New Zealand Journal of Environmental Law
Last Updated: 30 January 2023
Legislation Note Environment Canterbury (Temporary Commissioners and Improved Water
Management) Act 2010
The Environment Canterbury (Temporary Commissioners and Improved Water Management) Act 20101 (hereinafter “ECan Act 2010”) exhibits a breathtaking use of the doctrine of parliamentary sovereignty. It illustrates that the Resource Management Act (“RMA”) 1991 can be applied selectively, and that access to judicial review can be unequal. The Act plays democracy against efficiency, and egalitarianism against pragmatism. It could be a game-changer in New Zealand environmental law.
Substantively, the ECan Act 2010 does the following:
4a. Empowers the commissioners to issue moratoria on applications for water takes in certain catchments;
*Senior Lecturer of Public Policy, Lincoln University, Canterbury, New Zealand.
1 Public Act 2010 No 12. Date of Assent 12 April 2010, available at <http://www.legislation. govt.nz/act/public/2010/0012/19.0/DLM2850313.html> .
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and WCOs, liberating the commissioners’ decisions from substantive appeals, and limiting appeals to High Court questions of law.
The Act arose out of long-standing and widespread criticism of ECan from many quarters. Environmentalists complained it allowed too much water abstraction;2 farmers complained it allowed too little and imposed costly water quality regulations;3 academics admonished that it had a perceived mandate to regulate water takes for which it lacked the substantive legal authority to refuse such water takes.4 The issue came to a head in 2009–10, with a letter from Canterbury’s mayors complaining about ECan’s performance that prompted the Minister for the Environment to commission a review under s 24(a) of the RMA. The resulting report5 was scathing,6 and recommended the “unprecedented” actions eventually taken by Parliament.7 Following the report, the Ministry of Justice issued advice expressing concern about the proposed actions.8
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The ECan Bill became law, under urgency, late on 31 March 2010 with the support of the National, ACT and United Future parties, but the Maori, Labour, Green and Progressive parties dissented.9 The Environment Minister, Hon Dr Nick Smith, repeated emphatically that the chosen course of action, while perhaps appearing draconian, was the only possible response.10 And Local Government Minister Rodney Hide said failure to take this action would have cost the nation “several hundred million, or potentially billions, of dollars a year”.11 The Act’s stated purpose is to provide for “the efficient, effective, and sustainable management of fresh water in the Canterbury region”.12
This note will review the legislation in light of New Zealand’s constitutional arrangements and speculate on the Act’s future.
Sacking of the Regional Council, Appointment of Commissioners, and Suspension of Elections
The ECan Act 2010 first (ss 7–28) removes all 14 elected members of the ECan regional council from office and replaces them with up to 7 commissioners.13 The commissioners are duly authorised (s 20 (a)–(d)) to perform all the functions and exercise the powers of the councillors they replace, comply with the government’s terms of reference, and exercise the special powers created in Part 3 of the Act and discussed below.
Further, the Act cancels the scheduled 2010 election (s 22(1)–(3)), and leaves the fate of the next election (scheduled for 2013) in the hands of the Ministers. To do so, it suspends the Local Electoral Act 2001 (ss 10(2), 52, 115(2)) and several sections of the Local Government Act 2002 in Canterbury during the commissioners’ tenure.
principles include ‘the right of citizens to have access to the courts’. The Ministry of Justice considers that this is a significant proposal, which combined with the removal of the elected councillors means that parties with a stake in Canterbury’s natural resources have significantly less ability to protect their rights and interests than elsewhere in the country.” Cabinet Paper, “Response to Review of Environment Canterbury”, para 102, page 22, available at <http://www.mfe.govt.nz/cabinet-papers/cab-ecan-response-to-review-of- environment-canterbury.pdf> . See also Paul Gorman, “Officials opposed ECan changes”, Christchurch Press, 24 April 2010.
13 Section 14 mandates that appointed commissioners have the following fields of expertise: organisational change, fresh water management, local government, tikanga Maori, and the Canterbury region.
