Elections only a part of democracy

Abstract

All New Zealanders are equal, but under current laws Cantabrians are less equal than all others, write IKE KLEYNBOS and ANN BROWER.

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Prime Minister John Key wants to restore democracy to ECan by considering the possibility of elections this year. But there's more to democracy than elections.

Democracy allows us to "hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights".

Since the 2010 passage of the ECan Act, Cantabrians are less than equal to the rest of New Zealanders. And this goes far deeper than elections.

Like all regional governments, ECan manages the water, air and coastal resources of the region. The ECan Act (2010) sacked the ECan councillors, suspended regional elections, suspended jurisdiction of the Environment Court, allowed the Minister to ignore the Resource Management Act (RMA), and changed the rules for river protection. None of this applied to other regions. Only to Canterbury. And this was six months before the September quake.

This didn't happen overnight. In early 2009, ECan was running out of money for water management. It had a choice: raise the rates for everyone; or raise the price of water extraction consents. A divided council voted to place the burden on consent holders, not all ratepayers. Meanwhile, the Government commissioned a review of the RMA which suggested abolishing regional councils altogether.

Here's where it gets interesting. Amy Adams, now Minister of Justice, reminded then (and now) Minister for the Environment Nick Smith that the Government has the power to sack misbehaving regional and district councils. Smith agreed, and threatened to use these powers if ECan didn't clean up its act and speed up its consents processing.

Governments had sacked councils before, several times, without special legislation. The communications officer of Internal Affairs further reminded the public that the Government could replace the council only in cases of "significant and identifiable mismanagement of the resources of the local authority, or [inability] to perform and exercise its duties". Not surprisingly, he was quoting the powers granted by the Local Government Act (LGA) 2002 (s. 254). More surprisingly, the Minister was relying on the RMA (s 24a)

When ECan had agreed to raise the price of water extraction consents in 2009, not every councillor had agreed. Several held active water consents, but were still allowed to vote. Conflicts of interest for those consent- holding councillors were investigated, and later confirmed, by the Auditor General.

Soon after, the opponents of raising consent prices led the removal of ECan chairman Sir Kerry Burke.

The next month the government initiated a review of ECan led by former National deputy prime minister Wyatt Creech. The report suggested "a new regional authority to handle all water issues", echoing the Government's review of the RMA eight months earlier.

This is where the head- scratching starts. Nick Smith didn't need special legislation to sack ECan; he had the power in both the RMA and LGA. This suggests that the Government either: was not confident that ECan had breached legislative thresholds; or had other goals. Understanding the rest of the ECan Act sheds light on those other goals, and affirms the other requirements for transparent democracy.

Section 31 of the ECan Act gives the Minister for the Environment the power to decide where and when environmental law applies in Canterbury. Constitutional lawyers call this a "Henry VIII Clause," because it allows ministerial power to selectively behead inconvenient sections of the RMA.

Section 52 then restricts Cantabrians' access to the Environment Court. Under the ECan Act, Cantabrians can no longer appeal the substance of regional government's decisions about Water Conservation Orders (WCOs) and the regional plan. Aucklanders still can. Wellingtonians still can. All New Zealanders are equal, but Cantabrians are less equal than all others.

In every other region, the WCO rules still apply. Section 46 suspended the rules for new WCO applications, to protect outstanding ecological, recreational, cultural , or wild and scenic characteristics of a river. Everywhere else, councils must prioritise protection of these nationally outstanding characteristics before allowing resource use, unless the economic potential was important on a national scale. The ECan Act changed the order, so conservation loses its priority status. In other words, it took the conservation out of Canterbury Water Conservation Orders.

The Environment Court appeal on the Hurunui River WCO was scheduled to begin May 30, 2010. Parliament passed the ECan Act under urgency in April, and changed the rules at half time on the Hurunui. This violates a fairly basic concept of the rule of law - equal application of the law.

In other words, the other bits of ECan Act did more damage to democracy than the suspending elections bit did.

These other bits of the ECan Act - the selective beheading of the RMA, the suspended jurisdiction of the Environment Court, and half-time changes to river protection rules - seem anathema to New Zealand's Bill of Rights Act 1990.

Here it's important to remember that the Bill of Rights is not entrenched. It applies to us, but not to Parliament. Parliament can do as it likes, when it likes.

As Cantabrians, it's also important to remember that the Government faced many of the same issues with the Christchurch City Council as it had with ECan - after September 4, after February 22, and in the building consents crisis of 2012. But the Government never sacked the city council. Instead it usurped many of the council's powers.

Democracy is intricate and fragile. Elections are but one part. If the Government wants to restore democracy in Canterbury, good on it. But it must attend to the rule of law as well as to elections. Cantabrians deserve the same access to the same courts as other New Zealanders. We also deserve the same transparent and consistent application national environmental law as other New Zealanders. Elections are just the sideshow.

Ike Kleynbos has just completed a Bachelors of Environmental Policy and Planning at Lincoln University, and is beginning postgraduate studies this year. Ann Brower is a Senior Lecturer of Environmental Policy at Lincoln University.