Resource Management (Security for Costs) Amendment Bill

KATE WILKINSON (National) Link to this

I move, That the Resource Management (Security for Costs) Amendment Bill be now read a first time. In seeking support for this bill to be referred for consideration by a select committee—and I will move at the appropriate time that it be considered by the Local Government and Environment Committee—can I emphasise that the bill is not about protecting developers and business magnates but about reducing frivolous and vexatious claims that have absolutely no place whatsoever in our judicial system, let alone in the Environment Court. The bill merely reinstates the provision that was removed in 2003 that allowed the Environment Court to make an order requiring a party to give security for costs. Such an order is available under other jurisdictions, and I suggest that the Environment Court should be no different.

The Resource Management Act Amendment Bill 2003, which removed this provision, was intended to “directly improve the efficiency of the Environment Court”. My question is, how does allowing frivolous and vexatious claims actually improve the efficiency of the Environment Court? It does not. Allowing courts to order security for costs would discourage frivolous and vexatious claims, thereby actually encouraging that elusive efficiency so often touted as an important requisite of resource management proceedings.

The honourable member Sue Bradford yesterday referred to a bill that had not had the public scrutiny it deserves. Well, to be consistent, neither did the 2003 amendment bill that removed the power of the Environment Court to order security for costs. At that time there was much criticism of the process, and the power to scrutinise the bill was denied—we should not let that happen again. All I am asking for now is that members be given the opportunity to scrutinise the bill. To coin a phrase, I could ask that there be one law for all bills. If the select committee decides it is not an issue, then so be it. But if it decides that the bill is in the interests of justice for all, then no one is the loser by supporting it going to the select committee.

History can be a great teacher. Three years ago the then Minister for the Environment, who was obviously concerned about the problems with the Resource Management Act, actually said: “I intend to work … to achieve positive outcomes, such as reducing even further the backlog at the Environment Court, and removing unnecessary impediments to major roading and energy proposals.” What has happened since then? For 3 long years, nothing has happened. Auckland is still in the dark, and we still have major roading problems and major energy problems. Three years ago there were energy stations that needed to be built. Three years ago there were roads that needed to be built. Three years later those same roads and those same energy stations still need to be built. And the Resource Management Act still needs fixing.

This bill is not the panacea of all Resource Management Act ills by any means, but it is a start. How often do we hear that the Resource Management Act needs reforming, and that it is the handbrake to progress? Only yesterday Transpower referred to Resource Management Act delays being the cause of transmission lines to Auckland not being upgraded. This bill is simply one measure to reduce vexatious and frivolous claims that can delay proceedings and progress unnecessarily. More important, it imposes a discipline on appeal proceedings and makes groups, whether they be residents’ associations, incorporated societies, or otherwise, focus on the merits of the case. If a claim is spurious, then claimants may be ordered to put their money where their mouth is. If their claim is reasonable, then they will have nothing to fear from this amendment.

A person may have a personal vendetta against a neighbour who wants to erect a double garage. The garage deviates slightly from the rules and resource consent is required. For no good reason whatsoever except to be a nuisance, the neighbour objects to the application. The neighbour delays the process and increases the costs for what should have been a simple matter. Is it fair that one aggrieved person can totally stymie a process without any come-back whatsoever on that person? It is only fair that such people—if the court so decides—are required to put their money where their mouth is. That is fair, that is justice, and that is common sense.

It is interesting to note that when the original provision allowing security for costs was removed from the Resource Management Act, there were concerns. Three years ago, United Future stated: “One part of the Resource Management Amendment Bill (No 2) that United Future is particularly unhappy with is the removal of the power of the Environment Court to require security for costs from individuals or groups it considers vexatious. This is not a power the Environment Court has used often. In fact, in its entire history it has only required security for costs from objectors approximately seven times.” I understand that that figure now, 3 years later, is still only eight times—although one of those parties against which security for costs was ordered was the Hawke’s Bay branch of the Green Party.

I also note that when the amendment legislation removing the provision for ordering security for costs was passed 3 years ago, New Zealand First voted against that amendment. It is pleasing to note that that is still New Zealand First’s policy, I understand—because it is posted on its current website—that “… vexatious litigants will be able to be identified and treated as such.” I therefore seek New Zealand First’s support for this bill. In fact, throughout the various readings of the 2003 bill that removed the ability of the Environment Court to order security for costs, there was not one mention—not one—from any speaker on either side of the House extolling the virtues of that amendment. National and other parties objected to it at the time, but the Government did not mention it once. Not even the Minister made any mention of it, at all. No one overtly supported that amendment.

