30 September 2002
Dear Hugh
Approval of a Concession for the “Routeburn Rage” Mountain Run 4/5/02.
Thank you for your response of 26 July 2002 to my letter of complaint of 30 April 2002 concerning the ‘Routeburn Rage’ mountain run concession. I note that you appreciate having these issues brought to your attention as they allow the Department to continually improve its processes. I appreciate the time and effort you and you staff have obviously spent in considering the issues I have raised and in carefully writing the response.
However after some thought and after reviewing my original letter and the original concession reports I have reached the conclusion that the letter of response you and your staff have prepared does not substantively address my concerns. Because of that I am sending a copy of this letter to the Minister and I am considering writing to the Ombudsman.
I will give examples of what I mean.
In the section headed ‘Social Effects on Trampers’ the letter discusses the testing of acceptance of effects and notes the parties who supported the approval of the second race. It fails to mention that the Otago Conservation Board was not consulted about the first race. They were only consulted about the second race as I had raised the issue with them. The letter fails to mention that the Southland Conservation Board opposed the second race because of significant impact on track users. They were no doubt representing the concerns of the Southland tramping clubs who would value the opportunity to tramp the Routeburn in May outside the restrictions of the booking season and before snow brings avalanche danger. However this view was discounted in the report dated 13 December 2001 as advance notice “should minimise any impacts on other users” (p 10).
In the section headed ‘Natural Justice’ the letter glosses over the issue of of the breach of the rules of the natural justice. The letter considers that in hindsight it would have been better to have the Kepler Run survey information in the first determination report. The second paragraph gives the explanation of the reason for the breach of the rules of natural justice. It was done to make an informed decision. The two paragraphs lack an explicit conclusion. I am left with the impression that the issue is considered to be no more than a minor omission.
I will point out the context of the introduction of the Kepler Run information into the decsion- making process. It was a response to my submission pointing out that a fallacious argument had been used to conclude that the social effects of the race would be minor. That was the incorrect assertion that there would only be 15 trampers on the track. Otago Conservancy were simply trying to find justifications for the conclusion of no social effect they wanted to make.The Kepler Run survey was explicitly referenced and relied on in the report dated 12 April 2002. It was not disclosed to me. I did not become aware of it until I recieved a copy of the report of 12 April 2001 which I had specifically requested.
Your letter does not dispute that the fact situation was a breach of the rules of natural justice. I suggest that your staff need to read the Franz Josef Glacier Guides case (Franz Josef Glacier Guides Ltd & Anor v Minister of Conservation Anor. Panckhurst J, HC Greymouth, CP 14-98, 13 October 1999, pages 17-20) more carefully. In that case Judge Pankhurst considered the non-disclosure of a letter recieved by West Coast conservancy staff as a serious breach of the rules of natural justice. He viewed the decision of the Minister’s delegate as tainted and directed the Minister’s delegate to reconsider the decision.
In the section headed ‘Public Notification and Consultation’ your letter agrees that the 149 post cards of support from harrier club members were not likely to be representative of the broader public view. The letter then states that they needed to be considered and that “what weight is attached to them is of course a matter for the decision-maker”.
The decision-makers considered the postcards to represent public support. The report dated 12 April 2001 states, “With respect to this event there is considerable public support in the form of supporting submissions. Supporting submissions with respect to this application well outweigh opposing submissions, in purely numerical terms”(p 7). It is also explicitly the conclusion of the report of 13 December 2001, “there was considerable public support in the form of supporting submissions (on a standard form supplied by the applicant).”
Your letter has not convinced me that it was acceptable practise for Otago Conservancy to consider the postcards as indicative of considerable public support for the race. It was certainly short of best practise. It verges on being unreasonable in the administrative law sense of being perverse, absurd or outrageous in defiance of logic.
In the section headed “Mitigation of Effects” your letter states that is not the case that the DOC Otago staff recognised the effects of the May race as being adequately mitigated in comparison to a hypothetical situation where the effects are worse (the race held in the summer season on the Routeburn Track). Both reports specifically concluded that lower numbers of trampers in May than in the booking season equated to satisfactory or reasonable mitigation of effects (p 5, para 1 of report of 12/401: p 4, para 8, report of 13/12/01).
I base my argument that the effects and mitigation of a hypothetical concession activity on a different date are not relevant to assessing the effects and mitigation of an intended concession activity on a plain reading of the legislation. The duration of the activity must be specified in the application under s 17S(1)(e). In considering the application the Minister shall have regard to; the effects of the activity under s 17U(1)(b), and, “Any measures that can reasonably and practicably be undertaken to avoid, remedy, or mitigate any adverse effects of the activity”, under s 17U(1)(c). The activity was clearly a race on the Routeburn in May.
Further your letter states that “when designing and scoping the effects of any proposal, identifying alternative dates or locations is a legitimate way of reducing potential effects”. This response confuses discussions prior to an application with the statutory role of the Minister which was to consider applications for two races with specifically fixed and stated May dates. Discussions held between DOC and an applicant about suitable dates prior to the application being finalised are no doubt well and good. However once the application is received the date becomes fixed as specified in the application.
As the dates were specified in both applications (May), the effects and mitigation of alternative dates (the summer season) were hypothetical and therefore irrelevant matters. Relevant mitigation measures under s 17U(1)(c) must be specific to the date proposed in the application.
The arguments in your letter do not persuade me that hypothetical summer dates of the Routeburn race were appropriate to consider as relevant mitigation of the effects of the race. The inclusion of such matters in the DOC Otago and your defence of them seems motivated by the desire to find arguments supporting the conclusion of “no unmitigated effects”. Again this gives the strong impression of bias. It is clear from the legislation that the Minister’s role is to carefully and objectively assess the application, not find irrelevant matters that can be claimed to support it.
Your letter continues by stating that DOC has taken a precautionary “trial and monitor” approach with the May 2002 race and that you had enclosed the resulting monitoring report. It was not in the envelope with your letter. I’d like to see it, thank you.
I suggest that if there was such uncertainty about the effects of the race that it needed to be considered a trial, then the effects of the race either warranted either; public notification, or, a request from the applicant for more information, or, the decline of the application. That would be the true precautionary approach.
I would also be grateful if you could please inform me if your response was prepared independently of Otago Conservancy.
Finally I’d like to try to cut through the turgid interpretation of process and legislation by an appeal to your outdoors common sense. I am impressed to note in FMC Bulletin 149 that your family enjoy tramping in national parks. Can I ask if you and your family would be perfectly happy to meet 300 runners on the Routeburn Track? Would they have no adverse effect on your experience of “inspiration, enjoyment, and recreation” in a national park? If you cannot honestly say “yes” to both questions I don’t see how you can conclude that DOC Otago properly processed the Routeburn rage concession.
Yours faithfully
Simon Johnson