21

Sustainability in New Zealand Environmental Legislation:
Shortcomings of the Resource
Management Act and Opportunities Presented by the Proposed Legislation
Janet Whiteside*

This article discusses the meaning of sustainability and its development as a principle in environmental legislation. The article then describes how sustainability was introduced into New Zealand’s Resource Man- agement Act 1991 (RMA) and comments on how the RMA has failed  to apply the principle effectively to protect the natural environment because of its anthropocentric focus. Finally, the article discusses whether the recently introduced Natural and Built Environment Bill (NBEB) is likely to be more effective in ensuring sustainability of the natural environment and suggests changes to the Bill that would increase this likelihood.

1.	INTRODUCTION

New Zealand is one of various countries that have incorporated reference  to sustainability in their domestic environmental law. Following this introduction, the article describes the meaning of sustainability and a brief history of its development as a principle. Part 3  describes the introduction of sustainability into New Zealand’s primary environmental legislation, the Resource Management Act 1991 (RMA). It then discusses how effective the

*LLB, LLM in Environmental Law with Distinction (University of Auckland), PG Bus & Admin (Massey University). The author is a Principal Specialist Regulatory Compliance with a primary focus on Resource Management compliance and enforcement at Auckland Council. Email: janet.whiteside@gmail.com.

implementation of sustainability under the RMA has been in protecting the natural environment, and argues that because of its anthropocentric focus, the Act has not effectively protected the environment or resulted in true sustainability. Part 4 describes the proposed legislation that is intended to replace the RMA, focusing in particular on the Natural and Built Environment Bill (NBEB) as it relates to sustainability, and discusses whether the Bill, as   it is currently drafted, will lead to sustainability and protection of the natural environment. The article then recommends provisions that should be included in the new legislation and how it should be implemented to ensure sustainability and environmental protection, and thereby create ecological integrity.

2.	SUSTAINABILITY

The terms “sustainability principle”, “sustainable management” and “sustain- able development” have been referred to over the years in the context of protecting the environment. This part of the article discusses the meaning of sustainability and describes its development. Although the idea of sustainability can be traced back over several centuries, the article focuses on the principle and its development and changing meaning throughout the 20th and 21st centuries.

2.1	Meaning of Sustainability and Sustainable Development

The term “sustainable development” first appeared in the World Conservation Strategy published by the International Union for Conservation of Nature (IUCN) in 1980. The Strategy focused on redressing inequity, stimulating growth and addressing poverty as being the main causes of habitat destruction and defined sustainable development as “the integration of conservation and development to ensure that modifications to the planet do indeed secure the survival and well-being of all people”.1
Sustainable development was again referred to in 1983 when the UN General Assembly formed the World Commission on Environment and Development with Gro Harlem Brundtland as its chair. In 1987 the Commission published Our Common Future which became known as the Brundtland Report. Many passages of the Report referred to the fact that humans are borrowing environmental capital from future generations and that economic growth

1 International Union for Conservation of Nature and Natural Resources World Conservation Strategy: Living Resource Conservation for Sustainable Develop- ment (1980) at s 1.12.

must be constrained to preserve Earth’s ecological integrity.2 The Report defined sustainable development as “development that meets the needs of the present without compromising the ability of future generations to meet their own needs”3 but this definition did not assist greatly in understanding what was actually meant by sustainable development in real terms. For example, which human needs was it anticipating both in the present and in the future? Furthermore, it has been criticised for being overly human focused (anthropocentric) rather than considering the world ecosystem as a whole.4
The Rio Declaration, which was adopted in 1992 following the United Nations Conference on Environment and Development, known as the Earth Summit, elevated the importance of sustainability.5 Principle 3 of the Declaration states: “The right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations.”6 Principle 4 states: “In order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it.”7 Although Principle 3, like the Brundtland Report, is anthropocentric in its emphasis on the needs  of humans both present and future, and has been criticised for this,8 the Declaration does, in Principle 4, recognise the interconnectedness of humans and the environment and the need to protect the environment. Furthermore, the need for protecting and restoring the Earth’s ecosystem is set out in Principle 7 which commences with: “States shall cooperate in a spirit of global partnership to conserve, protect and restore the health and integrity of the Earth’s ecosystem.”9 A further document resulting from the Earth Summit, Agenda 21, provides that sustainable development must raise living standards while at the same time preserving the environment. It states: “integration of environment and development concerns … will lead to the fulfilment of basic needs, improved living standards for all, better protected and managed ecosystems

2  World  Commission  on  Environment  and  Development  Our  Common Future
[Brundtland Report] (Oxford University Press, Oxford, 1987) at 356. 3 At 8.
4	Klaus Bosselmann The Principle of Sustainability: Transforming Law and Governance (Routledge, London and New York, 2017) at 27.
5	Martin Kment “The German Approach to Sustainability and Its New Zealand Equivalent” (2018) 22 NZJEL 1 at 7.
6	Rio Declaration on Environment and Development [Rio Declaration] UN Doc A/ CONF/151/26/Rev 1 (12 August 1992), Principle 3.
7	Principle 4.
8	See, for example, Simon Dresner The Principles of Sustainability (Earthscan Publications, London and Sterling, 2002) at 41.
9	Rio Declaration, above n 6, Principle 7.

and a safer, more prosperous future”.10 Again, the wording is anthropocentric with the emphasis being on human needs.
The concept of interconnectedness was also recognised in a “Political Declaration” that was adopted in 2002 at the Johannesburg Summit on Sustainable Development. Paragraph 5 declared: “Accordingly,  we  assume a collective responsibility to advance and strengthen the interdependent and mutually reinforcing pillars of sustainable development — economic development, social development and environmental protection — at the local, national, regional and global levels.”11 However, the focus was still anthropocentric, despite the acknowledgement of interconnectedness.
In 2015 the United Nations General Assembly adopted the Sustainable Development Goals (SDGs),12 which built on the Millennium Goals, which had been adopted by the United Nations as the world development goals for the years 2000 to 2015. The SDGs do not contain any one goal that deals with sustainable development, ecological integrity, or environmental protection. Instead, the environment is divided into its separate sectors: water, energy, climate change, oceans and seas, terrestrial ecosystems, and biodiversity, thus weakening the concept of the interconnectedness of all life on Earth. The closest it comes to a general sustainable development goal is Goal 17 which is to “Strengthen the means of implementation and revitalize the Global Partnership for Sustainable Development”.13 There is no definition of sustainable development.
It should be noted that although none of the documents referred to above is a formal source of international law and they are not binding on states, they have played a critical role in introducing the concept of sustainability to environmental law. As a result, by 2012, reference to sustainable development had been included in more than 300 conventions and 112 multilateral treaties.14

2.2	Weak and Strong Sustainability

As can be seen, sustainability and sustainable development can be  defined in many ways. One method of categorising sustainability is to divide it into weak and strong sustainability. Strong sustainability means that we must

10	Report of the UN Conference on Environment and Development Agenda 21:      A Programme for Action for Sustainable Development UN Doc A./Conf. 151/26 (12 August 1992) at [1.1].
11	Report of the World Summit on Sustainable Development UN Doc A/CONF/ 199/20 (4 September 2002) Ch 1, item 1 Political Declaration at [5].
12	Transforming our World: the 2030 Agenda for Sustainable Development GA Res 66/288 (2015).
13	At Goal 17.
14	Virginie Barral “Sustainable Development in International Law: Nature and Operation of an Evolutive Legal Norm” (2012) 23(2) EJIL 377 at 384.

preserve the life-support and ecosystem service functions that are essential for all life and that natural capital cannot be substituted for human capital. Weak sustainability means that we must address the economic and social needs of people in addition to preserving the ecosystem and that natural capital and human capital are substitutable.15 For example, the granting of a resource consent under New Zealand’s RMA that permitted a development that would reclaim an entire stream because the applicant is required to carry out riparian planting on another stream some distance from the reclaimed stream would be an example of the exercise of weak sustainability. If the consent was granted only on the grounds that the stream was not reclaimed or damaged in any way, it would be an example of the exercise of strong sustainability.
It has also been suggested that the refusal to allow any substitutability could be described as “very strong sustainability” and that “moderate strong sustainability” would allow natural capital to be depleted provided it   is compensated for in some other way, and that “very weak sustainability” assumes “infinite substitutability” while “moderate weak sustainability” conserves “critical natural capital”.16 These differing views are more an exercise in semantics than of any great assistance in ascertaining what effect an activity would have on the environment. It is more useful to consider weak sustainability as being anthropocentric and strong sustainability as non-anthropocentric or ecocentric.

