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Section 5 re-revisited: a critique of Skelton & Memon's analysis 

Simon Upton, Helen Atkins & Gerard Willis 

Skelton and Memon's review of section 5 of the Resource Management Act (Resource Management Journal Volume X, No 1, March 2002) http://www.rmla.org.nz/_downloads/RM%20Journal%20March%202002.pdf provides a useful catalyst for  reflecting on where the apparently far-reaching changes introduced by the Act have led  to, a little more than a decade after its enactment. The author's conclusions may be  summarised to embrace two main propositions: first, that notwithstanding attempts to the  contrary, section 5 of the Act as finally drafted yielded a broad definition of sustainable  management that gives no primacy to bio-physical effects but embraces, instead, a  broad "integrated" approach in which ecological, economic, social and cultural values are  given equal consideration. And secondly, that the approach of the courts to interpreting  the section over the last decade has come to support this reasoning through the  application of an 'overall-judgement' approach. A subsidiary theme concerns the extent  to which the initial implementation of the Act was, in the authors' opinion, affected by  'pressure' from the Minister and his officials to adopt a narrower reading of the section. 

In this paper, we review the analysis developed by Skelton and Memon and comment on  the direction in which the case law is headed. Whilst we are critical of Skelton and  Memon's analysis of the genesis of section 5 and the grounds they adduce for their  reading of it, our reading of the case law largely concurs with their analysis. We offer  some observations on possible amendments to the Act that would provide for greater  certainty and some brief comments on the proper role of officials charged with making  submissions under the Act. 

Section 5: its evolution and meaning 

The extensive consultative process that led to the enactment of the Resource  Management Act means that the debate over the underlying philosophy and reach of the  Act is unusually well documented. Skelton and Memon make reference to many of the  working papers that informed the resource management law reform process and the  summaries of submissions made to the Ministry for the Environment up to 1989. They  describe a debate between those who sought a statute that would provide for the  resolution of a wide range of social, economic and environmental conflicts and those who  sought a more limited code to deal with the environmental effects of resource use. These  approaches are described as the integrative or 'triple bottom line' and bio-physical  bottom line models respectively, the latter view being attributed to the Treasury along  with "the Business Roundtable, a number of Labour and National Cabinet ministers and  some MfE officials."  

Unfortunately, Skelton and Memon make no reference to the further development of this  debate after the introduction of the Resource Management Bill into the House so it is  difficult to ascertain just what materials they are relying on in reaching their final  conclusions on the reach of section 5. On the other hand, they seem to hint that the  debate they describe had some influence on the final shape of the provision. While  noting that "the integrated perspective on the purpose of the Act prevailed through the  reign of the Labour government", they maintain that "the stamp of the neo-liberal rhetoric  is reflected to some degree in the final wording of section 5. Thus, the purpose of the  Act is the sustainable management (not development) of natural and physical resources  (instead of environment)." 

Notwithstanding this, the authors manage to locate an even more expansive account of  sustainability in section 5 than the plain meaning of the section would appear to support.  Here is how Skelton and Memon describe it:

 "…we would argue that the definition of sustainable management encapsulates the fundamental  underpinnings of the concept of sustainable development in the sense that it requires decision- makers to adopt an integrated perspective for managing natural and physical resources.  Sustainable development has been defined, based on the Brundtland report, as a decision-making  process that should take account of ecological, economic and social and cultural values. The  attraction of sustainability defined in this way is that rather than elevating biophysical objectives  above everything, it ensures the proper consideration of development in its environmental context."  

Skelton and Memon contrast this reading with what they describe as

 "…a misconception that section 5 (2) is predominantly about prescribing bio-physical  environmental bottom-lines. A reading of the sub-section shows that this is not so. Consequently,  even if Parliament thought it was moving away from what was perceived to be an anthropocentric  approach to planning and resource management it is plain from the very wording of section 5 (2)  itself that this was not so." 

In our view, neither this characterisation of the so-called 'bottom-line' interpretation nor  the claim that the definition of sustainable management in section 5 encapsulates the  even broader notion of sustainable development can be sustained. 

The evolution of the policy debate that shaped section 5 has been extensively described  elsewhere. (1)  Without repeating much of the material set out in that article, we are of the  view that an examination of the evolving drafts of the RM Bill supports the following  conclusions: 

1. There was a debate, as Skelton and Memon indicate, between what we might term  the 'Treasury' and 'non-Treasury' world views; but it was, at the outset, less a contest  between a bio-physical 'bottom-line' versus an 'integrative' approach than a contest  between the integrative approach and one that sought to give pre-eminent status to  ensuring that resources (or rights to them) were allocated to the most highly valued  uses. The Treasury view purported to be value neutral, resisting the notion that some  value-laden principle should be imposed on individual choices. That view did not  prevail. 

