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New Zealand Journal of Environmental Law |
Last Updated: 14 February 2023
297
The Whangamata Marina Decision and Ministerial Decision-making Under the RMA
Jordan Boyd*
This paper analyses the efficacy of the Minister of Conservation’s power to make decisions under section 119 of the Resource Management Act 1991. It argues that, following Whangamata Marina Society v Attorney- General, the role of the Minister is a constrained one; and that when these constraints are viewed in context with the evolution of coastal management, it is ultimately an unnecessary one. It begins by outlining the revolution of coastal management that occurred with the RMA, and subsequent evolution of statutory instruments designed to facilitate the purposes of that Act. It then looks at the stated purpose of the Minister’s power under section 119. By analysing the limits of the Minister’s power in conjunction with the evolution of coastal management, the paper concludes that the Minister’s power no longer facilitates the purposes for which it was designed. Having considered that essentially the Minister’s power is superfluous, the next conclusion is that the Minister’s conflict of functions with respect to the resource consent process is undesirable, and the duplication of process creates uncertainty.
1. INTRODUCTION
At the inception of the Resource Management Act 1991 (“RMA”) the Minister of Conservation (“the Minister”) was given significant management functions over the coastal marine area. One power was as final consent authority for any restricted coastal activity (“RCA”), under s 119. This essay considers the
*This paper was prepared for the LLB (Hons) degree at Victoria University of Wellington in 2007. The author would like to thank Catherine Iorns for her help with the paper.
efficacy of this power. This is an important and topical issue for two reasons. The first is the Whangamata Marina Society v Attorney-General decision of last year in which the Minister’s decision to decline a RCA permit to the Marina So- ciety was judicially reviewed.1 The case was significant national news and was the first case in which the Minister had ever declined an application for a RCA. It was also the first case to analyse the power of the Minister to any significant degree, and revealed a discretion that was substantially fettered. This essay proceeds on the basis that the case was rightly decided and that the analysis of Fogarty J is correct. The second reason is because coastal management has evolved significantly since the inception of the RMA, making it important to analyse the continuing efficacy of the Minister’s decision-making power. This paper argues that the fettered discretion of the Minister, coupled with the evolution of coastal management, leads to the conclusion that the Minister’s power is no longer necessary.
To arrive at this conclusion, this paper will do three things. First, it will examine coastal management under the RMA. This is necessary to determine the aims of law reform, of the role the Minister has with regard to coastal management generally, and to understand the resource consent process. Second, it will examine the stated purposes of the Minister’s power under s 119 and the scope of the Minister’s power to facilitate those purposes. This involves an exposition of how the power has been limited by the Whangamata Marina decision. Third, it will analyse the limited power in conjunction with the evolution of coastal management, to conclude that the power no longer facil- itates the purposes for which it was designed. Having concluded that essentially the Minister’s power is superfluous, the paper goes on to argue that the Min- ister’s conflict of functions within the resource consent process is undesirable, and the duplication of process creates uncertainty.
2. COASTAL MANAGEMENT, RCAS, AND THE RMA
2.1 Aims of Coastal Management Reform
When the RMA was being considered, a review of coastal management legislation was also undertaken. The aim of this review was to replace an ad hoc approach to coastal management with a comprehensive system of statutory instruments to create a national, policy-based approach. As was stated by then Deputy Prime Minister, Hon Helen Clark:2
The provisions pertaining to coastal management clarify a confused area of the law. It is important that there is consistent provision throughout New Zealand for maintaining the natural character of the coast.
Two central objectives of coastal management law reform were:3
(a) Having national co-ordination of management of the coastal marine area; and
(b) Avoidance of unnecessary duplication in the public processes which are established to consider environmental matters.
To this end, the Coastal Legislation Review was integrated with the RMA in an attempt to create a fully integrated approach to resource management.4 The outcome of this process formed the fulcrum of the RMA, which is “to promote the sustainable management of natural and physical resources”.5
2.2 Coastal Management Under the Act
To achieve the aims of coastal management law reform, a range of instruments were devised and organised hierarchically.6 The aim of these instruments is to project policy downwards — thus limiting the discretion of subordinate authorities7 — and to give effect to Part 2 of the RMA.8 These instruments set out the classification of activities for resource consent purposes.
The NZCPS is at the top of the hierarchy of coastal management instruments. It is designed as a set of guidelines with which other plans must be consistent9
to ensure that the wishes of the nation are “effectively and unambiguously transmitted to the regional councils”.10 While it is prepared and recommended by the Minister,11 it also requires strict accordance with the processes set out in ss 46 to 52 of the RMA, designed to ensure an accurate reflection of public interest.
