Foreshore and seabed review
Introduction
On 1 July 2009, the Ministerial Review Panel ("Panel") appointed to undertake a review of the Foreshore and Seabed Act 2004 ("FSA"), released its report entitled Pākia ki uta, pākia ki tai ("Report"). Following a series of public meetings, hui, discussions with stakeholders, academics, judges, lawyers, and a review of over 580 submissions, the panel has recommended that the FSA be repealed.
The Report sets out two proposals for the recognition of both customary and public interests in the coastal marine area.
The Panel considers that the FSA should be repealed as it fails to effectively recognise and provide for customary title, and removes the legal rights of Maori to have their interests determined by the courts. The Panel further considers that the FSA also fails to properly balance customary and public interests, and does not effectively enhance the status of mana whenua (the authority and rights) of the hapu and iwi.
The Panel instead recommends a National Policy Proposal and/or a Regional Iwi Proposal; both of which are based on a Treaty of Waitangi framework and set of core principles, including those of reasonable public access, good faith and compensation.
National Policy Proposal
The National Policy Proposal focuses on a one-off national settlement between entitled Maori (meaning hapu and iwi with traditional interests in the coastal marine area) and the Crown. This settlement would provide for a percentage of income streams to be set aside for the benefit of entitled hapu and iwi.
The National Policy Proposal would also establish a bi-cultural body with oversight of the entire coastal marine area. This body would develop proposals for a national settlement, consider the allocation of rights held by hapu and iwi (and the methods by which such rights might be implemented, recognised and enforced), and establish protocols for the co-management of the coastal marine area at a local level. The rights developed under such a process would be similar customary rights and customary rights orders under the FSA, but with very different thresholds. These rights would entitle groups to be consulted and would allow them to have direct input into coastal management.
The recommendations of the Panel suggest that such rights could be linked to the Resource Management Act 1991 (as is the case with the existing system of customary rights orders).
Regional Iwi Proposal
The Regional Iwi Proposal focuses on regional negotiations directly between the Crown and hapu and/or iwi. It substantially follows the form of negotiations currently underway around the country, except there would be no need for references to the High Court or the Maori Land Court to approve settlements. There would be no territorial customary rights orders or customary rights orders, as these were inventions of the FSA using tests that the Panel considers had no known application in New Zealand jurisprudence.
The Panel considers that the Crown would represent the public interest in negotiations between the Crown and hapu and/or iwi, however, the responsible Minister may arrange for public input into various negotiations. It is proposed that the Minister may also refer certain matters to the Maori Land Court for an opinion and to hear from both Maori and the public.
Matters to be addressed under either proposal
The Panel has identified customary usages, customary authority, and ownership as three key matters that require settlement under either proposal.
The Panel considers that customary usages can be provided for by exclusive reserves under hapu control, or through general harvesting rights provided by regulations or Maori Land Court orders.
Customary authority may be supported by the full right to manage reserves and regulate customary activities; and the right to be engaged in the co-management of coastal marine areas in partnership with other controlling authorities.
Conversely, it is thought that ownership of the foreshore and seabed requires a national negotiated solution, specific to the seabed and foreshore, and that the solution must include provision for the income streams resulting from resource exploration and use licenses.
The issue of whether customary interests should be treated as amounting to exclusive ownership rights in the foreshore and seabed requires negotiation at a national level. The Panel concluded that a political solution is required, based upon the principles of the Treaty of Waitangi and good faith.
Interim Act
The panel proposes that the Government initially pass an interim Act, which would contain transitional provisions to provide for a framework for the settlement of customary interests, and which would vest legal title in trust to the Crown until further issues are resolved between stakeholders.
The interim Act would repeal the FSA, recognise that entitled hapu and iwi have customary rights in the coastal marine area and also recognise that the general public have rights of use and enjoyment. The interim Act would also provide mechanisms for Maori and the public to respond to the two proposals put forward by the Panel.
The Panel considered that matters concerning coastal marine law, access to the coast and local authority interests were outside their terms of reference and require further discussion.
Next Steps
The Government has not yet committed to repealing the FSA, and has indicated that it will consider the report and range of future options in due course.
