Resource Management

Official Journal of the Resource ManagementJ Law Association of Newournal Zealand Inc. Formerly Resource Management News Issue 3 Volume VII November 1999 INSIDE THIS ISSUE

THE CITIZEN IN THE The Citizen in the ENVIRONMENT FRONT COVER HOW THE Environment ENVIRONMENT COURT DECIDES ENGINEERING Access to Justice DISPUTES PAGE 21 Dr Ludwig Krämer HERITAGE & THE Keynote address to the 1999 RMLA Seventh Annual Conference RESOURCE MANAGEMENT ACT 1.The Protection of the Environment and the Citizen PAGE 25

1.1 Standard-setting and Everybody knows that this almost idyllic pic- THE RMA & environmental protection ture has limited resemblance with the reality at the GOVERNANCE POLITICAL PARTY In democratic, industrialised societies there is end of the twentieth century. The appearance of POLICIES a general consensus that governments are insti- political parties and the massive representation of PAGE 27 tuted which derive their right to govern from the group interests (vested interests) had considerable FORTHCOMING EVENTS consent of the governed. Parliaments, composed influence on the functioning of parliamentary PAGE 28 of the representatives of the governed, fix general democracy. Elections offer limited alternatives, legislation and allow the governments and their since the different party machineries have become THE APPOINTMENT OF THE NATIONAL administrations to elaborate the necessary regula- more and more alike. And in the relationship COMMITTEE tions for execution and implementation, applica- between parliaments and governments (adminis- PAGE 29 tion and enforcement. trations), the power has since long shifted to the HAURAKI GULF MARINE PARK BILL PAGE 30 AWARDS 1999 PAGE 32 CASE LAW PAGE 33 RESOURCE Postcard pic t/c MANAGEMENT AMENDMENT BILL PAGE 36 CONFERENCE 1999 PAGE 37 Judge Shonagh Kenderdine and Dr Ludwig Krämer.

Resource Management Journal 1 and taken care of by the elected parlia- biodiversity. The complexity of life can- ment. Where administrations have taken not in all details be seized by legislation. over the task of standard-setting, it might For this reason, environmental law well be asked how the general interest is and policy more and more recur to gen- safeguarded. Parliamentary elections - eral notions which try to embrace these Parliamentary and with them an eventual change in complexities - and which become, at government - do not really constitute a the same time, a nightmare for all agen- elections – and with solution. Indeed, while the political top cies or officers which are charged to put of the administration, the government, into operation such legal provisions. them an eventual might change, the great majority of There is no significant difference change in administrative officials remains in func- between international - non-binding1 tion. In daily practice, there is thus often government – do not little difference between regulations, really constitute a decrees or other executive instruments which emanate from politically opposite it is an illusion to solution. governments. believe that the Environmental law has the task to protect the environment with the help of agreement or legal instruments. However, there are disagreement of great doubts, whether the protection of the environment really can be captured citizens with these side of administrations, which dispose of in legal terms. Indeed, modern societies more resources, more time, better access are extremely complex and decisions on numerous to information and a more “military” infrastructure projects such as motor- administrative form of organisation. The majority of ways, airports or urbanisations, on new legal provisions in all societies, whether industrial installations, electricity or decisions is really industrialised or not, is prepared, made waste treatment plants etc. require a expressed by and monitored by administrations, careful and detailed balancing of differ- including those cases where, formally, ent environmental, economical, social electoral consent. Parliament legislates. and human aspects. The same applies to This raises the problem of the safe- the creation of nature reserves, the fixing guard of the general interest, which, of quality standards, the fight against cli- under classical theories of the division of mate change or desertification, the pro- or binding2 -, European Community3 powers, was to be determined, specified tection of the ozone layer or of or national legislation4.

1. See as an example some notions of the Rio de Janeiro Declaration on Environment and Development of 16 June 1992, UN Doc.A/CONF.151/5:“sustainable development; environmental needs of present and future generations; reduce and eliminate unsustainable patterns of production and consumption; appropriate access to information; effective access to judicial and administrative proceedings; severe environmental degradations”. 2. See as an example some notions of the United Nations Framework Convention on Climate Change of 9 May 1992, New York: mitigate climate change by address- ing anthropogenic emissions by sources and removals by sinks of all greenhouse gases; promote sustainable management; best available scientific knowledge; effe- cive capacity of sinks; provide such financial resources ... needed by developing countries”. 3. See as examples some notions of European Community law: Directive 85/337 on the environment impact assessment OJEC1985, L 175/40: assess the direct and indirect effects of a project; Directive 91/156 on waste, OJEC 1991, L78/32: ensure that waste is recovered or disposed of without endangering human health and without using processes or methods which could harm the environment; Directive 92/43 on the conservation of natural habitats and wild fauna and flora, OJEC 1992, L 206/7: significant effect (on a natural site); Directive 84/360 on air pollution from industrial installations, OJEC 1984, L 188/20: best available technology not entrailing excessive costs. 4. See some examples of New Zealand,The Resource Management Act 1991: same or similar (use) in character, intensity and scale (to earlier use); best practicable option; reasonable level; adverse effect on the environment; significant adverse effects on aquatic life; actual or potential effects on the environment; minor effects on the environment.

Resource Management Journal 2 The consequence of this legislator’s cerned and affected public; it has to recourse to general clauses in environ- examine the scientific and technical mental matters is twofold: first, as the expertise as well as other elements which legislator is aware that he is unable to might play a role in reaching a balanced “Human beings are at strike a just and fair and at the same time decision. It is thus the administration’s precise balance between diverging inter- decisions which give substance to the the centre of ests – which, for simplification reasons, general notions on environmental pro- concerns of are called economic and ecological inter- tection which were identified above. ests hereafter, he has increased and This role of the administration as the sustainable detailed the provisions on procedures for environment’s guardian, has not received developments. They reaching an administrative decision in a the necessary attention by lawyers. specific case. And second, this approach Indeed, there are a number of elements are entitled to a has a considerable impact on the which give rise to concern in this con- healthy and enforcement and monitoring of environ- text: which are the technical and scien- mental regulation. tific elements that are the disposal of the productive life in The tendency to increase, for envi- administration when it reaches its deci- ronmental regulatory or administrative sion? How is the ordinary citizen, the harmony with decisions, procedural provisions, is a governed, involved in the administra- nature.” worldwide phenomenon which can be tion’s decision-making procedure? And identified in international conventions, how is the environment involved in this regional provisions – such as NAFTA process, the environment of which we all provisions for North America, European know that it has no voice: the interests of nature reserve might well find the agree- Community law for Europe – and water and soil, of air and birds, of lakes, ment of the present generation, but what national legislation5. Provisions for mak- seas and forests - how can they be about the next? “Under the traditional ing plans and programmes, environment addressed properly in the administrative principles and procedures, only actual impact assessments, hearing procedures, procedure? interests are voiced, try to influence the auditing schemes, details on ways to Finally, it might be correct to state decisions and request consideration. reach decisions on planning consent or that governments derive the right to be Public authorities are obliged to be to protect environmental assets by classi- governed from the consent of the gov- responsive to them, and this is how the fication, the setting up of inventories, erned; but between different elections, respect of rights is ensured in practice (in registers, lists of good or bad practices, hundreds of thousands of administrative contrast to their abstract recognition). harmful or harmless substances or prod- decisions are being taken which affect The “future” is not represented in any ucts, emissions or discharges - numerous the environment; it is an illusion to committee; it is not a power which can examples can be given, where proce- believe that the agreement or disagree- intervene in the discussion. The non- dures have been set up to balance envi- ment of citizens with these numerous existent has no lobby and the unborn are ronmental interests with other interests. administrative decisions is really powerless”6. Whatever procedure is chosen, the expressed by electoral consent. The Administrations are everything else administration is called in to organise the problem even becomes bigger, if one than homogeneous, neutral bodies procedure, hear the representative of thinks of the right of future generations: which decide all the time in the best group interests, the applicants, the con- constructing a motorway through a interest of society, including the environ-

5.The pilosopher John Locke once declared procedures to be the enemy of the arbitrary and the sister of liberty. 6. H. Jonas, Das Prinzip Verantwortung. Frankfurt 1984, 55 (this author’s translation).

Resource Management Journal 3 ment. First, top administrative officials the attitude of administrations, even rules to allow the sovereign (king, are appointed and thus owe their profes- when it comes to individual decisions. emperor, president) to effectively sional existence and their career to those The technical and scientific elements administer the State. The progressive who elected them. Second, in all soci- at the disposal of administrations are, in world-wide development of human eties, political parties have largely occu- theory, comprehensive. In practice, how- rights anchored primarily in religious- pied key influential positions and the ever, local authorities as well as provin- liberal ideas of ensuring individual free- adherence to a political party is not, cial, regional or national governments doms against public authorities. It did nowadays, seen as contrary to the indi- inevitably are selective and weigh facts not evolve into a generally recognised vidual official’s obligation to serve the and informations in a subjective way. To human right to a clean and healthy general interest. For different reasons, take an example: whether a motorway is environment, in particular not in anglo- the main interlocutors even of environ- to be built or not, also depends on the saxon law7. At international level, the planning and the expectation as regards United States were influential in keep- the future development of traffic. ing the United Nations’ declarations on However, it might be useful, from an the individuals and the environment environmental point of view, not to allow vague: in 1972 the United Nations private traffic to develop, but to favour declared8 that: instead railway traffic or public trans- “Man has the fundamental right of …Effective access to port. Cost-benefit analyses, ressources freedom, equality and adequate condi- impact assessments and other instru- tions of life, in an environment of qual- judicial and ments - at the end of the day, they all ity thatpermits a life of dignity and administrative remain biassed, because nobody has yet well-being, and he bears a solemn developed a method to determine the responsability to protect and improve proceedings, including cost of environmental impairment, to the environment for present and future determine the financial value of the exis- generations”. redress and remedy, tence of a butterfly species or - more Twenty years later, the Rio shall be provided. intricate - of a woodlouse. Conference9 was not more specific: “Human beings are at the centre of 1.2 The right to a clean and concerns of sustainable evelopments. healthy environment They are entitled to a healthy and pro- Citizens’ involvement in administra- ductive life in harmony with nature”. tive decisions was, in the beginning, lim- There is no question, under this ited to neighbourhood cases: concept, that the individual citizen has anglo-saxon common law had not devel- a right that waters are not polluted, air mental administrations are persons with oped administrative law as a specific, is not contaminated, natural resources economic interests, representatives of independent part of law; and continental are not impaired or destroyed. Both group interessts or potential or actual Europe owed much of its development to declarations from Stockholm 1972 polluters. Also, social, economical, ethni- French administrative law, which had and Rio de Janeiro 1992 mainly cal, cultural and other aspects determine started from a concept of administrative address States and ask them to take

7. See the thorough overview on the state of discussion by P.Taylor, International Human rights and the Environment, p.234 et ss in: K. Bosselmann (ed.): ÷kologische Grundrechte. Baden-Baden 1998;A. Kiss, Droit international de l’environnement. Paris 1989;A.J.Waite, Environment rights under English law, p.337 in:Associac‚o Portuguesa para o direito do ambiente (ed.): Guaranteeing the right to the environment, Lisboa 1988; J.W. Futrell, Environmental rights and the Constitution, p.515 ibidem. 8. Stockholm Declaration of the United Nations Conference on the Human Environment, UN Doc.A/CONF.48/14, 16 June 1972, principle 1. 9. Rio De Janeiro Declaration on Environment and Development, UN Doc.A/CONF.151/5, 16 June 1992, principle 1.

Resource Management Journal 4 due care of the environment. to the deterioration of the environment come together when the minimum prac- Some States, including some industri- and, in the case of direct losses, to a cor- tical contents of citizens “rights” in envi- alised States, went further in the formu- responding compensation. ronmental matters are considered. Three lation of an individual right to a clean 4. The State shall promote the pro- elements are always considered by both and healthy environment for citizen. gressive and rapid improvement of the lines of thinking to be fundamental in Worldwide, more than fifty States have quality of life for all Portuguese”. this context: the right of access to infor- taken this approach, without necessarily If one looks, however, more closely mation, the right to participate in deci- specifying the content of such a right and into law, policy and practice of sion-making and the right to access to without fundamentally reorienting their Portuguese environmental protection, it the courts12. And it is therefore not sur- national policies and legal systems. is very difficult to find any significant dif- prising to find these elements - which An illustrative example of this pratice ference to countries, where the constitu- are, once more, more of a procedural is Portugal, where Article 66 of the tion does not contain such an individual Constitution provides: right. The environment is impaired by “1. Everyone shall have the right to a town and country planning, urbanisa- healthy and ecologically balanced tion, infrastructure projects, pollution human environment and the duty to and other measures in the same way as defend it. everywhere. Penal law introduced, it is 2. It shall be the duty of the State, act- true, a crime against damage to nature Where the citizen is ing through appropriate bodies and hav- and a crime of pollution10; however, ing recourse to popular initiative to: these provisions only address individual only indirectly (a) prevent and control pollution and persons and concern only cases, where affected, he is not its effects and harmful forms of erosion; injunctions from public authorities are (b) have regard in regional planning not respected. Article 66 does not, it allowed to to the creation of balanced biological seems, allow to find satisfactory solu- participate in the areas; tions to conflicts of ecological and eco- (c) create and develop natural nomic interests. Similar results are found administrative reserves and parks and recreation areas in other countries which established a decision-making. and classifyy and protect landscapes and right to a clean and healthy environment. sites so as to ensure the conservation of nature and the preservation of cultural 1.3 From substantial to assets of historical or artistic interest; procedural rights (d) promote the rational use of natu- The approach to establish a human ral resources, safeguarding their capacity right to a healthy and clean environment for renewal and ecolgical stability. will, though, not further discussed here, than of substantive nature, back in 3. Everyone shall have the right, in since in practice the two strings11, the Principle 10 of the Rio Declaration13 accordance with the law, to promote the more state-oriented anglo-saxon and the which states: prevention or cessation of factors leading more human-right related one, largely “At the national level, each individual

10. Portugal, Act of 4 April 1987, no. 10/87, Article 278; Act of 7 April 1987, no. 11/87, Article 279. 11. P.Taylor (note 7) differentiates p.265 et ss. Five such strings. 12. See P.Taylor (note 7 above), p.271 et ss; see also for instance A. Kiss, Le droit ‡ l’environnement: quel avenir? in Associac‚o Portuguesa para o direito do ambiente (ed.) Guaratneeing the right to the environment, Lisboa 1988, p.678: “Ils (les individus) ont donc le droit d’Ítre informÈs de tout ce qui est susceptible d’affecter la qualitÈ de leur environnement, de participer aux dÈcisions et aux besoin de former des recours pour obtenir satisfaction”. 13. Rio Declaration (noe 1 above) ; the prudent, non-committing wording of this principle is to be noted, which avoids mentioning rights of the idividual or any wording which would make it self-executing.