2.3	Anthropocentric versus Non-anthropocentric Sustainability

Throughout the attempts to define sustainability, or sustainable development, and to incorporate it in international law,  a clear obstacle has been the need  to integrate two goals: protection of the environment; and meeting the needs of present and future humans. This has led to a situation where there is no real guidance on how to integrate these competing interests.17 Furthermore, the definitions to date of sustainability and sustainable development have  an anthropocentric emphasis. However, the importance of taking a non- anthropocentric or ecocentric approach which sees humans as being part of the environment and as part of “a complex web of natural relationships that need

15	Steven C Hackett “Weak vs. Strong Sustainability Debate” in Klaus Bosselmann and others (eds) Berkshire Encyclopedia of Sustainability: The Law and Politics of Sustainability (Berkshire Publishing Group, Great Barrington, 2011) 505 at 506.
16	Dresner, above n 8, at 77.
17	Kim E Rakhyun and Klaus Bosselmann “Operationalizing Sustainable Development: Ecological Integrity as a Grundnorm of International Law” (2015) 24 Rev Eur Comp & Intl L 194 at 199.

to be respected, not just users of resources having instrumental value”18 has been recognised for many years. This approach aims at attaining ecological integrity — the ability of ecosystems to maintain their self-sustaining and self-regulating functions. Earth’s ecological systems are interconnected and interdependent and the destruction of one ecosystem or part of it can have widespread effects throughout other ecosystems. This type of interdependence is illustrated, for example, by mangroves which grow in the intertidal margins of coastal and estuarine environments. They not only provide a habitat and food source for a wide range of organisms, including fish and birds, but also trap sediment and contaminants, thereby protecting the marine environment.
The need to attain ecological integrity or  ecosystem integrity in  order to ensure the survival of all life on Earth has been referred to in several international documents. The Brundtland Report refers to ecological integrity throughout; for example, “We all depend on one biosphere for sustaining our lives”,19 and “Sustainable development requires that the adverse impacts on the quality of air, water, and other natural elements are minimized so as to sustain the ecosystem’s overall integrity”.20  As described above, Principle 7  of the Rio Declaration emphasises the need to protect and restore the integrity of the Earth’s ecosystem.21 Agenda 21, despite containing an anthropocentric definition of sustainable development, refers to ecological integrity throughout; for example, it refers to maintenance of ecological integrity22 and protecting “environmental integrity with a  view to long-term ecological security”23  in the context of environmentally sound management of technology, and “maintenance of ecosystem integrity”24 in the context of protection of the quality and supply of freshwater resources. The IUCN Draft International Covenant of Environment and Development, in Article 2, states: “Nature as a whole and all life forms warrant respect and are to be safeguarded. The integrity of the Earth’s ecological systems shall be maintained and where necessary restored.”25
Despite these references to the need for a non-anthropocentric approach to sustainable development with the aim of ecological or ecosystem integrity, it

18	Greg Severinsen, Raewyn Peart and Bella Rollinson The Breaking Wave: a conver- sation about reforming the oceans management system in Aotearoa New Zealand [The Breaking Wave] (Environmental Defence Society Incorporated, August 2021) at 93.
19	Brundtland Report, above n 2, at 28.
20 At 43.
21	Rio Declaration, above n 6, Principle 7.
22	Agenda 21, above n 10, at [16.4].
23  At [16.22(c)].
24  At [18.38(a)].
25 Draft International Covenant on Environment and Development: Implementing Sustainability (IUCN Environmental Law Programme, Bonn, 2015), Article 2.

has yet to become a binding requirement in any international law. One of the most significant attempts to address the competing interests of humans and environment and incorporate a non-anthropocentric focus into international environmental law occurred after the Rio Conference, when the Secretary General of the Earth Summit, Maurice Strong, initiated the process that led   to the Earth Charter which was launched at the Peace Palace in The Hague in 2000. The first principle of the Earth Charter recognises the interconnectedness and interdependence of all forms of life, seeing this as summing up what sustainability is all about.26 Principle II deals with ecological integrity, referring to “Protect and restore the integrity of Earth’s ecological systems …” and “Prevent harm as the best method of environmental protection and, when knowledge is limited, apply a precautionary approach”.27 The Earth Charter, therefore, declares unequivocally the concept of sustainable development as a non-anthropocentric principle that focuses on the protection and, where necessary, the restoration of the integrity of ecosystems.
The Earth Charter was recognised in 2003 by the UNESCO General Conference as an important framework for sustainable development. In 2004 the IUCN World Conservation Congress adopted a resolution that encouraged member states “to determine the role the Earth Charter can play as a policy guide within their own spheres of responsibility”. There has been significant recognition internationally of the value of the Earth Charter but it has yet   to become soft law.28 Despite this, the non-anthropocentric approach of the Charter is one that should be adopted both internationally and domestically   if sustainable development is to have any real, effective meaning. The value of taking this non-anthropocentric approach in New Zealand’s proposed environmental legislation is discussed in part 4 of this article.

3.	NEW ZEALAND RESOURCE MANAGEMENT ACT 1991

New Zealand was the first country to apply the sustainability principle in law by including it in the RMA which is the primary piece of legislation in New Zealand that prescribes how the environment should be managed.29 This part of the article describes the intention behind the inclusion of sustainable management in the RMA as the key purpose of the Act. It then considers how this purpose has been applied in practice by the courts and decision-makers,

26	Bosselmann, above n 4, at 92.
27	Earth Charter Commission Earth Charter: Values and Principles for a Sustain- able Future [Earth Charter] (2000) <https://earthcharter.org/wp-content/ uploads/2020/03/echarter_english.pdf?x95251> Principle II(5) and (6).
28	Bosselmann, above n 4, at 36.
29 At 73.

and the effect this application, with its anthropocentric focus, has had on New Zealand’s natural environment.

3.1	Introduction of Sustainability to New Zealand Environmental Law

The development of the RMA took some time with the process commencing with a publication in December 1988 setting out the Government’s proposals for a review of the existing resource management law. Feedback on the paper led to a Cabinet Paper in March 1989, with the Bill being introduced in 1989 and reported back to Parliament by the Environment Select Committee in 1990. Before the Bill could be passed into law, there was a change of Government, with the new Government reviewing and amending the Bill which was finally enacted in July 1991.30
The Ministry for the Environment, during the period leading up to the enactment of the RMA, stated that sustainability was a general principle that should be applied in law in the same way as other general concepts such as liberty, equality and justice.31 The Hon Simon Upton, the Minister for the Environment at the time, observed in the third reading debate:32

The Bill provides us with a framework to establish objectives by a physical bottom line that must not be compromised. Provided that those objectives are met, what people get up to is their affair. As such, the Bill provides a more liberal regime for developers. On the other hand, activities will have to be compatible with hard environmental standards and society will set those standards. Clause 4 [s 5] sets out the biophysical bottom line.

