Post by Kiwi Frontline on Apr 4, 2017 10:54:58 GMT 12
Dear Supporter,
I understand you were one of the thousands of New Zealanders who have emailed National Party MPs in the last few weeks asking them to not to pass into law the Resource Legislation Amendment Bill. In the last few days, staff who work for the Minister for the Environment, Nick Smith, have been emailing those who contacted the MPs in an effort to rebut many of the points made in our suggested email.
We asked our lawyers to review the Minister’s defense notes. They tell us that it has claims that are plainly false. They are not just disagreement over ambiguous wording, where reasonable lawyers could differ. Their view is that the email contains inexcusable falsehoods.
Below is Nick Smith's email with the comments from our expert lawyers in red.
From: N Smith <N.Smith@parliament.govt.nz>
Date: Friday, 31 March 2017 at 4:00 PM
Subject: Resource Legislation Amendment Bill
Dear [first name],
Thank you for your email regarding the Government’s Resource Management Act (RMA) reforms through the Resource Legislation Amendment Bill (Bill).
The Resource Legislation Amendment Bill contains significant gains that will reduce costs and get better outcomes, including:
Faster, simpler plan making Is it speed of planning, or the paralysis created by planning, that blocks house building? In anycase, if speedier planning is the object multiple iwi controlling the planners is an odd way to pursue speed. The Bill contains few effective constraints on what iwi participants can demand in planning. Lawyers, from experience, assume that unconstrained statutory privileges will be abused, if not immediately then certainly by less worthy successors. Undefined ‘co-management’ powers invite iwi to extract rents or facilitation payments and use threats of delay even where they do not hold a balance of power. With the recent experience in Auckland and the provisional Unitary Plan provisions concerning 'cultural impact assessments', it is worse than naïve deliberately to extend that risk to monitoring, enforcing and consenting under the RMA.
Thousands fewer consents required
Fewer opportunities for appeals
Less duplication with other Acts
Better management of natural hazards
Increased legal weighting for property rights. We can’t see what provisions justify this claim. Perhaps it refers to a few amendments, such as to s85, which currently prohibits compensation for injury to property rights from RMA control. The changes make it even harder to qualify for compensation. Some changes could justify increased planner powers over landowners, including the stipulations for planning for “development capacity… to meet the expected demands” (new s30(1)(ba)). The hoped for increase in land use flexibility rely largely on Ministerial powers of direction. They could be used for the opposite purposes by future Ministers.
This reform is critical to addressing housing supply and affordability by making it easier, faster and less costly to create new sections. Section prices in Auckland have gone from $100,000 in 1990 to $530,000 today and are the core reason housing has become excessively expensive. It addresses this core issue by opening up land supply, reducing the time taken to get consents, reducing the cost of land subdivision and enabling the construction of infrastructure. Parties that are opposing this Bill are blocking the very changes that will make housing more affordable.
An assertion which has been made about the process is that iwi participation arrangements will impose onerous multiple consultation requirements on councils and consent applications. This is not correct. We see nothing in the new provisions to protect councils and applicants from multiple consultation requirements. Having to get what was in practical effect, sign-off from multiple iwi groups is precisely what happened under the draft provisions of Auckland Council's Unitary Plan. Current requirements for consulting iwi are cumbersome and cause a lot of frustration. The new arrangements will clarify which iwi need to be consulted, and on what issues. It would be interesting to know what the Minister thinks he is clarifying. Any hapu can now front up and demand a Mana Whakahone a Rohe (MWR) agreement. The Bill leaves most detail to the parties to an agreement to determine, subject to the stick of compulsory mediation or Ministerial “guidance”. The fact that the Auckland Council must consult with the IMSB has not protected citizens against being required by the Council (under the terms of what appears to have been an implicit deal with the IMSB, if it is not explicit) to consult with any one or more of 19 possible iwi on a particular consent. Extending the requirement to hapu level is mind-boggling. The consultation or paid engagement for ‘expert cultural advice’ may be with any one or more representatives who an iwi nominates. Auckland Council officers have disclaimed responsibility for how iwi choose to handle it, including responsibility for ignoring patently extortionary demands (including one demand for a fishing boat and motor as a condition of providing what the Council says it required). So this Ministerial claim seems either breathtakingly naïve, or false. Some councils already have these arrangements and they are proving to work well. By agreement, large numbers of consents are not referred to iwi, as they are not related to issues in which iwi have an interest. Work well from whose perspective? What measures of protection against cost and delay were applied? How much environmental improvement was secured? How many useful activities were discouraged? Auckland Council uses overlays in the Unitary Plan and the Cultural Heritage Inventory database (which the Council admits is inaccurate) to decide which applications iwi either must consult with iwi on or “should”.
The Bill requires that the iwi participation arrangements support timely consent decisions and that compliance costs must be minimised. The law makes plain that these arrangements are about participation, not control. This is simply untrue. The provisions are clearly deliberately obscure on any boundaries between participation and control. For example, new s58L now says that iwi participation agreements are to record the ways in which iwi authorities are to participate in decision-making and ‘assist’ local authorities to comply with their statutory duties, including under the provisions that refer to (undefined) Treaty of Waitangi obligations and so-called principles. There is no provision clarifying or limiting the “responsibilities and obligations of the parties” to participation agreements. There is nothing to protect citizens or councils from overreach or abuse of powers and procedures. The law would require councils to discuss with iwi a participation arrangement, but it gives amble flexibility to ensure the arrangements are practical and workable and does not compel agreement and arrangements cannot be imposed onto a council. The Minister is misleading here. The engagement with iwi is not consultation, but rather forced agreement. The provisions require Councils to enter agreements within 18 months after initiation by iwi (new s58M), as a matter of law, unless otherwise agreed. Further, there is a threat of binding arbitration or direct stipulation for the agreement, by the Minister.
