Agenda of Regional Planning Committee

Meeting of the Regional Planning Committee

Date: Wednesday 1 March 2017

Time: 10.00am

Venue:

Council Chamber

Hawke's Bay Regional Council

159 Dalton Street

NAPIER

Agenda

Item Subject Page

1. Welcome/Notices/Apologies

2. Conflict of Interest Declarations

3. Confirmation of Minutes of the Regional Planning Committee held on 8 February 2017

4. Call for Items of Business Not on the Agenda 3

5. Follow-up Items from Previous Regional Planning Committee Meetings 5

Decision Items

6. Indicative milestones and approach for identifying outstanding waterbodies in HB 9

7. Plan Change for Regulation of Oil and Gas Exploration Activities 21

Information or Performance Monitoring

8. Summary of Legal Issues Associated with Placing a Moratorium on the Release in Hawke’s Bay of GMOs 41

9. Items of Business Not on the Agenda 47

Parking

There will be named parking spaces for Tangata Whenua Members in the HBRC car park – entry off Vautier Street.

Regional Planning Committee Members

Name	Represents
Karauna Brown	Ngati Hineuru Iwi Inc
Pare Hill	Te Uru Taumatua – Ngai Tuhoe
Tania Hopmans	Maungaharuru-Tangitu Trust
Nicky Kirikiri	Te Toi Kura o Waikaremoana
Roger Maaka	He Toa Takitini
Joinella Maihi-Carroll	Mana Ahuriri Incorporated
Allen Smith	Te Tira Whakaemi o Te Wairoa
Matiu Heperi Northcroft	Ngati Tuwharetoa Hapu Forum
Peter Paku	He Toa Takitini
Toro Waaka	Ngati Pahauwera Development and Tiaki Trusts
Paul Bailey	Hawkes Bay Regional Council
Rick Barker	Hawkes Bay Regional Council
Peter Beaven	Hawkes Bay Regional Council
Tom Belford	Hawkes Bay Regional Council
Alan Dick	Hawkes Bay Regional Council
Rex Graham	Hawkes Bay Regional Council
Debbie Hewitt	Hawkes Bay Regional Council
Neil Kirton	Hawkes Bay Regional Council
Mike Mohi	Hawkes Bay Regional Council - Maori Committee Chair
Fenton Wilson	Hawkes Bay Regional Council

Total number of members = 20

Quorum and Voting Entitlements Under the Current Terms of Reference

Quorum (clause (i))

The Quorum for the Regional Planning Committee is 75% of the members of the Committee

At the present time, the quorum is 15 members.

Voting Entitlement (clause (j))

Best endeavours will be made to achieve decisions on a consensus basis, or failing consensus, the agreement of 80% of the Committee members in attendance will be required. Where voting is required all members of the Committee have full speaking rights and voting entitlements.

Number of Committee members present Number required for 80% support

20 16

19 15

18 14

17 14

16 13

15 12

14 11

HAWKE’S BAY REGIONAL COUNCIL

Regional Planning Committee

Wednesday 01 March 2017

Subject: Call for Items of Business Not on the Agenda

Reason for Report

1. Standing order 9.12 states:

“A meeting may deal with an item of business that is not on the agenda where the meeting resolves to deal with that item and the Chairperson provides the following information during the public part of the meeting:

(a) the reason the item is not on the agenda; and

(b) the reason why the discussion of the item cannot be delayed until a subsequent meeting.

Items not on the agenda may be brought before the meeting through a report from either the Chief Executive or the Chairperson.

Please note that nothing in this standing order removes the requirement to meet the provisions of Part 6, LGA 2002 with regard to consultation and decision making.”

2. In addition, standing order 9.13 allows “A meeting may discuss an item that is not on the agenda only if it is a minor matter relating to the general business of the meeting and the Chairperson explains at the beginning of the public part of the meeting that the item will be discussed. However, the meeting may not make a resolution, decision or recommendation about the item, except to refer it to a subsequent meeting for further discussion.”

Recommendations

1. That Council accepts the following “Items of Business Not on the Agenda” for discussion as Item 9:

1.1. Urgent items of Business (supported by tabled CE or Chairpersons’s report)

Item Name

Reason not on Agenda

Reason discussion cannot be delayed

1.2. Minor items for discussion only

Item	Topic	Councillor / Staff
1.
2.
3.