2. While the idea of a biophysical bottom-line did not attract significant support early in  the process, the Government's advisers did see themselves breaking with the  approach of the Town & Country Planning Act by embracing instead a law reform  dealing "with resource management laws whose primary function is to limit the  adverse spillover effects of people's activities, and to allocate Crown resources". (2) 

3. The final thrust of the section (rooted in the analysis of the Review Group on the Bill  appointed in late 1990 under the chairmanship of Tony Randerson), reflected a  conscious decision to adopt a formula that was narrower than the Bruntland  Commission's formula of 'sustainable development'. The Review Group noted that  the latter concept "embraced a very wide scope of matters including social inequities  and global redistribution of wealth" that would be inappropriate in legislation of the  kind under consideration.(3)  

In our view, the fact that the broad Brundtland formula was explicitly considered and  discarded makes it hard to sustain Skelton and Memon's argument that such an  interpretation nonetheless remains possible. If such an outcome had been desired, the  formula 'sustainable development' would have been adopted.  

But neither can an interpretation that gives primacy to biophysical effects be dismissed,  as Skelton and Memon do on the basis that the wording of the section captures  anthropocentric values. Any judgements under the Act about the importance of  biophysical matters will be judgements made by humans reflecting on human values. To  limit the matters a statutory code such as the Resource Management Act may deal with  to largely biophysical effects (if, indeed, that is what occurred, a matter to which we  return below), does not imply any shift away from an anthropocentric approach.  

Indeed, the decision to include the reference to "safe-guarding the life-supporting  capacity of air, water, soil and ecosystems" in section 5 was taken explicitly to provide  some sort of yardstick against which the needs of future generations could be gauged. If  these resources could no longer support life, the interests of future generations would be  severely compromised. It would be hard to identify a more 'anthropogenic' rationale.  Furthermore, anthropogenic values must be captured because resources are used by,  and the limits to that use set by, people. But that in no way undermines an interpretation  that gives primacy to the (largely) biophysical constraints spelt out in the second part of  section 5(2). That, as we shall argue, is a matter of plain reading. 

Notwithstanding the fact that the subject matter of section 5 is anthropogenically  informed, resource managers are not enjoined to manage everything. Rather, they are  to promote the sustainable management of 'natural and physical resources' (excluding  minerals). While the definition of that term in section 2 extends to structures, including  any building, equipment, device or other facility, it is essentially physical in character and  does not extend to the management of human activity per se.(4)   Rather, it is the effects of  human activity that matter. Determining whether particular words are anthropogenic or  otherwise seems to us less important than the overall formula adopted. The broad  reading sought by Skelton and Memon would be more consistent with the formula  employed in the Town & Country Planning Act which was about the most effective  means to "promote and safeguard" a long list of human desires – "the health, safety,  convenience and economic, cultural, social and general welfare of the people…"  

It was precisely that sort of approach that the Review Group on the Bill had sought to  avoid when it proposed changes to clause 4 (the predecessor to section 5) as it had  emerged from the Select Committee in 1990:

 "The definition of sustainable management is now more precisely stated and clause 5 will spell out  in detail the various dimensions of sustainable management, including, in particular, the  biophysical dimension. While clause 4 as reported by the Select Committee contained an  unweighted balancing of socio-economic and biophysical aspects, the recommendation of the  review group conceives of the biophysical characteristics of resources as a constraint on resource  use." (5) 

In our view, the plain wording of section 5 is easy enough to understand without recourse  to concepts like sustainable development that are not referred to, or the insistence that  an 'anthropogenic' reading of the section must necessarily involve weighing up  everything against everything else. Neither do we find that Skelton and Memon add  clarity in stating that section 5 (2) contains "a definition, or arguably more correctly, a  description of the term 'sustainable management' at least for the purposes of this Act."  In our view, section 5 (2) is a straightforward statutory definition that spells out what it is  that is supposed to be 'promoted' by the Act. 

As has been observed elsewhere,(6)  the combined effect of both sub-clauses is to erect  sustainable management as a guiding principle – a value-laden, fixed point from which all  subsequent reasoning about resource use under the Act should proceed. As such, the  label "purpose" clause may be somewhat misleading. But the section is clear enough.  Those who manage resources under the Act are enjoined in section 5 (2) to do so in a  way that enables people and communities to provide for their wellbeing while at the  same time securing the matters detailed in clauses (a), (b) and (c).  

In our view, the plain meaning of the words supports the following conclusions; 

1. The word 'while' supports the contention that these matters are contemporaneous.  The matters in paragraphs (a), (b) and (c) are to be secured at the same time as  resource management decisions are supposed to be enabling people and  communities to meet their needs. 

2. The difference between the two halves of the sub-clause lies in the extent to which  management is an active or a passive business. Paragraphs (a), (b) and (c) variously  enjoin management that sustains, safeguards, avoids, remedies or mitigates. These  all imply a proactive approach to management. The first part of the sub-clause,  however, envisages management that 'enables' the pursuit of wellbeing. Its nature is,  in contrast, passive (unlike the Town & Country Planning formula cited above).  