The Hon Simon Upton in the Stace Hammond Grace Lecture at Waikato University Law School in 1995, describing the final Bill as enacted, said: “In the end, the language of ensuring that, in providing for current needs, the needs of future generations were sustained was transmuted into enabling people to meet their current needs while sustaining the needs of future generations” and pointed out that “the efficient use of development of natural and physical resources” was reinstated in the purpose clause. He said that at the time he felt

30	Simon Upton “Purpose and Principle in the Resource Management Act” (1995)  3 Wai L Rev 17 at 28. For a more detailed description of the development of the legislation see 28–40.
31	New Zealand Ministry for the Environment Resource Management Law Reform: Sustainability, Intrinsic Values and Needs of Future Generations Working Paper No 24 (Wellington, 1989) at 9.
32	Simon Upton (4 July 1991) 516 NZPD at 3019.

this concession was harmless in terms of the bottom line but that in practice the phrase had proved to be “not without problems”.33
Sir Geoffrey Palmer in an address to the Resource Management Law Association in 2013 said: “The purpose of the Act was to provide proper protection for the environment to ensure fairness to future generations. It was not a question of balancing the environment against development; rather it was to ensure that development was sustainable and that meant providing basic protection for ecology.”34 In the same address, Sir Geoffrey said: “The Resource Management Act represented a deliberate shift on the part of New Zealanders away from economic advancement at any cost towards long-term economic and environmental sustainability. It expressly acknowledged that the state of the natural environment and New Zealand’s economic development were inextricably linked.”35
The enacted RMA included sustainability as “sustainable management” in s 5 which sets out the purpose of the RMA. It states:36

5 Purpose
(1)	The purpose of this Act is to promote sustainable management of natural and physical resources.
(2)	In this Act, sustainable management means managing the use, develop- ment, 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.

Once the Act was passed into law, it was often described as one of the world’s most advanced environmental laws. One description was:37

33	Upton, above n 30, at 39.
34	Geoffrey Palmer “The Resource Management Act — How  we  got  it  and what changes are being made to it” (Address to Resource Management Law Association, New Plymouth, 27 September 2013) at 12–13.
35 At 18.
36	Resource Management Act 1991, s 5.
37	Paul Selman “Three decades of environmental planning: what have we really learnt?” in Michael Kenny and James Meadowcroft (eds) Planning Sustainability (Routledge, London, 1999) at 167.

A notable example of radical reform of environmental law has  been New Zealand’s Resource Management Act of 1991, which swept aside the country’s inherited town and country planning system, replacing it with an integrated framework for resource management based on efficiency, sustainability and public participation.

It was considered that the RMA promoted an ecocentric approach by providing a holistic definition of “the environment” and recognising the intrinsic value of ecosystems.38 Upton in his address to Waikato Law School said:39

… whatever section 5(2) has to say about economic or social activities, the matters set out in subparagraphs (a), (b) and (c) must be secured. They cannot be traded off. They constitute a non-negotiable bottom line. Unless it is a bottom line, sustainable management ceases to be a fixed point or pre-eminent principle and sinks back into being a mealy-mouthed manifesto whose meaning is whatever decision-makers on the day want it to be.

However, no matter how clearly a principle such as sustainability is written into legislation, and the intention behind this inclusion, whether in fact it has its intended effect depends on how the law is applied in practice.

3.2	Application of Sustainability in Practice in New Zealand

Despite the intention behind including “sustainable management” in the purpose clause of the RMA being to ensure a reasonably non-anthropocentric approach to the management of natural resources and to provide an environmental bottom line, there was no guarantee that the purpose clause would be interpreted in this way by the courts and decision-makers and that the RMA would achieve the overall aim of environmental protection.

3.2.1	Application by the courts

The applicability of pt 2 of the RMA has been discussed in many cases before the courts. Early Planning Tribunal decisions took an “environmental bottom line” approach, in which s 5(2) was regarded as setting out cumulative safeguards, all of which needed to be met for the purpose of sustainable management of the environment to be achieved.40 This approach changed with

38	See Resource Management Act 1991, s  2(1) (definition of “environment”), and   s 5(2) (definition of “sustainable management”).
39	Upton, above n 30, at 40.
40	See, for example, Shell Oil New Zealand Ltd v Auckland City Council PT Wellington W8/94, 2 February 1994; Foxley Engineering Ltd v Wellington City

a High Court decision in New Zealand Rail Ltd v Marlborough District Council where the Court held that an overall broad judgement should be made with  the environmental effects being balanced against the economic effects.41 This approach was followed by the courts until the Supreme Court’s decision in Environmental Defence Society v New Zealand King Salmon (King Salmon)42 which involved an appeal against the approval of an application for a plan change to the Marlborough Sounds Resource Management Plan which was inconsistent with the outstanding natural character and landscape policies in the New Zealand Coastal Policy Statement. The Court considered whether pt 2 of the RMA must be directly considered when assessing applications for changes to a regional coastal plan. It rejected the overall judgement approach and determined that the definition of sustainable management must be read as an integrated whole. It also determined that because the key planning document in this case, the New Zealand Coastal Policy Statement, gave substance to the principles in pt 2 in respect of the coastal environment, it was “difficult to see that resort to Part 2 is either necessary or helpful”.43 However, when discussing the definition of sustainable management, the Court did acknowledge that:44

… sustainable management of natural and physical resource involves protection of the environment as well as its use and development. The definition indicates that environmental protection is a core element of sustainable management, so that a policy of preventing the adverse effects of development on particular areas is consistent with sustainable management.

The situation regarding having to directly apply pt 2 is different for decision-makers assessing an application for a resource consent. In RJ Davidson Family Trust v Marlborough District Council45 the Court of Appeal considered whether the ability to consider pt 2 in the context of resource consents is subject to any limitations of a kind contemplated by King Salmon. Section 104(1) of the RMA states that when considering an application for a resource consent and any submissions received, the consent authority must, subject to pt 2, have regard to various matters including any actual and potential effects on the environment of allowing the activity and any measure proposed for the purpose of ensuring

Council PT Wellington W12/94, 16 March 1994; Plastic and Leathergoods Co Ltd v The Horowhenua District Council PT Wellington W26/94, 19 April 1994.
41	New Zealand Rail Ltd v Marlborough District Council [1994] NZRMA 70 (HC). 42 Environmental Defence Society v New Zealand King Salmon [2014] NZSC 38,
[2014] 1 NZLR 593 [King Salmon].
43 At [90].
44 At [24(d)].
45 RJ Davidson Family Trust v Marlborough District Council [2018] NZCA 316, [2018] 3 NZLR 283 [Davidson].

positive effects on the environment to offset or compensate for any adverse effects on the environment resulting from allowing the activity. The Court held that the statutory language plainly contemplates direct consideration of pt 2 matters when assessing resource consent applications.46
However, in SKP Incorporated v Auckland Council the Environment Court held:47

We do not find a need to resort to Part 2 on account of any invalidity, incomplete coverage, or uncertainty of meaning within the planning instruments. For completeness, however we record that if viewed through the lens of the overall broad judgment approach, we find that the purpose of the Act in s 5 would be promoted, and that there has been due consideration of  all other relevant matters in Part 2 such as to enable consent to be granted, and as a check that consent would provide for or give effect to the Act and  all statutory instruments in the hierarchy beneath it. We find that whether or not an overall broad judgment, or an environmental bottom line approach, is taken, the proposal is suitable for consent on the conditions we have referred to, and we do that.

In Te Rūnanga o Ngāti Awa v Bay of Plenty Regional Council the High Court, in an appeal from the Environment Court, acknowledged that the provisions of pt 2 are “strong directions to be borne in mind at every stage of the process …”48 but followed the King Salmon approach and concluded that the Environment Court had made no errors in its consideration that the regional plans provided adequate coverage of pt 2 and that the incomplete state of the planning documents did not require particular resort to pt 2.49
The High Court in Tauranga Environmental Protection Society Incorporated v Tauranga City Council, in comparing the approach of the Supreme Court in King Salmon to that of the Court of Appeal in Davidson regarding whether pt 2 must be directly considered, reconciled the two decisions by saying:50

While the Court of Appeal expanded on the use of pt 2 of the RMA, I do   not consider its judgment contradicted the reasoning of the Supreme Court   in warning about the defects of the overall judgment approach in relation to particular consent applications.