Resource Management Journal 5 shall have appropriate access to informa- above-mentioned trends in environmen- tion concerning the environment that is tal law which strengthens procedural held by public authorities..States shall provisions instead of fixing standards facilitate and encourage public aware- itself. Informing the citizen of the ness and participation by making infor- upcoming decisions and allowing him or mation widely available. Effective access her to participate in the process to reach to judicial and administrative proceed- a decision leads to a democratisation of ings, including redress and remedy, shall procedures, shows openness and Until now, not many be provided”. improves the factual basis on which the In 1998, the United Nations decisions are to be grounded. industrialised (Economic Commission for Europe) countries have taken opened for signature the Aarhus 2. Procedural Rights to a “Convention on access to information, Clean Environment such a broad public participation in decision-making approach. and access to justice in environmental 2.1 Access to information on matters” which tries to make these gen- the environment eral principles more concrete. Access to information on the environ- The underlying reasons for the elabo- ment which is held by public authorities ration of the Convention, enumerated in is normally neither limited to persons its Recital 9, well demonstrate the con- which have a specific interest in the cept of improving the protection of the information, nor is the information lim- environment by procedural provisions: ited to persons in the geographical Participation in the decision-making “..in the field of the environment, neighbourhood of the environment to procedures which pertain to the environ- improved access to information and which the information pertains14. ment is less easy to regulate. Indeed, public participation in decision-making The Aarhus Convention confirms while the administration has to grant enhance the quality and the implementa- environmental information shall be access to information (only) in those cir- tion of decisions, contribute to public available to “the public”15 upon cumstances, where information is awareness of environmental issues, give request, without an interest having to already available, the administration is the public the opportunity to express its be stated. The information is normally not obliged to assemble environmental concern and enable public authorities to to be given in the form requested and data in order to improve the information take due account of such concerns”. within one month. The Convention on the environment. Letting the citizen The citizens’ possibility to acceed to enumerates the cases where the infor- participate in environmental decision- information on the environment is more mation may be refused. A refusal shall, making requires more active attitude on and more recognised in industrialised in principle be made in writing, state the side of the administration. and developing countries all over the the reasons and give information on the The most important problem interest- world. It matches well with the political review procedure. ing in the context of this contribution is concept of an open society, and is in line whether in administrative procedures - with the quickly developing information 2.2 Participation in decision- concerning planning, licensing of instal- technologies - and also aligns well to the making lations or projects - every citizen should

14. See as an example European Community Directive 90/313 on the freedom of access to information on the environment ECOJ 1990, L 158/56, which gives a right of access to information to every citizen everywhere in the world. 15. Aarhus Convention, Article 2(4):“The public” means one or more natural or legal.

Resource Management Journal 6 be allowed to participate, or whether affected”. In substance, the solution assets. The construction of the Via Appia this right of participation should be found is the difference between “direct” in Italy some 2,300 years ago affected restricted. Again, there are, in adminis- and “indirect” concern: where the citizen and still affects planning of urban trative policy, law and practice, two con- is only indirectly affected, he is not agglomerations, villages, connection cepts which are defended. The first allowed to participate in the administra- roads etc. Discharges into water or emis- allows participation of citizens in tive decision-making. sions into the air may affect fauna and administrations’ decision-making in In environmental matters, this con- flora to a very considerable extent and those cases where the citizen is, in one cept does not really work. Indeed, the eventually destroy them altogether, be it way or the other, “affected” by the future commonplace that the environment in hundreds or thousands of years. decision16; he may be affected, because knows no (national) frontiers, raises Nuclear tests on the Bikini Atoll or in he is a neighbour, because future emis- doubts about a limitation to directly Mururoa deploy effects still in decades, if sions might impair him or because his affected persons. Where there is question not centuries from now. private rights will be touched by the to reduce the surface of a natural reserve In such cases, it is very difficult to future activity or infrastructure. Typical in order to build a motorway, not only decide, who will directly be affected by a examples of such a legislative approach neighbours are affected by such a deci- decision and should therefore participate are found in Germany and Austria, but sion, but actual - and potential - visitors in the decision-making and who is only also French administrative law tends and certainly also those persons who just indirectly affected and therefore shall into that direction. enjoy knowing that there is a scenic have no right to participate. This diffi- Administrations, courts and legal landscape at greater or smaller distance culty is increased by the fact that the writers have extensively discussed the from them. Since a number of years the concept of environmental protection is, borderline between “affected” and “not United Nations have started to recognise of course, human-based. Nobody really this situation, by attributing to monu- knows how much protection the envi- ments - but also to natural habitats, land- ronment needs, or better, how much pol- Access to the courts scapes or geographical areas - the notion lution and impairment the environment “common heritage of mankind”; this can sustain. – more frequently attribute was given to the Cathedral of This is the point of departure for the under the title Chartres and to the city of Lhasa, but also second line of thinking. As we cannot to the Victoria Falls in Africa, the Great know precisely how much environmen- “access to justice” Barrier Reef in Australia or the tal impairment is acceptable, and as the which has a more Everglades in Florida. The sense of this borderline between “direct” and “indi- award seems to be that these treasures rect” necessarily remains arbitrary, it is, human-right oriented belong not only to persons libving in the so this consideration, preferable to allow neighbourhood of them. Lawyers have everyone’s participation in environmen- connotation – is a not yet drawn any conclusion from such tal decisions. This approach has the fur- basic fundamental a globalisation of human/environmental ther advantage that technical, scientific values as regards participation in deci- and environmental know-how of inter- principle of all sions affecting those assets. ested individuals can be brought into the societies of Western Similar considerations also affect decision-making procedure at an early decisions on infrastructure projects, stage and allow better administrative civilisation.. which do not concern such specific decisions.

16. See as an example, European Community Directive 85/337 on the assessment of the effects of certain public and private projects on the environment OJEC 1985, no. L 175/40, Art. 6(2):“... the public concerned (must be) ... given the oopporutnity to express an opinion before the project is initiated”.

Resource Management Journal 7 Until now, not many industrialised tration must take “due account” of the reviewed by another administrative body. countries have taken such a broad outcome of the public participation. For It is obvious that at least some of approach. Overall, though, there seems plans, programmes and policies, the these aspects are as important as the to be a slow tendency to allow public public which may participate shall be formal participation of citizens. Indeed, participation in environmental decision- identified by the relevant public author- organising a hearing and allowing all making also of persons who are not ity. interested persons to express their “affected”17. Thus, in the Netherlands, Overall, the Convention contains a opinion or their concern regarding a the Environmental Management Act rather typical compromise text which plan or a project might be cumbersome gives everyone the right to take part and leaves most of the issue in question to and time-consuming. But it remains a to raise objections in particular to draft the legislative initiative of Contracting small burden for the administration, as decisions on permits18. Also France and Parties. long as the arguments which were sub- Ireland are relatively generous in this Allowing the citizen to participate in mitted need not be taken into consider- regard. In New Zealand, the Resource the administration’s decision-making ation or may be set aside without clear Management Act allows “any person” to process as regards environmental matters explanation, where, in other terms, the make submissions about a proposed is certainly a useful instrument to bridge deciding administration has the last national policy statement, and similar the gap between administrations and the word. The decisive element is thus that provisions apply to submissions con- citizen and to make the administration the environment is not only heard, but cerning other plans. aware of the concerns of citizen. also listened to. The Aarhus Convention differentiates However, one should be aware that par- between participation in decisions on ticipation is not and cannot be an end in 2.3 Controlling the specific activities and participation con- itself. What is in question is an adminis- administration cerning plans, programmes and policies trative decision, and society’s general This again raises the problem of the relating to the environment. As regards interest is and must be to have this deci- administration as the guardian of the decisions on specific activites - some of sion as balanced as possible. environment. In practically all industri- them are listed in an annex, others are The above-mentioned two lines of alised societies, the administration has included if they have “a significant effect approach include, in reality, a consider- been charged with ensuring the protec- on the environment. - the Convention able number of other means to further tion of the environment; it is the admin- provides for information of the “public approach this objective, such as the istration that takes the numerous concerned”19, in order to allow its par- requirement to make submissions in day-to-day decisions, where it balances ticipation. However, the procedures for writing, the requirement to justify the diverging interests and where it tries to public participation must allow “the administrative decision in writing, the ensure an adequate protection of the public” thus not only the public con- fixing of criteria for the balancing of environment. cerned to submit in writing or otherwise diverging interests20, the obligation to However, as mentioned above, “”any comments, information, analyses examine and assess alternatives to the administrations are oriented by govern- or opinions that it considers relevant to plan or the project, and the possibility to ments, their top official owe their job or the proposed activity”. And the adminis- have the administrative decision their promotion to political parties and

17. See M. Bothe (ed.):The right to a healthy envionrment in the European Union. Study, Frankfurt/M. (1997) p.10; R. Seerden-M. Heldeweg (eds) Comparative environmental law in Europe, an introductin to public environmetal law in the EU Member States. 1996 Antwerpen-Appeldoorn. 18. Netherlands,Wet milieubeheer 1993. 19. See Article 2(5) of the convention:“ ‘The public concerned’ means the public affected or likely to be affected by, or having an interest in, the environmental decision-making; for the purposes of this definition, non-governmental organisations promoting environmental protection and meeting any requirements under national law shall be deemed to have an interest”. 20. As an example, German administrative law may be quoted which requires (a) a weighing up of all diverging interests; (b) a consideration of all relevant public or private interests; (c) respect of the absolute or relative relevance of all affected interests (proportionality). The final decision may be challenged on the ground that it has not properly addresed and/or weighed all these elements.

Resource Management Journal 8 party influence is more and more felt also ronment repose on administrative deci- basic, fundamental principle of all soci- in the middle and lower management of sions. It is sufficient to compare the eties of Western civilisation. And it is administrations. Furthermore, represen- agglomerations of today with those of more than normal that access to justice is tatives of vested interests are the perma- fifty or hundred years ago, their air emis- granted also in cases where it is the nent interlocutor of administations; they sion output, their noise, their land use, administration which takes decisions try to initiate, prepare or avoid legisla- waste generation etc. to assess the that affect the environment. In all our tion, to influence its content, ask for per- changes. societies, administrations have accumu- mits and licenses, nagotiate on the Introducing the concept of checks lated the greatest amount of power: this conditions, look for opportunities etc. and balances which is originally a princi- power also needs control. The environment, in contrast to that, ple or organising governance in societies, has no voice and is not represented in into the relationship between humans these daily bargainings between the and the environment, first means trans- administration and vested interest parency in data collection and availabil- groups. It is an interest without a group. ity, so that increased knowledge does not Its omnipresence is neither ensured in lead to increased (administrative) power. discussions nor in the media which are, It further means that there is adequate It remains that also for administrations, the main source public participation in administrative of information. Environmental groups, decision-making in order to have differ- environmental researchers, institutes and other infra- ent opinions on the pros and cons of an structural instances are small, poorly administrative decision expressed. interests can be staffed and financed, compared to vested brought before a interest bodies. 3. Access to Justice If one looks into the development of court by natural environmental impairment, one has to 3.1 General problems persons. realise that it is neither the big accciden- This concept, finally, requests that, at tal pollution or the great manifest erro- the end of the day, it is not the adminis- neous decision on a development or an tration which has the final word in infrastructure project which constitutes weighing the interests of economic-social the real environmental problem, but concern and the environment. It is a fun- rather the numerous day-to-day deci- damental principle of all societies to set sions which lead to environmental up some dispute settlement mechanism impairment. It is this legalised impair- in order to settle conflicts among citizen For this reason it is, in this author’s ment which leads to accumulated, slow and between the society and the citizens. opinion, a wrong signal to declare, as it but progressively increasing quantities of In societies which were influenced by was done in the Australian chemicals which enter - in the form of philosophical reflections of Western Environmental Protection (Impact of emission, discharges, wastes or products civilisation, such dispute settlement bod- Proposals) Act 1974, environmental - the environment, to increased use of ies traditionally are courts. Access to the decisions non-justiciable21. Such an ori- land and water; put together, this consti- courts - more frequently under the title entation of law only is bound to lead to tutes the real threat to the environment. “access to justice” which has a more bitterness, frustation and increased ten- And many of these effects on the envi- human-right oriented connotation - is a sions in society, since it does mean that

21. See P.Stein, Citizen rights and litigation in environmental law.An Antipodian perspective on environmental rights, p.271 in: S. Deimann-B. Dyssli (eds.): Environmental Rights. Law, litigation and access to justice. London 1995.

