The role of the expert witness in environmental conflict resolution under the RMA 1991: A dissertation submitted in partial fulfilment of the requirements for the Degree of Master Applied Science (Environmental Management) at Lincoln University

Abstract

The aim of this research is to examine the role of expert witnesses under the Resource Management Act 1991 (RMA). The RMA is the statute that governs environmental conflict resolution through the local government hearing process and the Environment Court hearing process. Expert witnesses are engaged by the parties at the hearings to provide information to the decision makers.

A review of recent literature on the role of expert witnesses identifies that environmental conflicts are complex with a range of people bringing diverse values. This review explores the reliance on expertise in environmental conflict resolution. Two major themes are identified as important in environmental conflict resolution: the independence of expert witnesses and, the management of uncertainties by expert witnesses.

A two pronged approach was adopted for this study. A qualitative approach, based on in­depth interviews, is used to elicit the perceptions of a small group of environmental professionals relating to the role of expert witnesses in the resource management consent process under the RMA. A case study of the Lynton Dairy Limited application for a resource consent to take groundwater is used to critically examine the role of expert witnesses in the consent process.

Interview respondents identified that there are strengths and weaknesses at both the local government level and the Environment Court level. The local government consent process allows for key issues to be identified, but expert witnesses can sometimes provide evidence outside their expertise. The Environment Court ensures expert witnesses only present evidence within their expertise and Environment Court decision makers can only use evidence presented by expert witnesses in decisions.

Interview respondents identified that the role of expert witnesses is to provide sound, independent, objective evidence to decision makers. Problems with independence arise because the expert witness is engaged and paid by either the applicant or a party opposed to the application. Issues arise for the expert witnesses to present sound information when there are uncertainties involved with respect to the current state of, or the effect that an activity will have on, natural resources. Independence and uncertainty have the potential to affect the quality of decisions that are made at both conflict resolution levels.

The case study examined a controversial application for a consent to take groundwater where the local government hearing panel chose to decline the application. On appeal to the Environment Court, this application was approved. This case highlights the negative implications of how uncertainties are managed in conflict resolution under the RMA. This case study also showed the extent that expert witnesses can influence the decision through the adversarial decision making processes of the RMA.

Suggestions for improvements to the role of expert witnesses include accredited training programs that ensure expert witnesses are aware of their duty to the court and, use of expert witnesses meeting to discuss the issues of a case in the absence of lawyers or interested parties.