An order for security for costs is not made lightly in any jurisdiction and, as I have stated, it has been made in the Environment Court eight times in total and only once in the last 3 years. Case law provides the precedents. The rules, which are well established, illustrate a very rigorous and robust test is needed before such an order is made. Those rules will not change, nor will they be diminished by this bill.

The majority of applications for security for costs have in fact been declined, but there are some instances where such an order is justified. Factors taken into account before making such an order include the merits of the case, the means of others who may be able to assist, the conduct of the parties, whether the application is oppressive, the public interest—“regard is to be had for the public interest aspect of the litigation brought by a plaintiff”—and whether there are grounds for thinking the defendant is using the application oppressively to prevent the applicant’s case coming before the court. Those factors will not be affected by this amendment. It is important to note that an order for security for costs is not designed to deprive a party from its right to bring or defend a claim, and that overall balance is to be maintained in the interests of justice.

This bill is not about depriving anyone of a say in court, whatever that person’s circumstances may be. It is not about who has money and who does not; it is about justice, and justice only. But it is injustice to remove proper safeguards without any recourse, and that is exactly what has happened here. By reinstating the court’s ability to order security for costs, this bill is merely restoring the safeguard against frivolous and irresponsible appeals, whether by residents’ associations, concerned citizens, or even trade competitors. It is a backstop.

Supporting this bill through its first reading would allow the select committee to scrutinise it properly—to hear submissions and examples of where progress has been stymied unreasonably and with no recourse, where innocent property owners have been lumbered with a costly and lengthy procedure, and where, indeed, orders for security for costs have been declined. I repeat that this bill is not about developers. It is not about building magnates. It is not about denying or reducing the rights of the public to bring evidence to hearings, as has been suggested. Some arguers even start from the premise that the community is right and the developer is wrong. That may sometimes be the case, but reinstating the Environment Court’s ability to order security for costs will not detract from that.

This bill will not protect developers and builders any more than it will protect ordinary individuals. This bill is not about denying families the right to object. It does not take away the right to object—to have a say. It does not allow applicants to ride roughshod over communities or individuals. This is a natural justice issue. It is about preventing the unjustified stymying of our legal process with no possibility of recourse. I seek the support of the House in allowing this bill to be properly scrutinised at select committee level.

STEVE CHADWICK (Labour—Rotorua) Link to this

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.

R DOUG WOOLERTON (NZ First) Link to this

New Zealand First will not support the Resource Management (Security for Costs) Amendment Bill, either. My memory goes back to an intellectual young man in the National Party called Simon Upton, for whom I did heaps of work in the Raglan electorate years ago. I remember him talking about this issue a lot in those days, and so it came to pass. The idea behind the Resource Management Act was to allow local people to make decisions for other local people, and that has proved to be the case.

It is true that at times the legislation is a problem for people with large developments in mind who propose changes of land use and that sort of thing. That is true. Just east of Hamilton East, where I reside, is the site of a proposed power line, which has been updated to 400 kilowatts or some such measurement—I do not know what it is called—to feed Auckland. People are protesting about that. We do not believe that people should be constrained in any way because they do not have the money to come up against not only private people with money but, in many cases, Government corporations, State-owned enterprises, or other bodies of that nature. Fonterra, which operates in the rural environment, comes to mind also. It is important, as the previous speaker said, not only that justice is done but that justice is affordable for everyone. We cannot have justice just for those who can afford it.

We have in this day and age many, many more corporates of a size that could not even be contemplated back when the Resource Management Act was brought into being. Therefore, it is important that local people—individuals—have the ability to speak out against these big institutions. Also, something that would be sad and that we do not want to see is a return to the days when people took other actions outside of a court—like laying down on railway tracks or in front of bulldozers, or chaining themselves to trees.

GORDON COPELAND (United Future) Link to this

First, I offer my congratulations to Kate Wilkinson on having a bill drawn from the ballot. I was fortunate enough in the last Parliament to have two of my bills drawn and I know what a thrill it is.

In rising to speak on this bill I need to go back and look at a little bit of history in relation to the Resource Management Act. When United Future arrived in this Parliament in 2002 we gave a clear commitment to this House that we would support all initiatives to remove any obstacles to reasonable development in the important provision of vital infrastructure caused by the Resource Management Act. We said we would not hold the Government to ransom as the Greens, ACT, and the National Party had done by not being willing to support the Resource Management Amendment Bill (No 2), which had been sitting on the Order Paper for years, simply because it did not contain everything we wanted or because it contained some things we did not like. We considered that the urgent need was to speed the provision of new roads, power generation, and other basic infrastructure projects. That was so important that even though we had some reservations about the Resource Management Amendment Bill (No 2), we would support it so we could move the process forward.

