Peter Cresswell
Peter Cresswell

Submission To Ministry For The Environment

SUBMISSION TO
MINISTRY FOR THE ENVIRONMENT:
COMMENTS ON THE McSHANE REPORT
ON THE RESOURCE MANAGEMENT ACT

Submitted by Peter Cresswell on behalf of the
Libertarianz Party

Summary

1. We consider that the Resource Management Act empowers the worst violations of private property rights since the war, and achieves what war couldn't — the virtual nationalisation of land. Bottom lines for private property rights need to be included at the heart of this Act.

2. We consider the "Thinkpiece" prepared by Owen McShane to be a smokescreen masquerading as real criticism. It contains many valid and convincing criticisms and provocative anecdotes, but these draw no blood because they lead only to tepid, limp-wristed conclusions and recommendations. This report will unfortunately allow the minister to claim that a fundamental review of the Act is in progress. This report is not a fundamental review — it leaves untouched many of the problems associated with the Act (particularly those involved with abuses of property rights) and proposes to institute new problems (not least, a new army of consultants to administer an 'out-sourced' consents process).

3. No Property rights bottom lines

The key to the many documented abuses experienced under the Resource Management Act is the Act's complete failure to recognise property rights. The Act's intention, the Minister has told us repeatedly, is to set "bio-physical" bottom lines, beyond which one may not go, yet it fails completely to set any rights-based bottom lines protecting those whose resources are being legislatively managed under this Act! It fails completely to say: "This is what property rights consist of, beyond this you may not go." Property rights are crucial not only to protect one neighbour from another but even more important, to protect us from the overbearing actions of governments, both central and local — no rights-based bottom lines in an Act this wide-ranging means no protection. Such bottom lines existed in common law, and still exist in examples such as tortious laws of nuisance; this Act contains references to protecting the habitat of trout and salmon, but nowhere does it require protection of individuals'' property. This must be remedied.

4. The remedy to RMA-empowered abuses of private property rights is to include objectively defined property rights at the heart of the RMA, in Part II.

5. The remedy to wider abuses of private property rights is to include objectively defined property rights at the heart of a new Bill of Rights with power to strike out offending law.

6. Protection of private property through vigorous rights clauses in an empowered Bill of Rights will allow the eventual procedural striking out of the dangerous philosophical mush that has powered this Act and others. I briefly discuss the most offensive toxic philosophical mush as an appendix to this submission.

7. Effects-Based Planning

This Act has been touted as one promoting "effects- based planning" in a manner akin to the Building Act, 1991. Comparison of the two Acts is enlightening — the extent to which the Building Act has been successful in promoting performance rather than prescriptive standards is the extent to which the underlying principles of the two Acts differ. The Resource Management Act talks throughout of managing the "effects of activities" and empowers District Plans to regulate all human "activities" under such descriptions described as either "permitted," "discretionary," "non-complying," or "prohibited." (Indeed, one is surprised to find no "compulsory activities" prescribed under the act!)

When treating recovering alcoholics, the first step in recovery is the recognition of the truth — let us be as honest here. Let us no longer pretend to be managing effects and admit that this Act manages human activities; this is the first step in our remedy.

8. s338: Offences against this Act

This Act harbours a savage penalty regime — jail terms of up to two years and fines of up to $200,000 are provided for! To date this regime has been kept almost mercifully in check, although one property owner has been fined $80,000 for clearing native bush on his own property. Let us not forget that if one steps outside this act's ill-defined boundaries that huge penalties and criminal convictions are waiting to be applied. The penalty regime should be reviewed and revised downward, before it is too late.

9. "More work for consultants, please!"

This Act has already empowered an army of parasites to interpret and manage it, rather in the manner of a vampiric new priesthood. This is occasioned firstly by the Act's vagueness ("Nobody may come to the Act except through me," is the catchcry of this new priesthood of Resource Consultants. "And please leave your wallets at the door.") and secondly by the processes set up under the Act. The state, in trying to manage that which it does not and should not own, requires an army of consultants, planners and other parasitic vermin to administer that which is better administered by property owners themselves under simple common law rules. These parasites will ensure that the feeding trough supplied for them by this Act will never be taken from under their snouts — indeed to see Mr McShane call for the trough to be filled anew by allowing consultants to administer resource consent applications is to see his whiskers disappear under the surface. It is surely no surprise to see a consultant demanding more work for consultants, but I would suggest the property-owning public wish to see and pay for fewer parasites, not more!

