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GRAHAM ADAMS: "Co-governance for your deck!"

This article was first published at The Common Room


An effective campaign against the RMA reforms will be a nightmare for Hipkins.


After a Budget that failed to excite voters and a lacklustre party conference where his senior colleagues faintly praised him for his proletarian taste in food, the very last thing Chris Hipkins needs is a light shone on the vexed topic of co-governance.


An aficionado apparently not only of sausage rolls but also of spaghetti on toast (according to Kelvin Davis and Grant Robertson respectively), the Prime Minister is no doubt still hoping he can steer the election debate almost entirely towards “bread-and-butter” issues. Unfortunately for him, raising awareness of the co-governance provisions in the new RMA replacement legislation going through Parliament is central to the Taxpayers’ Union’s latest national campaign. With the title “Hands Off Our Homes!”, the roadshow will take in 30 towns and cities over three weeks, after beginning with a meeting last Monday in Christchurch.


Federated Farmers, which also strongly opposes the legislation, will co-host nine of the scheduled events. The tour ends in Whangarei on June 22 — less than a week before the Environment Select Committee is due to deliver its report on the Natural and Built Environment Bill, which repeals and replaces the Resource Management Act 1991, working in tandem with the Spatial Planning Bill.


The union says it is “fighting David Parker’s proposal to replace the Resource Management Act (and your local council) with co-governed Central Planning Committees”.


Given the Taxpayers’ Union’s successful campaign to draw voters’ attention to Three Waters last year, the Prime Minister should be very afraid — not least because David Farrar, a co-founder of the union, says the replacement legislation for the RMA is “much, much worse” than Three Waters and will “dictate what you can do with your house, your farm, and your business”. That description is bound to alarm the public.


The campaign will be music to the ears of National and Act, who voted against the bills at their first readings on November 22 last year. Chris Luxon and David Seymour have both been highly critical of co-governance.


Hipkins promised in the early days of his premiership to clarify what co-governance entails. Discussing Three Waters shortly after he became Prime Minister in January, he said there was “an uncertainty in New Zealanders about what we mean when we are talking about co-governance. I want to make sure that in each context we are very clear about what we mean and I acknowledge that that hasn’t always [been the case]...


“So we might need to slow down and better explain what we’re working on.”


His new Minister of Local Government, Kieran McAnulty, also professed pious intentions. After a 1News-Kantar poll in March that showed only 17 per cent of eligible voters thought they had a good idea of what co-governance meant in relation to Three Waters, the channel’s political editor, Jessica Mutch-McKay, asked McAnulty: “Do you feel the government has failed New Zealanders by not communicating properly what co-governance means?”


Kieran McAnulty: “Well, it shows that the majority of people don’t get what we’re trying to achieve. And I think that’s on us to explain it better.”


In the past four months, Hipkins and McAnulty have not enlightened voters at all. In fact, they have muddied the waters and left the public even more confused. When Three Waters was rejigged in April to increase the number of Regional Representative Groups from four to 10, Hipkins claimed that co-governance had never been part of Three Waters anyway — despite his senior ministers, including Grant Robertson and Nanaia Mahuta, having invariably used that term. In contrast, McAnulty, rather than pretending co-governance was not a feature, defended it as a Treaty requirement, while dismissing “one person, one vote of equal value” as an ‘academic’ version of democracy.


The Taxpayers’ Union’s campaign against the new RMA laws echoes its objections to Three Waters. These include loss of local control by taking responsibility for planning rules away from the 67 democratically elected local councils and setting up co-governed committees on which unelected iwi and hapū representatives, with full voting rights, will sit alongside council appointees.


As Farrar put it: “Under this proposed law, powers over planning and when a resource consent is required will be stripped from local councils and handed to 15 new co-governed ‘Regional Planning Committees’. That means the decisions about the building consent for your deck, new home, factory, your farm’s water take, and how your city or town is planned will be made by people you cannot vote out.”


The new laws have been damned as “co-governance for your deck.”


Last September, Minister for the Environment David Parker made a show of having stepped back from co-governance in the legislation. It looked like a feint, and it was. While co-governance appears at first glance to be a less prominent feature than in Three Waters, looks can be deceiving.