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Both the Local Government Act 2002 and the RMA authorise Ministers to dissolve councils and appoint replacements.14 And such actions do have precedent. In 2000, the Labour-led government dissolved the Rodney District Council at the latter’s request,15 and elections were held in April 2001, ahead of schedule.16 In Canterbury, the Minister did not employ these powers of dissolution,17 but rather created new powers through legislation.
Section 31 Transitional Regulations
Section 31 provides for “transitional regulations” for Canterbury water manage- ment. These provisions allow the Minister to pass regulations to change the duration and extent of the commissioners’ powers relating to moratoria, fast- tracking the regional plan, and changes to WCO rules. It further gives the Minister the power to specify that certain sections of the RMA “do not apply, despite being applied under this Act; or do apply, despite not applying under this Act” (s 31(b)(i)(A) & (B)). Constitutional law scholars call this a “Henry VIII clause”, which affords the Minister (by way of the Governor-General) the power to disapply the empowering legislation (RMA) selectively and at will without recourse to Parliament.18
So-called Henry VIII clauses give supremacy to subordinate legislation (in this case the ECan Act 2010) over primary legislation (in this case the RMA). Further, such clauses allow Parliament to abdicate its authority, by delegating to the political executive (in this case the Minister for the Environment) the
25) allows the Minister to dissolve a council and appoint commissioners after giving notice of the proposal and its rationale, and after “the local authority has a reasonable opportunity to satisfy the Minister that it has not failed to exercise or perform any of its functions, powers, or duties to the extent necessary to achieve the purpose of this Act, and having not succeeded in so satisfying the Minister”.
the Local Government Act, but chose not to use them for various reasons, including that the commissioner appointed under RMA, s 26 might lack the requisite authority and the present ECan situation might not meet the standards for council dismissal. Hon Dr Nick Smith, “Response to Review of Environment Canterbury”, Cabinet Paper, supra note 8, at paras 52–54, page 7.
18 Associate Prof Andrew Geddis, quoted in Paul Gorman, “Labour was set to act on ECan”, Christchurch Press, 27 April 2010, at 5.
power “to make regulations suspending, amending, or overriding primary legislation”.19 The Minister may then selectively behead inconvenient sections of the RMA in Canterbury just as Henry VIII selectively beheaded inconveni- ent wives.
Constitutional law scholar Philip Joseph notes that the law has long frowned on giving primacy to subordinate legislation.20 He calls such clauses “consti- tutionally objectionable where they are used for general legislative purposes”;21 and notes that “[t]he Muldoon Government (1975–84) exhibited an unhealthy interest in Henry VIII clauses, using them as a blank cheque for perfecting Muldoon’s commitment to govern by regulation”.22
Moratoria on Certain Applications
The ECan Act 2010 then (ss 33–45) grants the commissioners power to issue and revoke moratoria on water-related applications in certain areas of the Canterbury region.23 Indeed, the first decision under the Act was a 14-month moratorium on water abstraction consents from the Hurunui River.24
Changing the Rules on Water Conservation Orders
Affirmed in the RMA, Part 9 (ss 199–217), a Water Conservation Order pre- serves a river in its natural state or protects outstanding characteristics (but not necessarily natural) of a river such as habitat, fishery, ecological, recreational or cultural values.25 For every WCO application in course, the ECan Act 2010, s 46
(a) & (b) of the RMA; or discharge permits to release a contaminant into water or onto land that might otherwise breach s 15(1)(a) & (b) of the RMA.
(a) outstanding amenity or intrinsic values which are afforded by waters in their natural state:
(b) where waters are no longer in their natural state, the amenity or intrinsic values of those waters which in themselves warrant protection because they are considered outstanding.
(2) A water conservation order may provide for any of the following:
New Zealand Journal of Environmental Law
suspends Part 9 of the RMA until the Minister calls another regional council election; ss 47–61 then lay out a new set of rules for Canterbury WCOs during the commissioners’ tenure.
