Problems with one-step RMA decision-making
The general scheme of the Resource Management Act 1991 (RMA) is that first instance hearings of resource consent applications and Council planning instruments are presided over by councillors or independent hearings commissioners, whose decisions can be appealed to the specialist Environment Court on the merits. The RMA has, however, always provided an alternative “one-step” Board of Inquiry process for “proposals of national significance”. Until relatively recently, that process could only be instigated by the Minister for the Environment “calling in” the matter, which was very rare.
The RMA was overhauled in 2005 to enable applicants for significant proposals to request that their matters be dealt with through the alternative one-step process. The one-step model has since become increasingly popular, and the “proposals of national significance” provisions have been extended and strengthened. The model has now been applied, through special legislation, to politically important planning instruments such as the Proposed Auckland Unitary Plan, Canterbury Regional Policy Statement and Plans, and now the Christchurch Proposed District Plan. Many nationally important projects and planning instruments are now being heard and finally determined in a one-step process, presided over by a Board of Inquiry or Independent Hearings Panel (hearings bodies) appointed on a case-by-case basis.
Three questions arise:
- Is this approach consistent with the principles of judicial independence and permanence?
- Are these processes sufficiently accessible to members of the public? Does that matter?
- What are the benefits of this process?
Judicial independence and permanence
Making binding determinations on applications for, and submissions for and against, proposals of national significance are clearly “judicial powers”. It is central to New Zealand’s constitution that the powers of Parliament, the executive and the courts (judicial power) are separated, to ensure that the same branch does not both execute policy and determine its legality.
The principle of separation of powers is not absolute. The “executive” often exercises adjudicative functions, particularly where that is the most cost-effective and efficient means of resolving disputes arising from government actions. Hearings body processes are designed to ensure that the principles of natural justice are followed. Rights to take judicial review proceedings, and limited appeal rights on points of law, provide further checks and balances which ensure that the principles of natural justice and rule of law are adhered to.
A related constitutional safeguard is the principle of judicial independence. Guarantees of tenure and financial security, and the institutional independence of the Court, protect against influence by the executive. Appointments of hearings bodies are case-by-case for the period required. The members are generally remunerated for their time spent, and their resourcing and administrative support are less clearly separated from the executive than the Courts’ are.
The hearings bodies are generally chaired by current, former or retired Environment Court or High Court judges whose tenure in the Court is either secured or has ended, and whose financial security should already have been guaranteed. However, the Law Commission has commented that as “a matter of fundamental principle, we incline to the view that judicial appointments in New Zealand should normally only be permanent” (Issues Paper 29 “Review of the Judicature Act 1908: Towards a Consolidated Courts Act”, February 2012, para 3.71).
Risks of actual bias on the part of these bodies are exceedingly low. There is potential risk of unconscious selection bias on the part of Ministers responsible for making appointments to the hearings bodies. Judges are appointed after a consideration of their qualities and suitability for judicial office without reference to any particular outcome. With hearings bodies, internal government processes will mitigate against any conscious or unconscious bias towards particular persons or a specific result, but the particular project or process may be in the appointers’ minds, even if only at the back of their minds.
The important environmental merits decisions generally being made by hearings bodies can significantly affect private rights, and involve a complex legal framework and the balancing of competing values and interests. Often, the applicant for a project is the Crown, or a Crowncontrolled entity. It is in the national interest that such decisions are as constitutionally robust as they can be. While one-step processes are not obviously unconstitutional, the traditional approach more easily and transparently achieves an institutional separation of powers, and reduces any risk of real or perceived bias on the part of hearings body members and their appointers.
Public participation in resource management processes
Public participation in environmental decision-making is a founding principle of the RMA. The principle developed through the 1970s and 1980s, culminating in the 1992 Rio Declaration, and was incorporated into the RMA and formed the basis of subsequent case law dealing with who is able to participate in RMA processes.