Resource Management Journal 9 administrations have the last word in full equality of rights in judicial It remains that environmental inter- environmental decision-making. The slo- processes23. ests can be brought before a court by nat- gan that the king can do no wrong, Access to justice in international mat- ural persons. Where the subject-matter is became unacceptable in the 19th cen- ters needs a discussion of its own, which a neighbourhood case, no specific prob- tury; it is not democratic to believe, at would go beyond this paper. The Rio lems occur. The issue is different, where the end of the 20th century, that the Declaration limited itself to suggest in one way or the other administrative administration can do no wrong. For the “effective access to judicial proceedings”, decisions are in question, which posi- citizen “it is just not acceptable for the carefully avoiding any reference to tively or negatively affect the environ- authorities to adopt a ‘we know best- transnational aspects. Also the Aarhus ment. Should such decisions be able to posture, claiming omniscience”22. Convention remained silent on transna- be tackled in court by everybody or just While it is almost universally recog- tional aspects of access to justice. by those, who are in one way or the other nised that access to justice in environ- affected by this decision? mental matters is necessary and should 3.2 Detailed questions This issue was already touched upon deserve particular attention in view of above, when participation in administra- the precarious situation of the environ- 3.2.1 Right of standing tive decision-making was discussed26. ment, many details remain controversial. One of the most controversial ques- As regards the right of standing, attitudes The subsequent paragraphs will try to tion is who should have a right of are normally even more reserved, due to discuss some of these issues, from a legal standing. Despite the efforts of legal the more conservative nature of the judi- point of view. writers, following in that C.Stone24, a ciary and its administration. Continental It should, however, not be forgotten right of standing for the envronment European law systems tend to allow that the fact of having administrative does not seem to be recognised by any access to the courts only to persons and decisions checked by courts means first State or organisation25. The reasons for groups of persons27 which are directly of all that the power of administrations is this lie mainly, as it seems, in the diffi- affected by a decision. In this, they fol- controlled. Since nobody really likes to culty, if not impossibility to determine low the participation in administrative have to share power, it is no wonder that the procedural and substantive con- decision-making, where they also tend to administrations - in a sociological sense - tours of such a right. restrict participation to persons, which try to minimise this control, via a num- The advantages and disadvantages of are directly affected. ber of regulatory or other administrative a right of standing for the environment The notable exception in Western provisions. cannot be discussed in detail here. I see Europe is the Netherlands, which allow, Judges themselves normally belong to the main difficulty in granting such a in administrative proceedings concern- the upper middle class of a society and right of standing in that nobody can ing the environment, every citizen to are by origin, provenance and education determine whether, for instance, a tree participate in that procedure and to raise more frequently enclined to conservative needs one or five square meters as a min- objections. At the end of that process, the than to innovative decisions. As the envi- imum space, 50 liters of water per day or persons who participated in the adminis- ronment is a newcomer to the courtroom 200, active support from humans, omis- trative process, may bring the matter - as well as to the University training sions to emit pollutants or other support; before the court, if they disagree with the rooms, the media’s columns and the pub- would logging be allowed and under administration’s decision. This practi- lic’s awareness - it has to struggle to find what circumstances? etc. cally constitutes an actio popularis in

22. Lord Nathan,“Fencing our Eden”,The Inaugural Garner Environmental Law Lecture, London 1987. 23. Rio Declaration (note 1 above), Principle 10. 24. C.Tone: Should Trees Having Standing? - Toward Legal Rights for Natural Objects, Southern Californian Law Review 1972, 450. 25. See in partiuclar P.Taylor (note 7 above), p.304 et ss. 26. See page 6 above. 27. See below on the right of standing for environmental organisations.

Resource Management Journal 10 which was already mentioned that the towards sections in traditional courts environment knows no frontiers. Any which specialise in environmental issues. restriction to “directly” affected persons This tendency seems to be greater in keeps an element of arbitrariness. those countries which have not devel- Furthermore, the right of standing in oped a sophisticated system of adminis- Most industrialised environmental matters aims at ensuring trative law, including administrative countries have not that the environmental interests are duly courts, thus in particular in anglo-saxon taken care of in judicial proceedings. law and in law systems which had been specifically considered However, it is not sure at all that persons influenced by it. While these differences to take measures in who have a direct interest in an adminis- between countries with and without trative decision, necessarily also defend administrative law systems gradually dis- order to have the the environmental’s interests: indeed, appear, the different court systems were environmental first of all they defend their own interest. less easily reformed. In view of the Disadvantages linked to the general upcoming environmental concerns of interests presented in right of standing are in particular the the last twenty-five years, it might there- potential abuse of the litigation proce- fore have been tempting to set up special court. dure by competitors or other economic environmental courts. interests, but also by environmental Whether the approach of setting up organisations, who might easily be specialised environmental courts is really enclined to delay final executive deci- promising, seems doubtful. sions by filing court actions. Environmental concerns affect and influ- environmental matters. In a similar way, The interdependency of the different ence practically all aspects of life, civil the New Zealand Resource Management rights on access to information, access to law issues as well as criminal law, town Act 1991 constructs the right of standing decision-making procedures and access and country planning law, transport and for persons: any person who made a sub- to justice demonstrates in all clarity, how energy, nature and agriculture, control mission on a proposed policy statement closely a greater or less great accessibility and monitoring and many other aspects. or plan may apply to the Environment is intertwined with traditions in adminis- One of the main objectives of environ- Court, if it objects to the final administration and the judiciary. There is little mental legal policy - practically since its trative decision28. scope in opening the right of standing in beginnings - is to integrate environmen- The argument that a right of standing a judicial system, if the administration tal requirements into other policies. given to everybody would lead to a flood rather acts in a more secretive form: the Environmental policy therefore has the of procedures is not supported by the more a society acts as an open society, is objective that whenever political or data available. The Netherlands seem, transparent and participative, the more administrative decisions are taken - for overall, satisfied with the functioning of the judicial system, too, will have to be instance in areas of economy, trade, fish- the system and also in New Zealand the liberal and open to access. ery or competition -, the environmental number of cases filed with the aspects of that decision are being Environmental Court do not seem to be 3.2.2 Specialised courts weighed, discussed and adequately taken seen inflationary. There seems to be a slow tendency into consideration. In favour of a general right of stand- worldwide towards the setting up of spe- Transposed to the judicial system, ing plead in particular the argument cialised environmental courts or at least this means that the objective must con-

28. New Zealand, Resource Management Act, Schedule 1, para 14.

Resource Management Journal 11 sist of greening the judges and the judi- specialised environmental courts or whatever a court, parties to that litigation ciary, not of creating specialised courts. chambers. have a clear interest to win that litigation. Setting up specialised chambers or green The Environmental Courts set up by The interest of the environment might be courts can only be the second-best solu- New Zealand under the Resource taken into account, to the extent that it tion. There is enough education, legal Management Act rather are an illustra- coincides with a party’s own interest. But and vocational training necessary in tion of this argument. Indeed, on the one as the environment has neither standing order to sensitise the legal profession - in hand, the Act which established them, of its own nor a voice, it remains all too particular judges, attorneys and adminis- was not an environmental act, but dealt often “offside”. The right of standing for trations - all over the world to environ- with all issues of management and just every citizen, the eventual specialisation mental issues, in the same way as it was renamed the existing Planning Tribunals of the courts and even the existence of and continues to be necessary to sensitise - enlarging, it is true, at the same time legislation which has the aim to preserve them to human rights, gender problems their responsabilities. On the other hand, and protect the environment does not the Environmental Courts are not make sure that in the concrete litigation responsable for all “environmental” environmental concerns are expressed. issues. Cases on toxic tort or environ- This takes up the discussion which mental liability do not fall under their was touched upon above, i.e. the defense jurisdiction; neither would probably of the general interest. If there is a need issues on international trade in endan- to protect this general interest, and the gered species, questions of the legality of parties to a litigation do not take care of nuclear tests on Mururoa or disputes on it, one way ahead could be to charge a the export of hazardous waste be of their specific person, office or group to intro- State bodies rarely competence. duce the environment’s interests into the attack administrations Specialised courts are not a wonder- litigation. drug. Where judges have little or no Most industrialised countries have in court. environmental sensitivity, the mere exis- not specifically considered to take meas- tence of specialised courts does not yet ures in order to have the environmental garantee improved protection of the interests presented in court. For making environment. Rather, the question the environment’s voice heard in general, whether specialised environmental there are institutions set up such as an courts should be established, depends on environmental ombudsmand, a govern- a number of circumstances such as judi- mental or Parliamentary Commissioner cial tradition, administrative law and the for the environment, a governmental relevance of the environmental law in the advocate or an agency. These bodies general context. No solution once and mainly act outside judicial litigation, or the protection of minorities. The for all and for all legal cultures exists. though sometimes they have the (theo- necessity to take environmental require- retical) possibility to intervene in indi- ments into consideration whenever judi- 3.2.3 Rights for environmental vidual cases or to bring themselves an cial decisions are taken which affect the organisations action before a court. environment29 strongly pleads against Wherever a litigation brought before The construction of all these bodies

29. P.Taylor (note 7) p.290 refers to the international discussion on the notion of “environment” which can “signify any point on a continuum between the entre biosphere and the immediate physical surroundings of a person or group”.Transferred to the discussion on specialised courts this observation means that any judicial judgment or decision should take environmental concerns into consideration, whether that judgment concerns the entire biosphere or whether it concerns the immediate physical surroundings of a person or group.

Resource Management Journal 12 suffers from the fact that they are, one to protect the environment, to tackle There is one other major reason for way or the other, dependant on public administrative decisions affecting the proning this way: State bodies rarely funding and have to lay accounts. This is environment as affecting their own inter- attack administrations in court. also the case, where, such as in New ests30. Dutch courts went so far as not However, as the administrations are Zealand, the Commissioner for the only allowing environmental organisa- obliged to take a very great number of Environment is responsible to the tions to stop administrative activities decisions which affect the environment, Parliament and not to the government which impaired the environment, but it is more than anything else necessary directly. Indeed, the crucial point of all also to grant financial compensation, also to control their measures. The these bodies is the dependance on pub- because a (private) polluter had damaged administrations are neither the owner lic funding, which is often attributed the environment31. nor the holder of the environment. annually. This inevitably leads to certain Frequently, in particular in Western Rather, they act as guardian of the envi- reservations as regards any fundamental Europe, judicial action by environmental ronment, which means that they exercise criticism of the respective government - groups is limited to nature protection considerable power, and this power or the parties and groups supporting cases, where several States are rather lib- needs control, including judicial control. this government. It is only logical that eral in accepting judicial actions by envi- Neither citizens nor vested interest many of the different bodies see their ronmental organisations in the general groups alone are capable of controlling role more and primarily in mediation interest. The problem of funding the the administrations in this function. than in legislation. organisations’ actions remains and will Environmental organisations, acting in As regards litigation, the only reason- be discussed below. the general interest, are well capable to able way forward seems to be to rely on Experience in European States, but exercise at least some control over the groups and attorneys which defend the also elesewhere, seems to show that State administration’s environmental deci- general interest “environment” for its bodies such as Ombudsmaend, are too sions. And the citizens’ and society’s con- own sake. In particular the United States close to the policy being pursued by gov- fidence in the neutrality of the judiciary with its huge potential of fund-raising ernments in order to take cases to courts system is still greater than in that of the through charities, foundations and other where the environment is impaired or administration. means, have developed some rather effi- threatened to be impaired. And the The Aarhus Convention is structured cient systems of public interest litigation. greater the political interest in a specific on the same line of thinking. It suggests In Europe, there is a prudent tendency to project - a national airport, an important that Contracting Parties give the public increase the possibility for environmental bridge, the enlargement of a harbour or concerned wide access to justice, and organisations to take action in court. the construction of a motorway - , the that non-governmental organisations Once more, in particular, the greater the reluctance of such State bod- “promoting environmental protection Netherlands proved to be quite liberal: ies not to get involved in the political and meeting any requirements under they stated in their environmental legis- discussions and thus to abstain from national law” shall be deemed to have a lation that the interest for which a private judicial control. The way to allow envi- sufficient interest to be concerned by an - thus an environmental - organisation ronmental organisations to go to court in administrative decision affecting the was established, was to be considered as order to defend the environment, if nec- environment, or “shall be deemed to its own interest. This construction essary also against vested - or even pub- have rights capable of being impaired” allowed environmental organisations lic - interests, seems therefore the most where national law so requires32. which had in their statute the objective practical.

30. Netherlands, Supreme Court, case “De Niewe Meer”, judgment of 17 June 1986. 31. Netherlands District Court of Rotterdam, case “Borcea”, judgment of 15 March 1991. 32. Aarhus Convention, Article 9; the full text of Article 9 is reproduced in the annex; it well shows the two diverging lines of thinking on access to justice mentioned in this contribution.

Resource Management Journal 13 3.2.4 Financial barriers and vested interest groups, but also to justice”33. Under national law, the Court litigation costs money, for the administration which has quasi basic problem remains, in particular the court system itself, for the attor- illimited financial means on the other where the courts have discretion to neys and for the handling of the indi- hand, is grotesquely uneven. One lost charge the parties with all or parts of vidual case. In environmental matters, litigation may cause considerable the cost. these costs are frequently prohibitive: financial constraints to an organisation In view of the rather national char- first, legislation protecting the envi- acter of the different court and attor- ronment is drafted in loose terms and ney fee systems, relatively little gives a broad discretion to administra- international discussion on financial tions to act - or not to act. As the judi- barriers to access to environmental ciary power traditionally recognises justice has taken place until now. A that the administration benefits of way out of the financial difficulties executive discretion for its decisions, could be to fix, by way of statutory there is a marked reservation to put rule, a lump sum which would consti- the administration’s decision in ques- tute the upper limit of court costs to tion. This makes the calculation of the be paid by environmental organisa- financial risk to go to court difficult. tions. This proposal does not solve the Second, the economic power of general financial problem of environ- environmental organisations or indeed mental organisations, but might allow Ludwig Krämer of individual citizens on the one hand, appropriate judicial action at least in and oblige it to sharply control its some key cases. If it were limited to budget, whereas it is most frequently organisations which have the statutory financially irrelevant to economic objective to defend the environment, operators or the administration. This such a measure would not deliver the basic inegality makes access to justice windfall advantage to economic com- Access to justice, in in practice unevenly balanced. The petitors which often use court pro- inegality is increased, if one includes ceedings rather in order to promote all industrialised the costs to prepare cases, to employ their own economic interests and countries, is easier for or hire experts, counsellors or expert- delay decisions. ise in order to back up a case. It is obvious that a solution which the rich than for the Legislation seems unable to solve fixes ceilings for court and all other poor and this problem. On the international costs for environmental organisations level, the Rio Declaration remained immediately provokes the reproach environmental cases silent on the issue of costs of litigation. that new inegalities would be created, The Aarhus Convention stated that certainly are “poor” this time in favour of environmental judicial review should not be “prohib- interests. However, it must not be for- cases. itively expensive” and invited gotten that environmental interests are Contracting Parties to “consider the general interests and that environmen- establishment of appropriate assis- tal organisations which raise these tance mechanisms to remove or reduce interests during a court litigation, pro- financial and other barriers to access

33.Aarhus Convention, Article 9 (4 and 5).

