11 Establishment of the Hearing Panel

11.1 RMA Requirements

Sections 39 to 42 of the Act outline the powers and duties of hearing panels. Some of these sections are relevant to other discussions in this report, so are not outlined here.

Section 39 (1) allows consent authorities to establish hearing panels for a range of purposes, including hearing resource consent applications and submissions on policy statements and plans.

Section 39 (2) requires that a hearing be in public and without necessary formality. This is discussed more in Section 13 of this report.

Sections 39A to 39C deal with the accreditation process for hearing commissioners. All three commissioners appointed by the MDC were accredited.

Sections 41 sets out some of the procedures that may be used at commissioner hearings, and confers some limited powers to hearing panels. Those of relevance to the current discussion include directing the order of business, requiring pre-circulation of evidence, and requiring a party to provide further information during the course of a hearing.

11.2 Actions Taken by the MDC

At an early stage in the processing of the applications, MDC officers approached Tony Willy to chair the hearing.

Tony Willy wrote to MDC on 14 August 2005, apparently in response to being offered the role of chairing the hearing, to confirm his availability. He indicated that either three or five commissioners would be appropriate, and that four “may prove awkward”. He also said that “it may be better to have the experts available to give evidence rather than have them as members of the panel. This will give greater flexibility and save unnecessary expense”. He also considered that given the new powers under the Act the hearing should be recorded, and sought a pre-hearing conference to discuss matters like dates for exchange of evidence. He said that he had no view on the applications and at that time declared no conflicts.

The other panel members, Max Barber and Jill Bunting, indicated that they were first approached by MDC in about September 2005.

On 16 January 2006, Tony Willy advised MDC that his wife would in future have some 6ha of vineyard irrigated by the Marlborough Water Augmentation Group by way of the Southern Valleys Scheme¹⁰ and that he also used a small volume of this water for irrigation of ornamental trees. He considered that this should be drawn to the council’s attention, but did not see that he had a conflict of interest. He also indicated that he would tell the main parties at their meeting on 25 January 2006 (this subsequently occurred and no issues were raised).

On 8 September 2006, the Environment Committee of the MDC appointed a hearing panel comprising Tony Willy (chair), Max Barber and Cr Jill Bunting for the applications. Extracts from the paper to that Committee are in Appendix 3 of this report.

• Tony Willy is a qualified lawyer and barrister whose practices included resource management. He has been appointed to each of the District Court, the Tax Court and the Land Valuation Court. He was an Alternate Environment Court Judge for about eight years until his retirement from the bench around 2002. Prior to being appointed to chair the hearing of the TPL applications, Tony Willy was a sole commissioner for approximately a dozen resource consent applications to the MDC.
• Max Barber is a Christchurch based resource management consultant. He has a MA in geography, an MA in regional planning from England, a diploma in town planning and is a full member of the NZ Planning Institute. He worked for the Canterbury Regional Council and its predecessors prior to 1995. He has been a hearings commissioner since 1997. Previous commissioner work for the MDC included being on panels that heard and decided on applications for two substantial local irrigation schemes taking water from the Wairau River.
• Jill Bunting is a second term elected member of the MDC. At the time of her appointment she was chair of the hearings committee; she is now chair of the planning committee. She participated in approximately 30 consent hearings, all as chair, prior to her appointment to the hearing panel for the Wairau consent applications.

11.3 Views of Those Interviewed

There was a general consensus among those interviewed that the hearing panel, while intelligent and competent in legal and planning matters, did not have the breadth of technical skills to understand fully the hydrological, engineering and ecological aspects of the applications. Interview respondents saw this as a key factor in why the original hearing took so long, as detailed technical explanations were frequently sought from witnesses, particularly those representing TPL. Typical comments made by respondents included:

• “We were not sure if the panel had the expertise required to assess the effects of the applications, particularly regarding s6 matters such as natural character and ecology. Some of the core issues were not understood.” (Forest and Bird)
• “The panel did not see the wider picture and the inter-relationships between the issues that were raised. There was a lack of technical expertise on the panel”. (DoC)
• “We had reservations about their competence. There was no one with hydrology, avifauna or fisheries expertise on the panel. The nature of the questions asked reinforced the view that they did not understand the technical aspects of the case”. (Save the Wairau)
• The panel was intelligent but was out of its depth technically. They struggled to separate the methodology used in a study from the results of that study. (TPL)

Respondents gave some examples of how they considered that the lack of technical expertise on the panel contributed to the length of the hearing. For example, TPL said that questions directed at one of their early witnesses indicated that the panel lacked technical expertise in engineering in particular. As a result of this, TPL said that they redrafted all their evidence and presented it in a very non-technical way.

11.4 Views of the Panel

These criticisms were put to members of the hearing panel. Their responses included:

• “MDC suggested to me that an expert be appointed to the panel as many of the residents in the Wairau valley appeared to be very unhappy with the proposal and there were a range of water, aquatic ecology, avifauna, engineering matters and social questions to be addressed. Having considered the matter we concluded that there would be about 7 or 8 main areas of debate and that no one additional person on the panel could help greatly. Judges often hear matters about which they know little, and provided experts went along with code (of conduct for professional witnesses) a competent panel should be able to assess the evidence. This is the position that the council ultimately adopted”. (Tony Willy)
• “The panel recognised that the evidence was complex. We asked a lot of questions to satisfy ourselves that we understood the evidence given. I am not sure whether we would have been better served by additional expertise on the panel – we did commission reports on electricity industry and pest control, and we considered doing so for economics. We did not consider that there was a need for additional engineering or hydrological evidence as we believed it was fulsome. We took the task seriously – if we did not understand an issue we would have worked through it or asked for additional assistance”. (Max Barber)
• “The difficulty would have been isolating which technical expert would have been required, as under that assumption, the panel would have required several additional skill sets given the wide range of matters covered during the hearing. In retrospect, having an ecologist on the panel may have been helpful although I believe we were able to do that subject justice with the evidence presented”. (Jill Bunting)

