Stephen Franks

BACKGROUND

This submission is offered to improve the prospects that the Bill will achieve its main purpose – that is to release some projects from the paralysis and vast waste of resources that are now customary features of “environmental’ consenting processes. It is a public interest submission and not on behalf of any Franks Ogilvie client or third party.

OVERVIEW

In the opinion of Franks Ogilvie the expectations of promoters of this Bill are likely to be frustrated by judicial review and other lawyer/objector interventions. The Bill has surprisingly weak protection against opportunistic use of tactical litigation.

We expect litigation to confound those trying to implement the Bill. That litigation will not need a genuine environmental protection purpose. It may not even need strong prospects of substantive success. Litigation will succeed (in frustrating Parliament’s purposes) if an interim order halts an approval process until a reasonably arguable case can be heard and decided. Court timetables and delays are now measured in years, not months.  Interlocutory skirmishing and appeals can add years to a process. Successive court challenges at various stages of a process could see a fast track become many years long.

The Bill does not effectively limit standing. Judicial review applications may be launched by opponents of the purposes of the Bill generally, and by opponents of particular projects under consideration.  

THE BILL NEEDS STRONG FORM PRIVATIVE CLAUSES

Franks Ogilvie recommends substantial strengthening of privative clauses. We recommend a range of ways to deter legal process abuses. Though targeted at opportunist and tactical use of litigation, they will be criticised for potentially restricting reasonable use of rights. Consultation, objection rights and judicial review have evolved to enhance the quality and integrity of decision-making.  Constraining them to reduce opportunistic abuses could be costly.  That may be a cost and risk justifiable in a law intended as an emergency interim measure. It may be an inevitable stage in securing reform of legal processes that have become monstrous.  

The risks from limiting recourse to the courts must be measured against the counterfactual. Current processes become lawyer hell for people who want consents. Courts have squandered trust in the real purposes of environmental consent requirements.  Court inability to reduce prohibitive costs for citizens, involuntary parties, and government, is perceived as indifference.

LAWYERS COULD SABOTAGE PARLIAMENT’S INTENTIONS

We submit that Parliament should take very seriously the possibility that some judges will indulge lawyers who set out to make a mockery of the new law.  Instead of interpreting ambiguities and exercising discretions to help the law achieve its obvious intent, some judges may do what was recently done to Three Strikes law, and to the Marine and Coastal Area Act. That is they may contrive to substitute their policy preferences, and their opinion on political commitments and decision-making, for the intentions of the statute.  

In our opinion there is a substantial risk that the Bill will be made ineffective, because it fails to respond to the prospect  that some judges will be affronted by the Bill’s intention to curtail lawyer power. The result could be that Courts will warm to arguments advanced for NIMBYs and inveterate opponents of economic development. Courts that may not share the priorities and concerns of the opponents or the architects of this interim reform may nevertheless feel morally justified in nobbling it. In so doing they will aid the lawyers, planners and other members of the class that currently has control of resource use decisions. The Bill contains too little to persuade the Courts against interpreting the law in ways that will preserve the revenue, power and influence of the lawyer/planner class.  

Courts have a rich menu of arguments, principles and precedents to justify accepting judicial review applications, and to issue interim orders freezing processes pending the determination of the cases. Were mind the committee that judicial review is available on grounds including:

- Improper purpose of a decision-maker, including fettered discretion

- Predetermination, bias or conflict of interest in a decision-maker

- Defect in following prescribed procedure

- Denial of natural justice

- Inadequacy of consultation

- Disappointing legitimate expectations

- Unreasonableness

- Inadequacy of explanation of reasoning

- Disproportionality

- Inconsistency

- Error of law

- Error of fact including failing to obtain or to consider relevant facts or giving wrong weights to factors

We do not offer provisions that should appear in the Bill to protect the intentions of Parliament.  It appears to us that the current state of the Bill might reflect deliberate decisions to leave the new law exposed to judicial intervention. Accordingly our submission is largely confined to drawing attention to some of the opportunities created by the Bill for judicial review applications. Franks Ogilvie would be happy to assist the Committee with drafting suggestions if the Committee made it clear that such additional work would be valued.  