New provisions make it clear that a Council may not withdraw from, or require amendment of, an agreement. They are permanent. Even if the voters of a local authority elect a majority on a platform of requiring changes to end corruption or paralysis, or extortionate use of resources, the law would protect the permanence of the agreement reached now, apparently forever, with agreement of iwi and council needed in order to change it. Binding a future council conflicts with the constitutional principle that a current government should not bind a future government unless it follows a conventional process for entrenchment.
The rights given to iwi may be perpetual, even if the relevant iwi cease to exist, or their competent descendants all live outside of the rohe.
There are no assurances in the bill that the MWRs will be practical and workable.
There has been a claim made that there has been no consultation with iwi on these arrangements and that they are just there to appease the Māori Party. This is also untrue. Iwi Participation Arrangements were included in the 2013 public discussion paper on the RMA reforms when Minister Adams was leading the RMA reform and before the Māori Party was in discussions with the Minister for the Environment. The 2014 National Party election policy specifically referred to iwi participation arrangements saying we would “Improve Maori participation to specify clear requirements for councils to involve iwi/hapu in early stages of planning”. They were then included in the Bill that was introduced in December 2015 and in the Next Steps for Freshwater documentation released in February 2016. This has provided three opportunities for public consultation. But the public will not be consulted on the significant constitutional changes in the Bill.
There has also been a claim that the Māori Party has sought and gained exemption for Māori farmers to need water permits for stock water. The facts are that the current RMA provides for an exemption for a water permit for stock drinking water for a natural person, but if the farm is a company or Māori Incorporation a permit may be required. The Bill makes plain that no water permit is required for stock drinking water whether the farm is owned by an individual, a company or a Māori Incorporation.
It has also been claimed that the Bill allows iwi to become resource consenting authorities. This is disingenuous. The extraordinary obligations in the Bill requiring Councils to enter these agreements, and the interested party statements preceding and surrounding the announcements of the changes, seem calculated to arouse expectations and demands by iwi for consent authority status or equivalent influence. As explained a number of new sections (including s58M and 58N) appear to have been deliberately drafted to be uncertain and obscure. There is no provision in the Bill that allows iwi to become consent authorities. The existing law already allows transfer of powers of joint arrangements at a council’s discretion, but very few councils use them. So this law change is designed to force them to do so.
In summary, there are three important things to be aware of regarding the Bill:
1. This is the largest shake up of the RMA since its inception in 1991 and will make a big difference to reducing the unnecessary delays and costs of the Act. But it does the opposite with the MWRs.
2. The fact that Labour and the Greens are opposing the Bill because it reduces consultation requirements, appeal rights and makes development too easy, just reinforces why the Government needs to pass it. Consultation requirements with iwi are increased
3. The provisions around iwi participation arrangements are a small part of the Bill that will make existing iwi consultation requirements work better. This statement is, in context, deceitful. The provisions are a major constitutional change. They subordinate powers entrusted to elected local governments, in deliberately obscure words, to racially inherited power, beyond the reach of electoral recall. They widen the scope for partnership-type arrangements between public bodies (Councils) that have the statutory protections against corruption (elections, the Auditor-General, and so on) and iwi that have the powers of public bodies but without those same protections. New s58Q is vague, and appears to require that these partnerships be funded by ratepayers.
There is nothing practical to limit what may be contained in an agreement. So a current council might transfer powers that deprive citizens of the protection of democracy (the power to eject those who use coercive powers oppressively or foolishly, or who are simply a burden) with no prospect of subsequent elections ever retrieving the powers from the unelected racially inherited hands in which they are placed.
The provisions breach a longstanding convention ensuring that Treaty obligations ran between the Crown and iwi, so that private citizens and their property were not to be the victims of treaty claims and interventions based on race privilege. They draw iwi into complicity in violating the classical property rights promised by Article 2 of the Treaty to all the ordinary people of New Zealand, in favour of exercise of chiefly powers by iwi authorities, and they negate the equal citizenship promised by Article 3. These changes, quite simply, breach the essential rule of law protection, that ‘everyone is equal before the law’.
Thank you again for writing. It is important that the Bill is clearly understood as the benefits are significant.
Yours sincerely,
Hon Dr Nick Smith
Minister for the Environment
We have been reliably informed that the National Party Caucus will be discussing the Bill today and are likely to make final decisions on whether the Bill will come back before Parliament and passed into law.
Now that you are armed with the truth, will you take five minutes call your local MP and tell them NOT to vote for Bill?
With Parliament sitting today, MPs are in their Wellington Offices. Call Parliament now on 04 817 9999 - ask to speak to your local National Party MP or the Prime Ministers office and remind them what you think about think of the Bill.
Call Parliament now on (04) 817 9999
Thank you for your support. Here's hoping Nick Smith doesn't pull the wool over the National MP's eyes, like his email attempts to do with us voters.
Lee Short
Chairman
Democracy Action
www.democracyaction.org.nz
PS. Yesterday Wellington constitutional lawyer and former National Party candidate Stephen Franks, spoke to Newstalk ZB's Leighton Smith on the issues above. You can listen to the interview here.