Kicking the tyres from beneath New Zealand

Government's gathering pace, in a way that ought to give us all serious pause - because it rips apart more than our constitutional fabric.

“New Zealand is a remorselessly democratic country.” -- Geoffrey Palmer

In 1977, 341,159 New Zealanders joined the petition of Gwenny Davis to Parliament.

Known as the Maruia Declaration, it said among its clauses that native forests needed legal protection; that the wholesale burning of indigenous forests and wildlife had no place in a civilised country; and that "our remaining publicly owned native forests should be placed in the hands of an organisation with a clear and undivided responsibility to protect them".

It was not accepted by the government of the day (Muldoon).

But it seeded the establishment of the Department of Conservation 10 years later, along with the Environment Ministry, and Conservation and Environment Acts, followed by Resource Management and Crown Minerals laws passed in 1991.

Last night and this morning, under urgency, Parliament pushed two Bills, among others, through all of their stages to completion.

“One great rush of non-stop, orgiastic lawmaking,” as Andrew Geddis put it - following hard on the heels of another post accusing “the National Government generally (and Justice Minister Judith Collins in particular) of manifest bad faith regarding electoral reform”.

One of the Bills was the Crown Minerals Amendment - amending another Amendment scrambled through just a month ago, a few weeks after it had been announced, without benefit of Bill of Rights advice, public submissions or select committee scrutiny.

Crown Minerals Amendment (the 2nd, done this morning) allows conditional permits for operators lacking the immediate expertise and financial ability to undertake drilling activities - leading Greenpeace to charge our Prime Minister of misleading New Zealanders, with his recent assurances that regulation would be 'world class' and would not allow 'cowboys' to operate.

It also extends the purported ban on, and criminalisation of, anti-oil protest from the waters of our EEZ to the high seas above the continental shelf, in what may be a breach of international law.

It does so in disregard of peer-reviewed legal advice, joined and backed by a coalition of 43,000 New Zealanders with more joining every few minutes as I write, including Forest & Bird - and Rt Hon Sir Geoffrey Palmer, New Zealander of the Year Dame Anne Salmond, founder of the Peace Squadron George Armstrong, Peter Williams QC, and many more - many of whom were involved in anti-nuclear protesting, at sea, in the 1980s.

In the other Bill, the subject of Andrew’s post ("I think National just broke our constitution"):

the judiciary's primary function - to declare the meaning of law and its application in particular cases - has been nullified. Furthermore, the judiciary's role as protector of individual citizens in terms of ensuring that they are being treated in accordance with the laws of the land has been removed. While the stakes may be small in the immediate case, this is about as big a deal as it gets in terms of our constitution.

Even the Attorney-General - unmoved, not to mention rather spiteful, on the matter of Crown Minerals - said that this was in breach of our Bill of Rights.

Taken on their own, each of these shows some gall.

Taken together with what follows, it’s indicative of a government economically desperate - also, drunk on power and growing in aggression and confidence. A government reckless as to convention and consequences, kicking the tyres right out from beneath New Zealand.

It is an open assault on our values - the 'remorselessly democratic' character of our people, our few (and fairly casual) checks and balances on abuse of executive power - the things that protect everything if you think about it - the democracy, integrity and unspoiled place that are our New Zealand story.

In the light of last night's effort, examples which seemed bad enough no more than a few months ago pale into insignificance. But what they show is a habit - a habit of kicking the tyres, then doing it a little bit harder.

Canterbury. Extension of ECan powers for a further three years, along with the bungled exercise of Canterbury Earthquake Recovery emergency powers was described by Sir Geoffrey Palmer as leaving “a toxic taste in the constitutional mouth”:

These developments remind me of the excesses of the now repealed National Development Act 1979, the legal leitmotif of the expensive and futile "Think Big" policies of that day. Do not worry about accountability, do not worry about public participation, just get on and do it because the government knows best.

RMA and local government. In the Resource Management Reform Bill 2012, government will give itself powers to ignore and override the RMA by regulation - in what is known as a 'Henry VIII clause'.

