27 October 2008

RMA: National's priority consenting?

The National Party have made a big deal about "streamlining" the Resource Management Act, particularly for major projects of national importance. It's a central plank of their "reform" of the RMA. But, in my view, it looks like a big smoke and mirrors game, as the RMA presently provides mechanisms for such projects to be expedited. Quite simply, no legislative reform is needed. First, let's look at their statement of policy. > NatParty: "National's Infrastructure Plan, Building for a Brighter Future"
National will: • Introduce a Priority Consenting process to streamline resource consents for major infrastructure projects of critical national importance. o These consents will not go through the local council but will instead be called in and determined nationally. o This process will still allow for proper environmental assessment and will enable communities to have their say. o The law will require a decision on these Priority Consents within nine months. • Introduce a new category of state highway called Roads of National Significance that will be singled out as essential roads that require priority treatment. • Review and, where necessary, reform the Local Government Act and the Land Transport Management Act to reduce infrastructure delays and speed up development. • Streamline and simplify the Resource Management Act, as detailed in our previously released policy paper.

> NatParty: "Policy 2008: Environment, Resource Management"

Priority Consenting The existing process for consenting large infrastructure projects is cumbersome. In many cases, it takes longer to process consents for large projects through the RMA than it takes to build them. Such delays act as a brake on the economy and are unfair on affected communities. National’s Resource Management Amendment Bill will provide for ‘Priority Consenting’ of major infrastructure projects. Consents for these projects will be processed by the newly established Environmental Protection Authority (EPA). The EPA will be required to make decisions within nine months.

Now let's compare with the present RMA regime for the "call-in" of projects of national importance. Sections 141A and 141B presently allow the Minister of the Environment to "call in" projects of national importance.

The power itself is contained in section 141A(4)(b):

141A Minister's power to intervene (1) This section applies when the Minister— (a) ... (b) decides to apply the section. (4) The powers are— (a) ... (b) to call in the matter under section 141B: ...

The effect of calling in a matter and the threshold for a proposal of national significance are set out in section 141B:

141B Minister's power to call in matters that are or are part of proposals of national significance (1) When the Minister considers that a matter is or is part of a proposal of national significance, the Minister may call in the matter by making 1 of the following directions: (a) a direction that the matter be referred for decision to a board of inquiry under sections 146 to 149; or (b) a direction that the matter, after the receipt of any submissions that the local authority or the Minister called for, be referred for decision to the Environment Court under section 150AA (2) 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).

In essence, the RMA defines a proposal on national significance broadly, allowing the Minister to make a judgement about the effect and significance of a proposal. The short point is that "major infrastructure projects of critical national importance" already fall within the definition of proposals of national significance and can be called in by the Minister. (Section 141A(4) also contains a portfolio of other less dramatic measures that can be adopted for proposals of national significance.)

Of course, there's no obligation to call in these projects, it's a discretionary judgement. For a long time under both National and Labour governments, there was some reluctance to call in projects. However, over the last couple of years, we've see the government being more willing to exercise the power - particular in relation to sustainable electricity generation schemes (see MfE, "Call in of matters of national significance").

So what happens if a proposal gets called in? Presently, the proposal gets referred to either:

- a Board of Inquiry, between 3 and 5 people (one of whom is a current or former Environment Court judge) who hear the proposal and submissions;

- the Environment Court, who hears the proposal as if it was an appeal to the Environment Court.

The important point is that both these processes supersede the functions of the local authority. There is only one hearing, in each case by a panel or court of experts / commissioners. Administrative support for the proposal is provided by the Ministry for the Environment, in lieu of the local authority. And the right of appeal to the High Court is restricted to errors of law only.

So what's the difference? Without seeing the minutiae of the policy, it's difficult to see any material difference:

- The only main difference seems to be the identity of those making the decision - a permanent EPA, rather than an ad hoc expert Board of Inquiry or the Environment Court. But that seems to be bye-the-by. The main point of calling in or priority consenting is to remove the processing and determination function from local authorities, replacing the usual 2-tier hearing process with a 1-tier expert adjudication process.

- The one additional requirement in National's policy is a requirement that these proposals be processed within 9 months in total. The Board of Inquiry process does not specify a long-stop deadline for processing, but instead prescribes maximum time-limits for each step (usually 20 working days).

- It's unclear whether priority consenting will operate automatically or not. Or whether the Minister needs to make a case-by-case assessment. Reform to make it operate automatic might be a material difference. But, in reality, the same outcome would be reached by having a Minister of the Environment that exercised greater predilection for calling in proposals.

As you can see, our world-renown RMA regime already makes provision for priority consenting of proposals of national importance in appropriate cases. Any call to amend it to proposal for this is illusory.

(It might be implicit in my analysis that I don't have a philosophical objection to call-ins. That's right. I think it's an appropriate power for appropriate cases. It's part of the dynamic of national-local goverment relations. Local democracy is important. But there are some cases where it's appropriate for the matter to be considered with a national perspective. Ultimately, the issue is really a matter of emphasis: On the one hand, how much should weight should the national importance be given? On the other hand, how much weight should be given to grass-roots democracy?)

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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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