The full report of the Ministerial Review Panel can be found at: www.justice.govt.nz/ministerial-review/report-ministry-review-panel.html
Update on Emissions Trading Scheme
2020 Emissions Target
On 6 June 2009 the Government commenced public consultation on New Zealand's 2020 emissions target which it proposes to table at the Bonn climate change negotiations in August this year. Public meetings are being held throughout the country over the next several weeks to discuss the 2020 target and a short paper has been released which summarises the challenge of climate change and the national and international implications. The paper can be found at: www.mfe.govt.nz/publications/climate/nz-2020-emissions-target/index.html
Forestry Sector Amendment Act
The Climate Change Response (Emissions Trading Forestry Sector) Amendment Act ("Amendment Act"), which amends the Climate Change Response Act 2002 ("Act"), was passed by Parliament on 30 June 2009. The Amendment Act modifies the Act by delaying a number of requirements which apply to the forestry sector under the New Zealand Emissions Trading Scheme ("ETS") and amends the date by which the Government is required to provide an allocation plan of units for owners of pre-1990 forests.
Under the Act, foresters were required to report by 31 January 2009 any deforestation which occurred during 2008 and to apply by 30 June 2009 for exemptions for the clearing of small forest blocks under 50 hectares. Based on a lack of public awareness of these requirements and the fact that the ETS Review Committee is yet to complete its review of the ETS, the proposed dates were considered unreasonable and have been extended. Reporting of deforestation is now required by 31 January 2010. The date by which small forest owners must apply for an exemption and the provision of an allocation plan of units is to be determined at a later date depending on progress of the ETS Review Committee Report.
Industrial emitters and the Emissions Trading Scheme
Under the current Act, large industrial emitters are to be bought into the ETS on 1 January 2010. However, given that the compliance dates applicable to the forestry sector have now been delayed under the Amendment Act, Climate Change Minister Dr Nick Smith has commented that it would be "unfair" to require industrial emitters to adhere to the existing timeframes. It is also unlikely that the Government will enforce requirements on industrial emitters under the ETS until an allocation plan is finalised, the ETS Review Committee has reported back to Parliament, and the proposed further amendments to the Act have occurred. While no official timetable changes have occurred in relation to industrial emitters, it is likely that changes will follow on from the Forestry Sector amendments passed on 30 June.
Going forward
During the first reading of the Amendment Act Dr Smith foreshadowed that "a more substantive emissions trading scheme amendment Bill" will occur after the ETS Review Committee has reported back to Parliament. This is expected to occur sometime late this year. Based on the delay of the requirements applying to the forestry sector, the highly probable delay of industrial emitters being bought within the ETS, and the highly contentious nature of the ETS, especially in this economic climate, it is unknown when the ETS will start to have an impact on the operation of businesses in New Zealand, especially in the face of considerable industrial and agricultural opposition. In the meanwhile, the forestry industry is left facing huge uncertainties as to the future value of forestry as an investment. This uncertainty has seen a steady decrease in forestry land within New Zealand over the past 5 years, which will not assist in reducing New Zealand's emissions profile or meeting any 2020 emissions target.
The Environmental Defence Society proposal for a New Zealand Coastal Commission
The Environmental Defence Society ("EDS") has proposed a New Zealand Coastal Commission ("Commission") to improve coastal management in New Zealand. A conference paper outlining the proposal was presented by Gary Taylor, Chairman of the EDS, on 8 June 2009 at the Reform in Paradise: Threat or Opportunity, EDS's national environmental summit on the government's reform agenda.
In his address, Gary Taylor highlighted the importance of the coast to New Zealanders' identities, health and economic wellbeing. He stated that coastal activities are however currently being poorly and inconsistently managed across a number of fragmented organisations, and that this has led to ad hoc decision-making on specific projects with insufficient national direction. The paper also emphasises the inappropriateness of local councils managing and protecting the coast, as it is a nationally important resource.
EDS's recommended solution to these concerns is an independent national body that would integrate all coastal management functions in a science and policy based entity within the National-led government's proposed Environmental Protection Agency ("EPA"). The EDS sees the proposed Resource Management Act 1991 reforms as an opportunity "to achieve a step-change in coastal management with significant gains in environmental quality and simplicity of process".
The Commission would consist of a specialist board of inquiry comprised of high-standing members of the community with relevant expertise in coastal and marine management, and would include strong Maori representation. It would be serviced by the EPA coastal and marine unit and could report to Parliament through the Ministry for the Environment. EDS believes this would provide specialist oversight of the coastal marine functions of the EPA and would lead to improved governance.
The EDS proposes that the Commission would have powers to determine resource consents and requests for plan changes for called-in significant coastal development projects, approve council coastal plans prior to notification, develop national environmental standards for coastal and marine areas, hear submissions and make recommendations to the Minister of Conservation on reviews of the New Zealand Coastal Policy Statement and be a general advisor to the government on coastal and marine issues. The paper makes reference to coastal planning regimes in the jurisdictions of California, New South Wales, and England as examples in support of the establishment of a commission. The EDS believes that a coastal commission would enable more specialised input, ensure consistency, and support a national level approach to coastal management.
