... 1. Structure 2. Judicial Review C. Court-Annexed Mediation III. THE COURT MEDIATOR AND THE PUBLIC INTEREST A. The Public Interest and the Limits of Mediation 1. Loss of Judicial Oversight. 2. Self-Centered Negotiations. 3. Commissioner Loyalties to the Parties and to the Public B. The First Dimension of the Public Interest--Mediator As Guardian of Public Law. 1. Pressing Parties on How an Agreement Satisfies Key Provisions of the RMA 2. Legal Advice and Robust Reality Testing. 3. Engaging a Judge for a Mini-Hearing. C. The Second Dimension of the Public Interest--Mediator As Optimizer of Agreements 1. Building Better Agreements Through Shared Learning, Decision Making, and Ownership 2. Building Better Relationships and Problem Solvers IV. MEDIATING SUSTAINABILITY--BEYOND THE NEW ZEALAND EXPERIENCE

I. INTRODUCTION

The concept of sustainable development--meeting the present needs of development and environmental protection without compromising the needs of the future (1)--finds near universal support. Managing resources sustainably, however, is a significant challenge and cause of pervasive and intractable disputes. Environmental and natural resource policies that afford real meaning to sustainability can infringe on vested interests and acquired freedoms. (2) Such policies require us to make difficult decisions, such as eliminating entrenched industrial practices and restricting use of certain nonrenewable resources. (3) These decisions are complicated by the need to consider the socioeconomic, transnational, intergenerational, and interspecies effects of our decisions.

In New Zealand, the Resource Management Act (4) (RMA) is the principal source of legislation under which sustainability decisions are made. The RMA, enacted in 1991, remains the largest piece of legislation ever passed in the country and the first in the world designed to achieve sustainability. (5) Today, over fifteen years later, we can see its transformative effect; the RMA is setting in place a chain of national and regional environmental policies and plans and requiring new approaches to resource management. Under its multi-tiered framework, difficult environmental and natural resource management decisions are made, and disagreed with, every day.

Many of the most significant disagreements are brought before a specialized tribunal known as the Environment Court--the principal adjudicator of sustainability under the RMA. (6) In addition to rendering decisions, the court maintains an innovative court-annexed mediation service where its own technically oriented commissioners, who also serve as adjudicators, act as mediators in other cases at no extra cost to the parties. (7) In mediation, commissioners help parties search for a mutually satisfying settlement to their dispute instead of awaiting a decision by a judge. (8)

The strength of the mediation model is that commissioners, skilled in mediation and adjudication, offer parties their facilitation expertise as well as their knowledge of the subject matter of dispute and the overarching legislation that frames their dispute. In doing so, commissioners often occupy a hybrid role between a traditional mediator who promotes a constructive negotiation process and a judge who may focus on the substantive outcomes of the process.

This Article offers a tour of the Environment Court's mediation service and responds to skepticism about whether the public interest can be protected in a process that assists private parties to negotiate settlements to their disputes outside the limelight of a public trial. Discussion is organized into two parts.

Part II provides the context for the public interest analysis with an overview of the RMA, the Environment Court, and its court-annexed mediation program. This Part is particularly relevant to those interested in New Zealand's approach to sustainability-based decision making and the practice of adjudicating and mediating sustainability disputes in the court.

Part III addresses the public interest topic by first defining the "public interest" and then raising concerns over potential ways in which it can be compromised in mediation due, for example, to the loss of judicial oversight over settlement discussions and the potential for parties to forge agreements that meet their own interests while compromising the public interest. The bulk of analysis then explores how commissioners are well-positioned to protect the public interest during these mediations by a) utilizing various interventions to ensure mediated agreements are legal, and b) fostering an improved dispute-resolution climate to help parties explore and elect more sustainable agreements. Special attention is directed to the benefits of using a court mediator who also serves as an adjudicator as opposed to outsourcing mediation to private providers.

In closing, this Article highlights some of the overarching benefits of the Environment Court's mediation model that flow to the parties in dispute and to the public.

