Section 7 - Other Matters

Section 7 of the Resource Management Act sets out "other matters" which persons exercising functions and powers under the Act must "have particular regard to". 

In achieving the purpose of this Act, all persons exercising functions and powers under it, in relation to managing the use, development, and protection of natural and physical resources, shall have particular regard to—

(a) Kaitiakitanga:
(aa) The ethic of stewardship:
(b) The efficient use and development of natural and physical resources:
(ba) the efficiency of the end use of energy:
(c) The maintenance and enhancement of amenity values:
(d) Intrinsic values of ecosystems:
(e) Repealed.
(f) Maintenance and enhancement of the quality of the environment:
(g) Any finite characteristics of natural and physical resources:
(h) The protection of the habitat of trout and salmon:
(i) the effects of climate change:
(j) the benefits to be derived from the use and development of renewable energy.

The direction to have "particular regard to" the matters listed in section 7 is not as strong as the direction "to recognise and provide for" matters of national importance in section 6. This may reflect the fact that the matters referred to in section 7 tend to be more abstract and more evaluative than the matters set out in section 6. ⁵²⁰  Nevertheless, the matters in section 7 must be recognised as important to any decision where they are relevant and therefore to be considered and carefully weighed in coming to a conclusion. ⁵²¹   Section 7 requires that the matters are to be given genuine attention and thought, but may be rejected or accepted only in part. ⁵²²

Section 7(a) - Kaitiakitanga and Section 7 (aa) - The ethic of stewardship

The Resource Management Act defines kaitiakitanga as the exercise of guardianship by the tangata whenua of an area in accordance with tikanga Maori in relation to natural and physical resources, and includes the ethic of stewardship. ⁵²³  It is distinguishable from "the ethic of stewardship" in that it applies only to the exercise of guardianship by the tangata whenua of an area.

The role of kaitiaki has evolved to accommodate contemporary resource management processes. Under the Resource Management Act, the duties associated with kaitiakitanga include: ⁵²⁴

• Restoring and rehabilitating degraded mahinga kai sites
• Assessing the cultural implications of proposed developments, including through the preparation of cultural impact assessments
• Lodging submissions and presenting evidence on plan development processes and resource consent applications
• Forming constructive relationships with environmental agencies, such as councils, the Department of Conservation and Fish and Game

The outcomes of kaitiakitanga are likely to include avoiding the discharge of waste (particularly human waste) into rivers and lakes, the management of natural resources in a way that maintains mahinga kai values, and ensuring that all natural resources are available for future generations in as good, or better, quality than they currently exist.

To give effect to the concept of kaitiakitanga it is important to consult with the appropriate people. The Crown has a duty to consult with tangata whenua which arises out of the relationship of Treaty "partners". ⁵²⁵  While other persons are not under any obligation to do so, it is best practice to give consideration to the potential need for consultation with tangata whenua at an early stage for any proposed activity  Consultation in this context involves an obligation to hear and understand the views of tangata whenua on the exercise of kaitikitanga and to let those views influence the decision-making. ⁵²⁶

Section 7(a) provides recognition that kaitiaki need to be provided with the opportunity to exercise guardianship of the natural and physical resources within their area of influence in accordance with tikanga Māori. For example, in Carter Holt Harvey Ltd v Te Runanga o Tuwharetoa ki Kawerau [2003] 2 NZLR 349 the High Court recognised the role of Tuwharetoa as kaitiaki of the Tarawera River and upheld a condition on a long-term discharge consent for the paper mill at Kawerau which required Carter Holt Harvey Ltd to consult with Tuwharetoa if any issues arose during the 21-year term of the consent .

Section 7(b) - The efficient use and development of natural and physical resources

This matter points to limiting the use of a particular resource so that it does not become overused and that there is an incentive for other underused resources to be developed. The avoidance of waste and the best use of resources are other aspects of efficiency. ⁵²⁷

The Environment Court has noted that efficient use of resources may mean a number of things in any single case:

In Unison One the Court held that "it is efficient to utilise wind – it is a waste to leave it unutilised – and also to continue production from the farm underneath it. We consider that it might equally be alleged that it is efficient to spend the money that would be needed to buy expensive wind turbines, to buy cheap coal and cheap coal-driven plants and pay any carbon tax… It is also efficient, in the sense of avoiding waste, not to reduce the area of outstanding natural landscapes". ⁵²⁸