The Minister sets out activities likely to be RCAs in Schedule 1 of the NZCPS.12 This gives the Minister significant control over the activities likely to be RCAs. The RMA requires one NZCPS to exist at all times; the first one was gazetted in 1994.13
Regional policy statements (“RPSs”) are a mandatory overview of resource management issues of a region and the regional policies and methods used to achieve integrated management of regional resources.14 They function as a dialogue between the Minister and regional councils designed to facilitate the purposes of the RMA in relation to the coastal marine area.15 They must give effect to the NZCPS16 and in turn are given effect to through regional coastal plans.17
RCPs set out the rules, which may specify an activity as a RCA where the Minister has required it be so classified in the NZCPS.18 RCPs are designed to assist regional councils, with the Minister, to achieve the purpose of the NZCPS (and thus the RMA).19 A RCA must be identified in the NZCPS as a condition of inclusion in a RCP.20 This has been characterised as the Minister performing the further positive step of requiring an activity to be classified as a RCA in a
13 Ibid, s 57(1).
14 Ibid, s 59. 15 Ibid, s 63(2). 16 Ibid, s 62(3). 17 Ibid, s 67(1). 18 Ibid, s 68(4). 19 Ibid, s 63(2).
20 See Minister of Conservation v Taranaki Regional Council [1996] NZRMA 320 (Planning Tribunal).
regional coastal plan.21 This means the Minister has power of determination as the plans are mandatory,22 and during the preparation of a proposed plan the council must consult with the Minister.23 The Minister also has the final power of approval of RCPs under clause 19 of Schedule 1 of the RMA.
The rules set out in RCPs determine the thresholds and scope of an activity, which leads to classification of activities as permitted, controlled, restricted discretionary, discretionary, non-complying, prohibited, or restricted coastal activities.24 This classification power is important, as it will determine whether a resource consent under Part VI of the Act is required.25 The rules have the effect of regulations26 and take effect as soon as the plan is operative.27
RCAs are “any discretionary activity or non-complying activity ...”28 which:29
(a) Has or is likely to have significant or irreversible adverse effects30 on a coastal marine area;31 or
(b) Occurs or is likely to occur in an area having significant conservation value.
RCAs are described as having the “most prescriptive policies” in the NZCPS.32 Because the Minister retains the power to classify RCAs in the NZCPS and then approves that classification in the RPS, RCAs are the area over
(10 September 1999) Environment Court, Christchurch, C155/99.
which the Minister has the highest degree of control.33 Essentially, through this process, the Minister has de facto control over what is permitted in the coastal marine area.
It is important to understand the consideration given to each RCA application before ministerial consideration takes place. In order to undertake a RCA a coastal permit is required. Resource consent is required for an activity that would otherwise contravene any of ss 12, 14, 15, 15A and 15B of the RMA.34 These sections set out what is prohibited in certain areas (such as the coastal marine area in s 12), or activities that are prohibited (for example, the discharge of contaminants under s 15).
The process for getting resource consent is set out in Part VI of the Act. An applicant seeking to undertake a RCA must apply to the regional council for resource consent.35 When a regional council receives a RCA application, it is required to “forward a copy of it without delay to the Minister of Conserva- tion”.36 The applicant is then notified and submissions on the application are invited.37 Anyone, including the Minister or Department of Conservation (“DoC”), can make a submission in accordance with ss 96 to 98.
A council hearing committee considers the application in the normal way with information provided and submissions made. The Act provides for an inquisitorial public hearing and requires a “procedure that is appropriate and fair in the circumstances”.38 Unusually, the committee must contain a ministerial appointee,39 required to “put forward and represent the Minister’s interests”.40 If the applicant is wholly or partially successful then the hearing committee is required to make a recommendation to the Minister.41 Section 118 allows anyone who made a submission on the application (including the Minister) and who is dissatisfied with the result to seek an inquiry with the Environment Court.42 This has been characterised as being akin to a right of appeal.43
