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Stephen Franks

Resource Legislation Amendment Bill – Deceptive advice to National caucus

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I’ve been sent an astonishing memo to caucus from the unfortunate Minister now carrying this Bill.  In my opinion it treats caucus with contempt. My corrections to it are set out below. It seems bizarre that National members are being obliged to support this Bill so near to the election. Why stick up voters’ noses now some of the least defensible law-making National could design?

I could understand it if it was confined to its useful elements, such as allowing mutually agreed boundary infringements and increasing the pressure against subdivision bans.  But even for them it is now too late for the bill to produce an increase  in housing supply before the election. Without a swing voter attraction, why allow this Bill to focus voters on how abject National has become on rule of law principles? And even for those who are unconcerned about rule of law issues, why give critics a focus for steering voters to things they will be told again and again should have been done years earlier? They will not be sympathetic to the explanation that Peter Dunne stopped it.

There may be some beltway kudos from taking power to centrally direct a loosening on subdivision restrictions, and some other fine tuning.

But even if industry insiders noisily applaud some good stuff (unlikely) the other constituencies upset by the bill will likely drown that applause with prolonged complaints.

The agitation will enhance attention to previous ineffectual governing. RMA specialists tell me that recent Policy Statements are so woolly they are not surprised markets have largely ignored them. That is from well wishers.

Many of  the foreshadowed useful changes rely on promised Ministerial central micro-management instead of restoring natural property right incentives to supply/demand matching.  So National will get at best polite clapping from people who don’t speak out much anyway.

I’m reminded of the damage Obama did to the Democrats 4 months out from the election with his transgender toilet edict. Reminded everyone of his reliance on identity politics and to hell with majority anxieties.

I understand that the Maori Party won’t support the useful changes without their freight. But the voting cost of that freight has to be greater than any gains from beltway approval of legislation at last. And on top of that this Parliament becomes eternally responsible for pointlessly inflammatory and constitutionally damaging provisions.

The Bill entrenches permanent race privilege and corruption  as a canker in local democracy.

Geoffrey Palmer as politician is remembered by many for his unwarranted faith in the legal immateriality of the spurious “principles”, not for the many talents he has applied to myriad causes. The courts soon gave those “principles”  flesh he never dreamed of. National will earn the same credit with the courts trying to understand the changes of this Bill.

My comments on the memo are interpolated below. 

Stephen Franks
Principal  |  Franks & Ogilvie

To: Caucus colleagues
From: Nick Smith
Date: 26 Jan 2017

Re: Resource Legislation Amendment Bill

The Bluegreens Caucus and Local Government and Environment Select Committee members suggested I circulate some crisp messages in response to some of the claims from Muriel Newman and the likes about the Government’s RMA reforms through the Resource Legislation Amendment Bill (the Bill).

The first important point is that the bill contains significant gains that will reduce costs and get better outcomes:

  • Faster simpler plan making

[An odd thing to claim as the first key gain. I’m not aware of any research, or even informed anecdote to establish that slow plan making is our problem. Indeed, if our experience with Auckland Council’s  Spatial Plan then its Unitary Plan is a guide, the less of it they do the better for all concerned. The planners may love power to think up new ideas with less delay to implementation. They can justify less care on what they do, with the assurance that if it is wrong it will be easier to fine tune and change it.  But even for those who think that insufficient and slow planning has been our problem,  and that more speed will be better,  it is not certain that speedier planning will be the outcome. The absence of any constraints on what iwi participation can do in planning makes this a step in the dark, effectively trusting that iwi will be unworldly, and not use their undefined ‘co-management’ powers in the ways the system now invites them to do – to extract hold up ransom payments from agreement-prescribed mandatory involvement in considering the application of plans, and consenting.  On top of that, the purposes of obliging councils to enter iwi participation agreements are so obscure that there must be litigation over that]

  • Thousands fewer consents required  – [Agreed, and well worth seeking]
  • Fewer opportunities for appeals

[Among the appeal rights excluded is the right to appeal by way of rehearing against a council rejection of a review panel  recommendation, if the Council merely “records in its decision that a change has been made or not made… to ensure…. [compliance ] with” provisions including Part 8 that governs heritage orders and designations, and “provisions in any enactment, including any enactment specified in Schedule 3 of the Treaty of Waitangi Act that require a local authority …to give particular consideration to a document prepared under any other enactment”.

