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"I'm interested in people and their stories" - interview with Robert Makgill, new council member of the NZLS, Auckland Branch

28 June 2017

Robert Makgill is an Auckland based barrister who specialises in environmental, natural resources, property and public law. He regularly appears as legal counsel before the Environment Court and courts of general jurisdiction in New Zealand.

Robert also practices international law, focusing on environmental law and the law of the sea. He has appeared before the International Tribunal for the Law of the Sea on questions of law concerning deep sea mining, and advises inter-governmental organisations and states.

Robert has recently been elected a council member of Auckland Branch of the New Zealand Law Society.

We talk to Robert about his career in environmental law.

You have recently been elected as a new council member of the NZLS Auckland Branch. Congratulations. You are also a member of the NZ Law Society’s Environmental Law Committee, which makes submissions on proposed changes to environmental and resource management legislation. Can you tell us more about the Environmental Law Committee’s recent work and contributions?

I have been a member of the Environmental Law Committee for about 8 years. However, I had a head injury early last year which left me with ongoing concussion. That meant I had to sit on the sideline during much of the committee’s most recent work. During this time, the committee contributed to a substantial submission on the recent Resource Legislation Amendment Bill, and engaged with the Ministry of Justice on changes to court operations and service.

Robert Makgill standing outside by a bridge

The Law Society’s law reform work generally involves responding to proposed legislative and policy changes, with the aim of improving workability of legislation and access to justice. Although our recommendations are not always adopted, the committee has been instrumental in changing statutory language during the passage of bills through the House.

I think it is fair to say that most practitioners would agree that the Resource Management Act (RMA) has worked well. But it is a piece of legislation that attracts a lot of attention from a range of competing interest groups, given it regulates the interface between development, environment and public interest. This has meant successive governments have sought to tweak where the balance lies between those interests. The most recent Resource Legislation Amendment Act 2017 is no exception, and introduces some major reforms to the RMA.

I think the committee was broadly concerned that a revolving door of changes to the RMA risks undermining good decision-making. Certainty is important to all interest groups, and care needs to be taken to protect a core body of environmental jurisprudence built up since the RMA’s enactment in 1991. More specifically, public participation is one of the cornerstones of the RMA. The recent removal of certain appeal rights under the Act erodes access to justice for developers, land owners, iwi and the community.

The committee similarly engaged with the Ministry of Justice out of a concern that the Environment Court should continue to function as an independent specialist branch of the judiciary. The Environment Court is tasked with considering very technical evidence from a variety of expert disciplines, while ensuring all interest groups have an opportunity to be heard. It is not uncommon for proceedings to involve large numbers of parties, many of whom may not be represented. The court is regarded in many other jurisdictions as a model of good environmental decision-making. The committee, therefore, sought to impress on the Ministry (during its review of services and operations) the need to adequately resource the Environment Court to continue to fulfill its specialist role.

You started your career over 20 years ago researching environmental law issues for Waitangi Tribunal claims. How would you describe those early days of your legal career and why did you choose environmental law in particular?

I finished my first degree without much idea of what it was I wanted to do. I had done a lot of surfing, and my studies had focused on history and the arts. I hadn’t really enjoyed the way law was taught at an undergraduate level.

I had received very good grades in Information Technology (IT) law, and this lead to a 6-month teaching position at the University of Waikato. I can still see the surprise on students’ faces as they emailed each other Word documents for the first time. The internet was still largely theoretical. I briefly toyed with the idea of post-graduate studies in IT law. But it didn’t really spin my wheels.

I fell on my feet when Charl Hirschfeld offered me a job researching environmental law issues related to the Wai 55 Claim. I got a great deal of satisfaction out of working with tangata whenua on that claim. Their sense of community and search for justice helped me reconnect with why I had started a law degree. The claim inspired me to go on and complete an LLM in environmental law at Auckland University.

In your opinion, what is the most challenging aspect of environmental law?

I think environmental law, for the most part, is a very collegial area of practice. Most practitioners know one another. It is not uncommon to find yourself concurrently working alongside another practitioner on the same side of one proceeding, and the opposite side of another. It simply doesn’t pay to be unnecessarily adversarial. Although I think that is generally true of most public law litigation, where the sum of the issues under consideration tends to have greater import than the individual interests of any one party.

I personally find it challenging saying “no” to iwi or community groups in need of pro bono representation. I think it is very important that these groups are represented, but as a barrister you need to be very careful as to how much pro bono work you take on.

