30 June 2006

Guantanamo Bay and enemy combatants

Link to the Supreme Court's decision below: Handan v Rumsfeld (Unfortunately, no time today to analyse - but it looks, from the headnote, to be a sound and robust decision.)

15 June 2006

RMA and the national grid

I get slightly grumpy when I see the Resource Management Act being blamed for problems with our national infrastructure. The RMA framework makes adequate provision for such proposals to be expedited in appropriate cases. Although decision-making is devolved to local authorities, the Minister for the Environment retains the power to intervene in proposals of national significance. Indeed, the portfolio of Ministerial tools were recently enhanced in by the 2005 Amendment Act. The Minister’s residual powers are set out in ss140-150AA of the RMA and deal with “proposals of national significance”. Section 141B(2) sets out (non-exclusive) factors for assessing whether a proposal is of national significance:
In deciding whether a matter is or is part of a proposal of national significance, the Minister may have regard to any relevant factor, including whether the matter— (a) has aroused widespread public concern or interest regarding its actual or likely effect on the environment, including the global environment; or (b) involves or is likely to involve significant use of natural and physical resources; or (c) affects or is likely to affect any structure, feature, place, or area of national significance; or (d) affects or is likely to affect more than one region or district; or (e) affects or is likely to affect or is relevant to New Zealand's international obligations to the global environment; or (f) involves or is likely to involve technology, processes, or methods which are new to New Zealand and which may affect the environment; or (g) results or is likely to result in or contribute to significant or irreversible changes to the environment, including the global environment; or (h) is or is likely to be significant in terms of section 8 (Treaty of Waitangi).
(It must be remembered that under the RMA the “environment” include people and communities, including “social, economic, aesthetic and cultural conditions” affecting people.) There’s no doubt in my mind that proposals relating to the national grid would qualify as proposals of national significance. For such proposals, the Minister has various intervention powers: - the power to “call-in” the application (s141A(4)(a)) - the power to make submissions on behalf of the Crown (ie a whole of government submission) (s141A(4)(b)) - the power to appoint a “project coordinator” to advise the local authority (s141A(4)(c)) - in proposals spanning a number of local authorities, the power to direct a joint hearing (s141A(4)(d)) - the power to appoint an additional hearings commissioner to the local authority’s panel considering the proposal (s141A(4)(e)) The “call-in” power takes away the responsibility for deciding the matter from the local authority and either: - referring it to a board of inquiry (a expert panel including an Environment Court judge), or - referring it directly to the Environment Court. (Before the 2005 amendments, referral to a board of inquiry was the only prescribed intervention power – which, by itself, was a rather blunt instrument.) These powers can be exercised on the Minister’s own motion (s141A(1)(b)) or after receiving a request form the applicant or local authority concerned (s141(1)(a)). Previously, this power has only been exercised once (in 1995 in relation to an Air Discharge Permit for the Taranaki Combined Cycle Power Station). However, the legislative tools are available to address matters of national significance. Ultimately, though, whether they are utilised will depend on the attitude of the Minister to expediting such matters – but there does not appear to have been suggestions that any requests to do so have been declined. See also: MfE Factsheet: Improving national leadership UPDATE: MfE now have an expanded commentary on the Minister's power to intervene in proposals of national significance. See MfE: Ministerial intervention on proposals of national significance under the Resource Management Act

Course Outline

Lord Justice Lawton in Maxwell v Department of Trade and Industry [1974] 2 All ER 122 said:

"From time to time ... lawyers and judges have tried to define what constitutes fairness. Like defining an elephant, it is not easy to do, although fairness in practice has the elephantine quality of being easy to recognise. As a result of these efforts a word in common usage has acquired the trappings of legalism: 'acting fairly' has become 'acting in accordance with the rules of natural justice', and on occasion has been dressed up with Latin tags. This phrase in my opinion serves no useful purpose and in recent years it has encouraged lawyers to try to put those who hold inquiries into legal straitjackets.... For the purposes of my judgment I intend to ask myself this simple question: did the [decision-maker] act fairly towards the plaintiff?"

This course examines the elephantine concept of fairness in the law, along with other contemporary legal issues.

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