Apr 26, 2010

Officials opposed ECAN changes

The country's top legal brains warned the Government that Cantabrians would be stripped of rights enjoyed by other Kiwis if it forced through Environment Canterbury (ECan) changes...

Just-released Cabinet papers show the Ministry of Justice vigorously opposed legislation that sacked regional councillors, put off ECan council elections until 2013, gave commissioners extra powers over water and took away the right for communities to appeal to the Environment Court.

The Department of Conservation (DOC) also objected to parts of what is now the Environment Canterbury (Temporary Commissioners and Improved Water Management) Act.

It said the Wyatt Creech-led review of the council did not justify bringing in commissioners and restricting any appeals on a regional plan and water conservation orders to points of law in the High Court.

The opposition from officials comes as political opponents raise fears the legislation puts too much control in the hands of the commissioners.

Under section 31 of the new act, Environment Minister Nick Smith can suspend the Resource Management Act (RMA) for water moratoria and water conservation orders.

Green Party co-leader Russel Norman said the moves were "Muldoonist" and made Cantabrians "second-class citizens".

"What it (section 31) does is suspend the rule of law in that area, if the minister decides he doesn't like the law in the RMA. So everyone else is bound by the RMA, except Nick Smith.

"It is extremely irregular, an extraordinary provision. This is Muldoonist."

However, Smith told The Press that commissioners would not be given any more powers than they now had.

Fish and Game Council legal counsel Maree Baker, of Anderson Lloyd, said section 31 gave "very broad, seemingly unfettered power" for Smith to change fundamental provisions of the RMA.

"Passing this sort of act under urgency is not conducive to making `good law'.

"At worst, it is an attempt to allow the duration of the changes wrought by this act to continue for longer than initially proposed, the nature of the powers of the commissioners to be amended, all without recourse to Parliament," Baker said.

The ECan changes were announced by Smith and Local Government Minister Rodney Hide on March 30.

Smith's March 29 Cabinet paper included concerns raised by the Ministry of Justice and DOC.

The ministry said the ECan changes were not consistent with Government policy requiring a "particularly strong case [to be] made for any regulatory proposals that are likely to override fundamental common law principles.
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"These ... principles include `the right of citizens to have access to the courts'.

"The ministry considers that this is a significant proposal, which, combined with the removal of the elected councillors, means that parties with a stake in Canterbury's natural resources have significantly less ability to protect their rights and interests than elsewhere in the country."

The papers, released after the announcement of ECan's seven commissioners by Smith and Hide on Thursday, reveal the Government's view that not taking action could cost the country "several hundred million, or potentially billions, of dollars a year".

"This situation has been exacerbated by the [Creech] report, which has prompted a wave of negative coverage and commentary on ECan's performance," Smith's report to Cabinet said.

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