Resource Management Journal 14 mote and defend general interests. aid systems to facilitate access to jus- from government grants and contracts. Integrating environmental require- tice for diffuse interests. Worldwide as Where the system of foundations and ments into other policies also signifies well as within the individual states, charity fund raising is less developed, that environmental awareness is the gap between the rich and the poor such systems stand and fall with the raised – including in the judiciary - deepens. And while this author is con- availability of public money, which that a voice is given to environmental vinced that it is the rsponsability of raises similar problems as a sophisti- concerns and that the courts which any political system and that of law to cated legal aid scheme. constitute the arbiters in conflicts reduce the disparities, he is well aware The system of governmental advo- between general and vested interests, that this concept of policy and law is cates34 was already shortly mentioned have a possibility to weigh the argu- not, at the outgoing twentieth century, above. Again, the representation of the ments in favour of the environment. a popular one, which helps to win “Audiatur et altera pars” - the old Latin elections. Sharing wealth - including saying, transferred to the end of the the wealth of equal access to justice twentieth century, needs to be inter- for all interests - is rather being preted in a way that also financial denounced as trying to bring socialism meachanisms are created to have the to the economic and societal system: environment heard. and this is heresy. Limiting the financial risk of envi- This be, as it is: there seem to be, More consideration ronmental organisations is one option. anyway, no examples worldwide, needs also be given Another could be to provide for a gen- where legal aid systems really helped erous legal aid system in environmen- to ensure appropriate defense of envi- to the possibility to tal cases for those who defend ronmental - or, more generally, of dif- organise small claims environmental interests. Worldwide, fuse – interests in the machinery of legal aid systems are very differently justice. in environmental organised. They normally meet objec- Other models of overcoming the matters. tions from the class of solicitors - and financial barriers for citizen in envi- probably of the class of judges. The ronmental matters have not either reason for that is that legal aid has proven to be successful. The idea of never really been able to overcome its public interest attorneys, who defend provenance of providing services for environmental interest in court, with- the poor. And this image disturbs the out charging the individual plaintiff or social prestige of the legal profession. the environmental organisation with The worldwide trend, in all legisla- costs, has developed particularly in environment by such advocates suffers tion, procedures and policies to make the United States in the aftermath of from the general scarcity of public decisions dependant of cost-benefit the 1960s. However, public interest funding and has therefore inevitably to results, and the growing reluctance to attorneys also must find their living. be selective as to the cases which are recognise other values than economic Their main income in the United picked up for action. Furthermore, the values as important, clearly works States came and comes from founda- proximity to the administration in against the setting up of efficient legal tions and private contributions and power suggests prudence and reserva-

34. Governmental advocates who represent the general interest, may have a much larger function than just the environment. In the United States, they sometimes also represent the elderly, mental patients, consumers of utility services or transport services; in Germany, they represent the protection of privacy or immigrants. The present contribution leaves aside other aspects than environmental ones.

Resource Management Journal 15 tion in taking action against projects sider to be appropriate, i.e. to go the supreme court, the Conseil d’Etat, which are favoured by that administra- ahead with the project. have remained without effect for that tion35. The same applies to the The construction of the Via Appia very reason, is only the best known ombudsmand system which has par- was already mentioned as an example example of this kind. ticularly developed in Scandinavian where economic or infrastructural It is obvious, though, that ques- countries; it remains, however, decisions may have long-term effects tions of avoiding delays of decision- extremely rare that an Ombudsmand on the environment. Europe still has a taking in administrative and judicial takes court action. number of mines and quarries which matters do not always receive the nec- As these remarks show, there is no were used in Roman times, and a con- essary attention. As far as administra- king’s way to overcome the problem of siderable number of abandoned indus- tive decisions are concerned, it is financial barriers to access to justice in trial sites from the nineteenth century rather exceptional that a legislation environmental matters. Access to jus- continue to impair or pollute the envi- provides for administrative decisions tice, in all industrialised countries, is ronment. In view of this, it might be having to be taken within a specific easier for the rich than for the poor an imperative that, before a fait time-span, for instance after full sub- and environmental cases certainly are accompli is created with the help of an mission of the required documenta- “poor” cases. Whether one is entitled administrative or judicial decision, all tion. Since most of the administrative to talk of an equitable system of access aspects are careful considered and legislation is prepared by the adminis- to justice where such access is barred weighed. tration itself, it is easy to understand to some interests because of financial Furthermore, the use of land to such a reservation. It would probably reasons is a question which each build as well as a number of other uses be quite beneficial, also for adminstra- nation or society has to answer for of the environment are irreversible: tive proceedings such as public hear- itself. the environment will never become ings, environment impact assessments the same afterwards. This suggests a etc. to have maximum delays for their 3.2.5 Delays careful balancing; and the economic termination fixed in legislation. Of Any measure which is taken in activity is not to be started before the course, such delays could only apply judicial litigation to give appropriate administrative and judicial decision- once the applicants have submitted all representation to environment’s inter- making phase is finished; furthermore, necessary documentation and material ests, meets the objection that it makes the courts must have, at any moment, which allows the decision to be taken. the dispute settlement procedure the possibility to take interim meas- Fixing delays within which a court unduly long and allows delaying tac- ures and suspend progress in work in has to give a judgment has also the tics to be exercised. From the point of order to avoid the irreversible environ- advantage of ensuring that cases on view of persons who look for develop- mental effect of the economic activity planning consent or other environment consent for a project or any in question. Indeed, nothing discredits mental matters are, de facto, handled other authorisation to start an eco- a judicial system more than a judg- by a limited number of attorneyss, nomic activity, there is likely to be ment which cannot be executed who are then able to influence the almost always the feeling that an because, in the meantime, a bridge has speed of judiciary action. extensive discussion of environmental been built, an airport constructed etc. Similar considerations apply to judi- considerations constitutes a delay in The French judicial system, where a cial procedures. Legislation almost taking the decision which they con- number of environmental decisions by never provides for delays within which

35. Some years ago, this author discussed in a conference with the Portuguese Bar Association, why there was no court action taken against a motorway project which seemed to be in conflict with existing provisions which aimed at the protection of the environment. The answer was that it was not favourable for a Portuguese solicitor to take action on a project where he new that the Government was in favour of it. If this is the situation of private advocates, one might imagine the attitude of public advocates in some countries.

Resource Management Journal 16 a court shall take decisions. The only ent parts of it, on the number, fre- mental matters which are to be men- exception known to this author is the quency and intervals for audiences to tioned. While it seems vital that some- Dutch Environmental Management Act hear witnesses, the time-span between body is allowed to defend such 199336 which stipulates in Article 20 the application to the court and the environmental interests in court and that the Court shall decide on an appeal judgment, on the respective duration while, therefore, environmental organ- under that Act within twelve months. of water and air pollution cases, plan- isations should have a large right of Judges claim, of course, that it is ning consent cases for road construc- standing which enables them to be part of their judicial independance to tion and urban development projects present in courts at affordable costs, fix themselves the moment when they and other elements which could be there remain numerous situations, take a decision in a case that is sub- compared between different decision- where the individual citizen, in the mitted to them. Generally, this argu- making bodies. Such statistics can pursuit of his own interests, may also ment is certainly not to be contested. help to explain differences in speed of defend the environment. This concerns This, however, does not change the different chambers/courts and for instance noise from airplanes, land another basic requirement of justice, might contribute to a better concen- expropriation for the construction of a that justice must be delivered in time. tration of procedures and a more road, water pollution and hobby fish- Not controlling courts as regards the rational distribution of work load. erman’s right etc. Present European timely delivery of judgments is an These and other organisational drinking water law40 is constructed in omission which invites judges to aspects should not make forget that the a way that tap water must comply with abuse the discretion of which they dis- drafting of precise legislation may also certain standards; otherwise, the indi- pose. Furthermore, it should not be help shortening proceedings in court. vidual citizen has a right against the forgotten that not seldom one of the To give but one example: European water supplier of reducing the water reasons of judges for not taking deci- Community environmental impact leg- bill, of finishing the contract or of sions is the lack of courage to assume islation38 requires the developer of a insisting to have “legal” water sup- responsability37; hearing further wit- project to indicate in his application plied. Some French courts have nesses, asking for further technical or for planning consent the most impor- granted financial compensation. But scientific expertise etc. allows to post- tant alternative options to his project, most citizens - including consumer or pone a judgment even in cases which if he has studied any; but it does not environmental organisations or even are “ripe” to be decided. request him to study such options. Of lawyers - in most European countries Possibilities to speed up judicial course, this leads to lengthy discus- ignore this right. decisions will rely to a large extent on sions in courts, whether the option Knowledge of rights and of the the self-regulating capacity of the judi- chosen by the operator was really the cause of action in environmental mat- ciary. One important element is the one which constituted the option that ters is capable of being considerably establishment of statistics on the out- least impaired the environment39. improved. Frequently, environmental put of the different judges, chambers pollution and destruction is taken, by of a court and the different courts. 3.2.6 Other aspects the individual citizen, as an act of God Statistics could be set up on the There are other elements of a fair against which nothing can be done. length of procedures and of the differ- system of access to justice in environ- Better information, education and

36. Netherlands,Wet milieubeherr 1993, Article 20(2). 37. In his Divina Commedia, Canzone III, Dante Alighieri did not even allow the entry into hell to those persons who had, during their lifetime, not taken the necessary decisions; this, his reasoning, was far worse than taking wrong decisions. 38. European Community Directive 85/337 (note 3). 39.Though formally the least impairing option need not be taken, in practice an impact assessment is frequently considered deficient, if it can be shown that other options had less effects on the environment. 40. European Community Directive 80/778 on the quality of water for human consumption, OJEC 1980, no.L 229/11, Article 7(6).

Resource Management Journal 17 training on causes of environmental potential plaintiff is poor, uneducated, an when defending their own interests, also pollution and citizens’ rights can not immigrant or otherwise part of a minor- to raise arguments and provisions which only reduce environmental degrada- ity. The psychological barriers may be, in serve the protection of the environment. tion, but even prevent judicial action. concrete cases, as powerful and efficient For this, the philosopher Arnold More consideration needs also be as any other barrier to justice and it is up J.Toynbee once used the picture of a given to the possibility to organise small to legal profession, to transparency, infor- wheel turning around itself and yet claims in environmental matters. mation and participation measures to allowing the car to advance. Concentrations of pesticides in drinking reduce them, as they only contribute to a The legal systems continue to be water, excessive noise levels, air pollu- closed society system. largely nationally organised. No clear tion by cars or from other sources - idea exists how to organise access to jus- numerous daily impairments pass not 3.3 Environmental justice tice for transboundary matters, such as unnoticed, but unsanctioned, because Historically, philosophically and climate change, tropical forests decline, the individual citizen does not care, can- legally, it seems doubtful whether the biodiversity loss and other items. This not afford or is unable to pursue his right notion of justice which Aristotle first contribution has not either dealt with to an unimpaired environment. Linking brought to flourish in our society, can this topic, essentially for lack of time. In small claims with injunctive relief possi- mean anything more than justice among the final analysis, the perception of a bilities in order to enable breaches of human beings. Nobody is capable to global environment and the organising of environmental legislation to be brought define environmental justice, i.e. doing access to justice at national level are to a halt can be a way forward to ensure justice to the environment. This becomes incompatible. Global problems need that environmental protection is not per- more obvious where there is question of global justice and global access to justice. ceived, by the citizen, as limited to trop- how much protection the environment This will have consequences for national ical forests, climate change and ozone of future generations requires41. Since sovereignty, ecological interference and depletion. Fixing such a procedural right this is as it is, there is need, in order to for the legal systems and professions. It is to request an injunctive relief in court do justice to the - present and future - time to begin reflection on this. against breaches of environmental provi- environment to make sure that in dis- Earthly justice will never reach the sions comes, in substance, close to grant- putes which affect the environment, ideal of justice on earth. As regards envi- ing an individual right to a clean and these environmental interests can be ronmental justice, however, a number of healthy environment. heard. Access to environmental justice rather concrete measures can be taken in Access to legal justice need also take tries to accumulate the different means the organisational structure of adminis- into consideration psychological ele- and measures to make the voice of the trative and judicial dispute settlement ments. Often societal pressure or social environment heard in dispute settlement systems to reduce injustice and to ensure duties make it difficult or impossible to cases and in particular in court cases, better protection of the environment - take judicial action against local mayors mainly via procedural provisions. which is our common inheritance, our or administrations, big companies which As it is not known, how the general interest and our future. are important local employers, the gov- public(general) interest “environment” ernment, a prominent member of the can best be represented in dispute settle- Annex governing political party or another ment procedures, the second best solu- Aarhus Convention on access to socially important body. And this psycho- tion consists in counting on the information, public participation in deci- logical barrier is all the higher, where the selfishness of citizens and allow them, sion-making and access to justice in

41. See the famous description of “sustainable development” in the 1987 Brundtland-Report to the United Nations “Our Common Future”: “Sustainable development is the development which meets the needs of the present without compromising the ability of future generations to meet their own needs”. It is charac- teristic that there is question of future generations only, thus of future human beings - but not of the environment as such!