The Court stated that it was “uncomfortable with a cherry-picking approach to efficiency” and endorsed an approach that “requires a consent authority to consider the use of all the relevant resources and preferably their benefits and costs”. ⁵²⁹

On appeal from that decision, the High Court determined that section 7(b) does not require consideration of alternative or a comprehensive cost-benefit analysis of the proposal. Furthermore, a project does not need to be "the best" project in terms of net benefit to satisfy the efficiency criterion in section 7(b) as the RMA does not impose an obligation on resource owners or managers to use the resource in a way that is deemed best by council or court, only in a way that falls within the purpose of sustainable management. Nor does section 7(b) require an applicant for a resource consent to prepare a comprehensive cost-benefit analysis of the proposal. ⁵³⁰

Section 7(c) - The maintenance and enhancement of amenity values

The Resource Management Act defines amenity values as those natural or physical qualities and characteristics of an area that contribute to people's appreciation of its pleasantness, aesthetic coherence, and cultural and recreational attributes. ⁵³¹  The definition of amenity embraces a wide range of elements and experiences, and recognises that the appreciation of amenity may change depending on the audience. ⁵³²

The Resource Management Act does not require every proposal to maintain and enhance amenity values. The direction in section 5(c) to avoid, remedy or mitigate any adverse effects of activities on the environment clearly contemplates that activities may have adverse effects on amenity values and still be in accordance with the sustainable management purpose of the Act. ⁵³³  However, amenity values overall should be maintained and enhanced. ⁵³⁴

Note - section 6(b) is more relevant to amenity values associated with outstanding natural landscapes and outstanding natural features. ⁵³⁵

Section 7(d) – Intrinsic values of ecosystems

Section 2 of the RMA defines intrinsic values as “those aspects of ecosystems and their constituent parts which have value in their own right, including (a) their biological and genetic diversity, and, (b) the essential characteristics that determine an ecosystem’s integrity, form, functioning, and resilience.” This provision complements the objective in section 5(2)(b) of safeguarding the life-supporting capacity of ecosystems.

Section 7(f) – Maintenance and enhancement of the quality of the environment

The general requirement to maintain and enhance the quality of the environment complements the environmental obligations contained within the definition of sustainable management (sections 5(2)(a), (b) and (c)). As described for section 7(c) above, there is no requirement for every proposal to maintain and enhance the quality of the environment, but this should be achieved overall.

Section 7(g) – Any finite characteristics of natural and physical resources

This provision directs consideration to issues of allocation or use of resources which are finite in nature (such as freshwater). ⁵³⁶  Under the RMA allocation is generally on a “first in, first served” basis ⁵³⁷   which does not necessarily achieve efficient allocation of finite resources. Local authorities may include policies and rules in plans which address the efficient allocation of finite resources.

Section 7(h) – The protection of the habitat of trout and salmon

This provision derives from the Water and Soil Conservation Act 1967 which protected both indigenous and introduced fisheries. Indigenous fish and their habitat are now protected under the Conservation Act 1987 and the freshwater fisheries regulations as well as under section 6(c) of the RMA. Section 7(h) carries on the protection for introduced fisheries.

Trout and Salmon are useful water quality indicators. There is a close correlation between the habitat requirements of trout and salmon and suitable water quality for public uses such as swimming. ⁵³⁸

Section 7(i) - The effects of climate change

The requirement to have particular regard to the effects of climate change is aimed at considering the effects of climate change on the application, rather than the effects of the application on climate change. ⁵³⁹  Furthermore, sections 70A and 104E of the Resource Management Act clearly states that a decision maker cannot have regard to the effects of a discharge into air of greenhouse gases on climate change (except to the extent that the use and development of renewable energy enables a reduction in the discharge into air of greenhouse gases). There is a clear legislative policy of nationalising New Zealand’s approach to the emission of greenhouse gases. ⁵⁴⁰

The Ministry for the Environment produces guidelines which local authorities should utilise when considering the effects of climate change.

Section 7(j) - The benefits to be derived from the use and development of renewable energy

The requirement to have particular regard to the benefits to be derived from the use and development of renewable energy avoids the need to re-litigate on a case-by-case basis the benefits of renewable energy over those projects which use non-renewable energy sources. Section 7(j) indicates a clear preference for renewable energy over non-renewable energy. ⁵⁴¹

However, the adverse effects of renewable energy projects (such as effects of biodiversity and landscape values) still need to be assessed to determine if a renewable energy project can proceed. Not all renewable energy projects will be consistent with the purpose of sustainable management.

Last updated at 2:28PM on January 4, 2018