Editing Resource Management Act 1991 (section)

=== Interpretation ===

Under the RMA virtually all significant uses of land, air, coastal, or water-related resources are regulated by provisions of the RMA or by rules in regional or district plans or by decisions on consent applications.<ref>Fisher (1991) 'The resource management legislation of 1991: A judicial analysis of its objectives'.</ref> Plans are to achieve the purpose of the RMA which is 'sustainable management' of natural and physical resources. Most rule-making and decision-making is expressly related back to the 'Purpose and Principles' section, Part II, which contains the statutory definition of 'sustainable management' in section 5.<ref>Harris (1993). 'Sustainable management as an express purpose of environmental legislation: the New Zealand attempt'.</ref> Consequently, the interpretation that is to be placed on the definition of 'sustainable management' will be of considerable importance.

Very soon after the enactment of the RMA, Fisher (1991) wrote a substantial legal analysis of the RMA showing that the definition of 'sustainable management' was possibly ambiguous.<ref>Fisher (1991) 'The resource management legislation of 1991: A judicial analysis of its objectives', p 28.</ref> In spite of the 'biophysical bottom line' interpretation, as in [[Simon Upton]]'s third reading speech, being perhaps the most grammatically correct,<ref name="Fisher 1991 p 17">Fisher (1991) 'The resource management legislation of 1991: A judicial analysis of its objectives', p 17.</ref> Fisher noted that a 'single integrated purpose' definition could be made where providing for human well being was equal with and not subordinate to the 'bottom line' paragraphs a) to c) of s 5(2).<ref name="Fisher 1991 p 17" />

Some six years after the enactment of the RMA, several decisions on consent applications had been appealed to the [[Environment Court]] where s5 was given some degree of interpretation. By 1997, two interpretations of s5 were recognised, 'balancing ' and the 'environmental bottom line'.<ref>Williams, D.A.R. (1997). 'Environmental and resource management law in New Zealand', 2nd edition, Butterworths, Wellington.</ref> However, the only common ground among the varying interpretations was the lack of consistence in the reasoning.<ref>Smith, G. (1997). The Resource Management Act 1991 "a biophysical bottom line" vs "a more liberal regime"; a dichotomy? Canterbury Law Review 6: 499–538, p 521.</ref>

Harris (2004) states that the "broad overall judgement" is most commonly accepted interpretation of sustainable management.<ref>Harris, R. (2004). "Development v Protection, an introduction to RMA and related laws", page 57, Chapter 3A, in Harris, Rob (ed.) (2004). ''Handbook of Environmental Law'' (1st ed.). Wellington: Royal Forest and Bird Protection Society of New Zealand Inc., {{ISBN|0-9597851-8-3}}.</ref>

Skelton and Memon (2002) reviewed the introduction of [[sustainable development]] into the RMA and the evolution of case law that had led to the "broad overall judgement" interpretation. They also criticised Simon Upton and the [[Ministry for the Environment (New Zealand)|Ministry for the Environment]] for interpreting 'sustainable management' in section 5(2) of the RMA as a matter of biophysical environmental bottom lines. Skelton and Memon concluded that the "broad overall judgement" (a 'weighing', rather than a 'balancing' approach) is the interpretation of 'sustainable management' now favoured by the Environment Court.<ref>Skelton, P. and Memon, A. (2002). [http://www.rmla.org.nz/_downloads/RM%20Journal%20March%202002.pdf Adopting sustainability as an overarching environmental policy]. Resource Management Journal 10(1), March 2002, p 8-9.</ref>

The 'broad overall judgement' approach is not without critics. [[Nicola Wheen|Wheen]] (1997, 2002) argues that the broad overall judgement interpretation reduces 'sustainable management' to a balancing test with a bias towards tangible economic benefits over the intangible environmental concerns.<ref>{{cite journal 
|url= http://heinonline.org/HOL/LandingPage?collection=journals&handle=hein.journals/nzjel1&div=9&id=&page=
|title= The Resource Management Act 1991: A Greener Law for Water 
|first= Nicola R 
|last=Wheen 
|journal=New Zealand Journal of Environmental Law 
|volume=1
|pages=165–198
|year=1997 
|access-date=12 February 2012}}</ref><ref>Wheen, N. (2002) A history of New Zealand environmental law. pp 261–274, In 'Environmental histories of New Zealand', edited by Pawson, E. Brooking, T. Oxford University Press, Melbourne. p 273.</ref>

Upton et al. (2002) responded to Skelton and Memon's paper by noting that the Review Group on the draft resource management bill had quite intentionally drafted section 5(2) to emphasise biophysical constraints to move away from the overly broad and unweighted list of socio-economic and environmental objectives in the Town and Country Planning Act. They concluded;<blockquote>In our view, the plain wording of section 5 is easy enough to understand without recourse to concepts like sustainable development that are not referred to, or the insistence that an anthropogenic reading of the section must necessarily involve weighing up everything against everything else.<ref>Upton, S., Atkins, H. and Willis, G. (2002). Section 5 re-visited: a critique of Skelton and Memon's analysis, Resource Management Journal 10(3), November 2002, p 10-22. [http://www.rmla.org.nz/_downloads/RM%20Journal%20Nov_02.pdf RMLA Journal] and [http://www.arcadia.co.nz/rm/section5.htm available on Simon Upton's website]</ref></blockquote>