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New Zealand Human Rights Commission Submissions |
Last Updated: 27 June 2015
HUMAN RIGHTS COMMISSION
SUBMISSION ON THE
ENVIRONMENT CANTERBURY (TEMPORARY COMMISSIONERS AND IMPROVED WATER MANAGEMENT) BILL
Local Government and Environment Committee
23 October 2012
Contact person: Sylvia Bell
(09)3062650
1. Introduction
1.1 The Human Rights Commission (the Commission) welcomes the opportunity to comment on the Environment Canterbury (Temporary Commissioners and Improved Water Management) Amendment Bill (the Bill).
1.2 The Bill will extend the Act’s governance arrangements and special water management decision making powers for a further 3 years. The extension is justified on the grounds that circumstances relating the earthquake recovery and governance challenges continue to exist in Canterbury on a scale that sets it apart from other regions.
1.3 The Commission does not agree with this. In particular, the Commission refers the Select Committee to the advice of the Prime Minister’s Chief Science Adviser[1]on the steps that should be taken to diminish the sense of powerlessness that follows a natural disaster. Following the advice of the ECan Commissioners, the Ministries and the initial advice of two Ministers the hybrid model of partly-elected, partly-appointed Commissioners was the option that would have been best for the health of the people of Canterbury and for democracy in the region.
1.4 The Commission had concerns both about the substance of the original Act and the way it was enacted but was unable to comment as the legislation was introduced and passed under urgency in a single day. Our view continues to be that the undemocratic way in which the original legislation was introduced, and its continuance, is simply wrong from a human rights perspective.
1.5 The cabinet paper accompanying the original Act stated that the deferral of the 2010 election should only be a temporary measure because it constrained the right to public participation[2]. While it suggested that the proposal complied with domestic human rights standards and the relevant international obligations[3], it was also quite explicit that the intent was to return to a democratically elected Council as soon as the Commissioners’ task was completed.
1.6 In the first cabinet paper on the amendment Bill, the Minister of the Environment, David Carter, and Amy Adams, the Minister of Local Government, stated that any option except a return to a fully elected Council would limit the democratic rights of residents of Canterbury compared to the rest of the country and violate Art.25 of the International Covenant on Civil and Political Rights (ICCPR).[4] In effect the current proposal means the Government would be in breach of its international obligations and its commitment in the ICCPR to protect, promote and fulfil the rights of people in New Zealand. While this may lead to international criticism, the greater concern is how the Government will justify whether it has discharged its duty to the New Zealanders who paid a high price to defend these rights.
1.7 Both Ministers recommended a mixed model governance structure which would have maintained the momentum of what had been achieved and eventually lead to a fully locally elected democratic body. This option was not adopted and a decision was made to simply roll over the existing Act. Ironically, despite being even more intrusive than what was originally proposed, the eventual option was considered to comply with our international commitments.[5] We find it difficult to understand how Ministers could inform their cabinet colleagues that a proposal which was originally described as contravening both domestic and international human right obligations, subsequently complied with them.
1.8 The Human Rights Act (the HRA) requires the Commission to advocate and promote respect for, and an understanding and appreciation of, human rights in New Zealand society. The Commission considers that the Bill breaches some of the international human rights commitments the Government has made and has significant implications for the rule of law in New Zealand. It is also inconsistent with the Government’s own freshwater strategy and has the capacity to undermine some of the recommendations suggested by the Land and Water Forum.
1.9 This submission addresses the following issues:
2.1 The ability to participate in the political process - including the development of legislation - is fundamental to liberal democracies such as New Zealand and has long been considered integral to stable and responsive governance.
2.2 Political participation is also a central component of international human rights norms[6]. Article 25 of the ICCPR - the right identified in the first cabinet paper accompanying the present Bill - states that every citizen shall have the right and the opportunity to take part in the conduct of public affairs without unreasonable restrictions, directly or through chosen representatives.
2.3 The right to participate is reinforced in other international treaties applying to specific population groups such as the Convention on Elimination of All Forms of Discrimination against Women (CEDAW)[7], the Convention on the Elimination of Forms of Racial Discrimination (CERD)[8]and the Convention on the Rights of People with Disabilities(CRPD)[9].
2.4 The right to water is itself a basic human right. The right to an adequate standard of living in the International Covenant on Economic Social and Cultural Rights (ICESCR) has been interpreted as including the right to water “since it is one of the most fundamental conditions for survival”[10] and the right to water is specifically referred to in CEDAW[11], the Convention on the Rights of the Child (CRC)[12]and CRPD[13].
