Vernon Rive . 2/09/2010 3:55:56 p.m.
Niagara Sawmilling Company was charged with a number of offences relating to the discharge of dust from sawing and processing timber on its premises. On the evidence, it was held that some of the dust resulted from the operation of a "Cyclone" dust collector. Niagara had installed the equipment on the expectation that it would contain the dust. But despite what it considered was its best and reasonable efforts, in fact it did not do so. One of the other main causes of dust discharge was from wind blowing material off-site.
The lawyer for Niagara acknowledged that dust - being a contaminant under the RMA - had escaped from the site. However, he argued that it was not being "discharged" by Niagara, because (in relation to the cyclone dust) Niagara had taken all reasonable steps to contain it, and at the time of the discharges, was not aware that dust was escaping. In relation to wind-borne dust, he argued that the wind (a factor outside of the control of Niagara) had caused the discharge, not Niagara, and so it was not liable under the Act.
As judges sometimes put it, those were quite 'bold' submissions. Judge Borthwick predictably rejected both arguments. She held that the relevant offences were strict liability, and can be committed with no element of intention. Equally, there is no obligation on the prosecution to establish that a person needed to foresee, or be aware of discharges, before they are liable.
Pointedly, she agreed with the lawyer for the Council that Niagara's lawyer's intended defence "appears to be a new or hybrid defence incorporating elements of section 341". She held that this was not available, nor could such a defence be identified from previous case law, including McKnight v Biogas [1994] 2 NZLR 664 (HC) and URS New Zealand Limited v Auckland Regional Council, Environment Court, Judge McElrea, 25 May 2010, CIV-2008-004-013603.
Tough for Niagara? Well, maybe. It had purchased and installed the equipment in good faith, expecting that it would do the job. But these sorts of laws can't really work any other way if they are to be effective, and create the right incentives to avoid environmental harm. And the consequences of the "it wasn't us, it was the wind" argument succeeding are really too far reaching and scary to even consider...
By Vernon Rive on 2/09/2010 3:55:56 p.m. | Comments (0) | Print
Vernon Rive . 17/08/2010 10:27:23 p.m.
With impeccable, or possibly ironic, timing, within a day or so of "a newly registered arm of the New Zealand’s Climate Science Coalition" lodging judicial review proceedings in the Auckland High Court against NIWA “to invalidate the New Zealand official temperature record (NZTR)”:
- the Australian Academy of Science has released a comprehensive report The Science of Climate Change containing an unequivocal finding that “the global average surface temperature has increased over the last century and many other associated changes have been observed. The available evidence implies that greenhouse gas emissions from human activities are the main cause.”
- The New Zealand High Court has issued a decision – significant on a number of other levels – containing a “side-bar” dismissal of an appeal which sought to challenge the Environment Court’s assumptions on climate change. The High Court agreed with the Environment Court’s finding that in an RMA appeal (this was a large windfarm application), it is not the Court’s role to revisit the assumption that climate change is occurring, nor should it enter into a discussion of its causes, directions and magnitude (paras 150-165).
CSC’s move to challenge NIWA’s historic temperature record has been commented on extensively in a number of blog posts and media articles in the last few days. Gareth Renowden at Hot Topic has undertaken a thorough critical assessment of CSC’s position. His commentary on it is well worth a read. The competing claims regarding the scientific validity of NIWA’s data are best assessed by climate science journalists and academic and practising scientists. But I have some initial thoughts on the legal strategy being employed by CSC.
Judicial review is legal remedy with a long and proud track record in New Zealand. Judicial review proceedings have been employed to resolve (or attempt to resolve) disputes on topics as varied as a proposed 1985 NZRFU rugby tour of South Africa (they stopped it) , the decision to proceed with the Aramoana Aluminium Smelter (didn’t stop it), the divestment of Crown assets to newly formed State Owned Enterprises (stopped it in 1987, not so much after that), and the awarding to a newcomer of a major contract for Auckland medical testing services (halted in the High Court, went ahead after a Court of Appeal reversal).
