Consultation for resource consents
Principles of consultation
The Environment Court has 'synthesised ' a statement of principles for consultation from many earlier decisions. This is quoted in paragraph 104 of the case Horahora Marae v Minister of Corrections A085/2004, which specifically cites the earlier decision in the Land Air Water Association and Others v Waikato Regional Council A110/2001 (paragraph 453).
The Environment Court 's statement of principles for consultation are:
- The nature and object of consultation must be related to the circumstances.
- Adequate information of the proposals is to be given in a timely manner so that those consulted know what is proposed.
- Those consulted must be given a reasonable opportunity to state their views.
- While those consulted cannot be forced to state their views, they cannot complain, if having had both time and opportunity, they for any reason fail to avail themselves of the opportunity.
- Consultation is never to be treated perfunctorily or as a mere formality.
- The parties are to approach consultation with an open mind.
- Consultation is an intermediate situation involving meaningful discussions and does not necessarily involve resolution by agreement.
- Neither party is entitled to make demands.
- There is no universal requirement as to form or duration.
- The whole process is to be underlain by fairness.
These principles can be further drawn on from other decisions of the Court to include that:
- there is an overall duty on the part of both parties to act reasonably and in good faith, because consultation is not a one-sided affair
- consultation has overlapping requirements of reasonableness, fairness, open mind, freedom from demands, and the need to avail oneself of the consultation opportunity
- consultation is as much about listening as it is about imparting information, and is more about the quality of information imparted than it is about the quantity
- consultation is not an end or an obligation in itself, it is just one possible method of gathering views from those affected so that they can be taken account of in the decision-making process. The primary obligation is to ensure that the decision-maker has sufficient material before it to make the necessary decisions about Part 2 issues.
Parties who might be consulted
Relevant parties who may potentially be consulted include:
- regional council, if an application is to be made to the district council
- district councils, if an application is to be made to a regional council
- local community boards of district councils where they exist
- tangata whenua group(s)
- residents ' associations/ community groups/ business associations/ recreational associations or clubs
- national and local environmental groups
- individual landowners and tenants
- the local office of the Regional Fish and Game Council
- the local conservancy of the Department of Conservation
- New Zealand Historic Places Trust
- Ministry of Agriculture and Forestry
- New Zealand Transport Agency
- Public Health Services
- service authorities or utility providers, i.e. power companies, airports, port companies, telecommunications companies
- resource user groups.
Types of activities that may be of interest to tangata whenua
The following types of activity may be of concern or interest to tangata whenua:
- disturbance or modification of traditional and ancestral sites, such as battle sites, particularly in greenfield areas
- any activities near marae or kainga (settlement)
- activities near or on urupa (burial ground) (such as house building, earthworks etc.)
- discharges (particularly of waste) to water
- other activities potentially compromising the purity or mauri (spirit / life-force) of waters (inland, coastal or offshore)
- any activities potentially compromising the integrity of or access to food resources (mahinga kai) and food gathering areas such as dredging near shellfish beds, discharges into harbours, the placement of structures or subdivision in the coastal marine area, and discharges to air
- any activities potentially compromising access to natural resources, such as timber, stones, flax, and fish
- any activities that disturb indigenous flora and fauna, such as the clearance of bush or damming or diversion of waterways.
Matters to be included in a standard letter from the council to affected, interested and consulted parties
The following matters should be covered in a letter:
- Confirm whether the application is lodged. If so, state where in the process the application is, eg, "a decision has yet to be made under s95A-F of the RMA on whether the application will be publicly notified, limited notified or non-notified".
- Ensure that you express technical terms in plain English.
- Confirm that their letter (or email or record of the phone call) and this response will be on the site file so that the reporting planner is aware of their concerns.
- Provide a description of the consent processes, including the determination of affected persons and who has responsibility for decisions.
- If the applicant has approached them, explain why they have been approached and the constructive purpose of consultation; explain also that this does not automatically mean their written approval will be required, and that they do not have the right to veto the application.
- State how they can find out more information if or when the application is lodged.
