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Forret, Joan --- "To "have regard to" or "take into account": does it matter?" [1999] NZYbkNZJur 7; (1999) 3 Yearbook of New Zealand Jurisprudence 117

Last Updated: 11 April 2015

TO "HAVE REGARD TO" OR "TAKE INTO ACCOUNT":
DOES IT MATTER?
BY JOAN FORRET^*
1. INTRODUCTION

Now that we have a new government and a new parliamentary year, perhaps it is time to consider some of the proposed amendments to the Resource Management Act 1991 ("RMA") which did not receive much attention during the review process in 1999. Hopefully the new Minister for the Environment, Marian Hobbs, will pursue changes to the RMA with a view to all of the reports, academic and professional critique that were generated out of the recent reform proposals. Towards that end, I urge the Minister and the Ministry for the Environment, ("MfE") to consider carefully any cosmetic changes to the Act which do little to improve or alter the present interpretation. In particular, I refer to the proposed changes to ss 66 and 74 in relation to the duties of local authorities to "have regard to"/"take into account" relevant iwi planning documents. These changes highlight two different issues. The first is the subtle difference in meaning of the two phrases, and the consequent interpretation of these phrases in Part II of the Act. I will argue that the differences between these two phrases are by no means clear and their use in other parts of the Act could also benefit by some clarification. The second is the implication for public participation of having local authorities effectively bound to take into account documents which have been produced with no general community input.

The explanatory note to the 1999 Bill describes the proposed amendments to ss 66 and 74 as substituting new sections to ensure that a regional or territorial council, as the case may be, "must take iwi planning documents into account instead of having regard to them".' This explanation suggests that local authorities have not given iwi planning documents sufficient consideration in the past and that they should do so in the future. I have no difficulty with the sentiment that Maori issues should receive genuine consideration by local authority decision makers as part of the consultation process inherent in their duty to take into account the principles of the Treaty of Waitangi.' Rather, my difficulty lies with the vehicle by which it was to be effected and with the elevation of a privately crafted document to

• BA BSc (Otago), Dip T, LLB Hons (Waikato), Lecturer in Law, University of Waikato.

1 Resource Management Bill 1999, Explanatory Note, clauses 25 and 28, v-iv.
² Resource Management Act 1991, s 8.
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a status intended to be above that of publicly formulated documents, such as regional policy statements and plans, district plans and regulations made under the Act.

The present wording of section 66 reads as follows:

In addition to the requirements of section 67(2), when preparing or changing any regional plan, the regional council shall have regard to—

(c) Any—

(i) Management plans and strategies prepared under other Acts; and
(i) Relevant planning document recognised by an iwi authority affected by the regional plan; (Emphasis added).

Contrast this with the proposed amendment which reads:

A regional council must, when preparing or changing a regional plan, take into account any planning document recognised by an iwi authority affected by the regional plan. (Emphasis added).

The change in wording from "shall" to "must" appears to be part of the strategy towards drafting legislation in plain language which was contemplated by the Law Commission's Report on legislative drafting³ and by the purpose section of the Interpretation Act 1999.⁴ It seems perfectly reasonable to implement such changes into existing legislation during the wider process of legislative amendment and I support that variation, however, the rationale for substituting the phrase "have regard to" for "take into account" is less apparent.

2. BACKGROUND

For those readers who are not overly familiar with the RMA it is perhaps useful to briefly describe the structure of the Act. Like many modern pieces of legislation, the RMA contains specific purpose and principles provisions which are found in Part II. Part II forms the core of the Act and many of the subsequent provisions are subject to Part 11.⁵ There are 4 sections in Part II, the first of which is the purpose section, s 5. Section 5 describes the purpose of the Act as being "to promote the sustainable management of natural and physical resources" and it goes on to define sustainable management within

3. New Zealand Law Commission, Legislation manual : structure and style. (1996). Section 2.
5. For example s 104, matters to be considered in relation to an application for a resource consent and s 171, recommendations by a territorial authority in relation to a requirement for a designation.