36 Ibid.
37 Ibid, s 117(2), (3).
38 Ibid, s 39.
39 Ibid, s 117(5).
43 Hastings District Council v Minister of Conservation [2002] 12 NZRMA 529, at para 28 (HC), Wild J.
The Environment Court is a specialist tribunal created specifically “to ensure that resource management issues will be resolved in difficult cases by a specialist Court”.44 The function of the Court is to “weigh all the relevant competing considerations and ultimately make a value judgment on behalf of the community as a whole”.45 To do this it sits with a panel including a judge and Environment Court Commissioners. Appointment of Environment Commissioners is based on specialist knowledge regarding planning, resource management, heritage protection, environmental science, and matters relating to the Treaty of Waitangi and kaupapa Maori.46
On inquiry, the Environment Court conducts a rehearing de novo,47 the result of which completely replaces the finding of the hearing committee.48 At the end of the hearing the Court must “recommend the confirmation, amendment or cancellation of a decision to which an inquiry relates”.49 The Court then makes a report on the inquiry to the Minister.50
The decision of the Environment Court is subject to a limited right of appeal to the High Court on a point of law.51 From the High Court a case can be appealed, with leave, to the Court of Appeal or Supreme Court.52 These rights of appeal do not preclude an application for judicial review of a decision under the Judicature Amendment Act 1972. If successful, the judicial review will usually result in a referral back to the original decision-maker to re-make the decision.53
On receiving the recommendation of the hearing committee or the report of the Environment Court, s 119(1) requires the Minister to make a decision within 20 working days and give reasons for that decision.54 Section 119(2) states that the Minister must:
51 Ibid, ss 295, 299.
(a) Take into account the recommendation of the hearing committee or report of the Environment Court, as the case may be; and
(b) Have regard to the matters set out in section 104 ...
Section 104(1)(a) requires consideration of any actual and potential effects on the environment of allowing the activity. Section 104(1)(b) requires the Minister to have regard to relevant provisions of a national policy statement, NZCPS, RPS or proposed RPS or “any other matter the consent authority considers relevant and reasonably necessary to determine the application”. The consideration of these provisions is “subject to Part 2” (the purposes and prin- ciples) of the RMA.55
Section 119(3) states that the Minister shall not base a decision on:
Where a matter is not considered by the hearing committee or Environment Court and the Minister believes it should be, s 119(4) allows the Minister to “refer the application back to [whichever body dealt with it last], and seek a recommendation or report on the matter in relation to the application”.
The decision-making power afforded to the Minister under s 119 is a unique one; it has no counterpart in the RMA.56 Fogarty J in Whangamata Marina said the process is “unusual” because:57
The final decision is made by the Minister of Conservation, not by the regional council or, after an appeal, by the Environment Court. It is unusual because the Environment Court’s principal function is plainly to ensure that resource management issues will be resolved in difficult cases by a specialist Court.
Earlier, in the Hastings District Council case, Wild J stated:58
The Minister must take into account the recommendation of the Committee or the Court, she is not bound by them. She is not merely a rubber stamp. She is able, indeed she is required, to exercise her own judgment.
55 Ibid, s 104(1).
The Minister makes a decision that is final and unappealable.59 Before the Whangamata Marina case the Minister had never declined a recommendation of the hearing committee or a report of the Environment Court. The closest was in Hastings District Council v Minister of Conservation,60 where the Minister merely amended one condition of the permit. This lack of precedent was a point Hon Chris Carter was aware of when making his decision to decline the permit for the marina at Whangamata.61
3. THE PURPOSE AND LIMITS ON THE ROLE OF THE MINISTER
3.1 What the Purpose of the Power is
Having seen that in s 119 the RMA affords the Minister a significant and “unusual”62 power, it is important to know what the rationale of the power was. This involves looking at various reasons advanced from a number of sources for the Minister’s power and the historical context in which it was granted. This inquiry will enable analysis as to what extent the power is still relevant, particularly in light of the limits placed on it by the Whangamata Marina case.
The first reason is based on the importance of the coastal environment to New Zealand’s national identity.64 The logic behind this is that the high level of national interest makes it desirable for the central government to retain some direct control.65 Part of this reason is historical. At the inception of the RMA, coastal management in New Zealand was in its infancy. Coastal management
had “been hampered by resource management laws that [had] grown up over the years in an ad hoc manner, and [were] fragmented, uncoordinated, overlapping and expensive to administer”.66 Indeed, “more than 50 Acts governed the coastal environment prior to the passing of the RMA”.67 The infancy of integrated coastal management meant that those who were to give effect to it were also new to it. The inexperience of regional councils, coupled with the infancy of coastal management, meant that it was deemed appropriate to give the Minister a reasonable deal of discretion and control to facilitate the goals of sustainable management.68
The aim of s 119 was to allow the Minister to look at coastal management as a unified whole to achieve “application of policy in a general and broad way
...”.70 By allowing policy to be applied broadly, the Minister could facilitate the public interest by ensuring consistency at a national level.71 The reason for this is that coastal management is best suited to management at the national level (as well as regional level) because of the way it transgresses regional boundaries.72 At the inception of the RMA there was no policy guidance — the first NZCPS was not gazetted until 1994. This meant that the Minister had the only national perspective before the NZCPS came into effect.
As landowner, the Crown had interests that needed to be protected in the absence of other methods of protection. The ministerial decision-making power was seen as a way of protecting these interests.74
Environmental Planning in New Zealand (Dunmore Press, Palmerston North, 1993) 153.