3. While paragraphs (a), (b) and (c) specify outcomes that must be achieved, nowhere  do they provide absolute values which spell out rigid 'bottom lines'. Nor could they, at  such a level of generality. Sustaining the potential of natural and physical resources  to meet the reasonably foreseeable needs of future generations leaves a large  measure of flexibility to judge, in particular circumstances, the scope of that potential,  and also the possible needs of future generations. Similarly, to safeguard the life- supporting capacity of air, water, soil and ecosystems is not to demand the protection  of a particular absolute value, but rather a potential to support life (without spelling out  what level of capacity that may involve). Finally, by including the possibility of  mitigation of adverse effects, paragraph (c) envisages that human activities will have  effects that involve trade-offs. In other words, there is no absolute injunction against  environmentally adverse effects. 

A straightforward reading of the section, then, supports the view that there are a number  of particular outcomes that resource managers need to secure actively while at the same  time enabling communities to meet their needs. The bias for action lies clearly with  securing the outcomes detailed in paragraphs (a), (b) and (c) which operate as high-level  constraints. The focus of the outcomes to be actively sought is, as we have noted,  significantly narrower than the general welfare ambition of the old Town & Country  Planning Act. Here action is directed towards securing certain outcomes while enabling  people and communities to promote their own welfare.  

This was the approach taken by the Board of Inquiry into the proposed coastal policy  statement chaired by former Judge Turner. The chairman's summation of section 5 (2)  was as brief as it was lucid: 

 "S5(2) RMA then defines "sustainable management". It does not call for a balance to be struck  between an objective of promoting the use of resources for the present well-being of the  community and the so-called "ecological objective" set out in clauses s5(2) (a), s5(2) (b) and s5(2)  (c) (respectively: the needs of future generations; life-supporting capacity of air, water, soil and  ecosystems; and, the adverse effects of activities on the environment), as was argued by the  Minister's representative. Rather, clauses (a), (b) and (c) are three specific objectives or  constraints which must be pursued while people and communities are being enabled to provide for  their well-being etc. S5(2) RMA requires management to be carried out in a way which achieves  the objectives or applies the constraints of (a), (b) and (c)."(7)  

The problem with our reading of the section lies elsewhere – specifically, with the  definition of environment which finds its way into section 5 (2) (c). 'Environment' is  defined in section 2 to include 

(a) ecosystems and their constituent parts, including people and communities; and 

(b) all natural and physical resources; and

 (c) amenity values; and

 (d) the social, economic, aesthetic and cultural conditions which affect the matters stated in  paragraphs (a) to (c) of this definition or which are affected by those matters. 

It is paragraph (d) that causes difficulty. It is impossible to say what might or might not  be excluded by this formulation. As the Ministry for the Environment stated in its report  to the Resource Management Amendment Bill recently reported back from the Local  Government & Environment Select Committee: 

"It can be argued that the existing definition of 'environment' is such a broad definition that it  covers just about everything. While this broadness may promote a holistic approach to  environmental management, it does not necessarily contribute to a clear legal understanding of  what the definition should include. 

In addition to the breadth of the definition, the precise legal meaning of paragraph (d) and its  relationship to paragraphs (a) to (c) is not clear. In paragraph (d), social, economic, aesthetic and  cultural conditions are expressed to be part of the environment if they affect the matters in  paragraphs (a) to (c) and if they are affected by those matters. The significance of this definition  and the extent to which those conditions can exist separately from people and communities  (already included in paragraph (a)), is unclear. Whatever the definition is attempting to achieve, it  does not deliver an unambiguous and legally precise guide to those who must apply the Act's  provisions." (8) 

The reality is that the definition of environment as it currently stands does allow the full  gamut of economic and social consequences to be considered. Skelton and Memon do  not draw attention to this consequence of the definition of environment – surprisingly, in  our view, since it provides somewhat better support for their thesis than an attempt to  locate their 'integrative' reading on the face of section 5.  

As presently cast, the definition of environment is so wide that adverse effects could  plausibly encompass any loss of employment, any loss of profits or even any loss of  possible rates or taxes. While the direct effects of trade competition are prohibited from  being taken into account under section 104 (8) of the Act, the indirect consequences of  changes in the market place would still seem to be relevant considerations under section  5 (2) (c).  (9)  

Whether or not environmental effects should be as broadly conceived as this is, of  course, a policy matter. It is certainly the case that the sponsors of the Act that was  finally passed into law in 1991 had not envisaged such a wide ambit. Hence the  amendment proposed in 1999 to remove paragraph (d) of the definition of environment  and augment paragraph (c) to embrace "the health, safety, amenity values and cultural  values of people and communities". This still broad, but arguably narrower (and certainly  clearer) formula, has been rejected by the Select Committee. Should Parliament concur  with the Select Committee, the conclusion must be that Parliament does indeed wish to  admit an unlimited number of elements into the consideration of environmental effects.  This may give the appearance of a more 'holistic' assessment but will, in all likelihood,  make for more complex adjudications by permitting a wide range of sectional and  individual interests to be portrayed in terms of negative effects on the community.  