1999 To "Have Regard to" or "Take into Account": Does it Matter? 119

certain environmental constraints. Although entitled "purpose and principles" Part II makes no further reference to principles in the text. Instead, s 6 identifies the matters of national importance which those exercising functions and powers under the Act "shall recognise and provide for" and s 7 lists other matters that functionaries "shall have particular regard to"; both sections beginning with the words "in achieving the purpose of this Act". Section 8 is the final provision in Part II. Like the preceding sections, s 8 is a requirement of all functionaries in achieving the purpose of the Act, this time to the effect that such functionaries "shall take into account" the principles of the Treaty of Waitangi (Te Tiriti o Waitangi). (Emphasis added)

From even a superficial reading it is very apparent that Part II, and particularly s 5, forms the heart of the Act. Not only are numerous subsequent sections tied to the goal of achieving the purpose of the Act, but so are the principles sections in Part II itself. The Act has been described as a hierarchy of planning' which is:

[A]n unambiguous hierarchy. At the apex of the system is the purpose of the

Act. Every other instrument is dependent upon it, driven by it, prescribing by it, or otherwise founded upon it. This is unique.'

The significance of the purpose section has also been noted in case law as illustrated in the following judgment from Judge Kenderdine.⁸

Section 5 under the 1993 Amendment to the Act may be considered the lodestar which guides the provisions of s 104 and in this appeal we are guided by the over-arching purpose of sustainable management as defined.

The hierarchical framework within the RMA is also repeated within Part II itself. Each of sections 6 to 8 is directed at achieving the purpose of the Act and is thus clearly subordinate to section 5. Likewise the wording of sections 6 and 7 suggests a reducing emphasis on the role of each section. The section headings are "matters of national importance" and "other matters" respectively, and indicate that these provisions have a decreasing influence on functionaries when implementing the purpose of the Act. Within the sections there are further indicators of a decreasing emphasis, with s 6 requiring that functionaries "shall recognise and provide for" the matters of national importance, while in s 7 the requirement is to "have particular regard to". The words "provide for" suggest that a positive action

6. Department of Conservation, Introduction to the Draft New Zealand Coastal Policy Statement (1992).
7. Fisher, D "The Resource Management Legislation of 1991: A juridical analysis of its objectives." in Brooker's Ltd Resource Management (1992).

8 Lee v Auckland CC [1995] NZRMA 241, 248.
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towards implementation of the s 6 matters is needed rather than the more passive consideration implied by "have regard to". The descending importance within Part II has also received judicial commentary as indicated by Judge Jackson in Baker Boys v Christchurch City Council.⁹

Further, some effects are more relevant than others eg effects impinging on matters in s 5(2)(a) and (b) or s 6 are generally more important than those in s 7 whilst always recognising that each case turns on its own facts.

In summary, the RMA is a statute that has a central focus on sustainable management of natural and physical resources and that focus is contained in
s 5 of the Act. Section 5 is the first of 4 sections in Part II, and the following sections, 6, 7 and 8 are subordinate to s 5. Within Part II, s 7, incorporating the words "have particular regard to" is clearly subordinate to s 6. Where then does that leave s 8, which comes last in the Part, and includes the words "shall take into account"?

3. WHAT DOES IT MEAN?

I would argue that a plain and ordinary interpretation of the language of s 8, and its position at the end of a hierarchically organised Part suggests that it is the least important of the 'principles' which guide those empowered to achieve the purpose of the Act. The Act is meant to be a user-friendly piece of legislation that contains provisions that encourage and support the participation of non-lawyers, particularly at the local authority level of decision making, for example s 39, which requires local authority hearings to be public and without unnecessary formality and which forbids cross-examination of witnesses. Other examples are s 275 which permits parties to an Environment Court hearing to either represent themselves or be represented "by another person" and s 276 which provides that the Court is not bound by the rules of evidence. Thus a lay person reading the most fundamental Part of the Act, and without the benefit of access to judicial wisdom concerning nuances of meaning between "have particular regard to" and "take into account" is likely to infer that s 8 is the hypotenuse in a downward hierarchy in Part II. Such an interpretation was adopted by the Waitangi Tribunal in the Ngawha Geothermal Resource Report^m where the Tribunal commented:

As counsel put it, s 6 imposes a mandatory obligation on decision-makers to "recognise and provide for" matters of "national importance". Section 7 has less injunctive force; decision-makers need only have "particular regard" to "other" matters (which in turn are presumably of less than national importance). Section 8 in turn merely requires decision-makers to "take into

⁹ [1998] NZEnvC 144; [1998] NZRMA 433, 450.
¹⁰ (1993) 142.
1999 To "Have Regard to" or "Take into Account": Does it Matter? 121

account" Treaty principles. All of these matters are subordinate to the overriding importance of achieving the central purpose of sustainable management of resources (s 5).