Leeanne Hooper

GOVERNANCE & CORPORATE ADMINISTRATION MANAGER

Liz Lambert

GROUP MANAGER
EXTERNAL RELATIONS

HAWKE’S BAY REGIONAL COUNCIL

Regional Planning Committee

Wednesday 01 March 2017

Subject: Indicative milestones and approach for identifying outstanding waterbodies in HB

Reason for Report

1. In 2014, the Government revised the National Policy Statement for Freshwater Management (NPSFM) as part of a nationwide approach to manage freshwater. One of the 2014 NPSFM’s requirements is that overall quality of freshwater is maintained or improved while protecting the significant values of outstanding fresh waterbodies (OFWBs) (refer Objective A2(a)). To do this, an important first step is to identify OFWBs (if any) within the region.

2. The purpose of this report is to set out a preferred approach and associated indicative milestones and timeframes for preparation of Regional Resource Management Plan amendments relating to OFWBs.

Background

Hawke’s Bay Regional Resource Management Plan – Plan Change 5 (October 2012)

3. In October 2012, the Hawke’s Bay Regional Council notified Change 5^{^[1]} to the Regional Resource Management Plan (RRMP) to provide increased guidance and direction to decision-makers around integrated land and freshwater management.

4. To ensure the identification of OFWB occurs on a region-wide basis using a consistent framework, Policy LW1A in Change 5 requires the identification of OFWBs in the region to occur prior to the notification of further catchment based plan changes such as TANK, Esk, Porangahau and Wairoa (with the Mohaka plan change being the only exception to this).

NPSFM amendments – OFWB provisions (July 2014)

5. In 2014, the Government revised the NPSFM requiring regional councils to protect the significant values of outstanding freshwater bodies in their region. The amendments stopped short of providing a definition around what might constitute an outstanding characteristic, feature or value, meaning it is was not clear when a water body should be regarded as outstanding.

MfE Community Environment Fund (CEF) – Outstanding Freshwater Bodies (July 2015)

6. Given this ambiguity in the NPSFM about definition of OFWBs, in July 2015 HBRC formed a project group with Auckland Council and Ministry for the Environment officials to provide clarification around the intent of the NPSFM’s OFWB provisions, then attempt to develop a set of criteria to identify OFWBs (but not create a list of waterbodies per se) for the purposes of the NPSFM across New Zealand. This project was awarded $80,000 from Round 6 of MFE’s Community Environment Fund.

7. The project successfully made some conclusions around the intent of the NPSFM’s OFWB provisions, however, the project was not successful in developing a full set of criteria and thresholds that could be used for identifying OFWB across New Zealand. The CEF project has come to an end, and a final draft project report has been forwarded to the project sponsor – MFE. Attachment 1 sets out the ‘Frequently Asked Questions’ sections from that CEF Project’s draft report.

8. On 14 February 2017, the Ministry for the Environment hosted a workshop with a variety of experts from around New Zealand. The goal of the workshop was to identify next steps for the development of guidance that would assist regional councils in identifying OFWB in their regions as required in the NPSFM. The outcomes of this workshop and immediate next steps’ are expected to be finalised by May 2017.

Project Overview

9. Given this background, staff have assessed what is timely and necessary for HBRC to identify OFWBs in Hawke's Bay, as a precursor to notification of further catchment-based regional plan changes. The preferred approach is to ‘stage’ the scope of works into the following three parts (also refer to Figure 1 for simplified illustration of these component parts):

9.1. Part 1: the development of a framework for identifying outstanding freshwater bodies for those values which have previously accepted criteria and thresholds used in case law, water conservation orders or internationally accepted literature such as RAMSAR.

9.2. Part 2: applying the framework from Part 1 to identify those waterbodies which are outstanding in the Hawke’s Bay region.

9.3. Part 3 would address those newer and more contentious values (e.g. economic values) which have not been considered in case law or WCO decisions; and any gaps in the framework developed in Part One. Once attributes and ‘outstanding-ness’ thresholds for these newer value sets are developed, subsequent assessments might identify additional waterbodies which were not identified in Part 2.

Figure 1: conceptual relationship of Parts 1,2 and 3 for outstanding freshwater bodies assessment framework and identification.

10. Staff have assessed a number of approaches to developing this OFWB plan change, and the preferred approach is to proceed with Parts 1 and 2 in tandem - at least in the first instance until initial consultation stages reveal some reason to alter that approach. Staff anticipate that these two inter-related parts in combination, should lead to the identification of those waterbodies which are clearly outstanding (and virtually uncontentious).