What remains unchanged is the focus of the Act on preventing or minimising negative  effects. We remain firmly of the view that the 'enabling' language in the first part of  section 5 (2) does not provide a platform on which a developer or a community can  argue that a resource use should proceed on the basis that enormous benefits in terms  of local employment and business opportunities should be able to over-ride potentially  serious breaches of paragraphs (a), (b) and (c).  

In this sense, these paragraphs do provide a 'bottom line' of sorts although we are wary  of the usefulness of such labels. In reality, the outcomes required by these paragraphs  will be progressively given specific content as rules or standards are promulgated under  the Act. The key point is that they cannot be traded off as a means of enabling the  community to pursue its wellbeing. By erecting sustainable management as the  motivating principle of the Act, people's well-being has in a sense been limited to exclude  those activities whose effects would not secure the matters specified in paragraphs (a),  (b) and (c). The balancing of costs and benefits, to the extent that it occurs, will be about  the effects that will be permissible consistent with the thrust of paragraphs (a), (b) and  (c). In other words, effects which do not erode the core prerequisites of sustainability. 

This will principally occur at the level of rule making. The benefits of resource use in  enabling people to provide for their well-being will be a material factor in deciding what  potential should remain for future generations, what level of life-supporting capacity must  be maintained and what level of avoidance, remediation or mitigation should be applied  to adverse effects. This is the most important level at which judgement needs to be  exercised. It was never the scheme of the Act that the very general guidance provided  by section 5 should be the yardstick against which practical, case-specific matters should  ordinarily be measured. Rather, it was expected that the ethical weight of the provision  should be given concrete form in standards and rules. Recourse to such a high level  provision in the case of the particular, should be the exception rather than the rule. But  when, at the margin, rules in plans and standards do not provide sufficient guidance,  then permission to mitigate will involve a judgement about the extent to which proposed  negative externalities will not seriously undermine the totality of the protection  paragraphs (a) to (c) are designed to afford.  

In our view, labelling different interpretations of the section as "bottom line" or "overall  judgement" approaches does not add clarity. To the extent that paragraphs (a), (b) and  (c) amount (as the Environment Court said in Foxley) to "cumulative safeguards" they are  'bottom lines'. To the extent that it is necessary to consider the consequences of  proposed resource uses against these safeguards – and consider the extent to which  mitigation will cure environmental damage – an overall judgement will need to be  exercised. The drafting of these paragraphs is not so stringent as to deny decision- makers or the courts reasonable latitude in reaching their determinations.  

What we would resist is the conclusion that the duty to enable people to provide for their  well-being can invite an enquiry into the benefits of resource use that can, through some  exercise of judgement, be used to justify the abridgement or dilution of those matters in  paragraphs (a), (b) and (c) which decision makers are actively directed to secure. That  would risk emptying the concept of sustainable management of any content.  

Yet that is what Skelton and Memon invite us to do in claiming that "the decisions of the  Courts endorse the role of the RMA as a conflict resolving statute, in the same vein as  the preceding environmental statutes, in particular the Town & Country Planning Act  1977". In view of the express – and documented - intention of so many involved in the  drafting of the Resource Management Act to discard the approach of the Town &  Country Planning Act this is a remarkable claim yet one which, as we shall see, has  begun to acquire some force. 

What direction has the case law taken? 

Skelton and Memon conclude – and we agree – that the Environment Court has, since  the passage of the Resource Management Act, moved towards a 'broad overall  judgement' approach to section 5 although this is less a progressive evolution than a  quite clearly demarcated shift in 1996 with the Trio Holdings case. That the authors  should expressly approve such a development is not surprising in view of former Judge  Skelton's role in assisting the elaboration of this approach. The bones of the authors'  analysis can be found sketched, for instance, in Aquamarine Ltd v. Southland Regional  Council [C126/97] where the court, presided over by Judge Skelton, making reference to  the Trio Holdings and North Shore City cases, identified the 'overall judgement' approach  and contrasted it with "other approaches that have been described from time to time as  the 'environmental bottom line' approach and the 'balance' approach." 

As will by now be clear, we doubt that such an approach, at least in its widest  formulation, is compatible with a straightforward reading of the section. But before  turning to the cases cited by Skelton and Memon, it is worth remarking at the outset that,  notwithstanding the attention paid to section 5 from time to time by academics and  practitioners, the level of judicial engagement with the provision is remarkably slender.  Not surprisingly, given the nature of the jurisdiction, most cases are decided on the facts  with only general statements being made about the applicability of section 5. 

We have not been able to locate a single case in which the precise interpretation  accorded to section 5 has been decisive in the court's decision. Notwithstanding that,  the move towards an 'overall judgement' approach is not without significant implications  for the way in which future decisions may be treated – a matter we shall return to in the  final section of this paper. What follows is a commentary on the four key cases cited by  Skelton and Memon which, we concur, form the most referred to core of cases on  section 5. 

The first two cases, Foxley Engineering v. Wellington City Council (10) and Campbell v.  Southland District Council (11) are decisions of the then Planning Tribunal chaired by Judge  Kenderdine. In our view the Tribunal accurately stated the law in Foxley Engineering  when it noted (at page 40): 

"The provisions of section 5 (2) (a) (b) (c) may be considered cumulative safeguards which exist in  order to ensure that the land resource is managed in such a way, or at such a rate which enables  people of the community to provide for the various aspects of their social wellbeing and for their  health and safety. They are safeguards which must be met before the Act's purpose is fulfilled."  