46 At [47].
47	SKP Incorporated v Auckland Council [2018] NZEnvC 81 at [294].
48	Te Rūnanga o Ngāti Awa v Bay of Plenty Regional Council [2020] NZHC 3388 at [100].
49 At [205].
50 Tauranga Environmental Protection Society Incorporated v Tauranga City Council [2021] NZHC 1201 at [77].

In Muaūpoko Tribal Authority Incorporated v Minister for Environment the High Court said that it did “not accept that the Supreme Court’s construction of s 5 in King Salmon means that s 5(2) itself contains environmental bottom lines” but that it found that s 5(2) may allow for the statement of environmental bottom lines in planning documents.51
The situation therefore remains that there is no guarantee that the require- ment for sustainable management set out in s 5 will be directly considered and applied by the courts, and that s 5 is not considered by the courts as containing environmental bottom lines.

3.2.2	Implementation by decision-makers

Despite the introduction of sustainability into the RMA and the intention at the time that the Act would introduce an ecocentric approach with increased protection of the environment, its implementation by central and local government has fallen short of this goal. One of the more vocal critics of the implementation of the RMA is Sir Geoffrey Palmer who in his 2013 speech to the Resource Management Law Association said:52

… sadly we have now fallen far behind. Our environmental laws have many gaps. It is my belief we are in the course of losing our clean green image as a result of government policies, which will in my view damage the economic interests of this country deeply, as it will damage the wellbeing of those who live here.

He also referred to the “deficiencies of New Zealand local government”, and as an example pointed to the multiplicity of “complicated and interlocking plans of great complexity generated by each separate local authority”.53 In an address to the 2015 Local Government Environmental Compliance Conference, Sir Geoffrey went even further, saying: “There are aspects of local government administration of the RMA that are seriously defective. The overall performance has been unsatisfactory in many respects and inept at handling problems of complexity … Subterranean efforts are made to try and avoid implementing it often for local political reasons.”54 Sir Geoffrey is correct in stating that there are major issues in the enforcement of compliance with the RMA. A particular issue is under-resourcing of councils, especially smaller ones, and lack of

51	Muaūpoko Tribal Authority Incorporated v Minister for Environment [2022] NZHC 883 at [137].
52	Palmer, above n 34, at 12.
53 At 15.
54 Geoffrey Palmer “Ruminations on the problems with the Resource Management Act 1991” [2016] NZLJ 46 at 47.

emphasis on compliance and enforcement, with some councils being almost completely enforcement averse. In some councils, as Sir Geoffrey pointed out,55 elected officials have been known to interfere in enforcement.56
The Environmental Defence Society in its survey of the environmental outcomes of the RMA in 2016 found: “Agency capture of (particularly local) government by vested interests has reduced the power of the RMA to appropriately manage effects on the environment”57 and referred to the lack of enthusiasm for setting strong limits for freshwater due to a preponderance of agricultural interests in a council.58 The Society also found that “the agencies charged with responsibilities under the Act often do not have access to the resources to match their delegations”.59 The Productivity Commission in its 2020 Local Government Insights Report also referred to political interference and lack of resources, stating:60

Some existing landowners also seek to influence councils’ resource- management decision making and enforcement. Councils face political pressure to categorise land-use activities as permitted (rather than consented) activities, in order to minimise the costs imposed on resource users. Across the sector, compliance monitoring and enforcement is generally weak and under-resourced, and can suffer from political interference in decision making. These problems arise partly from councils’ dual economic development and environmental protection roles (and in the case of unitary authorities, dual roles of regulator and regulated party). This can be exacerbated by a lack of appropriate separation of governance and operations, and elected members’ lack of understanding of their governance role.

Laws that are not effectively implemented and enforced are likely to fail in achieving their goals.61 In particular, “environmental regulations must be enforced to be effective”.62 Any attempt, for example, to ensure sustainable

55 At 48.
56	Since this issue came to the attention of the Auditor-General, most councils have taken steps to ensure that elected officials are not involved in decisions about enforcement.
57	Environmental Defence Society Incorporated Evaluating the environmental outcomes of the RMA (June 2016) at 6.
58  At 20.
59  At 58.
60	New Zealand Productivity Commission Local Government Insights (February 2020) at 16.
61	Neil Gunningham Compliance, Enforcement, and Regulatory Excellence (Penn Program on Regulation, June 2015) at 1.
62	Anthony G Heyes “Making Things Stick: Enforcement and Compliance” (1998) 14(4) Oxf Rev Econ Policy 50 at 50.

management in a resource consent by including conditions aimed at preventing damage to the environment is of little value if the consent is not monitored or it is monitored but enforcement action is not taken when non-compliance is found.
The permissive approach by councils towards the granting of resource consents has been another factor in the move away from the original intention of true sustainability. As early as 2004, there was criticism of what was perceived to be a pro-development ethos of New Zealand planning. It was pointed out that if planners wanted to challenge this ethos, they had to confront the tensions between stewardship and economic development.63 The Ministry for the Environment’s document Patterns in Resource Management Act Implementation: National Monitoring System data 2014/15 to 2019/20 reports that across New Zealand most resource consent applications are granted and is consistently above 99 per cent. In 2019/2020 only 59 out of 34,686 applications were declined.64
One of the reasons for this permissive approach is the increasing pressure from developers and central government on councils to provide rapidly increasing amounts of housing. The National Policy Statement on Urban Development 2020 (NPS-UD), which came into force on 20 August 2020 and was updated in May 2022, is described by the Ministry for the Environment  as having the purpose of “ensuring New Zealand’s towns and cities are well- functioning urban environments that meet the changing needs of our diverse communities”65 and removing overly restrictive barriers to development. The NPS-UD contains eight objectives, all focused on urban environments and increasing housing supply and affordability. The only reference to anything resembling the natural environment is in Objective 8 which is that New Zealand’s urban environments support reductions in greenhouse gas emissions and are resilient to the current and future effects of climate change.66 There is no reference to the natural environment in the rest of the document.
The NPS-UD has been followed by the Resource Management (Enabling Housing Supply and Other Matters) Amendment Act 2021. The Act is focused on increasing housing supply. It categorises territorial authorities into three tiers and provides that every specified territorial authority (all tier 1 and some

63	Claire Freeman “Sustainable development from rhetoric to practice? A New Zealand perspective” (2004) 9(4) Int Planning Studies 307 at 309.
64	New Zealand Ministry for the Environment Patterns in Resource Management Act Implementation: National Monitoring System data 2014/15 to 2019/20 (September 2021) at 9.
65	Ministry for the Environment <https://environment.govt.nz/acts-and-regulations/ national-policy-statements/national-policy-statement-urban-development/>.
66	National Policy Statement on Urban Development (New Zealand Government, May 2022).

