You are here:
NZLII >>
Databases >>
New Zealand Bill of Rights Act Reports >>
2015 >>
[2015] NZBORARp 57
Database Search
| Name Search
| Recent Documents
| Noteup
| LawCite
| Download
| Help
Resource Legislation Amendment Bill (Consistent) (Sections 19(1), 27(1)) [2015] NZBORARp 57 (14 October 2015)
Last Updated: 3 March 2019
14 October 2015
Hon Christopher Finlayson QC, Attorney-General
Consistency with the New Zealand Bill of Rights Act 1990: Resource Legislation
Amendment Bill
Purpose
- We
have considered whether the Resource Legislation Amendment Bill (‘the
Bill’) is consistent with the rights and freedoms
affirmed in the New
Zealand Bill of Rights Act 1990 (‘the Bill of Rights Act’).
- We
have not yet received a final version of the Bill. This advice has been prepared
with the latest version of the Bill (PCO 17509/4.0).
We will provide you with
further advice if the final version of the Bill includes amendments that affect
the conclusions in this
advice.
- We
have concluded that the Bill appears to be consistent with the rights and
freedoms affirmed in the Bill of Rights Act. In reaching
that conclusion, we
have considered the consistency of the Bill with s 27(1) (right to natural
justice) and s 19(1) (freedom from
discrimination). Our analysis is set out
below.
The Bill
- The
purpose of the Bill is to create a resource management system that achieves the
sustainable management of natural and physical
resources in an efficient and
equitable way. Specifically, the Bill aims to achieve:
- better
alignment and integration across the resource management system;
- proportional
and adaptable resource management processes; and
- robust
and durable resource management decisions.
- The
principal proposed amendments are to the Resource Management Act 1991
(‘the
principal Act’), the Exclusive Economic Zone and
Continental Shelf (Environmental Effects) Act 2012, and the Environmental
Protection
Authority Act 2011. The Bill would also amend the Conservation Act
1987, the Reserves Act 1977, and the Public Works Act 1981.
- To
achieve the purpose of the Bill, the Bill seeks to amend the principal Act
by:
- introducing
two new planning tracks for councils, namely, the Streamlined Planning Process
and the Collaborative Planning Process.
The Streamlined Planning Process will
provide flexibility in planning processes and timeframes and allow these to be
tailored to
specific issues and circumstances; and
- making
the consent processes more simple and efficient by identifying the parties
eligible to be notified of different types of applications.
In particular, the
Bill refines
the notification regime, and introduces
limits to the scope and content of submissions and subsequent appeals.
- The
Bill also seeks to place a statutory obligation on councils to engage with iwi
through Iwi Participation Arrangements during the
early stages of plan making
processes. This aims to improve consistency in iwi engagement in plan
development.
Consistency of the Bill with the Bill of Rights Act
Section 27(1) – Right to natural justice
- Section
27(1) of the Bill of Rights Act affirms that “Every person has the right
to the observance of the principles of natural
justice by any tribunal or other
public authority which has the power to make a determination in respect of that
person's rights,
obligations, or
interests protected or recognised
by law.”
- Observance
of the "principles of natural justice" includes that all parties have the
opportunity to be fairly heard.1
- Clause
55 inserts subpart 5 after s 80 of the principal Act, which makes provision for
a streamlined planning process. A local authority
intending to prepare, change,
or vary a policy statement or plan may apply to the responsible Minister to
enter a streamlined planning
process. In particular, the process introduces
limited notification as an available option and removes any appeal rights.
- Clause
127 replaces s 95B of the principal Act and sets out a step-by-step process for
consent authorities to follow when determining
whether to give limited
notification of a consent application, if it is not publicly notified. The
circumstances in which an application
may be notified, and the persons to whom
it may be notified are more limited under the new s 95B than they are currently
(in that
affected persons are only entitled to be notified of an application if
they are eligible to be notified in accordance with the provisions
of a new s
95DA).
- Clause
137 amends s 120 of the principal Act, which provides rights of appeal to the
Environment Court in relation to a consent application,
an application to change
consent conditions, or a review of consent conditions. New s 120(1A) is added
to:
- remove
the right of appeal in relation to resource consents for certain activities;
and
- limit
the right of appeal of a person who made a submission on the application or
review to an appeal only in respect of provisions
or matters raised in the
person’s submission (excluding any part of the submission that is struck
out).