Resource Management Journal 18 environmental matters decision, act or omission subject to the to paragraph 1 above, the procedures Article 9 Access to Justice provisions of article 6 and, where so pro- referred to in paragraphs 1, 2 and 3 1. Each Party shall, within the frame- vided for under national law and without above shall provde adequate and effec- work of its national legislation, ensure the prejudice to paragraph 3 below, of tive remedies, including injunctive relief that any person who considers that his or other relevant provisions of this as appropriate, and be fair, equitable, her request for information under article Convention. timely and not prohibitively expensive. 4 has been ignored, wrongfully refused, What constitutes a sufficient interest Decisions under this article shall be whether in part or in full, inadequately and impairment of a right shall be deter- given or recorded in writing. Decisions answered, or otherwise not dealt with in mined in accordance with the require- of courts, and whenever possible of other accordance with the provisions of that ments of national law and cosistently bodies, shall be publicly accessible. article, has access to a review procedure with the objective of giving the public 5. In order to further the effectiveness before a court of law or another inde- concerned wide access to justice within of the provisions of this article, each Party pendent and impartial body established the scope of this Convention. To this shall ensure that information is provided by law. end, the interest of any non-governmen- to the public on access to administrative In the circumstances where a Party tal organisation meeting the require- and judicial review procedures and shall provides for such a review by a court of ments referred to in article 2, paragraph consider the establishment of appropriate law, it shall ensure that such a person 5, shall be deemed sufficient for the pur- assistance mechanisms to remove or also has access to an expeditious proce- pose of subparagraph (a) above. Such reduce financial and other barriers to dure established by law that is free of organisations shall also be deemed to access to justice. charge or inexpensive for reconsidera- have rights capable of being impaired for tion by a public authority or review by the purpose of subparagraph (b) above. Bibliography an independent and impartial body other The provisions of this paragraph 2 • Ambiforum (ed.) O acesso ‡ justica em than a court of law. shall not exclude the possibility of a pre- matÈria de ambiente. Lisboa 1993. Final decisions under this paragraph liminary review procedure before an • Betlem, G.: Transboundary enforce- 1 shall be binding on the public author- administrative authority and shall not ment: free movement of injuctions, ity holding the information. Reasons affect the requirement of exhaustion of p.184 in: S. Deimann-B. Dyssli (eds): shall be stated in writing, at least where administrative review procedures prior Environmental rights. London 1995. access to information is refused under to recourse to judicial review procedures, • Betlem, G.: Standing for ecosystems - this paragraph. where such a requireement exists under going Dutch, in: European Universtiy 2. Each Party shall, within the frame- nattional law. Institute (ed.): Access to Environmental work of its national legislation, ensure 3. In addition and without prejudice justice. Ms. Fiesole 1994. that members of the public concerned: to the review procedures referred to in • Betlen, G.: Enforcement of EC environ- (a) Having a sufficient interest; or, paragraphs 1 and 2 above, each Party menal law in the light of the 5th action alternatively, shall ensure that, where they meet the programme, p. 119 in: N. Reich - R. (b) Maintaining impairment of a criteria, if any, laid down in its nation- Heine Mernik (eds): Umweltverfassung right, where the administrative proce- allaw, members of the public have access und nachhaltige Entwicklung in der dural law of a party requires this as a to administrative or judicial procedures Europ‰ischen Union. Baden-Baden precondition, has access to a review pro- to challenge acts and omissions by pri- 1997. cedure before a court of law and/or vate persons and public authorities • Bilderbeek, S.: Biodiversity and inter- another independent and impartial body which contravene provisions of its national law; the effectiveness of interna- established by law, to challenge the sub- national law relating to the environment. tional environmental law. Amsterdam stantive and procedural legality of any 4. In addition and without prejudice etc. 1992.

Resource Management Journal 19 • Bosselmann, K.: Im Namen der Natur. Environmental rights. London 1995. Nespor (ed.) Rapporto mondiale sul Bern-München-Wien 1992. • Kjellerup, U.: The Oeresund litigation diritto all’ambiente. Milano 1996. • Bosselmann, K.: Ökologische in Denmark, p.166 in: S. Diemann-B. • Reich, N.: Public interest litigation Grundrechte. Baden-Baden 1998. Dyssli (eds) Environmental rights. before European jurisdiction; p.3 in: H. • Both, M. (ed.): The right to a healthy London 1995. Micklitz-N. Reich (eds): Public interest environment in the European Union. • Lambrechts, C.: L’accés á la justice des litigation before European courts. Report by the European Environmental associations de défense de l’environ- Baden-Baden 1996. Law Association (1996). nement en Europe occidentale, p.409 in: • Reich, N.: B¸rgerrechte in der • Boyle, A.: International law and trans- M. Prieur et C. Lambrechts (eds): Europáischen Union. Baden-Baden boundary access to justice, in: European Mankind and the environment; Ètudes 1999. University Institute (ed.): Access to envi- en hommage á Alexandre Kiss. Paris • Sands, P.: Access to environmental jus- ronmental justice in Euorpe. Fiesole 1998. tice in England and Wales. Principles, 1994. • Littmann-Martin, M.: La protection practice and proposals in: European • Cameron, J.: Judicial review of goern- pénale de l’environnement en droit fran- University Institute (ed.): Access to ment decisions: the Thorp litigation in cais, p.230 in: S. Deimann-B. Dyssli Environmental Justice in Europe Ms. the UK, p. 97 in: S. Diemann-B. Dyssli (eds): Environmental rights. London Fiesole 1994. (eds): Environmental rights. London 1995. • Seerden, R.-Heldeweg, M. (eds): 1995. • Micklitz, H.W. - Reich, N. (eds): Public Comparative environmental law in • Cappelletti, M. (ed.): Access to justice interest litigation before European Europe. Antwerpen-Appeldoorn 1996. and the welfare state. Alphen/R. - Courts. Baden-Baden 1996. • Sioutis, G.: Greece environmental law Bruxelles-Stuttgart-Firenze 1981. • Milieukontakt Oost-Europa (ed.): and judicial review, p.195 in: S. Nespor • Darroch, F.: Recent developments in Dutch environmental organisations go to (ed.): Rapporto mondiale sul diritto del- UK environmental law, p.293 in: S. court. Amsterdam 1994. l’ambiente. Milano 1996. Nespor (ed.) : Rapporto mondiale sul • Ormond, T.: “Access to Justice” for • Stein, P.: Citizen Rights and litigation in diritto all’ambiente. Milano 1996. environmental organisations in the environmental law: an antipodean per- • European University Institute (ed.): European Union, p.71 in: S. Deimann-B. spective on environmental rights, p.271 Access to environmental justice in Dyssli (eds): Environmental rights. in: S. Deimann-B. Dyssli (eds) Europe. Ms. Fiesole 1994. London 1995. Environmental rights. Law, litigation • Flores, M.: Environmental law in • Paleologou, E. and others: Le droit des and access to justice. London 1995. Portugal, p.271 in: S.Nesport (ed.) assciations d’ester en justice en France, • Taylor, P.: International human rights Rapporto mondiale sul diritto all’ambi- en Gréce et au Royaume Uni. Etude B4- and the environment, p.234 in: K. ente. Milano 1996. 3047-16118 pour la Commission Bosselmann: ökologische Grundrechte. • Futrell, J.W.: Environmental rights and européenne. Bruxelles 1992. Baden-Baden 1998. the Constitution, p.515 in: Associacâo • Prieur, M.: Le droit á l’environnement • Waite, A.J.: Environment rights under Portugues para o direito do ambiente et les citoyens: la participation, p.181, in: English law, p.337 in: Associac‚o por- (ed.): Guaranteeing the right to the envi- Associac‚o Portuguesa para o direito do tuguesa para o direito do ambiente (ed.): ronment. Lisboa 1988. ambiente (ed.): Guaranteeing the right to Guaranteeing the right to the environ- • Hatton, C.: WWF UK, An Taisce and the environment. Lisboa 1988. ment. Lisboa 1998. the Burren; the standing of environmen- • Raum-Degréve, R.: La reconnaissance • Wegener, B.: Rechte des Einzelnen; die tal groups before the European courts, du droit á l’environnement au Grand- Interessentenklage im europáischen p.87 in: S. Deimann-B. Dyssli (eds): Duché de Luxembourg, p.239 in: S. Umweltrecht. Baden-Baden 1998.

Resource Management Journal 20 How the Environment Court decides Engineering Disputes by David Sheppard, Principal Judge, New Zealand Environment Court

Paper for Australasian Environmental Engineering Conference, Auckland, July 1999

The New Zealand Environment considerable substance showed the accept- be the purposes of the legislation, the sus- Court ance of appeals to an independent judicial tainable management of the environment, In New Zealand, environmental and body. Electricity generation projects, an the integrity of planning instruments, and planning disputes are mostly decided at ammonia urea plant, timber and pulp the general quality of environment. first instance by local authorities, or by mills, gold and coal mining, methanol, syn- The opportunity for appeals encourages commissioners appointed by them. As thetic petrol, liquefied petroleum gas, port greater openness and impartiality in coun- they have gained experience, councils have developments and marinas, shopping cen- cil decision-making, and enhances public generally been providing high quality deci- tres, dairy factories, and other major infra- confidences in the process. Appeals also sions. A very high proportion of council structure projects have been reviewed. provide an opportunity for consistency of decisions are satisfactory to those affected, What is at stake is not always measur- decisions, without denying opportunities and there are relatively few appeals. able in money. The issues often include to apply local policies in response to needs Even so, misjudgements can occasion- questions of public safety, or the quality of and values of the district. ally occur. An elected council relies on people’s living and working environments, The body which hears and decides envi- majority support, and may not always be or Maori spiritual and cultural interests. ronmental appeals in this country is called able to balance well the interests of minori- In the general courts, there is usually the Environment Court. It provides an inde- ties against those of the majority. If justice a right of appeal to provide an opportu- pendent, judicial and expert forum. Sittings is seen to be done, if sense of grievance is to nity to correct any mistakes. In the same of the Court usually comprise a specialist be allayed, it is important to provide oppor- way, there are opportunities to appeal Environment Judge and two Environment tunity for a decision to be reviewed on its environmental decisions, so that people Commissioners, who are not lawyers but merits by a competent and independent will relevant skills and experience can have other relevant qualifications, often tech- body. Appeals can protect the rights and hear from everyone with an interest in nical skills. The Environment Court also interests of minority sections of the com- the dispute, look at it afresh, and give an decides questions of law associated with munity from erosion by the majority. independent and fully reasoned decision. environmental and planning law, and can In this country, 45 years experience These appeals are not just disputes make enforcement orders for compliance have shown the value of having a system about questions of law. Nor are they nor- with environmental law. The Court holds for appeals from local authority decisions mally disputes about what has already hap- sittings in public, and travels to all major to an expert judicial body which comes pened. These are mostly disputes about the towns in the country to hear appeals. It gives to the locality, hears evidence, sees the future. In many cases there are public inter- fully reasoned written decisions. site, and gives judicial decisions. ests that may transcend the private interests Deciding disputes among experts It is not only the number of appeals, of parties to the litigation. The parties may Many of the cases in the Environment but the scale and nature of the issues, that not present the public interests for consid- Court involve issues, often complex warrants the appeal system. Projects of eration. Examples of public interests might ones, where specialist knowledge or

Resource Management Journal 21 technical expertise needs to be applied in reach a decision on the case. The Court Scientific knowledge about possible health a judicial manner. The experience, qual- recognises that the state of knowledge effects from those activities is not complete. ifications and skills of the members of about a particular question may be No one was able to say with absolute con- the Court in a range of disciplines allows incomplete. Yet its duty is to make a deci- fidence and certainty that there was no risk a deeper understanding of expert evi- sion, on the current state of knowledge. It at all of any harm to the health of anyone. dence that needs to be evaluated. does so on the balance of probabilities, In effect the question the Court had to Participation in decision-making by having regard to the gravity of the matter decide on behalf of the community was a expert commissioners is valued for two in question. The Court expects that like judgement of degree: How safe is safe reasons. The first is the special expertise any other evidence tending to establish a enough? The Court was better qualified to that each commissioner possesses and can contested fact, the grounds for opinions make that judgement by having heard the contribute to the understanding and on scientific or engineering issues should expert witnesses give their evidence and deciding of appeals. The second is that be exposed to testing to assist the Court to had it tested in cross-examination. But in because many decisions involve questions make a finding one way or the other. the end the cases were not decided on a sci- of degree or value judgments, the opinions There are usually two stages in deciding entific or technical question, but by a of the commissioners, as informed mem- cases where there is scientific or technical judgement whether the possibility of harm bers of the community, add acceptability issue. The first stage involves deciding on was so remote that the facilities should be and legitimacy to the Court’s decisions. the relevance and probative value of the allowed. Further judgments of degree If a final decision-maker of environmen- scientific evidence. Considerations about arose in the setting of conditions of consent tal issues is to improve the quality of deci- the methods used, and the scientific princi- restricting the power of the transmissions. sion-making, it needs to include people who ples on which the evidence is based are rel- In one of those cases the Court said: themselves have technical expertise at least evant at that stage. The second stage We are as confident as we can be in the equivalent of those making the primary involves weighing the evidence against the the circumstances that transmissions decisions. The evidence of expert witnesses, relevant provisions of the legislation under complying with such a condition would much as it is valued, is not a substitute for which the case arises. At that stage the cause no harm to anyone. well-qualified decision-makers. The expert- Court may adopt a precautionary approach In the LPG cases there was also an ise of Environment Court commissioners is to reflect a degree of uncertainty. issue of How safe is safe enough? There not to provide detailed knowledge of the Judgments of degree is no doubt that bulk storage of liquefied matter in issue, but to bring to the Court’s In practice the decision of cases which petroleum gas, even retail stocks of it, are deliberations the perspective and general involve substantial disputes of a scientific inherently unsafe in that without ade- understanding of the professional discipline or technical nature seldom turns on the quate precautions there could be an or background of which they have experi- finding on the technical issue. The appli- explosion of awe-inspiring proportions ence in practice. Further, participation in cation to the finding on those issues usually which could cause widespread casualties the decision-making by people who are not involves a judgement of degree, or a judge- and property damage. Of course the lawyers brings values other than a lawyer’s ment on an open broad issue such as the proponents maintained that the facilities world-view to the Court’s deliberations. sustainable management of resources. This would be designed to incorporate many When conflicts arise between expert is best understood from particular cases. safety features which met the highest witnesses, the Environment Court under- In the cellphone transmitter cases, normal level of safety practice in the stands its role as being, not to conduct a opponents raised concerns about health industry world-wide, and that the risk of scientific inquiry to discover absolute hazards from radio-frequency transmis- failure was extremely low, and much truth, nor to judge between the expert sions. Similar issues arose in a case about more remote than the risk of many witnesses, but to make a finding on a electric and magnetic fields around a high- everyday activities. That was questioned point on which a finding is needed to tension electricity transmission line. by the opponents who challenged the

