The court with “the potential to affect New Zealanders’ day-to-day quality of life more than any other court in the judicial system” is on the ropes. The RMLA speaks out

Yesterday, thanks to footwork from the Resource Management Law Association, the rumour of recent weeks was confirmed.

Cabinet papers did exist, it appeared, confirming that Ministerial consideration was being given to doing away with the Environment Court.

Quickly, Justice Minister Judith Collins issued a denial to RNZ, designed to imply perhaps that the RMLA had gone off half-cocked, and got it all wrong. They hadn’t:

“Justice Minister Judith Collins has been considering making the court a division of the District Court, according to papers obtained under the Official Information Act. ... The idea is outlined in a February Cabinet committee paper from Environment Minister Amy Adams on separate work rewriting the Resource Management Act. ... In her Cabinet paper, Adams further reported she was satisfied the project for the Environment Court complemented her own programme ...”

In short: an Environment Minister quite comfortable, satisfied even, that the Environment Court would effectively cease to exist. But so anyway, moving on: her colleague Judith Collins clarified that in fact, “I don't intend to make the Environment Court a division of the District Court”. Which is the right conclusion, as a 12-page critique now published by the RMLA shows, which is worth reading with some care in its entirety.

The RMLA sums up RM reforms that have been done, or are being done, to date. And secondly, it addresses (with a nicely sharpened pencil) the rumour of the Court becoming part of the District Court, “although details are sparse given the lack of consultation, thus far, with the legal or planning professions”.

And altogether, it concludes that what we are seeing here amounts to “the most wide-ranging and significant reform of the Environment Court since the establishment of the Appeal Board” under the previous Town and Country Planning Act; that the Court’s function is gradually being displaced; and that it’s a terrible idea.

Martin Williams, one of the paper's authors, said that Mrs Collins had offered a little more clarity about what is not intended, but we are still lacking clarity about exactly what is.

The RMLA are resource management law experts (lawyers, planners, engineers, participants in local government), who practise or appear in the Environment Court and use the Resource Management Act. They know how it works; and the story is different from the one Mrs Adams is telling: a court dealing competently with a minute fraction of total matters - matters that are very important, very hard, weighing “investments in developments worth several hundred million dollars” alongside environmental stewardship, “with an eye to the interests of future generations, and against a background of sometimes very strong concern by those communities who will feel the effects most directly”.

The Court says not merely ‘yes’ or ‘no’ to development. It figures out the conditions on which development and community planning should proceed; quite often, it assists parties in doing so for themselves, through mediated hearings and case management.

“A very small fraction of 1% of Council decisions (on planning instruments and resource consents)” will require the Court to have a hearing, according to the RMLA, and they also confirm what NGO users of the Court already knew:

“The Court’s sophisticated systems for case management and dispute resolution has frequently resulted in the settlement of appeals or the significant narrowing of issues where the parties had reached intractable positions at the end of the Council hearing process.”

...

“Only about 1.5% of Council decisions are appealed to the Environment Court. Of those, only around 15% actually require hearing time. The rest settle through application of case management, alternative dispute resolution and related techniques as employed by the Environment Court very successfully, and increasingly so.”

It works.

What is at stake here is the "effective loss of a highly valued specialist Court institution that is the ‘envy’ of many other countries".

Not to mention the fact that we're going to need it, to help figure out the dumb law about to be made.

“The legacy of the specialist and distinctive role of the Environment Court to date is that the Environment Court bench has developed a pedigree of expertise in evaluating expert opinion, predictive decision making, and as to the requirements of sustainable management generally, over now two decades since the RMA came into force. Indeed, the Court has spawned a substantial body of case law; establishing invaluable guidance over a complex statute that is routinely applied by Councils in making decisions and developing planning instruments. With significant reform to Part 2 of RMA clearly signalled, the importance of the Court’s function in providing such guidance would be renewed.”

Along with other independent decision-makers (the EPA, in the case of Marlborough’s salmon farms), the Court has been under not-so-subtle political pressure.

The Prime Minister opening Bathurst Resources’ new Wellington office; comments, in breach of the sub judice rule, by Economic Development Minister Stephen Joyce; the Minister of Conservation, ostentatiously granting access to Bathurst two weeks before appeal decisions were due.

The RMLA describes how, in 2009, the EPA displaced the Environment Court function for all major infrastructure and large scale development projects; followed by Acts and Bills removing or limiting Environment Court appeal rights and altering appeal processes; including a change now proposed from ‘appeals de novo’ to ‘by way of rehearing’.

What that means in practice is that, in the fraction of the 1% of cases with which it deals, the Court wouldn’t any longer hear its own evidence. And what that means is that, at lower levels, things have to be done in a different way all the time.

Councils will have to structure their hearings to test evidence, take down transcripts so that if there is an appeal it can be supplied to the Court, formalise lay processes. It means cumbersome, probably unworkable processes, barriers to ordinary people coming along to have their say, $ for lawyers - the very thing Amy Adams told us she has in her sights (in a folksy wee story about how her lawyer friends love the RMA, but ordinary people don't).

It'll also mean more emphasis on 'collaborative processes' - which everyone who has been part of them knows simply shifts the burden of the cost, considerable cost, on those much less able to bear it - that, or fail to participate meaningfully at all.

“We are not aware of any attempt to quantify these costs (saved or increased), and the ‘business’ case for the reforms in this area seems to be lacking,” says the RMLA. But it does seem that business is quantifying them, and finding that the equation doesn't quite add up:

“For example, submitting in support of retention of full “merits based” appeals to the Environment Court for policy statements and plans include Ports of Auckland Limited, Westfield, Winstone Aggregates, Auckland International Airport and Progressive Enterprises. From this one clear message should be apparent; that the Environment Court is not ‘against’ business, nor is business against the Environment Court. Any such view is a myth.”

But this is not about the policy, and doing good policy. It is about power, and among the shifts in the balance of power -

• altering the ability of users to participate,
• limiting “the right of recourse to the Environment Court as a check on the exercise of the broad discretions conferred upon decision-makers under RMA”,
• giving the Executive branch of government sweeping powers, including to the point of overriding the will of Parliament, by way of regulation- and decision-making that need not comply with the RMA,

- is a shift in the balance of power towards ACT, and the Member for Epsom.

This is about item 4 in the National-ACT agreement on confidence and supply, and the 1% party, at the tail-end of its life - unpersuaded by any evidence on anything - but still wagging the political dog.