By Paul Melville, Feds general manager policy and advocacy
In the past few weeks, Environment Court proceedings got underway on what is known as Waikato Plan Change 1, or “PC1” for short.
The PC1 process is now in its eleventh year and won’t be completed for some time yet. The hearings will take place in Auckland and Hamilton and are scheduled to take six weeks.
Federated Farmers have engaged in this process on behalf of farmers. This is expensive, but we need to be in there to make sure farmers get the best outcome possible.
However, this doesn’t mean we support the current RMA processes or the need to hammer out complex policy in an Environment Court.
I travelled to Hamilton to observe some of the proceedings earlier this month. As a bit of an outsider to RMA processes, I was interested to observe that on my count in the Environment Court that day sat nine legal counsellors, many of whom were barristers.
These lawyers cross-examined scientists, DOC officials, expert planners and farmers amongst others. Presiding over the proceedings were Environment Court judges and Freshwater Commissioners.
Discussions talked about where farmers should fence, how far back fences should be, what types of farms will need a resource consent, and what the conditions of those consents should be.
At the end of the process the judges will make a decision, and that decision will effectively become law for Waikato farmers.
The impact of the decision these judges make will be far-reaching. The Waikato region could see less food production, will have less jobs, and less economic development. Many family farms may become unviable.
As someone who is more used to a Parliamentary process, the whole thing seems broken to me.
Why is the regional council having to hire a barrister to argue the merits of its plan? Why is the final decision being made by a judge, unaccountable to the people of the Waikato, rather than a more democratic process?
As I sat there, I tried to imagine this process playing out for a central government.
Imagine if an incoming government wanted to implement a policy such as a tax cut, but before they could, they had to spend 10 years arguing the case in front of a judge? Would central government put up with such a situation? Would the public?
I’m used a system where government consults on a policy proposal, organisations like Federated Farmers engage with officials and Members of Parliament, and, at the end of the process, elected representatives make decisions that balance the different trade-offs at play.
If we aren’t happy, we don’t hire a barrister, we undertake analysis, engage the public, sometimes via the media, and try to win the debate through the court of public opinion. It’s not a perfect system – far from it. But it’s the best we’ve got.
In fact, the beauty of this democratic system isn’t that it always gets things right, but that it’s usually quick to fix its mistakes. Where a policy isn’t meeting the community’s needs, you will see the electorate vote out any politician who refuses to change it.
Once the judges make the final decisions on PC1 it will effectively become law for Waikato farmers. The Environment Court is the only court that can amend secondary legislation (regional plans) themselves rather than interpret them or refer them back to the rule-making body.
For example, the High Court could rule that a law is contrary to the Bill of Rights, but rather than change the law, they would refer the law back to the decision maker.
Once the Environment Court amends the Regional Plan, it will be difficult for Waikato locals to reverse the decision through the ballot box. This troubles me deeply. Freshwater is inherently a local issue with local trade-offs. We all want clean water, but we all also want a vibrant economy, thriving farming families, and we don’t want to pay too much in rates for the infrastructure required to manage urban storm and wastewater.
The benefits of improving water quality and the costs achieving this will be felt most by those living near the streams, lakes, and rivers we are talking about.
Yet, sitting in the court room I saw little that represented a democratic process. The decisions were all being influenced by people who had flown in from Wellington or driven down from Auckland. The council was left defending its plan against government departments and special interest groups.
I’m sure if I walked out of the room at the Distinction Hotel and talked to anyone out on the street, they wouldn’t even know what PC1 was or what the implications of the decisions would be – let alone how it would affect their community.
I was left with the impression that the whole system was completely broken.
Federated Farmers is of the view that New Zealand desperately needs meaningful RMA reform. RMA reform needs to re-empower local communities to be engaged in, and make the decisions, that impact them most.
This will save the need for an army of barristers and judges to be paid to preside over long, closed-shop processes. But it will also empower communities to decide for themselves what is best for their rivers, their farms, and their towns. Only by putting locals at the heart of the decision-making process can we ensure decision makers balance the issues in a way that enhances local wellbeing.
It is encouraging there is a lot of political momentum for RMA reform. It important that a new RMA properly address the litigious nature of RMA processes. Federated Farmers aims to release our proposal for how a new RMA could be designed shortly so that politicians can move quickly to develop a workable alternative to our current broken system.
Federated Farmers, New Zealand’s leading independent rural advocacy organisation, has established a news and insights partnership with AgriHQ, the country’s leading rural publisher, to give the farmers of New Zealand a more informed, united and stronger voice. Feds news and commentary appears each week in its own section of the Farmers Weekly print edition and online.