But is JR an appropriate mechanism for resolving competing scientific claims in the climate change arena?
In 2007, UK plaintiffs backed by Viscount Monckton – also recently in the news – famously judicially reviewed the UK Secretary of State for Education and Skills’s decision to use Al Gore’s An Inconvenient Truth as an educational aid in schools. Lawyers for the father of children at one of the schools complained about a number of alleged errors in the film, and the need for a balanced presentation on what was regarded as essentially a political (as opposed to scientific) issue. The decision was widely reported for its finding that there were nine “errors” in the film: one of which involved New Zealand. However, the court broadly upheld the validity of the scientific research on which the film is based.
Closer to home, to date, there have been a number of occasions where New Zealand courts have been asked to rule on competing scientific positions concerning climate change.
In 1995 – it seems like ancient history now – a Board of Inquiry into the Stratford Power Station considered an argument that because, in global terms, the CO2 discharges would be “negligible” that issue should be put to one side when considering consenting under the RMA. The Board rejected the argument swiftly. It held “… even though the emission from the proposed power station is small by world standards, nevertheless the harm, or potential for harm, throughout the world is very large. A small proportion of a very large amount may itself be large.”
That theme was picked up in a number of subsequent decisions, including (in 2002) Environmental Defence Society v Taranaki Regional Council and Environmental Defence Society v Auckland Regional Council, (in 2005) Genesis Power Ltd v Franklin District Council.
Amendments to the RMA in 2005 reduced the scope of legitimate climate change considerations for the Environment Court to (in simplistic terms) the positive effects on climate change of renewable energy projects. Notable decisions in which the legitimacy of climate change impacts was accepted by the Environment Court included (with no attempt to be exhaustive), (in 2007) Meridian Energy Ltd v Wellington City Council, (in 2008) Outstanding Landscape Protection Society Inc v Hastings District Council, Motorimu Wind Farm Ltd v Palmerston North Council, Upland Landscape Protection Society Inc v Clutha District Council, (in 2009) Unison Networks Ltd v Hastings District Council, Maniototo Environmental Society Inc v Central Otago District Council.
The examples above all concerned contested resource management approvals for particular projects. In those cases it was open to the Environment Court to undertake a merits assessment of the proposals, and rule on competing evidence regarding benefits and dis-benefits advanced by the parties before it.
But judges in judicial review proceedings tend to shy away from “merits assessments”, focusing instead on procedure and compliance with statutory frameworks. So, it’s unlikely the HC will be as open as the EC on the issues.
A core element of the intended CSC proceeding is an allegation that, in relation to a number of decisions or actions relating to its assessment and publication of the NZTR, NIWA has acted “unreasonably”.
Judicial review proceedings based on alleged unreasonableness are notoriously difficult to succeed on in New Zealand. In recent years, the courts have adopted a “sliding scale of review”, where the degree or “intensity” with which the court examines contested factual or legal claims increases or decreases depending on a range of factors such as the nature and policy content of the decision, the identity of the decision maker. In relation to research or publication decisions on issues which involve the application of fine-grained scientific methodologies, it’s hard to imagine the High Court taking anything other than a circumspect approach.
In short, I think the likelihood of the High Court embarking on a comparative review of competing positions on methodologies for adjusting historic temperature records is remote.
CSC is also alleging illegality on the part of NIWA. From the summary of claim, it looks as if CSC will rely on provisions of the Crown Research Institute Act 1992, and in particular on section 5. Section 5 specifies a number of “principles of operation” for CRI’s, including the obligations to “pursue excellence in all its activities” and “comply with any applicable ethical standards”.
Experienced lawyers never say “never” in the dark art of litigation. However, the scenario of CSC demonstrating to the satisfaction of the court that NIWA knowingly delegated tasks to personnel who themselves wilfully manipulated climate data sets seems far-fetched at best. So too, I reckon, are the prospects of CSC establishing that NIWA knowingly and wilfully published information which it knew to be inaccurate or unreliable.
