JACINDA ARDERN (Labour) Link to this
I move, That the House take note of the interim report of the Regulations Review Committee on the complaint regarding the Resource Management (Forms, Fees, and Procedure) Amendment Regulations 2009. I am pleased as a member of the Regulations Review Committee to have the opportunity to discuss this report, which, at the time of the increase in filing fees for the Environment Court, was a particularly controversial matter. Before I go into the detail of the complaint that was heard by the committee, and the subsequent report, I would like to give some context to this complaint for the benefit of the House. On 2 February 2009 Cabinet made the decision to increase filing fees for appeals in the Environment Court. That decision was swiftly put through the motions, and the regulations were gazetted on 9 April 2009, coming into force on 7 May 2009. Those regulations essentially provided for an increase for filing fees for appeals under the Resource Management Act from a modest $55 to a whopping $500.
At the time of the increase, Labour, the Greens, and a significant number of community organisations expressed concern and outrage at the potential impact of this significant and hefty fee. The House will see from the very short time it took for this change to occur that very little consultation occurred before this change occurred. These concerns were deeply held, and for very good reason. They were translated into two complaints, which eventually came before the Regulations Review Committee. As the House will know, the committee has the role of scrutinising all regulations that are gazetted. Those complaints come from Dr Russel Norman and also from the Royal Forest and Bird Protection Society.
I want to acknowledge those groups, in particular the Royal Forest and Bird Protection Society, for voicing the concerns of many community groups about the impact of these changes. But those groups may not have known the parliamentary procedures and processes that were available to them to make this complaint, so I acknowledge the fact that the Royal Forest and Bird Protection Society took the complaint on behalf of many other community organisations.
The grounds for the complaint were clear, well articulated, and quite simple. The concerns of both groups were that this increase could undermine the rights of the public participation, which is already enshrined in the Resource Management Act. There was concern that they would act as a barrier to representation in the courts, and reduce access to justice. There was also a concern that it would put the Environment Court out of step with courts that held equivalent powers. For instance, the District Court does not hold such weighty filing fees. There was also a concern that it undermined the position of the Environment Court as an informal and accessible court. I want to highlight that again. The major concern of both the Regulations Review Committee and of the complainants themselves when considering this complaint was whether this will become a barrier for people to access the court that is there for their use. Of course, there was the additional complaint that it would be unfair to community groups who are there to represent community interests. Those concerns were significant, valid, and they deserved a full hearing of the committee.
Now that we have touched briefly on some of the main concerns of the complaint and the background to it, it is useful to go back to one of the key criteria, as I mentioned, for the committee itself when assessing these claims. It relates to the word “access”. Has this change impinged on community groups’ ability to access the courts? Access to the courts is one of the key criteria that departments have been asked to consider when making a policy change like this. It is not just some airy-fairy point that has been brought up by a range of groups. It is enshrined in the procedures that departments followed. In fact, I think it was highlighted particularly well by a Cabinet paper that was provided to the Minister of Justice. It was a comment from the Ministry of Justice on Resource Management Act reforms. In the paper it stated that some of the principles when assessing filing fees were that filing fees should not prevent citizens from having access to appropriate dispute resolution. That was one of the basic principles outlined by the Ministry of Justice that should be adhered to when considering fees.
An interesting test is to ask whether the Ministry of Justice feels that the changes made by the Minister for the Environment were counter to that principle. The Cabinet paper produced by the Ministry of Justice clearly shows that it did. It states in paragraph 37 of this document released under the Official Information Act that the Cabinet paper of the Minister for the Environment “justifies the increase on the basis that it may deter vexatious litigants. The Ministry does not consider that court fees are the appropriate tools to do this. There is no evidence that higher fees will deter vexatious litigants, and, generally, vexatious litigants are more prepared to pay fees than other court users. The High Court already has powers to declare litigants vexatious and a legislative provision like this would be a more effective tool.”
I do not think it could be articulated more clearly. Not only did the Ministry of Justice perceive that the Minister for the Environment had inappropriately used a hike in fees to deter vexatious litigants; it was its view that that was inappropriate and would not work. It was always maintained by officials from the Ministry for the Environment that deterrence of vexatious litigants was not the key reason for that increase. But when we held the officials to account during the hearing of the committee, I think it became quite transparent that that was not the full story. I want to refer to the transcript of the committee, when a very simple question was put by the committee to the officials—I will just read it briefly—“Could you please explain the major policy reasons which this fee increase is based on?”.