ILLUSTRATIVE OPPORTUNITIES TO SEEK JUDICIAL REVIEW, DECLARATORYJUDGMENTS

Clause 6 does not:

- say whether it is exhaustive of Treaty rights and obligations. Under recent and radical court treatments of Treaty clauses, a court could and likely would hold that it could import into the Fast Track Approval Act and regulations any of the uncertainties and recently created by the courts in those cases.

- say whether customary rights are “recognised” under s 62(3) and s 62A(2) of the Marine and Coastal Area Act just because claimants have lodged a claim. The purpose section of that Act (set out in s 4)talks loosely of restoring recognition to customary interests and mana tukuiho, without being clear whether recognition needs a recognition order as defined in s 9 of that Act. It is pertinent that cl 13(2)(f) and cl 14(3)(k) of the Bill refer to applicant groups. Other provisions of those clauses are even more vague and permissive.  

Clause 13 contains no protection against court orders to halt or delay for insufficient compliance, if the required report is allegedly deficient. The matters which the report must include are so broad and indeterminate there will be ample scope to claim the omission of something in a report.

Clause 14 (2) and (3) are similarly exposed,with a wide range of issues to provide grounds for application for judicialreview

Clause 15 contains no protection against courtapplications alleging material deficiency in information, especially given thebreadth of cl 14 with which an application must comply

Clause 16 requires engagement and consultation.It has no over-ride for circumstances where engagement is obstructed orrejected or delayed, tactically. It does not deal with the possibility that theapplicant may not be able to find out who are “relevant iwi, hapu, and Treatysettlement entities”.  That could bebecause some settlement provisions deal with metaphysical rights and effects.The obligation to consult claimant groups may include people who have strongincentives to frustrate the applicant and no incentives to cooperate. Theclause has no special definition of consultation so court precedent definitionswill apply.  It has no discretion for thedecision-makers to waive compliance.

Clause 17 contains no protection againstjudicial review applications alleging insufficient information and othergrounds of review. Note that Clause 21 says that referral of a project must bedeclined if it does not meet the criteria of Clause 17. Clause 22 (3) issimilarly pertinent.

Clause 19(1)(g) effectively endorses theauthority of co-governance arrangements under Mana Whakahono a Rohe and jointmanagement agreements. Setting aside the absence of any principled explanationof how they satisfy the requirements of equality before the law, and theprotection of democratic control of the exercise of local government powers, clause19 could invite applications to the court to determine just what is required ofMinisters under their obligation to consider comments. A court may be asked todecide whether the clause demands respect for the rights of property owners(including the specific Maori property owners mentioned in clause 19) todetermine how they use and enjoy their land.

Clause 21(2) and (3) appear to grant adiscretion with the apparently permissive “may” decline. There could beattempts to cite context and the purposes of more specific clauses to limit thatdiscretion. In this regard, subsection (4) makes the question more pressing.

The obligation to give notice in clause 24 is so wide, and could apply to so many ‘sub-decisions’ of Ministers, that it could be difficult to ensure it is satisfied

The rigidity in Clause 25(4) invites judicial poring over all the records created in the process to establish whether there is  a deviation and if so, justification for it demonstrated by “analysis…in accordance with the relevant assessment criteria”. In this regard, the courts are likely to assert a strong version of the obligation to provide reasons for any decision.

Clause 26 looks like a conventional restriction of appeal rights, to questions of law. Given the range of ambiguities in theBill, the extraordinary range of considerations and closely specifiedprocedures and criteria, it should not be difficult to dress up a meritchallenge to a decision as a question of law. The Supreme Court has invented ‘environmental bottom lines’ not expressin existing legislation. Consent decision-makers are supposed to discern,define and apply them. Courts may determine that the prescribed decisioncriteria in this Bill must be rationalised and drawn together with similargolden threads of invention.

Under Clause 26, the limitation of standing toappeal may be more apparent than real. The number of parties invited to“provide comments” (subsection (1)(d)) should enable opponents with reasonable forwardplanning to find convenient plaintiffs to satisfy standing requirements.