The Tribunal, differently composed but still chaired by Judge Kenderdine, continued in a  similar vein in Campbell v. Southland District Council when it held that:  

"Section 5 is not about achieving a balance between benefits occurring from an activity and its  adverse effects … the definition in section 5 (2) requires adverse effects to be avoided, remedied  or mitigated, irrespective of the benefits which may occur…" 

We concur with this summary although, as we have noted above, the reference to  mitigation necessarily implies the use of judgement about what residual effects will be  accepted as being consistent with a sustainable management of the resource in  question. 

Prior to both these cases (12) , the High Court had had the opportunity to examine Part II of  the Act in NZ Rail v. Marlborough District Council(13) . In what has come to be a much- cited passage, Greig J made some important observations about Part II of the Act at  page 19:

 "This part of the Act expresses in ordinary words of wide meaning the overall purpose and  principles of the Act. It is not, I think, a part of the Act which should be subjected to strict rules and  principles of statutory construction which aim to extract a precise and unique meaning from the  words used. There is a deliberate openness about the language, its meanings and its  connotations which I think is intended to allow the application of policy in a general and broad  way." 

The judge's approach to the language of the section is in our view a sound one. But it  should be noted that his comments were made, not in relation to a careful analysis of  section 5, but in relation to the proper interpretation of section 6 (c) within the context of  Part II – a matter to which the Tribunal at first instance had applied itself with some  precision. Greig J did not seek to disturb the Tribunal's findings but made his comments  in response to legal arguments advanced by counsel which he confessed having "some  difficulty in understanding". Notwithstanding the wisdom of the judge's observations on  the appropriate understanding of Part II, they cannot serve as a substitute for detailed  guidance on the proper interpretation of section 5 which had not been the subject of  detailed argument before him. 

Notwithstanding this, Skelton and Memon maintain that the Environment Court's  approach to section 5 began to change "largely through a better understanding of Justice  Greig's observations in NZ Rail. Two decisions of the Environment Court are referred to  in support of this claim. The first was Trio Holdings Ltd v. Marlborough District Council (14) ,  a decision of the court presided over by Judge Kenderdine who had, of course, also  presided over Foxley and Campbell. The Trio case involved a marine farming  application to grow sponges from which anti-cancer compounds were to be extracted.  The application had been refused by the Marlborough District Council, presumably on  the basis of the possible adverse effects. 

In concluding that the effects were not so serious as to be inconsistent with a sustainable  use of the resource, the Court proceeded to set out its application of section 5 (2) to the  facts of the case in this way:

 "We consider that the definition of the sustainable management under s.5(2) for the purposes of  these appeals requires managing the use and development of the coastal marine area and the  protection of the area's natural resources in a way which enables the people of New Zealand and  including the communities of the Marlborough district to provide for their social and economic well- being, and their health and safety, whilst achieving the caveats in s.5(2)(a)(b) and (c). This means  we are required to ensure that the potential of the natural resources in question are sustained  sufficiently to meet the reasonably foreseeable needs of future generations; and we are required to  ensure that the life-supporting capacity of the waters of Waitata Reach and its ecosystems are  safeguarded sufficiently also to protect their life-supporting capacity. All of this is to be achieved  by either avoiding, remedying or mitigating the adverse effects we have identified earlier in this  decision." 

The novel element in the Court's examination of the evidence was its decision to weigh  the benefits of the proposed venture against the possibility of environmental harm. Thus,  the Court noted that  

"…the proposal has the potential to provide for the social and economic well-being of the  communities of the Marlborough Sounds as well as the people of New Zealand and for their health  and safety in terms of section 5(2) of the Act." 

It went on to state that it had difficulty

 "…accepting that the visual impairment from the buoys of the sponge farm on a temporary basis of  a regional area of national character, should prevail over an issue of the national health and  welfare which stems from the implications of this proposal." 

This led the Court to conclude that

 "…the national (and international) significance of the development of the sponge and algal species  in the proposal, if successful, is such that we should ensure that the adverse effects we identified  earlier in the decision, if not avoided altogether, could be mitigated sufficiently to still enable the  promotion of the concept of sustainable management of the site's natural resources to occur." 

This is inconsistent with the Tribunal's approach in Campbell. It appears to involve the  balancing of benefits and adverse effects that had earlier been considered  inappropriate.) The Court made a formal finding that the proposal involved "an issue of  the national health and welfare" and placed it consciously in the balance alongside the  possible environmental harm that might be caused. Three points need to be made.

 (i) Notwithstanding references to Grieg J's findings in NZ Rail on the proper  interpretation of section 6, the Court's approach to section 5 makes no reference to Greig  J's general invocation about the treatment of Part II of the Act. If, as Skelton and Memon  claim, the NZ Rail decision was decisive in this case, that must remain a matter for  conjecture. 

