Journal of Environmental Law, 2014, 26, 507–518

doi: 10.1093/jel/equ030
Advance Access Publication Date: 2 November 2014

ANALYSIS

Reconceptualising the Role of the

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New Zealand Environment Court
Ceri Warnock*
New Zealand Law Foundation International Research Fellow 2013, Senior Lecturer, Faculty of Law, University of Otago
*Corresponding author. E-mail: CERI.WARNOCK@OTAGO.AC.NZ

ABSTRACT
What does the specialised nature of an environment court entitle it to do? The recent
decision of the New Zealand Supreme Court in Environmental Defence Society
Incorporated v Marlborough District Council (‘the King Salmon case’)[2014] NZSC 38
helps to answer this question. For the past 20 years, the New Zealand Environment
Court has decided applications within a framework of the broadly defined statutory
purpose of sustainable resource management. The King Salmon case narrows this wide
discretion. This article analyses the implications of the decision, suggesting that it helps
to delineate between functions of specialist environment courts that may be considered
appropriate (adjudicative and legislative fact finding) and decision-making that strays
too far into the policy-sphere.

The Supreme Court in New Zealand issued a decision on 17 April 2014 that has sig-
nificant consequences for environmental management and decision-making in that
country. Environmental Defence Society Inc v Marlborough District Council (‘the King
Salmon case’)1 overturns a jurisprudential approach to decision-making in resource
management law that has persisted for the past 20 years, reconfigures the meaning of
sustainable management within the national legislative scheme, impacts upon the de-
lineations between law and policy in environmental law and acts to restrain primary
decision-makers. All of these issues may be of interest to an international audience
but this article focuses primarily upon the latter point because the case has particular
ramifications for the New Zealand Environment Court and, potentially, environment
courts in other jurisdictions.

1 [2014] NZSC 38.

C The Author 2014. Published by Oxford University Press.

V
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508  Reconceptualising the Role of the New Zealand Environment Court

On the facts, the King Salmon case concerned a decision made by a Board of
Inquiry, but the ratio is applicable to all primary decision-makers operating under the
Resource Management Act 1991 (‘RMA’) and it sets a precedent for the
Environment Court. The New Zealand Environment Court is one of the oldest en-
vironment courts in the world and has provided, and continues to provide, a model
for other jurisdictions to examine.2 As such, the decision of the Supreme Court,
which has the effect of constraining the wide decision-making discretion of the spe-
cialist Environment Court and recasting it in a more traditional juridical role, will be
particularly interesting to both environmental and constitutional lawyers alike.

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The article begins by explaining the constitution of the New Zealand
Environment Court and its statutory powers. The approach that the Court had taken
to its role in environmental decision-making, the increasing criticisms that approach
had attracted, and the suggestions that began to emerge for reform of the Court are
all addressed. The Supreme Court decision in the King Salmon case is summarised
and situated within this wider socio-political context. In essence, the Supreme Court
alters the decision-making framework by re-interpreting the RMA and, in doing so,
places decision-makers under the greater constraints of policy directives. As a result,
the case has the potential to act as a palliative, addressing the increasing criticisms
and relieving the political pressure on the Environment Court. In concluding, com-
ments are offered as to the overall significance of the case in formulating the appro-
priate role for a specialist court within environmental governance. Careful thought
must be given to what precisely the specialist nature of the court entitles it to do.
In particular, a clear distinction should be drawn between the Court’s statutory func-
tions of adjudicative and legislative fact-finding, and decision-making by the Court
that strays too far into policy determination.

1 . T H E NE W Z E A L A N D EN V I R O N M E N T C O U R T A N D
T HE RE S OU RC E MA N A GE M EN T A C T 1 991
The New Zealand Environment Court is a judicial body and a court of record, but
also a court of expertise with two forms of specialisation, those offered by the judi-
ciary and lay commissioners with expert knowledge of the factual context, working
together. The specialist nature of the Environment Court facilitates both adjudicative
and legislative fact-finding, which is discussed further below.
The Court has specified powers and functions under the RMA, New Zealand’s
primary environmental legislation. The RMA governs the management of all land,
air and water by regulating the impacts of activities on the environment and (in
effect) operating to allocate natural resources to various uses.
The Environment Court hears primary applications in some circumstances, and
also ‘appeals’ from decisions made by local authorities.3 The majority of cases before

