Hello readers. This week I want to publish this paper, that the chair asked me to present to the March Regional Council meeting , in Feb. It is similar to my encounter with council lawyer Mr Maassen at that meeting. It is interesting to note that the court declaration approved at that meeting has got lost in some coloured pages somewhere.
I wonder if the legal opinion being sought for my paper will vindicate my interpretation of the acts.
Roles and Functions Regional Council
It is important to have a understanding of the purpose of the Local Government Act 2002.before interpreting the Resource Management Act with regard to the interpretation and application of, in every day decision making.
The LGA .Part 2,
Sec 10 Purpose of Local Government
The purpose of local government is –
(a) to enable democratic local decision making and action by, and on behalf of, communities; and
(b) to promote the social, economic, environmental, and cultural well being in the present and for the future.
Sec 11 Role of Local Authority
The Role of Local Authority is to-
(a) give effect, in relation to its district or region, to the purpose of local government stated in sec 10; and
(b) perform duties, and exercise the rights, conferred on it by or under this Act and Any Other Enactment.
Sec 12 Status and Powers
(2) For the purposes of performing its role, a local authority has –
(a) full capacity to carry on or undertake any activity or business, do any act, or enter into any transaction; and
(b) for the purposes of paragraph (a), full rights, powers, and privileges.
(3) Subsection (2) is subject to this act, or any other enactment, and the GENERAL LAW.
(4) A territorial authority must exercise its powers under this section wholly or principally for the benefit of its district.
(5) A regional council must exercise its powers under this section wholly or principally for the benefit of all or a significant part of its region, and not for the benefit of a single district.
Please note the order of para (4) and (5), including sec 11(a). This is important in determining the decision making process of this Act and the Resource Management Act.
Sec 14 Principles relating to local Authorities
(1) In performing its role, a local authority must act in accordance with the following principles;
(a) a local authority should
(i) conduct its business in a open, transparent and democratically accountable manner-
(ii) give effect to its identified priorities and the desired out
comes in an efficient and effective manner;
(b) a local authority should make itself aware of, and should have regard to, the views of all its communities; and
( c) when making a decision, a local authority should take account of –
(i) the diversity of the community, and the community’s interests, with in its district or region; and
(ii) the interests of future as well as current communities; and
(iii) the likely impact of any decision on each aspect of well being referred to in Sec 10
(g) a local authority should ensure prudent stewardship and the efficient and effective use of its resources in the interests of its district or region; and
(h) in taking a sustainable development approach, a local authority should take into account-
(i) the social , economic and cultural well being of people and communities; and
(ii) the need to maintain and enhance the quality of the environment; and
(iii) the reasonably foreseeable needs of future generations.
The local government act spells out how to achieve effective decision making through open and transparent consultation as in sections 76-84 of this act.
LGA Part 4 Governance
Sec 39 Governance principles
A local authority must act in accordance with the following principles in relation to its governance;
(a) a local authority should ensure that the role of democratic governance of the community, and the expected conduct of elected members, is clear and understood by elected members and the community; and
(b) a local authority should ensure that the governance structures and processes are effective, open and transparent; and
( c) a local authority should ensure that, as far as practicable, responsibility for and processes for decision making in relation to regulatory responsibilities is separated from responsibility and processes for decision making for non regulatory responsibilities; and
In other words there is clear distinction between what our regulatory and our non regulatory functions are.
The local government act guides our interpretation of the resource management act.
The local government act demands transparency and community decision making, with regulatory and non regulatory responsibilities clearly separated.
The Resource Management Act 1991
It is important to recognise that every decision made must be related back to Part 1 and Part 2 matters of the RMA
Part One Application and Interpretation.
If it is not written in here. There can not be a rule or regulation. eg taonga used in a general sense.
Part 2 Purpose and Principles.
Purpose
Sec 5
(1) The purpose of this act is to promote the sustainable management of natural and physical resources.
(2) In this act, sustainable management means managing the use development, and protection of natural and physical resources in a way, or at a rate, which enables people and communities to provide for their social, economic and cultural well-being and for their health and safety while-
(a) sustaining the potential of natural and physical resources (excluding minerals) to meet the reasonably foreseeable needs of future generations; and
(b) safe guarding the life supporting capacity of air, water, soil and ecosystems; and
( c) avoiding, remedying, or mitigating any adverse effects of activities on the environment.
Mitigate. To make, or become less severe. Or harsh . Moderate.
Sec 6
Matters of national importance.
In this section the term “recognise” is used . My interpretation of this term when used in this section is the dictionary meaning, to be aware of, or accept, to acknowledge. To indicate recognition or awareness.
This must be interpreted thus as sec 5 Purpose, takes precedence over.
Sec 6 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 recognise and provide for the following matters of national importance.
(a) The preservation of the natural character of the coastal environment (including the coastal marine area), wetlands, lakes and rivers and their margins, and the protection of them from inappropriate subdivision , use, and development.
(b) the protection of outstanding natural features and landscapes from inappropriate subdivision , use, and development
( c) the protection of areas of significant indigenous vegetation and significant habitats of
(d) the maintenance and enhancement of public access to
(e) maoridom
(f) protection of historical heritage from inappropriate subdivision, use, and development.