This appears directed to ensuring that, for example, the courts could more rarely protect people from Maori consultation costs, as they did in last week’s decision for the citizens of Auckland. The case arose from collusion between Council officers and the IMSB which resulted in the designation of thousands of properties as subject to cultural impact assessment as preconditions to resource consent consideration. The Hearings Panel found that unjustified. Auckland Council accepted that recommendation against officer advice, and the High Court has recently upheld that decision against an IMSB appeal, all conducted at the cost of Auckland ratepayers (meeting both IMSB and Council costs.]

  • Less duplication with other Acts
  • Better management of natural hazards
  • Increased legal weighting for property rights

[If true this claim must refer to a few amendments, such as to:

1) s85, which currently prohibits compensation for the injury to property rights from an RMA control. The amendments severely limit the existing protection. The heading removes the express prohibition, but the text does not. In fact, in practical effect the additions are likely to exclude from the possible remedies under the section a proportion of the cases where it might be of benefit at present, despite its limits.

2) Provisions to allow neighbour consent to negate bulk and location constraints. This is an unqualified improvement, but it is hard to see that it is fairly described as an improvement of property “rights” to enhance neighbour influence over a property use – however desirable the relaxation is.

3) The signal that subdivision is presumed to be permitted unless expressly prevented. This benefit could be material, but it appears to be susceptible to circumvention by planners. They can change categorisation of consent requirements over time to limit the benefit of this change.

Some of the changes could justify increased planner powers over landowners, including the stipulations for planning for “development capacity to meet expected demands” (new s 30(1)(ba)). In other words, some of the changes could backfire. Instead of strengthening property rights, the alleged increase in land use flexibility will depend on the exercise of Ministerial powers of direction, and constraints on Councils. They could equally well be used for the opposite purposes by future Ministers.]

An assertion she makes is that the iwi participation arrangements will impose onerous multiple consultation requirements on councils  [True]  and consent applicants. That is not true.

[False. There is nothing in the new provisions to protect councils and applicants from multiple consultation requirements as a practical result of an iwi participation agreements.]

The problem is that the current requirements for consulting iwi are cumbersome and cause a lot of frustration. The advantage of the new arrangements is that they will make clearer which iwi need to be consulted and on what issues. 

[We see nothing in the Bill to make it clearer. There may be an expectation or hope, but the Bill leaves all that kind of detail up to the parties to an agreement to determine. The fact that the Council in Auckland can consult 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 up to 5 of 19 possible iwi on a particular consent. The consultation or paid engagement for expert cultural advice (as Auckland Council prefer to describe it) may be with any one or more representatives an iwi may nominate from time to time. Auckland Council officers have disclaimed all responsibility for how iwi choose to handle it, including disclaiming responsibility for ignoring patently extortionary demands – including for a fishing boat and motor as a condition of providing what the council says it will need. So this Ministerial claim seems either breathtakingly naïve, or false.]

They will set out which iwi get consulted in a particular area and will also identify the types of consent that are of no concern to iwi and the council does not need to refer.

[We see nothing in the amendments that will require this result, or protect a citizen if it does not, or if the practical operation of an agreement does none of these things.]

There are councils that already have these arrangements and they are proving to work well. Large numbers of consents, by agreement, are not being referred to iwi because they are not issues in which iwi have an interest.

You also need to be aware the Bill requires that the arrangements support timely consent decisions and that compliance costs need to be minimised. The law makes plain they are about participation and not control.