2 George (Rock) Pring and Catherine (Kitty) Pring, Greening Justice: Creating and Improving Environmental
Courts and Tribunals (World Resources Institute 2009); Malcolm Grant, Environment Court Project: Final
Report (DETR 2000).
3 RMA, s 290. The Court can hear applications for resource consent in the first instance, if both the appli-
cant and Local Authority agree to this course (RMA, s 87C) and, in certain circumstances, may act as the
primary decision-maker in applications to change plans (RMA, s 85(3)).
 Reconceptualising the Role of the New Zealand Environment Court  509

the Court are appeals; however appeals are de novo and the Court is not constrained
to re-hearing the evidence that was adduced at first instance, rather there is a
new hearing and a decision is made on the merits.4 It does not have originating juris-
diction; cases are brought by parties and to a large extent the evidence and consider-
ations of the Court are limited by that fact.5 The Court is expected to give reasoned
judgments, prepared and written in accordance with judicial method.
The RMA is a framework statute: while the Act contains the primary purpose of
the Act, principles, statutory presumptions and rules, and empowers particular bodies
with functions and duties (including the Court), it leaves the specific management of

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local environments to be provided for by a hierarchy of policy statements and plans.
At the apex of this hierarchy sit central government created policy statements, then
regional council policy statements, regional plans, and finally territorial (local) coun-
cil plans. Lower level planning documents must ‘give effect’ to higher-level policy
statements.6 All of these planning instruments are created following an elaborate and
inclusive process of consultation with and participation from the public.7 However,
private individuals and entities can apply to change plans8 and the RMA specifically
empowers the Environment Court to ‘confirm, amend or cancel’ regional and terri-
torial planning instruments,9 whether following a direct application to the Court10 or
in the course of a merits appeal.11 Policy statements and plans have the status of
deemed regulations within the statutory scheme,12 and the Environment Court is the
only court in New Zealand that has the express power to amend and alter subordin-
ate legislation on the merits. The manner in which the Environment Court had been
making these determinations contributed to and exacerbated the unusual nature of
the Court, and this flows from the way in which the New Zealand courts had, prior
to the King Salmon case, interpreted the RMA and understood the function of this
specialist court. It is important to understand the approach taken to decision-making
by the Environment Court because the method employed fuelled criticisms of the
Court.

2 . S C O PE OF TH E E N V I R ON M E N T C O U R T ’ S D E C I S I O N - MA K I N G
The scope of the Environment Court’s decision-making has been directly influenced
by the manner in which the courts have interpreted the statutory purpose and prin-
ciples of the RMA. The interpretative approach taken prior to the King Salmon case

4 David Sheppard, ‘The What, Why and How of Resource Management Appeals’ (1996) 1 BRMB 194,
196: the Court’s ‘function is not to decide whether the council’s decision was right or wrong, but to give
its own decision in place of the council’s’.
5 Although the Environment Court may call for any evidence that it considers will assist it (RMA, s 276),
the dominant approach is for independent evidence only to be ordered if there is a clear lacuna in the par-
ties’ evidence.
6 RMA, ss 67(3) and 75 (3).
7 RMA, sch 1.
8 RMA, sch 1 pt 2.
9 RMA, ss 290 and 293.
10 Eg RMA, s 85(3).
11 Eg RMA, sch 1 cl 14, 27.
12 RMA, ss 46A(4), 68(2), 76(2).
510  Reconceptualising the Role of the New Zealand Environment Court

led to the Court adopting a wide discretion in its decision-making. This approach is
considered in detail in this section.
The RMA enacts a form of the sustainable development concept as the primary
legislative purpose in Part 2 of the Act. As with many concepts of sustainability, the
‘sustainable management’ purpose of the RMA contains competing considerations of
wide and undefined scope. Section 5(2) in Part 2 provides that natural and physical
resources must be managed in a way so as to enable the economic, social and cultural
wellbeing of peoples and communities, while ‘avoiding, remedying, or mitigating’ any
adverse effects on the environment. The tensions inherent in the ‘sustainable man-