There was a long silence before officials stated: “I think the rationale was quite clearly articulated in the paper that the Minister took to Cabinet.” I will jump down to the next question. “OK, so the recovery of costs was considered. So the one in the Cabinet paper, was that a reference to vexatious litigants?”. “Yes.” was the answer, and further on. So we have acknowledgment there that vexatious litigants did drive the reason for the increase. Later on, the question was put: “Would you argue then, if one ground would be to create a deterrent for vexatious litigants, that $500 therefore in itself is a deterrent, and that if actually that $500 was a deterrent to a vexatious litigant, could it not equally be a deterrent for a small community group?”. The answer from officials: “Potentially.”
I think we have there a very clear admission from officials that if one of their main goals was to deter a particular group, there was no way they could ensure it did not deter everyone, vexatious or otherwise. In fact, as the Ministry of Justice pointed out itself, vexatious litigants are more likely to get around such a deterrent where other smaller community groups may not.
One particular issue that the Regulations Review Committee was faced with was that it had to base its decision on existing evidence. Given that this decision was gazetted only earlier in the year, the amount of evidence to date was always going to be limited. But I think that the Regulations Review Committee made the right decision by recommending the following: “That the Government uses its best endeavours to find ways to monitor over the next 12 months any deterrent effect the increased filing fee may be having on people or groups who might otherwise have commenced appeal or inquiry proceedings in the Environment Court.”
The onus is now on the Government to ensure over the next 12 months that appropriate monitoring mechanisms are put in place, to ensure that we have a good understanding of the effect of this change. I have to acknowledge my significant concerns over whether this will be done in good faith, given that the officials already had enough evidence, from other Government departments and from community groups, of the impact this would have, and that advice and information was still ignored. My only hope is that in 12 months’ time we will have the evidence to demonstrate the true impact of this change.
METIRIA TUREI (Co-Leader—Green) Link to this
The Green Party is very pleased that we led the complaint against the Resource Management (Forms, Fees, and Procedure) Amendment Regulations 2009, which increase the filing fee for appeals or inquiry proceedings to the Environment Court by 900 percent, from $55 to $500. Our complaint to the Regulations Review Committee covered four areas, most of which were touched on by Jacinda Ardern. For instance, the increase was contrary to the objectives and intentions of the Resource Management Act. The Environment Court is designed to be accessible to the broad community because of its purview; the issues it considers are of serious consequence to the whole community.
Unlike, say, the District Court, where an issue might affect one or two parties, Environment Court decisions affect whole communities, whole cities, and whole ecosystems. Therefore, there is public interest in having maximum access to this court. Mediation is a core function of the Environment Court, and I will talk in some detail about the numbers on that. Mediation is an important process in all kinds of disputes before a tribunal such as the Environment Court, and access to mediation is extremely important for effective resolution of issues that affect the whole community. As a result, broad participation by the community as a whole is what is needed to ensure that the Environment Court process works and that the objectives and intentions of the Act are upheld. The Ministry for the Environment agreed with that in the select committee report. It “accepted that access to the Environment Court is amongst the objects and intentions of the Resource Management Act.” We are very pleased about that because the select committee report goes on to show real concern that the filing fee increase seriously infringes on those objects and intentions.
We note the recognition of the waiver process that is available, and the select committee report dealt with that. But the waiver process requires people who are engaged with the Resource Management Act and the Environment Court to know that it is there, to know that they can ask for it, and to not have to rely on court officials to advise them of it, because they may not be advised of it. Unless people know that the waiver process is available and how to use it, they simply will not be able to use it, and will be shut out from engaging in this process. There is certainly no information to show that the waiver process is working effectively; we could not find any. There is no evidence to suggest that the waiver process would be effective in ensuring that people get access to the court. We also note that legal aid and the environmental legal aid options do not provide for filing fees. People who want to access the court and who might rely on sources of funding other than private funding will not be able to use that funding for the purpose of getting a foot in the door. This is where our concern is. Essentially, this filing fee hike of 900 percent shuts out people from even getting a foot in the door. It is not just us who are concerned about it.