It is difficult to avoid the impression shared by a number of respected and independent commentators that the whole exercise is an ill-thought through attempt to gain publicity for a cause whose time has well and truly passed. Or worse, a cynical ploy to distract overworked scientists whose time would better be spent on more productive tasks than rebutting tired, and probably irrelevant, claims through the court process.
NIWA’s statement of defence is due within 30 days of service. It will be interesting to see how tactical moves on the part of NIWA, and possible applications for intervention by interested parties such as the Environmental Defence Society, pan out.
By Vernon Rive on 17/08/2010 10:27:23 p.m. | Comments (2) | Print
Vernon Rive . 30/04/2010 5:24:05 p.m.
‘This has been a fraught subject for much more than twenty years …a boil on the international body politic that needs to be lanced…’ -Sir Geoffrey Palmer, NZ Whaling Commissioner, 1 April 2010. Two years of intense discussions since the last IWC meeting in Chile in 2008 have left the parties in a state of unresolved wrangling, just one month out from the forthcoming IWC meeting of parties in June in the Moroccan seaside resort town of Agadir.
The last four months have seen a frenzy of activity on the vexed issue of international whaling, a pattern that looks set to accelerate in the remaining weeks leading up to the start of pre-meetings of IWC committees in late May, and the Annual Commission meeting on 21 June. In January, an upbeat John Key, fresh from his summer break, mentioned to reporters his plan to raise with US Secretary of State Hillary Clinton in meetings a few days later a ‘potential solution’ that could end Japanese whaling. Details were scant at that point. But an emotionally charged, politically intense debate was triggered when it emerged that the potential solution involved an arrangement which, on its face, legitimised limited whaling by Japan, Norway and Iceland for a period at least, while parties to the IWC attempted a longer term consensus.
Australia meanwhile, remained relatively staunch, confirming its commitment to ongoing discussions, but making no secret of its Plan B, if a satisfactory solution cannot be thrashed out at the next IWC round: proceedings in the International Court of Justice against Japan and other countries who have exploited a perceived loophole in IWC rules allowing the harvesting of whales for ‘scientific purposes’.
The timing driven by an IWC deadline for tabling proposed amendments to the 1946 International Convention for the Regulation of Whaling, on 22 April (coincidentally Earth Day 2010) , the IWC, reportedly with US support, released a 'Proposed Consensus decision to Improve the Conservation of Whales'.
Under the ‘proposed consensus decision’:
- Japan would be allowed to legally kill and take whales in the Antarctic's Southern Ocean Sanctuary, but its quota would drop from 935 to 400 minke whales for 5 years, reducing to 200 after 5 years;
- Japan would also be allowed to harpoon 10 fin whales in the sanctuary and 120 minke whales in its own coastal waters;
- - More active monitoring of whaling activities would take place under the auspices of the IWC;
- - The maintenance of DNA records to enable detection of illegal international trafficking in whale meat would be mandatory.
Fin whales, the second largest whale species after blue whales, are on the IUCN ‘redlist’ of endangered species. NZ Foreign Affairs Minister Murray McCully has described the inclusion of a catch limit for fin whales in the Southern Ocean Whale Sanctuary as “inflammatory” and “offensive”.
The introduction to the IWC’s proposed consensus decision frankly acknowledged that no party would be happy with it: "The only inevitable result of the example numbers we have included…is that as a package, they will be disliked by all for one reason or another, including ourselves.” It is a self-acknowledged ‘straw man proposal’ – there to provoke and allow discussion. Provoke discussion it has.
NZ was swift to reject it.
To an extent, the IWC document might be seen as a ‘get out of jail free’ card for Key & McCully on an increasingly volatile political issue: after having gone out on a limb earlier in the year, it has now allowed them to move a little closer to public opinion, using descriptions such as ‘unrealistic’ and ‘inflammatory’, and emphasising that attempts at diplomatic solutions will not be pursued beyond a point.