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agement’ purpose of the Act reflect the political compromises in environmental man-
agement, a well-known feature of the sustainability dialogue.13
Part 2 of the RMA also contains a list of specific ‘principles’ or values relevant to
sustainability in the New Zealand context.14 Some of the principles address preserva-
tion and protection, for example, the protection of outstanding natural landscapes;15
others concern access to resources, such as the importance of public access to water-
ways,16 or the relationship of Māori with their ‘ancestral lands, water, sites, waahi
tapu, and other taonga’.17 The Environment Court has taken on a significant role in
construing the words and phrases used in Part 2 against which it determines applica-
tions. Such value-laden concepts ‘involve social, cultural, economic, and ethical pref-
erences, which are not capable of being proven by witnesses as a matter of primary
fact’.18 Nor, however, are their meanings likely to be revealed by a simple process of
statutory interpretation. Rather, judgment mixed with facts, ‘policy ideas, opinion,
discretion, or philosophical preferences’ must be employed,19 and the specialist
Court must use ‘the whole range of its collective experience’20 to determine these
so-called ‘legislative facts’.21 There are numerous examples of the Court crafting envir-
onmental or ecological phenomena into concepts that can be used in legal contexts,22
and translating Māori cultural ontologies into a common language.23 The specialisation
of the Court gives it a particular skill in determining such legislative facts.

13 Ian H Williams, ‘The Resource Management Act 1991: Well Meant But Hardly Done’ (2000) 9 Otago L
R 673; Marie-Claire Cordonier Segger and Ashfaq Khalfan, Sustainable Development Law: Principles,
Practices and Prospects (OUP 2004); A Dan Tarlock, ‘Ideas without Institutions: The Paradox of
Sustainable Development’ (2001) 9 Ind J Global Legal Studies 35.
14 RMA, ss 6–8.
15 RMA, s 6(b).
16 RMA, s 6 (d).
17 RMA, s 6(e).
18 Royden Somerville ‘Submissions on: Striking the Balance – Appeal Processes – The Specialist
Environment Court’ (A Review of the New Zealand Court System, New Zealand Law Commission,
Wellington 2002) 24.
19 Comptroller of Customs v Gordon & Gotch (NZ) Limited [1987] 2 NZLR (HC) 80, 93.
20 Electricity Corporation of New Zealand Ltd v Manawatu-Wanganui Regional Council (Planning Tribunal
W70/90, 29 October 1990) 95.
21 Kenneth C Davis, ‘An Approach to the Problems of Evidence in the Administrative Process’ (1952) 55
Harv L Rev 402.
22 Eg RMA, s 6(b) ‘outstanding natural landscapes’: Wakatipu Environmental Society Inc v Queenstown Lakes
District Council [2000] NZRMA 59 (NZEnvC).
23 Eg RMA, s 6(e) ‘waahi tapu’: Winstone Aggregates Ltd v Franklin District Council (NZEnvC Auckland
A080/02, 17 April 2002).
 Reconceptualising the Role of the New Zealand Environment Court  511

Shortly after the enactment of the RMA, the courts had to address the overall ap-
proach to be taken to the purpose and principles sections in Part 2. Questions arose
as to whether the structure of Part 2 suggested a preference for any one of the values
inherent in sustainable management; should, for example, the protection of the en-
vironment dominate decision-making? The RMA was one of the first statutes in
New Zealand to include an express purpose section and, given the relative novelty of
this approach to legislative drafting, the matter came before the High Court in the
context of an appeal. The High Court regarded the sustainable management purpose
as akin to a high-level policy statement that should not be ‘subjected to strict rules

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and principles of statutory construction’. Rather, the Court opined:

there is a deliberate openness about the language, its meanings and its conno-
tations which. . .is intended to allow the application of policy in a general and
broad way.24

It was not appropriate for any one of the stated statutory values to act as veto, nor was
it possible to infer a hierarchy between the principles that together constituted ‘sustain-
able management’. The result was that none of the three core values—the promotion
of economic and socio-cultural wellbeing or the protection of the environment —
would dominate in the abstract. Rather, decision-makers should reach an ‘overall judg-
ment’ on what best promoted sustainable management of the resource in question.25
The Environment Court has described the ‘overall judgment’ approach as follows:

Our approach is to weigh the matters in section 5(2). . .[and all matters are]
to be accorded full and equal significance. Accordingly, they are to be applied
having regard to the circumstances of each case. Applying section 5 involves a
broad overall judgment of whether a proposal. . .would promote the single
purpose of the Act. This allows for the balancing of conflicting considerations
in terms of their respective significance or proportion in the final outcome.26

Although often described as a ‘balancing exercise’,27 in reality (and as Fogarty J writ-

ing extra-judicially has acknowledged) the ‘overall judgment’ approach required
decision-makers to choose which value to prefer on the facts.28 Critically, the High

24 New Zealand Rail Ltd v Marlborough District Council [1994] NZRMA 70 (HC) 86.
25 Articulated in Trio Holdings Ltd v Marlborough District Council [1997] NZRMA 97 (PT); North Shore
City Council v Auckland Regional Council [1997] NZRMA 59 (NZEnvC); Genesis Power Ltd v Franklin
District Council [2005] NZRMA 541 (NZEnvC).
26 Geotherm Group Ltd v Waikato Regional Council (NZEnvC Auckland A47-6, 13 April 2006) [74]–[75].
27 Environmental Defence Society v Mangonui County Council [1989] 3 NZLR 257 (CA) 260 (Cooke P):
where a list of values had no legislative weighting inter se, ‘it is for the planning authority or the [court]
on appeal to undertake a balancing exercise on the facts of each particular case’.
28 John G Fogarty, ‘Giving Effect to Values used in Statutes’ in Jeremy Finn and Stephen Todd (eds), Law,
Liberty and Legislation: Essays in Honour of John Burrows QC (LexisNexis 2008) 1–23.
512  Reconceptualising the Role of the New Zealand Environment Court

Court justified favouring a broad approach to Part 2 by reference to the specialist

nature of the Environment Court:

[i]ndeed, it is for that purpose that [the Environment Court] with special ex-
pertise and skills, is established and appointed to oversee and to promote the
objectives and the policies and the principles under the Act.29

Many operative parts of the RMA, such as the decision-making criteria for plan
changes, are drafted as being ‘subject to Part 2’, or must be made ‘in accordance with

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Part 2’, and so Part 2 has always been seen to have a functional role.30 As a result, an
‘overall judgment’ was used as the ultimate decision-making framework in every
application for a plan change, resource consent and other planning mechanism avail-
able under the Act, by all decision-makers including the Environment Court in mer-
its appeals.31
The combination of an unwillingness to subject the purpose and principles part
of Act to strict judicial interpretation, with the understanding that every decision was
referrable back to that part of the Act, may appear to strike a discordant note, and
the major ramifications of this disjunct have been twofold. First, it has meant that
there were no guaranteed ‘environmental bottom lines’32 in New Zealand resource
management law. By way of example, a plan (following the direction set down in a
policy statement) might contain an objective to protect an environment, and include
standards and rules to give effect to this objective, but the decision whether to grant
a change to this plan was subject to the ‘overall judgment’ approach in the final ana-
lysis. The plan might be changed, for example, if the economic benefits of the pro-
posal were deemed to outweigh absolute protection of the particular environment.
The result was that no natural environment would be sacrosanct.
Second, the ultimate decision as to how to effect ‘sustainable management’ rests
with the decision-maker. There are various forms of primary decision-maker with jur-
isdiction under the RMA, including the Environment Court and other non-judicial
bodies (such as democratically elected local councils and Government appointed
Boards of Inquiry created to determine proposals of national significance), but as a
matter of legal requirement they all have the same functions, duties and powers
under the Act in relation to planning applications and follow the same approach to
decision-making.33 Their decisions can displace the collective community view of
sustainable management, and pursuant to the ‘overall judgment’ approach, decision-
makers have a wide discretion in selecting which values to prefer in the final analysis.