History shows, of course, that we then went on to the Resource Management Amendment Bill (No 3). One of things we did criticise when dealing with the Resource Management Amendment Bill (No 2) was that it would remove the power of the court to require security for costs. However, by the time we got to the No. 3 bill the situation had changed dramatically. There was a backlog of 2 to 3 years of appeals to the Environment Court. Therefore, the security of costs thing was quite important because vexatious people could delay and hold up a project for literally 3 years. Through the Resource Management Amendment Bill (No 3), which was introduced in 2004 and passed in 2005, that situation was changed dramatically. We were delighted, during the select committee stage of the Resource Management Amendment Bill (No 3), to hear submitters from both the business sector and environmental groups commenting on how much better the Resource Management Act process had become compared with the process that applied when we came into Parliament in 2002. In those 2 short years, because of our initiative to support the Government in making a meaningful common-sense advance in the Resource Management Act, we had improved the situation dramatically.

Today, there is not a 2 or 3 year delay in going to the Environment Court. The whole process has been sped up, the backlog has been removed, and therefore today there is no need to have such a draconian power as requiring the court to have security of costs before people could object, on legitimate grounds, to a project that they may, as Doug Woolerton pointed out, have very, very deep convictions about—the sort of convictions that saw Sonja Davies, for example, chain herself to the railway lines.

Therefore, because of the positive achievements that were accomplished by United Future working with the previous Government, we no longer consider it necessary to award the courts the power they had prior to 2003. This bill, in reality, is more of a political stunt than any real, useful amendment. We are saddened to see the National Party continuing to live in the past as far as the Resource Management Act is concerned, continually regurgitating its tired old stories about delays and road blocks caused by the Resource Management Act. The fact of the matter is that the resource management law was introduced by a National Government, and if in the 1990s it had bothered to use its energy in a responsible way it could have fixed these things long since. I repeat that it actually took the arrival of United Future in this House in 2002 to break the logjam, to break the deadlock, and to enable this process to move forward.

We are now in 2006. We have moved on from 2002 and from 2004. Our party has a policy of continuing to cooperate with the Government in making incremental improvements to the Resource Management Act process, and that needs to go on. We are not saying that it is perfect and we are not saying that we have got to the end of the journey, but we are well down the road from where we were in 2002, and this bill adds nothing to that process.

I want to say in the House tonight that the progress we have made during the last 3 years is in no small measure thanks to the tireless work of my former colleague Larry Baldock, who worked with both Marian Hobbs and then with David Benson-Pope to really crack the long delays the Resource Management Act process had been bedevilled with right through the 1990s all the way through until 2004, when we began to seriously address and fix the problems. This bill is a good bill but it is about 3 years out of date and we will not be supporting its going to a select committee.

Hon Dr NICK SMITH (National—Nelson) Link to this

The reform of the Resource Management Act is one of the most significant and important legislative issues facing this nation of ours. The Act is holding back and delaying the building of new roads; it is preventing the timely construction of new electricity infrastructure; and it is also driving up the cost of subdivisions, which reflects directly on the price of homes, and therefore affects New Zealanders who long to own their own homes. I find it extraordinary that in this House when a good new member like Kate Wilkinson, who has a great legal background, comes with a very simple proposition that will make a material difference to that Act, the tired parties in Government will not even support that bill going to a select committee.

I want to rebut a number of points that have been made. I cannot believe the claims made by United Future that suddenly the Resource Management Act has all been fixed—that there is no problem. I say to Mr Copeland that I have heard some fantasies in this House, but that one would have to be in the fairytale class. Keith Turner of Meridian Energy said only in the last few days that New Zealand would not be able to address its electricity problems unless there was reform of the Resource Management Act. Just today I was at a seminar about the Act in relation to roads. I spoke with the members of a frustrated community that applied for resource consent for a roading project on the Kapiti coast in 1997—and it is still not resolved.

Every single day we see bad examples. Can I tell members how bad it has got? Tonight’s news featured a gentleman in Queenstown, who was so frustrated at trying to get a resource consent for a sign he decided to mow his sign message into his paddock. He has received a notice today, stating that he will be prosecuted for not getting a resource consent for mowing his own lawn. That is exactly what has happened today, yet Government members say that the Resource Management Act does not need reform; we on this side of the House say that it does.