Australia’s inevitable rejection was made clear by Environment Minister Peter Garrett on 23 April, amplified in a 28 April speech in Canberra, saying “Australia believes the proposal before us falls well short of any outcome that Australia could accept.”
Japan was never likely to show enthusiasm for the text, nor did it: Japanese Fisheries Minister Hirotaka Akamatsu by way of loaded understatement put it this way: "Regarding the total catch allowed, it is different from Japan's position.”
It hardly needs to be said that the stakes are high, and issues almost intractable. And while position-taking, breast-beating, veiled and open threats are increasingly par for the course in the period leading up to contentious international treaty negotiations – the Copenhagen climate change conference for example – hopes must be dimming as to the prospects of an enduring situation being reached in Agadir in June.
Of obvious concern, if entrenched positions are maintained, is the possibility of the IWC process completely breaking down. On this scenario, Sir Geoffrey’s views are clear:
I think there is a big risk of that and I don't relish it… We cannot afford to see the end of the International Whaling Commission because if it comes to an end, there will be no international instrument for protecting the whales.
Unregulated whaling would almost certainly result in an increase in the number of whales slaughtered in both hemispheres, without any dedicated international body - no matter how dysfunctional - to regulate it.
The possibility of the IWC falling apart leads to thoughts of alternative mechanisms such as the ICJ.
It would not be the first time Australia and New Zealand have resorted to international law institutions to resolve environmental disputes. In 1999, Australia and NZ embarked on international legal proceedings over a controversial Japanese ‘Experimental Fishing Programme’ for southern bluefin tuna. There was mixed success: an initial ruling favourable to Australia and NZ was subsequently overturned by arbitral tribunal constituted under the United Nations Convention on the Law of the Sea (with a notable dissent by NZ’s Justice Kenneth Keith – now sitting in the ICJ). The parties were ultimately sent back to the negotiating table to work things out ‘peacefully’.
New Zealand has been to the ICJ twice over the legality of French nuclear testing in the Pacific. France ignored provisional measures ruled on by the ICJ in NZ’s favour in 1973 and 1974, proceeding with tests, and then avoided a detailed merits assessment of the legality of its actions by undertaking not to undertake further atmospheric testing. In 1995 an attempt by NZ to seek rulings on the legality of underground testing was dismissed by the ICJ, although France subsequently joined a treaty banning all nuclear testing in 1998.
International legal proceedings can have utility in putting additional pressure on nations to alter their behaviour in the global realm. But they potentially take years to come to hearing and produce rulings, are frequently dogged by tactical procedural challenges (which, as seen in the BFT and nuclear cases, have gone against NZ as often as for) and even if successful, require political goodwill to be complied with.
For all parties there is a real conundrum over tactics.
The Sea Shepherd’s supporters will be basking in obvious satisfaction at the success of significantly reducing the numbers of whales taken by Japanese vessels through a determined campaign of obstruction.
Unregulated and increased whaling could well provoke future campaigns by the likes of Sea Shepherd compared with which, the past obstruction activities could be seen as a clearing of the throat, a gentle warm-up. The military jargon that already permeates websites, speeches and other media of some anti-whaling organisations reflects the position that not only has war already been declared, but also that it most certainly will be televised.
But it would be naïve to think that these tactics will provoke anything but a hardening of position by whaling nations. Attracting the attention of a section of young Americans to reality-type shows capitalising on the age-old romance of adventure on the high seas is one thing. Unlocking entrenched attitudes of pro-whaling nations and their leaders, for whom whaling has been elevated to an issue of international identity, sovereignty and esteem is another.
Peter Singer, the respected Australian philosopher, writing in 2008 pithily summarised one of the core ethical issues thrown up by the whaling debate:
The Japanese do have one argument that is not so easily dismissed. They claim that Western countries object to whaling because, for them, whales are a special kind of animal, as cows are for Hindus. Western nations, the Japanese say, should not try to impose their cultural beliefs on them.