2.5 The Declaration on the Rights of Indigenous People (DRIP) refers to water
in the context of spiritual
relationships[14]and notes the
obligation of States to consult and cooperate with indigenous people about any
project relating to the development,
utilisation or exploitation of ...
water[15]and the conservation and
protection of the environment and productive capacity of
resources[16].
2.6 The international framework also emphasises the importance of the
Government ensuring that the needs of the most vulnerable New
Zealanders are
recognised and taken into account. This is particularly relevant in the context
of Canterbury where the vulnerable
groups identified in the international
treaties noted above are particularly affected by the impact of the earthquakes.
3.1 Transparency and empowerment are essential to genuine participation. There must be an opportunity for citizens to be able to influence decisions, particularly those that are likely to have an impact on their lives. This “ability to be heard” is a significant way of combating the notion that decisions are predetermined.
3.2 The enactment of legislation without the opportunity for public participation effectively undermines the democratic process. In 2009 the United Nations issued a Guidance Note on Democracy which observed that the way in which a government operates and provides for people to have a say in the policy process has a direct impact on how its citizens perceive the degree of legitimacy of their country’s democratic system[17].
3.3 In the case of Canterbury, the fact that many people consider they have not been adequately informed of, or able to contribute to, decisions about the future of Christchurch has fuelled resentment against public authorities – something that is recognised within government. For example, following its financial review of CERA and the Earthquake Commission earlier this year the Finance and Expenditure Committee commented that it would like to see them keep the public “better informed about the about the processes they are involved in by providing consistently accurate information, to minimise the inevitable uncertainty and distress for the people of Canterbury.”
3.4 In our view the present legislation has the potential to further exacerbate the resentment that has arisen in Canterbury as result of autocratic decision making[18]. Cantabrians need to be involved in - not excluded from - decision making in order to mitigate the sense of powerlessness that follows a natural disaster and mitigate psychosocial harm.
3.5 The Prime Minister’s Principal Science Adviser, Sir Peter Gluckman, in his advice to the Prime Minister on the Canterbury Earthquake noted:
“..., it is fair to state that the potential exists for the emotional effects of disaster to cause as great a degree of suffering as do the physical effects such as injury, destruction of infrastructure and loss of income.
In fact, they are often interrelated. Indeed, it is clear that recovery is primarily judged in terms of people feeling that they are coping with their lives and livelihood, not just in physical terms.”
“A feeling of self-efficacy and community efficacy assists the population in reactivating their coping mechanisms. Local governance, empowerment and ownership have been shown to facilitate recovery.
Then inevitable tensions and conflicts in achieving this are obvious (long-term versus short-term, public versus private, local versus national interests) and cannot be avoided - rather, they have to be openly handled with sensitivity.
It follows that, from the psychosocial perspective, those involved in directing the recovery should create governance structures that understand and actively include community participation and enhance individual and community resilience. Such approaches will be most likely to be effective in re-establishing coping and functioning communities.”[19]
4.1 The State has primary responsibility to deliver the human rights to New Zealanders that it has committed itself to. To ensure that this is done, there needs to be accessible and effective remedies.
4.2 It is not only the State that has responsibility for delivering human rights to New Zealanders. Other actors are also accountable. A State cannot abrogate its human rights responsibilities by devolving responsibilities to others - such as the appointed Commissioners - and then claim that it is no longer responsible for delivery of water management services[20].
4.3 Although the need for a coherent, integrated national policy on freshwater management and new governance arrangements is almost universally accepted - and has been for some time - accountability about freshwater management in New Zealand remains elusive.
4.4 As New Zealand has ratified all of the major human rights instruments relating to water, the Government must take the necessary steps to ensure that everyone can enjoy safe, sufficient, acceptable, accessible and affordable water not derogate from that responsibility by introducing legislation that sacrifices human rights for administrative expediency.
5.1 The way the Act was enacted and aspects of its substance raises significant questions about the rule of law and democratic process.
5.2 It was introduced under urgency, was not sent to a Select Committee and did not allow for any formal public input. The Act itself was described by public law expert Philip Joseph as a “constitutional affront” that abrogated the rule of law in a number of ways.
