Hosting meetings virtually has become more common. Alert Level restrictions, introduced in response to COVID-19, impacted on councils’ abilities to hold face to face public hearings. Some councils are starting to use ‘remote access facilities’ (such as Zoom) to undertake RMA hearings virtually.
The Ministry for the Environment (MfE) has released interim guidance to assist councils to use remote access facilities to host virtual RMA hearings.
For many resource management practitioners and councils, holding virtual meetings, hearings, and mediations, has been necessary to enable planning and consenting processes to continue during alert level restrictions. For a council to host a hearing virtually, principles of natural justice apply to ensure all procedures are open, fair and transparent in all the circumstances.
Section 39(1) of the RMA requires councils to hold hearings in public and conduct them fairly and appropriately in the circumstances.
Section 39AA of the RMA was inserted in response to COVID-19 and enables hearings to be conducted using remote access facilities. Remote access facilities are defined in section 39AA(1) as an audio link, audio-visual link and any other similar facility. Councils, or a person given authority to conduct a hearing, can direct, on its own initiative or at the request of any person with a right to be heard, that a hearing or part of a hearing be conducted using remote access facilities. A council (or person given authority) can do this provided that it considers that it is appropriate and fair to do so and it is satisfied that the necessary remote access facilities are available.
With the recent increase in the use of remote access facilities some advantages of hosting a council hearing virtually include:
- the ability for an authority to be adaptable in times of uncertainty
- efficiencies for time and cost for those who would normally travel to partake in a hearing
- more transparency as they increase opportunities for the public to be informed and recorded proceedings enable the hearing to be viewed by parties at any time
- the environmental benefits of less travel and consumption for all participants
Councils who conduct hearings must recognise tikanga Māori where appropriate and this applies to any hearings held virtually. As tikanga is dynamic, tangata whenua views may differ across iwi and hapū as to what virtual tikanga procedures are appropriate.
Discussions with tangata whenua about virtual hearings should be done early, possibly before other submitters. These discussions should include kōrero on how to support them to ensure tikanga can be appropriately incorporated into hearing procedures.
The Ministry would like to hear feedback from councils, practitioners and others involved in running hearings remotely, about how useful the guidance is and whether there are additional areas that could be included. Please send any feedback or questions to RMQueries@mfe.govt.nz.
The Resource Management Law Association hosted a webinar in June 2020, discussing council hearings in a virtual world. A panel of hearing commissioners (Dr Phil Mitchell and Paul Cooney) along with experienced hearings facilitator Sue Bulfied-Johnston share their experiences and lessons learnt from conducting hearings remotely, particularly during the COVID-19 lockdown. A recording of the webinar can be found here.
