A fund that helped community groups wage environmental battles in court has been axed amid other moves to restrict public input.
Many millions of dollars were taken from environmental activities in the recent Budget to “align with the government’s priorities”. There were cuts to waste minimisation, climate change activities, freshwater health initiatives, environmental data-gathering, indigenous biodiversity enhancement and “partnerships and engagement”. In the latter category, a key axing was the Environmental Legal Assistance (ELA) Fund.
For 23 years, this legal aid fund has been distributed by the Ministry for the Environment to not-for-profit groups, incorporated societies, and hapū and iwi to assist with the hefty price tag that comes with taking litigation to courts or boards of inquiry. Applicants to the fund had to show their case would be in the “environmental public interest”.
Originally, the fund had an annual budget of $1 million but in 2016 was reduced to $600,000. The maximum a group could receive for a case was $50,000, a sum quickly gobbled up by legal processes, and many applicants received less.
Clear the Air, a community group in Mt Maunganui, got $40,000 from the fund to oppose an air discharge consent application by Allied Asphalt in the Environment Court in May. “The cost for a lawyer and planner for only a short time came to a bit more than $40,000,” says spokesperson Emma Jones, “even though our lawyer acted pro-bono for some parts to help keep costs down, so we still have to fundraise. Allied Asphalt had a lawyer and planner for years. We’re up against these massive, multimillion-dollar industries.”
The Mount’s residential area, schools and preschools lie in an airshed that’s officially designated as polluted due to noxious compounds released by the Port of Tauranga and adjacent industrial businesses. Two recent reports said the pollution causes hospitalisations and early deaths. Te Whatu Ora provided an air quality expert in court, as did the Bay of Plenty Regional Council.
The council has regulatory authority over the area’s air quality, and its investment arm is the port’s majority shareholder. In court, it supported an air discharge consent for 25 years. The court’s decision is expected soon.
Jones has led the community in opposing consents for the area’s other heavy industry, including another asphalt plant and Genera, which fumigates goods travelling via the port with methyl bromide gas. But this time, says Jones, “it was a total game changer to have legal representation and a planner to advance our case. We could see how to make an argument the court can actually use.”
Soon, she says, new air discharge consents will be applied for by other industries. “Now that I know how valuable a legal fund is, not to have access to it is really disappointing.” They’ll keep going, though. “No matter how difficult and complex it is, the fact remains that 3500 kids are downwind of a heavily polluted area. People who grew up here say, ‘I wish my parents had done more.’”
Out of luck
Judges are aware of the disparate resources between parties in environmental disputes. When Supreme Court judge Stephen Kós was president of the Court of Appeal, he reflected during a 2017 lecture that good environmental decision-making requires robust evaluative processes. That normally depends on effective public participation, which, in turn, depends on a reasonable equality of arms – in other words, properly resourcing public participation in environment cases.
He spoke of his experience as counsel in several environmental cases. “It is a reality – one I saw many times when acting for major infrastructure providers applying for consents for projects with a significant environmental impact – that members of the public with the most immediate connection to the environment are often outgunned in the consent hearing process. I said I had luck as counsel. But as they say, you make your own luck. The well-resourced achieve more luck than their opponents.” Inequality of arms, he said, makes for bad decision-making and lingering resentment.
There was much to be said for the ELA fund, he said, although “sums of less than $50,000 will have limited effect in achieving any sort of equality of arms in a major infrastructure project where applicant legal and expert witness hearing costs can easily reach $2-3 million”.
The Environmental Defence Society (EDS), a non-profit organisation that seeks to improve environmental outcomes, was a frequent user of the ELA fund. “Pretty much all our cases received some assistance from that fund,” says chief operating officer Shay Schlaepfer. “Its loss is a huge blow for environmental justice. It will lead to less oversight, less contesting of evidence in the courts, and poorer outcomes for the natural world.”
The fund helped EDS contest evidence and clarify important legal issues. One such case was the 2014 “King Salmon” case, which Schlaepfer describes as causing a “sea change in the way the Resource Management Act is implemented”. It resulted in the Supreme Court confirming that environmental bottom lines cannot be crossed, moving decision-makers away from balancing environmental considerations against economic imperatives.
A current case concerns Canterbury’s Rakaia River, which has a water conservation order that limits how much water can be extracted and protects in-stream river values. “EDS is asking the court who’s responsible for ensuring that outstanding values of the river are protected as required by the order,” says Schlaepfer. At present, nobody is ensuring the protections are met, and Environment Canterbury and the Ministry for the Environment are denying responsibility.
“The upshot is that some of our cases wouldn’t have been possible without assistance from the ELA fund,” says Schlaepfer. “The fund never fully covered all our expenses, but it meant we could make some payment to our pro bono supporters. Without it, we’ll have to exclusively rely on donations and pro bono support.”
She is concerned about the barrier the fund’s withdrawal will pose for community groups, hapū and iwi. “For those who aren’t as familiar with the process and don’t have connections, it may mean some of these cases don’t proceed, and as a result the court might not have all the evidence before it that it should have.”
The Department of Conservation is another party often in court to protect conservation values. But the Budget cut money from its legal and planning services, too. Ruth Isaac, deputy director-general, policy and regulatory services, told the Listener, “Some savings are being made from the legal and planning functions that operate in the resource management space, but DoC will continue to engage with legal processes – including court hearings – focusing its discretionary resources on where it can have the greatest effect on conservation outcomes.”