tier 2 and 3 territorial authorities) must incorporate medium density residential standards (MDRSs) and give effect to policies 3 or 5 of the NPS-UD in every relevant residential zone.67 Section 77I provides that “a specified territorial authority may make the MDRS and relevant building height or density requirements under policy 3 less enabling of development” to accommodate qualifying matters that are present, but the only references to the natural environment amongst the qualifying matters are in (a) a matter of national importance under s 6, (b) a matter required to give effect to a national policy statement or the New Zealand Coastal Policy Statement, (c) a matter required to give effect to Te Ture Whaimana o Te Awa o Waikato, and (d) a matter required to give effect to the Hauraki Gulf Marine Park Act 2000 or the Waitakere Ranges Heritage Area Act 2008.68 Section 77O contains the same provisions with respect to urban non-residential areas.69 There is no other reference to the natural environment in the Act.
Although the Act does not require councils to consult with the public regarding how they will implement its provisions, Auckland Council issued    a consultation document requesting public feedback on some proposed approaches for changing the Auckland Unitary Plan (Operative in Part) to respond to central government’s requirements for greater housing density across the city. The document focuses on the required increased density but proposes some additional qualifying matters, only one of which, a ridgeline protection overlay to protect “prominent ridges in Auckland that add scenic overlay”, refers in any way to the natural environment.70 Nothing in the document refers to protection of the natural environment.
On the face of it, intensification of housing in cities and towns could have a positive effect on the natural environment by protecting it from the effects of development by limiting the areas to be developed. However, intensification of housing increases the pressure on infrastructure which, as has already been demonstrated throughout New Zealand, can result in significant discharges and damage to the environment. Furthermore, there is no guarantee that intensification in certain areas of towns and cities will stop expansion of housing into the countryside, particularly in cities and towns like Auckland where the population is steadily increasing.
Another example of where central government is permitting activities that continue to degrade the environment is described in the recent government

67	Resource Management (Enabling Housing Supply and Other Matters) Amendment Act 2021, s 277G.
68	Section 77I.
69	Section 77O.
70	Auckland Council Government’s new housing rules: What it means for Auckland (Consultation Document) <https://akhaveyoursay.aucklandcouncil.govt.nz/70516/ widgets/345420/documents/230290>.

review of the first year of the implementation of the National Environmental Standards for Plantation Forestry (NES-PF). The review states that earthworks and harvesting on highly erosion-prone land present considerable risk and that the forestry industry and councils should share ideas and best practices   to reduce erosion risk. However, although it acknowledges that New Zealand does not have well-developed risk assessment tools or risk modelling for slope failure and debris flows71 and the existing erosion-susceptibility maps are too high-level, its solution is to continue with the status quo and hope that a future contestable science funding process will deliver finer-scale slash management tools fit for regulation.72

3.2.3	Effects on the environment

There is no question that without the RMA, the situation would have been worse with more adverse impacts on the environment resulting from unregulated development and other activities. However, the failure of the incorporation of sustainability in the RMA to protect the environment to the expected extent can be seen when considering the current state of the environment. The Ministry for the Environment and Stats NZ’s triennial report, Environment Aotearoa 2022, on the state of the environment brings together the regular six-monthly reports produced by the Ministry and Stats NZ on air, freshwater, marine, atmosphere and land domains.73 The report points to intensification of the use of agricultural land through dairy farming and horticulture, thereby increasing the use of fertiliser and irrigation, which depletes the soil and pollutes streams, rivers and lakes. The number of dairy cows increased by 21 per cent between 2002 and 2019 and the area of irrigated land increased by 94 per cent from 2002 to 2017, although there was a 1.7 per cent decrease between 2017 and 2019.
The report states that land-use change and intensification is putting pressure on the ecosystems and native species of New Zealand. One example is wetlands, which have high biological, cultural and disaster resilience values. It is estimated that 90 per cent have been lost since human settlement due to draining, ploughing and burning, and approximately 60 per cent of remaining wetlands are moderately to severely degraded.74 Although wetlands cover less than 1 per cent of New Zealand’s area, they provide a habitat for two-thirds of threatened freshwater and estuarine fish species and 13 per

71	Debris flows can cause significant damage downstream as occurred at Tolaga Bay in 2018.
72	Te Uru Rākau Forestry New Zealand Report on the Year One Review of the National Environmental Standards for Plantation Forestry (April 2021) at 22.
73	New Zealand Ministry for the Environment and Stats NZ New Zealand’s Environ- mental Reporting Series: Environmental Aotearoa 2022 (April 2022) at 2.
74 At 19.

cent of threatened plant species.75 The report continues by pointing out that New Zealand’s waterways are particularly vulnerable to pollution and the quantity of pollutants entering waterways and the ocean is “linked to intensified agriculture and forestry, drained wetlands, industry and urban development”.76 Many waterways have unnaturally high levels of nutrients which come from urban and agricultural runoff. Freshwater quality is poorest near areas with a high proportion of human modification, with higher concentrations of all forms of nitrogen and phosphorus than near to areas with lower proportions of human modification.77
The numerous pressures on the land also affect soil quality with 80 per cent of the 602 sites measured by the Ministry failing the targets for at least one of the soil quality indicators for the period 2014 to 2018, and nearly half of the sites below the target for macroporosity, which indicates whether roots can access air and water can flow through the soil.78 Habitat destruction and the introduction of predators have severely reduced the populations of indigenous birds, reptiles and plants. In 2016, 74 per cent of terrestrial birds, 94 per cent of reptiles and 46 per cent of vascular plants were threatened with extinction or at risk of becoming threatened.79
New Zealand’s forestry industry is particularly destructive. It often involves extensive clearfelling which destabilises soils and sediments resulting in sedimentation and habitat damage from heavy machinery. This damage has been described thus:80

Not only are hillsides being eroded at an alarming rate, but old sediments that are a legacy of past mining, deforestation and pastoralism are remobilised into the water column by heavy dredges and trawl gear. These practices occur annually over millions of hectares of land and sea each year.

The risks to the environment associated with the forestry industry are unlikely to reduce. As the Environmental Defence Society has reported, the NES-PF “severely restricts the ability of councils to regulate and manage plantation forestry”.81

75  At 41.
76  At 20.
77  At 41.
78  At 28.
79  At 36.
80	Steve Urlich “The Natural and Built Environments Ecologies Act: bringing the ‘hidden infrastructure’ to light” (August 2021) RMJ 22 at 22.
81	Raewyn Peart, Cordelia Woodhouse, Shay Schaepler and others Caring for the Landscapes of Aotearoa New Zealand: Synthesis Report (Environmental Defence Society Incorporated, February 2021) at 59.

Human activities are also affecting the quality of the marine environment surrounding New Zealand. New Zealand has one of the highest rates of sediment runoff in the world, equivalent to around 35 million truckloads of sediment entering the sea annually.82 The Parliamentary Commissioner for the Environment has reported that sediment has accumulated, especially in some estuaries, at an unprecedented rate.83 Large quantities of sediment can smother and kill benthic life, and suspended sediment in the water can impact the amount of light reaching plant life and impact fish spawning.84 Levels of nutrients such as nitrogen and phosphorus have increased dramatically over the years. Between 1977 and 2014, human activity has resulted in an increase of approximately 74 per cent of nitrogen, 159 per cent increase of nitrate-nitrogen and 48 per cent of total phosphorus loads into the ocean. These high nutrient levels can be toxic or lead to algal blooms that can kill marine life by depleting oxygen levels.85
It is clear that the current anthropocentric approach to environmental protection in New Zealand is not working. It is therefore essential that a non- anthropocentric approach is included in the new proposed environmental legislation and effectively implemented. This is discussed in part 4 of the article.

4.	PROPOSED NEW ZEALAND ENVIRONMENTAL LEGISLATION

New Zealand has undertaken a review of the RMA and will be replacing it with three new Acts: the Natural and Built Environment Act (NBEA), the Spatial Planning Act (SPA) and the Climate Adaptation Act. An exposure draft of the NBEA was released for consultation and referred to Parliament’s Environment Committee in July 2021. The Environment Committee provided its report to Parliament on 1 November 2021. The Ministry for the Environment (MfE) then released a document entitled Transforming Aotearoa New Zealand’s resource management system: Our future resource management system — Materials for discussion for engagement with Māori, local government and other stakeholders. The Government introduced the Natural and Built Environment Bill (NBEB) and Spatial Planning Bill to Parliament on 15 November 2022, with the Climate Adaptation Act to be introduced at a later date.