In Three Waters, the 10 Regional Representative Groups — which set the overarching strategy for each region — will be made up of equal numbers of unelected iwi representatives and council members. Under the new RMA replacement laws, Regional Planning Committees will consist of a minimum of six members selected by local government, local hapū and iwi, and possibly central government. At least two members must be representatives from iwi and hapū and at least one member may be appointed by each local authority in the region. Regions get to decide how many members the committees have in total beyond these minimums.


However, the local authorities and iwi/hapū group that will decide how many seats will be allocated on a Regional Planning Committee must reach agreement on its composition. And while the current RMA law stipulates that decision-makers must “take into account” the principles of Te Tiriti o Waitangi, the Natural and Built Environment Bill goes further and requires decision-makers to “give effect” to them. Given the Waitangi Tribunal has made it clear that to satisfy the “partnership” principle a 50/50 split is required, two seats will be just the starting point.


The expanded role for Māori does not end there. Anyone exercising functions under the Natural and Built Environment Act “must recognise, and provide for, the responsibility and mana of each iwi and hapū to protect and sustain the health and well-being of te taiao [environment] in accordance with kawa, tikanga [protocol] and matauranga [knowledge] in their rohe [tribal area]”.


Consequently, an iwi or hapū can, at any time, produce a Te Oranga o te Taiao (environmental wellbeing) statement to the relevant Regional Planning Committee. What weight these statements will carry is not specified but for a government not averse to adding contentious clauses after public submissions have closed there will be plenty of time for their role in the legislation to be expanded. Anyone acquainted with the vast power of Te Mana o Te Wai statements in Three Waters will be alert to this possibility.


The bill also establishes a National Māori Entity to provide independent monitoring of decisions made under the Natural and Built Environment Act or the Spatial Planning Act. This body’s proposed role in relation to the courts, and other serious concerns, led the Chief Justice, Helen Winkelmann, to take the extremely unusual step of making a written submission to the select committee in February.


Noting that “monitored entities” are required to respond to the reports the National Māori Entity prepares, Winkelmann pointed out that the courts, “appear to fall within the scope of the… definition of monitored entities. We assume this is an error in drafting or an oversight. Providing for decisions of the Environment Court to be subject to review by the Entity would be inconsistent with New Zealand’s constitutional arrangements. Court decisions are appropriately challenged by way of appeal, not by way of review by a statutory entity. Such a review would be constitutionally unprecedented and problematic.


“Still more problematic would be any requirement to respond to such reports... The courts should be expressly excluded from the operation” to ensure “they are not monitored agencies”.


Given that “drafting errors” in the Three Waters legislation were blamed for geothermal and coastal waters mysteriously being added to freshwater as categories falling under the purview of Te Mana o Te Wai statements, not everyone would be as generous as Winkelmann in excusing the unconstitutional proposal as an oversight.


The Chief Justice also warned that the lack of clarity in Parker’s reforms would disrupt and overburden the courts by giving rise to “extensive” litigation.


And she wasn’t the only influential citizen to sound a warning. Environment Commissioner Simon Upton — the Environment Minister in Jim Bolger’s government who shepherded the RMA through the House in 1991 — said in his submission that the reforms are so flawed it would be better to ditch them and amend the current law. “As they stand, they substitute the uncertainty of new law with novel definitions and complex ambitions for the relative certainty of amending the existing legislation.”


Announcing Federated Farmers’ nine-stop roadshow that began on Tuesday in Ashburton, its RMA spokesperson Mark Hooper said the organisation “strongly opposes the current reforms because they will shift land use planning away from democratically elected councils towards ‘Regional Planning Committees’, which will be at arm’s length from their local community.”


In his submission to the select committee, he said the new laws were “likely worse” than the current RMA. “Despite the rhetoric of better, faster, cheaper, it’s really hard to see how this will be the case.”


In short, David Parker’s proposed cure is widely viewed as worse than the disease.


The question remains that if the blowtorch applied to the new legislation becomes too intense in the months ahead, will Hipkins cut his losses and delay the bills until after the election, or forge ahead regardless?


Poll results between now and October will certainly help to focus his mind.


Graham Adams is a freelance editor, journalist and columnist. He lives on Auckland's North Shore. He writes for The Common Room.

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