The recommendation from the Environmental Protection Agency to refer the Basin flyover resource consent to a board of inquiry seems to reflect a rift between the Agency and the Environment Court. It also undermines the reputation of the Court.
The EPA recommendation is in effect a direct attack on the court, implying that it is incompetent.
Projects of National Significance can be referred either to the Environment Court or to a board of inquiry. The EPA must recommend its preference to the Minister, and must provide reasons for that preference. Because this recommendation has chosen from two alternatives, the reasons for preferring one (a board of inquiry) make an unavoidably direct statement on the competence of the other (the Environment Court). If you consider these reasons (in bold), then what the EPA is in effect saying could be explained as follows (italics):
(a) We consider that the matters are a proposal of national significance
The relevant territorial authority can be by-passed and the proposal could be referred to either a board of inquiry or to the Environment Court
(b) Directing this proposal to a board of inquiry recognises the importance of the proposal to the Government
· The Environment Court is not competent to consider something which is of great importance to the Government; or
· The Environment Court cannot be relied on to deliver the outcome preferred by the Government
(c) A board of inquiry process will provide for comprehensive assessment of the matters within a streamlined process
The Environment Court cannot provide for comprehensive assessment of the matters, and does not have streamlined processes.
(d) A board of inquiry process will provide greater certainty for all parties as a decision is required within nine months of notification. The Environment Court and the relevant local authorities are not subject to this timeframe. This certain timeframe will also allow the Government to plan for other sections of the Wellington Northern Corridor (in particular the proposed second Mount Victoria tunnel);
The greater certainty referred to is the 9 month timeframe. The timeframe can however be extended by the Minister if necessary (i.e. if the 9 months are not sufficient to ensure a full hearing and consideration of the issues). From a legal perspective, this might then be considered a valid basis for recommending a board of inquiry. It however suggests the Environment Court cannot operate in a timely manner (or is insufficiently resourced to do so). In reality of course, both boards of inquiry and the Environment Court are required to ensure a full hearing of the matter. The only difference is that in the case of the board, the Minister can decide whether a full and adequate hearing has been held rather than the Court. In other words, in the case of the board there is a political decision determining whether a legal process has been fair and equitable, while in the case of the Environment Court, the decision is a legal one.
(e) A nine month timeframe for a decision will enable alignment of construction works (if granted) with completion of the National War Memorial Park (Pukeahu) in time to commemorate the centenary of the commencement of the Gallipoli Campaign of the First World War on ANZAC Day 2015.
Integration with other NZTA roading projects is more important than ensuring a full and fair hearing on the proposal. The Environment Court might be more likely to provide a full and fair hearing, but this would mean the alignment of construction projects might be undermined.
(f) A board of inquiry process is consistent with that used for the Transmission Gully, Mackays to Peka Peka and Peka Peka to North Ōtaki Expressway proposals (previous sections of the Wellington Northern Corridor).
A board of inquiry is more likely to rule in favour of the proposal because other boards of inquiry have done so in the past. On the other hand the Environment Court might be expected to be more independent and therefore less certain to rule in favour of the proposal.
(g) You [i.e. the Minister] can appoint members to a board of inquiry who, between them, have the necessary skills and expertise relevant to this proposal.
· Members of the Environment Court do not have the necessary skills and expertise relevant to this proposal (even though proposals of this nature are the very reason the Environment Court was established); and
· The Minister cannot influence the appointment of the specific members of Environment Court, and can therefore not be certain the project will be considered in a way which is biased to government preferences.
(h) The NZTA and the Greater Wellington Regional Council support the proposal being referred to a board of inquiry.
NZTA and the GWRC are complicit with the EPA in undermining the Environment Court. The EPA quotes NZTA and GWRC, but is silent on the Wellington City Council’s preference for referral to the Environment Court. The EPA does though note the WCC preference elsewhere in its report. However, it simply records the WCC position, and does not advise the Minister on the merit of the reasons put forward by WCC – i.e. that “the Environment Court would provide the considerable resource management expertise and resources of the Court to the decision making process, and that this would benefit the process and enhance the ability of the Wellington community to participate in the process.” Given its role in advising the Minister, I would expect the EPA to comment on the WCC reasons and to explain why they were not accepted. Instead, the EPA has chosen to ignore the WCC position.
In June this year, several bodies (EDS, the Green Party, and the Environmental Defence Society raised concerns that the government was going to abolish the Environment Court. Judith Collins denied that was the case. The government’s preference to appoint boards of inquiry and thereby to undermine the role of the Environment Court speaks more clearly of the Government intentions than the comments of the Minister of Justice.