Resource Management Journal 22 adequacy of the buffer zones, the reliabil- The Court was not satisfied that the irri- flows for different seasons of the year in ity of the safety precautions, and the gation disposal system had been designed response to those conflicting interests quality of the management in the long sufficiently fully to enable a responsible involved a value judgement. term. Again it was no possible to find decision to be made about the likely In another case the Court had to con- that there was no risk at all of fire or effects. These cases involved judgments sider a water conservation order for a river. explosion. Typically the judgement was about the degree of assurance that objec- The existence of a conservation order one of degree, as in one case: that the LPG tionable smells would be avoided. would, not in law but in practice, effectively depot would be so well designed, constructed Minimum acceptable flows had to be deter developers from further investigation and operated that disastrous failure cannot set for a river from which water is diverted of the river’s potential for electricity genera- be foreseen in the anticipated circumstances to another catchment for electricity generation. The Court found that two gorges in the of its existence. It follows that the proposed tion. The existence of lawful uses of water river had outstanding scenic characteristics, use is not likely to have an adverse effect on of the river had to be considered, as did that the upper reaches had outstanding trout the safety of people. Maori traditional, spiritual and cultural val- fisheries, and a certain stretch provided out- Animal processing plants produce ues, and instream ecological values. There standing water-based recreation. The Court wastes which need careful handling to was no priority for any of those interests, also found that if hydro-electricity dams on avoid adverse effects on the environment. A they had to be given the weight which the the river were restricted to the extent neces- proposal for rendering animal wastes was evidence indicated they deserved. Existing sary to protect the natural water amenities, opposed on the ground that objectionable uses (including those of national interest) less electricity would be able to be generated odours would reach other properties in a were to be evaluated for the benefits from the lower dams than the river’s flow relatively closely occupied rural area. The derived from them and any resulting disad- had capacity to generate, and that electricity design included a biological filter for treat- vantages. Nor were future potential uses to would be much more costly to generate. ing the odours before discharge to the be ignored, or given priority over others. However appreciation of the need for hydro- atmosphere. The applicant offered assur- The Court found that the diversion for electric generation in the second decade of ances about the efficacy and reliability of the electricity generation had considerable the next century might not prove to be par- air control equipment. The Court found value to the nation. The diversion also had ticularly reliable. The Court made a judge- that there was a plausible risk (albeit of low adverse effects on Maori values, on natural ment that the need for additional generation probability) that as a result of management features of the river, and on recreation and from higher dams, and for avoiding the extra error, malfunction or mechanical failure, tourism in the region. The adverse effects cost of electricity from the lower dams, was objectionable odour would reach other were so substantial that the existing regime not sufficient to displace the presumption in properties, and escape of odour would have could not be permitted to continue. favour of conservation. Hydroelectric gener- high potential impact. For a new plant out although substantial commitment had been ation could be accommodated to some of zone, that was unacceptable. made in reliance on it. The existing regime extent without endangering the scenic char- Similarly, of a proposal for an abattoir favoured the national interest at the expense acteristics of the gorges. There was sufficient it was found that the wastewater treat- of regional interests, and the region had not resource to serve that use of the river’s waters ment process would be likely to emit been adequately compensated. The claim as well. However to allow for the higher smells into the environment. The Court to water for electricity generation had to dams would be to compromise the natural was not satisfied that the water-treatment yield to some extent. Minimum flows water’s amenity in a way that would fail to plant had been designed to avoid leakage should increase the share of the resource honour the objective of the legislation. to the ground; nor that the capacity available for the interests that were Those two river cases illustrate the way would be sufficient to treat the volumes adversely affected, so as to ameliorate those in which the ultimate issues may be judg- of wastes likely to arise to a standard suit- effects, but only to the minimum extent ments of values which are to be derived able for disposal by irrigation of pasture. necessary. Setting the minimum acceptable from the legislation, and which can lead to

Resource Management Journal 23 potential use of river water for generation existing generator’s use of geothermal fluid ings. The Court found that the chance of of high value to the nation being restricted for producing electricity. It found that the failure mechanisms described by one for conservation and cultural interests. proposed reinjection of spent fluid would of the expert witnesses occurring was very Two other cases illustrate the judg- have potential beneficial effects on the remote (again, a judgement of degree), and ments to be made where underground reservoir, yet there was also a real risk of it that the design allowed for early detection conditions lead to uncertainty of the having detrimental effects by cooling tem- of conditions in which either could occur, effects of proposed development. peratures and reducing pressures, and the and methods of avoiding or mitigating any One case was about taking for electric- greater the rate of reinjection, the greater adverse effects. A monitoring and contin- ity generation geothermal fluid from a the risk. The risk of harm could be gency plan is to be completed and submit- reservoir which already supplied an exist- reduced to some extent by selection of ted to the Court for settling. ing generator. A new generator had been reinjection sites away from faults. Conclusion granted the right to take 10,000 tonnes of The Court balanced the benefits and dis- The role of the Environment Court is steam per day from the same reservoir, and benefits. It assumed that there would be to decide environmental disputes. In the sought the right to take 40,000 tonnes per business advantages to the new user. There course of doing that, it may be necessary day. The existing generator had the right would be disbenefits to the environment for the Court to make findings on engi- to take more than 104,000, but less than from the faster run-down of the geothermal neering and other technical issues on 130,000 tonnes per day (the exact amount field, and from reinjection risks of further which expert witnesses have given pro- being uncertain). The Court found that it reduction in temperature and pressure. In fessional opinions which differ. The was more likely than not that the field the interests of allocation between compet- Court is assisted in making findings on would be able to sustain the proposed ing demands, and having the resource avail- those issues by having on its Bench com- additional abstraction initially, but that it able to meet as many demands as possible, missioners who have technical qualifica- would be beyond the capacity of the field the Court found that the new user’s com- tions, including professional engineers. to sustain that rate, in addition to continu- mercial advantage did not prevail over a cau- The Court is also assisted in doing so by ing the existing rate of abstraction by the tious approach, in the state of uncertainty, to hearing the evidence of expert witnesses, existing generator, for the term of the right minimise risk of harm to the geothermal often professional engineers. Where they (15 or 20 years). There was a public inter- reservoir. It would be more in keeping with differ, the Court’s role is not to judge est in the effects of the proposed taking, the purposes of the Act to allow the oppor- between the expert witnesses, but to make including those on an existing geothermal tunity to develop the first stage of the project a finding, which is needed to reach a deci- feature of scientific and tourist interest. by confirming the right to take 10,000 sion on the case. The state of knowledge Taking at 40,000 tonnes per day would tonnes per day and observe the effects. about a particular question may be incom- lead to a substantial reduction in the pres- Observations of those effects could lead to plete. Yet the Court has to make a decision, sure and temperature of the geothermal more reliable predictions about the effects of on the current state of knowledge, and on fluid, and a considerable loss of the pro- taking and reinjection in greater quantities. the balance of probabilities. In applying the ductive capacity of the existing borefields In the Britomart case, the Court had to law to the question the Court may adopt a which, depending on imponderables, consider the diversion of groundwater precautionary approach to reflect a degree might be of the order of 14 Mwe to 20 from a substantial underground excava- of uncertainty, and the gravity of the issue. Mwe. If the existing generator drilled new tion for a downtown transport and park- The decision of the ultimate issue before the wells to maintain the current level of pro- ing centre. The primary concern was Court frequently turns not on a finding on duction, that would involve it in substan- effects on the stability of land and build- a technical question, but on a judgement of tial cost, in millions of dollars. ings in the vicinity, caused by diversion of values or degree (according to the applica- The Court rejected a claim that the new the groundwater. There could be no ble legislation) which the Court makes on generator would be more efficient than the absolute guarantee of no damage to build- behalf of the community.

Resource Management Journal 24 Heritage and the Resource Management Act by Stephen Rainbow, Ph.D., Director, Heritage Services Limited

New Zealand needs to find an ener- becoming more conspicuous, whether in Maori heritage has been inadequately gising national vision which captures the the growth of cultural-heritage tourism, or dealt with in many district plans, and the country’s distinctive culture, circum- the number of successful heritage build- Amendment Bill consequently gives greater stances and history and begin to cele- ing refurbishments and the increasing status to iwi planning documents. As Ngai brate that.... What is needed now is to demand for “character space”. Tahu Natural Resources Manager Linda create an excitement and an energising view Constable said at the RMLA Conference of what New Zealand could be...You won’t Resource Management “There is a tendency to focus on the her- protect markets, intervene, distort markets Amendment Bill itage you can see and feel and unfortu- through subsidies or have government The Resource Management Amendment nately Maori heritage is often unseen. It mucking around. There has been a lack of Bill signals an increased valuing of heritage will be a great day when we focus on those what New Zealand will do” (Michael by proposing to elevate heritage to s.6 of the things of spiritual value to iwi such as water Porter, international business strategist). Act: a matter of national importance. This is burial sites, pa sites and battlegrounds”. one of the outcomes of the 1998 Historic The Bill proposes that the current Introduction Heritage Review (“the Review”) initiated by archaeological provisions of the Historic What is it that two Environment Court the Conservation Minister, Nick Smith, in Places Act will transfer to the Resource judges could describe recently as “the single response to the Ngai Tahu settlement and Management Act, presenting many local most difficult issue facing the Environment the 1996 report on Historic Heritage authorities with a substantial new set of Court” and “some of the most intractable Management by the Parliamentary heritage challenges. issues under the RMA”? The answer is her- Commissioner for the Environment. But the same key issue arguably applies itage, and it is therefore laudable that her- Another key outcome from the Review to both historic sites and buildings, namely itage received unprecedented attention at has been the establishment of a Ministry of the need to explicitly address the fact that the RMLA Conference this year. Culture and Heritage, creating machinery of heritage often lies at the cutting edge But the papers presented at the main government which explicitly recognises between private property rights and the session (by Philip Donnelly and me) government’s leadership role in the heritage public good, whether an historic building showed that there is still a need for far more sector. This Ministry will presumably be in a town centre or a pa site on farmland. debate about heritage, including questions responsible for commissioning the National about its value, and, if it has any, how this Policy Statement on Historic Heritage which Private Owners Need Assistance should be translated into public policy. was also recommended by the Review. Many of the landmarks in our towns I argued that heritage could not just be But perhaps the major change arising and cities have been saved by public money, seen in “cost” terms, but that its “benefits” out of the Review is the Amendment Bill’s and the Lottery Grants Board continues to had to be recognised as well. Non-market mainstreaming archaeological heritage fund publicly-owned heritage places. But values have traditionally dominated the into the RMA. The unsustainable level of private owners are too often confronted arguments of those who support heritage, Maori site destruction was one of the main with sticks in the form of rules and regula- by pointing to the contribution of heritage reasons for the Parliamentary tions, without any carrots in the form of to local and national identity, for example. Commissioner for the Environment’s 1996 advice or assistance. Too often public agen- But the market values of heritage are also Report on Cultural Heritage Management. cies “identify” heritage and place it on a

Resource Management Journal 25 Register or in a local authority schedule, developments on the city’s fringes”. property-owning organisation. ending their responsibilities at that point. Of particular concern was the issue The very act of identification implies a also raised by Ian Athfield and others Better Public Policy Needed for public interest in that place - be it a build- recently about the adverse impact of Heritage ing or a pa site. From an equity perspec- Christchurch City’s permissive approach Sustainability is only one area where far tive, it is only fair that the private owner to greenfield developments on the reten- greater effort is required in terms of devel- should not have to carry the full cost of tion of heritage in the inner-city. oping public policy for the management of conserving that heritage for current and The United States National Trust is this country’s unique heritage. The decline future generations. This won’t be a prob- explicit on the connection between her- of the resource consent for demolishing lem where historic residences attract a pre- itage and urban growth patterns, arguing the Prudential’s three listed buildings in mium but for other types of places such as that: “Local policies that shape urban Wellington’s Lambton Quay shows that ageing commercial buildings in town cen- growth and development are critical to defensible District Plan heritage provisions tres which contribute so much to the char- the future of the American historic under the RMA are providing an unprece- acter of a place, assistance may be needed. preservation movement” (1991). dented level of protection for heritage val- Some local authorities have established ues in some places. But Phil Donnelly and funds which are used to assist private own- Sustainability and Heritage others will continue to promote compen- ers. Unfortunately most local authorities still Urban growth and its impacts on her- sation for the owners of historic properties provide inadequate support for the owners itage relates to a broader issue, that of the as long as there is not a better analysis of of heritage. The recent Environment Court sustainability of our cities. Whereas this the costs and benefits of heritage protec- decision about three listed buildings in is a mainstream debate abroad, it seems tion efforts generally. Christchurch’s Cathedral Square effectively that little attention has gone in to explor- As my fellow director in Heritage stated that heritage has a value but that the ing the issue of urban sustainability in a Services Ltd, Brent Nahkies is fond of cost of retaining that heritage should not be New Zealand context. pointing out, poorly drafted district plan borne entirely by the owner, legitimising Just what sustainability means in the heritage provisions based on inadequate claims that regulation needs to be balanced context of heritage has received even less section 32 analysis, and a lack of “best by incentives and assistance to owners. attention. Yet greater clarity on criteria practice” guides for heritage manage- for determining sustainable management ment means there are still significant Impact of Urban Growth of heritage is surely crucial to developing challenges ahead for heritage manage- Policies on Heritage appropriate planning regimes at a local ment. As the U.S. National Trust argues: One owner who spoke at the RMLA level. Better information should be gath- “...the easy part of creating a local preser- Conference, Philip Carter of Christchurch’s ered about the extent of New Zealand’s vation law is writing the ordinance; the Carter Group, made a strong plea for a level heritage and what has been lost, in order hard part is mustering public under- playing field for heritage. Speaking from his to inform future policy development. standing and political support for the extensive experience with heritage develop- Establishing sustainability criteria for ordinance (1991)”. In what will doubt- ments in Christchurch, Carter argued that heritage should be one of the projects to less be a long wait for any National Policy “without a strategic overview of the impact be funded once the Historic Places Trust Statement on heritage, the relevance of that the free market philosophy incorpo- funding is made contestable (50% in this observation to local district plans rated in other parts of the District Plan has 1999/2000 and 100% in 2000-2001). will surely be borne out. on heritage where the free market is pre- This will mean a more transparent process Contact Stephen Rainbow or Brent vented from operating, it will be extremely of allocating public expenditure on her- Nahkies on 04-380 1528 or 025-536 difficult for the owner of an inner-city heritage and leave the Trust to concentrate on 056 or email Heritage Services Limited: itage building to compete against greenfield its core business as a membership-based [email protected]

Resource Management Journal 26 The RMA and Governance Political Party Policies by Andrea Bell, Mitchell Partnerships

Do you wish to do more than rely on the media to learn about the policies of the main political parties for the environment and related matters? Do you want to find out more about how:

• Labour plans to: of information. Web site addresses – Split the Resource Management – Require local government to progres- include: Amendment Bill and bring back widely sively shed its commercial activities, • www.national.org.nz agreed amendments; and review the current two-tiered • www.labour.org.nz structure of local government in • www.act.org.nz

– Determine the need for further amend- favour of integrated local bodies that • www.nzfirst.org.nz ments to improve access to and incorporate the environmental • www.alliance.org.nz. involvement in RMA processes, yet responsibilities of both regional and streamline RMA processes where this territorial authorities; Please note: does not threaten good environmental • New Zealand First is likely to: • At the time of writing this article New outcomes; – Base its RMA policy on the principle Zealand First had not released its policy that it “supports the Resource on the environment or related matters.