The best response to this argument is that the wrongness of causing needless suffering to sentient beings is not culturally specific. It is, for example, one of the first precepts of one of Japan's major ethical traditions, Buddhism.
But Western nations are in a weak position to make this response, because they inflict so much unnecessary suffering on animals. The Australian government strongly opposes whaling, yet it permits the killing of millions of kangaroos each year—a slaughter that involves a great deal of animal suffering. The same can be said of various forms of hunting in other countries, not to mention the vast amount of animal suffering caused by factory farms.
NZ is by no means lily white in this respect. A recognition that our own house needs to be in order is seldom part of the discussion, but should be. So too, might an acknowledgement of NZ’s own role in historic whaling activities – 1964, the year that the last whale was harpooned in NZ waters is not so long ago. The point is not so much that anguished introspection is needed, but rather that a small dose of humility might go a long way in the international debate.
It seems unlikely that the question of whaling will be finally resolved by extreme tactics by either side, rulings of international courts, or trade wars. Those elements may play their part, but ultimately, resolution lies in the shifting of ethical views: a fundamental revisiting of the relationship between humans and this class of higher mammals, whose lifespan frequently exceeds that of humans, whose brains are up to ten times the size of ours, and whose number include the largest creatures on earth.
Perhaps what is needed is not another Operation No-Compromise, but a global charm offensive, aimed at the capturing the hearts and minds of the Icelandic, Norwegian and Japanese public, particularly the young. More Whale Rider than The Cove? Less Sun Tzu than Heathcote Williams? The tactics of Te Whiti over Guevara?
By Vernon Rive on 30/04/2010 5:24:05 p.m. | Comments (1) | Print
. 26/02/2010 10:07:27 a.m.
In the last two weeks, two reports with significant implications for fresh water management in New Zealand have been released. The reports share a common starting point: there are serious issues with current approaches to fresh water management, including widespread over-allocation and the lack of an integrated approach to water management, with environmental and economic consequences which, already at an unacceptable level, could dramatically worsen in the future.
In response, the authors of the first report recommend a much clearer articulation of the national values relevant to fresh water management, and the provision of central government direction to how these values should be reflected in and implemented through subordinate planning documents.
Acknowledging that sustainable management involves an “overall broad judgment… that allows for a comparison of conflicting considerations” the authors of the first report nevertheless urge a recognition and protection of natural environmental values of water, even if this means limiting the availability of the resource for human use, including for commercial purposes:
Improvements in fresh water by phasing out over-allocation and contamination require that fresh water is used for enabling economic wellbeing only while, and to the extent that, life-supporting capacity of water and its associated ecosystems is fully safeguarded, and the potential to meet reasonably foreseeable needs of future generations is fully sustained.
….
Intrinsic values of fresh water are substantial in themselves. Maintenance, restoration and enhancement of them is not subordinate to economic values of fresh water for potential use for people and communities’ wellbeing.
The second report bemoans the “lack of balance between economic, social, cultural and environmental perspectives” in relation to the management of water resources in one New Zealand region, holding that (amongst other matters) it is an over-emphasis on environmental values, and under-emphasis on the economic benefits of water use that has inhibited the strategic management of water in that region.
There is insufficient consideration given to the fact that the purpose of the RMA is to weigh environmental, social, cultural and economic matters. [The] focus is mostly on ‘natural’ environmental matters.
There is a lack of economic perspective to balance what is perceived as a pro-natural environment approach in Plans and officer reports…
The second report’s recommendation is to remove all powers of water management, strategy and plan development, consent processing, monitoring and enforcement from an existing regional council, and establish a new standalone regional water authority under new legislation, membership to be appointed by central government. The new Act would have its own purpose, distinct from the purpose of the RMA, “which should involve a mix of economic development, environmental, social and cultural factors.”
The first report, of course, is the Report and Recommendations of the Board of Inquiry in the Proposed National Policy Statement for Freshwater Management. Chaired by the former Principal Environment Judge Sheppard, and written in crisp prose reminiscent of many landmark Environment Court decisions issued under his direction, this is the outcome of an involved document development and consultation process which included 149 submissions on the draft NPS, 30 further submissions, hearings over 21 days with appearances from 80 submitters, and at least 4 months further deliberations before provision of the recommendations to Government.