11. Whereas staff consider that Part 3 will likely be more contentious and will involve significantly more technical evidential assessments and consultation than Parts 1 and 2. For this reason, staff’s preferred approach is to defer works on Part 3, at least until MFE’s additional guidance is produced in relation to those types of freshwater values where little or no criteria has been rigorously tested in previous WCO or case law proceedings.

12. To be clear, the preferred approach involves proceeding with the necessary evidential base, drafting and notifying Parts 1 and 2 in tandem, and progressing those two parts through the formal submission and hearings phases. Then at a later date (to be determined), work could commence on Part 3.

13. In this way, staging the project into Parts 1+2, then Part 3 will ensure no upcoming catchment-based plan changes are needlessly postponed while the first and immediate OFWB plan change is prepared. This approach will also ensure:

13.1. the relatively quick identification of OFWBs which are quite clearly outstanding

13.2. production of plan provisions for those clearly outstanding waterbodies is not hindered by more investigation and technical assessments of what constitute an ‘outstanding’ value for some freshwater values which have not been previously considered in case law or water conservation orders (WCOs).

14. Drafting of Parts 1 and 2 could be an iterative process, adaptable to feedback received during preliminary consultation with statutory bodies and key stakeholders. If substantive changes are required to the overall approach and content of Parts 1 and 2, then the Regional Planning Committee’s direction would be sought.

15. As mentioned above, Part 3 would at a later date:

15.1. tackle those newer and likely more challenging freshwater values (e.g. economic values) which have not been previously considered in case law or WCO decisions

15.2. address any gaps in the framework developed in Part 1, and

15.3. consider if any other waterbodies in Hawkes’s Bay should be further assessed as being potentially outstanding on a case by case basis.

16. Part 3 is likely to be the most contentious of the three parts. Staff anticipate that it will involve a considerable amount of work forming a robust evidential basis and associated consultation. Attempting to tackle Part 3 now would jeopardise notification timeframes for the TANK plan change A detailed set of milestones and timeframes cannot be fully developed at this time, particularly because completion of Parts 1 and 2 will almost certainly reveal where the gaps are and what still needs to addressing in Part 3’s work.

Community Engagement

17. As alluded to above, while drafting Parts 1 and 2 of the plan change, consultation would be undertaken with statutory agencies, tangata whenua through iwi authorities, and other key stakeholders. In parallel, website content and other forms of public communications would be maintained to inform wider public about the plan change project.

18. Public notification of Parts 1 and 2 would mark the commencement of the formal submission, hearing and decision-making process on amendments to the RRMP proposed in Parts 1 and 2.

19. Community engagement planning for Part 3 does not need to be undertaken immediately.

Other Matters

20. The OFWB Plan Change was identified as one of Council’s policy projects over three years ago. As a concept, it certainly pre-dated the application for a Water Conservation Order for the Ngaruroro and Clive rivers. The OFWB plan change preparatory work remains stand-alone from that WCO application process, and also the TANK and Mohaka catchment based plan change projects.

21. However, staff do anticipate that materials supporting the application for the Ngaruroro and Clive Rivers WCO application will be used, along with a range of other publications on Hawke's Bay waterbodies, to inform Part 2 of the OFWB plan change.

Indicative milestones and timeframes

22. Assuming that the approach preferred by staff is endorsed by the Committee on 1 March (and subsequently Council), then indicative milestones and timelines for next steps is set out in Table 1.

23. The timeframes beyond public notification are very indicative, as the submissions and the hearing timeframes will be dependent on the number and complexity of submissions received.

Table 1: Indicative milestones, tasks and timeframes for Parts 1 and 2 of OFWB plan change

Part One and Part Two
Milestone / Task	Indicative timeframe
Part 1 Plan change preparation/research and investigations/consultation on overall OFWB assessment framework	Jan – July 2017
Part 2 research and assessment of HB waterbodies’ fit within Part 1 framework	June – Nov 2017
Parts 1 & 2 plan change drafting and consultation Public notification	Sept – Nov 2017
Public notification (Parts 1 and 2)	Dec 2017
Submissions close	Early 2018
Invitation for further submissions	Early 2018
Hearings commence	Mid 2018
Decisions released	Mid 2018

Decision Making Process

24. Council is required to make every decision in accordance with the requirements of the Local Government Act 2002 (the Act). Staff have assessed the requirements in relation to this item and have concluded:

24.1. The decision does not significantly alter the service provision or affect a strategic asset.

24.2. The use of the special consultative procedure is not prescribed by legislation.

24.3. The decision does not fall within the definition of Council’s policy on significance.

24.4. The persons affected by this decision all persons with an interest in the region’s management of natural and physical resources under the RMA

24.5. Staff have considered a number of different approaches to how this plan change might be developed, but the preference is for a staged approach developing ‘Part 1’ and ‘Part 2’ in tandem for public notification, then ‘Part 3’ to follow at a later date.

