Poor Process and Bias

Johnson, S. FMC Bulletin Vol. 150, pages 27-29, November 2002

The continuing story of Routeburn Rage 2002 and DOC Otago

Introduction

Readers may recall my article in Bulletin 146 November 2001 in which I described the questionable way DOC Otago approved a concession application from Jason Caulton (Total Outdoor Momentum) for the "Routeburn Rage". That was a mountain race of up to 300 people to be held on the Routeburn Track on Saturday 5 May 2001. I had argued that the DOC Otago reports approving the application had made subjective and questionable judgments about the results of the public consultation process and about the effects and mitigation of the application.

The race was cancelled in early May 2001 due to a lack of registrations. However in April 2002 I found out that DOC Otago had, on 13 December 2001, approved without any public notification, an application for another race on 4 or 5 May 2002. I requested the report approving the application. This report used all the same subjective and questionable judgments to justify granting the concession without public notification.

On 30 April 2002 I wrote a letter of complaint to Hugh Logan about the process. I stated that the effects of the race were subjectively assessed, that there had been a breach of natural justice, that the non-notification was based on a biased view of the public submission process and that hypothetical and irrelevant matters were considered to be “adequate mitigation”.

The “Rage” happened on 4 May 2002, apparently in “crud” weather. Hugh Logan replied on 26 July 2002 with a polite and respectful letter which none-the-less concluded that DOC Otago had properly processed the concession. I suspect DOC Otago drafted it. What follows is a summary of the responses of that letter.

Subjective Effects and Breach of Natural Justice

In three “Rage” reports DOC Otago provided insufficient objective arguments that the social effects of 300 runners on trampers would be sufficiently minor to be acceptable. For example the first “Rage” report based this conclusion on a clearly incorrect estimate of only 15 trampers being on the Routeburn in May.

The second “Rage” report committed a breach of the rules of natural justice by using a Kepler Run survey to justify the conclusion of minor effects. This was new information introduced late in the process that the submitters had no opportunity to comment on. When West Coast Conservancy granted a new glacier guiding concession without disclosing a letter about safety issues to submitters the judge regarded it as a serious breach of the rules of natural justice that tainted the decision. See Franz Josef Glacier Guides Ltd & Anor v Minister of Conservation and Anor. Panckhurst J, High Court Greymouth, CP 14-98, 13 October 1999, pages 17-20.

Hugh’s letter did not dispute that the late use of the Kepler Run survey was a breach of natural justice. It indicated that, in hindsight, this was a well-intentioned omission. I suggest that DOC Otago need to carefully read the Glacier Guides case. They need to be more aware that breachs of natural justice can make decisions legally invalid.This is conclusive evidence of poor process.

Hugh’s letter mentions conservation boards as checks and balances on the acceptability of the effects of concessions. However the letter fails to mention that the Southland Conservation Board opposed the second “Rage” because of significant impact on track users. They were no doubt representing the concerns of the Southland tramping clubs who value the opportunity to tramp the Routeburn in May outside the restrictions of the booking season and before snow brings avalanche danger (and without encountering 300 runners). However this view was simply discounted in the “Rage” report dated 13 December 2001. Advance notice of the race “should minimise any impacts on other users” (p 10).

Public Consultation

Jason Caulton initiated postcards of support for the 2001 “Rage” via harrier club newsletters. 149 postcards were received. DOC Otago considered them to indicate considerable public support for the race and considered there was no need for public notification of the 2002 “Rage”.

I argued the obvious, that the harrier club members were not representative of the public and the conclusion of considerable public support could not be reasonably made from the postcards. Therefore the postcards were not an adequate justification for by-passing the public submission process. Hugh’s letter argues that it is reasonable for the decision-maker (DOC Otago) to consider the postcards (that he agreed are not representative of the public) to be representative of the public! This gives a strong impression of a biased process.

Clayton’s Mitigation of Effects

For both “Rages”, DOC Otago concluded that the number of walkers affected in May would be less than in the busy summer season. Therefore the effects are adequately "mitigated". I argued that the effects and mitigation of a race on a different date are not relevant. Hugh’s letter disagreed and it confused the “scoping” effects before a application is made with the Minister’s role of considering an application for an activity on a fixed date. In the latter case the date can’t logically be regarded as ‘mitigation’ as it is fixed and not variable.

Conclusion

When DOC decides not to notify a concession application it denies the public the right to directly participate in the process. Groups such as tramping clubs cannot express their views as affected parties about the commercial use of their local conservation areas. I suggest that DOC must have strong and objective justification for considering the effects of an application to be sufficiently minor to justify non-notification.

This was not the case for the two “Rage” applications. For the 2002 “Rage”, the reasons for non-notification (and for granting the application) were based on:

  1. subjective judgments of effects that were not supported by Southland Conservation Board,
  2. a biased view of postcard submissions from the harrier clubs in favour of the 2001 “Rage” as representing public support, and,
  3. a mistaken view that a comparison with a hypothetical situation (an alternative but irrelevant date) constitutes relevant mitigation.
If there is doubt or concern from a conservation board about a concession application then the default procedure under the Conservation Act is to either request more information, publicly notify, or decline the application. Instead it appears DOC Otago finds questionable arguments supporting the conclusion of “no unmitigated effects”. This gives the strong impression of bias

Finally I’d like to try to cut through the turgid interpretation of process and legislation. I am impressed to note in FMC Bulletin 149 that Hugh Logan and his family enjoy tramping in national parks. I wonder if they would be perfectly happy to meet 300 runners on the Routeburn Track? Would the runners have no adverse effect on their experience of “inspiration, enjoyment, and recreation” in a national park? If Hugh Logan cannot honestly say “yes” to both questions I don’t see how it can be concluded that DOC Otago properly processed the Routeburn Rage concession application.

Simon Johnson

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