If adopted, the NPS would require regional councils to include in new or amended policy statements and plans a raft of new provisions directed at addressing the key national issues identified as of significant concern, namely:
Over-allocation of fresh water;
Contamination of fresh water;
Loss of wetlands;
Incompletely integrated management.
The report frankly acknowledges that an NPS will be only part of a wider programme of review and reform. Much of its content is taken up with explaining why matters urged on it for consideration by submitters are outside of the scope if its inquiry, or indeed, the scope of the RMA. And while one environmental group, EDS, has criticized the 2030 target date for improved freshwater quality, it conceded that “there is some real merit in the policies and objectives the Board of Inquiry has proposed”.
There are no prizes for identifying the second report as the Report on the Investigation of the Performance of Environment Canterbury, released on 19 February. It is a no-holds-barred and wide ranging critique of Ecan’s water and senior management team and institutional processes. It appears likely to lead to the disestablishment of Ecan as we know it, quite possibly in a very short timeframe. If implemented, in Canterbury at least, the prospect of the RMA as 1-stop-shop is severely bruised, and with it, the hopes of meaningful integrated management – particularly a recognition of the links between land use development and water use and quality.
Some of the Ecan officers might read the Board of Inquiry report with interest, reflecting on the irony that, superficially at least, their approach of holding the intrinsic values of water as not necessarily subordinate to the economic values of commercial use seems to resonate with the tone and content of former Principal Environment Judge and his Board colleagues’ report. But that approach – held up as an example of misguided and unbalanced thinking by Messrs Creech and co - could well mean the imminent demise of any meaningful role for them at the council that manages around 70% of New Zealand’s fresh water resource.
By on 26/02/2010 10:07:27 a.m. | Comments (0) | Print
Vernon Rive . 9/02/2010 6:01:09 p.m.
A Court of Appeal judgment delivered just before Christmas (Central Plains Water Trust v Synlait Ltd [2009] NZCA 609) is the latest chapter in a long saga of litigation dealing with the vexed issue of competing priorities for consent applications dealing with the same resource: in this case, South Island water.
The decision, judgment delivered by Baragwanath J, affirms the “first-in-first served” principle earlier established in the well-known Fleetwing Farms case, and the principle more recently laid down in Central Plains Water Trust v Ngai Tahu Properties Ltd [2008] NZRMA 200 (CA) that in circumstances where there are competing applications for the same resource, hearing priority is to be determined by who is “first to file a complete application”, and not according to which application is first “ready for notification”.
In Ngai Tahu, it had been left open as to whether the “first to file a complete application” test should apply to scenarios where the competing applicants were not “similar commercial competitors”. Now, the CA has confirmed that the Ngai Tahu test applies across the board, subject to a potential – and slightly tantalising - “exceptional circumstances” rider, the limits of which will have to be drawn in subsequent cases, if not addressed by legislative reform.
At the heart of the Central Plains decision is an assessment of what the Court described as two competing “themes”: Theme 1 - “efficiency” and Theme 2 - “other policy factors”, further described as “s 5 and the broad concept of sustainable management”.
While accepting that both themes are recognised in Part 2 of the RMA, they were characterised as “each tending in different directions”: crudely summarised, the “efficiency” theme supporting a simpler, quicker, non-discretionary attaining of priority status, once an application that satisfies the basic requirements of s 88 RMA has been lodged (Central Plains’ position); and the “sustainable management” theme supporting a more nuanced, potentially discretionary route to attaining hearing priority which would allow, for example, decisions by Council officers to request further information, or defer the hearing of applications until other related consents are lodged, to influence the question of priority.