(ii) Notwithstanding the apparently common sense approach to the facts of the case  (balancing possible benefits against the severity of impacts), the approach taken by the  Court represents a radical shift away from the reading of the section we have elaborated  (and that in Campbell). It effectively invites decision-makers to enquire into and pass  judgement on the merits of proposals and weigh those against possible detriments. We  simply note that every proposed resource use can be claimed to be for the social and  economic wellbeing of people and communities. (The very fact that a proposal is  advanced will be evidence of someone's conception of wellbeing being promoted). In  our view, section 5 (2) merely requires decision-makers to allow people to go about their  welfare-enhancing activities, not enquire into their merits. 

(iii) Despite our disagreement with the decision to enquire into benefits and weigh them  against the potential harm, we submit that the Court did not need to do this to justify its  finding, on the facts, that the adverse effects involved were not so major as to refuse the  proposal. The Court's reasoning on this point was robust:

 "The idea of mitigation is to lessen the rigour or the severity of effects. We have concluded that  the inclusion of the word in section 5(2)(c) of the Act contemplates that some adverse effects from  developments such as those we have now ascertained may be considered acceptable, no matter  what attributes the sight might have."  

In short, the Court had all the flexibility it needed to conclude that, with sponge farming  likely to generate considerably less damage than the widespread mussel farming in the  region, and appropriate mitigation measures being available, the application should  proceed without having to pronounce on the potential benefits of the project. 

The second case referred to by Skelton and Memon was North Shore City v. Auckland  Regional Council (Okura) (15) which concerned the exclusion of the Okura catchment from  the urban limits of North Shore city. This is the case in which the phrase "an overall  broad judgement" makes its appearance. 

The Court, on this occasion presided over by Judge Sheppard, commenced by  recognising the different functions of the two parts of section 5(2): 

"…the case turns on whether or not urbanisation would meet the values stated in those  paragraphs [i.e. s.5(2)(a)(b) and (c)], not on whether it would enable people to provide for their  wellbeing." 

The Court then proceeded to elaborate on this determination: 

"That is not to suggest that the two main elements of section 5(2) can always be separated  entirely. A way of managing of natural and physical resources which fails to sustain, to safeguard,  and to avoid, mitigate, or remedy the matters stated in paragraphs (a), (b) and (c) thereby also  restricts the extent to which that way of managing the resources enables a community to provide  for its wellbeing. [In our view that was precisely the aim of the Act] Where (as in this case) there  are a number of issues to be considered in deciding whether a proposal would promote the  sustainable management of natural and physical resources as defined, it is our understanding that  the duty entrusted to those making decisions under the Act cannot be performed by simply  deciding that on a single issue one or more of the goals in paragraphs (a), (b) and (c) is not  attained." 

Then, after quoting Greig J's comments in the NZ Rail case, the Court continued: 

 "We have considered in the light of those remarks the method to be used in applying section 5 to a  case where on some issues a proposal is found to promote one or more of the aspects of  sustainable management, and on others is found not to attain, or to attain fully, one or more of the  aspects described in paragraphs (a), (b) and (c). To conclude that the latter necessarily overrides  the former, with no judgement of scale or proportion, would be to subject section 5(2) to the strict  rules and proposal of statutory construction which are not applicable to the broad description of the  statutory purpose. To do so would not allow room for exercise of the kinds of judgement by  decision-makers (including this Court – formerly the Planning Tribunal) alluded to in the NZ Rail  case." 

In our view this is a problematic formulation. Section 5 is not about 'proposals' that  promote "aspects of sustainable management". It is about the basis on which all  resource users must proceed. As we have noted in respect of the Trio Holdings  decision, all proposals will be able to be represented as promoting some or all of the  various species of well-being outlined in section 5(2). They enjoy no uniquely agreed  form. But that is quite a different matter from whether or not they are judged to be  sustainable, something the legislation does spell out. The sustainability of a proposal  can only be asserted if the use of resources can be undertaken in a way that is  consistent with paragraphs (a) – (c).  

The Court's concern that any other interpretation might result in a determination "with no  judgement of scale or proportion" is not justified. As we have explained above (and as  the Court clearly demonstrated in Trio Holdings) there is significant flexibility available to  decision-makers within the ordinary meaning of the language used in section 5. We  would expect an objection about the matters covered in paragraphs (a), (b) and (c)  lacking "any judgement of scale or proportion" to be rejected.  

It was the further (in our view unnecessary) reasoning in Trio Holdings that the Court  then went on to expand on in these terms: 

 "Application of section 5 in the way described in that passage from the Trio Holdings decision  involves consideration of both main elements of section 5. The method calls for consideration of  the aspects in which a proposal would represent management of natural and physical resources in  a way or at a rate which enables people and communities to provide for their social, economic and  cultural wellbeing, health and safety. It also requires consideration of the respects in which it  would or would not meet the goals described in paragraphs (a), (b) and (c). 

