Mediating sustainability: the public interest mediator in the New Zealand environment court.

• Author: Higgs, Stephen

1. INTRODUCTION II. SUSTAINABILITY DECISIONS AND DISPUTE RESOLUTION UNDER THE RMA A. The Resource Management Act 1. Sustainable Management 2. Integrated and Devolved Decision Making 3. Resource Consents (Permitting) B. The Environment Court 1. Court 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)

2. 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.

   1. 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...