[False. If this were true it would be laudable. In fact the provisions are entirely (and plainly deliberately) obscure on any boundaries between participation and control.

For example new section 58L now says iwi participation agreements are to record the ways in which iwi authorities are to participate in decision-making under the Act, and “assist” local authorities to comply with their statutory duties “including” under the purpose provisions that refer to (alleged but not defined) Treaty obligations and the 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 over-reach, or abuse of powers and procedures.]

These arrangements are not compulsory and councils design the details, in consultation with iwi, on how to facilitate the participation of iwi.

[This falsehood is Orwellian. The engagement is not “consultation” with iwi. It is forced agreement. The provisions require Councils to enter agreements within 18 months after initiation by iwi, 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, so they are permanent.  There is no sunset for these intended delegations of coercive power of local government. 

Even if the voters of a local authority elect majorities on a platform of ridding the Council of the incubus, or 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 no power for anyone to terminate it. The rights given to iwi may be perpetual, even if the relevant iwi cease to exist, or their competent descendants all live out of the rohe.  Sadly it could even end up being seen as a blessing when that stage is reached, as they may auction off their rights to interfere. At least they might go to a professional  whose interests could be in an efficient trade-off of an approval for money, and it takes iwi out of the firing line of rightly aggrieved fellow citizens from the wrong races.

Binding a future council who may not agree conflicts with the constitutional principle that a current government should not bind a future government unless it is follows a conventional process for entrenchment that reflects the constitutional  significance of the entrenchment (like the super-majority provisions of the Electoral Act). Even the Treaty is not entrenched  so why should Mana Whakahono a Rohe?       

The  Democracy Action submission elaborates on the conflict of these arrangements with the basic rule principle of  equality before the law.  That is even more vital with semi-judicial functions and powers.

Yet the Bill provides for partisan appointments to hearings or review panels, and requires unequal notice, and seems to expect that iwi parties will routinely be funded from ratepayer funds in conflict with their non-iwi neighbours.  A few provisions that stipulate that iwi must meet their own costs in disputes during the negotiations or dispute resolution to reach a participation agreement just serve to underscore the expectation that ratepayers will fund them otherwise.

We have seen this in practice. Auckland Council has been funding the IMSB, including in its attempts to suborn elected councillor decision-making on matters where they have had severe and undeniable conflicts of interest. When our client tried to get the Court to order equivalent funding for presentation to the Court of the other side of the story, the Council threatened ruinous cost applications against our client. The client withdrew.]

The claim that there has been no consultation on these arrangements and that they are there just to appease the Maori Party is wrong. 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 Maori Party was in any discussions with me. They were included in the Bill that was introduced in December 2015 and in the Next Steps for Freshwater document released in February 2016. This has provided three opportunities for public consultation.

[I can send you the submission of Democracy Action, which outlined all the concerns about participation agreements mentioned in these annotations, and more.

The only response we can see that obviously addresses a concern raised about iwi participation agreements, is a requirement that an agreement record “a process for identifying and managing conflicts of interest”. Note that it says nothing to ensure that it is an effective process, or to give remedies if it is patently cosmetic, or if there is in fact corruption.

There is nothing whatsoever 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.]  

There has also been the claim that the Maori Party his sought and gained exemption for Maori 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 Maori 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 Maori Incorporation.

Finally, there is a claim that the Bill allows iwi to become resource consenting authorities. The fact is that there is no provision in the Bill that allows iwi to become consent authorities. The existing law in sections 33 and 36B already allows transfer of powers of joint arrangements at a council’s discretion but very few councils use them.

[This is so disingenuous as to be deliberate deceit. 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]

The three succinct messages we need to communicate on the Bill are:

  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.
  1. 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 we need to pass it.
  1. The provisions around iwi participation arrangements are a small part of the Bill that will make existing iwi consultation requirements work better.

[This soothing 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 breach a longstanding convention 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 trashing 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.]

I hope this is helpful to answer correspondence and questions from constituents.