Ecan act ‘constitutionally repugnant’, says top law academic

Government actions are constitutionally repugnant and it breaches law
A top New Zealand public law academic Philip Joseph wants the Government to abolish legislation that sacked Environment Canterbury (ECan) and says shunning of due process is repugnant.
reports Paul Gorman of – The Press 19/05/2010

Canterbury University law professor Philip Joseph says the Environment Canterbury (Temporary Commissioners and Improved Water Management) Act, which was passed under urgency last month, breaches several principles of law, is “constitutionally repugnant”, contains “elements of subterfuge” and is a “constitutional affront”. In the light of the information obtained under the Official Secrets Act it would appear the real agenda is to abolish the river conservation orders in order to speed up and inject government money into Canterbury irrigation schemes.


This was confirmed by Chris Hutching in the NBR NZ Property Investor that Cabinet papers obtained under the Official Information Act reveal millions of dollars of government funding are being considered for irrigation schemes in Canterbury.
The briefing papers show the government wants to push construction ahead at full speed on the Rakaia River and make irrigation water available by 2014. Going through the courts might take two years – too slow, according to
the papers. They show that government officials have been working for more than a year with proponents of irrigation schemes and Trust Power on the Rakaia and Hurunui Rivers.

Phillip Joseph says the act should be repealed and the 14 sacked regional councillors reinstated.

Joseph is the author of the leading text Constitutional and Administrative Law in New Zealand. He is an adviser to several government organisations, including parliamentary select committees, the Law Commission and government departments, and in 2004 was conferred with a Doctor of Laws degree for his work.

The ECan act was pushed through by Environment Minister Nick Smith and Local Government Minister Rodney Hide after a review of ECan by former National deputy prime minister Wyatt Creech.

It replaced elected councillors with seven Government-appointed commissioners, put off ECan council elections until at least 2013, gave commissioners extra powers over water, took away the right for Canterbury communities to appeal to the Environment Court and even allows the Government to temporarily suspend the Resource Management Act.

Joseph told The Press the act was “simply unacceptable”.

“What I’m concerned about is the idea of proper process, and this was a departure,” he said.

“This didn’t go through any select committee consideration, no submissions and no consultation. Why should urgency be taken on a matter such as this?”

Smith said the comments were predictable.”Lawyers and law professors view the world very much from the view of decisions being able to be repeatedly appealed, without looking at other consequences of not getting on and making decisions.”

As a member of the New Zealand Law Society’s rule of law committee, Joseph wrote a paper on the ECan act that is being published by the New Zealand Law Journal.

In his report, Joseph said the act failed the legal requirement that the law should be general and forward-looking, not retrospective.

“Such legislation may be vigorously defended politically but it does nothing to promote respect for the law.”

Withholding people’s rights to be heard on water conservation orders (WCO) denied all the equal protection of the law, was “constitutionally repugnant” and “either gratuitous or disingenuous”.

The act was passed in haste, represented a “disproportionate response to the issues that prompted the Government intervention” and contained “subterfuge”, Joseph said.

“Its title contains reference to `temporary commissioners’, suggesting that the current arrangement is transitional and temporary. But it is not. The arrangement will remain in force for longer than the life of any one Parliament,” he said.

“What should be done about the legislation? Repeal it and start again. Reinstate the elected councillors and, if needs must, establish a separate authority to oversee water allocation within the region. Reinstate the right of appeal to the Environment Court for regional decision-making and return to the status quo for WCOs.

“These would be the preferable outcomes, but … the political decision has been made and will not revisited.”

it would appear the Government is planning up to $750 million for Canterbury irrigation


“Government investment in the range of 10% to 30% of off farm capital development would be required to accelerate development. Current irrigation and water storage proposals in development are estimated to require $2.5
billion. Therefore government investment required to accelerate and optimise these schemes would be in the range of $350 million – $750 million over the next decade. This level of government investment is unlikely to crowd
out private investment as substantially more capital will be required from other parties.”

Weakening all conservation orders and using Lake Coleridge, which empties into the Rakaia River would irrigate up to 150,000ha and a canal would remove 25cumecs or 11% of the average water flow at the Rakaia Gorge.
Proposals for the Hurunui include damming Lake Sumner and the South Branch. The Rangitata is also in the government’s sights for funding, with a recommendation it take a 15% stake in a $75 million scheme. Other
funding mechanisms under review include grants, loan guarantees, equity stakes and convertible notes. Other schemes highlighted in the papers include a dam for the Ashley River in Lees Valley.

Speedier allocation of irrigation water is high on the agenda of Minister Nick Smith.
The legislation that paved the way for the sacking is mostly directed at overturning hard- won water conservation water conservation orders nationally, which protect the level of flows). Mr Smith claimed he axed the councillors
partly for failure of the regional council to produce a water allocation plan in the 18 years of its existence, although the government has also failed to produce its national policy statements on these matters.
The cabinet papers reveal that the main government players involved include Prime Minister John Key, his deputy Gerry Brownlee, Agriculture Minister David Carter and Local Government Minister Rodney Hide.
Weakening all conservation orders (“streamlining” according to the language in the papers) is one of the broader aims. It would be brought about via the RMA Infrastructure Bill that Mr Smith wants ready for Parliament to adopt later this year.

But officials were concerned that waiting for this legislation would take too long and might not specifically address the issues relating to the Rakaia, and that a proposed water conservation order currently at the Environment Court
appeal stage would block exploitation of the Hurunui. This is why they recommended the drafting of the recent Environment Canterbury Temporary Commissioners and Improved Water Management Act to directly focus on
those two rivers and sack the councillors. The irrigators also want to address another “key blockage” – the conditions that have been set down in resource consents about maintaining flows.
How to speed it up

The “secret” cabinet papers reveal Ministry of Agriculture and Environment officials were writing papers in 2009 about how to speed up exploitation of Canterbury’s water resources, particularly the overturning water conservation
orders granted by previous administrations on the advice of the Environment Court. The papers outline government reservations about the Canterbury Water Management Strategy, a regional initiative by Environment Canterbury that has been thrashed out with district councils and stakeholders over the past couple of years. There are concerns about the delays in reaching consensus for projects. Ngai Tahu is also identified as having major reservations about the water strategy because it reduces the tribe’s status to a stakeholder when it aspires to a greater decision-making role like Tainui’s in the Waikato.

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