The method of applying section 5 then involves an overall broad judgement of whether a proposal  would promote the sustainable management of natural and physical resources. That recognises  that the Act has a single purpose. Such a judgement allows for comparison of conflicting  considerations and the scale or degree of them, and their relative significance or proportion in the  final outcome." 

We have already elaborated our difficulties with an approach that considers the two  halves of section 5 (2) imposing similar requirements. We simply note here, that no such  approach is needed to enable decision-makers to recognise the Act as having a single  purpose. There is some irony, indeed, that – in insisting on the need to recognise a  single purpose – the Court should have made footnoted reference to the report of the  Board of Enquiry into the proposed New Zealand Coastal Policy Statement. As we have  noted above, that statement of the law had no difficulty in finding a single purpose  consistent with the reading of section 5 we have advanced. Further, we would submit  that the comparison of conflicting considerations the Court correctly advocates can be  achieved perfectly adequately by reference to paragraphs (a) to (c) with the flexibility that  the option of mitigation provides. 

Finally, we note that the decisive finding in the North Shore case – that urbanisation of  the Okura catchment would have serious adverse effects on its natural values, thereby  causing the Court to exclude it from the urban limits – was a judgement reached squarely  on an assessment of the matters to be secured in paragraphs (a) to (c). As in the Trio  Holdings case, a weighing of these effects with the purported benefits of the proposal  was not necessary to arrive at the conclusion the Court reached. 

 The way ahead 

It might be argued that if the Courts are making sense of the section despite a  divergence of views about the proper reading of section 5, matters should be allowed to  rest. The problem with this is the on-going uncertainty that the section is generating,  particularly in the absence of an authoritative determination by a court of higher  jurisdiction applying itself directly to section 5. We are inclined to the view that an  amendment to the section is appropriate.(16)  If this were to occur, then Parliament would  once again have to address itself to the policy intention of the Act. In our view, the  "clearer policy direction" which Skelton and Memon consider the Courts have provided is  in fact the substitution of quite a different policy from that expressed by Parliament in  1991 and described in some detail in the article previously referred to in Waikato Law  Review (1995) Vol 3, pp 17-55.  

If Parliament were to continue to support a code that addressed itself to the effects of  resource use (widely conceived to include, in addition to familiar biophysical concerns,  things like amenity and cultural values), then in our view all that needs to be done is an  amendment along the lines of that proposed (and thus far rejected) by the Select  Committee on the current Resource Management Amendment Bill. If on the other hand  Parliament wanted to give no particular priority to environmental effects (broadly defined)  but wanted a formula that allowed decision-makers on a case by case basis to make an  overall judgement that weighed all benefits and negative effects of resource use, then  more radical surgery would be required. 

Something along the lines of the old Town & Country Planning Act might provide a  model, appropriately updated to take account of contemporary ideas about sustainable  development in which ecological, economic, social and cultural values are all weighed in  the balance. In the absence of any agreed determinate content to such a notion, a re- drafting along these lines would effectively hand policy control over to communities (and  ultimately the courts) in any particular case, constrained by any boundary conditions  imposed by plans, rules and standards.  

Such a clause would effectively empty section 5 of any clear policy content and make  almost any trade-offs possible. This would sit comfortably with Skelton and Memon's  view that "sustainable management as the central purpose of an environmental conflict- resolving statute, will always be contested in the context of a resurgent private property  owning political economy". Whether this would be an attractive outcome for those  seeking some measure of certainty in resource allocation and use matters is unclear.  

In our view it would certainly represent something of a retreat from what was, as  originally conceived, a high point in legislative protection for environmental values in New  Zealand. Resource users might welcome the prospect of being able discount significant  biophysical values if they were able to demonstrate major economic and social  dividends. On the other hand, they could find themselves faced with social and cultural  arguments far more difficult to satisfy than simple biophysical parameters.  

The formula adopted in the 1991 legislation represented an attempt to satisfy two  sometimes conflicting interests: the demand for some level of environmental integrity that  could not be traded away (on the part of many environmental interests) and the demand  for freedom to operate with certainty subject to whatever environmental standards were  spelt out. To remove this high-level ethical trade-off from the face of the statute would  yield both flexibility and uncertainty by handing less constrained powers to decision- makers. The appropriate way forward will be a matter of political choice. 

Some observations on the role of officials 

To complete our critique of Skelton and Memon's analysis, there remains the question of  the appropriate role of officials (and elected officers) in seeking to interpret statutory  instruments. Skelton and Memon are particularly exercised on this point and it is worth  quoting their views in full:

 "…in New Zealand, it is for the Courts to decide what the law is. This is not a function of the  Executive. The constitutional model is that Parliament makes the law, the Executive government  applies and enforces the law and the Courts decide what the law is when determining disputes  between parties to litigation including the Crown. One of the difficulties that has arisen with the  implementation of the RMA, and in particular with section 5, is that practitioners including lawyers,  planners and other environmental professionals as well as elected councillors have been  pressured by the former Minister for the Environment and his departmental officials to take a  particular view about the meaning of sustainable management that (as we will demonstrate) does  not accord with the generally accepted view of the Courts."  