(g) customary activities.
Horizons regulatory role and function is limited to the coastal marine area. Sec 12. The balance are of, in my interpretation, “of regional significance “ by virtue of the fact that sec 6 states of “national importance” thus sec 30(1)(b) prevails. The preparation of objectives and policies only. No methods including rules.
This determination is based on the wording of the Local Government Act as described above , and sec 31 of the RMA. It is a territorial authority role and function to control the effects of the use and development of Land and Biodiversity and other functions as specified in the act. This is confirmed by Councils lawyer Mr Maassem’s sec 42 A report to the Bio Diversity and Heritage Hearings Panel hearing the Proposed One Plan.
Of course the surface of water is considered Land as defined in Part 3 Land, sec 10A. And is a sec 31(1)(e) role and function, District Council.
This is consistant with sec 43AAB. Meaning of a district or regional rule. Sub sec (3) states that unless the context other wise requires, In accordance with sec 68. Regional Rules.
Sec 68 Regional Rules.
(1) A regional council may, for the purpose of-
(a) carrying out its functions under this Act ( other than thoes described in paragraphs (a) and (b) 0f section 30(1)); and
(b) achieving the objectives and policies of the plan,-
Include rules in the regional plan.
Sec 30 (1) States. Every regional council shall have the following functions for the purpose of giving effect to this Act in its region.
(a) the establishment, implementation, and review of objectives, policies, and methods to achieve integrated management of the natural and physical resources of the region.
(b) the preparation of objectives and policies in relation to any actual or potential effects of the use and development of land which are of regional significance.
Sec 62, Contents of regional policy statements must state –
(a) the significant resource management issues of the region.
(b) the resource management issues of significance to –
( c) the objectives sought to be achieved
(d) the policies for those issues and objectives
(e) the methods, (excluding rules) used or to be used
Thus as per sec 6, matters of national importance, regional council can only recognise, and as per sections 30(1)(b), 43AAB, 62, and 68. There is no legal ability to make rules.
In addition to this
Sec 65 Preparation and change of other regional plans.
(1) A regional plan may prepare a regional plan for the whole or part of its region for any function specified in section
30(1) ( c), ( ca), (e) ,(f), (fa),(fb), (g), OR (ga).
Please note Prepare a regional plan for (g) or (ga) not both.
(g) relates to bed of a water body amongst other
( ) soil conservation, water quality, quantity and infrastructure.
(ga) relates to biodiversity.
Regional council cannot write a PLAN for the maintenance and enhancement of Biodiversity.
Catchment operations are a vital function of Regional Council business.
The Regional Council is acting unlawfully with regard not only to the requirements of the Resource Management Act, but also with regard to the Local Government Act 2002.
Sec 12 (3) general law.
Sec 39 Governance Principles.
Regional Council can only make rules if it is the lead agency. As we have determined the Territorial Authorities have not devolved their sec 31 roles and functions. The control of the effects of the use and development of.
Where no responsibilities are specified in the regional policy statement for functions, sec 62 (1) ( i) spells out that the regional council shall be the lead agency. this is for ( i ) the local authority of the region responsible for in the whole or part of the region for specifying the objectives, policies, and methods for the control of the use of land- for
( i) To avoid or mitigate natural hazards or any group of hazards; and
(ii) to prevent or mitigate the adverse effects of the storage , use , disposal, or transportation of hazardous substances.
Not land and bio diversity.
Sec 31 Functions of territorial authorities under this act.
Every territorial Authority shall have the following functions for the purpose of giving effect to this act in its district.
(a) The establishment, implementation and review of objectives, policies, and methods to achieve integrated management of the effects of the use, development, or protection of land and associated natural and physical resources of the district.
(b) The control of the any actual or potential effects of the use, development, or protection of land, including for the purpose of-
( I ) natural hazards
(ii) hazardous substances
(iii) subdivision
( iv) the maintenance of indigenous biological diversity.
(c) noise
(d) surface of water
(f) any other functions
Thus as Mr Maassem has in his 42A report to the Bio Diversity and Heritage hearings, stated, it is unlawful for regional council to make rules for the control of the effects of the use and development of Land and including Bio Diversity, for the protection of Historical Heritage and any other functions deemed to be relevant to sec 31 RMA.
Thus we as councilors are in effect condoning the implementation of a unlawful Regional Plan. This is all the more of significance as sec 61 RMA (2) (b) states that regional policy statements needs to be consistent with the policy statements and plans of adjacent regional councils.
Thus if this trend in unlawful plans is continued then such plans will become a national issue.
We have a duty under sec’s 12, General Law, and 39 of the LGA. Role of Governance.
I there fore put and move the motion that the One Plan is With Drawn forthwith.
On the grounds that it is a unlawful document for the reasons given above and in that we as councilors will not be complying with the requirements of the LGA 2002 sec’s 10, 11 and 14(1)(a),(g) and (h).
Including the requirements of sec 47 LGA. Members may be required to pay the costs of proceedings in certain cases
Proceedings commenced by the Attorney-General. .
(1) (a). property includes capital.