82	The Breaking Wave, above n 18, at 36.
83	Parliamentary Commissioner for the Environment A review of the funding and prioritisation of environmental research in New Zealand (December 2020) at 76.
84	The Breaking Wave, above n 18, at 36.
85	New Zealand Ministry for the Environment and Stats NZ, above n 73, at 49.

This part of the article focuses on the provisions of the NBEB relevant to sustainability, commencing with a description of the Environment Committee report and then discussing whether the NBEB will enable a move towards a non-anthropocentric approach to sustainability and enable ecological integrity. The article then proposes how the protection of the environment with the aim of ecological integrity can be ensured in the provisions of the NBEA, and its implementation.

4.1	Environment Committee Report

On 1 July 2021 the Environment Committee commenced an inquiry into the parliamentary paper on the NBE Bill, which included an exposure draft. The Committee’s report, which was issued in November 2021, made various recommendations. It recommended that the purpose clause be amended to reflect that environmental limits have priority in the system, and are not subject to other goals related to wellbeing. However, it also recommended that such an amendment also reflect that there are dual goals, within the parameters of environmental limits, to both protect and restore the natural environment, and to better enable development, and that more prominence is given to the built environment, so that the purpose of the NBEA is more clearly linked to the outcomes for housing, infrastructure, and cultural heritage in relation to the built environment.86

4.2	The NBEB

There will be changes to the NBEB as it goes through the parliamentary and select committee process. It is, however, possible to ascertain the direction the legislation will take, whether it is taking a less anthropocentric approach to the RMA, and whether it is likely to be successful in protecting the environment and ensuring ecological integrity. Although, unlike the RMA, there is no definition of sustainability or sustainable management, the NBEB is an improvement on the RMA with its greater focus on environmental protection, and reference to environmental limits and outcomes and ecological integrity. The focus of the Bill as against that of the RMA shifts from effects to outcomes.
The purpose of the Bill is stated as:87

86	Environment Committee Inquiry on the Natural and Built Environments Bill: Parliamentary Paper [Environment Committee Report] (November 2021) at 4.
87	Natural and Built Environment Bill 2022 (186-1) [NBEB], cl 3.

The purpose of this Act is to—
(a)	enable the use, development, and protection of the environment in a way that—
(i)	supports the well-being of present generations without compromising the well-being of future generations; and
(ii)	promotes outcomes for the benefit of the environment; and
(iii)	complies with environmental limits and their associated targets; and
(iv)	manages adverse effects; and
(b)	recognise and uphold te Oranga o te Taiao.

Te Oranga o te Taiao is defined as meaning:88

(a)	the health of the natural environment; and
(b)	the essential relationship between the health of the natural environment and its capacity to sustain life; and
(c)	the interconnectedness of all parts of the environment; and
(d)	the intrinsic relationship between iwi and hapū and te Taiao

The primary planning document under the NBEB is the National Planning Framework. The purpose of this framework as set out in cl 33 includes, inter alia, the setting of environmental limits and strategic directions.89
Clause 37 of the NBEB provides that the purpose for which environmental limits may be set is to prevent the ecological integrity of the natural environment from degrading from the state it was in at the commencement of that part of the Act and to protect human health.90 Ecological integrity is defined as meaning:91

… the ability of the natural environment to support and maintain the following:
(a)	representation: the occurrence and extent of ecosystems and indigenous species and their habitats; and
(b)	composition: the natural diversity and abundance of indigenous species, habitats, and communities; and
(c)	structure: the biotic and abiotic physical features of ecosystems; and
(d)	functions: the ecological and physical functions and processes of ecosystems

Although the NBEB is a considerable improvement on the RMA, and ecological integrity has been referred to for the first time in New Zealand environmental legislation, there is clear indication of a continuing anthropocentric focus. The

88	Clause 7.
89	Clause 33.
90	Clause 37.
91	Clause 7.

purpose clause, for example, raises more than one issue. The use of the word “enable” in “The purpose of this Act is to enable” is unnecessarily weak and does not guarantee that the matters in (a) and (b) will in fact occur. Similarly, providing that te Oranga o te Taiao is to be recognised and upheld does not provide any guarantees.
Allowing in parts of the Bill for “offsetting” continues the acceptance of offsetting as a valid method of dealing with adverse effects created by an activity. Clause 14(1) provides, for example, that every “person has a duty to avoid, minimise, remedy, offset, or take steps to provide redress for any adverse effect on the environment arising from an activity carried on by or on behalf of the person”.92 Clause 231, which deals with the general requirements before conditions may be included in a resource consent, provides in (2) that a condition must not be included unless the applicant has agreed to it and it contains measures to give rise to positive effects and “avoid, remedy, mitigate, offset, or take steps to provide redress for any adverse effects …”.93 The shortcoming of including offsetting with mitigating as a means of addressing adverse effects was considered by the High Court in Royal Forest & Bird Protection Society of New Zealand Inc v Buller District Council & West Coast Regional Council. The Court held that mitigation must address effects “at the point of impact”, and biodiversity offsetting or compensation is not mitigation in that offsetting or compensation does not alleviate, abate, or moderate the severity of something. The Court said, for example, that if open-cast mining will destroy the habitat of an  important species of  snail (an adverse effect) it cannot be said logically that enhancing the habitat of snails elsewhere in the environment mitigates that adverse effect.94 It held that offsets “are not mitigating, in that they do not address effects at the point of impact”.95  Or, in other words, mitigating remedies actual adverse effects (strong sustainability) whereas offsetting offers possible positive environmental effects elsewhere but does not remedy the actual damage caused by an activity (weak sustainability). The inclusion of protecting human health in the purpose of environmental limits96 indicates a continuing anthropocentric focus and indeed could be said to be redundant, as protecting the ecological integrity of the natural environment will in itself protect human health. Furthermore, providing ecological integrity or human health as possible options rather than both being required could result
in protection of human health to the detriment of the natural environment.

92	Clause 14(1).
93 Clause 231(2)(a).
94 Royal Forest & Bird Protection Society of New Zealand Inc v Buller District Council [2013] NZHC 1346 at [72].
95 At [74].
96 NBEB, above n 87, cl 37.

4.3	How to Ensure Environmental Protection and Integrity of Ecosystems

As described in part 2 of this article, a non-anthropocentric approach sees humans as being part of the natural environment, not separate and above it. It regards humans as “part of a complex web of natural relationships that need to be respected, not just users of resources”.97 There is no reason that New Zealand cannot enact legislation that is non-anthropocentric in focus and that could result in true sustainability that protects the environment and ensures ecological integrity, while still providing for the economic, social and cultural needs of New Zealanders. As Professor Freeman has pointed out:98

New Zealand is in a very privileged position from which to embark on a sustainable development path should it choose to do so. It lacks the large- scale environmental problems characteristic of both the West and developing countries. It is rich in renewable natural resources, particularly those related to farming, forestry, fishing, and both freshwater and marine resources. It is well placed to develop renewable energy in the form of wind and sea power, and already has an impressive hydro and thermal energy base.