What can we learn from the New Zealand experience? Scholars in the United States have already drawn valuable lessons from the RMA and the Environment Court that polices the statute. (9) This Article provides an opportunity to learn from the court's mediation model--a less well-known but significant innovation in mediation. These lessons are of particular relevance to the environmental professionals in the United States who work with the many federal and state judicial (10) and administrative courts (11) and agencies (12) that use mediation to address environmental disputes. Collectively, these programs have made environmental mediation the most common form of public mediation in the United States; (13) concomitant with that status, there is an ongoing need to learn from the mediation practice of others, and New Zealand's Environment Court offers some important lessons.

The information in this Article is derived principally from twenty-five formal interviews of environmental dispute-resolution professionals in New Zealand (ten of judges and commissioners on the Environment Court and fifteen of professionals outside the court) who met with the author between May and July of 2006. (14) This Article makes extensive use of quotations because expressing lessons from interviewees in their own words has great value in reinforcing controversial points and assists in replicating conversations in short form. Information was also drawn from secondary sources on environmental mediation in New Zealand and the United States. (15) Readers should also note that the author wrote a compendium report that features most of the interview findings and other lessons learned from the Environment Court's mediation program. (16)

II. SUSTAINABILITY DECISIONS AND DISPUTE RESOLUTION UNDER THE RMA

Sustainability disputes are multi-faceted and fuelled by a complex interplay of factors that overlap and reinforce one another. (17) Decisions about how to protect the environment and manage natural resources for sustainability have transboundary and intergenerational effects; consequently, many people are impacted and brought into these decisions and associated disputes. With a wide cross-section of parties, resource and power disparities are commonplace, which undermines trust and respect between people and their ability to resolve disputes amicably. Problems of trust and respect are exacerbated by the scientific and technical uncertainties inherent in environmental and natural resource decision making, so parties often act with imperfect and conflicting information about the environmental and socioeconomic impacts of a decision. Environmental disputes also spotlight the competing values and worldviews we hold on our relationship to nature, and these differences pit people against one another in profound and personal ways. Another significant attribute of these disputes (including most environmental enforcement actions) is that government is often a central player and decision maker, which raises the public significance of these disputes and the approaches used to resolve them.

Having some background on the nature of decisions made under the RMA and its early dispute-resolution procedures helps to better understand the types of disputes filed in the Environment Court. This information is drawn on in Part III, which discusses how the public interest is protected in Environment Court mediations.

A. The Resource Management Act

The RMA is considered one of the most advanced models of environmental legislation in the world. (18) When enacted in 1991, the RMA restated and reformed preexisting law relating to the use of land, air, and water and replaced over twenty major statutes and fifty laws that governed environmental management and resource development. (19) Prior to enactment of the RMA, past environmental regulation had proceeded in an ad hoe basis, where one aspect of the environment was managed in isolation of others. (20) The RMA was envisioned as a super-statute to achieve greater integrated management of environmental media (air, water, and land) and greater coordination across various resource management agencies and regions. (21) The Minister for the Environment oversees and monitors the implementation of the RMA and also has some direct areas of responsibility, including the authority to appoint people to carry out the duties of local agencies who fail to live up to their responsibilities under the RMA. (22)

For our purposes, three aspects of the Act are important to understand: its focus on sustainable management, its devolved yet integrated form of planning and decision-making, and its resource permitting and consent process. These and other provisions of the Act are discussed at length in legal treatises, (23) government-issued guidance from the Ministry for the Environment, and materials produced by professional affiliations in the resource management community. (24)

1. Sustainable Management

The purpose of the RMA is to "promote the sustainable management of natural and physical resources." (25) Sustainable management is defined under part II, section 5(2) of the RMA as:

[M]anaging the use, development, and protection of natural and physical resources in a way, or at a rate, which enables people and communities to provide for their social, economic, and cultural wellbeing and for their health and safety, while--(a) Sustaining the potential of natural and physical resources (excluding minerals) to meet the reasonably foreseeable needs of future generations; and (b) Safeguarding the life-supporting capacity of air, water, soil, and ecosystems; and (c) Avoiding, remedying, or mitigating any adverse effects of activities on the environment. (26)

This key provision of the RMA evolved from the path-breaking work of the World Commission on Environment and Development in the book, Our Common Future, (27) but the drafters of the RMA used the term "sustainable management" because the term "sustainable development" outlined in Our Common Future embraced matters such as social inequality and global redistribution of wealth, which were considered well beyond the scope of the RMA. (28)

