Fitzsimons Jeanette: Resource Management and Electricity Legislation Amendment Bill — Second Reading Instruction to Committee In Committee 
Fitzsimons Jeanette: Resource Management and Electricity Legislation Amendment Bill — Second Reading Instruction to Committee In Committee 
[Volume:627;Page:22328] 
JEANETTE FITZSIMONS (Co-Leader—Green) 
: 
 It is unusual for clause 2 of a bill the clause that sets the date on which certain provisions will come into force to be as significant as clause 2 of this bill. I want to talk about the significance of this clause 2. It relates to clauses 82 and 83 in Part 1 which deal with an idea introduced in 1999 by the Rt Hon Simon Upton. The idea was that it should be possible to seek a declaration from the Environment Court on whether a matter should have been notified by a council. 
The Resource Management Act is very clear on the question of notification. It makes it clear that an application must be notified unless the effects on the environment are minor. Even if the effects are minor the application must still be notified if persons affected have not given their consent. The Supreme Court in a very useful judgment just recently made it clear that that minor effects test is the overriding one and that if the effects are not minor one does not even go so far as to ask who might have to give consent; the public must have an opportunity to be heard. 
Councils for some years have been taking a very strange view of “minor effects”. A number of projects have been declared to have minor effects and have therefore not been notified—projects like big open-cast coalmines coastal landfills 13-storey buildings right next door to people who did not even know those buildings were going up and the clearance of very significant areas of native forest. There has been increasing concern that the test of “minor effects” has been interpreted extremely liberally and that people who should have been notified about a project have known nothing about it—but there has been no real redress. 
To challenge those notification decisions people have had to go to the High Court for judicial review of council decisions. Not only is that very expensive—most community groups cannot afford it—but it is also unlikely that the High Court would be able to issue any redress even if it found that challengers were right. So the cases that have been taken to the High Court for judicial review have tended to be cases of wealthy businesses reviewing decisions on the applications of other wealthy businesses rather than those concerning community groups and individuals who have been shut out of the process. 
Simon Upton proposed that instead of the High Court the Environment Court was the court that should be able to consider whether notification decisions had been made in error. The Environment Court is used to considering environmental issues. It is familiar with the minor effects test and it is accessible to people who cannot pay $20000 first up before they even hire a lawyer. 
The Greens strongly supported that provision of Simon Upton’s bill—unlike most of the other provisions which we managed to knock out at the select committee stage. The select committee agreed to support that part of the bill as well. But the bill came back to the House sat here for 2 years then that clause was taken out by the Labour Government in a Supplementary Order Paper to an earlier amendment to the Resource Management Act. 
The provision is now back in clauses 82 and 83 of this bill. The Local Government and Environment Committee added to it and gave the Environment Court powers to offer redress in situations where the public had been excluded wrongly from commenting on an application. But it is a pyrrhic victory because clauses 82 and 83 will never come into force unless Cabinet chooses to pass an Order in Council. 
That is the same trick Jim Bolger played on Winston Peters over the Overseas Investment Act. Mr Peters’ amendments were passed into law and he did not notice until the time of the next Government—when the Greens pointed it out to him—that in fact his amendments had not come into force at all but were waiting on an Order in Council as well. 
That did not happen this time. I read the bill from the beginning looked up the references in clause 2 and knew immediately where the Government was coming from. The Government argues that it is necessary to delay the coming into effect of those clauses because the Environment Court is too busy to hear such cases. It has promised that when the Environment Court is less busy then that Order in Council will be passed. 
Well I am sorry but I have to point out that the Environment Court is now meeting its deadlines. It is hearing cases within the time frame that has been set for hearing cases. In fact in some cases it is offering a hearing date before the applicant is even ready to proceed and the applicant is asking for a delay. A great deal has been done—and I have to give Labour credit for that—since the Labour Government came to power to speed up processes in the Environment Court by creating a new division more resourcing another judge and so forth. That court is never likely to be less busy than it is now so this is clearly just a tactic to make sure that that clause never comes into effect. 
The Greens are not to be duped like that; we are not like Winston Peters. We do read the legislation and we were aware right from the beginning that this was happening. I want to place on record our very great disappointment and concern that a good proposal like this has been put on indefinite hold by the Labour Government. But I also have to express my disgust at Simon Upton’s erstwhile colleagues in the National Party. After lauding all the things in his 1999 Resource Management Act Amendment Bill they are now totally opposed to this legislation because it would give members of the public a real opportunity to exercise some control over councils that sometimes get just too close to developers.