The statement "Sustainability means different things to different people" is a truism borne out by a close examination of the twisted path taken to incorporate the idea of sustainability into New Zealand law.
International pressure to engage with damage to the global environment grew after the Stockholm Declaration in 1972, and then the Brundtland Report – Our Common Future – which was published in 1987. This called for intergenerational equity, drew attention to the need for development in under-developed countries and the need for economic growth, and introduced the idea of sustainable development. That development and use of world’s natural resources needed to consider the needs of future generations.
The New Zealand Labour led government of the mid 1980’s, under the leadership of Geoffery Palmer, responded to these challenges and began work to develop an Act which would incorporate many other pieces of legislation relating to water, land and air. Interestingly the un-stated long title of the RMA reads: “An Act to restate and reform the law relating to use of land, air and water.” It eventually merged 60 Acts under one unifying purpose “to promote sustainable management of natural and physical resources”.
In the beginning pressure was also being directed by New Zealand environmental activists exemplified by Cath Wallace. Thus emerged an unusal alliance between environmentalists and new right thinking.
Both wanted environmental issues to be internalised into decision making, to be formally taken into account. The greens wanted decisions to be taken locally, where they mattered, and this accorded with the new right’s vision that the market be able to make decisions about natural resources rather than the dead hand of the state. Both wanted integrated thinking.
Palmer writes in the book “The Making of the Resource Management Act” that the key concept “was sustainable development”, and goes on to elaborate that “sustainable management is a broad concept that reflects aspects of use, development and protection…”
Treasury influenced thinking as the policy developed. It argued that the social equity ideas that lay behind the Brundtland concept of sustainable development were “unworkable” in an environmental statute, and that the new legislation should concentrate on natural resources and the environment.
Palmer’s observations include reference to the thinking of Bruce Pardy who argued that “if an activity is not evaluated according to its effects on the ecosystem function, then ecological sustainability cannot be achieved”, and which led Palmer to refer to the need for “environmental bottom lines”.
The Government changed while the Resource Management Bill was in process, and Simon Upton became the new Minister of Environment. It appears that the National Government were even more enthusiastic than Labour had been to protect the environment, and did little to change the wording used in the Act which are set out in Section 5 of the Act under the heading: “Purpose Sustainable Management”.
Purpose
(1) The purpose of this Act is to promote the sustainable management of natural and physical resources.
(2) In this Act, sustainable management means managing the use, development, and protection of natural and physical resources in a way, or at a rate, which enables people and communities to provide for their social, economic, and cultural well-being and for their health and safety while—
(a) sustaining the potential of natural and physical resources (excluding minerals) to meet the reasonably foreseeable needs of future generations; and
(b) safeguarding the life-supporting capacity of air, water, soil, and ecosystems; and
(c) avoiding, remedying, or mitigating any adverse effects of activities on the environment.
Much has been written about these words, and the fact the meaning is in two parts. The first part promotes and “enables” people and communities to use natural resources to provide for their wellbeing. The second part provides an environmental counter balance, that the use of the natural resources must be “while” sustaining the potential of those resources to meet the needs of future generations; and safeguarding the life-supporting capacity of ecosystems; and mitigating, remedying, avoiding adverse effects on the environment.
For example Skelton and Menon (2002) have argued (Adopting Sustainability as an Overarching Environmental Policy: A review of Section 5 of the RMA)that S.5 is not a definition of sustainable management, instead that it is simply a description. They cite various court decisions to back that view. The leading case is the High Court decision of Justice Greig, NZ Rail Vs Marlborough District Council in 1994, which considered the matter of establishing a ferry passage through the sounds. Justice Grieg said in effect, “there is a deliberate openness in the language, its meanings, its connotations which I think is intended to allow the application of policy in a general and broad way. Indeed it is for that purpose that the Planning Tribunal, with special expertise and skills, is established to oversee and to promote the objectives and policies and principles under the Act…”
This was further qualified by Kenderdine in Trio Holdings Vs Marlborough District Court in 1997 over establishment of a marine farm in Marlborough Sounds, to the effect that “to enable the promotion of the concept of sustainable management to still occur, then it may be that some adverse effects may be acceptable, and that it is matter of fact and degree…”
Judge Sheppard (in 1997) came to a similar set of findings in considering the appeal of North Shore City Council over the use of a MUL (Metropolitan Urban Limit) by Auckland Regional Council as a method to restrict urban development in its regional Policy Statement. He said to the effect that "...where some aspects of an activity do promote sustainable management and fully comply with (a), (b) and (c) (in Section 5 of the RMA), but others may not comply or fully comply with one or more of those aspects, to conclude with no judgment of scale or proportion would be to subject s5(2) to strict rules of statutory interpretation which are not applicable to the broad purpose…"
John Milligan (Barrister) writes in RM Bulletin 2002 in an essay “Adopting Sustainability? Sustainability, sustainable development and sustainable management”. He differentiates between strong and weak sustainability. At the heart of very strong sustainability "lies an injunction to preserve nature in all its forms... the position accords with those who attempt to ground an environmental ethic in something other than the instrumental value that things in the natural world have for humans - as, for example, in some notion of 'intrinsic value' in terms of which entities are valuable in and for themselves...".
He argues that weak sustainability is where nature and natural resources are seen as instruments for humans to use for their own wellbeing and economic development. An anthropocentric concept. He considers that ideas like “ecosystem services” and “natural capital” all serve the idea of natural resources as an instrument for human use and manipulation.
He considers that Brundtland with its emphasis on the paramount nature of human life and social equityand the need for economic development alongside the idea of intergenerational equity, that notion of sustainable development is instrumental and amounts to "weak sustainability".
Interestingly, he considers that the RMA, with its emphasis on environment and ecosystems stands a better chance of developing into strong sustainability, than the Brundtland idea of Sustainable Development.
He essentially agrees with Treasury that there is a need to separate human needs from environmental management.
However, until the Act reverts to the original intent of its makers – both National and Labour led – which envisaged environmental bottom lines – it will be a tool where the courts are able to exercise their "expert judgement", consider matters of "fact and degree" and permit activities which enable people to do their thing, even if those activities are causing adverse effects on the environment and ecosystems. Especially of those effects are "de-minimus".
The RMA is now liberally interpreted as one which promotes an idea of sustainable management that has been constructed by caselaw, not by Parliament.
Until a appropriate National Policy Statement is issued that brings ecological sustainability to the forefront of planning (perhaps the planned NPS on Biodiversity will go some way toward this), then the steady downhill slide of New Zealand away from being 100% pure will continue with certainty.
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