The primary environmental legislation in New Zealand - regulating the use of land, air, water, ecosystems and the built environment - is the Resource Management Act 1991. Regulation under the Resource Management Act is achieved through various legal instruments, including local authority district plans. District plans provide a framework for the integrated management of the effects of the use, development and protection of land and associated natural and physical resources, including rules that set out when resource consents are required.
The Resource Management Act sets out a detailed process for the preparation of district plans, which includes public notification, hearings and appeals.
In this respect, the Resource Management Act emphasises the importance of public participation in matters that affect the environment. It includes specific requirements to consult with iwi (ie, the indigenous people of the area) when preparing a proposed plan or a variation to a plan - that is, before such a plan is notified, after which time it has legal effect. The Local Government Act 2002 also imposes certain requirements on local authorities to consult when making decisions. The reconciliation of these two consultation obligations, in the context of environmental regulation required under a district plan, was at the forefront of a recent High Court decision(1) with significant implications for environmental law in New Zealand.
Hamilton District Council considered that the rules in Hamilton's district plan undermined the principle of sustainable management, which is the key purpose and principle of the Resource Management Act. It therefore proposed a variation to the plan. The effect of the proposed variation was to impose additional restrictions on the activities that could take place on an area of land that was owned by Tainui, the local iwi.
The council publicly notified the proposed variation without first consulting with Tainui. The Resource Management Act requires councils to consult with iwi during the preparation of a proposed plan (or variations to a plan). The council accepted that Tainui was the relevant iwi for the purposes of the consultation. However, it chose not to consult with the iwi before publicly notifying the variation, as it feared that consulting before notification would provide Tainui with early warning of what was proposed and would allow the iwi to secure its position under the existing rules of the district plan. This would, in turn, defeat the purpose of the variation.
Tainui sought a declaration that the variation was invalid, on the basis that the council had breached its duty to consult.
Three main questions were raised during the case:
- Does the Resource Management Act require consultation before notification?
- If so, does a purposive approach to the Resource Management Act permit flexibility as to the timing of compliance with the consultation requirement?
- If Tainui made out its case, should the court exercise its discretion to grant relief?
Requirement to consult
The first issue involved statutory interpretation. As well as examining the provisions of the Resource Management Act, the court considered the principles of consultation set out in the Local Government Act, which requires consultation before a local authority makes a decision. The court emphasised that in this case the decision was whether to approve the proposed variation for public notification. It stated that if a council engages in consultation after notification, it is consulting on a plan upon which it has already decided.
The court interpreted the Resource Management Act to require consultation with iwi before notification. In its view, this was the plain meaning of the act. The court stated that consultation is a meaningful, two-way process, and that a party which is required to consult must do so with an open mind. If a consulting party has already reached a final decision, true consultation cannot occur.
Flexibility in timing
The council argued that if consultation was required, the act was sufficiently flexible to justify consultation after notification in this situation. In the council's view, the purpose of the act would be undermined by strict adherence to the consultation requirement; it therefore considered that discretion should be retained in order to preserve the effectiveness of a proposed variation.
The court was not persuaded by the council's argument that there was anything exceptional about the circumstances to justify a departure from the plain reading of the Resource Management Act. The court stated:
"The obligation to consult with iwi about proposed plans is an important principle, protected by the Act…To hold that a Council can bypass the consultation requirement because of its potential effect on the effectiveness of a proposed plan would run contrary to that purpose."
Discretion to grant relief
The council argued that the court should decline relief because the consequences of not consulting with Tainui before public notification were insignificant. It also argued that the balance weighed in favour of the wider public interest.
The court considered the details of the Treaty of Waitangi(2) settlement for Tainui and the importance of the settlement, particularly in relation to the capacity of the development of Tainui's land to generate income for the tribe. Although the council argued that regardless of consultation, the content of the variation would not differ significantly, the court felt that Tainui might have been able to influence the ultimate shape of the variation. The court decided that Tainui had lost an opportunity; therefore, there was an adverse effect in the lack of consultation before notification.
Relief was granted. The variation was held to be unlawful, invalid and of no effect, and the decision to notify the variation was quashed. The council was ordered to consult with Tainui before any further variation was approved and publicly notified.
The decision has significant implications for environmental law in New Zealand. The decision clarifies that consultation must be undertaken with the local iwi on proposed plan provisions, even if such consultation has the potential to undermine the proposed protections.
However, the Resource Management Act has subsequently been amended so that except in certain circumstances, district plan rules do not have legal effect until a council has made a decision on submissions. Previously, district plan rules had legal effect from the date of notification. These amendments effectively extend the opportunity for the purpose of a proposed plan change to be undermined.
For further information on this topic please contact Gerald Lanning, Michelle van Kampen or Tonia Mortell at Simpson Grierson by telephone (+64 9 358 2222), fax (+64 9 307 0331) or email ([email protected] [email protected] or [email protected]).
(1) Waikato Tainui Te Kauhanganui Incorporated v Hamilton City Council  NZRMA 285.
(2) The treaty is New Zealand's founding document and reflects a broad statement of principles on which the British and Maori agreed to found a nation-state and build a government in New Zealand.