11.5 Comment

The competencies of a hearing panel are important in allowing that panel to appraise complex resource consent applications. Most respondents were critical of the panel’s technical abilities to readily understand some of the complex engineering and ecological evidence placed before them. Respondents considered that this contributed substantially to the length of the initial hearing. For example, one hearing participant estimated that 33 TPL witnesses gave about 90 briefs of evidence. This was certainly a factor that led to the average direct hearing cost to TPL being around $22,000 per day versus the $5,000 per day they would normally set aside for an “average” resource consent hearing.

All members of the panel implicitly recognised that they lacked some technical expertise. Their response was this was why they asked so many questions and asked for additional further briefs of evidence on predator control and the electricity industry. The panel also referred to the primary decision, which they considered comprehensively addressed all the technical evidence.

Some of this criticism about the lack of technical skills on the hearing panel could perhaps rest with the MDC and their appointment of the panel. The report prepared by MDC to establish the panel¹¹ suggested three names with little analysis apart from saying that there would be complex legal matters to deal with and therefore legal expertise was necessary. Comment was made that technically skilled people could have been appointed to help the panel. This would have involved, for instance, contracting in people with expertise in matters such as aquatic ecology or engineering to assist the panel with the technical evidence provided, or alternatively requesting that further expert reports be commissioned.¹²

By way of comparison, the following examples of similar consent processes illustrate the approach of the nearby West Coast and Canterbury Regional Councils to balancing the skill mix of hearing panels:

1. TPL sought, and in November 2008 were granted, resource consents for an upgraded HEP scheme on the Arnold River on the West Coast. As with the Wairau the proposal was to take water from the river along a canal and discharge it back into the river further downstream. Many of the effects of that scheme were similar to those assessed as part of the Wairau – such as the effects of residual flows on fishery and recreational values. Similarly the engineering evidence was complex, involving construction of a canal including flumes, a head pond, power station, regulation pond and discharge back to the river via a constructed kayaking course. The consent authorities (West Coast Regional and Grey District Councils) appointed a panel comprising a former chairman of the regional council, an engineer with extensive experience in river engineering, and an aquatic ecologist.
2. Similarly the West Coast and Buller District Councils appointed a hearing panel comprising an engineer, an aquatic ecologist and a local representative (with a district planning background) to hear and decide applications for a proposed new HEP scheme on the Mohikinui River north of Granity. That proposal involves damming the entire river and the formation of a lake some 14km long.
3. The proposed Central Plains Water Scheme in Canterbury involves substantial takes from the braided Waimakariri and Rakaia Rivers, conveying that water via canals to a 280 million cubic metre storage reservoir, and then distributing that water over a 60,000 ha command area on the Canterbury Plains. As with the proposed Wairau Scheme there is very strong opposition from local communities, particularly the township of Coalgate. The Canterbury Regional and Selwyn District Councils established a hearing panel comprising a very experienced RMA lawyer as chair along with an engineer, an ecologist and a planner. Each member has been assigned work in accordance with their particular area of expertise.
4. The Canterbury Regional Council appointed a hearing panel comprising a retired Environment Court judge as chair, an engineer and an aquatic ecologist to hear resource consent applications from Meridian Energy for a new power scheme and irrigation scheme on the north side of the lower Waitaki River.

What is perhaps most important here is the issue of perception. The applicant and the institutional submitters interviewed all perceived that the hearing panel lacked some of the technical skills to understand and evaluate fully the applications, and they were generally critical of this. This criticism from submitters became more strident when the panel made its initial decision to grant the applications. The panel, on the other hand, considered they were sufficiently competent to objectively evaluate all the evidence.

11.5.1 Alleged Conflict of Interest

In January 2008, just prior to the conditions hearing, there was an allegation made to the media by a representative of “Save the Wairau” that Tony Willy had an undisclosed conflict of interest. This related to his shares in a company called “Ecodyne Limited”, which existed to “develop environmentally benign forms of power generation”. The article alleged that because of the shareholding in Ecodyne Tony Willy “might have had reason not to act with the scrupulous fairness that his position demands”.

Ecodyne Limited has no association whatsoever with TPL, and this allegation of conflict of interest was totally unfounded. Further, as noted in Section 11.2, he had quite properly publicly declared a potential conflict in relation to his wife’s use of water from the Southern Valleys Irrigation Scheme.

11.6 Lessons Learnt

There are two key lessons for consent authorities generally associated with the process of appointing hearing panels:

• Wherever possible hearing panels should be composed of individuals with the range of skills relevant to the circumstances.
• Commissioners need to ensure that all potential conflicts of interest are declared prior to a hearing commencing. This matter is well covered in Module 6 of MfE’s “Making Good Decisions” programme.

In addition to these lessons, there are also a couple of issues associated with the appointment process that could warrant further consideration by MfE:

• As the skill mix of a hearing panel has a pronounced bearing on the outcome of a hearing, options could be explored to ensure that consent authorities more explicitly consider the mix of skills required.
• Ensure that an Environmental Protection Authority has access to a range of technically competent independent commissioners.