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Canterbury Regional Council (ECan) Temporary Commissioners and Other Matters Bill (Consistent) (Section 27(1) [2010] NZBORARp 14 (26 March 2010)

Last Updated: 7 May 2019

26 March 2010

ATTORNEY-GENERAL

LEGAL ADVICE

CONSISTENCY WITH THE NEW ZEALAND BILL OF RIGHTS ACT 1990: CANTERBURY REGIONAL COUNCIL (ECAN) TEMPORARY COMMISSIONERS AND OTHER MATTERS BILL

1. We have considered whether the Canterbury Regional Council (ECan) Temporary Commissioners and Other Matters Bill (‘the Bill’) (PCO 14264/5.9) is consistent with the rights and freedoms affirmed in the New Zealand Bill of Rights Act 1990 (‘the Bill of Rights Act’). We understand that the Bill will be considered by Cabinet at its meeting on Monday, 29 March 2010.
   
2. We have concluded that the Bill appears to be consistent with the rights and freedoms affirmed in the Bill of Rights Act. In reaching that conclusion, we have considered the consistency of the Bill with the right to natural justice affirmed in section 27(1) of that Act. Our analysis is set out below.
   
3. We have based our advice on an early draft of the Bill which we understand is subject to further drafting. We will inform you immediately if any changes raise additional human rights implications.
   

PURPOSE OF THE BILL

4. The purpose of the Bill is to replace the elected members of Canterbury Regional Council (ECan) with appointed Commissioners. Those Commissioners will act as the governing body of ECan until new elected members come into office following the 2013 election. The 2010 election will not take place.
5. The Bill also provides ECan with certain powers that it does not otherwise have to address issues relevant to the efficient, effective, and sustainable management of fresh water in the Canterbury region.

RIGHT TO NATURAL JUSTICE

6. Section 27(1) of the Bill of Rights Act affirms the right of every person to the observance of the principles of natural justice by any tribunal or other public authority which has the power to make a determination in respect of that person’s rights, obligations, or interests protected or recognised by law. The right to natural justice includes the right to be heard before a decision is made.

Moratorium on Water Permits

7. Part 3 of the Bill empowers ECan to impose a moratorium on applications for permits for the taking, use, damming, and diverting of water or the discharge of contaminants or water that would otherwise contravene the RMA. Clause 34(3) provides that ECan must not determine the application for at least six months after the moratorium has ended. We have considered whether the deferral of the determination limits the natural justice rights of existing applicants.
8. We are satisfied that the provisions of the Bill ensure that the delay does not result in procedural unfairness for existing applicants. In particular, we note that clause 36(1) of the Bill requires ECan to give notice to existing applicants, no later than five days before the end of the moratorium, of the date on which the moratorium will cease to apply. ECan must advise those applicants that they may, within six months of the date on which the moratorium ceases to apply, revise and resubmit applications to take account of any changes made to the relevant planning framework since the application was first submitted.

Jurisdiction of the Environment Court and High Court

9. Clause 45 of the Bill removes the normal jurisdiction of the Environment Court under section 209 to 213 of the Resource Management Act 1991 to consider applications in respect of water conservation orders and make a report to the Minister. Clause 46 limits appeals to the High Court to questions of law (there is currently a right to appeal on merits to the Environment Court). Similarly, clause 57 of the Bill limits appeals to points of law in respect of regional policy statements and plans.
10. These provisions do not appear to limit the natural justice obligations of ECan or the rights of applicants to seek a judicial review of decisions made by ECan (affirmed in section 27(2) of the Bill of Rights Act). We are therefore satisfied that clauses 45, 46, and 57 do not limit the right to natural justice affirmed in section 27(1) and 27(2) of the Bill of Rights Act.

CONCLUSION

11. We have concluded that the Bill appears to be consistent with the rights and freedoms affirmed in the Bill of Rights Act. This advice has been prepared by the Public Law Group and the Office of Legal Counsel.
    

Jeff Orr

Chief Legal Counsel

In addition to the general disclaimer for all documents on this website, please note the following: This advice was prepared to assist the Attorney-General to determine whether a report should be made to Parliament under s 7 of the New Zealand Bill of Rights Act 1990 in relation to the Biofuel Bill. It should not be used or acted upon for any other purpose. The

advice does no more than assess whether the Bill complies with the minimum guarantees contained in the New Zealand Bill of Rights Act. The release of this advice should not be taken to indicate that the Attorney-General agrees with all aspects of it, nor does its release constitute a general waiver of legal professional privilege in respect of this or any other matter. Whilst care has been taken to ensure that this document is an accurate reproduction of the advice provided to the Attorney-General, neither the Ministry of Justice nor the Crown Law Office accepts any liability for any errors or omissions.