COVID-19 Agent for RMA Change
“What Difference a Day Makes” is a vintage 1950s song. It has many modern remakes. The song is about the positive difference the passing of a day can make. So just imagine what a positive difference a COVID - 19 lockdown for a month, and more, could make to our RMA processes. This short article explores some positive possibilities for change arising from our COVID experiences.
At times of National crisis and emergency our system of Government allows, and indeed requires, the Government of the day to act differently. Essentially during a crisis Government is authorised to intervene in our ordinary daily lives and make urgent rule changes proportionate to the risk the particular crisis presents. Generally those changes are restricted to the duration of the crisis. Once the crisis resolves, life supposedly returns to normal.
However experiences like the Canterbury Earthquakes show us we don’t return to normal as normal was prior to the crisis. Sure, Government rules return to near normal even if a transition over time is involved. But change is inevitable.
Scope of Change
Usually the crisis is not just one event. The crisis itself causes or leads to related serious events also needing Government interventions. So more rule changes to respond to those related events. Obvious examples of further and related interventions were those needed to resuscitate the Canterbury regional economy following the Canterbury Earthquakes.
With the COVID – 19 lockdown related interventions such as placing the national economy on immediate life support then rapidly transitioning to a healthy economy is a critically important event closely related to COVID.
So this cascade of interventions brings about even more change. The magnitude and scope of those changes prevents, at least in the short to intermediate term, a return to the normal we knew before the crisis.
Another cause or reason for change is the experience we gain in responding to a crisis. Doing things differently, while at times difficult, provides an opportunity to question and query what we did and why we did it that way before the crisis. Change also creates the opportunities for new experiences. So positive possibilities for change emerge.
Change in the RMA World
Starting with the Environment Court all but urgent proceedings, those where serious irreparable harm to the environment was at issue, were adjourned, put on hold.
However the Courts generally are encouraging parties to constructively engage to reach consensus on procedural matters and on the matters in issue between them. Courts are encouraging parties to file consent memorandum enabling as much progress as possible to be made during COVID without the need for a Court hearing.
If parties respond to this encouragement, then even if a hearing is still required after COVID then the issues between them are likely to be much more limited. A positive benefit for all will be time and cost savings. So adopting this as the new normal after COVID would be a real positive.
Courts are places where hard copy paper users abound. The Environment Court or probably more correctly those who use it are heavy paper uses. So during COVID the Court is relaxing its approach allowing email based filing of documents. While some Environment Courts utilise computer based documents rather than hard copy think of the benefits if all Environment Courts used electronic rather than hard copy. Maybe this option might grow into one of those positive possibilities for change.
The Ministry for the Environment (MFE) has issued guidance notes to Councils. Those notes strongly signally because the Justice system has very limited means of providing public access to Courts Council should think carefully before taking decision to prosecute during the crisis.
MFE supports this signal by drawing on the Solicitor General’s prosecutions guidance in particular referencing the matter of the public interest. MFE signal the COVID crisis is likely to be a relevant public interest matter which could best be served by delaying prosecution if time limitations allow or considering alternative solutions to prosecutions.
Restorative justice options provide for appropriate and at time innovative alternatives to prosecutions. Those options can provide sanctions and deterrence as well as meaningful on the ground high value remedies.
So given COVID will be with us for a while maybe and hopefully we will see an upswing in deployment of modified restorative justice options exercised by Councils and willing offenders. This presents as a positive possibility for further change.
Dealing with resource consents is a key activity for all Councils. Processing resource consents in a timely way assists economic wellbeing. So while COVID is with us ensuring processing continues and at a reasonable pace is vital to recovery.
Processing non notified consents remotely, while a change from the normal is not too difficult. But notified hearings where submitters and applicants wish and are entitled to be heard cannot occur in person during Alert Level 4 of COVID.
The RMA requires a hearing to follow processes and procedures that ensure natural justice outcomes. In other words a hearing that is appropriate and fair to all participants. That hearing process involves all participants being able to be present throughout, if they wish, to hear what others say and to be heard themselves.
Sometimes in hearings there is competing evidence to be weighed and assessed. Seeing and hearing witness in person to help assess creditability and reliability of evidence can be critical in the outcome. Being able to question, providing an opportunity for parties to caucus and interact provides opportunity for resolution of some issues.
There are available many audio visual link technologies and platforms that could be utilised to replace in person hearings. Web based platforms such as Zoom and Microsoft Teams are reasonably readily available. Of course ensuring participants have access to such platform options and are prepared to use them in place of a hearing in person would be critical, before using these alternatives.
The positives from using the likes of Zoom and Teams in place of in person hearings are significant. The cost savings in travel time for experts lawyers, Commissioners, accommodation for the same, venue hire, catering would all be significant.
Coupled with well-directed questions from hearing commissioners to participants circulated before a Zoom or Teams based hearing could be both effective and efficient and help test credibility and reliability issues. Both platforms are understood to have recording capability which would be invaluable for decision writing.
So if contested hearings are conducted during COVID using Zoom and/or Teams or other programmes and are successful then subject to participant accessibility to use such programmes serious consideration of adopting this approach in our post COVID RMA world would be a positive possibility.
Site visits by reporting officers and hearing commissioners during the processing of resource consents are not allowed during Alert level 4. Lower alert levels may also not allow them.
So alternatives such as recent Google maps, satellite imagery, photos from the applicant, a video call from the applicant while the applicant undertakes a site walk over are all options.
Another is to use a drone, subject to compliance with civil aviation rules. Video footage from a drone flight, where agreed features, view points and the likes are captured and replayed to participants could be a very useful option.
Site visits particularly for larger hearings are resource hungry. A panel of Commissioners can be expensive in terms of time transport and accommodation. Perhaps moving forward after COVID we could utilise all of these options in place of site visits saving time and money. So another positive possibility to consider.
So we have had much more than a day to reflect on positive possibilities that will emerge from our crisis experience. During the COVID crisis many more positive possibilities than we have discussed above will surface. The trick to it will be to adopt the best of those positive possibilities before slipping back into our old pre COVID ways.
If you have any questions about the matters raised in this article please get in touch with one of the Adderley Head team.
Disclaimer: This is a brief summary for information purposes only and is not legal advice.
Posted on Wednesday 22nd April, 2020 at 11:13 am