4.3.1	Indigenous knowledge

The approach of Māori, the indigenous people of New Zealand, to their place in the environment can be of considerable value to those completing the drafting of the NBEA. The relationship with the land and all living things is at the core of indigenous societies. They consider land as part of their identity and do not believe they own the land but consider themselves as guardians who maintain and protect the land. Their traditional lands and resources are essential to their economic and cultural survival, and spiritual and physical wellbeing. Furthermore, indigenous peoples typically have an extensive knowledge of their environment’s ecological limits developed through generations of learning by observation and trial and error.99 If traditional knowledge is integrated with other scientific and technological knowledge, innovative and equitable ways of creating a better future for all can be developed.100 If it is ignored, the

97	The Breaking Wave, above n 18, at 93.
98	Freeman, above n 63, at 310.
99	Kyle A Artelle, Janet Stephenson, Corey Bragg and others “Values-led manage- ment: the guidance of place-based values in environmental relationships of the past, present, and future” (2018) 22(3) Ecology and Society 35 at 35.
100	Eugenia Recio and Dina Hestad Indigenous Peoples: Defending an Environment for All (International Institute for Sustainable Development, Policy Brief 36, April 2022) at 9.

opposite can happen. A United Nations Environment Programme study into the knowledge of indigenous communities in Kenya, Swaziland, South Africa and Tanzania found that where indigenous knowledge was ignored, subsequent environmental degradation also led to increase in poverty in these areas.101
For Māori, there are clear links between the health of the environment and its ecosystems and their own physical and spiritual wellbeing.102 Māori perceive humanity as merely a part of nature, rather than separate and superior to it: they are occupiers of the land, rather than its owners.103 As described by the Ministry for the Environment, “the Māori approach to environmental management incorporates the needs and values of people and recognises the interrelated nature of the natural world. Māori environmental practice holds the same validity today as in pre-European times.”104 It is therefore critical that Māori environmental knowledge contributes alongside western scientific knowledge to the finalisation and implementation of the NBEA and the other proposed environmental legislation. The provision in cl 4105 that all persons exercising powers and performing functions under the Act must give effect   to the principles of te Tiriti o Waitangi is a significant improvement on the requirement to take the principles into account in the RMA. The requirements that at least two members of regional planning committees must be appointed by one or more Māori appointing committees of the region and that plans and plan changes must be prepared in accordance with Mana Whakahono ā Rohe106 are steps in the right direction, but they do not guarantee that the environmental knowledge of Māori is given effect to in practice.

4.3.2	Changing current anthropocentric focus

It will not be possible to achieve sustainability that ensures ecological integrity unless humans change their attitude towards how wellbeing is measured. Currently, wellbeing in most countries is measured in terms of economic and gross domestic product (GDP) growth. There are many obstacles to

101	United Nations Environment Programme Indigenous Knowledge in Disaster Management in Africa (Kenya, 2008) at 9–10.
102	Garth R Harmsworth and Shaun Awatere “Indigenous Māori Knowledge and  Perspectives of Ecosystems” in JR Dymone  (ed)  Ecosystem  Services  in  New Zealand — Conditions and Trends (Manaaki Whenua Press, Lincoln, 2013) 274 at 274.
103	Jemima Jamieson “The Role of Indigenous Communities in the Pursuit of Sustain- ability” (2010) 14 NZJEL 161 at 174.
104	New Zealand Ministry for the Environment Māori Input into the Environmental Performance Indicators Programme: Signposts for Sustainability (April 1999)   at 3.
105	NBEB, above n 87, cl 4.
106	Schedule 7(4).

such a change, including people’s reluctance to move away from their desire for wealth and material belongings and reduce their use of resources, even damaging resources such as fossil fuels. For many people, consumerism is an addiction that they do not want to be cured of.107 Furthermore, the human belief in themselves as being superior to the rest of nature which entitles them to manage, control and direct nature to meet their own needs is deeply ingrained. It is these attitudes that have led to environmental law that has the main purpose of keeping the harm caused by human activity within limits acceptable to human society rather than balancing human interests against those of other living beings to create harmonious co-existence for the good of the entire ecosystem.108
Some countries, including New Zealand, have taken some steps towards changing how they measure wellbeing. The Canadian Index of Wellbeing   is used to identify key points that have a positive effect such as education, community vitality, environment and healthy populations that have a positive impact on the wellbeing of Canadians. The Prime Minister of Iceland, in December 2019, observed that the focus on economic performance through GDP undervalues quality of life, and the First Minister of Scotland, in a speech on 24 July 2019, said that the time for GDP to be seen as the most important measurement of a country’s success was over.109
The New Zealand Government has introduced “wellbeing budgets” since 2019. In her introduction to the 2019 Budget, the Prime Minister said:110

… while economic growth is important — and something we will continue to pursue — it alone does not guarantee improvements to our living standards. Nor does it measure the quality of economic activity or take into account who benefits and who is left out or left behind. … Our five Wellbeing Budget priorities show how we have broadened our definition of success for our country to one that incorporates not just the health of our finances, but also of our natural resources, people and communities.

If the approach in the New Zealand budgets since 2019 was reflected in  the proposed environmental legislation and  in  its  implementation, with a rebalancing of its priorities so that economic wellbeing is not prioritised, and the focus is on the wellbeing of all forms of life, including humans, it

107	Dresner, above n 8, at 171.
108	Klaus Bosselmann “Grounding the rule of law” in Christina Voigt (ed) Rule of Law for Nature: New Dimensions and Ideas in Environmental Law (Cambridge University Press, Cambridge, 2013) 75 at 101.
109	Harmony with Nature: Report of the  Secretary-General  UN  Doc  A/75/266 (28 July 2020) at 5.
110	The Wellbeing Budget (New Zealand Government, 30 May 2019) at 2.

would significantly improve the likelihood of achieving true sustainability and ecological integrity. However, even where New Zealand has made a noticeable move towards a non-anthropocentric approach to environmental protection, human requirements still take priority. The National Policy Statement for Indigenous Biodiversity exposure draft which was published for consultation in June 2022111 contains much that is positive — for example, its focus on ecological integrity and maintaining of biodiversity, and its acknowledgement of interconnectedness between indigenous species, ecosystems, the wider environment and the community.112 However, this is undermined by the objective which is clearly anthropocentric. It states:113

(1)	The objective of this National Policy Statement is to protect, maintain, and restore indigenous biodiversity in a way that:
(a)	recognises tangata whenua as kaitiaki, and people and communities as stewards, of indigenous biodiversity; and
(b)	provides for the social, economic, and cultural wellbeing of people and communities now and in the future.

Instead of stating that the priority is the protection, maintenance and restoration of indigenous biodiversity, the priority is the wellbeing of humans. It also provides for offsetting and compensation for adverse effects on indigenous biodiversity.114

4.3.3	Recommended changes to NBEB

If New Zealand’s environmental law is to move towards a non-anthropocentric approach and ensure not only human survival and wellbeing, but also ecological integrity, the NBEA must contain provisions that allow use of nature’s resources while protecting the “regenerative and self-functioning characteristics and integrity” of all ecosystems.115 A key change would be for the wording of the purpose clause to be more directive. As stated above, the word “enable” in “The purpose of this Act is to enable” is too wide to guarantee that the matters in (a) and (b) will in fact occur. Replacing “enable” with “ensure” would be much

111	National Policy Statement for Indigenous Biodiversity Exposure Draft (Ministry for the Environment, Department of Conservation and New Zealand Government, June 2022).
112 At [1.5(2)].
113 At [2.1].
114 At [1.5(4)].
115 Louis Kotzé and Duncan French “The Anthropocentric Ontology of International Environmental Law and the Sustainable Development Goals: Towards an Ecocentric Rule of Law in the Anthropocene” (2018) 7 Global J Comp L 5 at 16.

more effective. The Environment Committee recommended that “enable” be replaced by “require”116 which would also be effective. Furthermore, replacing “uphold” in the phrase “recognise and uphold te Oranga o te Taiao” with “give effect to” would provide more certainty. The Environment Committee also recommended that te Oranga o te Taiao be defined more clearly, and that more provisions setting out what would be required to uphold te Oranga o te Taiao be included throughout the NBEA.117 A clearer definition and requirements would lead to more understanding of the concept by decision-makers and the public, thereby increasing the likelihood that the concept will be complied with. Safeguarding the environment would also be more certain if, as recommended by the Parliamentary Commissioner for the Environment in his submission on the NBEA exposure draft, the purpose clause set out a hierarchy between the protection of the natural environment and the use and development of the environment.118
As described above, the inclusion of offsetting can result in the area of natural environment damaged by an activity not being remedied. Offsetting   is a particularly weak form of sustainability and should be excluded from the NBEA if the legislation is to have any chance of resulting in true sustainability and environmental protection.
The requirement for environmental limits to be set in the national planning framework will assist in protecting the environment. However, the inclusion of protecting human health in the purpose of environmental limits in cl 37119 is redundant and should be deleted, as protecting the ecological integrity of the natural environment will in itself protect human health. Furthermore, it should be made clear that environmental limits must, in degraded environments, lead to improvement beyond the status quo rather than retain the current degraded state.
The exposure draft of the NBEA did not contain compliance, monitoring and enforcement provisions which could be seen to be a lack of prioritisation of this part of the resource management system, and there was no opportunity for stakeholders to make submissions on the wording, effects and practicality of any such provisions. The NBEB has introduced some provisions that will strengthen the compliance and enforcement functions. These include: a significant increase in penalties;120 prohibiting the use of insurance for fines;121 a new offence for