It was submitted for the Minister in the Whangamata Marina case that “the sensitivities of the coastal marine area are such that there is a political dimension to the decision-making”.76 Moreover, it was submitted that it is not possible for the Minister to completely set aside his or her political role when considering a RCA, and that what is important is that the Minister knows the boundaries.77
3.2 The Scope of s 119 to Achieve these Purposes
Given the national perspective that theoretically underpins the Minister’s power, it seems logical that the scope of the power would be necessarily broad. Obviously, the Minister is constrained in that the limits in s 119 and the purpose of the RMA must be given effect to. But what does s 119 actually entitle the Minister to do? It seems that there was confusion as to the scope of the Min- ister’s power to effect these purposes through s 119. Hon Chris Carter submitted in the Whangamata Marina case that the guidelines for making a s 119 decision were provided on an information sheet provided by DoC.78 On this sheet it was stated that the “Minister of Conservation as consent authority exercises a quasi- judicial role as the ultimate decision maker on the application”.79
3.3 Limitations on the Minister’s Power
The scope of s 119 was not resolved until the Whangamata Marina case. In this case, the Minister declined to follow a recommendation of the Environment Court to grant a permit to build a marina. In doing so, he exercised quasi-judicial power by reviewing and relying upon evidence rejected by the Environment Court. Fogarty J closely examined the Minister’s power and revealed a discretion that was significantly fettered in terms of what he could have regard to, which led to important conclusions regarding the scope of the Minister’s power.
(a) Reference to statutory instruments
In making a decision, the Minister is required to have regard to the instru- ments of coastal management.80 While it is clear that this is “subject to Part 2”81 of the RMA, this “does not mean that these statutory instruments can be ignored, allowing the decision-maker to do a ‘green fields’ analysis, simply from the statutory provisions of Part 2”.82 The statutory instruments of coastal management are what a decision-maker “must, subject to Part 2, have regard to”.83 This constrains the Minister’s discretion as it means that the policy contained in the NZCPS must be followed — the Minister cannot substitute a view of sustainable management that does not conform to this policy. To allow the Minister to do otherwise would bypass the statutory processes of the RMA.84
(b) The Minister does not have a judicial function
The Minister in the Whangamata Marina case, when giving reasons for his decision, stated that his decision was partially based on the evidence con- sidered by the Environment Court.85 This led to an inquiry as to the function of the ministerial consent process. Did the Minister have the power to retest evidence? The Judge found that he did not: “Parliament could have provided for the Minister of Conservation to hear the matter de novo and conduct his own hearing to that extent. It did not. Nor was that Parliament’s intent.”86 The lack of procedure to retest a matter was “striking”.87
This limits the Minister because “the factual evidence presented to hearing committees and the Environment Court goes to evaluating their significance as well as to proving or disproving any actual or potential effects. So the evaluation task also involves making findings of fact.”88 Once the committee or Court has made a finding on a matter, the matter is then closed to the Minister. The Minister must accept the finding and base his or her decision on it. This means
that the scope of the Minister’s evaluation is constrained by the findings of the committee or Court.
Obviously, this also means the Minister cannot rely on any evidence rejected by the Environment Court or hearing committee. To retest evidence or to rely on rejected evidence is an error of law. The reason evidence has been rejected is because the factual components of it are unreliable.89 To rely on rejected evidence would be irrational and a procedural error.
A related question for the Court was what happens where the report of the Environment Court or hearing committee has not addressed a matter the Minister deems to be important. Here the definition of the word “matter” is important. After a careful statutory interpretation exercise, Fogarty J concluded the meaning was quite constrained, meaning that “any new aspect of a matter, not yet considered, is ‘a matter that was not considered’, in subs (3) of s 119”.90 Thus the Minister could not rely on any information at all that was not considered by the Environment Court and, if he had wanted to, would have to refer the matter back to the Court under s 119(4).
(c) Conclusion: a constrained decision-making power under s 119(2)
While the Minister has discretion to differ from the decision of the hearing committee or Environment Court, this discretion is significantly constrained. Where the Minister can differ is “in the weight to be given to the matters set out in s 104”. 91 But:92
It is not the function of the Minister to hear witnesses and test the quality of the evidence and submissions marshalled in support of the relevant criteria. That is what the hearing committee and the Environment Court do. From an appeal the Environment Court resolves and finds the factual aspects of the matters to be considered.
(d) What if the Minister did have a quasi-judicial function?
