Chadwick Steve: Resource Management (Security for Costs)  Amendment Bill — First Reading 
Chadwick Steve: Resource Management (Security for Costs)  Amendment Bill — First Reading 
[Volume:631;Page:3592] 
STEVE CHADWICK (Labour—Rotorua) 
: 
 Labour will not support this bill for very good reasons. The bill sets out basically to turn on its head the fundamental tenet of the Resource Management Act—which Parliament considered very recently in 2003—to not curb the right to challenge legitimately a resource management decision made by a local authority. The member asserts that this bill aims to prevent frivolous and vexatious claims from holding up the resource consent process by empowering the Environment Court to require any party to provide security for costs. While I do not condone behaviour that sets out simply to hold up the process allowing frivolous and vexatious objections to be weeded out by the threat of costs made against an objector is simply in our view choosing the wrong time place and incentive. 
For clear and deliberate reasons the Resource Management Act explicitly does not allow the Environment Court to have the power to order a party to give security of costs. When the Act was enacted in 1991 it contained nothing that expressly indicated either way whether security of costs could be sought by appeal authorities. That was back in 1991. Because the Act was silent on this issue after due consideration a member’s bill sponsored by Sandra Lee was incorporated into the amendments in 2003. The matter was then clarified just 3 years ago once and for all. The act was amended to state simply that the Environment Court did not have that power. 
Why was this? The notion behind that 2003 amendment was simple and it was the very same issue facing us today. To allow an order for security of costs runs a serious risk that legitimate claimants will be bullied out of the courtroom by those with deeper pockets. We all know of small community groups that are appealing decisions and that if costs were awarded against them could never afford to take on such appeals. 
I want to draw members’ attention to what the Resource Management Act really enables in respect of preventing vexatious objectors from stifling progress—and we do worry about that. This topic was canvassed in 2004 during the debate on the Resource Management Amendment Act 2005—and it may be that the member did not hear the debate. In relation to frivolous and vexatious objectors changes were made to give strike-out powers to decision-making authorities when considering and hearing submissions based on plans policy statements and resource consents. This measure takes effect in August 2007. The date was set to align very neatly with the current accreditation requirements for hearing panels and the training of hearings commissioners is under way right now and will continue until August. This provision will enable frivolous and vexatious submissions or parts thereof to be struck out where the submitter discloses no reasonable or relevant case and where a submission would be an abuse of the hearing process. That measure will be in place from August. 
I acknowledge that come August a council may be reluctant to use the new 2005 amendment Act strike-out powers irrespective of how frivolous vexatious irrelevant or abusive of the hearing process submitters may be if it is wary of costs emerging on the matter of appellant jurisdiction. A council may avoid exercising such a power when the Environment Court has the power to strike out in any case as that would save it from being involved in one extra case concerning appellant jurisdiction. However it is difficult to see how the member’s bill if it were enacted would ever prevent parties from stalling the decision-making process further than what is possible now and what will be possible under the 2005 amendments if the motivation is simply to stall a court hearing. Delays can be created by an objector pulling out the case when it actually begins—that is it is the lodging of the appeal in the first place that potentially causes the delay. That is one tactic. 
Even that tactic has considerably less success now that we have provided additional funding to the Environment Court to significantly reduce the time taken to hear appeals. Delays in appeals to the Environment Court have more than halved since 2001. Cases that are not complex are likely to get a hearing date within 6 months as part of a case-track system now implemented by the court. Equally the bill will not prevent the possibility of getting round the problem by say forming an incorporated society simply for the sake of taking an appeal and dissolving it when costs are awarded. 
The question comes down to an issue of access to justice—and we are proud of that principle—and whether having the barrier of security for costs would really deter genuine interests from appealing. The bill will potentially save the time of the court only in instances where spurious claims are made. However the court already has the power to strike out submissions once proceedings begin. I firmly believe that councils like the Environment Court now will have all the necessary tools to deal with frivolous and vexatious appellants. I believe that the bill will not serve natural justice particularly for those who already face significant financial barriers compared with appeal respondents. I therefore do not support this bill.