Peter Anderson, who has just finished 12 years as legal counsel with Forest & Bird, says during the past couple of months, DoC has withdrawn from cases he’s been involved in.
Anderson says courts make decisions based on expert evidence. “It’s generally from consultants who are paid to provide expert impartial evidence. There’s generally a range of views among experts about the merits of a particular proposal. Parties promoting and opposing developments are likely to engage an expert who supports their views.
“The key point is that if you haven’t engaged an expert to provide evidence, you’re unlikely to get anywhere. Engaging experts requires money, often a lot of it.”
The ELA fund has been crucial to Forest & Bird, says Anderson. “Every significant case we’ve been involved in in the past decade – and probably longer – has involved ELA funding.”
That includes stopping coal mines on the West Coast’s Denniston Plateau and at Te Kuha, a ruling for a water conservation order for the Ngaruroro River in Hawke’s Bay, and many more.
Up against giants
Forest & Bird also assisted Northland ELA fund recipients Ngāti Kuta, Te Uri o Hikihiki and Fish Forever. They were concerned about the region’s degraded marine ecosystems, including kina barrens, so appealed against the lack of fishing prohibitions in Northland Regional Council’s proposed regional plan.
In court, they were opposed by Māori and non-Maori commercial fishers and recreational fishing organisations that objected to the precedent of limiting fishing under the Resource Management Act. But in 2022, the Environment Court decided on two no-take fishing zones, plus a small area where bottom trawling and purse seining are banned.
“That case killed me – I retired from environmental protection after that,” says Karen Field, formerly of Fish Forever, who had never been in court before. “They brought out the big guns. There were 20 lawyers and a three-week court case.
“I was so surprised. All I’d heard about the RMA was how bleating greenies and conservationists got in the way. What a joke. It’s so unequal. It’s actually the big corporates that decide the regional plan.
“It was two [voluntary] years of my life full time and four years part time. I don’t know how I could have done it without our lawyer. If you don’t tick the right boxes at the right time or have the best witnesses, you’re out.”
Back at the Mount, the same exhaustion emanates from Joel Ngātuere, environmental spokesperson for Whareroa Marae, home of the Ngāi Tukairangi and Ngāti Kuku hapū of the Ngāi Te Rangi iwi. The marae is surrounded by Tauranga Airport, Lawter Chemical Solutions, Ballance Agri-Nutrients, a container company twice fined for discharging contaminants, an oil recycling plant, tanks storing petroleum products, the Port of Tauranga and Tauranga Harbour with its busy bridge crossing. Its wharenui was built in 1873, and 151 people usually live there, including kaumātua. There’s a kōhanga reo for 25 children.
The hapū have had ELA funding several times to oppose consents for polluting activities that affect the marae, including Allied Asphalt’s consent and the Port of Tauranga’s ongoing bid to expand closer to the marae. More consent renewal applications are imminent, including superphosphate producers Ballance Agri-Nutrients, which a recent report strongly suggested is the source of high sulphur dioxide gas levels recorded at the marae.
What will these hapū do without the fund? “At this stage, we don’t know, but we will continue to fight for our survival and the right to raise our children on their ancestral land without fear of being poisoned,” says Ngātuere. “It’s going to be hugely detrimental for us as a marae and community.
“This has been forced on us. We’ve spent thousands of hours on this – we’re so busy advocating and fighting for what’s in front of us and for our health that there’s no time or energy left. Except for what’s at the marae, we have no land to generate an economic platform.”
All the nearby land – the port, the industrial area, the airport – belonged to the hapū. A Waitangi Tribal report on
Tauranga Moana concluded that “the port and airport developments resulted in much of their Whareroa land being lost to public works, with only limited compensation …”
Ngātuere says the use of the Native Lands Act and other government pressures forced sales of land remnants the hapū held. Today that lost land generates significant profit for the councils. “This is a marae and hapū that has nothing left,” he says.
Clearing the barriers
Asked why the $600,000 fund got the chop, Environment Minister Penny Simmonds said: “We want to see taxpayers’ money used to fund better environmental outcomes rather than used in legal challenges.” However, its axing comes alongside other moves to reduce public input into environmental decision-making, which most parties agree is too lengthy and expensive.
The Fast-track Approvals Bill is worded to overtly exclude public participation. The reversal of the oil and gas exploration ban comes with a fast-track option of its own. Called “Priority in time”, it would be one of two routes to exploration, and companies wouldn’t have to tender for a permit.
Iwi and hapū would be consulted, but other communities wouldn’t: “Consultation on non-tender applications would be on an individual basis similarly to minerals applications,” says the Ministry of Business, Innovation and Employment.
Some of the groups that obtained ELA funding may even find their efforts have been wasted if the fast-track bill as it stands becomes law.
The proposed Te Kuha coal mine on conservation land in the Buller Gorge has been turned down by the courts several times, but the company behind it wrote to Infrastructure Minister Chris Bishop in February asking for it to be listed in the Fast-track Approvals Bill.
In a move that may not be coincidental, in March it withdrew from an appeal against its latest court loss.
Soon afterwards, Trans-Tasman Resources, whose consent to mine the coast off Taranaki has been quashed in the court three times, withdrew partway through a fresh application for marine discharge consents, again eyeing the fast-track process.
Kiwis Against Seabed Mining was midway through presenting its case, which was prepared with the help of ELA funding. After 12 years of opposing the consent, the group knows all about lengthy and expensive.