Having concluded that the Minister did not have a judicial function, Fogarty J went on to consider what would happen if the Minister could reconsider evidence. He found that, for a number of reasons, it would be exceedingly difficult for the Minister to ever do so fairly. The first reason was that not all the evidence was available; some had not been transcribed. Second, not only did the Minister have much material to assess in a limited timeframe, but he did not have the advantage of counsel or seeing witnesses first hand. Third, and perhaps most significant to Fogarty J, was that “[j]udges have a set of skills which
enables them to be extremely wary of relying solely upon witnesses’ words”.93 The Judge noted that it was difficult for even appellate courts to reconsider evidence.94 It was clear in the Whangamata Marina case that the Minister could not replicate the judicial function, and it is difficult to see how any Minister in another case could. This is particularly true considering the Minister determines approximately 25 applications per year.95 If he spent all the time necessary to appropriately consider applications he would do little else.
(a) The Minister does not bring a national perspective
It was found in the Whangamata Marina case that “[i]t is not the case that the Minister brings a different ‘national perspective’, from [that provided by] the Environment Court”. The reason for this is that the Court has a national perspective “when having regard to the NZCPS”.96 Thus the Minister is limited to the national perspective contained in the NZCPS and cannot justify differing from a decision by the hearing committee or Environment Court on this basis.
(b) The Minister’s decision is not a political one
Fogarty J also decided that “[b]ecause it is a [section] 104 decision, the decis- ion of the Minister does not in fact have a political character ...”.97 This makes sense given the evaluative nature of a s 104 decision. Given that the Minister can differ only on the weighting given to different issues and because any decis- ion must be consistent with the relevant coastal management instruments, there is no scope for a politically based decision.
Essentially, the Minister has a role that is technical and apolitical. When mak- ing a decision, the Minister must give effect to the NZCPS and the national perspective therein. While the Minister can differ on the weighting of issues, there is no power to retest evidence. Nor should the Minister have this power, as it could not be exercised fairly. As such, the Minister must rely on the recommendation or report of the hearing committee or Environment Court as the case may be. If any new aspect of a matter is not heard by one of these bodies and the Minister wants to rely on it, then it must be sent back for redetermination. It is clearly not the case that the Minister has a broad, quasi-
judicial power. Given this constraint on scope, it is necessary to consider why it is so constrained, and whether there is any value in retaining this power for the Minister.
4. ANALYSING THIS ROLE: THE EFFICACY OF A MINISTERIAL DECISION-MAKING POWER
To determine the efficacy of the Minister’s decision-making power, it is necess- ary to examine the reasons and aims for it and analyse whether it achieves these aims in practice. There are two levels of analysis here. The first is to examine the Minister’s function to see what it adds to coastal management. Can it still achieve any of the aims it was designed to? The second is to assess this function to see what effect it has on the RCA process, and the ramifications this has on coastal management generally.
4.1 Use of the Minister’s Power does not Achieve its Stated Purposes
To assess the validity of the Minister’s role, it is necessary to analyse the current state of coastal management under the RMA to see whether it adequately caters for a national perspective that safeguards the public interest. This involves an analysis of how coastal management has evolved. If the instruments of coastal management now have a role more comprehensive than that of the Minister, then there is no need for a ministerial decision-making power under the Act.
At inception, the NZCPS reflected a fundamental shift in scope and quality of coastal management. The replacement of the patchwork approach to coastal management with a cohesive national perspective represented “ground-breaking policy”.98 The aim of the NZCPS was to elucidate “national priorities”99 that recognised matters of “national importance” in s 6 of the RMA. These matters include:
The preservation of the natural character of the coastal environment (including the coastal marine area), wetlands, and lakes and rivers and their margins, and the protection of them from inappropriate subdivision, use, and development.
To ensure it accurately reflected the public interest there were two years of
extensive public consultation, over 800 submissions were received, and meet- ings were conducted around the country.100
Subsequent instruments of coastal management consolidated the shift that began with the NZCPS. The next tier of coastal management gave effect to the national interest identified in the NZCPS. Essentially, regional coastal policy statements and RCPs are ways for councils to have a degree of self- determination while remaining within the confines of the NZCPS.
By setting a benchmark for coastal management, the NZCPS acted as a catalyst for further integration and refinement of practices. The independent review of the NZCPS noted that, since its inception, there have been a number of measures designed to facilitate cohesion between national aims and regional authorities.101 Commentaries have been formulated to assist local authorities with resource consent applications, plans, and policy statements.102 DoC has published guidelines on international obligations affecting coastal management,103 which was augmented by an up-to-date catalogue on the Ministry for the Environment website. There have also been two comprehen- sive reviews of RCA policies.104 This has increased the level of skill exercised by those making decisions regarding coastal management, meaning the national interest set out in the NZCPS can be given effect to.
