Interface with the Resource Management Act 1991

Prior to the release of the Crown Pastoral Land Bill it was considered that the RMA provided an alternative statutory basis of sustainable management to replace the Land Act 1948 controls on land use (Commissioner of Crown Lands, 1994; Marshall, 1994b; Working Party on Sustainable Land Management, 1994). Most, however, recognised that the RMA controls were looser than those of the Land Act 1948 and there were potentially gaps. Hansard (1995, p. 6832) records the government of the day did not trust the strength of regional councils to enforce any covenants should they become the administering body. There should be “a national policy statement to ensure that those vulnerable, ecologically sensitive lands of the South Island get the protection they require” (Hansard, 1998, p. 933). It was noted “[t]he Select Committee also specifically retained the Commissioner’s “discretionary consent” power because it believed that the RMA did not adequately protect the Crown’s interest as owner of pastoral land” (Office of Ministers of Agriculture; Rural Affairs; Land Information and Conservation, 2003, p. 5).

More specific shortcomings were noted. It was pointed out that the RMA only takes effect when a resource consent is required (Hansard, 1998, p. 9375). Section 10 of the RMA provides for existing use to be continued without needing a resource consent (Commissioner of Crown Lands, 1994, Appendix 4; Gullen, 1995). If there is change in land use and that land use is a ‘permitted activity’ in the ‘district plan’ then there is no requirement to obtain a resource consent (Commissioner of Crown Lands, 1994, Appendix 4). The RMA s9 is interpreted as a landholder can "do anything on their land unless a rule in a plan says otherwise" but that under s20 "the opposite presumption applies for resources in public ownership, eg [sic] air and water" (Gullen, 1995, Para. 29). The RMA also includes a provision that prevents local government 'rendering land incapable of reasonable use' (s85) thus providing a defence for private property rights. Despite the RMA providing for the protection of 'outstanding landscapes' and 'significant indigenous vegetation' to 'be recognised and provided for as a matter of national importance', it was advised that the 'existing use' and 'reasonable use' provisions 'significantly constrain' local authority control for the purpose of protecting indigenous vegetation and it is signalled that these values should be assigned to conservation or protected in 'some other form' (Commissioner of Crown Lands, 1994, Appendix 4).

Policy advice to the PPSC described the responsibility of regional councils as "promoting the integrated management of the region's natural and physical resources (via the RPS) [regional policy statement] and more particularly, for soil conservation and water quality management" with a discretion to prepare regional land use plans" (Gullen, 1995, Para. 24). The two regional

councils whose combined territory includes most of the high country differ in their approaches. Environment Canterbury has included land management and carried forward the soil conservation measures in its regional plan and on this basis submits on tenure review preliminary proposals (C. Brumley, ECan, pers. comm., 11/10/2005). By contrast the Otago Regional Council has not prepared a regional plan for land management. It has limited its direct control of the high country to a voluntary code of practise for burning vegetation (Otago Regional Council, 2002) and does not submit on tenure review. An Environment Court judge described this 'code of practise' as 'lacking sufficient depth and substance', as permitting 'yes' or 'no' answers, and also lacking "adequate investigation, review and audit procedures" (Bollard, 2004, Para. 35).

Central Otago District Council included a rule in its district plan that exempts land freeholded as a result of a CPLA tenure review (not Land Act 1948 reviews) from its indigenous vegetation clearance rules [Rule 4.7.6]. Waitaki District Council has a similar provision15 _{in their proposed}

district plan exempting ex-pastoral lease freehold land from the proposed general vegetation clearance rule (Waitaki District Council, 2005)16_.

In 2007 the government moved to increase its control over lakeside lands that had the potential to be freeholded as a result of tenure review. The government withdrew from participation in the tenure reviews of 65 properties (Parker, 2007) based on their perception that “high country pastoral lease properties with highly significant lakeside, landscape, biodiversity, or other values17_{, are unlikely to be protected to the satisfaction of the Crown by the tenure review}

process” (Cabinet Business Committee, 2007a, 2007b). This move acknowledged that the RMA processes were not protecting those values after tenure review and that retention as a pastoral lease in the interim was a preferable solution. Richmond pastoral lease tenure review, on the shores of Lake Tekapo was the stimulus that motivated a surge of activity aimed at increasing the level of protection for lakeside and lower land generally. Dr Bryan Jenkins (2006, p. 3), the CEO of the Canterbury Regional Council, Environment Canterbury, wrote “to transfer responsibility for management and protection of these values to other legislation (such as regional and district plans under the RMA) is neither appropriate, nor is it likely to be effective” where opportunity for subdivision development under RMA processes was seen as compromising the “ecologically sustainable management of those areas of land that contain significant inherent values – protection that has been offered by Crown control up to this time.” The letter goes on to describe the RMA plan change process as subject to the short term influences of political dogma and democratic

15 _{Proposed variation number 3}

16 _{Email from Richard Sutherland 3/3/2009 – submissions still to be heard. Completion hoped for in 2009.}

Latest Forest and Bird, Issue 340, May 2011,under appeal in Environment Court.

17 _{Includes lakeside, landscape, biodiversity, ecological, amenity, recreational and other inherent values}

change. In Jenkins’ opinion the best protection for these lands was remaining as Crown pastoral leases.

Sustainable management, in the purpose of the RMA, s5(2), has been interpreted by the courts to mean that the three bottom lines , i.e., social, economic and environmental, require interpretation as an “overall broad judgement" (Skelton & Memon, 2002). The RMA is underpinned by an anthropocentric and utilitarian ethos in that it is based on managing the effects of society’s use of the environment (Skelton & Memon, 2002). This is in contrast to the environmental bottom line approach explicitly provided for in s24(a)(i) (see Ch. 3, s3.4.2).