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Environmental Legal Assistance Fund

Closing dates for completed applications and dates of Panel meetings

Closing dates Advisory Panel meeting dates
Tuesday 19 May 2009 Friday 5 June 2009
Tuesday 7 July 2009 Friday 24 July 2009
Tuesday 25 August 2009 Friday 11 September 2009
Tuesday 22 September 2009 Friday 9 October 2009
Tuesday 20 October 2009 Friday 6 November 2009
Tuesday 17 November 2009 Friday 4 December 2009

The December funding round for the Environmental Legal Assistance Fund (ELA) is now open for applications. The closing date for the December round is 17 November 2009.

We would like to alert you that this is expected to be the last funding round for this financial year. This is because the Fund is likely to be fully allocated after this round.

The principal contributing factor to the Fund being fully allocated for 09/10 is due to the significant increase over the last two years in the number of major projects seeking consents.  Groups that are parties to hearings on major projects are more likely to meet the criteria for funding.  The hearings are also likely to be more complex and hence larger amounts are sought for expenses.

Once the Fund has been fully allocated, new applications for funding will not be accepted. Any existing holders of Deeds of Funding who want to request a variation to their Deeds should discuss their needs with the Fund administrators.

Details of all applications and grants, including those for the current 09/10 year, are recorded in the table at the end of these ELA Fund web pages.

The Ministry is currently assessing how the Fund can operate more efficiently while still providing the benefits that it provides nationally. This will include an examination of the funding criteria.

Please feel free to contact the Fund team to discuss any concerns you may have at:

Ministry for the Environment
PO Box 1345
Christchurch
Telephone (03) 365 9267 or (03) 365 9556
Fax (03) 365 9560 elafund@mfe.govt.nz

Introduction

The Fund provides not-for-profit groups with financial assistance to advocate for an environmental issue of public interest in resource management cases at the Environment Court, the High Court, the Court of Appeal and at Boards of Inquiry constituted under the "Call in" provisions of section 141B.1 (a) of the Resource Management Act 1991. Not-for profit groups may be environmental, community, iwi and hapu groups. It is not essential that groups be incorporated. The Fund is not available to individuals.

Before a group can apply to the Fund it has to be a party to a case before a Court or Call in Board of Enquiry. Applications for cases to the High Court and the Court of Appeal may be funded. Groups who have already received funding for the Environment Court case, and who are seeking to defend the decision of that Court are more likely to receive funding.

Under the Call in process funding is only available for the Board of Inquiry hearing and not for the prior stage of preparing a submission to the Minister. The Fund does not provide assistance for hearings by Boards of Inquiry into National Environmental Policy Statements and National Environmental Standards.

The Fund does not provide money directly to groups. Rather the Fund enters into a Deed of Funding contract with the group to pay the costs of legal counsel and expert witnesses. Until the Deed of Funding is signed by the group the decision to provide funding remains provisional. Should a group wish to change the legal counsel or experts named in its application this will in most cases need to be reconsidered by the Panel who will advise the Ministry.

Payment is available for preparation, mediation, and presentation of a group's case at a Court or Board of Inquiry hearing. Costs incurred prior to the application to the Fund being accepted by the Ministry are not eligible for payment.

On receipt of an application the Ministry checks that it meets the eligibility rules of the Fund and that the required documentation is complete. It then passes the application to the Independent Advisory Panel. The Panel assesses each application against a set of criteria. The decision whether to fund an application is made by the Chief Executives Office of the Ministry on the recommendation of the Panel. Copies of applications and of the Panel’s meeting minutes and the Ministry’s decisions are available on request.

Independent Advisory Panel

The independent Advisory Panel comprises seven members appointed for their knowledge of environmental law, resource management issues and of community groups and iwi. The members are appointed by the Chief Executive of the Ministry for the Environment.

Chairperson

  • Dr Royden Somerville QC of Dunedin, Barrister

Members

  • Alan Dormer of Auckland, Barrister, and Past President of the Resource Management Law Association
  • Kate Mitcalfe of Wellington, Lawyer
  • Dr Huhana Smith of Horowhenua, Senior Curator Maori
  • Helen Tobin of Wellington, Planning Consultant
  • Alan Titchener of Havelock North, Landscape Architect
  • John Frew of Frankton, former Southland District Councillor  

The Panel meets approximately every five weeks. The meeting dates and the closing dates for applications are set out at the beginning of these ELA Fund web pages.

Criteria to meet to obtain funding

Applications are assessed by the Panel against sets of Primary and Secondary Criteria in order to decide whether funding should be recommended. Not all applications are recommended for funding.  In some cases only part funding is recommended.