29 New Zealand Rail (n 24) 86.

30 Auckland City Council v John Woolley Trust [2008] NZRMA 260 (HC) [47]: Part 2 is ‘the engine room’
of the RMA, ‘intended to infuse the approach to interpretation and implementation [of the Act]
throughout’.
31 Eg ‘designations’ and ‘heritage orders’, RMA, pt 8.
32 Phrase attributed to Hon Simon Upton, Minister for the Environment, third parliamentary reading of the
Resource Management Bill (4 July 1991) 516 NZPD 3019.
33 Boards of Inquiry (RMA, ss 149 l–149P) and the Environment Court (RMA, s 290) exercise the same
powers, rights, duties and discretions as local authorities and consent authorities in determining planning
applications.
 Reconceptualising the Role of the New Zealand Environment Court  513

This places the Environment Court, as a judicial body, in a particularly unusual

position.
Prior to the King Salmon case, the ‘overall judgment’ approach of the Court in
exercising powers under the RMA had pertained for 20 years.34

3 . IN C R E A SI N G C O N C ER N S
By 2009, the Government was expressing disquiet with significant parts of the re-
source management legislative regime, and various commentators and policy advisors
were specifically questioning the expansive role of the Environment Court.35 Critics

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argued that the scope of the decision-making by the Court blurred Montesquieu’s
separation of the executive and judicial powers. For example, a report produced by a
Technical Advisory Group to the Minister for the Environment stated:

[o]n constitutional grounds alone, there is. . .much to be said for abolishing
the right of appeal on the merits as regards the policy content of plans to the
Environment Court.36

This discrete criticism expanded and, in 2013, the Minister for the Environment
issued a Discussion Document suggesting, amongst other things, that:

[t]he judiciary should not be placed in the position of having to determine

values or policy – this role should be played by publicly-accountable, elected
representatives.37

The Document proposed wholesale reform of the Environment Court;38 one latter
suggestion was that the Court should be subsumed within the District Court.39 The
proposals did not suggest that the overall judgment approach was incorrect;40 rather
that it was inappropriate for a judicial body to make this judgment. The solution

34 See n 25 and eg Te Whakaruru Ltd v Thames Coromandel District Council (NZEnvC Wellington W086/
08, 3 December 2008) [159]; Geotherm Group Ltd v Waikato Regional Council (NZEnvC Auckland A47-
6, 13 April 2006) [74]–[75] (and cases referred to in [74]); Long Bay-Okura Great Park Society
Incorporated v North Shore City Council (NZEnvC Auckland A078/08, 16 July 2008) [273], [637]–[638];
Environmental Defence Society Inc v New Zealand King Salmon Company Ltd [2013] NZHC 1991 (HC)
[62]–[65]; Peter Skelton and P Ali Memon, ‘Adopting Sustainability as an Overarching Environmental
Policy: a Review of Section 5 of the RMA’ (2002) 10(1) Resource Manag J 1; Peter Fuller ‘The Resource
Management Act 1991: An Overall Broad Judgment’ (2003) 7 NZJEL 243.
35 For example, Ministry for the Environment, Report of the Minister for the Environment’s Technical Advisory
Group (Ministry for the Environment, Wellington, February 2009); Stephen Rivers-McCombs, ‘Planning
in Wonderland: The RMA, Local Democracy and the Rule of Law’ (2011) 9 NZJPIL 43.
36 ibid ‘Technical Advisory Group’ 10.
37 Ministry for the Environment, Improving our Resource Management System: A Discussion Document
(Ministry for the Environment, Wellington, February 2013) 13.
38 ibid 46.
39 Kenneth Palmer, ‘Environment Court Reform – More than the Court under Threat?’ (RMLA, 25 June
2013) <rmla.org.nz/obiter/view/id/27> accessed 2 September 2014; Marie McNicholas, ‘Uncertainty
Lingers After Court Downgrade Retreat’ (FWPlus, June 2013) <http://agrihq.co.nz/article/uncertainty-
lingers-after-court-downgrade-retreat?p¼?p¼46> accessed 2 September 2014.
40 Ministry for the Environment, Resource Management: Summary of Reform Proposals 2013 (Ministry for the
Environment, Wellington, August 2013) 13.
514  Reconceptualising the Role of the New Zealand Environment Court

proposed was for a greater use of Government-appointed Boards of Inquiry and in-
dependent hearing panels.
This Discussion Document proved to be extremely controversial. Acknowledging
that she had been tempted to ‘[wade] into the sort of turbulent waters Chief Justices
should stay out of’,41 the Right Honourable Dame Sian Elias, Chief Justice of New
Zealand, chose to make the issue the subject of a public lecture. Her Honour ex-
pressed the belief that there were some advantages to judicial involvement in primary
decision-making and merits review ‘which we should be slow to throw aside’,42 but
in speaking of the overall judgment approach that had been moulded by the lower