The evolution of coastal management led to a commensurate evolution of the RCA process. Before the NZCPS and RCPs there was a concern that regional councils did not have the expertise to take on the resource consent role without national policy direction.105 However, the NZCPS now provides national policy direction, and councils over the last 15 years have gained a significant body of experience through dealing with coastal management and the RCA process. In that time the hearing committee process has established itself as an
effective way of dealing with resource consents as well as providing a voice for the Minister through his appointee106 and submissions made.107
These developments were backed up by the creation of the Environment Court in 1996. The Court’s role is to “ensure that resource management issues will be resolved in difficult cases by a specialist Court”.108 It does so with Environment Commissioners chosen because they have a set of skills and expertise that allows them to make a “value judgment on behalf of the commu- nity as a whole”.109 This value judgement involves balancing environmental, social, and economic concerns110 to allow the Court to make an “overall broad judgement”.111 The breadth of this means that the perspective of the Court will encompass any considerations the Minister may have. With regard to the public interest specifically, the Minister is not required to exercise a judicial function, because the Court gives effect to the public interest by giving effect to the NZCPS.
If the Minister disagrees with the NZCPS then s 119 is not — and should not — be an avenue for the imposition of policy that was not tested in the same rigorous way the NZCPS is prepared.112 In the Whangamata Marina case, it was found to be “likely that this Minister of Conservation does not personally agree with the content of the current NZCPS”.113 But the Minister must give effect to the national perspective distilled in the NZCPS and then effected by the hearing committee or Environment Court, because it is this perspective that is drawn from instruments of coastal management, and that perspective is the only legitimate national perspective.
Indeed, the very nature of a RCA application makes it unlikely that RCAs in isolation could ever produce a national picture. In a study of regional councils
— the bodies that deal most regularly with RCA applications — councils said explicitly, “RCAs don’t produce a national picture”.114 This is partly because each RCA is unique “and each will need to be considered on its individual
107 Ibid, ss 96–98.
108 Whangamata Marina Society Inc v Attorney-General, supra note 1, at para 5, Fogarty J. 109 Watercare Services v Minhinnick, supra note 45, at 305, Tipping J for the Court.
of Local Government (unpublished report prepared for the reviewer of the New Zealand Coastal Policy Statement, Department of Conservation, 2003) 44.
merits”.115 It is also because RCAs do not create another level of analysis — any issues raised there are already addressed by RCPs. Any RCA application should merely be a reflection of the policy already in place. To try to implement policy through RCAs is to return to the fragmented, ad hoc method of coastal management that the RMA sought to put an end to.
If the Minister wants to implement a policy different to the one in the NZCPS then there are mechanisms for him or her to do so. After all, it is the Minister who oversees the NZCPS and approves of the instruments under it. With respect to a RCA application, there is now a comprehensive process whereby the Minister gets significant input by having an appointee on the hearing commission and by being able to make submissions. “Parliament never intended that a Minister of Conservation applying [section] 119 can unilaterally impose a different policy as to coastal development by-passing the statutory processes of the RMA”.116 The Minister must give effect to the instruments of coastal management because they contain the public interest. To do otherwise undermines the function of the RMA and frustrates the public interest.
The choice of the Minister to provide for the public interest can be viewed as something of a default. The Minister was given a national perspective under the Act because the framework of coastal management was not sufficiently ad- vanced for that perspective to come from anywhere else. The evolution of coastal management now means that this role is no longer necessary. The NZCPS is the distillation of the public interest and is given effect to by the hearing committee and the Environment Court. This provides the RCA process with a far more comprehensive method of giving effect to the public interest than the Minister’s ad hoc role as final consent authority ever could.
In the absence of other protection, there was a need for the Minister to act as a safeguard of the Crown’s interests. Yet, as the instruments of coastal manage- ment have come into place, there has been consistent recognition and protection of that interest. Policy 4.1 of the NZCPS provides for the “[m]aintenance of the Crown’s interest in land of the Crown in the coastal marine area”.117 This policy permeates through the other instruments of coastal management, ensuring recognition of the Crown’s interest. Thus, when preparing a RCP, a council must consider the “Crown’s interests in land of the Crown in the coastal marine
115 Hastings District Council v Minister of Conservation, supra note 43, at para 57, Wild J. 116 Whangamata Marina Society Inc v Attorney-General, supra note 1, at para 50, Fogarty J. 117 New Zealand Coastal Policy Statement 1994, Chapter 4.1.
area”118 and then give effect to the NZCPS.119 With respect to the RCA pro- cesses specifically, the Minister’s de facto control described above will have the effect of ensuring protection of the Crown’s interest in land. As such, there is no need for a ministerial decision-making power.
Whangamata Marina determined that it is not the case that the Minister’s decis- ion is a political one. This potential justification clearly cannot stand.120
The Minister’s power is no longer necessary for the purposes stated at the incep- tion of the RMA. However, it may be possible that the Minister’s power still acts as a kind of safeguard.