SUMMARY ON VULNERABILITY TO LEGAL CHALLENGE

Our purpose in the preceding section is to show how easy it will be to find issues to take to judicial review.  Schedules 3 to 10 inclusive are equally susceptible to tactical litigation. Panel recommendations and reasoning are amenable to judicial review and could be the most likely target for court challenge. A Panel’s exercise of discretion is probably not entitled to as much deference as ministerial decisions. They may get some leeway based on ‘expert’ status.  But with 50% membership to represent local authority and iwi, it is not clear that the panels are truly expert. The appointment criteria offer little assurance of substantial environmental expertise.

The point of the above comment, and the preceding clause review is not to urge a more skeptical and precautionary refinement of the vulnerable provisions, though they could benefit from it. The comments instead illustrate the ways in which judicial review and appeals are likely to emerge. In our opinion even utmost care to draft the operative clauses defensively will not provide sufficient protection if the courts are sympathetic to applicants for judicial review.

If  the Bill is to achieve its purposes it needs a comprehensive set of privative clauses, deterrents to opportunistic and tactical litigation, and provisions requiring compensation for parties affected by the costs  of tactical (delaying) litigation.  

Judicial Review is supposed to require compensation from an applicant for the damage caused to a person seeking to implement a decision, by the delay from an interim order, if the applicant does not succeed at trial. That requirement is often not enforced in practice.

DETERRING TACTICAL LITIGATION

The following are not in order of priority or effectiveness. The Bill might:

- include powerful privative clauses and expressly limit judicial review so that it is directed to grave misuses of power, in distinction to matters of form, reasonableness or other inadequacy.  Recognised forms of privative provision  include: finality clauses, absolute discretion clauses; conclusive evidence clauses; lack of form (irrelevant) clauses; “as if enacted’” clauses; alternative remedy clauses (damages for example) and no suspension or delay clauses.

- Expressly address and exclude ways courts have negatedprivative clauses  including byinvoking  NZBORA;

- Provide decision-makers with express power to‘cure’ deficiencies in procedure and reports that clearly do not materiallyincrease the risk of significant adverse environmental impacts that will belong lasting (or similar words to distinguish impacts that can be remedied)

- Provide decision-makers with express safeharbour protection for substantial  orequivalent compliance;

- Determine the differences between consultation, engagement and comment;

- Expressly negate a judicial insertion of the precautionary principle or of other ‘bottom lines’ that do not allow for application of cost/benefit assessments that fully respect human needs;

- Provide for ex post remedy of deficiencies in notice and other procedural steps, unless those adversely affected can establish substantial environmental impact;

- Provide practical working definitions of undefined terms in Maori that might be used to activate court interest in novel law-making, and provide limits on how they might affect parties other than the Crown. This firm offered suggestions in submissions to the Environment Select Committee Inquiry on Seabed Mining regarding the EEZA.

- Declare that the purpose of the notice and consultation provisions is to ascertain potential unintended material effects that might otherwise be unknown to decision-makers,  including any adversely affecting their properties,  but otherwise they do not create natural justice obligations, or imply interests or rights to impede fast track consideration and implementation

- Include a provision declaring that the Bill references to Treaty obligations are exhaustive. This assumes that they will emerge better defined than in the current version;

- Beef up and make less discretionary the requirements for judicial review applicants whose cases prove to be not substantially meritorious, to compensate parties adversely affected by an interim order or other delay, and make more clear the kinds of loss that qualify for compensation;

- Better limit the import of considerations from other Acts where they are poorly defined (for example the EEZA and the MACA).

For further information on this Bill, please contact Stephen Franks

On 27 March 2023, the Government introduced the Severe Weather Emergency Recovery Legislation Bill. Its 'emergency' introduction has stunned lawyers. The First Reading debate in Hansard was not even available by the time Select Committee submissions closed, and these submissions were only open for one day.

The Bill shrieks of arbitrary power to constitutional lawyers. They are talking of Henry VIII clauses. What do they mean and why is there such outrage over a measure responding to cyclone devastation?

The Bill lets the Governor-General (who acts on Cabinet's request) grant exemptions from, modify or extend any provisions from a broad list of statutes. They include the Building Act, Land Transport Act, Local Government Act and Resource Management Act. Orders can also specify any provisions of additional Acts of Parliament that will in effect no longer bind a Minister on relevant matters. To exercise that latter power the Minister must be satisfied there is “unanimous or near unanimous support” from the leader of each political party in Parliament.

