual settlement commitments from an evolving set of Treaty "principles" that expand beyond what settlements contain.
Treaty settlements are negotiated agreements. Both parties knew what they were agreeing to. The obligations are specific and bounded.
But undefined Treaty responsibilities beyond settlements create different dynamics. When terms like "arrangements" appear in legislation without definition, they will be interpreted through the same mechanisms that expanded the RMA. Each interpretation seems reasonable. Collectively, they may expand obligations far beyond what settlements contain.
The risk isn’t hypothetical. We’ve seen it with the RMA’s Treaty provisions. What began as consultation requirements evolved into substantive decision-making power through case law and professional practice.
For farmers, this matters practically. When environmental limits are set, will "Treaty responsibilities" mean iwi can veto limits? When water is allocated, will "arrangements" create priority access beyond settlements? When spatial plans are developed, will "equivalent effect" require outcomes beyond settlement obligations? Nobody knows.
For all New Zealanders, this matters for certainty. Investment, development and conservation require knowing the rules. If Treaty obligations keep expanding through interpretation rather than negotiation, that certainty evaporates.
The solution: define Treaty terms clearly with reference to actual settlements. Say explicitly what "responsibilities", "arrangements" and "equivalent effect" mean. Ensure settlement obligations remain intact, but don’t create open-ended interpretive space beyond settlements.
The chance to get resource management reform right this time requires learning from the RMA’s trajectory: ambiguous language becomes expansive interpretation, multiple decision points accumulate complexity and good intentions aren’t enough without structural safeguards. This applies equally to environmental provisions and Treaty obligations — both need clarity, not interpretive space. The Bills create potential for a better system.
■ Bernard Jennings is a Wellington-based researcher who will be submitting a detailed analysis to the select committee on the Planning Bill and Natural Environment Bill.