In hearings on that, and the Auckland Unitary Plan (where a government-appointed body will have the effect of limiting appeal rights), "the Government has shown utter contempt to submitters at a Select Committee in Auckland this week when many were given just a handful of minutes to address the committee," according to New Zealand First's Andrew Williams.

On February 28, Resource Management Act reform proposals were announced, which would profoundly change that Act, Ministerial powers, and people's rights. 

These are powers that would let Ministers step in to rewrite local plans, or order that a resource consent must go ahead without public submissions - in response to developers lobbying, perhaps, or just the latest jobs or infrastructure pet project. It leaves even the EMA concerned. The Act’s most important sections, which govern all decision-making and outcomes under it, would be rewritten, omitting parts, and weakening others.

Submissions closed one month later, on April 2. The Prime Minister says it will be in force - in force, not drafted or introduced - by the end of the year.

Not merely the rushed nature of the process, but the poverty of advice - and downright misleading nature of some of the advice, including crucial claims on which the proposals hinged - has led Forest & Bird to lay a complaint with the SSC [pdf].

Earlier, Porirua mayor Nick Leggett had written here on Pundit on the Key-led government's assaults on local democracy:

For its part, the Beehive has shown itself willing to use selective data and extreme examples as a pretext for ideologically-driven reforms, endangering an entire tier of democratic governance in the process.

Intelligence and security. Government is about to rush through, under urgency with a shortened select committee process, sweeping new intelligence-gathering powers for the GCSB (Government Communications Security Bureau). It is a change in the brief for that organisation - conferring domestic powers, no longer confined to foreign intelligence, with a totally rewritten set of objectives - done on Prime Ministerial warrant.

DOC. On March 26, a total restructuring of DOC was announced, splitting the organisation at mid-level into conservation and 'partnership' limbs. Inside a month (12 working days' consultation, followed by a decision within a week), the decision was confirmed.

Forest & Bird Ambassador Gerry McSweeney has blogged on why that's a breach of trust with the West Coast; others including an independent inquiry commissioned by the PSA have recalled Cave Creek, which cost us 14 lives.

Reflecting back on the Maruia Declaration, it's a breach of trust with New Zealand. "The social contract between the NZ government and the West Coast was that in exchange for forest protection, central government would fund proper management of these areas for conservation and recreation," McSweeney writes.

I’m going to take a wild punt, and suggest that there is no light at the end of the tunnel yet, other than that of an oncoming train:

  • Already, Environment Minister Amy Adams has passed an EEZ law that fails to meet UNCLOS (international law of the sea) requirements. Now, she wonders whether New Zealanders should even be allowed to make submissions on deepwater oil exploration (the Deepwater Horizon, which exploded in the Gulf of Mexico in 2010, was an exploration rig). EEZ regulations coming soon will push the boundaries of what is permitted, even by the government's own weak Act.
  • One of the cornerstone Acts left untouched so far, Conservation Act changes are on their way. Through local Boards, consultation and decision-making structures set up under this and the National Parks Act involved others than Ministers and bureaucrats - ironically, they were about partnership. More recently I've heard DOC Director-General Al Morrison describe them as a sort of historical accident - an anachronism, that gets in the way. I suspect that the new structure, now being implemented, challenges Conservation Act priorities.

It's in defiance of everything - history, our story, he tangata - the people. It's a culture of derision: for quality of advice, genuine consultation, due process, checks and balances on power, for law and promises made - for 30 years of a social contract arrived at before some of us were even born, or still in short trousers - for the things that make us - for what is basic in our society (hat tip: Geddis).

I mention the Maruia Declaration,  because what is being broken to pieces here is not just 'the constitution' - an abstract thing, which we don't even have written down.

We, the people, told our Parliament what we wanted for New Zealand environmentally-speaking, and were heard. But the things that happened next are right at the top of the list of things that are, one by one, very systematically, being re-examined and taken apart - mistaken for obstacles rather than foundations.

Taken separately or together, it ought to be reason for serious pause. But far from pause, our government is gathering speed.