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New Zealand Engineering 1998 June Consultation - Law & PossibilityJeanette Watson is a senior associate with law firm, Rudd Watts & Stone.
Alternatively, it may not be a requirement, but something you recognise and enter into willingly, as a practical or useful process in preparing for the project (for example, before redesigning the company cafeteria kitchen, the chef is (hopefully) consulted on the difficulties identified in using the current kitchen and improvements which could be made). I believe that this is the most helpful and practical stance to take, even where the consultation is also required by law. What the law requires The Court of Appeal has recognised six criteria in respect of the duty to consult:• Meetings must be held with parties who are required to be consulted • Parties must be provided with relevant information • Parties must be provided with further information if requested • The meetings must be entered with an open mind • Due notice must be taken of what was said at such meetings • Parties must have had their say before a decision is made. In situations where these six criteria are met, a decision can be properly described as having been made with adequate consultation. In a case between Ngati Kahu and the Tauranga District Council, the Planning Tribunal (as it then was) noted that the Council could not be bound to consult for as long as it took to reach consensus. The Council was obliged to consult for a reasonable time in the spirit of goodwill and open mindedness. This would enable all reasonable planning options to be carefully considered and explored. If, having done this, the stage was reached where, despite reasonable efforts to find a suitable solution, the parties were in a position of ultimate disagreement, then that must be accepted as the outcome. The Council was free to make the decision it did, having fully met its obligation to consult. In determining whether appropriate consultation has taken place, the Planning Tribunal has emphasised that consultation is a two-way process. Each party has a responsibility to work in good faith towards helping the other to make an informed decision. In a 1994 Planning Tribunal decision, the applicant had actively facilitated consultation regarding a subdivision involving sewerage disposal by sea. The relevant runanga withdrew from consultation discussions without giving reasons and later alleged that they had not been properly consulted. The Planning Tribunal held that, given the runanga's withdrawal from discussions, the runanga could not complain at a later date that the Treaty principle to consult had been infringed. Many of these principles have been laid down in relation to consultations with Maori, particularly under the Resource Management Act. However, the principles are applicable generally and, in fact, the most authoritative decision is Wellington International Airport Ltd v Air New Zealand, which is not related to Maori interests or the RMA. In that case, the Court of Appeal laid down the criteria set out above, holding that the word "consultation" did not require that there be agreement. Can the project still founder? The legal answer is that the courts will uphold the validity of the decision, and the project, from a legal viewpoint, should be able to proceed. Obviously, the practical answer may well be that the project does founder, even if the legal requirement to consult has been met, because of the time required for consultation or appeals, or objectors' other tactics (eg. withholding access to land).The most important criteria from a legal viewpoint, but to which only "lip service" is often paid, are the requirements to be open-minded, to make decisions having taken due notice of what was said by the parties consulted, and to make decisions only after those parties have had their say. If it is clear that the developer or other consulting party has been prepared to listen, to really find out what the objections are, to modify plans to meet the underlying fears (where that can be done without jeopardising the development) and to discuss alternatives or engage in some lateral thinking, the courts will be prepared to uphold the decision made - even where opposition remains. This is shown in the Watercare Services Ltd v Minhinnick series of cases (although not specifically relating to consultation). These cases related to an objection to the construction of part of a sewer pipeline over the Matukutura stonefields. Parts of the stonefields were found to be waahi tapu. The objection was on the basis that the construction was objectionable and offensive. The Court held that the consultation process that had been conducted and the solutions adopted (eg. Maori blessing ceremonies) were acceptable to take into account the feelings of reasonable representatives of the Maori community at large, so as to render the construction not objectionable or offensive. The Court agreed that the requirement under s8 of the RMA to consult Maori did not give any individual a right of veto over a proposal. Another possibility The hardest part of a project is not the design of an appropriate engineering solution; it is getting people's commitment to it, if they don't agree with it. The key is consultation - if people have been invited to give their opinions and really feel that they have been listened to, then even if they don't agree with the final decision, they are much less likely to obstruct it.The immense trouble the Japanese take over the process of securing agreement to a plan can be a useful lesson to us. They involve everyone in repeated discussions, which seem undirected and discursive to Western observers. The Japanese think of it as time well spent. There are two payoffs. First, everyone has had the chance to be listened to and taken seriously, so that no objections grow beneath the surface to create unforeseen obstacles later. Secondly, everyone has had a chance to query the project from every angle, so that they all know what to expect and have possibly had the chance to contribute valuable suggestions for making the project better. Sir John Harvey-Jones, the ex-Chairman of ICI, described the process of building two identical paraxylene plants, one in Japan, one in the UK. The Japanese were still having their endless discussions four months after the British began building. But once the Japanese started, "they moved like greased lightning" and finished their plant seven months earlier than the British. And it all worked from day one, whereas the British plant went through three months of teething troubles after it finally did open. These all-embracing discursive discussions are exactly what a hui is for, what local public meetings are supposed to about. Unfortunately, this leads back to the issue I highlighted in my last article (NZE, Nov 1997) - that it assumes a high degree of public participation, which people are not providing in New Zealand. I contend that the general public is not used to being listened to, by the Government or developers, so this lack of interest in participating is understandable. For any project where consultation is to be taken seriously, an intensive educative process is needed, in parallel with any consultation, to really let people know that they can make a difference and will be listened to. That is a major undertaking for any project team. Embracing consultation and making it work for the benefit of the project has worked well for the Japanese. Perhaps the ability to put the brakes on and consult well and openly, before getting a project on the road, needs to become a recognised skill for engineers, and all other project personnel (and the project sponsors!).
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