While the Minister can differ as to the weighting given to matters, it seems unlikely that this could be a safeguard for two reasons. First, because evaluative determinations made by the Minister are limited by the determinations made by the hearing committee or Environment Court, the Minister can only make a different determination if it is one still available on the facts presented in the report given to him/her. Second, the Minister’s weighting does not bring another level of analysis to the RCA procedure. Because the Minister does not bring a perspective different to the specialist hearing committee or Environment Court, the scope of this determination seems so narrow as to only apply where the committee or Court has made an error.
The ability to refer matters back to the Court for further consideration appears to have greater promise as a safeguard. It is possible that the Court could miss something that is important to the application. While the Minister can raise this by way of submission, it may not become clear until the decision is made by the Court. In such a case an evaluation of the matter by a qualified body would provide a much better safeguard than the Minister could.
Where the decision-making body has made an error, the fairest resolution would come from a court. While the High Court can be appealed to only on a point of law, the scope of this has been broadened by case law since the RMA came into effect. Claims to the High Court have included that the legal test applied by the Environment Court was wrong; that it came to a conclusion without evidence or one which on the evidence could not reasonably have been reached; that it has taken into account matters that should not have been taken
into account; and that it has failed to take into account matters which should have been considered and the error could have affected the decision.121 As such, the scope of the High Court’s jurisdiction means that it is reasonably broad, and certainly broad enough to cover the potential safeguard role for the Minister described above. The experience and expertise of the High Court makes it a superior candidate for this task. A decision by a court is also appealable, mak- ing it a process that creates certainty and fairness, where the Minister’s decision does not.
4.2 The Effect of a Ministerial Decision-making Power on the Resource Consent Application Process
(a) Minister as submitter versus Minister as consent authority
The Minister has the power to submit on any RCA application in accord- ance with ss 96 to 98 of the RMA. A conflict occurs because it is also the Minister who makes a final decision on the same application. This “places other parties in an invidious position — a submitter on the application is also the ultimate decision maker”.122 Indeed, the Attorney-General in the Whangamata Marina case clearly recognised this, submitting that “it would be preferable if the Minister did not make a submission on an RCA because of the potential confusion of roles”.123
This was not seen by counsel for the Minister as an insurmountable problem. It was submitted that it cannot be assumed that the Minister is acting in his role as consent authority because DoC has done the work and, as such, is effectively the submitter.124 But the corollary of this is that DoC thereby has a confusion of roles. DoC makes submissions on RCA applications but must also act as an advice provider to the Minister. In the Whangamata Marina case, for example, DoC made submissions and then prepared the report for the Minister to base his decision on, even highlighting relevant passages for him to read.125 The review of local government clearly stated that the “Department of Conservation’s dual
125 Whangamata Marina Society Inc v Attorney-General, supra note 1, at para 101, Fogarty J.
role as a submitter, and then in providing advice to the Minister, was viewed [by councils] ... as a conflict of interest”.126
The Board of Inquiry in the report that accompanied the first NZCPS realised this was an area of conflict, but concluded that “because the regime is novel, we recommend that you should keep your role under it and the necess- ity for it under review”.127 Now that the regime has matured, the conflict of functions is entirely unnecessary as the Minister in this capacity serves no purpose. The regime would be better served by the Minister performing one function and performing it well.
(b) Role of the Minister as a politician versus the role of the Minister as consent authority
The office of Minister of Conservation is an inherently political one. However, the Minister when acting in his or her role as final decision-maker exercises a function that is technical, not political. The conflict arises when the Minister attempts to perform both roles simultaneously, as happened in the Whangamata Marina case, where the Minister conducted a site visit and met with locals to discuss their views. He argued that this was in his capacity as Minister not as consent authority.128 Yet this was found to be a procedural error.129 While the Court found that it “cannot have ever been Parliament’s intention that the Minister of Conservation cease being a politician during the statutory period of consideration of whether or not to adopt the recommendation in the report”,130 he is still constrained as this “does not mean that he can depart from [section] 119”.131
RCA applications can be contested political issues. Concentrating power in an inherently political office and then requiring an apolitical decision is dangerous as it increases the chance of predetermination. The Court in Whangamata found that it was likely that the Minister disagreed with the NZCPS.132 While the Court went no further than this, the implication is that this is potentially why he adopted a different view. If no ministerial decision-making power existed, then the Minister could clearly state views without jeopardising the RCA process, leaving the ultimate decision to an apolitical arbiter.
