Chief Justice Helen Winkelmann has made a submission on the Natural and Built Environment Bill (the Bill) on behalf of the judiciary. A submission by the judiciary is rare.

Length and complexity, and impact on the courts’ resources

The submission observes that the Bill is “long and complex”, and deals with issues of great significance to communities that are frequently litigated. An issue of particular concern to the judiciary is that, in its experience, extensive legislative reform is typically followed by a period of litigation which attempts to ascertain the meaning and effect of the new legislation. The judiciary needs to be resourced to deal with the inevitable increase in litigation.

The experience with the RMA leaves little doubt that such extensive reform will lead to years of litigation. The litigation risk posed by the reforms was discussed in our 6 part series “Beyond the RMA” available here. The two-fold challenge for the Select Committee and Parliament is to:

• Ensure that the cost of the reform is justified by the benefits of the new regime; and
• Reduce the areas of uncertainty as much as possible.

Technical concerns

The submission discusses a number of technical drafting matters, including:

• Clauses 4 and 6(3) which relate to giving effect to the principles of the Treaty and recognising and providing for the responsibility and mana of each iwi and hapū. The current drafting might include the Environment Court and, possibly, senior courts on appeal. This presents issues of principle and practicality for the courts, in particular, courts hearing criminal or other enforcement proceedings under the Bill.
• The role of the National Māori Entity. The current drafting of clauses 660, 662 and 664 might suggest the Entity has a role reviewing the Environment Court, which would be inconsistent with New Zealand’s constitutional arrangements whereby court decisions can be challenged through appeal rather than review by a statutory entity.
• The carryover of the provisions of the COVID-19 Recovery (Fast track Consenting) Act 2020 as an “alternative consenting process”. That process which confines appeal rights and the submission suggests careful consideration be given as to whether it is justified to do so outside an emergency context.
• Where rights of appeal to the Environment Court are limited to questions of law, the judiciary submits that judicial review should be available.

Read the judiciary’s full submission on the Bill here.

If you would like to talk to one of our team of experts about the implications of the RMA reforms on your business, please get in touch.

Special thanks to Ella Hegarty for her help in preparing this article.