I have been fascinated by the arguments, effectively from Government members, that they do not trust our judges to apply common sense. All Kate Wilkinson’s bill will do is allow a judge to provide for security of costs if he or she thinks that is warranted. Why is it that we allow security of costs in the High Court? We allow it in the High Court, we allow it in the District Court, and we allow it in the Employment Court. What is it about our Environment Court judges that members of Labour, United Future, and New Zealand First do not trust? If there were any environment in which one might be concerned, one might expect it in the Employment Court but, even there, there is the provision that security of costs can be allowed.

The naivety of parties in the Government amazes me. To get around the Resource Management Act, all one needs to do is to form oneself into an incorporated society and to object all the way through the resource consent process, imposing huge costs on the community and on others, and knowing that that limited liability incorporated society will never be held to account for the costs imposed on those others. I reflect on the tragedy for the Whangamata Marina Society, which went through a resource consent process lasting 13 years. There are vexatious and frivolous objectors under the Resource Management Act every day of the week, and this bill from Kate Wilkinson will provide a small but effective measure that says to the courts that if they believe somebody is acting frivolously or vexatiously, they have to provide a security for costs. That is all it means—a person has to put up 10 grand so that at the end of the hearing, if there is a costs award, there is some means to reinforce it.

I am bitterly disappointed that this Parliament does not see fit to improve that situation, for those who want to transform the New Zealand economy, by allowing that sort of minor but important amendment to the Resource Management Act. I know, indeed, that this country will not have roads where people can drive without being congested, will not have security for people about their electricity supply, and will not have subdivision costs that make it affordable for the average family to own their home, while this Parliament refuses to reform that Resource Management Act.

TE URUROA FLAVELL (Maori Party—Waiariki) Link to this

Tēnā koe, Mr Speaker, tēnā tātou katoa. The Māori Party is speaking to the Resource Management (Security for Costs) Amendment Bill as informed by our understanding of “CIR”. That is not “citizens initiated referendum”, although that certainly would not be such a bad idea; the initials stand for “cultural impact reporting”, as defined under schedule 4 of the Resource Management Act 1991. In that provision the requirements for assessing environmental effects are set out. Cultural impact reporting looks at the spiritual, cultural, or other special values for present and future generations. This bill, in effect, adds a new layer of costs to an already expensive process—the process of taking a case against a company. The bill will require claimants to sign that they can put up the money before the case can go to court. The money is not small change. If we are seriously committed to due process in order to ensure that all people receive a fair hearing in front of the law, then the cultural impact assessment provision in this bill does nothing to enhance that right.

Section 6(e) of the Resource Management Act 1991 states that: “The relationship of Māori and their culture and traditions with their ancestral lands, water, sites, waahi tapu and other taonga.”, is a matter of national importance that councils must recognise and provide for. It is a matter of national importance that, with this amendment bill, would never see the light of day through prohibitive costs. It is these matters of national importance, natural justice, and environmental equity that demand we oppose this bill.

Two other factors have emerged relating to the cultural impact assessment provision. The first is the issue of relevance. The purpose of the bill is to limit vexatious and frivolous objections to applications for development. Yet in a search of the environmental rulings between 1998 and 2003 we have unearthed only two instances that could be defined as vexatious and frivolous. We did not think that could be right, so we approached the Ministry for the Environment. We were told quite clearly that the ministry has not undertaken any assessment, let alone a cultural impact assessment, of how many cases could fall into the vexatious and frivolous category. The response was that, at best, estimates could be only anecdotal.

The issue of relevance being discounted, we then turned to the issue of necessity. We found that the Resource Management Amendment Act 2005 actually makes this new bill redundant. There is a section in that Act that will prevent such cases getting to court by the direct intervention of local bodies. This will come into force in August 2007. Section 41C of the principal Act is amended by the addition of specific subsections, including section 41C(7)(a), which directs that a submission can be struck out if the submission, or part of it, is frivolous or vexatious.

The costs of litigation are already impacting adversely upon a group of people who are already overrepresented amongst communities where poverty is endemic. Security for costs can be understood as yet another clever construct of the Crown to constrain tangata whenua from their right to challenge developments. For this bill to be sitting alongside other local government situations in which Māori have been prevented from doing their own developments is, at the very least, a case of déjà vu, or, worse yet, another instance of racism. Putting it another way, we wonder whether the Resource Management (Security for Costs) Amendment Bill is actually the real frivolous and vexatious legislation. The Māori Party will not support this bill.