Primary criteria

  • The focus of the case is the protection or enhancement of environmental qualities.
    (Relevant considerations include: Resource Management Act Part II considerations, and the potential for useful case law.)
  • The case affects the wider community or general public.
    (Relevant considerations include: May improve the administration of the Resource Management Act, The status of the activity in the statutory plans, maintaining the integrity of a statutory plan, Impacts on the wider community or general public, Public/private interest balance, and  the significance of the environmental issues.)
  • The group has shown why financial assistance is required, including whether there is likely to be an imbalance between the level or quality of evidence and case management due to a lack of financial resources.

Secondary criteria

  • The commitment of the group.
    (Relevant considerations include: Resources the group can contribute)
  • The group’s ability to manage the case including any previous experience in legal cases.
  • The prospects of success for the case.
  • Whether the case is unreasonable (frivolous) or undesirable (vexatious.)
  • Whether the group and/or its members has a financial interest in the outcome.
  • Any overlap with other parties’ cases.
  • Whether the group is open to mediation.
  • Any other matters arising out of the application.

Note: These criteria are applied to the outcomes that the applicant group is seeking to achieve in its case: not to the whole legal proceeding.

How much is available?

The maximum amount of funding available per group per application is $40,000 (exclusive of GST).

How do we apply?

Begin by reading the Information Guide to Applicants and then looking at the application form. The application form has some very specific requirements which have to be met before your application will be accepted by the Ministry and forwarded to the Panel for assessment.

  • Establish whether your group and your case are eligible to apply to the Fund. If you think you may be eligible to apply then look at the documentation that is required as part of your application.
  • Look at the assessment criteria to form a view whether your environmental issue is likely to receive funding.
  • Look at the template of the legal Deed of Funding and consider whether your group will be comfortable signing up to the conditions required to receive the funding.
  • Consider the timetable for the hearing and of your application to the ELA Fund. If you are expecting to incur legal and witness expenses soon then you should apply as quickly as possible. The Fund does not reimburse any costs incurred prior to an application being lodged and accepted by it. (The Ministry date stamps applications when it receives them. An application will not, however, be accepted until it is substantially complete. The Ministry will not pass an application to the Panel for evaluation until all the documentation and attachments required have been provided.
  • Consider also that the Panel meets approximately every five weeks. Depending on when your group lodges its application it could be ten weeks before you know the outcome.

Some reasons why your application may not be accepted

  • The group is not recognized by the Court as a party to the proceedings. e.g. it is not sufficient for the appeal notice to be in the name of a list of individuals “commonly or collectively known as (group name)”
  • Court proceedings details not included
  • Group’s current membership and addresses not included
  • Recent financial statements incomplete
  • Expert or legal counsel originals of estimates, cv’s and practicing certificates not included
  • Statutory declaration not properly completed or witnessed

Deed of Funding

A Deed of Funding is prepared by the Ministry for signature by the group.

Until the group signs the Deed the decision by the Ministry to provide funding remains provisional.

The Deed sets out

  • The amount of Funding
  • The Court Proceedings
  • The names of legal counsel & expert witnesses whose costs will be met by the Fund
  • The obligations of the group, including to advise the Ministry of any changes in the group’s circumstances or in the case
  • The obligations of the Ministry for the Environment
  • The duration of the Deed

Third Party concerns including requests for information

Third parties are welcome to write to the Ministry regarding the details of specific applications. Correspondence should not, however, be addressed directly to members of the Independent Advisory Panel.

Any correspondence received by the Ministry that raises issues about an applicant group or its application to the Fund will be referred to the group for comment. This is a requirement of procedural fairness, particularly as the information provided in an application is subject to a signed statutory declaration by the group.

The Panel will consider the issues raised by third parties and any response from an applicant group when it evaluates the application.

Copies of Applications and Panel meeting minutes are available on request. Membership details of applicant groups may be withheld to protect privacy rights.

Information about previous applications

Below is a summary table of all applications since July 2006. (Information on earlier applications is available also on request).

For any particular application the minutes of the Panel meeting provide a summary of the group's case, the Panel's conclusions in relation to the criteria of the Fund, and the Panel's recommendation. Specific Panel minutes are available on request.

Guides and forms

Information guide for applicants

Application form

Deed template (For information only as the Ministry prepares the deeds)

Confirmation of work undertaken form (required to accompany all invoices forwarded to the Ministry for payment)

Reporting form (Please complete this soon after you receive the decision by the Court.)

If you have any questions regarding the Fund, Fund rules, evaluation criteria or how to apply, please contact:

The ELA Fund
Ministry for the Environment
Level 5, NZI House
96 Hereford Street
Christchurch 8011

or PO Box 1345
Christchurch 8140

Alisdair Hutchison, Fund Coordinator (03) 365 9267
or Steve Merito Fund Adviser (03) 365 9556
Fax (03) 365 9560
Email: elafund@mfe.govt.nz

Last updated: 25 May 2009