– Develop national policy statements in Management Act review process with a The statements above regarding New areas such as energy, Treaty issues, sus- view to reducing compliance costs and Zealand First’s principles were supplied tainable land management and facilitating the application of the Act in directly by the New Zealand First tourism; a manner which supports sustainable leader’s office. economic growth whilst protecting

– Subject government policy to formal public participation and environmen- • Alliance had also not released its policy environmental assessment, and expand tal assessment provisions”; at the time this article. It is understood the office of the Parliamentary that Alliance’s policy on the environment Commissioner for the Environment; – Base its local government policy on the and related matters may not be released principles that “local people, not par- until very close to the election. • Act plans to: liamentarians, should choose the form – Introduce contestable resource consent and extent of local representation, • Because the election is looming large, processing and limit appeal rights to which best suits their circumstances” and the political party manifestos are points of law; and that “the establishment of further very much in the process of being Unitary Councils will be encouraged”? developed, the RMLA takes absolutely

– Ensure that compensation is payable no responsibility for the reliability or where private property is appropriated Then you may find the web sites of longevity of the statements made in for public good purposes; the major political parties a useful source this article!

Resource Management Journal 27 Forthcoming Events Forthcoming Events

“Improving Practice in Integrated Impact Assessment” 1999 Conference of the New Zealand Association for Impact Assessment Inc.

The first day consists of a choice of The second day focuses on a Major Case four pre-conference professional devel- Study : “Auckland’s Regional Growth opment workshops : Alternative Strategy : From Growth Policies to Dispute Resolution: Negotiating Sustainability Projects”. This is made up of Solutions in Resource Management (Ani presentations on different dimensions to this Venue: Brunette), Beyond the Fourth issue facilitated by Regional Council, Local Schedule: Improving AEE Authority and other contributors in the Architecture Building Practices(Richard Morgan), Social morning followed by a range of workshop Assessment for Natural Resource groups in the afternoon of the second day. Auckland University Dependent Communities(Nick Taylor, This is followed by the NZAIA AGM and Auckland. Gerard Fitzgerald, Julie Warren), and conference dinner. The keynote speaker for Consultation and Participation in the conference dinner is Hobson Bryan, Resource Management: Making it Work President of the affiliate body International Duration: (Michelle Rush, Agriculture NZ). The Association for Impact Assessment (IAIA). profressioal development sessions will 2-4 December 1999 be followed by a keynote (Professor Ian The third day is openly structured Shirley), panel session : Integrating EIA allowing feedback from the early part of and SIA (chaired by Ken Tremaine), and the conference programme. It aims to set a reception. the agenda for further work in integrated impact assessment over the coming year. The formal conference programme This three day conference is the starts with the powhiri at 4pm on the For further details refer to the inaugural Conference of the 2nd December. This is followed by a conference website: Association for Social Assessment keynote speaker (Professor Ian Shirley), http://www.nzaia.org.nz/conf99.htm renamed and reconstituted as the New a panel session : “Integrating EIA and email Anne Duncan [email protected] Zealand Association for Impact SIA”, chaired by Ken Tremaine, and a or write to NZAIA Inc PO Box 2581 Assessment (Inc.). reception. Wellington

Resource Management Journal 28 Resource Management Law Association The appointment of the National Committee

A discussion paper

When it was first established in tution the RMLA has continued to grow. appropriate representation? 1992, the 10 members of the National In this regard, the membership currently Committee of the Resource stands at some 868 and the number of • Would it be beneficial to return to the Management Law Association (“RMLA”) regional committees has also increased, previous method of appointing the were elected “at large”. That is the 10 the latest addition being Northland. The National Committee? highest polling candidates were elected RMLA now has a total of eight regional to the association. committees, and details of these are as • Would some other method be better In 1997, the RMLA changed its follows: than either of the above? constitution, so that only 5 places on It is not proposed to place any motion the National Committee were at large, before this AGM, as to do so without any • Would it be desirable to elect the indi- with the other 5 places being allocated consultation could be inappropriate. vidual members of the National to each of 5 regions namely: Auckland; The issue is, however, important, and Committee for two years, but have an Waikato/Bay of Plenty; Wellington; more formal feedback will be sought in election each year for 5 of the 10 places? Canterbury and Otago/Southland. due course. This change was made in order to However to assist the incoming Your feedback would be most wel- recognise the importance of the RMLA National Committee, some informal come. Please send any response to being prominent throughout the coun- response to the following questions RMLA, PO Box 4199, Auckland, by try and to ensure that regional inter- would be helpful: Tuesday 7 December 1999. ests were well represented on the National Committee. • Does the current system of appoint- Phil Mitchell Since the latest change to the consti- ing the National Committee ensure 2 October 1999

Committee No. of Members No. on 1999/2000 National Committee Northland 20 -

Auckland 304 4 Waikato/Bay of Plenty 129 2 Hawkes Bay 29 - Wellington 192 2 Nelson 24 - Canterbury 113 1* Otago/Southland 51 1* (Overseas) 6 N/A

• Elected unopposed

Resource Management Journal 29 Hauraki Gulf Marine Park Bill and the Failure of our Political Process by Jim Holdaway

On the last working day of the 45th This issue is unresolved. pressed farmers would be victims of Parliament the Government aban- The second main area of objection, higher compliance costs inevitably doned hope of passing into law the initially widely held by local govern- resulting from the imposition of another Hauraki Gulf Marine Park Bill. It was ment and some Government depart- layer of bureaucracy and another layer of defeated by personal animosities at the ments, concerned the effect of the management objectives. highest Parliamentary levels in the Resource Management Act. It was But the argument for the farming context of a forthcoming election, argued that the objectives sought for industry was most cogently put, so far regardless of the merits of the Bill. An the Hauraki Gulf were already obtain- as I know, by Grant McCallum of important issue concerning how much able under the then recently enacted Maungaturoto. His case however is a Defense land at Takapuna Point RMA, and that special legislation for general one having no particular should be included in the Marine the Gulf would create duplications of application to the Hauraki Gulf ñ The Park, and how, and when, was offered both policy instruments and jurisdic- McCallum Farm drains to the Kaipara as a pretext for withdrawal of support. tions and thereby confusion and ñ and does not object to high envi- It had been expected that if the Bill added costs. It was also argued that ronmental standards being set under failed it would have been because of the RMA should be tried for at least a the RMA, but to what he sees as an resistance on one or both of two main number of years before any new legis- unfair apportionment of the costs of grounds of objection. lation was contemplated. maintaining that standard. His con- The first of these and initially the Though the Mayor of Thames- cerns seem to be broadly the same as objection most vehemently asserted, is a Coromandel and Federated Farmers those of Federated Farmers but are constitutional one. The Hauraki Maori have held to that view, the recent hear- hardly arguments against the Hauraki Trust Board, later supported by other ings and debates on the Bill suggest Gulf Bill. iwi, claimed that the Gulf had never that their concerns have narrowed The new layer of bureaucracy to been included within the purview of the somewhat. They now focus especially call it that, already exists in the Treaty of Waitangi. Neither on anticipated impacts on the eco- Hauraki Gulf Forum and its costs are Rangitiratanga nor Kawanatanga had nomics of farming within the catch- already being met by its member agen- been ceded by tangata whenua. Nor ments of the Gulf. The definition of cies. The new layer of management had title been acquired by the Crown in “Catchment” in the Bill and references objectives could at worst ñ from an any way. It followed that any determi- especially in Clause 6 are said to give objector’s point of view ñ stimulate nations as to status or designations currency to those fears. administering bodies to be vigilant in relating to any parts of the Gulf were Owen Jennings, speaking for the Act requiring compliance with district not within the power of the Party on the second reading of the Bill plans and similar requirements. Government or Parliament to make. argued strongly that already hard- Whatever the merits of farming

Resource Management Journal 30 objections to the Bill may be however, expressed by a Waiheke developer and submissions have shown a large they were pressed to such effect that as landowner in a submission to the majority of opinion in favour of the I understand it, at least two National Parliamentary Committee on 28 April proposal. party MP’s became concerned for their 1999. He had been opposed to the The Bill is not dead. There will be seats at the general election, creating Bill until he visited some British another decade, a new Parliament, a some division within the Party Caucus National Parks which actually contain new Government, and a new campaign! and some problems for the Minister. large areas of private land. He now Jim Holdaway has been continuously But in the event the Federated believes that as a landowner, his best active in land management, environmen- Farmers’ opposition was not a deter- interests would be served by creation tal management and nature conservation mining factor. of the Marine Park. variously at local, regional and national There have been other objections It should be said, while discussing levels, both in policy making and admin- from for example landowners on Gulf objections to the Bill, that there is istration for 46 years. He was a member Islands. These have been based on widespread support for it among con- of the Hauraki Gulf Maritime Park Board suspicions that the Bill will lead in servation, recreation and tourism throughout its 25 years and subsequently some way to a loss of private property interests. Boating and Yachting organ- Chairman of the Auckland Conservation rights, and even be a precursor to land isations and harbour and gulf user Board. He was convenor of the working acquisition by the Department of groups have consistently supported party which recommended a Hauraki Conservation. A contrary opinion was the creation of a Marine Park. Formal Gulf Marine Park in 1992.

Resource Management Journal 31 Awards 1999 by Dave Serjeant, Awards Convenor Jeff McNeil, horizons.mw, accepting the RMLA 1999 award from Rebecca Macky.

Nominations for awards this year table production and full of information ber of landmark initiatives. These include: were again of a high calibre and varied in on data on key environmental parame- * The introduction of a specialist their subject matter and focus. The ters. We understand that the public post-graduate Masters of Law in nominations have largely moved away response has been extremely positive. Environmental Law in 1996; from statutory planning documents to We consider it to represent best practice * The founding of the New Zealand annual reporting requirements and are for this type of document. The award Journal of Environmental Law in 1997; more innovative, non-mandatory contri- goes to Horizons.MW (or for those that * The staging of a successful international conference called “Environmental Justice and Market Mechanisms in 1998. Its permanent staff which includes Ken Palmer, David Grinlinton, Klasse Bosselman, Tim McBride, Ben Richardson and Prue Taylor have also been responsible for a number of publi- cations in their respective areas of expertise in environmental law. The Centre has a key objective of emerging as Anne McGuire and Jeff McNeil a regional centre of excellence in envi- butions to policy and implementation are not familiar with the trading name) ronmental law and policy in the Asia activities. the Manawatu-Wanganui Regional Pacific region. We consider that their The first award this year is for a State Council. (Jeff McNeil). contribution to the law, theory and prac- of the Environment report. There have The second award is to the New tice of resource management in New been other nominations for State of the Zealand Centre for Environmental Law at Zealand has been outstanding and that Environment reports in the past. the University of Auckland. Over the last they are well on their way to achieving However our perception is that this has three years the Centre has achieved a num- their objective. been a developing skill amongst Councils and that as each document has been produced so has the collective knowledge about parameters to measure and indica- tors to use. There has also been an impression left by some of the earlier State of the Environment reports that they were more notable for what they did not or could not measure than what they did. This year’s recipient has produced a document which is at once an attractive coffee Simon Berry accepting the RMLA 1999 award on behalf of the NZ Centre of Environmental Law.