To review the EDS conference paper Coastal Management : The Case for a New Zealand Coastal Commission in full see:
www.eds.org.nz/content/documents/reform_papers/The New Zealand Coastal Commission GT.pdf
The first phase of the RMA reforms, in the form of the Resource Management (Simplifying and Streamlining) Bill 2009, is continuing its progress with the Select Committee hearings on the submissions of the Bill now complete. The Local Government and Environment Select Committee's report on the Bill is due to be made to Parliament on 27 July 2009.
In the interim it has been reported in the Independent that a report to the Select Committee by the eight member technical advisory group ("TAG") has recommended that a new test should be imposed relating to the ability to appeal a council decision to the Environment Court under the RMA, which would replace the current proposal in the Bill to require leave to appeal Council decisions on policy statements and plans. As currently drafted, the Bill provides that leave may only be granted where the decision has a significant impact on existing property rights; fails to give effect to Part II; or is unclear in meaning or effect.
This is the second report produced by TAG, and it has yet to be made publicly available. It has been reported that an appeal would only be allowed in circumstances when there is a "serious question to be determined". Further, the party lodging the appeal would also have to establish that they have already submitted on the issue in question and that they have a sufficient interest in the matter that is greater that the general public, or are representing a relevant aspect of the public interest. Leave would need to be sought to appeal, and other parties could seek leave to have appeals struck out.
The requirement for leave to be sought to appeal was highly criticised by a wide range of submitters on the Bill. It remains to be seen how this alternative approach will reduce delays or costs as it will simply represent a further opportunity for parties to challenge appeals and is likely to require judicial determination as to the threshold for a "serious question".
Local authorities' report card 2007/2008
On 11 June 2009, the Ministry for the Environment released its Resource Management Act ("RMA") two-yearly report ("Report"). The Report consists of a survey of all New Zealand local authorities' activities from 1 July 2007 to 30 June 2008 and provides both information about local authority implementation of the RMA and a measure of comparative performance of local authorities over the years. As the Report is the ninth in a series of surveys, the data provides a solid basis for comparative analysis on all aspects of local authority involvement within the RMA.
The purpose of the survey is to help monitor the practical implementation of RMA and enable each local authority to compare its performance against others. The Report identifies local authorities that are complying with the RMA and promotes improvements in all aspects of local authority performance.
The Report analyses key RMA processes such as the resource consent application process, monitoring and enforcing consent conditions, and introducing and implementing plan changes. During the survey year close to 52,000 resource consent applications were processed through to a decision with the large majority of such applications being non-notified. There has been an increase in the proportion of consent applications appealed and objected to and the Report found a nine fold increase over the last 10 years in the proportion of consent applications that had processing timeframes extended under the RMA. Consequently, there were fewer consent applications processed on time than any other time in the last 10 years.
The Report showed that monitoring of consent conditions by local authorities increased over the last nine years, while complaints about alleged breaches of the RMA continued to increase with 47% more complaints than in the previous survey. The Report also found that while the use of pre-hearing meetings dropped in this survey period, the success of such meetings increased. Similarly while the proportion of local authorities with formal agreements with iwi/hapu dropped from the last survey, there was a corresponding increase in informal agreements that have had a measure of success.
Importantly, the stated purposes of the survey and the findings of the Report relate closely to a number of objectives of the Resource Management (Simplifying and Streamlining) Amendment Bill 2009 ("Bill"). Specifically the Bill aims to reduce the time and costs associated with resource consent applications, introduce technical and procedural changes to avoid unnecessary delays and overall improve decision-making processes under the RMA. For that reason, the tenth survey will be undertaken a year later than scheduled in order to capture the effects of the Bill once it comes into effect later this year.
Councils given more time for drinking water compliance
The Government has announced it has delayed requirements for suppliers to meet their obligations under the Health (Drinking Water) Amendment Act ("Amendment Act") by three years. The act which aims to improve the quality of drinking-water, began last year on 1 July 2008. Compliance timeframes for specified duties in the Amendment Act were staggered from 1 July 2009 to 1 July 2013, however larger suppliers now have until 1 July 2012 to comply with the Act whilst smaller suppliers have until 2016 to comply.
The main duties in the Amendment Act are to:
- Monitor drinking water.
- Take all practicable steps to comply with the (previously voluntary) drinking-water standards.