The Tribunal described s 8 as a "'watered down' version"" of the reference to the Treaty which is found in s 9 of the State Owned Enterprises Act 1986, which states:

Nothing in this Act shall permit the Crown to act in a manner that is inconsistent with the principles of the Treaty of Waitangi.

It was also described' as a dilution of the reference in s 4 Conservation Act 1987 which provides:

This Act should be interpreted and administered to give effect to the principles of the Treaty of Waitangi.

I agree with the Tribunal's conclusion' that the Crown was careful to select wording that neither requires functionaries to conform with nor to implement or apply the relevant Treaty principles in order to achieve the purpose of the Act. Certainly there is nothing in the wording of s 8 to suggest that it overrides either section 6 or 7 and it is clearly subordinate to s 5.

To return to the proposed 1999 amendments I question the point of the substitution into ss 66 and 74 if the intention is to emphasise the requirement to consider iwi planning documents. The current wording is analogous to that found in s 7¹⁴ and the proposed wording is analogous to that found in s 8, however, there is nothing obvious in either the wording or placement of s 8 to suggest it has any greater influence on decision makers.

There has been judicial clarification on the difference in meaning between the two phrases and this came from Judge Kenderdine in her decision in Haddon v Auckland Regional Council.' In that case, the Tribunal¹⁶ had to consider whether the Treaty principle of consultation had been sufficiently taken into account, and her decision canvassed the different obligations imposed by ss 7 and 8 on decision makers. Judge Kenderdine held that:"

ii Ibid.

¹² Ibid.
¹³ Ibid, 145.
¹⁴ With the exception of "particular" from the phrase.
¹⁵ [1993] NZPT 204; [1994] NZRMA 49.

16. The Planning Tribunal was renamed the Environment Court in s 274, which provision was substituted by s 6 Resource Management Amendment Act 1996 (1996 No 160).

¹⁷ Haddon v Auckland Regional Council supra n 15 at 61.
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...the duty "to take into account" indicates that a decision maker must weigh the matter with other matters being considered and in making the decision, effect a balance between the matter at issue and be able to show he or she has done so.

In coming to her decision, Judge Kenderdine adopted the reasoning of the Court of Appeal in R v CD'^s which determined that the two phrases are different. In R v CD the Court considered the meaning of "shall have regard to" in relation to s 5(2) of the Costs in Criminal Cases Act 1967 as follows:^I9

The first question (not I think canvassed before Chilwell J), is what is meant by the words "shall have regard to". I do not think they are synonymous with "shall take into account". If the appropriate matters had to be taken into account, they must necessarily in my view affect the discretion under s 5(1)...

However, in distinguishing between the two phrases both the Court of Appeal and the Planning Tribunal illustrate the subtlety of the different wording. This subtlety was ignored completely by the Supreme Court in Deans v Supplementary Benefits Commission.^2° In considering s 2(2) of the Ministry of Social Security Act 1966, McMullin J substituted the phrase "shall take into account" for "shall have regard to" when asked to consider the meaning of the latter phrase. A similar substitution of intent was also made by the High Court in New Zealand Co-operative Dairy Co Ltd v Commerce Commission²'when Wylie J commented:

We do not think there is any magic in the words "have regard to". They mean no more than they say. The tribunal may not ignore the statement. It must be given genuine attention and thought, and such weight as the tribunal considers appropriate. But having done that the tribunal is entitled to conclude it is not of sufficient significance either alone or together with other matters to outweigh other contrary considerations which it must take into account in accordance with its statutory function.²²

This interpretation is consistent with that of Judge Kenderdine in Haddon and it was also adopted in the recent High Court decision of Foodstuffs (South Island) Ltd v Christchurch City Council.²³ In Foodstuffs, counsel for the appellant submitted that "shall have regard to", in relation to the s 104 matters to be considered for an application for a resource consent, should be interpreted as "shall give effect to". The court did not accept that

18. [1976] 1 NZLR 436.
    Ibid, 437.

²⁰ [1972] NZLR 1015.
21

[1992] NZLR 601.
²² Ibid, 612.
²³ [1999] NZRMA 449.
1999 To "Have Regard to" or "Take into Account": Does it Matter? 123

submission, commenting that "the requirement for the decision maker is to give genuine attention and thought to the matters set out..."'