Baragwanath J and his CA colleagues reconciled the competing considerations by separating the issue of priority of hearing from the issue of priority of merits. Priority of hearing, it was held, should be determined by reference to s 88:
It is impractical to use as a measure of priority, even as to hearing, the mutable test of what a council officer, more or less cautious, more or less informed, might stipulate under s 91 (or indeed s 92). What matters as to priority of hearing is what Parliament has stipulated in ss 88 and 21, which provide the essential and unwavering architecture.
So, the first to file a complete application has priority of hearing. The second-in-time competing applicant will normally have an opportunity to submit against, and be heard in relation to the first application: this, the Court said, allows the non-priority applicant to have it say on, and for the council (or Environment Court on appeal) to assess, “the Part 2 and other (theme (2)) considerations rather than allow the theme (1) factors to deprive the community of a benefit which it considers outweighs them.”
The CA decision may not be the last word, however…as with the abandoned Supreme Court proceedings in Central Plains Water Trust v Ngai Tahu Properties Ltd, there is one more level of appeal available. Watch this space.
As the CA itself came close to acknowledging, the entire system of allocating fresh water in New Zealand is ripe for a bottom-up review, and reform. That process is winding up – slowly. In the meantime, first-in-first-served, with an application that meets the statutory requirements, but allows for gap-filling down the track, is the order of the day.
By Vernon Rive on 9/02/2010 6:01:09 p.m. | Comments (0) | Print
Vernon Rive . 21/01/2010 3:45:14 p.m.
Over at Hot Topic, Bryan Walker has posted his 19 January Waikato Times article following Environment Judge Newhook’s recent interim decision giving an “indication of a possible positive recommendation” to Crest Energy’s proposed marine turbine power generation project in the Kaipara Harbour (Crest Energy Kaipara Ltd v Northland Regional Council A132/2009). There are high hopes for marine generation in New Zealand, and this decision is a notable step in that regard.
Crest’s consenting process hasn’t been all clear skies and calm waters. In June 2009, representatives of a Northland hapu of Ngati Whatua (Environs Holdings Ltd) brought judicial review proceedings to overturn an EC decision declining a stay or adjournment of the hearing of various EC appeals on the proposal. A stay was sought to avoid prejudice to a pending claim under s33 of the Foreshore and Seabed Act that was anticipated if the EC proceeded with the appeal proceedings under the RMA.
The High Court gave the application reasonably short shrift, holding that the claimants could run their arguments (including concern at expected prejudice to rights that may be confirmed under the Seabed Act) in the RMA proceedings, also noting the EC’s role in relation to the restricted coastal activity consents needed for the marine turbine operation was recommendatory only. As with the Whangamata Marina case, the Minister of Conservation has the final say, a factor (the HC said) that “adds a safeguard to the process from the group claimants’ point of view”.
The EC appeal proceeded. In the event, the Court was not ultimately swayed by extensive submissions and evidence on the part of Environs in opposition to the RCA consents, holding (amongst other matters) that Crest’s offer of a Memorandum of Understanding and proposed funding of a trust for environmental restoration in and around the Kaipara Harbour “can be seen to address aspects of cultural offence deriving from biological and physical degradation of past land and water management practices, and together with satisfactory conditions of consent addressing ecological and other biophysical matters, should, if those things are adequately addressed, amount to adequate provision for the matters the subject of Section 6(e).”
The EC has asked for more information on monitoring and the proposed conditions of consent, however all signs point to a positive final recommendation, once i’s are dotted and t’s crossed.
Turning to wider issues of energy policy, as Bryan notes, there are question marks around government priorities for renewable energy generation:
In the case of marine energy [the Government] has, admittedly, provided $8 million over a period of four years to support selected projects. But it committed $20 million over three years to gather seismic data in support of oil and gas exploration, and has extended tax exemptions for offshore exploration.…In a rational world we’d be more interested in finding ways of leaving it in the ground, knowing, as we now do, the fearful prospects ahead if we keep burning the stuff. There’s still some priority-sorting needed at government level.