24.6. The decision is not inconsistent with an existing policy or plan.

24.7. Given the nature and significance of the issue to be considered and decided, and also the persons likely to be affected by, or have an interest in the decisions made, Council can exercise its discretion and make a decision without consulting directly with the community or others having an interest in the decision. Once a plan change is publicly notified, any person may make a submission on that plan change.

Recommendations

1. That the Regional Planning Committee receives and takes note of the “Indicative milestones and approach for identifying outstanding waterbodies in HB” report.

2. The Regional Planning Committee recommends that Council:

2.2. Supports in-principle the preferred approach to preparation of plan changes to assess and identify outstanding freshwater bodies in Hawke’s Bay, being:

2.2.1. Preparation of an initial plan change that would outline a framework for assessment and identification of OFWBs (i.e. ‘Part 1’ referenced in the report).

2.2.2. In tandem with Part 1 of the plan change, identify a list of outstanding freshwater bodies in HB that fit clearly, and relatively uncontentiously, within Part 1’s framework (i.e. ‘Part 2’ referenced in the report).

2.2.3. Defer further works (i.e. ‘Part 3’ referenced in the report) on a stand-alone region-wide plan change and supporting evidentiary research and investigations into new potential outstanding-ness’ assessment criteria and any resulting list identifying additional outstanding freshwater bodies in HB.

Authored by:

Belinda Harper

Senior Planner

Gavin Ide

Manager, Strategy and Policy

Approved by:

James Palmer

Group Manager Strategic Development

Attachment/s

⇩1

Extract of Draft 'Frequently Asked Questions' from the OFWB Community Environment Fund project report

HAWKE’S BAY REGIONAL COUNCIL

Regional Planning Committee

Wednesday 01 March 2017

Subject: Plan Change for Regulation of Oil and Gas Exploration Activities

Reason for Report

1. This report attaches preliminary draft legal advice on the matter of whether prohibiting oil and gas activities in Hawke's Bay would be justifiable under the Resource Management Act (RMA) (a full copy is attached at Attachment 1).

2. It also sets out an indicative work programme for progressing a plan change to prohibit oil and gas exploration activities (subject to discussion with a preferred contractor soon to be engaged to deliver the work).

Background

3. At the RPC meeting on 8 February 2017, a resolution was passed (RPC5/17 refers) noting that preliminary legal advice, and a fuller staff report on proposed project milestones would be presented to the RPC meeting on 1 March 2017.

Preliminary legal advice

4. At the RPC meeting of 23 November, Council directed staff to seek an opinion from an expert RMA legal counsel on the extent to which such a prohibition would be justifiable in law (RPC59/16 Resolution 5 refers).

5. Council staff had considered several potentially suitable options before engaging Matt Conway – a Partner at Wellington-based solicitors Simpson Grierson. Mr Conway has provided legal advice to HBRC on a range of RMA matters in the past, and he is familiar with the existing planning framework of Council. Mr Conway and his colleague Senior Associate Katherine Viskovic have been in close contact with authors of this report to ensure the advice is tightly focussed and relevant to the issues for consideration at this time.

6. Following on from the resolution of RPC in November 2016, staff posed the following questions for legal clarification:

a) To what extent does the RMA empower the Council to progress a plan change that prohibits oil and gas activities in, and over, surface water bodies, productive aquifers, and the coastal marine area?

b) What is the likely evidentiary threshold that the Council would have to meet in order for such a prohibition to be robust and withstand challenge?

c) What practical steps in relation to the drafting of provisions (including the relationship between the plan change and the existing planning framework) should the Council take in relation to an intended plan change seeking to prohibit certain activities from occurring in parts of the region?

7. Mr Conway’s draft preliminary legal advice on these questions is attached in full to this report (Attachment 1). The draft preliminary legal advice indicates that Council is empowered under the RMA to proceed with a plan change provided that it has clear, robust justifications and evidence to do so. We expect to receive finalised advice in the form of a substantive opinion in the coming days.