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Courts, opined:

Although the boundaries between policy and law are notoriously porous, there
must be reason to doubt whether powers which are limited only by process
requirements but otherwise require an at-large policy balance to be struck be-
tween incommensurable and broadly expressed values are appropriately exer-
cised by a court. . .43
At-large judicial balancing may be at best unconvincing and at the worst may
mask political judgments which cannot be adequately justified by reference to
legal standards and which should be directly taken by those who are politically
accountable. . .44
I do think that the methodology adopted by the Environment Court was
worth critical assessment. Indeed, I think it should properly have been the sub-
ject of appellate consideration if, as has been suggested, it impacted adversely
on the scheme of the legislation. . .it may be that closer attention to the struc-
ture of the legislation might have brought about a different approach.45

Four months later, the King Salmon case gave the Supreme Court the opportunity
to scrutinise the overall judgment approach, albeit in the context of a decision made
by a Board of Inquiry rather than the Environment Court itself.

4. THE KING SALMON CASE

The case concerned an application to change the Marlborough Sounds Resource
Management Plan to allow salmon farming in eight sites that were absolutely pro-
tected by the plan because of their status as outstanding natural landscapes. The
RMA has a call-in mechanism that enables matters of national significance to be
determined at first instance by a Government-appointed Board of Inquiry rather
than a local authority.46 Given the degree of public interest in the proposal, the mat-
ter was called in. The Board of Inquiry granted plan changes in relation to four sites.

41 Rt Hon Dame Sian Elias, GNZM, Chief Justice of New Zealand, ‘Righting Environmental Justice’ (The
Salmon Lecture, Auckland, 25 July 2013) <rmla.org.nz/librarydoc/index/category/1> accessed 2
September 2014, 1.
42 ibid 13.
43 ibid 14.
44 ibid 15.
45 ibid 12.
46 RMA, pt 6AA, s 142.
 Reconceptualising the Role of the New Zealand Environment Court  515

The Environmental Defence Society Incorporated47 appealed the decision in relation

to one site: Papatua.
The Board of Inquiry had agreed with the plan that Papatua was an outstanding
natural landscape, found that the salmon farm would create significant adverse ef-
fects, and found that allowing the application would prevent policies 13(1)(a) and
15(a) of the New Zealand Coastal Policy Statement (NZCPS) from being complied
with.48 The NZCPS is the Government policy statement that sets the national policy
for the management of the coast and, in accordance with the planning hierarchy, it
had to be ‘given effect to’ by all lower-level planning instruments. Policies 13(1)(a)

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and 15(a) of the NZCPS required the preservation of outstanding natural features
and landscapes by ‘avoiding’ the adverse effects of activities on natural character in
these areas. Despite these findings, the Board of Inquiry granted the plan change and
consented to the salmon farming. As the plan change was to be made ‘in accordance
with Part 2’,49 the Board, following an overall judgment assessment, determined that
the significant economic benefits from the proposal outweighed the adverse effects on
the environment. The matter was unsuccessfully appealed to the High Court,50 and
then, given the importance of the legal issue, appealed directly to the Supreme Court.
A four to one majority in the Supreme Court (Elias CJ, McGrath, Glazebrook
and Arnold JJ) found that the NZCPS had the effect of setting an ‘environmental
bottom line’ that had to be implemented by all lower order plans.51 The appeal was
granted and the plan change in relation to Papatua was overturned.
The Supreme Court decision addresses both the validity of an ‘overall judgment’
approach to Part 2 in general, and its ultimate application to all decisions under the
RMA. Of interest, the Supreme Court did not overturn the existing approach to the
interpretation of Part 2, agreeing that the ‘sustainable management’ purpose as en-
acted was open-textured in nature and should not be subject to close judicial scru-
tiny. To that extent, the Supreme Court accepted that the ‘overall judgment’
approach to Part 2 was correct. However, the majority criticised the application of
the ‘overall judgment’ approach in every primary decision-making scenario. Applying
an ‘overall judgment’ in the final analysis of plan-change applications allowed primary
decision-makers to cut across the inclusive and elaborate consultative and public-
participatory processes that created policy statements and plans, created uncertainty,
and undermined a strategic, region-wide approach to planning.52 The majority
described the purpose of the Act as simply a ‘guiding principle. . .rather than a specif-
ically worded purpose intended more as an aid to interpretation’.53 Accordingly, it
‘was not intended to be an operative provision, in the sense that it is not a section
under which particular planning decisions are made’.54

