The recently published papers from “Environmental Adjudication in the 21st Century Symposium” held in Auckland on 12 April 2017 provide the catalyst for an informed discussion about the principles that should underpin an “Environmental Rule of Law”.[1] This discussion is particularly relevant in the New Zealand context as a result of the ICJ decision in Whaling in the Antarctic (Australia v Japan: New Zealand intervening ICJ Reports 2014, 226)[2] where New Zealand successfully advocated for the principle of “no deference”. This led the ICJ to find that environmental decisions should be “objectively reasonable” and “supported by coherent reasoning and respectable scientific evidence”.[3] Where this is not the case, the principle of “no deference” now applies.
As a result, the decision in Whaling in the Antarctic may have implications for deciding appeals on questions of law under the Resource Management Act 1991. For example, the question of the adequacy of reasons was discussed in the recent decision in Franco Belgiorno-Nettis v Auckland Council,[4] where the High Court found that a themetic approach to addressing submissions was legitimate and that giving “high-level” reasons for decisions regarding “common issues” raised by submissions was appropriate.[5]
However, the Belgiorno-Nettis decision is silent about the relationship between the reasons given for the recommendations and the supporting evidence. This issue will be particularly important in cases where there is contested expert evidence (which does not appear to have been the case in Belgiorno-Nettis). Knowing what evidence was relied on by the decision-maker is important on appeal regarding questions of law to determine whether the decision-maker “has come to a conclusion without evidence or one which on the evidence could not reasonably have been reached” (emphasis added).[6] While a thematic approach is clearly legitimate, knowing why the decision-maker has preferred one view regarding a common issue rather than another, and why one body of expert evidence has been preferred over another will be important. Although, there is no uniform requirement under New Zealand law regarding the standard that should apply to statements of reasons, the general thrust of the decision in Belgiorno-Nettis is that “short reasons” may be appropriate in the context of streamlined decision-making.[7] But there does not appear to be any logical reason why a short statement of reasons, in a contentious case, should not also succinctly indicate what expert evidence was relied on and why it was preferred. Absent such commentary it could be difficult to assess whether the decision under appeal is “objectively reasonable”, and whether (following Whaling in the Antarctic) it would be appropriate for the appellate court to defer to the original decision-maker’s expertise on that matter.
Dr Trevor Daya-Winterbottom, Faculty of Law, University of Waikato
[1] www.environmental-adjudication.org; World Declaration on the Environmental Rule of Law, Outcome Document of the 1st IUCN World Environmental Law Congress, Rio de Janerio, 27-29 April 2016; Environmental Law and Management (2017) vol 29 issues 2 and 3.
[2] ICJ Reports 2014, 226.
[3] ICJ Reports 2014, 226 at 253-254.
[4] [2017] NZHC 2387.
[5] [2017] NZHC 2387 at [112].
[6] Derek Nolan (ed) Environmental and Resource Management Law (5th edn, LexisNexis, Wellington, 2015) 253.
[7] [2017] NZHC 2387 at [104].