The severe weather events experienced in New Zealand’s North Island at the start of 2023 have caused widespread damage to land, homes, business, infrastructure, waterways and roading. In response, the Government introduced the Severe Weather Emergency Legislation Act 2023 and, more recently, the Severe Weather Emergency Recovery Legislation Bill. The broad aim is to assist the recovery efforts by local authorities and communities in the areas most hard hit by the cyclone and flooding events.

The Severe Weather Emergency Legislation Act 2023

The Severe Weather Emergency Legislation Act 2023 (‘Act’) was introduced to Parliament on 14 March 2023. The whistle stop process saw the Act go through Select Committee in a mere 6 days to receive royal assent on 20 March 2023 and come into force the following day.

The Act works in a similar way to the legislation passed in response to the Christchurch and Kaikōura earthquakes, and is intended to assist councils and landowners in the Northland, Auckland, Waikato, and Bay of Plenty regions affected by Cyclones Hale and Gabrielle and the heavy rainfall that occurred in early 2023. The Act amends the Resource Management Act 1991 (‘RMA’) to ease the administrative burdens of applying for consents to undertake emergency, remedial and preventative works to quickly address damage arising out of these specified storm events. Key amendments include:

• Extending the powers available to network utility operators under the RMA to also empower rural landowners/occupiers, to carry out preventive or remedial measures to prevent loss of life, injury or damage to land or property, without resource consent, but with modifications to reduce the requirement to show immediate need¹;
• Administrative deadlines for public, council, and network/lifeline utility works have been generously extended (from 7 days to 100 working days for advising, and then from 20-60² working days to 160 working days for the application for retrospective consent itself) where emergency works for public works/council works/network utilities are undertaken that would normally require resource consent³; and
• Councils’ ability to enter private property to carry out emergency works has been amended to make the requirements less onerous⁴.

The above provisions will be repealed on 1 April 2024 (preventative and remedial measures) and 1 October 2024 (deadlines and council emergency works).

The Severe Weather Emergency Recovery Legislation Bill

The Severe Weather Emergency Recovery Legislation Bill (‘Bill’) is an additional response to the severe weather events experienced in the upper North Island and Cyclones Hale and Gabrielle (the word ‘Recovery’ being added to the name of this Bill, not to be confused with the similarly named Act).

The Bill was introduced on March 27 2023 and involved an extremely short consultation period of less than 24 hours for public submissions. This timeframe attracted some criticism, including from the Law Society. The Bill is now waiting for Royal Assent from the Governor General after receiving 217 submissions during the short submission period, and after having its Second and Third reading on 6 April 2023.

Unlike the Act which focuses on short term recovery, the Bill goes further to aid the longer term recovery by enabling certain legislative constraints to be circumvented by Order in Council.

Clause 7 of the Bill allows the Government to make Orders in Council to provide exemptions from, modify, or extend the certain legislative provisions listed in Schedule 2⁵. Orders would be made by the Governor-General on the recommendation of the “relevant Minister” which, in the case of the RMA, would be the Minister for the Environment. The concept of amending primary legislation through executive order is known as a ‘Henry VIII clause’ and raises constitutional issues in terms of the limits of executive power. Controversially, clause 19 of the Bill also allows even more legislation to be added to the already very extensive list set out in Schedule 2 that can be amended by Order in Council.

The Act will be repealed by 31 March 2028. The Orders that are still in force at that time will be revoked on the same day, but the power to make new Orders will be repealed earlier, by 31 March 2026.

There are some (albeit minimal) restrictions on making Orders, including that the Minister needs to be satisfied that the order is “necessary or desirable” for one or more purposes of the Bill⁶. The purpose of the Bill is extremely broad and includes, for example, assisting economic recovery and planning processes as they relate to people and the natural and built environment, and relaxing legislative requirements following severe weather events. Unusually, the Bill requires the Government to consult with the leaders of the other political parties regarding the Orders (and be ‘satisfied’ that there is ‘unanimous or near unanimous support’) as a form of surety against the creation of overreaching Orders⁷. This would, in effect, substitute a requirement for political support for the more traditional checks and balances that such powers would normally be subject to. Notably, ACT has already strongly opposed the Bill, with its spokesperson stating that the Bill is “an example of governance at its worst. Immensely powerful legislation being passed with minimal scrutiny, and a Government that ignores valid constitutional concerns.”

Overall, the power the Bill confers on Government Ministers is quite extraordinary and shows the lengths that the Government is prepared to go to in order to respond to natural disasters. We will be watching closely to see just how widely the Government invokes these powers.

1. Subject to the provisions set out in sections 331A- 331E of the RMA.↩
2. 20 working days for 330A and 60 working days for 330B.↩
3. See new RMA sections 330AA and 330C. ↩
4. See new section 330AAA.↩
5. As specified in Schedule 2 of the Bill.↩
6. Clause 8(1)(a)(i).↩
7. See clauses 8(1)(c) and 19(2)(b)).↩