Under the RMA, Part 9 (which still applies outside Canterbury), WCOs are first heard by a special tribunal appointed by the Minister. Parties interested enough to have made a submission on the matter may then appeal the tribunal’s decisions, on substance, to the Environment Court. During the tribunal’s con- sideration of WCO status, s 207 of the RMA directs it to consider the following factors in this order: 1) the purpose of a WCO — to recognise and sustain “outstanding” water bodies (s 199); 2) the application and submissions; 3) needs of primary and secondary industry, and the community; 4) relevant provisions of national, coastal and regional policy statements, and regional and district plans and proposals. Thus, under s 207, decision-makers prioritise the protection of nationally outstanding characteristics before allowing resource use, unless the economic potential is important on a national scale.26
The ECan Act 2010 changes the order, so conservation loses its priority status. Sections 46–61 change who decides WCOs and the criteria by which they decide them. Until the next ECan election, ECan commissioners, not a special tribunal, will hear WCOs.27 Section 50(2) & (3) creates a new legal test for WCOs such that commissioners must “have particular regard to” the “outstanding amenity or intrinsic values afforded by waters in their natural state”28 subject to the purpose of “sustainable management”.29 Next the com-
(a) the preservation as far as possible in its natural state of any water body that is considered to be outstanding:
(b) the protection of characteristics which any water body has or contributes to, and which are considered to be outstanding,—(i) as a habitat for terrestrial or aquatic organisms:
(ii) as a fishery:
(iii) for its wild, scenic, or other natural characteristics:
(iv) for scientific and ecological values:
(v) for recreational, historical, spiritual, or cultural purposes:
(c) the protection of characteristics which any water body has or contributes to, and which are considered to be of outstanding significance in accordance with tikanga Maori.
28 RMA 1991, s 199.
29 Environment Canterbury (Temporary Commissioners and Improved Water Management)
missioners “have particular regard to” the two pages of Vision and Principles of the Canterbury Water Management Strategy (“CWMS”).30 After having considered sustainable management, outstanding values and the CWMS, commissioners must then, as before, have regard to industry and community needs, and relevant policy statements.31
The proposed Hurunui Water Conservation Order had been through hearings,32 and the Environment Court appeal was scheduled to begin 30 May 2010. In other words, it was half-time for the Hurunui. Changing the rules of the game at half-time is as unpalatable to the rule of law as it is to sports. In R v Poumako, His Honour Justice Thomas considered such shifting of the goalposts to be constitutionally objectionable because it violates the principle of equal application of the laws.33
Further, changing the rules to disadvantage a named person or persons violates the rule of law. Philip Joseph argues that Schedule 2, Part 2, called “Hurunui WCO application”, violates the fundamental principle of rule of law that prohibits ad hominem legislation. Joseph observes that Schedule 2, Part 2, Clause 6 even “singles out” the Hurunui WCO applicants — the New Zealand Fish & Game Council and New Zealand Recreational Canoeing Association — for “special treatment”.34 Joseph comments that:35
‘Governments resort to ad hominem legislation when expedience speaks loudest. ... Such legislation may be vigorously defended politically but it does nothing to promote respect for the law.’ (Joseph 2007 at 213) Part 2 Sch 2 of the Act overrides the due process of law by prescribing special procedures for a named WCO application. It withholds rights to be heard by a special tribunal
Bill 130-1 (2010), Government Bill, Explanatory note, General policy statement, available at <http://www.legislation.govt.nz/bill/go v ernment/2010/0130/9.0/DLM2850301.html> .
New Zealand Journal of Environmental Law
and the Environment Court, and is avowedly ad hominem. Such legislation denies the equal protection of the law, and is constitutionally repugnant.