5.3 Aspects of the legislation which were, or continue to be, concerning are:
➢ The application of a new strategy to existing proceedings - effectively altering the substance of the relevant law with retrospective effect;
➢ Allowing subordinate legislation (the Act allows regulations to be made by Order in Council on the recommendation of the Minister) to take precedence over primary legislation, in this case the Resource Management Act[21]. As the New Zealand Law Society noted: It is a fundamental component of the rule of law that legislation should be enacted by Parliament. The use of legislative power to authorise regulations that effectively delegate a broad legislative power to the executive for a significant period is inconsistent with this principle of the rule of law.[22]
➢ Removing access to the Environment Court except for appeals on points of law. Prior to this there was a right to appeal to the Environment Court on the merits, a right that has been described as “critical” to the resolution of environmental and resource management issues.[23] By removing it, the Act undermines access to justice.
5.4 Effective engagement with all
the relevant stakeholders generates better decisions and is the key to robust
legislation. In a
situation such as this where the local communities are already
traumatised by measures introduced in response to the earthquakes,
extending
this legislation effectively perpetuates the problems identified in 2010 and
reinforces the inability of those directly
affected to contribute in a
meaningful fashion to legislation that affects them personally. It also
consolidates provisions that
abrogate the rule of law – a situation that
is simply unacceptable in a modern democracy.
6. Consistency with
Regulatory Impact Statements
6.1 The Regulatory Impact Statement which accompanied the original Act was strongly critical of the introduction of the legislation, suggesting that it could result in unintended consequences which would require subsequent intervention.
6.2 It also noted that there were significant risks associated with suspending the planned elections and that the suspension of such a right should only be considered in exceptional circumstances. Once the immediate problem – the deadlocked decision-making that had arisen out of seemingly irreconcilable regional differences between the councillors – was resolved the Commissioners would withdraw and be replaced by elected representatives not later than the elections scheduled for 2013. It explicitly stated, “Democracy would reassert itself as soon as the present systemic issues facing ECan have been averted.”[24]
6.3 The Regulatory Impact Statement on the Bill states that the changes brought about by the Act resulted in considerable momentum in the area of water management and led to a strategic, collaborative and integrated approach that was addressing ECan’s systemic problems[25]. It suggests that if the proposed amendment does not go ahead, the situation could revert to that which existed before the Act was introduced – something that is seen as particularly concerning in light of the Canterbury earthquakes and the need for stable regional governance and effective leadership[26].
6.4 Given the acknowledged recognition of the potential to violate the ICCPR the Commission considers that allowing the Act to continue is wrong. A speedy resolution is not always the answer to political issues such as water management and there do not appear to have been “unintended consequences” warranting further intervention. In addition, extending the Act effectively undermines the Government’s own freshwater policy programmes and the work of the Land and Water Forum[27]- something that the initial Regulatory Impact Statement was concerned about.
6.5 The Terms of Reference appointing the Commissioners required them to contribute to the Government’s consideration of long term regional governance and institutional arrangements for Canterbury. In response, the Commissioners suggested a transitional model of mixed governance which would have included both elected and government appointed members and eventually led to a fully locally elected democratic body. As indicated in the introduction to this submission, this option was considered by cabinet but not adopted.
6.6 Despite the fact continuing the existing situation was recognised as undemocratic and having the potential to breach New Zealand’s human rights commitments the Government elected to go with an option which was easier to implement from an administrative perspective. This was even though it meant overriding the recommendations of the two relevant Cabinet Ministers and meant that the region’s electors would not have the opportunity to democratically elect members to ECan’s governing body, [which was] inconsistent with the principles relating to local government in the Local Government Act 2001.[28]
6.7 The most recent Regulatory Impact Statement on the Bill also notes that the suggested option does not satisfy the criterion of democratic, local and balanced decision making that meets the needs of the region’s community and, while it facilitated the earthquake recovery process (because the Commissioners have demonstrated an ability to build strong relationships with CERA and councils on earthquake response and recovery matters), it limits local democratic involvement in earthquake recovery processes.[29]
6.8 Both of the Regulatory Impact Statements were strongly critical of the lack of a public consultation process with stakeholders and communities in Christchurch - an approach that is in stark contrast to the most recent report of the Land and Water Forum which is based on intensive consultation. The writers noted[30]:
The way in which limits are set is critical to the confidence that people have in them ... we suggest a collaborative approach to freshwater governance effectively dovetailed with existing legal processes has the potential to lead to more effective, durable and practical solutions than standard approaches. Done well, collaboration can lead to longer term solutions that are more resilient and adaptive to change. Collaborative approaches allow parties to deal with each other directly, allow an open exploration of all the values and interests of the participants early in the planning process, and can lead to a more durable and resilient outcome.
6.9 The Commission considers that no good reason has been provided for extending the present legislation. The lack of public consultation about content - or the continuing need for the legislation - is an abuse of the democratic process and does not reflect the real needs of Cantabrians (and could even do real harm). Nor does it benefit New Zealand as a whole.
