Local government in New Zealand is facing significant challenges. After many years of entrenched policy positions councils now need to rapidly adapt and realign to the significant re-sets emanating from central government. All local councils are creatures of statutes and like it or not, central government and local councils must be inextricably intertwined.
Many of the policy re-sets will take some time to be enacted but local government has an obligation to implement and uphold the current law, even when it is in direct conflict with signalled changes. This renders the legislatively prescribed Ten -Year Plan process, that drive local body activities, somewhat farcical.
The expurgation of the RMA is well under way. This legislation influences much of council’s activities, particularly regional councils who are responsibilities for environmental management and natural resource consenting. The implementation of the RMA derivative will require a different mindset from both councillors and staff.
The signalled greater emphasis on private property rights may well contain components of compensation for “regulatory takings” in circumstances where the cost of environmental programme promulgated for public benefit, are borne by the individual property owner. The now cancelled requirement for universal freshwater management plans under the 2020 National Policy Statement for Freshwater Management is an example of a proposed heavy regulatory regime. If implemented they would have restricting private property rights on most rural properties, while imposing unacceptably cumbersome and costly management regimes.
Another significant challenge will be the evolving interpretation of the Treaty of Waitangi. This is a challenge for the nation as we grapple with a constitutional impasse based on the emerging and polarising question of sovereignty. Sovereignty is the basis of law and underpins the legitimacy of all nation states. The concept of shared sovereignty could only be described as an oxymoron.
Over recent decades the concept of Iwi partnership morphed into co-governance, which now in some people’s view, is morphing into dual or separate but parallel sovereignty. Councils are immersed in this impasse and cannot escape the challenge. Councils are both the meat and the mustard in the impasse sandwich. Sometimes reluctantly and unwittingly, but often willingly, it is councils and council staff, together with some central government departments who are driving the co-governance and separate sovereignty agendas.
Government has signalled that references to treaty principles is to be removed from some 26 pieces of legislation, including the Local Government Act and RMA derivatives. It also seems likely that the statutory requirement for cultural impact assessments for all resource consents, irrespective of relevancy, will be truncated.
At a national level Te Pati Maori, the Green Party and elements of the NZ Labour Party, are actively promoting co-sovereignty. Conversely the coalition partners of the current government firmly reject co-sovereignty, are actively winding back on co-governance with most also questioning the concept of partnership introduced by the judiciary in 1987.
One dilemma is that the treaty settlement processes and aspects of the current Local Government Act and RMA enshrine the concept of co-governance. In the Bay of Plenty there are some 65 Iwi entities and some 250 Hapu groups. Many of these Iwi groups have developed, or are developing, Iwi and Hapu environmental plans, largely funded by government departments and councils. Not surprisingly, there is a high potential for this plethora of plans to conflict with established District and Regional Plans, adding to the administrative complexity.
A good example of this conflict exists in the submission of the post settlement entity Te Rununga O Ngati Awa (TRONA). The rohe of this rununga covers the Whakatane – Ohope townships and covers most of the Rangitaiki Plains.
In a written submission to the Regional Council relating to a Water Right Application by Oravida Waters Ltd (a water bottling and export business) Ngati Awa stated the following:
“Failures on the part of the Crown and its agents to recognise and provide for the rights and interests of Ngati Awa in fresh water including in terms of Article II of Te Tiriti O Waitangi, which guarantees Ngati Awa full, undisclosed and exclusive possession of its estates, including fresh water, which is an ancestral taonga within the Ngati Awa rohe.
……… “TRONA remains concerned that the Crown continues to assume a decision making role for fresh water and presumes to delegate authority for decision making to Regional Councils which issue water rights to consent applicants when these rights have never been ceded by Maori to the Crown or to Councils.”
Clearly this statement is not only asserting ownership of water, but it is asserting total sovereignty without any suggestion of co-governance. Any thinking person would have to conclude that such an assertion of sovereignty is complete and utter nonsense. Obviously if implemented it would immediately trigger separate judicial and enforcement processes and entities. There are many more examples.
A further challenge for councils is the ongoing tension between centralism and localism. All too often this tension is presented as a binary choice, whereas in fact the two can and must exist together and ideally in harmony.
There is a compelling case for greater centralism in local government to capture essential economies of scale while establishing and maintaining the required technical, financial and professional capabilities and capacities. However, such centralism must not be at the expense of local communities who are at risk of becoming alienated and disenfranchised. Community interests must be actively protected and nurtured to provide the appropriate balance with any increasing centralisation.
This tension is at the heart of the local government structuring changes that will inevitably flow from the functional changes that are now being promulgated.
We live in interesting times.