Shirley Ken: Resource Management and Electricity Legislation Amendment Bill — Second Reading Instruction to Committee In Committee 
Shirley Ken: Resource Management and Electricity Legislation Amendment Bill — Second Reading Instruction to Committee In Committee 
[Volume:627;Page:22285] 
Hon KEN SHIRLEY (ACT) 
: 
 The member who just resumed his seat made a very profound statement. He described the Resource Management Act and this amendment as part of a control and command philosophy. He has identified the exact problem that underpins the Resource Management Act. It is really the icon of the socialist legislative tool kit. This is the biggest instrument for control and command. It is the abuse of the Resource Management Act that has caused so many problems to our country. The ACT party is opposing this amendment. It is almost a bit of déjà vu—here we go again! We have been fiddling with it since it was enacted by the National Government way back in 1991— 
Dail Jones 
: Who? 
Hon KEN SHIRLEY 
: The National Government implemented the Resource Management Act. But all the philosophical thinking was done by the earlier Labour Government and that gives it no credit. But the point is this. It is a bit like communism—like those apologists for communism who say: “There is nothing wrong with communism it is wonderful it is just that we have not implemented it properly yet.” It is exactly the same with the Resource Management Act. Is it not time after how many years—15 years—we decided that there is something fundamentally wrong in principle? All the tinkering and amendments in the world are not going to make this little puppy work because it is fundamentally flawed. 
The socialists love it. They love it because they can keep more control and more power. It underpins the expanding bureaucracies that we see in local government and all this endless process. It is all about process—endless consultation rather than outcome for the country’s well-being. 
Having said that some aspects of the bill—some of these tinkerings—are improvements and I would like to refer to some of those. Most of them were done by the Local Government and Environment Committee not by the bill as introduced by the socialists over there. I would classify in the improvements the dropping of the provision that an appeal to the Environment Court could not be a de novo hearing. Because it became very clear that if one does that one has to front up at the local council with a lawyer at all those cases because there is not another chance. So one would actually have to further the process and the costs in a lot of routine cases. 
Someone made the point that only one in 10 cases actually goes to the Environment Court. But if one said that it could only be a de novo hearing then one could not afford to take the risk and all applicants applying for resource consent would actually have to stump up to the council with their lawyers and all the costs associated with that. 
The other point made in evidence to the select committee and made by the judiciary themselves was that often in the time before a hearing—and hearing an appeal can take 1 or 2 years perish the thought—new information and new technologies come to hand and one would of course have precluded the consideration of new technologies if that law as proposed by the Labour Government when it introduced the bill had been carried through. 
The other aspect the ACT party supports is the dropping of the legal phrases. We had this wonderful “urban form” and “rohe”. They were going to become legal terms just as in a previous amendment which the Labour Party promoted we had “cultural landscape”. Does anyone know what a cultural landscape might be? But that is what the Labour Government earlier tried to import into the Resource Management Act. 
We do support the direct referral to the Environment Court because that can facilitate the process. There are some projects—usually bigger projects—that are clearly going to go directly to the Environment Court so why carry out the charade of preliminary council hearings? It is far better for all the parties to prepare thoroughly and go straight to the Environment Court because one knows that it will be there in any event at the end of the day. ACT and National have both defended and promoted that and of course Labour tried to sort of make capital mileage out of it but totally without success. 
The real problem with this bill and why the ACT party will be voting against it is its failure to actually address the fundamental problems that the Resource Management Act has delivered to us. It was meant to be for the sustainable management of natural and physical resources. It was meant to be part of deregulation. It was meant to be a one-stop shop. It was meant to be effects-based not prescriptive rules. What has really happened is that it got captured during its gestation period and during the intervening 12 years by three interest groups: Maori greens and planners and bureaucrats. I will go through those three. 
There are definitely Maori issues that need addressing in this country but what happened was that the gestation of the Resource Management Act coincided with the renaissance in Maori claims and sovereignty and the Act has been ruthlessly used as an instrument inappropriately. It is meant to be about the sustainable management of natural and physical resources. It is a totally inappropriate tool with which to try to determine metaphysical and spiritual concepts. Yet we have imported all that language. We have even provided for taniwha in the Resource Management Act and all sorts of nebulous concepts that weigh it down. That is not to say that those matters do not need to be considered but they certainly should not be considered in the Resource Management Act. It tries to do too much and it defeats itself in doing that. 
The other aspect is that it was captured by the green movement during its gestation and development and now it lacks balance. It was meant to be for sustainable development and that language was cut out and it became “sustainable management” but it was meant to be development-focused legislation. It was meant to be part of deregulating the economy—an enabling Act. But instead it has become bogged down used as a tool and of course the Department of Conservation is the biggest user of the Resource Management Act to impose its will and strip people of their property rights. 
The third category that has captured the Act is the planners and bureaucrats. The Act was meant to be a simplification. It was not meant to be rules-based; it was meant to be effects-based. But if we go to the Resource Management Act or to any district plan we see that the planners hated the thought of anyone taking away their rule book because that is their power-base. So at every turn the bureaucrats and the planners have managed to capture the councillors. Some councillors have gone along willingly and turned the Act into a heavy coded rule-based law rather than letting it be effects-based law which was the basic philosophical starting point. It has been totally lost on the way to the forum and that indeed has meant that the Resource Management Act has become a very destructive instrument in the New Zealand economy. 
But perhaps the biggest criticism is the lack of recognition of property rights and this amendment bill does nothing to address that problem. In a modern market-based economy that is based on tradable property rights in a global environment if we do not recognise and provide for property rights in our basic management and allocation of resources then we have a problem. Property rights are not mentioned in this legislation and that is because it is the tool in the socialist kit bag and it is used to strip away property rights at every turn. 
Anyone can look at a hillside and say: “Oh that crop of trees is nice. I’m going to go to the council and we’ll have it designated as a protected natural area and have it designated in the district plan.” and a compliant council lobbied by the greens would do it. But that hillside happens to belong to someone. It is someone’s property right. If the public at large is saying that it wants that protected for the public good then they should stump up and pay compensation. That is the test of whether it is really in the public interest. The test is whether the public is prepared to pay compensation for the taking of a property right. But no the Resource Management Act at every level restricts property rights strips away property rights and takes from people the right to do things on their land that they would otherwise be able to do. 
In conclusion I say that this bill does not make any amendments. It is just more tinkering. It totally fails to make the amendments that are required. When I say “amendments” I mean we have to gut the Act and go right back to first principles because the Act is based on shaky ground. Its foundations are so unstable. We do not even have a definition for “sustainable”. We have had 15 years of the courts trying to define this wonderful concept that makes us all feel warm and fuzzy inside but the legal profession and the courts cannot get an agreement and an understanding of what it means. If we cannot understand the basic meaning of the basic premise of the legislation then what value does it have? 
What we really have here is another lost opportunity to address the Resource Management Act and sort out the problems. I fear that the problems confronting the country and affecting the prosperity and wealth of New Zealand citizens will remain in check because the problems with the Act have not been addressed adequately.