Although "sustainable management" is the paramount goal of all decision making under the RMA, such decisions must also address matters of special significance outlined in more specific provisions of the RMA. These include national priorities for which decision-makers must "recognize and provide for" under section 6, including the preservation of the natural character of the coastal environment, (29) matters to which decision makers must "have particular regard to" under section 7, such as the benefits of renewable energy, (30) and the need to take into account the principles of the Treaty of Waitangi under section 8, a foundational governance agreement between central government and the indigenous Maori Peoples of New Zealand. (31) Collectively, sections 5, 6, 7, and 8 all fall under Part II of the RMA and are considered the RMA's "engine room" because they "guide the application and interpretation of the entire legislation." (32)

2. Integrated and Devolved Decision Making

Decision making under the RMA is governed by a hierarchical approach that includes central government, regional, and district councils. Central government lays the governance framework in the form of national standards and policy statements for the regional and district councils to develop their own policies and plans for their respective jurisdictions that must be consistent with the national agenda. (33)

The purpose and content matter of the various national standards and policy statements cover a wide range of issues. National standards can be quantitative or qualitative (or other types of standards) that concern a range of subjects such as the control of discharges into air, land or water that apply nationwide. (34) Similarly, national policy statements concern matters of national significance and can guide subsequent decision making of regional and district councils. (35)

New Zealand's twelve regional councils, whose jurisdictions are broadly defined by watersheds, must formulate regional policy statements and may also craft regional plans. Regional policy statements "provide broad direction and a framework for resource management within [a] region." (36) Regional plans cover more specific functions of a regional council, including soil conservation, water quality and quantity, biodiversity management, and discharges of contaminants. (37)

The third management tier of the RMA is the district councils (some of which are known as "territorial authorities"). There are seventy of these councils that are primarily responsible for managing the impacts of land use and must prepare specific district plans to assist the councils in these duties. District plans cover a range of land use matters such as the effects of noise, the impacts of land use on natural hazards, and land subdivision. (38)

Through this hierarchy of national standards and policies and more local policies and plans, the drafters of the RMA sought to provide direction from the top and more integrated resource management of environmental media as decisions are made down the chain of command. (39) The broad right of appeal of all plans and policies to the Environment Court provides a judicial check on the content of these documents. Significantly, any person can challenge a council's decision in the court on a proposed plan or policy provided that the individual had previously filed a submission on the same matter during the council's earlier planning or policy-making process. (40)

3. Resource Consents (Permitting)

The environmental effects of resource development activities are managed under the RMA through a resource consent decision-making process, as well as through standard conditions imposed in regional and district plans. A holder of a resource consent is permitted to carry out an activity so long as it complies with conditions attached to the consent and is deemed by the relevant authority to represent "sustainable management." (41) Just as policy statements and plans are designed to enable integrated decision-making across national, regional, and district authorities, where an activity requires resource consent from different authorities, the decision to grant or deny the consent is often coordinated between authorities in joint hearings. (42)

There are several types of resource consents, including a land use consent, subdivision consent, coastal permit, water permit, and discharge permit. (43) Depending on the size and impact of a proposed activity, some applicants must obtain more than one consent from both regional and district councils; (44) where multiple consents are required, applicants are encouraged to apply for all consents at the same time so that the potential effects of an activity can be looked at in their entirety. (45)

Applicants for resource consents must provide, among other things, a description of their proposed activity and an Assessment of Effects on the Environment (AEE), which must correspond in detail to the scale and significance of the effects envisioned. (46) This "effects-based" approach means that activities themselves are not regulated per se; rather, it is the "effects" of those activities that come under scrutiny. (47) In their AEE, applicants must also identify those persons interested in or affected by a proposal, the consultation they have undertaken with such parties, and any response to the views of those consulted. (48)

Aside from an appeal to the Environment Court, a regional or district council member is the final decision maker on applications for resource consents. As agents of the RMA, these officials must ensure their decision meets the "sustainable management" requirements of part II (sections 5, 6, 7, and 8) of the RMA. Councils are not restricted to considering only matters and evidence provided by an applicant; they may also request further information and commission reports to ensure all necessary information is available prior to rendering a decision. (49) Where a proposed project will have significant environmental effects, the council may seek additional input (written submissions) from the public at large through a process called "notification." (50) According to one survey, only five percent of consent applications are notified, (51) which is an important finding because, in general, only those parties who make a submission on a notified consent application have standing to appeal a council's decision to the Environment Court. (52)