Public participation ensures democratic legitimacy of decisions by ensuring the involvement of members of the public in environmental decisions that affect them, thereby providing public confidence in those decisions. Further, it ensures decision-makers are fully informed about the competing interests and perspectives which they must reconcile.
Traditional two-step RMA processes encourage public participation, while ensuring independent and expert consideration by the Environment Court of those issues that require it. Experience shows that members of the public are generally content to have their views and evidence taken into account at the Council hearing. The scope of appeals to the Environment Court is greatly reduced from the first instance hearing.
While members of the public generally have open standing to be involved in hearing body processes, the processes themselves are less “accessible” than traditional first instance hearing processes. The RMA requires Council hearings to be “without unnecessary formality”, and forbids cross-examination. This encourages participation, as member of the public may attend and speak in a less procedurally intimidating forum than even the Environment Court is sometimes perceived to be. The tradeoff is a reduced level of “rigour”, as the evidence is not as thoroughly and comprehensively tested. Merit appeals to the Environment Court enable that rigour to be brought to bear, where required, for those remaining issues of particular concern to participants.
One-step processes are necessarily more formal and legalistic. The informality of traditional Council-level processes would not be rigorous enough to enable the proper testing of evidence.
Stricter procedural requirements, including the possibility of cross-examination by opposition lawyers, mean the public often has no appetite to be involved even if they can afford it. Mechanisms like the “friend of submitter” can assist with procedural issues, but lay participants are required to operate without assistance at hearings. While individuals’ “standing” remains unchanged, the nature of the process itself excludes many.
It is questionable whether hearings body processes actually result in cost savings relative to the status quo for applicants/promulgators of the significant matters involved. Procedural robustness that is the strength of these processes can mean lengthy, formal hearings. In contrast, the Environment Court deals with a narrower scope of issues that are both appealed, and not settled by other means. While hearings bodies/ parties can use mediation or ADR, all matters must be determined by the hearings body one way or another. That might include hundreds or thousands of submissions or submission points which require decisions.
The volume of material required for hearing body processes can be intimidating. Even well-resourced and represented submitters can struggle. Digesting, filtering and fully understanding the volume of technical material produced is hugely costly and time-consuming, as is drafting documents sufficient to enable meaningful input to the process. A lighter touch is possible at a first instance Council hearing.
Submitters wanting to meaningfully participate will invariably be dragged into a legalistic process where time and costs can escalate exponentially. Expert witnesses may be required to attend multiple days of expert conferencing, notwithstanding a submitter’s relatively narrow interest overall. Counsel may be required to attend many more hearing days than would otherwise be required.
Environmental and community groups are able to seek funding for counsel and expert witnesses from the MfE Environmental Legal Assistance Fund to employ counsel and expert witnesses to assist with significant Environment Court and Board of Inquiry hearings. However, that funding is not available for some hearings body processes, such as those relating to the Proposed Auckland Unitary Plan or Christchurch Replacement District Plan. This limits participation by bodies representing an important aspect of the public interest.
In practice, the costs involved are often too high for members of the public unless legal and/or planning professionals (in particular) are willing to work pro bono or at significantly reduced rates. Essentially, costs previously borne by “applicants” are shifted to submitters and/ or the professions that assist them. That could appear inconsistent with the public participatory foundation of the RMA.
Traditional two-step RMA processes are more constitutionally appropriate than one-step hearings body processes, because a permanently appointed judiciary makes final decisions. They should remain the general rule, not the exception. Further, submitters who cannot afford a full-blown “case” are “burned off” in hearings body processes unless professions assist at reduced rates, or pro bono. Public participation is thereby discouraged.
It is questionable whether one-step processes deliver real benefits relative to the traditional RMA process. While end-to-end time may be reduced, the overall cost to participants, loss of meaningful public participation and hence democratic legitimacy of decision-making, and potential criticism of the lack of proper separation of powers, may outweigh that benefit.