This leads them to conclude that the views of elected and professional local body staff  were influenced in a way that "may have had some bearing on the quality of the first  generation of district and regional plans."  

In the absence of any elaboration of just what 'pressure' Skelton and Memon have in  mind, our response to this point must be tentative. We would offer the following brief  observations. While the Courts, in our constitutional arrangements, must be the final  arbiters of the legal meaning to be accorded to statutes, there is no convention that those  charged with administering legislation should in some way refrain from expressing a view  on its meaning. It would indeed be strange if those responsible for putting law on the  statute book were unable to express a clear view of the policy intentions behind the law.  

That is what happened in the case of the Resource Management Act as with all new  acts. Officials proceeded to administer the Act on the basis of their clear understanding  of the Act they had been party to drafting. We think it would be remarkable if, in  submissions to Councils on proposed plans, they had done anything other than advance  their understanding of the policy premises contained within the Act. The fact that Skelton  and Memon do not share that analysis does not make the actions of officials acting in  good faith amount to 'pressure'. 

With respect to the Courts, the short-hand explanation of how section 5 differed from its  legislative antecedents offered in the Minister's third reading speech on the Bill (greatly  amplified in the Stace Hammond Grace lecture on which the first part of this article has in  part drawn), was in part an acknowledgement of the difficulties that arise when  Parliament seeks to enshrine policy principles on the face of the statute book. (Whether  such clauses are wise in the first place is another matter again). Here again, the position  is clear. The Courts will always be wary of attempts by ministers to plant particular  interpretations of provisions. On the other hand, a variety of material including  parliamentary statements, may provide useful background to inform the Courts'  deliberations in the face of ambiguity. (17)  Should that ambiguity prove fatal – or the  determination of the Courts be unpalatable to Parliament – then amendment is of course  the appropriate way forward. 

We simply note that provisions such as section 5, given their generality and importance,  invite the sort of debate that is reflected in this paper. That is probably unavoidable. We  would, however, urge caution in hasty recourse to ideological analysis of statutory  provisions. Skelton and Memon's identification of 'the stamp of neo-liberal rhetoric' on  the face of section 5 is a case in point. Rhetoric has no place in the statute book (and  would, in any case, be beyond the interpretative reach of even the most liberal canons of  statutory construction).  

In our view, a better understanding of the policy weight of section 5 is found in the  discussion of Part II of the Act by Barker J in Falkner v. Gisborne District Council (18)  in  which he described the provision as 'paramount' in a statutory schema structured around  "a fundamental purpose and various principles which function as substantive guidance to  decision makers at a localised level." Describing the Act as 'comprehensive' in nature  and 'reformist' in its philosophy, the judge described the whole thrust of the regime as  being about "the regulation and control of the use of land, sea and air. There is nothing  ambiguous or equivocal about this."  

In confirming that it over-rode common law property rights to those resources, the judge  described a far-reaching statute that has little in common with 'neo-liberal' theories  (which, as we understand them, centre on dispute resolution through private negotiation  and common law remedies). The question to be settled – by Parliament if it is not to  abdicate its role to the Courts – is how far that assertion of regulatory authority should  extend. In our view, the understanding of that matter has changed since the Resource  Management Act's enactment in 1991 and recommends itself for serious review. 

1.  Purpose & Principle in the Resource Management Act, Waikato Law Review (1995) Vol 3, pp 17-55.  

2. Ibid, see pages 28-30 

3. Report and Recommendations of the Review Group on the RM Bill, 1991, p.6 

4. But see below discussion of the definition of environment which does introduce a wider reach. 

5. Report of the Review Group, p.8 par 4.3 

6. Ibid. p 22 

7. In a Memorandum re the Inquiry into the New Zealand Coastal Policy Statement NZCPS 3NZPTD 109 

8. Ministry for the Environment, Report on the Resource Management Amendment Bill, 15 September 2000, p23 

9. Countdown(Northlands) Ltd v. Ashburton District Council [1996] NZRMA 337; Marlborough Ridge Ltd v.  Marlborough District Council [1998] NZRMA 73; Baker Boys v. Christchurch City Council [1998] NZRMA 433 

10. Foxley Engineering Limited v Wellington City Council, W 12/94 

11. L A Campbell and Others v Southland Regional Council, W 114/94 

12. Contrary to the sequence suggest by Skelton and Memon 

13. [1994] NZRMA 70 

14. [1997] NZRMA 97 

15. [1997] NZRMA 59 

16. Skelton & Memon are not strictly correct in claiming that "successive governments have lacked the political will to  initiate any legislative changes to this section". The proposed change to the definition of the environment in section  2, which we discuss in this paper, flowed directly from concerns about the potential uncertainty that it extended to  section 5. 

17. An important review of the approach of the Courts in New Zealand to the interpretation of statutes, including the  extent to which they will have recourse to parliamentary material, may be found in The Changing Approach to the  Interpretation of Statutes by J F Burrows [as yet unpublished; due to be published in the VUWLR]

18. [1995]  NZLR 622 

 

 

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