Budget cuts silence environmental defenders
A fund that helped community groups wage environmental battles in court has been axed amid other moves to restrict public input.
Many millions of dollars were taken from environmental activities in the recent Budget to “align with the government’s priorities”. There were cuts to waste minimisation, climate change activities, freshwater health initiatives, environmental data-gathering, indigenous biodiversity enhancement and “partnerships and engagement”. In the latter category, a key axing was the Environmental Legal Assistance (ELA) Fund.
For 23 years, this legal aid fund has been distributed by the Ministry for the Environment to not-for-profit groups, incorporated societies, and hapū and iwi to assist with the hefty price tag that comes with taking litigation to courts or boards of inquiry. Applicants to the fund had to show their case would be in the “environmental public interest”.
Originally, the fund had an annual budget of $1 million but in 2016 was reduced to $600,000. The maximum a group could receive for a case was $50,000, a sum quickly gobbled up by legal processes, and many applicants received less.
Clear the Air, a community group in Mt Maunganui, got $40,000 from the fund to oppose an air discharge consent application by Allied Asphalt in the Environment Court in May. “The cost for a lawyer and planner for only a short time came to a bit more than $40,000,” says spokesperson Emma Jones, “even though our lawyer acted pro-bono for some parts to help keep costs down, so we still have to fundraise. Allied Asphalt had a lawyer and planner for years. We’re up against these massive, multimillion-dollar industries.”
The Mount’s residential area, schools and preschools lie in an airshed that’s officially designated as polluted due to noxious compounds released by the Port of Tauranga and adjacent industrial businesses. Two recent reports said the pollution causes hospitalisations and early deaths. Te Whatu Ora provided an air quality expert in court, as did the Bay of Plenty Regional Council.
The council has regulatory authority over the area’s air quality, and its investment arm is the port’s majority shareholder. In court, it supported an air discharge consent for 25 years. The court’s decision is expected soon.
Jones has led the community in opposing consents for the area’s other heavy industry, including another asphalt plant and Genera, which fumigates goods travelling via the port with methyl bromide gas. But this time, says Jones, “it was a total game changer to have legal representation and a planner to advance our case. We could see how to make an argument the court can actually use.”
Soon, she says, new air discharge consents will be applied for by other industries. “Now that I know how valuable a legal fund is, not to have access to it is really disappointing.” They’ll keep going, though. “No matter how difficult and complex it is, the fact remains that 3500 kids are downwind of a heavily polluted area. People who grew up here say, ‘I wish my parents had done more.’”
Out of luck
Judges are aware of the disparate resources between parties in environmental disputes. When Supreme Court judge Stephen Kós was president of the Court of Appeal, he reflected during a 2017 lecture that good environmental decision-making requires robust evaluative processes. That normally depends on effective public participation, which, in turn, depends on a reasonable equality of arms – in other words, properly resourcing public participation in environment cases.