My purpose in addressing these nuances in meaning has been to question one aspect of the proposed changes to ss 66 and 74 and suggest that if the change is really in order to ensure that councils take iwi planning documents into account rather than having regard to them, then the resulting obligation will change negligibly in practice.' Any difference between the terms is subtle and is rightly the subject for expert legal interpretation. At most, and then only if councils are acquainted with either the R v CD or Haddon decisions, the amendments would require functionaries to weigh any relevant iwi planning document against other matters relevant to the matter under consideration.

4. PUBLIC PARTICIPATION

My second difficulty with the proposed changes to ss 66 and 74 is that the intention, if not the effect of the change is to promote iwi planning documents among the matters to be considered by decision makers. This seems contrary to the notion of public participation, a notion that is central to the purpose of local government as provided by s 37K(i) of the Local Government Act 1974. I profess no knowledge of the mechanisms for participation into the preparation of these documents within iwi, but would be astounded to discover that there is general public participation in their preparation. I have never read any notices calling for submissions on iwi planning documents, nor have I heard of anyone presenting submissions as the result of a general invitation to the public.

The RMA references to iwi authorities are linked historically with the now repealed Runanga Iwi Act 1990. That Act prescribed the characteristics of iwi" and ninanga²⁷ and s 77 provided discretion for the preparation of iwi management plans. Such documents were intended to provide "a resource management overview of those matters that are of significance for the organisation and development of iwi.'' This Act was repealed in 1991 when it was considered inappropriate to legislate for a representative structure that would be applicable to all Maori, however the references to iwi management plans and to iwi authorities live on in the RMA.²⁹

24 Ibid, 453.
²⁵ For a discussion of the meaning of the term "shall have regard to" see Foodstuffs, ibid.
²⁶ Runanga Iwi Act 1990 (repealed), s 5.
²⁷ Ibid, s 2
²⁸ Ibid, s 22(2).

29. Section 2 of the RMA does, in fact include a definition of iwi authority, which relies heavily on the terminology and structures contained in the repealed Runanga Iwi Act.

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There are no guidelines in the RMA regarding the preparation of iwi planning documents. Thus, iwi planning documents are not required to reflect the purpose of the Act and nor is there a requirement that such documents focus solely on matters relevant to the iwi, either exclusively or in conjunction with the wider community. Thus it is possible that such a document could contain policies which consider development in localities adjacent to the iwi's present, not necessarily ancestral, land holdings. I suggest that if the proposed changes are actually more than cosmetic, then the effect will be to elevate the contents of iwi authority planning documents above all of the other matters to be considered by local authorities when preparing their plans: and that is contrary to other provisions in the Act which encourage public participation.' The other matters, which remain with the unamended exhortation that the local authority "shall have regard to" include; regional plans and policy statements, the Crown's interests in the coastal marine area, management plans prepared under other Acts, and district plans.' These matters involve the wider public interest and receive input from the public via the submission and hearing processes and also electorally. The desire for greater public participation in resource management issues is also strongly supported by iwi. The (then) Minister's Explanation of Key Policy Decisions which was released late in 1999 notes that Non Government Organisations ("NGOs") and Iwi/Iwi were concerned at the detriment to public participation proposed by contestable processing of and changes to notification procedures for resource consent applications.

5. CONCLUSION

It is not my intention to suggest that iwi planning documents should receive less attention than other matters to be considered by decision makers nor that the role that these documents serve is unimportant or irrelevant. Rather, it is the method proposed to require local authorities to consider Maori issues and concerns. If local authorities are giving too little consideration to these issues, then perhaps it is s 8 which should be enhanced. If functionaries were obliged to "give effect to" the principles of the Treaty, or were not permitted to "act in a manner that is inconsistent with" its principles then all decisions would necessarily be made with the Treaty in mind. Such an amendment to s 8 would clarify the position of Treaty principles within resource management in New Zealand and it would remove the need to elevate iwi planning documents above other planning instruments which do reflect public submissions from the wider community. In addition, I suggest that amendments should be made to legislation in

³⁰ See for example, ss 39, 48, 93, 96 and the provisions of the First Schedule.
³¹ See ss 66 and 74 for a complete list.
1999 To "Have Regard to" or "Take into Account": Does it Matter? 125

order to change or to clarify. The proposed amendments to ss 66 and 74 were intended to clarify the intent of the Act, however, the substituted phrase is neither clearly different in meaning on the face of its wording, nor from its use in s 8 of the Act.

The new Minister will no doubt return to the RMA and its perceived difficulties in due course. When she does, I hope that she will avoid making futile semantic amendments and instead consider the place of Maori issues within the RMA and whether the formulation of s 8, as it stands is sufficient.