In addition to receiving submissions from the public on the merits of an application, councils may also hold a contested hearing to assist in their decision on an application. (53) Hearings are costly and time consuming, however, so authorities may arrange a "pre-hearing" meeting to allow resource consent applicants and parties who have made a submission on an application to meet to clarify issues or attempt to negotiate or mediate the resolution of a dispute. (54) In practice, the use of the pre-hearing meeting for the purpose of dispute resolution has been rare, (55) but recent reforms to the RMA may increase the frequency of such meetings. (56)

The effect of all these pre-court provisions is that applicants and potential adversaries are encouraged to consult with one another and to address the concerns of relevant parties when pursuing resource development projects. Depending on the manner in which such consultation is pursued, the involvement of affected persons at an early stage in the decision-making process reduces the likelihood and intensity of objection, and "promotes an early form of dispute resolution." (57) Ultimately, some disputes are irreconcilable by the parties alone, and it is in these circumstances that the role of the Environment Court becomes central.

B. The Environment Court

The breadth of decisions made under the RMA is vast, ranging from whether someone can build an addition to a home to how the country can meet its commitments under the Kyoto Protocol to reduce production of greenhouse gases. When people disagree with decisions made under the act, the Environment Court provides an important judicial check on whether those decisions are legal and in the public interest.

While environmental disputes are commonplace, of the 54,658 applications for resource consent processed in 2003 and 2004, only 1.2% (651) of decisions on those applications were appealed to the court, (58) indicating that recourse to litigation is an infrequently used option. Those cases that are litigated, however, are true survivors as parties have already funnelled these disputes through a complex array of dispute-resolution avenues and the decision to litigate is often the last and least desirable path. (59) Thus, disputes fried in the Environment Court, though comparatively few, are often very serious. As the final adjudicator of sustainability under the RMA, the court speaks with a powerful and timeless voice, so its decision in one case can play a major role in guiding the prospective actions of individuals, groups, and government actors.

1. Court Structure

One of seven specialized judges, who hold life tenure and who maintain jurisdiction over disputes in assigned territories, manages court proceedings. (60) One of these judges, the Principal Judge, is charged with the "orderly and expeditious discharge of the business of the Environment Court." (61) Fourteen technical commissioners work alongside these judges and also preside over hearings and assist in writing judicial decisions. (62) These commissioners serve five-year terms and are appointed to ensure the court "possesses a mix of knowledge and experience" in matters coming before it. (63) Training and qualification in the law is not a requirement for commissioners; rather, skills that are considered particularly valuable include expertise in business, economics, local government affairs, planning and resource management, environmental science, architecture and engineering, Maori affairs, or techniques in alternative dispute resolution (ADR). (64)

A quorum for the court is one judge and one commissioner, but hearings can also be held with one judge and two commissioners or, more rarely, a judge or commissioner sitting alone. (65) These hearings are generally open to the public (66) and are comparatively informal, as the court is not bound by the rules of evidence. (67) There are three Court Registries (court houses) where hearings take place, situated in the country's three largest cities: Auckland, Wellington, and Christchurch. (68) As a circuit court, it also holds hearings near the locality of the subject matter in dispute. (69)

2. Judicial Review

There are two types of disputes typically Filed in the court. The first and most common case is where an applicant or an opponent of a resource consent appeals the decision of a regional or district council to grant or deny the consent. (70) A second type of case arises when a party challenges a plan or policy put forth by a regional or district council. (71) In both eases, parties appeal a council's decision and the court's inquiry often concerns an assessment of the actual or potential environmental effects of the decision. (72) Significantly, where a council has publicly "notified" a decision, which is always the case in the planning context and sometimes the case in the consents process, parties can only appeal the council's decision on matters raised in their first submission to the council during its initial decision-making process, and potential remedies are constrained by the scope of their submission. (73) In a hearing, a judge may "dismiss, allow or partly allow" an appeal. (74) In rendering judgment, a judge "can confirm, cancel or amend" a council's decision. (75) Judges may also consider alternative proposals and adjourn proceedings to allow mediation to occur or reoccur. (76)

In its review, the court looks at issues de novo, which means that they...

NOTE: All illustrations and photos have been removed from this article.



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