Policies unhelpfully vague in statement

Bridget Irving

This article appeared in the Otago Daily Times, June 22 2015.

The Otago Regional Council has notified its proposed regional policy statement (“PRPS”) and now submissions are sought from all of us in respect of it. In the coming weeks I will provide my 5 cents on the PRPS. But before launching into the discussion it is helpful to outline what an RPS is, and what is it intended to do within the RMA framework.

The RMA sets up a clear hierarchy for its policy documents. At the top are National Policy Statements. These focus on matters of national significance and/or where a nationally consistent approach to an issue is sought. Currently there are NPS’s in relation to freshwater, renewable electricity generation, electricity transmission and the coastal environment. There is also a proposed NPS in relation to indigenous biodiversity. A NPS must be given effect to by the subordinate policy statements and plans.  

Next in line are Regional Policy Statements. A RPS must provide an overview of the issues facing the region and the policies and methods to be employed to achieve integrated management of natural and physical resources. Having done that an RPS will identify the anticipated environmental results. A RPS cannot include rules and as a result it cannot actually regulate activities. Therefore a RPS does not have a direct effect on any of us. Unlike rules in a district plan, you will not find anything in the RPS that will actually control what you do. For that reason it can be quite difficult to get overly excited about an RPS. The community as a whole is often quite lethargic in becoming involved in the RPS process. In my view we do this at our own peril.

Despite the apparent lack of direct consequences of an RPS it will have effects on what we all do. Particularly as each district council works through its District Plan review process. Under section 67 and 75 regional plans and district plans must ‘give effect to’ a RPS. The Supreme Court in Environmental Defence Society Incorporated v. The New Zealand King Salmon Co Ltd [2014] NZSC 38 clarified the meaning of ‘give effect to’ in very simple terms. ‘Give effect to’ means implement.

The consequence of the Supreme Court’s decision has been to put the microscope on the drafting of policy statements. Prior to King Salmon militant or inconvenient drafting could be softened somewhat by going back to Part II and undertaking an overall judgment about whether a proposal achieved the purpose of the Act (being sustainable management). King Salmon has potentially put an end to that. 

At the risk of oversimplifying such an important case, it in part related to the interpretation of the New Zealand Coastal Policy Statement and whether policy that required effects on outstanding natural landscapes and features to be avoided left any room to allow activities with adverse effects to take place in those environments. Ultimately the Court found that the language of the NZCPS was clear. For the subordinate plan to adequately ‘give effect to’ the policies requiring effects to be avoided the activities proposed could simply not take place.

There seems to be little reason why the Supreme Court’s reasoning in King Salmon would not apply to an RPS. So the PRPS must be read through that lens. The consequence is that an RPS may be significantly more directive and influential than has been the case historically. It also means that the drafting of the objectives and policies within it is critical.   

Against that background how does the ORC’s PRPS stack up? True to form the ORC have taken the road less (or ever) travelled. They appear to have cast aside accepted RPS drafting theory and got creative. They have chosen to start at the end by identifying 4 ‘outcomes’ for the region. The Chairman’s Foreword sheds some light on the method behind the madness. It seems the ORC were concerned that identifying ‘issues’ would put an unfair emphasis on problems rather than opportunities. I really question whether an ‘issue’ needs to have negative connotations. But either way the failure to put issues front an centre in the PRPS means the objectives and policies are unhelpfully vague and don’t really tackle the issues. This is the natural consequence of failing to identify the issue you are looking to address first. For example, economic sustainability is a cornerstone of sustainable management. The section 32 report on the PRPS indicates that the single most important issue identified by the community during consultation was Employment. It was highlighted as an issue ahead of development effects, debt, industry support and wellbeing. Despite that, the term employment is only referred to once in the entire PRPS, buried in a policy managing the distribution of commercial activities.

I will elaborate further on this in the future. In the mean time I dare you to take a walk on the wild side and have a read to the PRPS. Do you think it identifies the issues that are most important to our region, or has the ORC dodged the hard questions?

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