Section 119 effectively means that a RCA application must be consented to twice. For example, for the Whangamata Marina Society, the RCA process was a 13-year battle costing hundreds of thousands of dollars.133 Yet the Minister reviewed the evidence and declined the application essentially within a weekend.134 This unnecessary duplication of assessment creates uncertainty for applicants, and was raised as an issue of concern to regional councils when surveyed.135 While this may be the only example of an application being declined by the Minister, the process is still undesirable.
(a) Potentially contributes to non-compliance
The uncertainty of the RCA process is manifested in non-compliance. For example, in Taranaki applications have been made for 299-metre sea walls and in Nelson 49-hectare marine farms, when the classification for a RCA is 300 metres and 50 hectares respectively.136 While the Minister is unlikely to be the cause of this non-compliance, retention of this power does create further uncertainty, as well as contribute to extra time and cost imposed by the RCA scheme.137 When uncertainty is manifested in non-compliance it does not facilitate the aims of either the RCA process or the RMA. Thus, not only does the ministerial decision-making power serve no function, it also acts to potentially undermine the framework of coastal management it was designed to protect.
(b) No appeal available, only judicial review
In the survey of local government, regional councils were also critical of the fact that there was no possibility of appealing the Minister’s decision on a RCA.138 Fortunately for the Whangamata Marina Society, the wrong inflicted on them was eventually put right by an action of judicial review. On a practical level, however, it needs to be considered whether other, less well off, organisations will be able to afford such an action. While the action did set an important legal precedent, the cost in both time and money to the Society was high; a fact that is particularly frustrating given that the process ought never to have happened in
the first place. If it had been the case that the Environment Court had made an error, a fairer resolution would surely come from an appeal to the High Court.
5. CONCLUSION ON THE EFFICACY OF A MINISTERIAL DECISION-MAKING POWER
The Minister’s power of decision was designed as a safeguard for coastal manage- ment. The RMA implemented a revolution of integrated resource management law. Much of the old order was cleared away. However, a lapse resulted between the dismantling of the previous system and the implementation of the new one. It was the Minister who was to step into this gap to ensure that the goals of sustainable management were met at the resource consent level. Due to the public interest in matters pertaining to the coastal marine area, the Minister was given broad powers of determination by the RMA. As coastal management evolved, a comprehensive range of statutory instruments was created, designed to assist councils by projecting matters of national importance downwards. This was backed up by the creation of the Environment Court, a specialist tribunal for the resource consent process.
Almost ironically, the statutory instruments of coastal management that were created so closely with the Minister came to limit the power that could be exercised under s 119. Because matters of national interest were now contained within the statutory instruments of coastal management, the Minister had to remain consistent with them. Because these were taken into account by the hearing committee or Environment Court, the Minister did not bring a national perspective that was different to the one contained therein. And because the committee and Court were specialist judicial bodies, the Minister did not have a quasi-judicial function enabling him to retest matters decided by them, or base a decision on a matter not tested in this adversarial process. Indeed the instru- ments backed up by the committee or Court perform the role of the Minister more capably and comprehensively than the Minister ever could through iso- lated consent applications.
Yet the Minister retains a significant degree of control over the coastal marine area. It is the Minister that sets the NZCPS and has the power to initiate a review of it. The Minister also consents to all RCPs and works closely with councils in formulating them. This gives the Minister de facto control over what is permissible in the coastal marine area while also ensuring that processes reflect public interest.
Where there is a difficult RCA application the best policy is to ensure that it is heard by the Environment Court for an overall evaluative determination. The Minister can ensure this happens by making a submission on an application and then requesting an inquiry by the Court if it is deemed necessary. If a decision
of the Environment Court is to be appealed, it is better that this goes to the High Court where experience and expertise ensure a result more adequate than the Minister’s ad hoc function.
The evolution of coastal management has rendered the ministerial decision- making power unnecessary, but its retention is now damaging for the RCA process. The power led to confusion over the function of the Minister, and conflict between roles of consent authority and Conservation Minister. Even more potentially damaging was the real risk of bias created by concentrating the power to make an apolitical decision in an inherently political office. The fact that the Minister’s role is now better performed by those bodies designed to perform it means that there is no need to subject applicants to a double process.
Under the RMA, coastal management has become more skilled and compre- hensive then it has ever been before. The story of Whangamata Marina may have been a good one for the newspapers, but it was not good for the image of coastal management under the Act. The retention of an anachronistic ministerial decision-making power damages the perception of coastal management under the RMA as a whole. Viewed cynically, its retention serves as an avenue that could only ever frustrate the public interest in its application, given that it is now a sub-optimal process. It is exactly the kind of process that creates resent- ment towards the RMA, undermining the political will and public goodwill that enabled such advances in coastal management. As such, it is time for this unnecessary and damaging power to be abolished.
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URL: http://www.nzlii.org/nz/journals/NZJlEnvLaw/2007/11.html