- Introduce and implement public health risk management plans for the water supply (if serving more
than 500 people).
Health Minister Tony Ryall has confirmed that the Government will also be reviewing the cost, benefits and administrative burden of the legislation (which is something local communities have been requesting for some time). Local Government is also concerned about the impact of compliance on rates and water charges, and local councils have informed the Government that the cost of compliance will significantly exceed the previous Government's estimates. The timeframe for the review is yet to be announced.
Are regional councils on their way out?
Earlier this year the Minister for the Environment’s Technical Advisory Group ("TAG") produced a report on the Resource Management (Simplification and Streamlining) Amendment Bill 2009 ("TAG report"). Among the group's recommendations was a controversial suggestion that regional councils be abolished across the county.
The TAG report noted the findings in a Massey University study which stated that:
"despite some improvements, and some regional variation, overall environmental conditions have deteriorated nationally since 1989 [when regional councils were established]...Councils collectively appear to be unable to manage the difficult and important environmental challenges such as non-point agricultural discharges that have arisen from agricultural intensification, so that the environment is worse than when they took responsibility."
The debate has been revived recently by the bi-annual report by the Ministry for the Environment (discussed above) which examines local authority implementation of the RMA ("Local Authority report"). This report ranked from top to bottom all local authorities in terms of their ability to process resource consent applications on time. Environment Canterbury ("ECan") ranked 84 out of 85 councils, having processed on time only 29% of resource consents received.
ECan has vehemently defended its position, stating that a majority of the resource consents it processes are for water takes which are more complex than other resource consents. ECan and regional council supporters point to Central Government and the lack of national policy statements and national environmental standards as the root cause of regional councils' failures. The earlier TAG report also identified this issue, however it considered that there are significant concerns regarding the policy statements themselves and their effectiveness, and whether they can be made operative without unacceptable delay and cost.
The Local Authority report could not have come at a better time for Guy Salmon (also a member of TAG) who is leading the charge for abolition. At a recent Environmental Defence Society conference Guy Salmon stated that regional councillors "lack the political authority to stand up to vested interests and safeguard the environment for future generations. As a result, too many environmental issues have been left unresolved, just endlessly talked about, for the 20 years regional councils have been in existence".
Some commentators have suggested that farmers may join the pro-abolishment bandwagon, however Guy Salmon argues that some regional councils have been captured by farmers and farming interests, which meant that efforts to manage water as a sustainable resource were also failing. Guy Salmon recommends that a way forward is for the Government's planned EPA to have regional offices and take over the responsibilities of regional councils. This would mean a transfer of funding of more than $800 million from the regional ratepayers to the country's taxpayers.
Costs not relevant to Councils' record-keeping and pre-litigation obligations
In the recent decision of Thames-Coromandel District Council v Coromandel Heritage Protection Society CA96/2008 [2009] NZCA 204, the Court of Appeal had the opportunity to discuss the role of costs in the context of resource consent challenges.
Keith Clapson applied to Thames-Coromandel District Council in 2006 for consent to develop a property in Coromandel township. Consent was obtained and work began on the development. Later that year, upon inspection of the TCDC file, the chairperson of the Coromandel Heritage Protection Society decided that consent should not have been granted. The Society wrote a letter requesting that work on Clapson's property cease. The Society filed for judicial review of the Council's decision as well as an application for interim relief in late 2006. The Society's application was later discontinued when its lawyer realised the proceedings were misconceived. However, the Society sought costs against the Council.
The High Court ordered that the Council pay the costs of the Society. Although usual practice is that a plaintiff must pay the defendant's costs in the case of discontinuance, this rule did not apply for two reasons. First, deficiencies in the Council file misled the Society as to how the resource consent had been granted. Secondly, the Council did not, upon receipt of a draft statement of claim from the Society's lawyer, point out errors in its key allegations. The Council was successful in appealing the decision. The Court of Appeal held that the state of a council's record-keeping is irrelevant to an award of costs, as costs are intended to reflect how parties have acted during litigation, not before it. Further, the Council was under no obligation to respond to the Society's draft statement of claim. The Court of Appeal also commented that it is important to the costs regime and its predictability that costs as a remedy be restricted to its proper role: partially compensating the winning party for its costs in respect of the proceeding. Costs are not to be used for 'punishing' a party for its conduct outside the proceeding.
This case makes it clear that the onus is on those dealing with councils in resource consent issues to elicit all information relevant to that matter. A council is not accountable through costs for deficient record-keeping, nor is a council required to inform a plaintiff that its claim is not worth pursuing.
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