Even assuming Government gets on board, quite how the “priority-sorting” should best demonstrate itself is an interesting question in itself, as was seen in a rather different decision by another division of the Environment Court on another controversial renewable energy project – Meridian’s planned 176 wind turbine Project Hayes (Maniototo Environmental Society Inc v Central Otago District Council C103/2009).
In Maniototo an “All of Government” submission in support of the proposal under section 141A(4)(c) RMA was considered, the issues advanced on behalf of the Crown “duly assessed” and “had regard to”, but the Crown’s involvement in support “as an ‘other matter’ for the purposes of section 104(1)(c)” was ultimately not of sufficient moment to offset the concerns of the majority of the Court with impacts on landscape, and its assessment that Meridian had not sufficiently analysed relevant alternatives.
The Maniototo decision has been criticised for creating “a new test for projects to overcome which is unworkable; which will result in planning paralysis and in conflict between organisations wanting to advance separate projects”. Meridian has appealed to the High Court, whose decision may well prove to be one of the more significant RMA judgments in 2010.
In the meantime, its hard to escape the view that clearer central Government direction on issues of national significance in the renewable energy arena – the kind of guidance that will not simply be relegated to ‘another matter’ to be thrown in the mix - is sorely needed. Something like, say, a clear NPS on Renewables? It can’t be far off, surely…
By Vernon Rive on 21/01/2010 3:45:14 p.m. | Comments (0) | Print
Vernon Rive . 12/01/2010 12:43:17 p.m.
Sunlight, US Supreme Court Judge Louis Brandeis famously said, is the best disinfectant. Less famously, he also remarked that “the logic of words should yield to the logic of realities”. The tension between disinfecting sunlight and the logic of realities is again about to come under the scrutiny of the New Zealand Law Commission, charged with a review of the Official Information Act 1982.
A comprehensive review of the OIA was undertaken by the Commission in the early 1990’s culminating in its 1997 Review of the Official Information Act 1982. In 1997, it concluded that the OIA “generally achieved its stated purpose” but identified a number of “major problems” with the Act and its operation, including challenges thrown up by large and broadly defined requests, delays in responding to requests, resistance by agencies outside of the core state sector and deficiencies in coordinating supervision, compliance and education about the Act. Some, but by no means all, of the recommendations were picked up in a 2003 Amendment to the OIA.
The forthcoming Commission review follows notable reviews of the OIA by Wellington media lawyer, blogger and academic Steven Price and former Victoria University Senior Research Nicola White (whose 2007 book Free and Frank – Making the Official Information Act 1982 work better was the output of a 2 year project analysing the operation of the Act).
Price’s research is especially interesting. In late 2002, as part of a quantitative data collection exercise, he made OIA requests to 136 national agencies subject to the OIA asking for, amongst other material, copies of the 10 most recent OIA requests and responses, 10 most recent requests/responses where information had been withheld and 5 most recent requests/responses where time limits were extended.
The results of Price’s requests were, as Law Commission President Sir Geoffrey Palmer wryly acknowledged in a 2007 speech, “mixed” – 13 of the agencies failed to respond, even after follow ups, and even after being told that the research was being overseen by an Ombudsman and former Secretary for Justice.
Perhaps surprisingly, given the inconsistent approach to responses to his own OIA requests, Price concluded that the OIA appeared to be working better than its critics might have predicted: he found that the majority of requests were apparently met in full, the vast majority on deadline. However he also concluded that “there is…much to be concerned about”, including around 1 in 8 requests breaching the 20-working-day response deadline, “bland assertions of ‘confidentiality’, ‘commercial sensitivity’ and ‘privacy’”, and widespread failure to explicitly balance public interest considerations against (rebuttable) reasons for withholding.
To kick off its 2010 review, the Commission is looking for input from people regularly involved in and familiar with the operation of the OIA and its sister statute, the Local Government Official Information and Meetings Act 1987, via an online survey and discussion forum. Responses to the initial round of information gathering are due by 15 February.
By Vernon Rive on 12/01/2010 12:43:17 p.m. | Comments (0) | Print