Obiter

Obiter

Obiter dictum – “a statement of a Judge on a point of law not essential to the decision of the case before him or her.  “I think there is little doubt that those opinions were obiter and, in the case of two of the members, given merely in passing … we are free to take a different view” (per McCarthy J, Joe v Young [1964] NZLR24, 48).

Issues with access to justice in the Environment Court of New Zealand

Principal Environment Judge Laurie Newhook and Environment Judges David Kirkpatrick and John Hassan, Environment Court of New Zealand

The Final Straw for the RMA? Some shortcomings of the Resource Legislation Reform Bill 2015

Simon Berry, Partner and Helen Andrews, Senior Associate, Berry Simons

Jurisdiction of Councils to Regulate GMOs under the RMA

Dr Kerry Grundy Convener Inter-Council Working Party on GMO Risk Evaluation and Management Options

Jurisdiction of Councils to Regulate GMOs under the RMA – Response to Christensen and Nicolle, Anderson Lloyd Lawyers

The King Salmon Soiree

Various - see the content below

In June 2014, a group of environmental lawyers met to consider the ramifications of the Supreme Court decision in EDS v King Salmon.

Supreme Court’s decision in Environmental Defence Society v King Salmon

Martin Williams, Barrister and President, RMLA

President’s comment- an ‘Overall Judgement’ of my own!

Introduction and context

The Supreme Court’s decision in Environmental Defence Society v King Salmon does not (as one colleague recently put it to me) “shift the world on its axis”.

The most significant dimension of the decision is the Court’s discussion of the ‘overall judgment’ approach.  I am aware of arguments being raised that the Supreme Court’s decision effectively signals the “death knell” of that approach.

I disagree.

Regional Planning Relationships & Governance

Malcolm Douglass

This is a background paper prepared for NZPI by Malcolm Douglass

Environmental Policy-making in New Zealand, 1978-2013

Gary Taylor, EDS

Gary Taylor MA (Hons) QSO is the Chairman of the Environmental Defence Society. He has been involved with EDS since the late 1970s. He is an environmental policy analyst and has had extensive governance experience as a Director of public sector entities in Auckland.

I’m going to talk about the ways in which key environmental policies have been made in the past, and reflect on the present state of play with respect to those same policies. I’ll draw on my experience with the Environmental Defence Society (EDS) since 1978 and the reflections are personal ones. The issues covered are as follows:

  1. Government agencies
  2. Climate change
  3. Oceans
  4. Freshwater
  5. Resource management law

The objective of this discussion is to see if the past illuminates the present in any useful way.

Environment Court reform – more than the Court under threat?

Dr Kenneth Palmer, Associate Professor of Law, The University of Auckland

[Postscript: since preparing this article, the Minister of Justice has issued a public assurance that the Government has no plans to disestablish the Environment Court.]

Reform of the Environment Court – does it make sense?

Martin Williams and Simon Berry, Court Convenors, RMLA

1.           INTRODUCTION

1.1         The Environment Court is a specialist court that deals with appeals from council decisions on resource consent applications and submissions on the plans and policy statements that guide development throughout New Zealand.  Its functions are performed by specialist judges supported by suitably qualified commissioners with expertise in resource management, engineering, science, etc.

1.2         The Court is tasked with making decisions that are of fundamental importance in relation to allocation of resources and the stewardship of New Zealand’s environment.  The decisions it makes can involve investments in developments worth several hundred million dollars.  Indeed, the scope of the Environment Court’s role is such that its decisions have the potential to affect New Zealanders’ day-to-day quality of life more than any other court in the judicial system.

1.3         As successor to the Planning Tribunal (and before it the Town and Country Planning Appeal Board), the Environment Court performs the role of a specialist appellate body in relation to planning issues that has existed since 1953.  The Board, Tribunal and now the Environment Court have always had a separate specialist jurisdiction, with its own registry and administration.

1.4         The Government has recently embarked on the most wide-ranging and significant reform of the Environment Court since the establishment of the Appeal Board.  Recent developments have seen the Court‘s role in plan appeals completely removed in the case of the Canterbury Regional Plan, and its role would be significantly reduced under the “bespoke” process proposed for the Auckland Unitary Plan process.

1.5         Although details are sparse given the lack of consultation, thus far, with the legal or planning professions, it appears to be an open secret that Government is considering the integration of the Environment Court into the District Court such that it would no longer have separate status and function as a specialist Court with judges (and commissioners) devoted to resource management proceedings.

1.6         These developments appear to be fuelled by what we consider to be misconceptions in relation to the role and effectiveness of the Court.

1.7         Many people who are involved in Resource Management processes; practitioners, applicants and submitters alike, would dispute the need for radical reform of the Environment Court’s role and function.  They express a concern that alternatives that do not include a substantive role for the Court are likely to put huge pressure on council resources, and potentially result in decision-making processes that are more costly, as well as time consuming and less certain.  Council hearings would also be more formal, and so less accessible to the general public, at least without legal representation.  The quality of decision making and plan content may ultimately suffer; at greater overall cost to the environment and economy.

1.8         Some would also say that the recent Government interventions in the Resource Management field, not only involving the Environment Court but also in relation to recent issues such as the threat to override Auckland plan-making processes, reflects an issue of constitutional significance involving the over-reaching of the Government in judicial processes.  The recently introduced (under urgency) Housing Accords and Special Housing Areas Bill, whereby the Government can effectively insist on new special housing areas, and whereby there is very limited scope to appeal decisions to approve housing in special housing areas, is perhaps a further (and the latest) case in point.

1.9         Whichever view is taken, these matters are too significant not to be aired and debated in an open and democratic way before any further decisions are made or legislative action taken.

Affordable Housing – Secretary’s Blog!

Martin Williams, Secretary, RMLA

New Zealanders love houses.  My wife and I live in one.  We share it with our children.  Some might even argue housing is a basic human right. New Zealand’s widely reported love affair with housing is however under strain.

Rates of home ownership are decreasing (from 75% in the late 1980s to 65% now – New Zealand Productivity Commission (Summary) Report on Housing Affordability – March 2012).  Read on…

Plan Agility and First Schedule Reform

National Committee of RMLA

Position Statement of the National Committee of the Resource Management Law Association (RMLA) on Plan Agility and First Schedule Reform

The purpose of this paper is to state the position of the National Committee of the RMLA in the context of the current debate about whether full rights of appeal to the Environment Court on RMA planning documents should be retained as part of potential reform initiatives aimed at improving the responsiveness of planning instruments to changing circumstances (plan agility).

Flaws in the framework recommended by the Land & Water Forum’s Second Report

Derek Nolan, Bal Matheson, James Gardner-Hopkins and Bronwyn Carruthers, Russell McVeagh

In our paper entitled “A Better Approach to Improving the RMA Plan Process” dated 21 March 20121 we put forward our proposals for improving the processes for policy statements and plans under Schedule 1 of the Resource Management Act 1991 (“RMA”). We were particularly concerned about suggestions, primarily from local government, that the Environment Court’s role should be significantly curtailed, with appeals only being permitted on points of law.

Improving RMA Policy Making: Prescription for Reform

Alan Dormer, Barrister and Vaughan Payne, Waikato Regional Council

The Waikato Region, like a number of New Zealand regions, is facing significant pressure to manage competing interests to use, develop and protect natural and physical resources. These competing interests typically manifest in submissions and appeals on policy under the Resource Management Act (RMA) – no matter how collaborative the policy making process has been.

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