Proposed indicative work programme

8. As previously set out in the paper provided to RPC on 8 February, an indicative set of milestones was tabled for consideration. Since then, staff have built on these milestones and have constructed a draft work programme. Like any plan change project, preparation should proceed in a staged manner. This will give the Council the ability to assess the strength of its justifications for the plan change at each stage of the process, before proceeding to the next. It is noted that this is in keeping with earlier advice from staff that Council’s retains an ability to halt further drafting or terminate the project if substantive issues arise through the pre-notification consultation and the section 32 analysis.

9. Staff have initiated the process of engaging a contractor, and given the complex nature and scope of the work have asked three contractors (to date) to submit draft offers of service. These three contractors were identified because of their experience and expertise in the areas of plan change work and Resource Management Act (RMA) in general.

10. At the time of writing, staff expect to receive all three offers by 23 February. Following this, staff will assess each of the proposals in accordance with Council's procurement guidelines and aim to make a final decision by 1 March. This approach is consistent with Council’s policy of procurement for professional services. It is expected that the contractor will commence work outlined in the table below immediately, with oversight and guidance as necessary from planning staff.

11. It is noted that although the major tasks or milestones required for completion will not change, the work is likely to involve some further enhancement following discussions with the successful contractor.

PROPOSED WORK PROGRAMME
Indicative Task	Timeframe for work	Detail
PHASE ONE: PRELIMINARY WORK
Questions required for legal advice finalised	22 Jan- 2 Feb	Completed
Lawyer engaged	2 Feb – 10 Feb	Completed
Distil scope of work and approach potential consultants	22 Jan- 22 Feb	Completed
Staff to consider offers of service from consultants and to make decision	22 Feb- 1 March	In progress
Interim outline of project milestones for preparation	8 Feb	Completed : RPC paper
Preliminary legal advice received	21 Feb	Completed NB: Advice is preliminary only
Completed legal advice	6 March	In progress
In conjunction with Staff, successful Consultant will finalise proposed project plan (method for carrying out research, engagement and communications plan) for Phase 2 and Phase 3 (outlined below). This will be provided to RPC, along with completed legal advice (meeting date TBC)	6 March	In progress

PHASE 2: SUBSTANTIVE WORK
Consultant to commence Plan change options/scoping ,and preparation	March- August	This to include consideration of other oil and gas regional planning frameworks in the country. May also require input from HBRC science team re: technical aspects (location of surface water bodies, aquifer recharge zones etc.). Will also include consideration of legal advice received.
Consultation, stakeholder engagement and communications	March- September	Preparation of public discussion document (or similar) Press releases, letters to affected persons, social media and website info, consultation, meetings etc.
Draft plan change, Section 32 analysis and evaluation report for RPC’s consideration	November 2017
PHASE 3: PUBLIC NOTIFICATION
Public notification	Late 2017
Submissions close	Early 2018
Summary of submissions	Early 2018
Notification for further submissions	Early 2018
Further submissions close	Early 2018
Hearings commence	Mid 2018
Decisions released on any submissions	Mid 2018
Appeals phase (if any appeals made)	Late 2018

Minor matters

12. As discussed at the RPC meeting of 8 February, staff intend this plan change project would incorporate those several small technical amendments to the Regional Resource Management Plan that were suggested in two earlier reports commissioned by Council on this matter (the October 2015 van Voorthuysen Environmental Limited report, and the 2016 report by Environmental Management Services Limited). Both of those reports were presented to the RPC meeting in June 2016.

13. Briefly, those small technical amendments recommended in those reports relate to:

13.1. clarifying the process of obtaining a bore permit: This is currently a controlled activity, and there is no differentiation made in the RRMP’s rules between drilling for water or drilling for oil; and

13.2. the inclusion of two further ‘Matters for Control’ in RRMP Rules 1 & 2 (those matters being “type of drilling fluid” and “casing”.

Financial and Resource Implications

14. If Council agrees to proceed with the plan change there will be direct implications on current budget finances or resources. These have been noted at length in previous papers to Council and/or RPC. There is approximately $150,000 set aside in the budget for carrying out such a plan change. This will fund legal expenses required to obtain legal advice, as well as increased resource to carry out the work i.e. the engagement of a planning contractor.

15. As outlined above, staff will shortly begin assessing the offers of service received from potential contractors. This will include an assessment of the total cost required to carry out the work. While staff will work closely with the contractor to minimise costs, but it may be necessary for Council to allocate further funding for this work for the latter stages (hearings, decision-making and potential appeal phases). This is due to the scale, complexity and nature of the issues associated with this plan change as the project evolves over the remainder of 2017.