With conservation no longer of prime importance in WCOs, one must wonder why initial Hurunui WCO applicants, such as Fish & Game and Whitewater NZ, would remain on the field for the second half of the contest for the Hurunui. A resource management lawyer, Maree Baker, noted that “it’s still a possibility that those iconic rivers will remain protected, but I wouldn’t bet ... on it”.36 When Professor Joseph then asked Bryce Johnson, Chief Executive of the New Zealand Fish & Game Council, how he felt when the government changed the rules midway through Fish & Game’s Hurunui application, Mr Johnson responded “gutted and furious”.37
Changes to the Rights of Appeal
Further, s 52 of the ECan Act 2010 removes the Environment Court from the roster of players for WCOs and regional plan and policy statement decisions, though not from resource consent application decisions. Under the old regime, submitters could appeal the substance of a decision, using the evidence, to the Environment Court. Section 52 excludes the jurisdiction of the Environment Court over WCOs and regional plan decisions in Canterbury, though decisions may be appealed to the High Court on questions of law. Thus, only the commissioners will hear the evidence from scientists and other expert witnesses; and evidence will never be cross-examined.38
Though s 31 and other special powers created by the ECan Act 2010 expire when a new council is elected and installed by the Minister’s consent, s 46(4)(a) directs that the revocation of appeals to the Environment Court on WCOs will continue to apply even after the next election. Hence, this is a permanent exclusion of the Environment Court from Canterbury WCOs, not a temporary suspension of jurisdiction. Pragmatically, this removes the judiciary’s sober second look at the substance of environmental decisions. This risks compromising the quality of decision-making under the RMA in Canterbury.39 The permanent exclusion of the Environment Court also means that those interested in Canterbury water issues have lost a long-standing right of sub- stantive appeal of water resource planning decisions previously granted to them by Parliament,40 and still afforded in other regions. The right to appeal the
40 The Environment Court is a specialist court established by the Resource Management
substance of a decision (and to cross-examine the evidence presented by expert witnesses) is very different to, and much broader than, the right to appeal on a point of law.
The Ministry of Justice objected to this different access to justice41 because it impinges on the natural justice provisions of the New Zealand Bill of Rights Act (“NZBORA”) 1990.42 Philip Joseph reinforces that access to justice is central to the rule of law. And the Environment Court is “the linchpin of environmental sustainability and resource management in New Zealand. Why should citizens in the Canterbury region be forced to accept lesser rights of local government than other citizens? Simply to pose the question reveals the objection to the legislative scheme.”43
ECan Act 2010, New Zealand’s Constitutional Framework, and the Future
The selective beheading of the RMA, the regional beheading of the Environment Court, and the ad hominem changes in WCO rules at half-time are more constitutionally offensive than sacking the regional council. But the question remains: How can Parliament pass Bills that its own Ministry of Justice deems constitutionally objectionable?44
The Constitution Act 1986 recognises that Parliament has “full power to make laws” (s 15). Even the Magna Carta “cannot override the clearly expressed will of Parliament”.45 This “unlimited and illimitable”46 parliamentary power places great faith in what Justice Baragwanath called the “good sense of
Amendment Act 1996 (s 6), but with roots in the Town and Country Planning Appeal Board (established by the Town and Country Planning Act 1953) then replaced by the Planning Tribunal (Town and Country Planning Act 1977, s 128).
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parliamentarians”.47 Constitutional scholar Matthew Palmer notes parliamentary sovereignty is intertwined with New Zealand’s cultural attitudes towards public power, egalitarianism, pragmatism and authoritarianism.48 Illimitable power notwithstanding, the NZBORA establishes a test that any proposed impingement on a right guaranteed morally, if not legally,49 by the NZBORA should be “demonstrably justified in a free and democratic society”.50
Whether the justifications in the preamble of the ECan Act 201051 pass the “demonstrably justified” test is in the eye of the beholder. Indeed, many argue that the Act is the epitome of parliamentarian good sense, that the policy ends justify the legal means, and that it is “misguided ... [to] condemn aspects of public policy as denying democratic processes”.52 The Explanatory Note for the ECan Bill emphasises speed, clarity and minimisation of uncertainty as prime motivators for the new water management regime.53 And the suspension of the Environment Court’s jurisdiction over WCOs, particularly the WCO in progress on the Hurunui River, is intended to “promote consistent planning outcomes and avoid the potential need for subsequent revision of the Environment Court’s recommendations (and the time, cost, and uncertainty associated with this)”.54
Because Parliament is free to decide what is important, or popular, enough to pass, the opinion of the beholder is legally irrelevant in questions of legal
justifications for constitutional breaches.55 Legally, a sovereign parliament subsumes the beholder’s eye.
Though perhaps legally irrelevant, the beholder can be pivotal politically. A grand old theory of politics posits that the “spectators are an integral part of the situation, for, as likely as not, the audience determines the outcome of the fight” (emphasis in source).56 In a battle between irrigators and environmentalists, the relative size and strength of the groups does not matter as much as which side stands to gain from the outcome, and which side the public takes. The side with the vested financial interest in the outcome is most always stronger.57 And the stronger side usually seeks to minimise the scope of the debate so as to engage the public as little as possible. But public engagement is the weaker side’s only hope.
