Adaptive management under the RMA: the tension between finality and flexibility

Abstract

Adaptive management is commonly used to manage activities that require resource consents under the Resource Management Act 1991 (RMA) that have uncertain, complex and potentially significant environmental effects. This article examines the tension between the finality of decision-making under the RMA and the need for flexibility in adaptively managing the activity over the consent term. It explores the concept of adaptive management, the matters of general legal principle that it raises, and the approach to it taken in the courts. It offers generic insights that can be used to develop guidance for practitioners involved in the resource consent process, particularly for drafting environmental management plans. It concludes that the RMA provides legal mechanisms that accommodate all steps of the adaptive management process, but that, in practice, these mechanisms are not always used effectively. Consents often lack clear criteria and procedures for the modification of environmental management plans, for staged developments, and for step-back from activities that turn out to have unacceptable adverse effects. Furthermore, when adverse effects are potentially irreversible, so that the experimentation inherent in adaptive management is impossible, other management approaches are required. Notwithstanding these difficulties, adaptive management is a beneficial approach to complex projects that need ongoing adjustment and flexibility beyond the fixed requirements imposed in conventional resource consent conditions.