Friday, 25 May 2012

Legal Bleg

RdU (the student radio station here) are going to interview me on Monday morning about the recent decision by Meridian to abandon seeking resource consent for a dam on the Mokihinui river. By way of preparation, I thought I would glance through the Resource Management Act. The thing that struck me was that nowhere in the legislation could I find any implicit statement of what the objective function should be when determining the outcome in a judicial process. Indeed, I could find no mention at all of benefits against which environmental costs should be weighed.

If this is the case, how does the consent process make determinations in cases where the environmental costs of the proposed activity are very small, but the benefits are even smaller; or correspondingly, what if the environmental costs are humongous, but the benefits are two times humongous?

But I am no lawyer trained in where to look for things in legislation, and the RMA is very large. Can anyone help me by pointing to where, if anywhere, benefits are mentioned in the RMA, and where, if anywhere, some attempt is made to set criteria for assessing trade-offs?


  1. Not my area at all, but the basic principle is in section 5. We get to use stuff, but should do so sustainably.

  2. Seamus, the whole Act is intended to point back to the heart of the RMA which is Part 2, on which all decisions under the RMA must be based.

    If however you examine Part 2 you will find it is packed only with mush.

    And when you discover this you will realise the reason large power projects, for just one, are now virtually impossible.

    (If you're interested, you might find page 4 of my 2008 article calling for a stake through this heart a useful examination of this mush.)

    Mind you, I feel obliged to point out that the late Owen McShane used to argue that the cost-benefit analysis was called for by 5(2), particularly w.r.t the word "enable" and balancing act implied by the first "and" (use, development AND protection) and the last "while." But to find any implicit statement of what the objective function should be when determining the outcome in a judicial process, if indeed it exists, you will need to check case law on this section.

    And if you think that's ridiculous, then blame Geoffrey Palmer, because he purposely wrote it that way.

    1. If you feel the need to blame anyone, try Simon Upton, he was the Minister for the Environment who passed the Resource Management Act.

  3. And the implementation is meant to be plan based, which is meant to be based on community consultation, and the balancing which the relevant Territorial Authority carries out is meant to be driven by the plan, which is driven by the principles of the RMA and so on.

    essentially, it is an outcome driven act with no clear guidance that normal people are aware of.

    What it has done well is get Councillors out of making decisions, but put these decisions into the hands of commissioners or judiciary. And yes, there is a lot of work in these areas (as PC has noted on a number of occasions)

  4. There is a large chocolate wheel that they spin to decide on RMA outcomes.
    The thing is weighted so it doesn't stop spinning for 3 years, hence why decisions take so long to process.