The Orders can only operate in a specified local authority that has been affected by the severe weather events.

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Henry VIII Clauses

Clause 7 of the Bill, which allows these Orders, is a contemporary Henry VIII clause. Henry VIII clauses delegate Parliament’s legislative powers.

Confining law-making to the people’s elected representatives was an enormous constitutional achievement. It removed the power to make up rules along the way from local big-wigs, priests, soldiers, officials and agents of the government. That legal inheritance distinguished the English Rule of Law from more despotic regimes.

Henry VIII clauses are “in disrespectful commemoration of that monarch’s tendency to absolution” (LawsLJ, Thoburn v Sunderland City Council [2002]4 All ER 156 at 157). The term refers to a 1539 law which permitted King Henry VIII to override Parliament by decree, which he used to declare some of his children illegitimate and to alter the line of succession. Taken with his abuse of legal procedure to dispose of unwanted spouses, the term is not a compliment.

So provisions in Acts that delegate what is effectively power to make up the law on the spot, to amend, override, or exempt from primary legislation, are very significant.

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What makes Henry VIII clauses so dangerous?

Over centuries Parliament has evolved accountability mechanisms. Consultation processes, general elections, and public scrutiny help to constrain what is otherwise an absolute power of a Parliament which is supreme, and without any constitutional body to over-ride it. Exercises of Henry VIII power sidestep those protections. At a local level they may authorise abuses of power which might not even get public attention.

New Zealand's experience of the cruel use of MIQ powers (which the courts have subsequently criticised), show the dangers of extraordinary power, even under statute. The Severe Weather Bill has no protections against favouritism or vendetta. It has no protections against jobs-worth high-handedness. It has no specific protection of property rights.

This Bill will allow discretionary authority outside of statute, and in spite of it.

Henry VIII clauses often contravene the doctrine of Separation of Powers. This doctrine tries to protect against arbitrary authority by confining each branch of government to its own sphere. Those that make the law should not be those who apply it. Law-makers should not be “judge and jury” in their own cause.  

These Henry VIII clauses violate this protection by allowing the executive government to step into the shoes of Parliament. Those exercising the powers are accountable to their bosses, but without law constraining them to make them accountable to the courts.

The Regulations Review Committee has indicated that while Henry VIII clauses are permissible in some circumstances, they should only be used where necessary. There should also be appropriate constraints on the use of their power. The Bill material does not show satisfaction of those requirements

The Bill fails to provide accountability

The Severe Weather Bill, as introduced, has feeble reassurances.

Orders made under clause 7 will expressly not be invalid where they confer any discretion on, or allow any matter to be determined or approved by any person (Clause 18). There is no prescribed limit to who can make decisions under fundamental legislation, nor how these acts may be interfered with.

The Bill proposes a bureaucratic comfort - a Severe Weather Events Recovery Review Panel. The responsible Minister must consider appointing to the SWERRP members with knowledge or experience in law, environmental protection, local Māori or community interests, or emergency response and recovery. The Minister must also consider appointing one or more persons with experience in “local perspectives in the severe weather events affected areas of mana whenua, mātauranga Māori, tikanga and te ao Māori.”

The appointees are selected by the Minister creating the Orders, and are not democratically accountable.

Orders made under the Bill can remain in force until 31 March 2028, if not revoked before. Many provisions of the Act self-repeal after three years. It seems the Panel would then no longer exist to review the use of the Orders.

Other legislation

The Bill might be the high water mark so far of government extension of executive power. It is not much more significant, however, than the aborted attempt to entrench co-governance in the Water Entities scheme.

The provisions for Te Mana o te Wai statements by iwi may have similar constitutional implications. Words in the provisions setting up co-governance get meanings set out in Minister’s National Policy Statements. They can change. The RMA replacement Bill is shot through with comparable derogations from normal rule of law certainty, and delegation of important legislative power to unelected committees.

For more information on this, please contact Director Stephen Franks.

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BusinessDesk reports on the Commerce Commission decision, due for announcement next week, that could mean price hikes over and above market prices for consumers of piped natural gas.

Franks Ogilvie is acting for the Major Gas Users' Group.

To read the full article, click here.