JEANETTE FITZSIMONS (Co-Leader—Green) Link to this

I think it might be helpful to the House and, in fact, to the proposer of the Resource Management (Security for Costs) Amendment Bill—who is a new member—if I gave a little of the history behind this provision in the Resource Management Act. When the Resource Management Act was passed in 1991, there was no provision in it for a judge of the Environment Court to award security for costs. That provision came in quite some years later—I think it was 1996—when another amendment gave the judges the powers of a district court. It was actually not foreseen at the time that this would involve the power to award security of costs, but that is, in fact, what happened.

Then, later in that term of Parliament—before 1999—Sandra Lee introduced a bill to remove the power of the Environment Court to award costs against public interest groups who were representing some aspect of the public interest. That came to the Local Government and Environment Committee—which I chaired in the following term—and we considered it quite carefully and heard submissions on it. What we heard from various people who had experience of submitting on the Resource Management Act was that they did not oppose the power of the court to award costs against those who had abused court process or who had been vexatious. The difficulty they were finding was that with the new power of the court to award security for costs, developers and large applicants with deep pockets were threatening objectors that if they proceeded to court, they would hit them with security for costs. The fact that the judges would award security of costs only rarely, and in cases where there was a real risk to the applicant, did not prevent applicants from deterring genuine and worthwhile objectors from pursuing their cases out of fear, because they knew the objectors simply could not find the $30,000 to put up for security. So people who were legitimate parts of the process were prevented from taking part.

When we got that evidence in the select committee, we said we would not proceed with the bill that Sandra Lee originally introduced because we did not think that representing some aspect of the national interest should automatically bar people or groups from having costs awarded against them, if they abused the process and ran a bad case, but we also did not think it was a good thing that people be deterred from participating at all by stand-over tactics from people saying that if other people or groups participated, they would seek an order for security costs.

LINDSAY TISCH (National—Piako) Link to this

It is a pleasure to take a call to speak on very important legislation—an important bill that my colleague Kate Wilkinson has introduced. National is concerned about the impacts of the Resource Management Act. My colleague Dr Nick Smith today sought to table recommendations on the Resource Management Act during question time on the seriousness and the importance of this legislation in relation to the development and progress we try to achieve for our economic growth in the country.

Kate Wilkinson, as a lawyer experienced in these matters, has determined that security of costs are available through the District Courts, the High Court, and the Employment Court, but not the Environment Court. So one needs to ask why we have an exemption for the Environment Court when other courts allow for security of costs. Kate Wilkinson has come forward with a solution, which, actually, is fair. It is fair and equitable for developers, for those people who seek a resource consent through the Resource Management Act, and it stops those people who, for frivolous and vexatious reasons, will try to deny progress and will use any tactics necessary because the situation is not to their liking.

There are numerous examples where vexatious and frivolous objections have taken place. It is well-known, and has been mentioned many times in this House, that it takes longer, sometimes, to get a resource consent to build a road than it does to construct a road. Why would that be? It is because so many people, at the eleventh hour, decide they want to object to a process taking place.

My colleague Dr Smith and I were involved with the Whitianga waterways project where special legislation was passed. It is a huge development—a multimillion-dollar development over 20 years—where the developers had spent in excess of $5 million on resource consents and where everybody had agreed and it had gone through the court. Local iwi were supportive of it, yet at the eleventh hour someone objected—in fact, two iwi who did not even live in the area objected. Special legislation was passed. The hold-up of a multi-million dollar development, which that community actually wanted at the time—and which local iwi, in particular, certainly wanted—was an exercise in futility. It took people like Dr Smith and the National Party to put pressure on the Government at that time to pass legislation that affected that huge development in that region.

In a newsletter that went out to its clients on 23 May 2001, Chapman Tripp stated under “Security for Costs”: “The Select Committee Report recommends that the Environment Court’s power to award security for costs be taken away.” That is where it all started. “Currently, the resource consent applicants can ask the Court to require appellants to provide security so that if the appeal is not successful, and is found to be of sufficiently low merit as to warrant an award of costs against the appellant, the court is sure that the appellant is able to pay those costs.”