Conclusion

10. Grant Hardin's well-known and eloquent description of "the tragedy of the commons" clearly demonstrates the efficacy of property rights in solving problems of environmental degradation, problems that arise only through non-recognition or abandonment of private property rights. The Resource Management Act completely fails to recognise private property rights, attempts instead to regulate private land as if it were commons; not only is this inefficient, but in a law regulating the entire environment of the country (i.e. all there is) this is a dangerous failure — the tragedy of the commons has never and nowhere been successfully regulated without expressions of private property rights through whatever means. The RMA fails to protect private property; it provides no bottom lines allowing the protection of human life. Human activity should be explicitly permissive, that is, anyone should be allowed to do anything unless specifically disallowed by law; free citizens do not require permission to act, but slaves do. Further, that which is disallowed should be only that which prevents others from acting in a similar manner to oneself — that is where the correct boundaries of rights exist. Such permissiveness must be explicitly included at the heart of this act, in Part II. Protection of objectively defined private property rights must be included at the heart of this Act, with progress made towards a newly empowered Bill of Rights with such a clause — that would be the ideal.

APPENDIX 1

Further comments on the difficulties associated with this Act's main underlying ideas:

11. s5: Sustainable management:

This concept — the Act's purpose — is said to contain two main components: "recognition of true environmental costs, " i.e., "internalising externalities" and "conservation of resources for future generations" i.e., inter-generational equity, and is limited to "the sustainability of the natural and physical environment." (Ministry for the Environment, 1991.) Before the imposition of the 'town-planning' racket earlier this century the former idea was more successfully undertaken under simple common law; the latter is a vicious nostrum exposed below. Claims that "sustainable management" promotes private property rights (e.g.. McShane, NBR 24 June 1998) are a vile inversion of the truth — "sustainable management" promotes central planning for private property; it promotes management by bureaucratic planning, it promotes the requirement of requesting consent for carrying out activities on one's own, individually owned, 'environments,' resources and property! Despite entreaties that "sustainable management" is different from "sustainable development" this is how this Act has been and will be interpreted — the Bruntland Report's definition of "sustainable development" included "the broad concepts of rectifying social inequities in the use of resources, and global redistribution of wealth," which Marxist poison has been incorporated into the heart of this Act in such populist notions as "social, economic and cultural well-being," and in the heavy handed manner of the Act's implementation — acceptance of the idea of "sustainable management" leads inexorably to acceptance of the toxic idea from whence it came: "sustainable development." Marxist management was neither sustainable nor successful; the only development was the environmentally, politically and economically unsustainable basket-case of Eastern Europe — this must not happen here!

12. s5(a): Inter-generational Equity:

The RMA demands we sacrifice ourselves, either to nature, to tangata whenua, to the community, or to the questionable aesthetic, moral and scientific judgements of assorted bureaucrats. In the name of "inter-generational equity" we are now enjoined to sacrifice to a never-arriving, resource-rich future! We are asked to sacrifice for our grandchildren who are asked to sacrifice in turn for their grandchildren, who ... etc., etc. We will be sacrificing like all hell for generations to come, sacrificing our way into inter-generational poverty! Resources, which are only resources if they are used, would never be touched if this principle were followed completely. Indeed, much of the infrastructure we take for granted today would be difficult, if not impossible, to build today under the aegis of this act, surely violating this very principle itself. Our grandchildren will not thank us for not building today the roads, dams, abattoirs, industrial and chemical plants, canals, sewerage systems, pulp and paper mills, railways and mines that are needed in the future. On one cold day in the future they will probably turn to us and say: "Great forests, Granddad, but how come we live in a cave. And by the way, what are those streaks of rust on that rock over there?" The concept of inter-generational equity should be removed from this Act.

13. s7(a): Kaitiakitanga:

This pseudo-concept (which McShane avoids criticising because, he says, that it is too complex) is inappropriate for an Act of this nature on at least two counts:

13.1. Despite the best attempts of contemporary apologists, it remains true that the historical record of tangata whenua environmental guardianship is nothing less than appalling — extensive deforestation and widespread species extinction took place in the first stage of tangata whenua settlement in this new land. To this day, many conservationists frequently encounter conflict between their own preservationist tendencies and Maori wishes for consumption. Calling for environmental guardianship by tangata whenua is like calling for the fat boy to look after the sweet shop.

13.2. To be unable to define specifically which tangata whenua — who specifically — is to exercise the "guardianship" this act empowers is sloppy law-making. To write into law that this ill-defined someone may exercise "guardianship" over land owned by others is tantamount to fascism. Further, to define the empowered party by reference to race is apartheid pure and simple! To identify the concept of kaitiakitanga is to damn it. This clause should be removed forthwith.

14. s7(d): Intrinsic value:

"Intrinsic value" is a nonsense; worse, when written into law it is dangerous nonsense. Value presupposes both a valuer and a purpose — to use the term value is to imply both these ideas and yet the concept of "intrinsic value" rejects both valuer and purpose, thus rejecting any connection to the real world! Removing the need for either a valuer or a purpose has the result that anything can be described as intrinsically valuable, literally anything from trees and rocks, to sand dunes and mud puddles — the law is played aces wild, and expensively and onerously administered by those now posturing as guardians of these supposed values. Good law refers to things and ideas that exist and are real; intrinsic values do not and are not.


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