Decision Making Process

16. Council is required to make every decision in accordance with the requirements of the Local Government Act 2002 (the Act). Staff have assessed the requirements in relation to this item and have concluded:

16.1. The decision does not significantly alter the service provision or affect a strategic asset.

16.2. The use of the special consultative procedure is not prescribed by legislation.

16.3. The decision does not fall within the definition of Council’s policy on significance; however should a Plan Change be progressed, that process will include appropriate consultation in line with Council’s policy and RMA requirements.

16.4. The persons affected by this decision are those persons with an interest in sustainable management of the region’s natural and physical resources.

16.5. The decision is not inconsistent with an existing policy or plan.

16.6. Given the nature and significance of the issue to be considered and decided, and the persons likely to be affected by, or have an interest in the decisions made, Council can exercise its discretion and make a decision without consulting directly with the community or others having an interest in the decision. Once a plan change is publicly notified, any person may make a submission on that plan change

Recommendations

1. That the Regional Planning Committee receives and considers the “Plan Change for Regulation of Oil and Gas Exploration Activities” report.

2. The Regional Planning Committee recommends that Council:

2.1. Agrees that the decisions to be made are not significant under the criteria contained in Council’s adopted Significance and Engagement Policy, and that Council can exercise its discretion under Sections 79(1)(a) and 82(3) of the Local Government Act 2002 and make decisions on this issue without conferring directly with the community and persons likely to be affected by or to have an interest in the decision;

2.2. Notes the preliminary draft legal advice received from Simpson Grierson ;

2.3. Notes that in particular this preliminary draft advice indicates that Council is empowered under the Resource Management Act to proceed with a plan change provided that it has clear, robust justifications and evidence to do so;

2.4. Agrees in principle to the indicative work programme outlined in the table above, subject to enhancements to be finalised between Staff and the contractor engaged to prepare a plan change ready for public notification; and

2.5. Agrees to the amendment of the RRMP to incorporate minor technical matters recommended by the van Voorthysen Environmental Limited and the Environmental Management Services Limited reports into the draft plan change.

Authored by:

Rina Douglas

Senior Planner

Shane Lambert

Senior Planner

Gavin Ide

Manager, Strategy and Policy

Approved by:

James Palmer

Group Manager Strategic Development

Attachment/s

⇩1

Legal Opinion:Ability to prohibit oil and gas activities in a regional plan

HAWKE’S BAY REGIONAL COUNCIL

Regional Planning Committee

Wednesday 01 March 2017

Subject: Summary of Legal Issues Associated with Placing a Moratorium on the Release in Hawke’s Bay of GMOs

Reason for Report

1. This report has been prepared in response to the following resolution (Ref RC7/16) which was passed at the Council meeting on 14 December 2016:

“3. Recommends the matter is referred to the Regional Planning Committee for their consideration, and that staff prepare a summary paper for the next Regional Planning Committee meeting focused on legal issues associated with placing a moratorium on the release in Hawke's Bay of GMOs in line with that put in place by Hastings District Council.”

2. To assist in informing the Regional Planning Committee’s discussion, this paper recaps how this Resolution arose; what is a ‘moratorium’; what is a ‘genetically modified organism’ (GMO); and what Hastings District Council has proposed in its district plan.

3. Lastly, this paper presents preliminary legal advice received in relation to the proposition of a regional plan change prohibiting the release of GMOs in the region. A full copy of the preliminary advice is set out in Attachment 1.

4. For the purposes of this paper, the authors have deliberately not evaluated the merits for or against the use of GMOs in Hawke's Bay.

Background

5. At the Council meeting on 14 December 2016, Councillor Paul Bailey presented a Notice of Motion titled ‘Moratorium on release of GMOs’. The Notice of Motion read:

“There has been an ongoing call for a moratorium on GMOs from the community. For example, from Pure Hawke's Bay.

That it may be cost effective to run a similar process as that for the proposed moratorium on Oil and Gas exploration in parallel with that process.

That any moratorium would reflect the Hastings District Plan.

Councillor Bailey seeks Council’s resolving that:

Staff prepare a paper for the next Regional Planning Committee meeting outlining steps need[ed] to place a moratorium on the release in Hawke's Bay of GMOs in line with that put in place by Hastings District Council.”

Following discussion on the Notice of Motion at that 14 December meeting, councillors voted six for, two against the resolution cited in paragraph 1 above.

At the meeting, HBRC’s Group Manager Strategic Development (Mr James Palmer) will present additional context on the broader legislative framework for regulation of GMOs in New Zealand.