7. Links with proposed changes to the Local Government Act 2002
7.1 The amendment also needs to be considered in light of the changes to the Local Government Amendment Bill that have been proposed as part of the wider local government reforms.
7.2 Some of the proposed changes to the LGA Amendment Bill will make it easier for the Minister to intervene in local government affairs, effectively eroding the autonomy of elected local representatives. This is because the Minister will be able to intervene in the affairs of a local authority if they have reasonable grounds for believing that there is, or there may be, a “significant problem” that the authority is unable or unwilling to effectively address. What is “significant” will no longer be assessed by the local authority but left to the judgement of the Minister.[31] The possibility of greater Ministerial intervention has the potential to undermine democratic control of local government.
7.3 The LGA Amendment Bill also proposes removing the reference to promoting the social, economic, environmental and cultural well being of communities from the purpose section of the principal Act. The so-called “well beings” are important provisions that clarify and confirm the role and responsibilities of local government in relation to economic, social and cultural rights. Any erosion of recognition of these obligations (which are effectively human rights obligations) risks undermining New Zealand’s international commitments.
7.4 As with the ECan legislation, the effect of what is proposed would conflict with a central purpose of local government - namely the establishment of democratic local decision-making and action by, and on behalf of, communities. The increase in ministerial discretion and decrease in local government autonomy runs counter to the spirit of the Commonwealth Principles which emphasise partnership between spheres of government and co-operation among local and national government. As the Principles note:
Effective democracy demands respects between the different spheres of government and recognises the defined roles that they play in serving their citizens.[32]
7.5 The Commission is concerned that the legislative proposal for removing aspects of governance from the hands of democratically elected officials under the LGA Amendment Bill are so similar to the effect of the ECan legislation that the situation in Canterbury could become permanent even if the ECan Act itself is repealed in 2016. This possibility will be even more worrying if the references to “the four well-beings” in the LGA Act are removed.
8.1 The section 7 NZBORA vet by the Attorney-General noted that the original Act had been assessed for compliance with the NZBORA and issues such as limiting the right of appeal to the Environment Court (which had the potential to conflict with the right to natural justice affirmed in s. 27(1) NZBORA) considered. The Attorney-General concluded that, as the Act did not limit natural justice or the ability to seek judicial review, it did not breach the NZBORA. It followed that as the substance of the Bill is not altered, the same conclusion applies here.
8.2 The Commission does not agree with this. The Act not only changes the legal test for the creation, amendment or revocation of water conservation orders, it seeks to fast track regional plans by revoking appeal rights to the Environment Court and vests all regional governance decision making in the Commissioners rather than elected councillors. In our view this far exceeds what is necessary to address the problems in Canterbury.
8.3 We would argue that the Act infringes s.27(1) NZBORA and cannot be justified under s.5 of that Act. Section 5 provides that:
...the rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
In deciding whether a limitation can be justified, the following issues will be taken into account:[33]
8.4 While we recognise that there may have been a legitimate reason for seeking to resolve the issues relating to claims to water, the continuation is out of proportion with what was necessary to achieve this.
8.5 For a legislative response to be reasonable and proportionate it must impact on the relevant right or freedom no more than is reasonably necessary to achieve its objective. As Professor Joseph notes:
A proportionate response to concerns about Environment Canterbury would have been to remove water issues from its brief, establish a separate authority to develop a Water Management Strategy, and leave the elected councillors to attend to their other regional-council tasks.[34]
8.6 The Commission therefore does not consider that the original legislation was a proportionate response to the problem and the s.5 test is not satisfied. The ECan Act and, as a result, the proposed amendment contravene the right to access to justice in s.27(1) NZBORA.
8.7 Although the Act is theoretically concerned with water management, the effect is to replace the elected regional council with Commissioners who can perform all the functions of the council - not just those involving water. As the New Zealand Law Society noted in a letter to the Attorney General protesting against the introduction of the legislation, people in Canterbury are, in matters of local government, not being treated equally with citizens in other regions.[35]
8.8 This cannot be addressed as discrimination for the purposes of the NZBORA since there is no prohibited ground, but it nevertheless raises issues of equality that resonate poorly in the context of earthquake struck Canterbury.
9.1 The Commission is concerned about the content of the Act, the way in which it was originally enacted and the intention to extend it. As legislation, it has significant implications for the rule of law and (in our view) contravenes the NZBORA in a way that is out of all proportion to what it sets out to achieve. Further, by removing the possibility of being able to influence the substantive provisions, it undermines the right to democracy and the ability of Cantabrians to participate in public affairs that are integral to international human rights law.
