Community Consultation (2011)

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Contents

Introduction

Community consultation is an important part of the environmental management strategy laid out in the Resource Management Act 1991 (RMA). In the 2006 case Paihia and District Citizens Association and Others v Far North District Council the Environment Court held that adequate consultation is an important step in meeting the purpose of the Act laid out in s5. That purpose is the sustainable management of natural and physical resources (s5(1)) in such a way as to allow people and communities to provide for their “social, economic and cultural well-being and for their health and safety” while safeguarding the ability of future generations to do likewise (s5(2). In Paihia the Court questioned the ability of anyone (Councils private developers) to fulfil the purpose of the Act without first consulting the affected community and peoples to determine what provisions needed to be made.

The RMA has several measures built into it that allow parties affected by the development of resources to be consulted with and involved in the decision making process. This consultation is intended to be a genuine effort by two or more parties to understand each other’s ambitions and concerns and to deliberate together (Greensill v Waikato Regional Council). In the following sections four main routes to consultation through the RMA during the resource consent granting process are examined. Consultation during the notification process, consultation when dealing with the Environment Court, consultation when developers choose to consult privately with affected parties and consultation when submissions are made on an application resulting in a community hearing. Each section examines the procedures undergone at this stage in the development process and evaluates the effectiveness of consultation at this level.

There are several general limits to effective consultation that exist across all these areas. Despite the importance placed on it in the RMA consultation is not compulsory (Paihia and District Citizens Association and Others v Far North District Council and Bayley v Manukau City Council). Developers who do not consult at all with affected parties are likely to have more information requested from them when they present their application for a resource consent but they are under no legal obligation to consult any individual or group that claim to be affected by their proposed activity. Likewise there is no legal obligation on a Council to consult individuals regarding a pending resource application. Engagement in the consultation process also remains expensive, legally intimidating and blocked for many. The ways in which these barriers occur are outlined in the following sections. Consultation in New Zealand also suffers from a mismatched set of expectations. Consultation involves proposals that are not yet finalised (Wellington Airport Ltd v Air New Zealand ) and so have room for negotiation. The expectation from the community after they have been consulted is therefore that they will see their views reflected in the final decision made by the consenting authority, Council or Court they are dealing with. Consultation however creates no legal obligation on developers or authorities to adjust their outcomes based on what occurs during the consultation process. The obligation is simply to listen and try to understand. This means that community groups often feel they have not been adequately consulted with when they do not achieve their desired outcomes. These issues as well as the barriers to consultation that exist in the RMA's consultation provisions (which are outlined int eh sections below) limit the effectivness of consultation as a tool for engaging with communities for environmental management purposes.

Not covered in this report are the issues of Council consultation when making changes to policy statements and plans (Schedule 1, Part 1(3) of the RMA), the specific issues relating to consultation with Maori (s8 of the RMA requires authorities to “take into account the principles of the Treaty of Waitangi”) and the call in powers given to the Minister for the Environment to decide on matters of national importance. Each of these has an impact on consultation but are beyond the scope of this research.

Site Sections

Below are brief overviews of the different aspects of community consultation. Please select any of the headings to access the respective pages

The Notification Process

The notification process provides individuals, communities and groups with the opportunity to become fully involved with the development, future and environmental management of their locale. In particular the Resource Management Act 1991(RMA) notification process allows New Zealander's to make a submission on a proposed development within their community, and, ultimately to have an active involvement in their future. While the RMA does pose a fairly effective platform for community involvement and consultation through the process of notification, this process is not without issues. Importantly the RMAs (and local authorities) tendency to streamline economic growth, puts the fast track of development ahead of sustainable environmental management in some instances. This is often acheived by the granting of non-notified resource consents which stop the public having an input to the process. Another issue of the current resource consent process is that it is difficult for individuals to understand and does not invite submission or open communication even when they are notified. This adds to the aforementioned issue. Overall the RMA is a very useful tool in environmental management and while in some instances it may favour a more economic friendly approach New Zealand environmental management is greatly assisted by the RMA.

Consultation & the Environment Court of New Zealand

The EC is an expert court whose main role is to resolve environmental disputes and to insure environmental sustainability is met in New Zealand. It deals with cases of appeal, applications considered to be of national importance and applications referred to it by local councils. As with the majority of courts taking an application to the EC can be a lengthy and costly process, therefore making it often an unrealistic venture for many of the general public. However, the mediation process, linked to the EC, allows for a less formal, less costly alternative where disputing groups can find a solution with the help of a mediator.

Consultation when Applying for a Resource Consent

The RMA clearly states that proactive community consultation between developers and affected parties is not a necessity. However, it is often a grey area in terms of the benefits communication will have for the developer and how the community reacts. In many instances conflict arises from misunderstandings of proposal which could have been easily mitigated by informing the effected parties of the future development. In saying this, developers need to keep an open mind for negotiation during the community consultation process and be clear in their portrayed information to the public. By analysing past examples of consultation between developers and community parties it seems clear that when communication is used clearly, concisely and wisely, developments with few amenities can go ahead smoothly with the benefit of affected parties in favour.

Submissions & Hearings

Community hearings take place after submissions have closed on a contested and publically notified resource consent. Anyone can normally attend a community hearing where the applicant and submitters, along with expert witnesses and council planners, present their cases to a panel of councillors. Councils actively seek to make these hearings accessible to the public in many ways, for example through the banning of cross-examination and selection of hearing locations. These measures have had limited success and there still seem to be barriers that limit the impact community hearings can have as a consultation tool. These barriers to full community participation include the legal nature of proceedings, the methods by which evidence is presented to the hearings panel and the way in which the panels weight the matters before them in reaching their decisions.