- To
the extent that the amendments to the plan making and consent processes might
limit opportunities to be heard for people affected
by planning decisions, we
consider the limitation is justified under s 5 of the Bill of Rights Act. This
is because:
- the
Bill serves an important objective – it seeks to make the plan making and
consent processes simpler and more efficient;
1 Combined Beneficiaries
Union v Auckland COGS Committee [2008] NZCA 423; [2009] 2 NZLR 56 (CA) at [11].
- there
is a rational connection to the objective – refining the notification
regimes, and introducing limits to the scope and
content of submissions and
subsequent appeals will result in more streamlined processes; and
- the
right is minimally limited as follows:
- the
use of the Streamlined Planning Process has specific criteria that must be
satisfied before the process may be used. Also, the
use of limited notification
is intended for where directly affected parties are easily identifiable;
- the
consent process includes a new stepped approach in determining whether to notify
an application as the effect of land use activities
are most prominent in the
immediate surroundings and diminish away from the site; and
- the
limitation on the right to appeal a resource consent is limited to boundary
infringements, subdivisions and residential activities
in a residential
zone.
14. The Bill also does not prevent the principles of natural
justice from applying to decisions or actions of the responsible Minister,
a
local authority, or any other person, and nothing in the Bill affects the right
to apply for judicial review. The limitations are
therefore in due proportion to
the importance of the objective.
- We
therefore conclude the Bill appears to be consistent with the right to natural
justice affirmed in s 27(1) of the Bill of Rights
Act.
Section 19(1) – Freedom from discrimination
- Section
19(1) of the Bill of Rights Act affirms the right of everyone to the freedom
from discrimination on the grounds of discrimination
in the Human Rights Act
1993. Those grounds include race.
- Arguably,
the requirement for local authorities to extend an invitation to iwi to enter
into an Iwi Participation Arrangement in clause
39 of the Bill draws a
distinction on the basis of race. This is because it distinguishes between
groups that are predominately Māori
and those that include non-Māori.
Nevertheless, in our view, the provision does not give rise to discrimination
because it does
not create any substantive disadvantage.
- In
reaching this view, we have noted that s 6(e) of the principal Act already
requires all persons exercising functions and powers
under the Act to recognise
and provide for the
relationship of Māori and their culture and
traditions with their ancestral lands, water, sites, wāhi tapu, and other
taonga.
This provision needs to be read with s 7(a) and s 8 of the principal
Act. Section 7(a) requires decision-makers to pay particular
regard to
Kaitiakitanga (Māori stewardship). Section 8 requires decision-makers to
take into account the principles of the Treaty
of Waitangi. The Courts have also
placed considerable emphasis on the proper consideration of matters of
importance to Māori
in decision making under these three
sections.2
2 See, for example, McGuire v Hastings Council
[2001] UKPC 43; [2002] 2 NZLR 577, 594 (per Lord Cooke of Thorndon).
- It
is apparent, however, that the Bill does not require decision makers to comply
with Iwi Participation Arrangements above all other
considerations. While the
interests of some groups will take priority over others in individual cases,
this priority does not equate
to a disadvantage for any particular group.
- We
therefore conclude that the Bill appears to be consistent with the freedom from
discrimination affirmed in s 19(1) of the Bill
of Rights
Act.
Conclusion
- We
have concluded that the Bill appears to be consistent with the rights and
freedoms affirmed in the Bill of Rights Act.
Jeff Orr
Chief Legal Counsel Office of Legal Counsel
Disclaimer:
In addition to the general disclaimer for all documents on this website,
please note the following: This advice was prepared to assist
the
Attorney-General to determine whether a report should be made to Parliament
under s 7 of the New Zealand Bill of Rights Act 1990
in relation to the Resource
Legislation Amendment Bill. It should not be used or acted upon for any other
purpose. The advice does
no more than assess whether the Bill complies with the
minimum guarantees contained in the New Zealand Bill of Rights Act. The release
of this advice should not be taken to indicate that the Attorney-General agrees
with all aspects of it, nor does its release constitute
a general waiver of
legal professional privilege in respect of this or any other matter. Whilst care
has been taken to ensure that
this document is an accurate reproduction of the
advice provided to the Attorney- General, neither the Ministry of Justice nor
the
Crown Law Office accepts any liability for any errors or omissions.
NZLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.nzlii.org/nz/other/NZBORARp/2015/57.html