13 April 2017

RMA reforms out of step with international best practice on decision making

A team from Berry Simons attended a symposium on Environmental Adjudication organised by the Principal of the Environment Court, Laurie Newhook and Associate Professor Ceri Warnock of Otago University.

The symposium brought together senior specialist judges and professors from all over the world to discuss the delivery of environmental justice with members of the Environment Court and resource management professionals.

The papers presented at the symposium demonstrated the increasing prevalence of specialist environment courts and tribunals (ECTs) worldwide, the importance of ensuring full maintaining access to environmental justice, and the need for processes that ensure high quality decision-making given the nature and value of the issues that ECTs are required to adjudicate upon.

“A key insight was that the current trend towards ad hocery in New Zealand environmental decision-making alongside the ongoing erosion of access to environmental justice is completely contrary to international trends in terms of environmental adjudication. Other countries are setting up and resourcing ECTs but we are increasingly seeking to avoid our own specialist court. This is alarming and unacceptable in a developed Western jurisdiction. It is embarrassing that recent amendments to the RMA have introduced changes that are so out of step with international best practice in relation to environmental adjudication,” says Partner Simon Berry.

“A recurring theme throughout the day was that public participation and access to justice was essential for good decision-making. Justice Kós told the audience that ‘inequality of arms’, meaning the exclusion of opposition to a proposal or placing opponents at a relative weakness, makes for poor decision-making and resentment. For that reason, the principle of public participation is inherent in the Environmental Rule of Law. This resonated with me because the recent passing of the Resource Legislation Amendment Bill (RLAB) is regressive in that regard, reducing and limiting access to environmental justice for New Zealanders,” adds Parner Sue Simons.

Speakers also made it clear that New Zealand’s Environment Court is regarded very highly internationally, with the calibre of the attendees demonstrating the high esteem in which Principal Environment Judge Newhook is held amongst judges and academics worldwide.

Given the increasing prevalence of ECTs internationally and the high standing of New Zealand’s Environment Court, Berry Simons finds it ironic that the symposium was held here only days after the RLAB further reduced rights of public participation and access the Environment Court in favour of ad hoc boards of inquiry and tribunals, which often do not contain tenured specialist judges.

It was also pointed out that the imposition of short time frames for planning or consent processes with no reference to the magnitude of the task can put quality decision-making at risk and compromise the ability for parties to fully participate.

The International Symposium on Environmental Adjudication in the 21 st Century was held at the Pullman Hotel in Auckland on 11 April 2017.

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