What is a Genetically Modified Organism?

6. The Hazardous Substances and New Organisms Act 1996 defines a GMO as meaning:

“any organism in which any of the genes or other genetic material:

(a) have been modified by in vitro techniques; or

(b) are inherited or otherwise derived, through any number of replications, from any genes or other genetic material which has been modified by in vitro techniques.”

7. The proposed Hastings District Plan contains a similar meaning.

What is a ‘moratorium’?

8. The Notice of Motion and subsequent Council resolution refers to placing a “moratorium” on release of GMOs in the region. So what is a moratorium? Advice previously given to the Committee in relation to regulation of oil and gas exploration activities is also relevant here.

9. The Resource Management Act (RMA) has no statutory provisions that enable the Council to impose a moratorium or temporary prohibition on any activity regulated under the Act merely by passing a resolution. However, the RMA does enable certain activities to be designated as prohibited activities by way of a change to the Regional Resource Management Plan (RRMP) and such prohibitions can, and indeed must, be periodically reviewed.

10. Such a plan change requires that Council first consider the options and alternatives and their respective benefits and costs for achieving the outcome sought (i.e. a section 32 evaluation). The Council must consult a number of statutory agencies, iwi authorities and any other persons it considers appropriate regarding any plan change prior to public notification. Depending on what emerges from that consultation and s32 evaluation, the Council may then notify a proposed change for formal submissions and hearings. To justify such a prohibition within the RRMP, the Council will at least need to demonstrate that the prohibition is lawfully within the Council’s duties and roles; it is necessary to manage the potential adverse effects on the environment; and that the prohibition is consistent with the purpose of the RMA.

11. So in this context, a ‘moratorium’ is a plan change introducing rules into the RRMP that would prohibit the release of GMOs.

What has Hastings District Council put in place?

12. In September 2015, Hastings District Council issued decisions on its proposed district plan. As a consequence of some of those decisions, rules in the proposed plan were amended to prohibit:

12.1. “The outdoor release of genetically modified organisms” [Rule HS6]

12.2. “The outdoor field testing of genetically modified organisms.” [Rule HS7]

13. However, contrary to popular belief, that prohibition is not in full force because HDC’s decision has been appealed to the Environment Court. Both HDC and the appellant have agreed to ‘park’ any further mediation and negotiation of the appeal until the outcome of proceedings of higher court appeals are determined in other parts of NZ (i.e. specifically Northland and Auckland).

14. HDC’s decisions were accompanied with the following explanation (refer amended proposed District Plan Chapter 29.1.1):

14.1. “…This section of the District Plan also addresses the issue of the release of genetically modified organisms (GMOs) within the District. The outdoor use of GMOs can have adverse effects on people, communities, tangata whenua, social and cultural wellbeing, the environment and the economy. The introduction of these provisions to the Plan reflects the level of control desired by the community to manage the effects of GMO land use activities. Through community input into the preparation of the Plan, the adoption of provisions to do with the management of GMOs was identified as important to the Districts food producers. As a group they have highlighted concerns regarding the Districts international reputation and marketability associated with GMOs. To counter this approach, during the preparation of this Plan no evidence has been provided by GMO proponents that there will be a GMO market ready within the next ten years (life of this plan). Council’s decision to introduce these provisions around the land use management of GMOs is therefore based on a preferred level of environmental risk management determined by the Hastings community. A precautionary approach to the management of GMOs has therefore been adopted. The application of a precautionary approach will mean that Release or Field Testing of any GMO even where the prior approval has been obtained from the Environmental Protection Agency (EPA) is prohibited, so as to avoid the risks of potential adverse effects. This framework does not preclude laboratory testing from being carried out and other technologies from being investigated that may improve production. It is recognised that the community’s attitude may change and/or there may be future GMO development opportunities that could result in a net benefit to the District and where the effects can be satisfactorily managed. For this reason a review policy has been built into these provisions to ensure regular consideration of new information on the benefits and/or adverse effects of a GMO activity which might become available.

14.2. The use of hazardous substances and genetically modified organisms in New Zealand is primarily managed by the Hazardous Substances and New Organisms Act 1996 (HSNO). The purpose of the HSNO Act is to ‘protect the environment, and the health and safety of people and communities by preventing or managing the adverse effects of hazardous substances and new organisms’. The HSNO Act is administered by the Ministry for the Environment and implemented by the Environmental Protection Authority. The new Ministry of Business, Innovation and Employment is also involved with enforcement in terms of hazardous substances…”

Key legal questions arising from Council’s resolution

15. Given the basis of Council’s resolution in December and what was outlined in paragraphs 8 to 11 above, preliminary legal advice has been sought from Matthew Conway (a Partner with Wellington-based solicitors Simpson Grierson) in relation to:

15.1. Whether any matters arising from the proposal to prohibit oil and gas exploration activities [refer separate agenda item] would not apply to the GMO issue.

