In this Update we cover the new attempts to erode democracy that are hijacking the reforms of the Resource Management Act (RMA) and the further complications with Three Waters that are expanding the loss of democratic accountability from just water infrastructure to just about anything involving water.
Government undermines our constitutional foundations
But first, another controversy broke over the weekend as constitutional lawyers caught up with the unprecedented entrenchment amendment, under urgency, of the Three Waters legislation.
Under the cover of urgency and precluding any opportunity for public consultation or consideration by select committee, this Government has inserted a dangerous amendment into the Three Waters legislation at the last moment.
In the Waters Services Entities Bill, there will now be a requirement for a super-majority of 60% of MPs to amend or repeal a particular section.
The use of a super-majority is normally used only in constitutional matters, such as the term of Parliament. The insertion in this instance demonstrates the Government’s total contempt for the will of the people and is a direct attempt to circumvent democracy.
But, for now, back to the rest of the attacks on democracy.
The common thread for these is the insertion of new, unclear, and untested Maori words and concepts into our law, and then requiring compliance with these new concepts across complex and varying issues.
The uncertainty thrown up by this kind of law-making is causing havoc and the need for councils and courts to figure out what the law actually means will result in more delay and expense, along with less democracy and accountability.
RMA reform hijacked
The RMA reform announced last week was proudly introduced by Minister David Parker when he confirmed the introduction of the Natural and Built Environment Bill and the Spatial Planning Bill.
While most parties agree reform is urgently needed, this already very complex area of law has two outrageous additions included by David Parker.
First, the new regional planning committees must have at least two Maori representatives on them. Not 50/50 co-governance as some were clamouring for, but still another undemocratic intrusion. And it turns out these committees can have 50/50 co-governance, if the relevant councils want them to – do you trust your council to stand up for your democracy?
Second, the new legislation contains a requirement that councils “recognise and uphold te Oranga o te Taiao.”
So we have another case of Maori words with a Maori concept being slipped into an English language Bill and an English legal framework.
This term, new to statute in New Zealand, is defined in the Bill but the scope is so broad that to suggest it will reduce complexity, as the Minister assures us, is naïve in the extreme.
Dr Oliver Hartwich, Executive Director of The New Zealand Initiative, presented an excellent analysis of the legislation in his article in the Australian (paywalled).
He observes that “Tikanga is mentioned 31 times, Matauranga Maori comes up 26 times. Kaitiakitanga can be found in seven places. They all beat “property right”, which features only three times.
Dr Hartwich rightly observes that the Bill is taking the integration of purported Maori custom into the New Zealand legal system to a new level.
The nuanced definitions and attempts to recognise special interests are all underpinned by the so-called duty to give effect to the principles of The Treaty of Waitangi.
Besides the policy goals, each time this happens, everyone operating in the relevant space (and resource management affects everyone) is left uncertain of where the bounds of the new law are until the courts rule on it. But the courts also wind up with enormous space to define what these concepts mean, as there is very little in the way of agreed definition.
We the public lose direct democratic accountability over our politicians to achieve policy outcomes, as they hand over that power to the courts and new unaccountable bureaucracies with their vague law-making.
At least for now, we have the most direct form of democratic accountability still available to us, with a vote at the next election.
At the heart of each piece of new legislation or policy introduced by this Government – whether it is about education, health, water, environment, resource management, or local government – is a consistent and egregious fundamental principle, that New Zealanders are to be afforded different consideration based upon ancestry.
It is hard to escape the conclusion that the rapid and almost overwhelming pace at which these changes are being foisted upon us is intentional.
Distract, Divide and Overwhelm is a sound strategy for any power grab.
Submissions on the Natural and Built Environment Bill close on 30 January 2023. Perhaps influenced by the 80,000+ submissions received on the Three Waters legislation, the Government is hoping that New Zealanders will be too busy and distracted to challenge yet another enormous piece of divisive legislation.
When asked directly, the Prime Minister cannot guarantee that non-Maori and Maori will have the same level of representation and openly states that she believes one person, one vote is an “overly simplistic” approach to democracy. For this reason alone, we must brace ourselves for another battle that demands New Zealanders are treated equally before the law.
The layers of racial bureaucracy will see the wheels of progress grind to a halt, our nation further divided and all of that for no better outcomes for those who are in need, Maori or otherwise.
The many waters of Mahuta
The complexity of Three Waters reached an even greater muddle of confusion due to the change introduced at the second reading on 16 November 2022. The Bill is now awaiting Third Reading and will likely become law before Christmas.
Now included in the Bill is additional clarification of how the Te Mana o te Wai (the respect or authority of the water) provision should be applied. This expands the potential scope of the complex, co-governed Three Waters bureaucracy out to the coast (that’s right, foreshore and seabed all over again), geothermal water, and hydroelectric facilities.
The ambition is galling.
When the water entities are already structured in a co-governance model, with elected representation forming only 50% of the boards, that added layer of the Te Mana o te Wai obligations results in a further reduction in the influence the democratic sphere will have over water. The Prime Minister is lying when she claims that there is no expansion in scope to the Three Waters legislation.
Layers of Representation
While every Government agency and all new legislation are inserting obligations to a certain interpretation of The Treaty of Waitangi, the radical changes to Local Government New Zealand’s guidelines to your Council’s Standing Orders are another direct assault on democracy.
It is important that silence not be seen as tacit acceptance or endorsement of these new proposed Standing Orders
Stand up for democracy and tell your Mayor to do the same by actively rejecting the divisive and anti-democratic proposal to change council Standing Orders.