We raised the issue of vexatious and frivolous claims, and the purpose of the filing fee in trying to prevent such claims going to the court. This was an issue raised by the Minister’s technical advisory group and the Cabinet paper. They said that the increase in the filing fee was proposed to act as a deterrent to frivolous or ill-merited appeals; therefore, that was the justification for the 900 percent rise. The Ministry of Justice, which understands these issues very clearly, expressed strong concern about the increase. It said that it would be “inappropriate to use filing fees as a means of discouraging litigants. There is no evidence that high fees discourage vexatious litigants.” I accept that from the report it is clear that the officials at the time said that that was not the justification for raising the fee but it was the policy intent behind all of the initial documents that led to the decision to increase the fee, so I find the claim that that was not the reason disingenuous. I think it is clear from the evidence that the fee increase came as a result of wanting to discourage vexatious litigants, with there being no evidence that it would do so. However, there was clear evidence that it would discourage legitimate and poorer claimants from being able to access the court.
What has essentially happened with the filing fee increase is that rich vexatious litigants have access to the court, and poor legitimate ones do not. Which organisations are they? The poorer legitimate organisations that will not be able to access the court now are those that have the public interest at heart, in the main. Those most affected by this are the mums and dads who are concerned about the impact of a development on their community and on their environment, such as the impact of a development on local schools and all of those kinds of issues. Those affected include the environmental non-governmental organisations and, particularly, Māori organisations, and I will talk about them in just a moment.
I said earlier that mediation was an issue here, but we know that 1 percent of resource consents are appealed to the Environment Court. So it is not a huge number, about 500 per annum, and only 10 percent of those go on to hearings because 90 percent of the appeals to the Environment Court go to mediation. There lies the success of the Environment Court and the success of access to that court. People can have a place in which their disputes can be resolved in a win-win situation to the benefit of all, but not now, because those legitimate appellants will not have access to the court because of this fee hike.
I am very concerned about the impact of this on Māori, and I am deeply disturbed by the fact that the Māori Party’s vote allowed this regulation to proceed and the fee to be increased. I would be very interested if the Māori Party made a statement in the House at some point about why it thought it was important to do that, because we know that the Resource Management Act itself makes particular recognition of the principles of the Treaty and of the right of Māori, iwi, and hapū to engage on issues of importance to them in a Treaty and tikanga Māori context. The Act is designed to be accessible to them. Māori have fought for much longer than a decade to have real access to the courts under the Resource Management Act, and to have the effective relationships under the Treaty that the Act provides. They have had to use every possible means available to them to do that, whether through their local authority, iwi management plans, or cultural assessments and assessments of the environmental effects on any particular development. Māori have engaged and engaged in an effort to protect their rohe, their people, their waterways, and their land, and that engagement has been demanded of Māori by Parliament and the community, which are continually telling iwi, hapū, and whānau that we must engage in all of these processes if we are to be taken seriously and if we want to foot it with the big boys and be part of New Zealand society—and Māori do. They take up that challenge and they work very, very hard. They pay huge amounts of their own private money to access these things. They drive themselves, really, into the ground at times, trying to fight to prevent the discharge of contaminants into their waterways so they can save their tuna and their food sources, or to fight huge developments that will have a significant pollutant effect on their communities, their children, and generations to come.
Māori engagement with the Resource Management Act and with these processes is extraordinary for its strength and for its perseverance. But a filing fee of $500, supported by the Māori Party, is the best possible way of kicking the stool out from under Maori. It is the best possible way of shutting that court door and locking them out from the processes that they have worked for decades to try to be part of. This will be a key means, along with other changes like securities for costs, which were introduced by this Government, for shutting out iwi, hapū, and whānau who do not have access to huge economic resources, but do have access to heart, commitment, whanaungatanga, kaitiakitanga, and rangatiratanga. They will be the ones who will not get access to the courts, because of the filing fee that has been hiked up 900 percent by the National Government and the Māori Party.
What justification could the Māori Party, in particular, have for locking out our own people from a court process that we have fought for years and years to be fully engaged with? What justification can there be for the destruction to rohe, kai moana beds, waterways, and all of those areas that Māori have fought to try to protect against development, pollution, and degradation, and now will not be able to? All those kids will now not be able to access their conservation areas or their wāhi tapu—it is particularly a concern on the protection of wāhi tapu—because the filing fee hikes, supported by the Māori Party and the National Government, prevent them from accessing the courts. It is a disgrace.