Environmental disputes resolution and the resource consent process of the Resource Management Act 1991 (RMA)

Abstract

This report investigates conflict management in the council resource consent process to establish the use of Environmental Disputes Resolution (EDR) techniques. EDR techniques during the development of the Resource Management Act 1991 (RMA) were expected to play an important part in managing conflict and participation in the resource consent process. This report shows that EDR techniques are generally not used to the extent expected for managing conflict and participation within the consent process. Even though there is a formal provision for the use of EDR techniques through section 99 'pre-hearing meetings' this report presents evidence to show that the use of pre-hearing meetings is limited. In Canterbury the use of pre-hearing meetings varied in frequency in the last year between zero and twelve, with most councils stating frequency between two and three.

It was established that barriers to the practice of EDR techniques in the council resource consent process were, that EDR techniques had not been placed within a supportive decision making environment. EDR techniques have not been integrated successfully into the participatory process and the management of conflict in the resource consent process. The current EDR practice undertaken at pre-hearing meetings also has some problems with inconsistent decision making criteria, lack of guidelines for council staff and the public on pre-hearing meetings, and there are problems with who chairs meetings and the techniques they use. This report however, identified that there was informal practice occurring for managing conflict throughout the consent process, and there was potential for EDR techniques to build upon this practice. It is therefore recommended that the Ministry for the Environment and Regional, City, District, or Unitary councils undertake the following strategies to progress the use of EDR practice in the council resource consent process.

The Ministry for the Environment: 1. Continues to supply local government with criteria and guidance for holding 'prehearing meetings'.

2. Implements an education program for councils on EDR techniques negotiation, facilitation, mediation, outlining skills and processes. This education should be structuring so benefits of these skills can be applied throughout the resource consent process.

3. Investigates the use and potential for EDR techniques through the perspective of lawyers, community groups, non governmental organisations (NGOs), advisory service centers, individuals, etc. through a survey (see appendix six "Conflict Management Survey" as an example). The aim of the survey should be to establish how these groups can be encouraged to use EDR techniques for managing conflict more effectively.

4. Considers an amendment to the RMA under Part IV “Functions, Powers, and Duties of Central and Local Government" in which "Powers and Duties in Relation to Hearings" is amended to “Powers and Duties in Relation to Resource Consents" Where an additional section before Section 39 "Hearings to be public and without unnecessary formality" could read as: Consent process to encourage informal conflict management and resolution- (1) Where a local authority, a consent authority, or a person given authority to manage the consent process, encourages the use of environmental disputes resolution techniques of negotiation, facilitation, mediation, between parties with or without the consent authorities assistance during the consent process; and (2) If- (a) Clarification; (b) Information; or (c) Resolution - is achieved during the consent process from environmental disputes resolution practice, the consent authority has the discretion to grant consents in accordance with Part VI. Otherwise information shall to be used as part of further additional environmental dispute resolution or conflict management processes (including hearings) to assist in further management of conflict.

Regional, City, District, and Unitary Councils:

1. Increase their knowledge about EDR techniques by attending courses and education programs on negotiation, facilitation, and mediation. The use of this knowledge to then encourage conflict management between applicants and submitters through out the consent process.

2. Develop policies on the use of EDR negotiation, facilitation, and mediation techniques for managing conflict and resolving disputes. Recognising that not all staff, or representatives of the community will have the personality and skills to undertake successful EDR practice. Therefore, policies should address the skills needed to use EDR techniques. Policies should not solely concentrate on the use of pre-hearing meetings, but address conflict management throughout the resource consent process.

3. Produce information booklets for the public on the use of EDR negotiation, facilitation, and mediation techniques during pre-application and pre-hearing meetings stages of the consent process. These should be developed once education courses are undertaken, and council policies are created. These booklets should be available at council offices, and distributed to the lawyers, environmental consultants, community groups, councillors, members of parliament, community service and advice centers, non governmental organisations, and tangata whenua within the councils jurisdiction. Booklets should also be distributed along with inquiry information about the resource consent process to applicants and submitters, and staff should direct interested parties to the availability of these booklets in telephone conversations with the public.