Wednesday, March 08, 2006

Whangamata decision

So the Minister of Conservation has decided not to allow the Whangamata marina development, and the right are outraged. But contrary to their squealing, this is not a case of the Minister "overturning" a court decision. Under the RMA, the process was always a two stage one, requiring approval from both the local council and the Minister. And the reason for this is simple: there are different interests involved. The local council represents the environmental views of the local community, as expressed through its planning documents and guidelines. But there are also national-level environmental interests in the coastal marine area, and these are represented by the Minister. Given these different interests, disagreement between the two consenting authorities is possible even if there is total agreement on the facts.

In this case, there also appears to be disagreement about the facts as well. Except that when you unpack it, those "facts" are really values: the value of a salt marsh, the value of local iwi being able to collect kaimoana, and the value of continued recreational use by all rather than the effective privatisation of yet more of the coastline for the benefit of a few. The local council and Environment Court took one view of these values, and the Minister another. Unfortunately for the developers, they both had to (broadly) agree. This sort of disagreement is the essence of politics, and its one of the reasons we have a two-stage process in certain situations in the first place.

The developers have already announced their opinion to seek a judicial review. From my limited knowledge of Administrative Law, such a review is limited to an examination of whether the Minister followed the correct procedure in making their decision, rather than the merits of the case, and the grounds on which it can be overturned are very narrow, boiling down to procedural impropriety, illegality, or irrationality. The Minister has made a valid argument and the conclusion isn't grossly unreasonable (no matter how loud those who disagree squeal, it is not on the level of firing someone for having red hair), the power exercised is very definitely within the law, and no extraneous grounds have been cited (Carter has specifically limited himself to talking about the environmental value of salt marshes and mussel beds, and explicitly ruled out taking account of other recreational interests), so I don't think it can obviously be overturned (and contrary to their claims, having spent more than a million dollars doesn't mean they're automatically entitled to have their way). But they're entitled to test the Minister's process in court, and we'll find out in due course whether its considered up to scratch.


Superb analysis.

The best part is watching all the impotent and completely ill-informed rants from the right wing over at DBF's.

At first I was a little sorry for the Marina Assoc having spent $1.3m to have wound up with such a major dissapointment....but when their spokesman then vowed they would be spending even more chasing a judicial review...the sympathy quickly turned to pity.

Posted by Anonymous : 3/08/2006 11:58:00 AM

"Under the RMA, the process was always a two stage one, requiring approval from both the local council and the Minister."

I don't believe this is correct (probably don't quote me on it though) - the Minister can also overturn a decision of the Environment Court denying resouce consent.

Posted by Graeme Edgeler : 3/08/2006 12:22:00 PM

Sometimes it sucks to be a developer. But mostly, it doesn't.

Posted by Sanctuary : 3/08/2006 12:52:00 PM

I think the question is about the system not about this particular decision

1) I am concerned that there is a proceedure for change that only a very rich party could push through and even then they may be told it was all a waste of time as they had no chance anyway.

maybe a boat club can afford it - but could you?

I used to work for a fellow who knew the RMA well and used it to obstruct at key points the plans of his neighbours (in order to cost him as much as possible). It was funny to hear about it but probably not so funny for the neighbour. how annoying it would be depends on how rich he was how i guess.

maybe the minister should veto aplications ot the environment court - thus saving time.
Also there is a question regarding whether there should be such a strong bias towards "not doing somthing" ie "you must have aproval from all parties" as oppsoed to "general approval" that would theoretically result from reliance on just a high court of some sort.

Posted by Genius : 3/10/2006 07:54:00 PM