Who Cares if Government Amends RMA to Exclude Consultation?

A very personal opinion by Andi Cockroft

Environment Minister David Parker wants to fast track important project consents by excluding public input.

If the Government goes ahead with this threat to remove public consultation from the RMA process surrounding major projects, what difference will that make? Barely any, I suggest. I say this because over the last decade or so consultation with the public has been eroded. For example once a parliamentary select committee gave submitters unrestricted time. Somewhere along the line this was whittled down.

In 2007 ERMA held a review of the controversial 1080 poison. Any member of the public wishing to make an oral presentation was given about seven minutes with three minutes for questions. Early on it was obvious the ERMA review was just a whitewash when a member of the panel hearing submissions was none other than a DOC officer who formulated the Department of Conservation’s pro-poison policy. Expert evidence from qualified people such as a doctor and retired scientists – independent and credible with no vested interests were virtually ignored. Then ERMA itself before all submissions had been heard, came out with a public statement extolling 1080 poison. It was a farce.

Communist State Action?

In April 2016, National’s Environment Minister Nick Smith made 1080 aerial poison drops not only non-notifiable but placed sole control in the hands of himself as minister. It was a state grab of power and totally and undemocratically denied the public any right to comment. It was not unlike a communist state action.

Environment Minister Nick Smith’s obsession with control and power had happened earlier in 2010. In an unprecedented move, the National government sacked the elected board of councillors at Environment Canterbury and replaced them with the government’s own hand-picked commissioners. The decision was widely heralded as a “black day for democracy”.

For decades now, consultation by both local authorities and government has become a joke. No matter what the issue, Parliamentary Select Committees will go through all the motions, waste everyone’s time and simply carry on regardless with their plans. 

Recent experience before Select Committee saw CORANZ’s submission time curtailed from 15 minutes to 5 minutes because the politicians were running late. Never mind the obligatory duty of the committee to consult with and listen to the public’s views. Needless the CORANZ submission never figured in the outcome.

High Court Definition

Local and Regional Authorities fare no better. They go through the motions but pay scant – if any – regard to the time, effort, and desires of their citizen ratepayers.

A landmark decision by the High Court in 1991 defined what Consultation actually meant. As far as I am aware it remains the only common-law decision to yield such a definition. It should therefore be our yardstick – until something else comes along.

An extract from Faculty of Law Research Centres, New Zealand Centre for Public Law Publications Regulations Review Committee Digest Chapter 13

Chapter 13: Non-Compliance with Notification and Consultation Procedures: SO319(2)(b)

What Constitutes Consultation?

The [Select] Committee has previously adopted the common law definition of consultation established in the High Court decision of Air New Zealand Limited v Wellington International Airport Ltd.[299] The Committee has summarised the relevant considerations to be as follows:

The essence of consultation is the communication of a genuine invitation to give advice and a genuine consideration of that advice.

The effort made by those consulting should be genuine, not a formality; it should be a reality, not a charade.

Sufficient time should be allowed to enable the tendering of helpful advice and for that advice to be considered. The time need not be ample, but must be at least enough to enable the relevant purpose to be fulfilled.

It is implicit that the party consulted will be (or will be made) adequately informed to enable it to make an intelligent and useful response. The party obliged to consult, while quite entitled to have a working plan in mind, should listen, keep an open mind, and be willing to change and if necessary start the decision-making process afresh.

The parties may have quite different expectations about the extent of consultation.

Public Servants

It seems over the intervening decades, these public servants – yes the public’s employees- in Government and Local Authorities have paid less and less to this High Court Decision, to the point where this now appears little more than a sham, a very bad joke.

CORANZ past chairman Tony Orman made several submissions since 1971 to Select Committees. Those committees of yesteryear afforded organisations well over one hour to make their case and paid genuine attention with intuitive questioning. True that in those days of “first past, the post” the government of the day, held a majority on a select committee. But at least they gave full opportunity to the public to have a say. Halcyon days that sadly have now long gone.

But to reiterate, the last decade or so under National-led governments and now a Labour-led government has seen a huge erosion of the public having a say.

Now our – yes – yours and mine – Government intends to remove consultation for projects it deems important.

I feel very uneasy given bitter first-hand experience of consultation of recent years. In fact, I’m not only uneasy but angry 

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