This is important legislation that my colleague Kate Wilkinson is promoting. It is worthy and has the merit to go to the select committee so the committee can determine the merits of it and we can call for submissions on this very important bill. We know that the infrastructural challenges facing New Zealand—be they in energy, or be they in roading—are held up in many cases by the Resource Management Act. We support the Resource Management Act, but we want legislation that is fair and equitable to maintain those high environmental standards, and at the same time make sure people cannot come in and stop something just for the sake of stopping it, when there is no due reason or cause for them to do so. National supports this legislation and we trust that other parties in this Parliament will allow it to go through to the select committee.

SHANE JONES (Labour) Link to this

Firstly, congratulations to Kate Wilkinson on having had the opportunity to introduce this bill coming out of the ballot system, given that we both arrived in Parliament at the same time. But I stand, based on a long body of experience on both sides of this debate in resource management, to assure her that I do not support this bill, having said that I congratulate her on having seized the opportunity. No. 1, the bill as proposed will do a great deal of damage to the Māori constituency. It will disempower, prevent, and further marginalise. Their opportunities will be reduced to speak about those values and interests in the environment that are so easily, or very often, overlooked and forgotten by rapacious developers as they pursue profit at the expense of the environment—in particular, mahinga kai, urupā, and other features of significance to the tangata whenua. We may well see come to pass a cheque-book type of environmentalism, corporatising the environment, so that it becomes the plaything only of those who have deep pockets, of those who have the opportunity to hire the flashest lawyers, I fear that this could mean that opportunities are denied to Māori communities. This is not good, either for the environment or for the involvement of hapū, iwi, and tangata whenua in the future.

Now, of course, Nick Smith and others are very supportive of this. Purposely they exaggerate the nature of the problem. The problem is actually being addressed come August 2007, when new statutory powers will be available to strike out frivolous, mischievous, and vexatious issues—and I am not entirely sure why Nick Smith complains about such issues, because we put up with that sort of thing every day from him during question time. However, I agree that the opportunity that exists for people to raise such issues is very, very frustrating and can be cumbersome. It should come to an end as a consequence of the amendments that have already been dealt with.

There is a great deal of rhetoric behind this issue—not necessarily from Kate Wilkinson; I found her delivery to be very lawyer-like, stripped of rhetoric, and dealing with the problem, but unfortunately coming up with the wrong remedy. I get the sense that Nick Smith and others are harking back to the National Development Act. They actually would prefer the Resource Management Act to be put to the side, and for developments to be approved from a national agency with minimal or no opportunity for public or community participation. That would lead to a simple reversion back to the days of Muldoon. The Resource Management Act is an evolving piece of legislation, and as one of the four members of the core group who worked with Sir Geoffrey Palmer in 1989-90, actually developing the Resource Management Act, which was then taken forward by Simon Upton, I say that it has to be amended as it goes.

But there should be balance and opportunity for participation. Most important, communities should not be dislocated or locked out from an opportunity to influence the final shape and form of their community when a life-changing development comes to town. Members may very well ask why security of costs options are not being enjoyed by the Environment Court. The Environment Court as an institution is in a class of its own. It cannot be compared with the activities of the District Court or various other fora of the legal system. That is why I cannot support this bill, because it is disempowering and leaves far too much influence and potential for marginalisation on the basis of the depth of the pocket and the cheque-book flourishing of developers. There is nothing wrong with development, provided that it does not undermine the sustainability of the resources surrounding the development. However, for those reasons, I say to Kate Wilkinson that it was a nice try, but I do not support this bill.

KATE WILKINSON (National) Link to this

I came to Parliament believing in justice—justice for everybody—and not in denying justice to anyone, as the opponents to this bill are suggesting. Justice in any court requires the reduction of vexatious and frivolous claims. That is not just in relation to the Environment Court; it also applies to the District Court and High Court. The other courts have provision for security for costs to reduce vexatious and frivolous claims, as has already been mentioned. Why does the Environment Court not have that provision?

Vexatious and frivolous claims must be discouraged. The test, of course, is rigorous and robust—we have said that—to discourage frivolous objectors from stymying the due process of law without any comeback or form of redress. That is justice, and that is what this bill is about.

Opponents of this bill have been trumpeting some alternatives—for example, that the courts will have the power in 2007 to strike out an objector’s claim. But that might not necessarily be what the objector wants. The objector might just want to provide some security for costs in order to buy time to put forward a lucid argument, and striking out the claim would deny them that right to justice.

I refer now to flip-flop No. 1. In the Hansard reporting of this matter in 2002, New Zealand First’s Dail Jones, I thought, summed up the situation rather well. He said: “One of the major areas of complaint I have with this bill, which I am sure will lead to its downfall as a whole, is the removal of security for costs.”