Do you have strong views as to whether money should change hands between applicants and submitters in the context of an application for resource consent under the RMA?
Karerearea, New Zealand Falcon
Last year controversy arose in relation to a reported agreement between the Department of Conservation and Meridian Energy that would see Meridian pay DoC $175,000, if Meridian’s proposed Project Hayes wind farm proceeded. It was reported that Meridian had agreed to pay DoC so it could improve public access to the Rock and Pillar Conservation Area and undertake research into the eastern falcon.
The issue is back in the news today in relation to a resource consent application by Meridian Energy to construct an 80-metre high dam on the Mokihinui River, West Coast, South Island. It is reported that local West Coast iwi Ngati Waewae has agreed to accept money from Meridian Energy for advice on the effects of a $300 million hydro dam. A second payment "for mitigation" for the mauri-ora - or life force - of the river once the dam is built has also been agreed upon. It is reported that the dam will wipe out 330ha of native rain forest 3km upstream of the township Seddonville and create a 14km-long lake. To read more go to:
Side agreements under the RMA are lawful, justified often upon the ground that in certain circumstances they provide appropriate mitigation/compensation for effects created by development. If you are interested in further investigating the legitimacy and application of these agreements a useful journal article is:K Palmer “Side Agreements under the RMA: Legitimacy and practice” (2009) 8 BRMB 18.
There may well be situations where such agreements are an effective tool, however many of us remain sceptical and uncertain as to the nature and effect of such agreements. Can money adequately compensate for the loss of mauri or any other cultural or spiritual form of loss? If it is the environment which suffers the loss, then to whom should payment be directed? Can a payment in the present adequately serve those generations to come in the future? Are lower socio economic areas at greater risk of target due to cash inducements? What happens if all opposition is effectively “purchased” so that no other local voices remain to oppose? Who will remain to defend the environment?
One thing is clear; if these agreements are to be made then they must be made openly and with the opportunity to scrutinise. Where submissions do not arise on a resource consent, greater opportunities are presented to enable the application to be processed as non-notified. Without knowledge of existing side agreements there is the potential for impacts upon the environment to be overlooked. In situations where the stakes are high and traditional defenders of the environment such as DoC and iwi are targeted by an applicant, it becomes even more important that the general public is made aware of all mechanisms proposed to mitigate harm to the environment.
It could be argued that traditional defenders have a choice as whether to agree to a payment and that in doing so they should not be overlooking environmental impacts. This is particularly true in DoC's case as they supposedly represent the public interest.
However, with DoC's recent change in strategic direction (which seems to have been kept on the lowdown) there is now a lot of pressure on conservation planners to negotiate rather than oppose or appeal resource consent applications.
I agree that the process needs to be more transparent to the public, especially if government agencies are involved. This could be done by prescribing that all consents involving side agreements are to be notified - although this does not preclude payments being made behind closed doors (and I have heard that this already happens).
Kirsten,
A thoughtful blogbak
Much appreciated!
I also saw this article in the media and the inference that perhaps the payment(s) had something to do with the fact that Ngati Waewae was engaged in the process of building a new marae at an estimated cost of $3m.
Regarding your question ”Can money adequately compensate for the loss of mauri or any other cultural or spiritual form of loss?” this is a very interesting point and one only has to go back to the ‘Think Big’ era of the 1970s to find examples where these matters were completely ignored and clearly the RMA was returned some balance to the argument. So, in answer to your question – I say ‘no’ but there is now at least some room for consultation, discussion and compromise.
In my opinion, if it is the environment which suffers the loss, then it is the local community to which any payment should be directed and they should be responsible for on-going risk management and negotiation with the applicant – effectively they are the last ones standing in defence of the environment. The problem of course is obtaining consensus within the local community where apathy can be a factor.
I believe it is mandatory on major projects for applicants to work with local communities but honesty, integrity and trust on both sides is required for this to work. There will always be groups within the community which accuse applicants of ‘buying’ consents but again it’s for the community to be the final judge.