The Ministry for the Environment’s environmental legal assistance fund is very helpful, but the reality is that lawyers and experts end up shouldering the lion’s share of the burden. This is especially so when proceedings last more than a few days, which is often the case. I have learnt to say “no” more often as a matter of self-preservation.

In 2005, you were awarded a doctoral scholarship at the Department of Public International Law at the University of Ghent in Belgium. Can you tell us about that experience and how it influenced your subsequent legal pursuits?

From the late-90s, I worked for Buddle Findlay and then Brookfields. Both firms were instrumental in the development of my technical skills as a lawyer.

Brookfields gave me a lot of hands on experience due to their high volume of local government work. I’ve always had an inquisitive nature and valued independent thought. Looking back, I wouldn’t have been the most compliant junior either firm ever employed.

But I was fortunate enough to have both Judge Sargisson and Principal Environment Court Judge Newhook as my supervising partners. They laid the foundation stones for my development as a lawyer. Andrew Green, another Brookfields Partner, threw away the trainer wheels after they departed to the bench. I’ll always be grateful for the latitude he gave me to find my own feet.

Ultimately, I was more interested in academic pursuit and travel than making my way up through a firm. I went to live in France where I spent my time surfing, making ends meet by doing all sorts of odd jobs and visiting Universities throughout Europe looking for somewhere to undertake a doctorate.

The fact I was an environmental lawyer from New Zealand with an LLM in that specialist area, at that time, opened a lot of doors for me. I was lucky enough to be offered a doctoral scholarship at the University of Ghent. I ended up working for 12 months at the Ghent Maritime Institute, an arm of the Department of Public International Law which undertakes multidisciplinary work on a wide range of maritime, coastal, environmental and law of the sea issues.

Ghent expanded my horizons and connected me with international law academics, practitioners and jurists. I came back to New Zealand determined to develop an international law practice. I differ from most public international lawyers in New Zealand insofar as I don’t have an employment background with the Ministry of Foreign Affairs and Trade.

You practice public international law, focusing on environmental law and the law of the sea. How would you describe your work in these areas?

Public international law governs relations between states, whereas public law could be crudely described as governing the relationship between the state and its citizens. One of the attractions of public international law for me is that it is often the origin of jurisprudence for domestic law. Although, in the case of environmental law, jurisprudence developed in New Zealand has been influential in the development of international environmental law.

You wouldn’t necessarily cite New Zealand case law before an international tribunal, or when you are advising a state or inter-governmental organisation (IGO). But the thinking that underlies key legal principles in New Zealand has certainly had some influence. New Zealand enacted many of the current principles of international environmental law under the RMA 1991, before they became enshrined in soft law under the Rio Declaration 1992. In simple terms, we have a significant and long-standing body of case law regarding those principles that other states don’t.

I have been involved in two sets of advisory proceedings before the International Tribunal for the Law of the Sea. These are effectively declaratory proceedings on points of international law. I was counsel in the first advisory proceeding and helped advise counsel appearing in the second advisory proceeding. In both cases we represented an IGO that has standing before the Tribunal. My role in these proceedings has led to advisory instructions from (amongst others) the Secretariat of the Pacific Community and member states.

You’re planning to complete your PHD on the law of the sea. How do you find the time to write and balance your busy professional life with your personal life?

To be fair the PHD has been a while coming. But I think barristers generally have a lot more freedom than partners in law firms. I was a director in a law firm for 5 years, and it really didn’t suit me. As a barrister, I don’t have to attend partnership meetings or find work for junior lawyers. Equally as important, I don’t have the same overheads as a law firm. In fact, I probably don’t have the same overheads as a lot of barristers.

I have a national practice and act for clients between Invercargill and the Bay of Islands. I found when I had city office space it was hardly ever used for client meetings because many of them reside outside Auckland. And it was just as easy to meet my Auckland clients at their premises. It ended up making more sense having a strong electronic presence instead of paying for chambers and an address.

I’ve also developed great relationships with a number of law firms and other barristers. My practice does get very busy at times, but I have found that these relationships mean there are always strong practitioners and junior staff who are willing to assist with any capacity issues. I take responsibility as counsel, but I am also happy to refer matters on to other capable litigators.

All this means that I have time for my doctorate and a fair amount of surfing. I often work on submissions, evidence or opinions from Piha, given the electronic nature of my practice. My family and practice will eventually move to Piha, once we have completed plans to build. In the meantime, it’s a few minutes’ walk between my desk and the water when there’s swell and an offshore.

What career path would you have chosen if you had not become a lawyer?

A writer or film director, because I am interested in people and their stories.

Last updated on the 28th June 2017