The Government has recently amended the criteria for accessing the Environmental Legal Assistance Fund. An additional criterion now requires the decision maker to consider “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.”
The ELA Fund’s criteria were updated on 30 June 2017 after the enactment of the Resource Legislation Amendment Act 2017. The Ministry for the Environment has stated that the changes to the ELA Fund’s criteria are intended to “more effectively and clearly communicate the fund priorities… but do not materially change its purpose or assessment considerations.”
About the Fund
The ELA Fund’s purpose is to enable not-for-profit groups advocating for matters of environmental public interest to participate more effectively in resource management processes. It was established in 2001, and has an annual budget of $600,000. Applications to access the fund are assessed by an independent advisory panel, who make a recommendation on each application to the Minister for the Environment. The Minister will then make a final decision as to whether the group qualifies for the ELA Fund (this is a recent change; the independent panel previously made the final decision under a delegated power). Successful applicants for funding enter into a deed of funding with the Ministry for the Environment, whereby the Ministry pays the costs of expert witnesses and/or legal counsel up to a specified sum.
When assessing an application to access the ELA Fund, the independent panel will consider:
- whether a group’s case is in the environmental public interest (this is determined by whether it relates to a nationally or regionally important issue; raises RMA Part 2 matters; has the potential to improve the administration and efficiency of the RMA; or involves issues of national importance); and
- the degree of collaboration undertaken or proposed to be undertaken by the applicant with other parties in the case.
It will now also consider the new criterion, as stated above.
When determining the level of funding to approve for a successful applicant, the panel will consider a number of factors, including the commitment of the group (demonstrated by such factors as its ability to manage the case; its history with the issue; the time it has invested; its financial contribution; its efforts to raise funds; and the pro bono contribution from lawyers and/or experts); 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; and whether the group and/or its members has a private interest in the outcome.
Some not-for-profit groups who have previously accessed the ELA Fund have criticised the new criterion, claiming it is aimed at preventing community groups from participating in and opposing nationally significant infrastructure projects. The new criterion has also been criticised by the Green Party as an attempt to prevent non-governmental organisations from being involved in controversial cases.
Minister for the Environment Nick Smith has stated that the new criterion is intended to be a “signal” to the panel that they need to consider the impact of a proposal on housing and transport, beyond environmental considerations. The Minister has stated that the Government does not want the ELA Fund used to impede new housing or infrastructure given the national need for such projects. He claimed that the new criteria would not mean that challenges to housing projects will never be financed.
The RMA has a well-documented ethic of public participation, and the ELA Fund was established in part to remove financial barriers to such participation. Of course, despite this public participatory ethic, there is no inherent legal ‘right’ to funding. Whether the Government should provide funding, and on what scale, is a matter of political opinion.
The National Government has repeatedly claimed a strong focus on increasing housing supply over its current term. It is thus unsurprising that it does not wish for housing or infrastructure projects to be constrained by groups funded by the ELA Fund, which was established by a Labour Government in a different political climate.
The new criterion is simply one additional matter to be considered and appropriately weighted by the independent panel, and should not in theory rule out public participation in controversial infrastructure or housing projects. However, in another recent change to the operation of the ERA Fund, the Minister has recently reclaimed the ultimate decision-making power over funding. In light of these developments, it will be interesting to see how future applications for funding are assessed, and whether the Minister’s decisions will depart from panel recommendations.