116 Environment Committee Report, above n 86, at 14.
117 At 14.
118	Parliamentary Commissioner for the Environment “Submission on the Natural and Built Environments Bill Exposure Draft” (4 August 2021) at [9]–[11].
119	NBEB, above n 87, cl 37.
120	Clause 765.
121	Clause 766.

contravention of resource consent conditions;122 the ability to recover costs for all investigations of non-compliance;123 enforceable undertakings;124 and providing for several civil penalties such as monetary benefit orders125 and pecuniary penalties.126 Each of these is a distinct improvement on the compliance and enforcement provisions in the RMA but it is not possible to ascertain whether they will be effective until they are put into practice. There is no point in enacting legislation if it is not able to be effectively enforced. For this to occur, there must be compliance and enforcement provisions that can be effectively applied in practice and that are adequately resourced.

4.3.4	National planning framework, regional spatial strategies and NBEA plans

It will not be enough to ensure that the wording of the NBEA creates a focus on true sustainability as it is only part of the process. The NBEB provides that central government will issue a national planning framework (NPF) that will provide a set of mandatory policies and standards, including natural environmental outcomes, limits and targets. It is not possible to comment on the effectiveness of the NPF without knowing what its content will actually be. A regional spatial strategy (RSS) will be developed for each region (under the SPA) by a RSS joint committee. Each RSS will set long-term objectives for urban growth and land-use change; ensure development and infrastructure is provided where needed; identify areas to be protected from inappropriate development or change; support development capacity and infrastructure provision; and support climate change mitigation and adaptation, and natural hazard risk reduction. They will not be operative but will guide NBEA plans. One NBEA plan will be developed for each region by a regional planning committee, and each plan will state the environmental limits for the region, give effect to the NPF for the region, provide for environmental outcomes, identify and provide for matters that are significant for the region and its districts, and resolve conflicts relating to the environment.127 As with the NPF, the content of these plans and the membership of the regional planning committees that will create them have not been finalised and it is therefore not possible to ascertain how effective they will be in ensuring sustainability. It is critical, however, that the developers of each of these documents are properly resourced and understand sustainability and ecological integrity and their importance.

122	Clause 760.
123	Clause 781.
124 Clauses 723–730.
125 Clause 718.
126 Clauses 776–780.
127 Part 4.

4.3.5	Implementation of NBEA, NPF, RSSs and NBEA plans

The Productivity Commission in its 2020 report on local government makes several recommendations that would also apply to implementing the NBEA. A key recommendation is to build council capability with a significant increase in skills and capability across the local government sector, including elected members. “Councils also need access to a wide range of technical capabilities in planning, particularly environmental sciences, economic analysis, and policy analysis and evaluation.”128 The Commission also recommends that central government substantially improves its knowledge of the local government sector and works together with local government when developing regulations that impact on local government. It recommends that central government takes its regulatory stewardship role more seriously, including “systematically and proactively monitoring and reviewing regulatory regimes to ensure they are fit for purpose”.129
A key element of increasing the capability of central and local government would be to carry out in-depth education of all persons involved in implementing the NBEA and the SPA on the meaning of sustainability and ecological integrity and how this can be achieved. This education must be available not only to those developing the legislation, strategies and plans, but also to all involved in implementation of the legislation — for example, planners considering applications for resource consents, council employees carrying out compliance and enforcement activities, and all council management. Education of stakeholders such as developers and members of the public would increase their understanding of why they should take a non-anthropocentric approach when considering the environmental effects of their developments and activities.
The establishment of an independent Sustainability Advisory Council would also assist in increasing the capability of those in central and local government involved in drafting and implementing the new legislation. The merits of access to advice that is not influenced by political issues cannot be overstated. Such  a council should include experts with relevant scientific, economic, social and Māori knowledge and skills.

4.4	Legal Personhood for Nature

A further method of achieving a non-anthropocentric approach to the environ- ment would be to provide nature and its components with legal personhood,  or to ensure that all beings have legal rights, in particular their right to exist.130

128 New Zealand Productivity Commission, above n 60, at 23. 129 At 29.
130 Bosselmann, above n 108, at 104.

This has already occurred in New Zealand with the Whanganui River and Te Urewera. The Te Urewera Act 2014 was the first of its kind in the world to afford legal rights to a body of land. Under the Act, Te Urewera, which had previously been a national park vested in the Crown, became a legal entity, with “all the rights, powers, duties, and liabilities of a legal person”.131 The Act appointed the Te Urewera Board to act on behalf of and in the name of Te Urewera.132 The Board must reflect customary values and law.133 In March 2017 the Te Awa Tupua (Whanganui River Claims Settlement) Act 2017134 became the first legislation in the world to declare a river a legal person. Through this Act, the Whanganui River acquires the rights, powers, duties, and liabilities of a legal person. These rights, powers and duties are exercised by Te Pou Tupua on behalf of and in the name of Te Awa Tupua.135 Te Pou Tupua is an office established to be the human face of and act on behalf of Te Awa Tupua.136

5.	CONCLUSION

The importance of taking a non-anthropocentric approach to sustainability and the protection of the environment, which sees humans as being part of the environment and not just users of environmental resources, has been recognised for many years. This approach aims at attaining ecological integrity, with all ecosystems able to maintain their self-sustaining and self-regulating functions. New Zealand led the world in incorporating sustainability in its environ- mental legislation, the RMA. However, the initial intention that the legislation would result in true protection of the natural environment has not eventuated, with human needs and economic growth taking priority over the natural
environment, resulting in significant degradation to the environment.
New Zealand is in a good position to enact and implement environmental legislation that will ensure sustainability resulting in protection of the environment and ecological integrity. It has already moved in that direction with its wellbeing budgets, the provision of legal personhood to the Whanganui River and Te Urewera, and the increased focus on sustainability in the NBEB. In order to achieve this outcome, it will be critical for all decision-makers to resist pressures to revert to a short-term focus on economic growth that places

131	Te Urewera Act 2014, s 11.
132	Section 17(a).
133	Section 18(2).
134	Te Awa Tupua (Whanganui River Claims Settlement) Act 2017, s 14(1). 135 Section 14(2).
136 Section 18.

human activity and development above all other life. It could be argued that even if the attitude towards the natural environment remains anthropocentric, in that it is believed that natural resources are there purely for the benefit of humans, these resources will still be protected and, if necessary, restored, as they are the foundation of New Zealand’s economy. However, the danger of taking this approach and settling for an anthropocentric approach is that nothing will change and that these resources will continue to be used as is “needed” without any consideration of their long-term sustainability.
It is  therefore essential that the  proposed environmental legislation has a non-anthropocentric focus and that all subsidiary legislation and plans and related decision-making retains that focus so that the environment is protected and ecological integrity is achieved. Granting of legal personhood to significant natural environmental features would increase the likelihood of environmental protection. Failure to follow a non-anthropocentric approach can only result in continuing degradation of the natural environment, and the destruction of the environment can only lead to the destruction of all life, including humans.