47 Environmental Defence Society Inc. lodged a submission against the plan change application. Submitters
have automatic standing (RMA, sch 1 cl 14).
48 Environmental Defence Society (n 1) [5] (Arnold J).
49 RMA, s 66(1)(b).
50 [2013] NZHC 1992. Appeals from Boards of Inquiry and the Environment Court are to the High Court
on points of law only; RMA, ss 299, 149V.
51 Environmental Defence Society (n 1) [132] (Arnold J).
52 ibid [136]-[140].
53 ibid [24](a).
54 ibid [151].
516  Reconceptualising the Role of the New Zealand Environment Court

However, while the amorphous nature of the ‘sustainable management’ purpose

meant that it should not be subject to the rigours of statutory interpretation, the ma-
jority of the Court did not believe that the same could be said of policy statements.
Many were highly specific and set clear obligations for decision-makers. In the event
of any apparent internal conflict (as was argued to be the case with the NZCPS and
rejected by the majority), the decision-maker should closely scrutinise the words
used in the statement itself to resolve the conflict.55 Although not expressly acknowl-
edging this technique, the majority used a plain meaning approach to interpreting
the policy. For example, they stated that the direction to ‘avoid’ adverse effects will

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place a firmer obligation on a decision-maker than the requirement to ‘take account
of’ the economic benefits of developments in the coastal area.56 In this case, the pol-
icy direction was clear: ‘avoid’ meant ‘not allow’.57
The majority explained that policy statements reflect particular value choices.58 If
a higher-level policy statement chose absolute protection of an outstanding natural
landscape, that choice accorded with the purpose of the Act as preservation and pro-
tection is an important feature of sustainable management.59 The sections of the
RMA concerning plan changes act to constrain decision-makers by requiring that
these value choices be ‘given effect to’ in lower level plans.60 This creates a strong
obligation to ‘implement’ higher-level policy choices,61 and it was wrong in law to
relegate this clear direction to just one of a number of relevant matters included in
a final overall judgment analysis.62 Further, the NZCPS had already been
created ‘in accordance with Part 2’ and there was no need for the decision-maker
to layer another ‘sustainable management’ analysis on top that would serve to dis-
place the specific choices made by the Government in conjunction with the wider
public.63
Although the King Salmon case concerned a decision made by a Board of Inquiry,
the interpretation of the RMA and application of the legal test set down by the
Supreme Court will bind all primary decision-makers, including the Environment
Court conducting de novo merits appeals. Boards of Inquiry and the Environment
Court can (to all intents and purposes) be seen as equivalent primary decision-
makers in determining plan change applications under the Act,64 and the case sets a
precedent for the Environment Court. The Court will have to scrutinise closely and

55 ibid [127]; cf William Young J in dissent: policy statements should not be construed with the rigour of
statutory interpretation, ibid [198].
56 ibid [129] (Arnold J).
57 ibid [96].
58 ibid [90].
59 ibid [24 (d)].
60 RMA, s 67(3).
61 Environmental Defence Society (n 1) at [77](Arnold J).
62 ibid [84].
63 ibid [85].
64 (n 33). There are some differences between the statutory powers of Boards of Inquiry and the
Environment Court, but they are not relevant to the present analysis. For a discussion on the subtle dif-
ferences between merits review and primary decision-making in environmental matters, see Elizabeth
Fisher, ‘Administrative Law, Pluralism and the Legal Construction of Merits Review in Australian
Environmental Courts and Tribunals’ in Linda Pearson, Carol Harlow and Michael Taggart (eds),
Administrative Law in a Changing State: Essays in Honour of Mark Aronson (Hart 2008).
 Reconceptualising the Role of the New Zealand Environment Court  517