15.2. Whether there any factors in the appeal judgements against Northland Regional Council’s proposed Regional Policy Statement that might set it apart from HBRC’s proposition for a potential regional plan change prohibiting release of GMOs throughout the region.

15.3. Would a regional rule (or rules) prohibiting GMOs in all or parts of the region be lawfully within the powers and functions of a regional council under the RMA.

16. Mr Conway’s preliminary legal advice is set out in Attachment 1 to this report.

Financial and resourcing implications

17. The Council’s overall work programme and project priorities for RMA plan changes is set out in the 2015-25 Long Term Plan and the 2016-17 Annual Plan. There is currently no provision (i.e. no allocated staff time, nor budget for external costs) for research, drafting or proposal of a plan change to regulate GMOs in the region.

18. Notwithstanding legal issues arising on this matter, staff anticipate prioritising a plan change at this time for regulation of GMOs would pose significant financial and resource implications for a number of those other plan change projects already committed through the long term plan and/or annual plan process(es).

19. Staff note that Council has not proposed resourcing and financing a regional plan change for GMOs in any previous long-term plans and annual plans, despite a number of submissions asking for it.

Other potential complexities and uncertainties

A plan change in parallel with the oil and gas plan change

20. Councillor Bailey’s original notice of motion suggested that it may be cost-effective for a GMO prohibition plan change to be run in parallel with the oil and gas regulation plan change (‘O&GPC’) currently under development.

21. Committee members will recall that Council has agreed to prepare the O&GPC to prohibit activities in aquifers, aquifer recharge zones and surface water bodies. Part of the rationale for that proposition was that it should be reasonably uncontentious relative to a region-wide prohibition. Staff do not hold the view that a region-wide prohibition on GMO-related activities will be similarly uncontentious. Given challenges experienced in other parts of NZ, staff anticipate a region-wide GMO prohibition proposal will almost certainly meet a stronger degree of interest and opposition – be it jurisdictional in a legal sense and/or merit-based challenges as to the plan change’s scope, purpose and necessity for achieving RMA’s purpose.

22. Any cost-efficiencies of running a GMO plan change alongside post-notification phases of the O&GPC are likely to be relatively minor if/when compared to costs incurred for addressing substance (not processing) of both plan changes.

Unsettled court proceedings

23. To the best of the writer’s knowledge, there are currently three different court proceedings underway regarding the regulation of GMOs in some parts of NZ:

23.1. Northland – NZ Federated Farmers are seeking leave to take an appeal to the Supreme Court against earlier findings of the Environment Court and High Court in relation to provisions included in the proposed Northland Regional Policy Statement.

23.2. Hastings – (as outlined above in paragraphs 12 to 14).

23.3. Auckland – appeals to the High Court against some decisions made by the Auckland Council regarding provisions included in the proposed Auckland Unitary Plan.

24. The key message from this is that the case law on RMA planning for GMOs is still unsettled. Nothing definitive can yet be taken from any of the previous council or court decisions until the current court proceedings are resolved.

Resource Management Act amendments

25. There is a possibility that the current RMA reforms (i.e. Resource Management Legislation Amendment Bill) might impact on local government's role in the regulation of GMOs, so once the shape of those reforms is better known, there may be a need to reassess whether even a regional plan change is open to the Council and needed.

Decision-making process

26. Staff have assessed the requirements of the Local Government Act 2002 in relation to this item and have concluded that, as this report is for information only, the decision-making provisions do not apply.

27. Notwithstanding the key legal matters and preliminary advice outlined in this report, if the Committee was inclined to make any decision in respect of this matter, then the Committee would need apply the LGA’s decision-making provisions and the Council’s criteria for decision-making significance.

Recommendation

That the Regional Planning Committee receives the “Summary of legal issues associated with placing a moratorium on the release in Hawke’s Bay of GMOs” report.

Authored by:

Gavin Ide

Manager, Strategy and Policy

Approved by:

James Palmer

Group Manager Strategic Development

Attachment/s

⇩1

Preliminary Advice from Simpson Grierson

[1] The majority of Change 5 is now beyond challenge and can be treated as operative.