A Weekly Report from the Keyboard of Murray McCully MP for East Coast Bays

The Very Unministerial Mr Carter

The judgment of Justice Fogarty on the Whangamata Marina Society case was always going to hinge upon the credibility and competence of Conservation Minister Chris Carter. The decision released on Monday left both in tatters, raising serious questions about both the next step in the Whangamata case, and Carter’s future in the portfolio.

Justice Fogarty made two most serious findings against Carter: that he had seriously exceeded his Ministerial powers, and that he had behaved unfairly. Very serious findings for a High Court Judge to make against a Minister of the Crown. The Whangamata Marina application was heard first by a hearing committee, and then, on appeal, by the Environment Court. Applications for coastal permits are required to pass an additional process: the recommendation of the hearing committee or, if there is an appeal, the Environment Court, must go to the Minister of Conservation for final sign-off.

Carter Exceeded his Powers

The role of the Minister is a narrow one. While the Minister is the consent authority for coastal permits, the RMA restricts him or her to decisions that are based upon the evidence heard, and findings made by the hearing committee or, in this case, the Environment Court.

That, said Justice Fogarty, is "because the RMA envisages hearings replete with procedural safeguards to ensure a fair and rigorous process by which the evidence and submissions are tested." The Judge went further: "Parliament could have provided for the Minister of Conservation to hear the matter de novo and conduct his own hearing to that extent. It did not. Nor was that Parliament’s intent."

His Honour went on to point out that Parliament had provided a mere 20 working days to the Minister to make a decision, in relation to highly complex matters that had already been tied up in hearings for months, and often years.

Anything in the nature of a reconsideration of evidence just wouldn’t be possible. But none of the above, it appears, was of any concern to Minister Carter. The judgment describes the Minister’s power as "a discretion to differ, provided he gives reasons, from the recommendation of the hearing committee or the report of the Environment Court, as the case may be, as to the weighting to be given to the relevant criteria."

Further, "Given that the Environment Court will have given detailed reasons, and coupled with the short time frame for consideration, decision and reasons, the Minister’s reasons should explain why he or she accepts of rejects the report."

None of which, of course, Carter has done. To reinforce the point, Justice Fogarty refers to the iwi concern over pipi beds cited by Carter as a reason for declining the consent. The Environment Court found evidence from the iwi "relatively unpersuasive," and their answers under cross examination "either lacking in consistency or unconvincing." On this point, Justice Fogarty is damning: "it would be irrational for the Minister to rely upon evidence that has been rejected as unreliable." Yet, clearly, that is exactly what Carter has done. The result of all of the above, says Justice Fogarty, is that "the Minister made a procedure error. He set about the task of reconsidering evidence, a power Parliament did not entrust to him. That was an error of law."

Actions Unfair and Breach Natural Justice

But it gets worse. His Honour then proceeded to examine the process by which Carter reconsidered the evidence. And here, the Minster comes horribly unstuck. Transcripts for many of the hearings had not been prepared, were not requested, and were therefore not available. The "unreliable" and "unconvincing" iwi evidence and cross examination were not available in transcript. Much of the material on which Carter purported to have made his decision, was not requested and therefore not available to him. "He was," said the Judge, "therefore making a second call from that of the Environment Court without knowing the evidence which the Environment Court heard orally, as those witnesses were questioned. Accordingly, the Minister did not consider all the evidence presented to the Court on these two issues."

And it gets worse again. Justice Fogarty examines the timeline by which Carter purported to make his decision. And his pronouncements on the process could hardly be clearer: "unfair," "in breach of the common law standards of natural justice," "another error of law on the part of the Minister," and "a procedural error" are just some of the good judge’s findings in this part of the judgment.

On 30 January, Carter made a site visit to Whangamata, meeting interested parties, but spending most of his time with iwi representatives whose views were to so heavily influence his decision. The Minister granted himself another 20 day extension and ultimately delivered his decision on 7 March, 41 days after the 20 day clock commenced.

None of the briefs of evidence or transcripts (about 1500 pages) on which Carter had to base his decision were delivered to him until the evening of Thursday 2 March. Yet on 1 March - the day before he took delivery of the files - Carter had a telephone discussion with Waitakere Mayor and former Labour Party president Bob Harvey.

As a result, Harvey sent an email to the head of the group of surfers opposed to the marina plan, Mr Smythe, asking him "to assemble for the Minister a range of spokesmen to support him in his decision on the Whangamata bar." "There is no doubt," said Justice Fogarty, "that by 1 March the Minister had formed tentative views." Which could perhaps go down as the understatement of the year.

Back on Carter’s Desk

Whichever way you examine the case, this is a truly appalling abuse of Ministerial office. Statutory powers have been exceeded, deadlines broken, and procedures breached. The Whangamata Marina Society, which has spent hundreds of thousands of dollars following the proper process, has been victim of a gross abuse of executive power.

And the procedure presented to the Court as having been followed by the Minister is little more than a hollow sham. Now that very same Minister has the Whangamata file back on his desk, with judicial instructions to do it properly this time.

But neither the Whangamata Marina Society nor the public can have any confidence in such a process. Anyone who reads Justice Fogarty’s judgment will conclude that Christopher Joseph Carter cannot be trusted with this decision. Or with very much else, for that matter.

ENDS

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