New criteria for accessing Environmental Legal Assistance Fund

Last Friday, the Government introduced new criteria for accessing an environmental legal assistance fund traditionally designed to provide communities with access to justice on environmental issues. Several groups have voiced their concern over the changes, suggesting that they further erode public access to justice.

The Environmental Legal Assistance (ELA) fund provides an annual pool of $600,000 to support not-for-profit organisations advocating for matters of environmental public interest.  Funding enables applicants to legally challenge developments on environmental grounds under the Resource Management Act,  at the Environment Court or board of inquiry.

The new criteria, added on Friday with no formal press release, requires the panel to consider when deciding whether to recommend funding, whether granting the money will "contribute to impeding or delaying the ability of people and communities to provide for their social, economic and cultural well-being in relation to important needs, including employment, housing and infrastructure."

Sally Gepp, lawyer, Forest & Bird says the recent move to introduce a criterion regarding environmental litigation "delaying or impeding" development is very concerning. "It is hard to imagine an Environment Court case that does not delay or impede the project it relates to. That is the nature of the RMA process, which relies in part on public input to identify and test environmental impacts. This change will further reduce environmental groups' ability to participate in RMA processes on anything close to a level playing field", she said.

Forest & Bird regularly applies to the ELA fund to support expert witness costs for Environment Court cases.  For organisations such as theirs, access to such funding goes some way to levelling the playing field.  In this respect,"[the] recent changes are very concerning”, notes Ms Gepp.

Last year Minister Smith, who is both Environment Minister and Minister for Building and Construction minister, took over the role of granting or declining Fund applications. Formerly, this process sat with the Ministry for the Environment. According to a report by Stuff, Minister Smith says the new criteria wouldn't take the fund's teeth away or mean that no challenges to housing projects would be financed.

"It just gives a signal to the [ELA fund] panel that they need to consider, alongside the environmental considerations, the impact on housing and transport", Smith said."There's always a judgement call for to determine where there is just a bunch of NIMBYs and where is there an important environmental issue that needs to be resourced and tested in court", he added.

The new assessment criteria is as follows:

Assessment criteria

The fund’s criteria have been updated following the enactment of the Resource Legislation Amendment Act 2017. The changes more effectively and clearly communicate the fund priorities for funding while ensuring the fund continues to appropriately reflect New Zealand’s resource management framework. The changes provide greater clarity and transparency about what the fund seeks to achieve, but do not materially change its purpose or assessment considerations.

Primary criteria

When deciding whether to recommend funding, the panel will:

consider whether a group’s case is in the environmental public interest, namely whether it: 

• relates to a nationally or regionally important issue
• raises Resource Management Act Part 2 matters
• has the potential to create useful case law
• has the potential to improve the administration and efficiency of the Resource Management Actinvolves issues of national importance which will not be addressed in full before the Environment Court or a board of inquiry without the expert evidence provided by the group

specifically consider: 

• the degree of collaboration undertaken or proposed to be undertaken by the applicant with other parties in the case
• whether funding the applicant’s involvement in the legal proceedings will contribute to impeding or delaying the ability of people and communities to provide for their social, economic and cultural well-being in relation to important needs such as employment, housing and infrastructure.

Secondary criteria

When deciding the level of funding to recommend, the panel will consider:

• the commitment of the group - demonstrated by its ability to manage the case (including any previous experience in legal cases), its history with the issue, the time it has invested, its financial contribution (having regard to the position of the group and the resources it can offer), its efforts to raise funds and the pro bono contribution from lawyers and/or experts
• whether the group is open to mediation, and whether mediation is appropriate in the proceedings
• whether there is likely to be an imbalance between the quality of evidence and case management between the parties due to a lack of financial resources
• whether the case is vexatious or frivolous
• whether the case relates to a board of inquiry or a direct referral to the Environment Court
• whether the group and/or its members has a private interest in the outcome
• whether the case relates to policy and planning instruments
• any other matters arising out of the application.

After consideration of the secondary criteria, the panel may recommend that no funding is awarded.

For more information about the fund, click here.