The current picture: New Zealand’s regulatory landscape for nature-positive infrastructure

New Zealand’s current regulatory resource management and environmental landscape is dynamic, with significant change and upheaval in the past few years.

The Government’s decision in late 2023 to repeal the new Natural and Built Environment Act 2023 (NBEA) and revert to the Resource Management Act 1991 (RMA) while new legislation is prepared means that, for now, we are continuing to operate under the legislative framework that has been in place since 1991, but reform is again on the horizon.

In our previous article, we introduced the concept of nature-positive infrastructure (NPI). NPI is an emerging concept both internationally and in New Zealand that explores the potential of putting nature and biodiversity gain at the heart of decision-making and design. It goes beyond reducing and mitigating negative impacts of infrastructure development and is instead a proactive and restorative approach, providing social, ecological, and cultural benefits. While NPI is not expressly provided for in our regulatory framework, we are already seeing NPI elements being introduced in various contexts in New Zealand construction and infrastructure development.

MinterEllisonRuddWatts has partnered with Arup, a collective of designers, consultants and experts dedicated to sustainable development to produce this article series. This article looks at the current regulatory and planning regime and how this provides for, or constrains, the implementation of NPI. We then highlight some potential future opportunities in the regulatory landscape for enabling NPI within large scale projects.

The current and developing regulatory landscape and planning regime

The RMA is an effects-based statute. This means it focuses on managing the effects of activities, where both positive and adverse effects on the environment are considered when managing development. In contrast, the NBEA sought to move to an outcomes-based system, intended to avoid harmful cumulative effects through legislation and national direction. In only seeking to manage effects, the RMA does not expressly provide for or encourage NPI and nature-based solutions in development.

National planning regulations and policies, including National Environmental Standards (NES) and National Policy Statements (NPS), are implemented by central government and require all local authorities to give effect to them. NES are regulations which provide technical standards for classifying and managing a particular resource, while NPS provide national direction for issues and resources of national significance.

We have only recently started to see these instruments being utilised to set national direction with a strong focus on protecting and enhancing our natural environment. Some examples include:

The NPS for Highly Productive Land, introduced in 2020, which seeks to ensure availability of productive land for food and fibre production and restricts the activities that can be undertaken on land deemed to be “highly productive”. This NPS seeks to ensure the use of highly productive land for primary production is prioritised and supported to avoid use of such land for urban activities, and that it is protected from inappropriate use and development.
The NPS for Indigenous Biodiversity 2023, which focuses on protecting, maintaining and restoring indigenous biodiversity in the face of biodiversity decline. Specifically, the objective of this NPS is to ensure there is at least no overall loss in indigenous biodiversity.
Te Ture Whaimana o Te Awa o Waikato – the Vision and Strategy for the Waikato River is a statutory document under the RMA agreed as part of the treaty settlement with Waikato Tainui. It provides for the restoration and protection of the Waikato River. All proposals for activities which have an effect on the river (or are within the river catchment) must not only demonstrate that effects are appropriately avoided, remedied or mitigated but that the proposal will achieve some element of “betterment”.
The NES for Freshwater and the NPS for Freshwater Management, introduced in 2020, which impose additional obligations and requirements on activities where they may interact with or adversely affect freshwater resources. The concept at the heart of the NPS is Te Mana o te Wai, which recognises the fundamental importance of water and that protecting the health of freshwater protects the health and wellbeing of the wider environment. Specific policies include the management of freshwater to ensure no further loss of extent of natural inland wetlands, or loss of river extent, and to protect and restore freshwater values. The NPS for Freshwater Management is under review with the Government seeking to replace it. The Resource Management (Freshwater and Other Matters) Amendment Bill, introduced in May, specifically excludes the hierarchy of obligations in Te Mana o te Wai from resource consenting processes until the NPS is replaced [1].

The requirements of these instruments flow down to inform regional and district plans. Regional and district local authorities must “give effect to” all RMA national direction when setting planning rules to manage discharges to land, air, and water, subdivision, and other land uses.

In recent years, other instruments and strategies outside of the RMA legislative framework have been trending towards a more protective environmental approach, particularly considering key concerns such as climate change and biodiversity loss. Examples include:

Aotearoa New Zealand’s First Emissions Reduction Plan, which sets out strategies, policies and actions for achieving our first emissions budget. It includes a chapter on working with nature, with a focus on nature-based solutions as a means to reduce emissions and build resilience [2].
The National Adaptation Plan sets out how New Zealand can adapt to the impacts of climate change. It includes a number of actions that will contribute to a resilient natural environment. A specific action relating to infrastructure is to embed nature-based solutions as part of the response to reducing transport emissions, improving climate adaptation and biodiversity outcomes [3].
Te Mana o te Taiao Aotearoa New Zealand Biodiversity Strategy 2020 was introduced by the Department of Conservation for the protection, restoration and sustainable use of biodiversity. This includes objectives such as including biodiversity protection at the heart of economic activity in recognition of a nature-based brand, facilitating nature-based jobs, and a long-term goal of having infrastructure and urban planning include indigenous biodiversity as standard practice, such as through green infrastructure and nature-based solutions [4].

Therefore, although the RMA is focused on broadly enabling activities provided effects can be managed, and does not expressly provide for NPI, the trend in regulatory instruments and non-regulatory plans over recent years has been increasingly to require land use activities to be undertaken in ways that better protect and conserve our natural resources.

With a new government taking office in 2023, there has been a trend towards a narrative of efficiency, economic gain, and market-based approaches regarding environmental outcomes. As noted above, the Government has announced it will replace the NPS for Freshwater Management, viewing this legislation as overly complex and costly, and aiming to introduce a more ‘balanced’ approach to sustainable freshwater management in the next two years. The Fast-track Approvals Bill has proposed a fast-track decision-making process for infrastructure and development projects that are considered to have significant regional or national benefits. Concerns have been raised, including by the Parliamentary Commissioner for the Environment [5], that in its current form the Bill does not adequately address environmental considerations.

Opportunities to provide more proactively for NPI in the regulatory framework

Reform of the resource management regime is a hot topic, and concerns with the RMA remain. Any reform presents an opportunity to better manage and direct environmental outcomes, and set environmental limits or targets in planning for, and enabling, the built environment. The trend in secondary legislation discussed above sets the stage for crystallising the change in thinking towards requiring positive environmental outcomes in our built environment through new legislation. Frameworks such as the International Union for Conservation of Nature’s (IUCN’s) Global Standard for Nature-based Solutions [6] can provide an opportunity to incorporate guidance and criteria for NPI. Reform could more specifically provide for, or incentivise, development and built environment activities that integrate NPI. However, whether such initiatives will feature in RMA reform proposed by the Government remains uncertain.

Other opportunities are also being explored, such as a potential biodiversity credit system. The Government is considering whether this could incentivise protection and restoration of native wildlife in New Zealand by enabling landowners to earn credits for actions that conserve and restore biodiversity.

Legislation has been introduced making climate-related disclosures mandatory for some financial market participants, to give effect to the Task Force on Climate-related Financial Disclosures’ recommendations, intended to enable investors to make more informed decisions about climate-related risks and opportunities. In late 2023, the separate but related Task Force on Nature-related Financial Disclosures released its final framework, intended to facilitate disclosures on nature-related issues (as distinct from climate-related issues) which could be integrated into our legislative regime.

We will explore these opportunities and others in a future article in this series.