Resource Management Journal 32 Case Law by Mark Christensen / Christopher Drayton, Russell McVeagh

Lendich Construction Limited 1953 Act to establish whether there changes to the receiving environment. v Waitakere City Council was an unbroken history of lawful use. As a result, the Court accepted that (A77/99) It concluded that the word “character” there were valid existing use rights. This was a challenge against abate- in that Act does not include reference In respect of the other “section 17” ment notices preventing the appellants to the “intensity” and “scale” of the abatement notice, the Court consid- from continuing to operate a storage activity. This helped the Court to ered that such a notice set out the and maintenance depot for a haulage decide that, although the business had action required to be taken or and earthmoving business. grown substantially, it enjoyed existing refrained from and of the grounds The Council issued the notices on use rights between 1973, when the upon which it is issued. Here there the grounds that the activities were plan became operative, and 1980 were sufficient grounds and the evi- non- complying, and that they were when the existing use provisions were dence established to the Court’s satis- causing adverse environmental effects, changed. faction that there were diverse effects including noise, vibration, dust and In 1980, changes to the 1977 Act and that they were objectionable. negative amenity impacts. The appel- required that “scale” and “intensity” of However, the Court found that the lants argued that the property had the use also be considered. The Court effects were likely to be able to be ade- existing use rights dating from 1956, appears to accept that there is no dif- quately mitigated by way of condi- an assertion which the Court required ference between the provision in the tions. them to establish as a defence to the 1977 Act and section 10 of the RMA, As a matter of jurisdiction, the first notice. despite the express reference to Court held it was not bound merely to The Court gives a useful summary “effects” in the latter. confirm or cancel the notice, but of the sometimes difficult legal basis The Court accepted that there had could amend it as well by imposing for establishing existing use rights that been no relevant change in the use of appropriate conditions (see ss290, date from previous planning regimes. the land since the late 1970’s, despite 325(2)(a) and (3E)). In this respect, it In order to establish an existing use it having moved within the property. adopted a purposive approach to the right under section 10 of the RMA, the The Court made it clear that purpose and principle s of the Act and appellants were required to show that changes to the nature of the receiving an interim decision was issued by the the original use was protected by way environment, including the encroach- Court so as to allow further submis- of both the 1953 and 1977 Town and ment of residential development in the sions and evidence to be adduced Country Planning Acts. area, were not a relevant matter in about the nature of the conditions. In this case the first operative plan determining the existence of the right. was made under the 1953 Act and The intensity and scale of effects can- Halswater Holdings Limited v came into effect in 1973. Prior to this, not be altered by the external environ- Apple Fields Limited (C126/99) the business required no planning per- ment so as to create a “reverse This was a decision on a jurisdic- mission. sensitivity”. The test is an objective tional issue relating to the alleged aban- The Court considered the meaning one, from the point of view of the donment of references to the Selwyn of the existing use provisions in the activity itself and is not altered by District Plan. It concerned the construc-

Resource Management Journal 33 tion of a consent memorandum that the decision to refuse consent, but on and on immediate neighbours were appeared to have proffered the with- grounds other than those given by the insufficient to refuse consent to the drawal of a number of the appellants. Commissioners. Counsel for the proposal. The Court held (following Mullen v appellant questioned whether, as a Parkbrook Holdings Ltd [1999] NZRMA matter of law, the Council could call Buller Conservation Group Inc v 23) that it has no general power of super- such evidence. Buller District Council (C158/99) vision in relation to the abandonment of In reaching its decision on this This was an interlocutory application proceedings, an appellant having the issue, the Court paid particular regard to strike out an appeal against a decision right to do so at any time provided that it to the decision in Chan v Auckland City to grant land use consents and discharge is not an abuse of process. Leave is not Council (1995) NZRMA 68, a case permits to establish a fish processing required. where the Council had resiled from its plant at Westport. The Court was also Here, on the face of it, certain of the own decision prior to the hearing of required to consider an application for appellants had advised the Court that the appeal and effectively “changed its security of costs. they had withdrawn their references. mind”. There the Court expressed dis- The basis for the strike out applica- The Court held that it had no jurisdic- quiet with that approach. tion was that the appeal disclosed no tion to reconsider the abandonment, as The Court distinguished this case request for relief or alternatively, that it there was no suggestion that there had on the basis that here the primary deci- did not disclose any reasonable or rele- been an abuse of process. As a related sion was still supported. The Court vant case and would be an abuse of issue, the Court found that an appeal held that Chan did not go so far as to process if it were to proceed. might be abandoned in part, provided prevent the Council from altering the The appellant argued that the lack of that the issues abandoned can be clearly reasons it gave at the primary hearing. relief was merely an oversight and would severed from the remainder. The decision is to be distinguished not prejudice any other party if it were to from the reasons for it. The Court held proceed. Beca v Auckland City Council that although there is an overriding The Court held that the power to (A102/99) duty for it to determine whether it was strike out should be used sparingly The substantive issue in this case fair to admit any additional evidence, (Challenger Scallop Enhancement was whether the appellant was entitled so long as it is relevant it might be Company v Marlborough D C [198] to a land use consent to demolish a admitted. As a matter of law, there is NZRMA 342). It considered each of large Victorian villa and replace it with nothing requiring the Council to call the grounds in the appeal and con- 4 residential units. the same witnesses on appeal as those cluded that the majority were valid At first instance, consent was who made the report at the primary and sufficiently explicit to give ade- declined despite the recommendation hearing and this is entirely consistent quate notice to the other parties. The of the Reporting Planner to the with the nature of a de novo hearing. application to strike out was disal- Commissioners hearing the applica- The Court found that the evidence the lowed and an amended notice of tion that the proposal be supported. Council called was consistent with its appeal allowed to stand despite being The Commissioners declined consent decision to refuse consent, even if it lodged out of time. on the basis that there would be more was at odds with the reasons for it, and The Court also considered an appli- than minor effects on the environ- there was no overriding reason to cation by the council and respondents ment, including on the residential refuse to admit it. for security of costs from the Appellant. character of the area. Having considered all the evidence, The appellant is an incorporated society At the Environment Court, the the Court held that the adverse effects having 40 members and a negligible Council called witnesses to support on the character of the neighbourhood bank balance, insufficient to pay any

Resource Management Journal 34 order for costs that might be imposed. other appellant in relation to the issue of therefore outside the rules customarily As a result, the threshold test was met security. It held that in the face of the applied by the Court to conditions. and the Court then had discretion likely costs to the respondents in the Another issue concerned the dis- whether to make an order. region of $100 000, the total amount of charge of ballast water under the security should be $16000 apportioned Resource Management (Marine At pages 11 to 13 of the decision the in different amounts to each respondent Pollution) Regulations 1998. The Court Court considers in reasonable depth the according to their exposure. Unless the found that the regulations allowing the principles to be taken into account when security is provided by the date nomi- discharge of ballast water expressly over- exercising the discretion. Those princi- nated by the Court, the appeal may be rode any rule to the contrary in regional ples include that: dismissed for want of prosecution. coastal plans or any condition in any resource consent. The regulations form a (a) The order is discretionary Wood v Jones (C127/99) code for the control of the discharges (b) There is no burden on any party This case concerns appeals arising referred to in the regulations and consent (c) All the circumstances of the case out of the grant of 21 resource consents holders are not required to meet any are to be considered allowing Solid Energy to construct and other standard relating to such dis- (d) The application can not be used operate the West Coast Coal Terminal charges under the Act. as an oppressive means of shutting out near Granity on the South Island’s West The remaining issue was the validity genuine claims, and Coast. During the course of the hearing of a condition establishing a community (e) The inability to pay costs can not the substantive issues between the par- trust to administer a sum of money pro- be used as means of putting unfair pres- ties had been resolved and the appeals vided by the applicant. The Court sure on a defendant. had been withdrawn. The remaining expressed doubts over the proposal, in At page 12, the Court also ran issues concerned the legality and appro- that it might be seen as a financial con- through a number of other relevant fac- priateness of the conditions to be tribution not otherwise provided for by tors in making the decision, including imposed. the relevant plan. However, on balance, the merits and bona fides of the case, The first issue concerned the provi- it found that with appropriate amend- whether the lack of funds has been sion of a management plan intended to ments, the condition was made for a caused by the action complained of, the control effects at the site. Despite some proper resource management purpose; means of creditors and shareholders to earlier dicta that appeared to be in con- was relevant to the consent; was reason- assist, and a number of other factors flict, the Court accepted that a manage- able and was therefore a valid condition related to the conduct of the parties. ment plan could legitimately be prepared (Newbury DC v Secretary of State for the In the event, the Court found that an and changed outside the consent Environment [1981] AC 578). order should be made despite a submis- process. It was accepted by the Court In an interesting procedural matter, sion that the appellant would be forced that if such a plan were made for the pur- the Court expressly reserved leave for to withdraw in that event. In reaching pose of informing the consent authority the Registrar of the Court to apply for that conclusion, the Court commented and the public about how the conditions costs to the Crown under s 285(1)(b). that the appellant’s case “does not appear of consent are to be met, it could be The Court did so on the basis that to be a strong one” and that there would changed without having to go through a prima facie it had been put to unnec- be a “strong likelihood” that it would be formal review or change process. In essary expense given that an agree- called upon for costs if it failed. The essence, such a plan does not form a con- ment had been reached between the Court stated (at p17) that a public inter- dition in itself, but rather an explanation two of the principal parties some nine est group is in the same position as any about the methods of compliance. It is weeks into the hearing.

Resource Management Journal 35 Resource Management Amendment Bill by John Gallen, Ministry for the Environment

The Resource Management Amendment Bill 1997. Committee had received some 400 Amendment Bill which was introduced The aim of the Resource submissions on the Bill. Further into Parliament on 13 July 1999 and Management Amendment Bill is to progress is dependent on the opening referred to the Transport and reduce unnecessary delays and costs in of the new Parliament following the Environment Committee has been car- processes under the Resource General Election and the re-constitu- ried over until the new Parliament next Management Act 1991 without under- tion of the select committees. year. Also carried over are the mining its environmental objectives. The Ministry for the Environment Resource Management (Costs) The Local Government and have produced a clause-by-clause expla- Amendment Bill 1998 (a Members Bill Environment Select Committee called nation of the Resource Management in the name of Sandra Lee) and the for submissions on the Amendment Amendment Bill. This is now available Resource Management (Marine Bill and, by the time submissions on the Ministry’s website at Farming and Heritage Provisions) closed early in October, the Select www.mfe.govt.nz/new/index.htm.

Resource Management Journal 36 Conference 1999 Recipe for Success – an overview by Tony Hearn QC

If the post Conference comments tion fees to the 1998 figure so the pro- Brussels, to be the keynote speaker. from local, national and international vis- gramme meant that success could only Again judging by comments, delegates itors are anything to go by, the 7th RMLA be achieved with substantial and signifi- found the papers of both those speakers Conference in Christchurch from 30 September to 3 October was a success. Early goals set were to establish an enthusiastic Committee from diverse backgrounds, to have a record atten- dance and have fine weather. The Committee spent some time discussing a theme and in the end tried to get the best of all worlds and the best of the previous six conferences with, on the one hand a good conceptual and philosophical con- Phil Mitchell and Rebecca Macky. Current and past Presidents of RMLA. tent and on the other, practical nuts and cant sponsorship. The Committee found of considerable interest. Dr Kr‰mer in bolts. It was decided that the recipe for local sponsorship support was strong discussing access to justice problems on success had to include two international and on that basis generous support from an international basis perhaps reminded sponsors in all areas proved achievable. us all of the advantages we have in New As to overseas speakers, Professor Zealand. I think it can be said that there Malcolm Grant of the University of was a general feeling that Professor Cambridge had been an important part Grant’s paper and workshop provided a of the success of the 1995 Conference in strong philosophical and conceptual Christchurch and happily it was not too background for any system of financial difficult to persuade him to return. He contributions chosen by any local would have been able to give a paper on authority to grace its RMA district plan. many subjects and in the end financial Building on that base the Committee contributions was chosen because of a was lucky to have Te Runanga o Ngai number of studies and articles authored Tahu sponsor a session and they chose to by him and because it is a topical subject bring a group from Australia to discuss currently vexing many local authorities co-management - an Australian perspec- throughout the country. Malcolm Grant tive. Associate Professor Sharon Beder of was also more than helpful in suggesting the University of Wollongong was able to Rt Hon David Lange opening of RMLA Conference, Christchurch 1999 other international speakers who might find time to attend the conference and speakers of repute, a trans-Tasman input add to the conference success and it spoke on economics in the environment. and a national and local content. An ini- proved possible to persuade one of those An early sponsor was pleased to arrange tial determination was to hold registra- on the list, Dr Ludwig Kr‰mer of a session of four diverse speakers,

Resource Management Journal 37 including the Minister for the Environment, to discuss corporatisation and sustainable management. The rest of the conference resulted from a lot of hard work in building the New I think that on behalf of the shops and it is hoped it will be possible Zealand context, breakout sessions and the Committee it would not be inappropriate to publish at least some of them. nuts and bolts sessions which offered some for me to claim that most of our goals In a brief overview such as this it would 18 choices. An early decision was made to were achieved including notably the fine be appropriate to thank the Committee, have a professional compere and once the warm sunny spring days. secretaries, the professional organisers, Rt Hon David Lange accepted that position Most if not all of the papers were pre- speakers, sponsors and many others, all of it seemed logical that he should also be the sented in time for them to be included in whom helped to put this Conference after dinner speaker. the folder in the satchel. I think it fair to together. I have not done that because of the space it would take. Thank you all. Overall one sensed a feeling of colle- giality and friendliness. I think most people felt happy to be there and if that is so then I believe the Committee can be proud that it achieved its purpose and goals. I should mention that I have had a letter from Malcolm Grant in which he says he was deeply honoured at being Judge David Sheppard Principal Environment Court Judge & Phil Mitchell. elected an honorary member of RMLA by The Convention Centre in Kilmore say that included amongst those papers members at the AGM. I have also had a Street opposite the Town Hall had not there is to be found something worth- letter of thanks and appreciation from been built at the time of the 1995 while for just about everyone who is Ludwig Kr‰mer. Conference and its availability in con- involved in the RMLA whatever their As to the Conference as a whole, this junction with the Town Hall overcame particular background or interest may be of course is not to say that things are not any facilities problems. It enabled the and that made the Conference well capable of being done better and so those traditionally sponsored welcome cocktail worthwhile. I think it is fair also to com- involved in the last RMLA Conference of party on the Thursday night to be ment favourably on the depth and qual- the century wish those who will be enjoyed by a large number without ity of a number of papers produced by involved in the first RMLA Conference of undue delay in registration and there was speakers at breakout sessions and work- the new millennium all the best. no difficulty in seating a record number at the dinner, also generously sponsored by the same firm as last year. The obvious reluctance of guests to leave both the cocktail party and the dinner seemed to be a mark of their success. A number of visitors to the conference enjoyed vari- ous sightseeing and other opportunities available on the Sunday. From left: Helen Atkins, Tony Hearn and Jackie Barrow at the conference dinner.

Resource Management Journal 38 Resource Management Journal 39 RMLA Membership Form Tax Invoice GST No 60-742-715 When sending in your chequexxxx please retain a copy for your records Surname ...... First Name ......

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Resource Management Journal ISSN No. 1174-5525 Resource Management Journal is produced three times a year by the Resource Management Law Association of New Zealand Inc, PO Box 4199, Auckland, Ph. (09) 309 0859 Fax. (09) 309 3312. The Journal’s mission is to facilitate communication between RMLA members on all matters relating to resource management. The views expressed in the Journal are those of the individual contributors and not necessarily those of the Resource Management Law Association or the Editorial Committee. Unsolicited material will be published at the discretion of the Editorial Committee. All enquiries to Karol Helmink, Editorial Assistant, Ph. (09) 309 0859. Editorial Committee Rebecca Macky, Bell Gully Buddle Weir Royden Somerville QC Andrea Bell, Mitchell Partnerships Limited Jan Caunter, Phillips Fox RMLA Home page: http//www.rmla.org.nz Published on behalf of RMLA by T.P.L. Media.

Resource Management Journal 40