‘implement’ policy statements in plan-making decisions, rather than reverting to the

Court’s assessment of sustainable management. Accordingly, the case has great rele-
vance to the debate concerning the Environment Court. In the face of seeming
intractability, the Supreme Court has deftly intervened, re-moulding resource man-
agement decision-making, and in doing so, answered the critics and seemingly eased
the pressure on the Court.

5 . C O NC L US IO N
The King Salmon Case has the effect of restricting what had been criticised as a rela-

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tively unfettered discretion under the RMA, restraining the scope of primary deci-
sion-making in the resource management sphere. Indirectly, it serves to remind the
Environment Court of its appropriate role and value as a judicial body, requiring the
use of traditional judicial method to interpret, rather than re-evaluate, the intentions
of documents created by other branches of government with the participation of the
public. The fact that such documents fall within the policy rubric will not excuse the
exercise (a notable point in itself and one that highlights the legal impact of policy in
environmental law).65
The application of the broad ‘overall judgment’ approach, as the ultimate deci-
sion-making framework in all cases under the RMA, operated to push primary deci-
sion-makers too far into the policy-determination sphere. In New Zealand, the High
Court appeared to sanction such a role for the Environment Court because of the
specialist nature of the Court, but it failed to analyse what precisely this specialisation
facilitated or entitled the Court to do. Before specialist courts and tribunals became
commonplace, Lon Fuller theorised that forms of adjudication are inherently un-
suited to polycentric decision-making because they ‘cannot encompass and take into
account the complex repercussions that may result’.66 Environment courts are con-
cerned with polycentric decision-making. Their decisions have an impact beyond the
immediate parties to any dispute and can influence the economic and socio-cultural
wellbeing of present and future generations. Although the New Zealand
Environment Court has more flexibility in its processes and a more expansive out-
look than the forms of adjudication Professor Fuller was concerned with, these char-
acteristics do not avoid the fundamental difficulty. The Court is still operating within
a framework that (in the main) accords to the strictures of traditional adversarial
litigation. Ensuring that decisions are constrained by the policy framework—such
policy created by the politically accountable branch of government, following exten-
sive public participation—neutralises these difficulties to some extent.
The case has broader ramifications. It highlights that careful thought should be
given to the role of specialised environment courts and tribunals. Environment
courts potentially have a number of nuanced but distinct roles, and there is a need
for clarity as to which might be appropriately exercised. Clearly, a judicial body is
suited to determining adjudicative facts, and the specialised nature of the court assists

65 This brief article cannot address this interesting development. For further discussion, see Eloise Scotford
and Jonathan Robinson, ‘UK Environmental Legislation and Its Administration in 2013 – Achievements,
Challenges and Prospects’ (2013) 25 JEL 383, 397–401.
66 Lon Fuller, ‘The Forms and Limits of Adjudication’ (1978–1979) 92 Harv L Rev 353, 394.
518  Reconceptualising the Role of the New Zealand Environment Court

in determining legislative facts (and helps justify this role, so long as this determin-
ation is undertaken in a principled manner) but, once determined, those findings
should be cast within the confines of the relevant policy framework. The Court is
subject to that limitation. It should not, as the Chief Justice opined, be left to the un-
fettered balancing of disparate values.
Whether the King Salmon case will create a seismic shift in the actual substance
of decisions, where so much depends on the particular findings of fact in a given
case, is the subject of debate at present, but the decision is important emblematically.
The approach mandated by the Supreme Court both respects the publicly inclusive

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policy-making process and accords with constitutional mores. It also helps address
the problem identified by Professor Fuller. Interestingly, however the greatest ramifi-
cation of the case may be to insulate the New Zealand Environment Court, effect-
ively deflecting the ongoing criticisms and concerns that have called into question its
continued existence.