9.2 We recommend that the Bill is withdrawn and a human rights approach taken to improving water management in Canterbury that respects citizens’ rights, elected local government and reflects the Land and Water Forum’s collaborative model. In making this recommendation we note that we substantially agree with the original advice of the two Ministers and the ECan Commissioners.
[1] “Psychosocial effects of
the earthquakes”, Chief Science Adviser’s Advice to Government of 10
May 2011 reported
by The Press 10 May 2012 http://www.stuff.co.nz/the-press/opinion/perspective/6892800/Psychosocial-effects-of-the-earthquakes
[2] Office of the Minister for the
Environment , cabinet paper on Environment Canterbury ((Temporary Commissioners
and Improved Water Management) Amendment Bill 2010 at para 13
[3] Ibid. at para 9
[4] Minister of Local Government
& Minister for the Environment, Cabinet paper on Environment Canterbury
(Temporary Commissioners
and Improved Water Management) Amendment Bill 2012 at
para 60.
[5] Minister of Local
Government & Minister for the Environment, Cabinet paper on Environment
Canterbury (Temporary Commissioners and Improved Water Management) Amendment
Bill: Approval for Introduction at para 23
[6] Steiner, H Political
Participation as a Human Right (1988) Human Rights Yearbook, Vol.1
[7] Art.7(b)
CEDAW
[8] Art.5(c)
CERD
[9] Art.3(c); Art.29(b)
CRPD
[10] Institute for Human
Rights and Business (2011) More than a Resource: Water, Business and Human
Rights Accessible at www.ihrb.org
[11]
Art.14 CEDAW
[12]
Art.24CRC
[13]
Art.28CRPD
[14] Art.25
DRIP
[15] Art.32 DRIP
[16] Arts.26 & 29
DRIP
[17] Guidance Note of the
Secretary-General on Democracy (2009) at para 7
[18]Section 22 of the Act which
states that “2010 election for members of ECan must not be held” is
a good example of this.
[19]
Ibid 1
[20] Institute for Human
Rights and Business (2011) More Than a Resource: Water, Business and Human
Rights accessible at www.ihrb.org
[21]
Section 31 – this is done by way of a type of clause known as a Henry VIII
clause which is constitutionally objectionable when
used for general legislative
purposes: Joseph, P “Environment Canterbury legislation” New
Zealand Law Journal (2012) at 195
[22] New Zealand Law Society,
Letter to Attorney-General on Environment Canterbury 28/ 9/2010 available at www.lawpoints@lawsociety.org.nz
[23]
Joseph, supra fn 14 at 195
[24]
Regulatory Impact Statement (2010)
[25] Regulatory Impact Statement
(2012) at [para 7]
[26] Ibid. at
[para 30]
[27] The Land and
Water Forum is a group of primary industry representatives, environmental and
recreational NGOs, iwi and other organisations
with an interest in freshwater
and land management. In 2009 the Forum was asked by the Government to conduct a
stakeholder-led collaborative
process to recommend reform of New Zealand’s
freshwater management. In September 2010 the Forum reported back to Ministers
identifying shared outcomes and goals, and options to achieve them. It then
undertook public engagement on its recommendations throughout
New Zealand and in
April 2011 provided Ministers with its findings, recommendations and thoughts.
This year it provided the Government
with a report setting limits for water
quality and quantity, and improvements to decision-making. A second
report, due in November,
will provide advice on how to manage to limits,
including allocation of fresh water resources, and additional tools to manage
the
effects of land use on
water
[28] Ibid. at [para 89]
[29] Ibid. at [paras 94 &95]
[30] Second Report of the Land
and Water Forum: Setting Limits for Water Quality and Quantity Freshwater Policy
and Plan Making Through
Collaboration (April 2012) at [para 21] p.4
[31] Clauses 255 & 256
(1)(b) Local Government (Amendment) Bill
2002
[32] Commonwealth Local
Government Forum, Time for Local Democracy - The Aberdeen Agenda:
Commonwealth Principles on Good Practice for Local Democracy and Good
Governance, Commonwealth Local Government Forum (2005) at
6
[33] R v Hansen [2007] 3
NZLR 1 (SC) at 28
[34] Supra fn 2
at 195
[35] New Zealand Law
Society, Letter to Attorney-General on Environment Canterbury 28/ 9/2010
available at www.lawpoints@lawsociety.org.nz
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