Because Parliament is sovereign, Cantabrians lack firm constitutional recourse. They are left to sputter that wonderful line from the Australian movie The Castle, where in an early courtroom scene the hopelessly inept but ulti- mately triumphant small-town solicitor summarises his argument by claiming: “There is no one section, it’s just the vibe of the thing. ... And, uh, no, that’s it. It’s the vibe.”
Whether or not Parliament overstepped its admittedly porous constitutional bounds with the ECan Act 2010, the growing sense of betrayal and unfair treatment among Cantabrians has incited street protests.58 Cantabrians do appear to be mobilising to defend their self-described “democratic rights” and advocate for “collaboration not public negation”,59 if not for the somewhat effete right to appeal to the Environment Court. It seems that the proverbial fight has broken out, and the crowd is taking sides.
Herein lies the irony of the ECan Act 2010. Suspending both regional elections and appeals to the Environment Court clearly minimises the scope of debate over crucial water issues by eliminating many of the players from the field. However, sacking the council has attracted attention from many who had never noticed before. That which was least offensive constitutionally is proving most offensive politically.60
Though breaches of constitutional convention perceived to impinge on basic
(New York, Holt, Rinehart and Winston, 1960) at 2.
(Cambridge, Mass, Harvard University Press, 1965).
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rights of New Zealanders might not fall afoul of judicial rebuke,61 they often meet with public opprobrium. This opprobrium can prove more damaging to a coalition government, and the legislation itself, than an immediate judicial rebuke.62 Indeed, the sweeping nature of the ECan Act 2010 has sparked Opposition pledges to repeal the “draconian”63 legislation,64 and two Members’ Bills from opposition MPs.65 In other words, public opprobrium might be more dangerous to the longevity of constitutionally offensive acts of Parliament than the constitutional offences themselves. This public opprobrium might serve as an extra-legal limitation on parliamentary power as it did for the Electoral Finance Act 2007.66
Though the ECan Act 2010 might offend our collective constitutional sensibilities, it is legal because Parliament is sovereign. But politically, those offended sensibilities might haunt the government, the ECan Act 2010, and Canterbury water itself.
Further, this “constitutional affront”67 might be a harbinger of things to come in New Zealand environmental law. Maree Baker observed: “If the RMA is then read down in light of the ECan Act those changes could be per- petuated.”68 In a speech to Irrigation New Zealand, Minister of Agriculture David Carter echoed Baker: “I would have thought what happened recently with Environment Canterbury would be a signal to all regional councils to work a bit more constructively with their farmer stakeholders.” Carter continued: “We had to act here in Canterbury because the situation was untenable if we are going to seriously make progress in delivering this irrigation.”69
passage (Environment Canterbury (Democracy Restoration) Amendment Bill. Member’s Bill, Brendon Burns, MP); see also Staff, “Member’s ECan bill to ‘embarrass’ Govt”, Timaru Herald, 28 May 2010. And Ruth Dyson’s would rescind changes to WCO rules and restore Cantabrians’ right to appeal to the Environment Court (Environment Canterbury (Water Conservation Orders) Amendment Bill. Member’s Bill, Hon Ruth Dyson); see also Matthew Littlewood, “Dyson lodges bill to tackle water issues”, Timaru Herald, 16 July 2010. Hon Dr Smith defended the decision to exclude the Environment Court’s jurisdiction as necessary: “To take away from the commissioners the right to address the role of water conservation orders would merely continue the fragmentation that has gone on in Canterbury for more than 19 years.” Staff, “Smith slams ECan repeal efforts”, Timaru Herald, 23 July 2010.
69 Hon David Carter quoted in David Williams, “Warning to councils by Carter”, Christchurch
Press, 29 April 2010.
Irrigation is neither better nor worse than any other policy goal. But if the government must suspend environmental law and ignore constitutional etiquette to achieve its goals, all is not well. In matters of environmental law, the government seems to be using the doctrine of parliamentary sovereignty to act unilaterally, seemingly oblivious to public opprobrium and constitutional decorum.