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Ann Brower and Ike Kleynbos

CHANGES in Urban and Environmental Governance in Canterbury from 2010 to 2015: comparing Environment Canterbury and Christchurch City Council

This article compares the proximate but not parallel Background Between 2010 and 2012, Canterbury trajectories of Canterbury Regional Council’s (ECan) and the Regional Council and the Christchurch Christchurch City Council’s changing authority to manage City Council faced governance crises. The former was accused by Canterbury’s the urban and natural environment from 2010 to 2015. We Mayoral Forum of failing to produce a plan for resource use and of processing ask why the trajectories are so far from parallel, and speculate resource consents slowly. The latter as to why the central government interventions were so experienced an 18-month spate of earthquakes that left 80% of the buildings different. The apparent mismatch between the justifications in the central business district on the to- for the interventions and the interventions themselves reveals be-demolished list. In the February 2011 quake there were also 42 deaths in city important implications on the national and local levels. streets, and 133 deaths in city inspected buildings. Nationally, the mismatch speaks to the current debate over an In one case the government intervened overhaul of the Resource Management Act. Locally, it informs by suspending local elections indefinitely, replacing the councillors, suspending current discussions in Wellington, Nelson, Gisborne and some jurisdiction of the Environment Court and parts of national legislation elsewhere about amalgamating district and regional councils. in Canterbury, and changing rules for water conservation and use. In the other Ann Brower is a Senior Lecturer in Environmental Policy at Lincoln University. She holds a PhD from the University of California, Berkeley, and a master’s from Yale. case, local elections and council remained Ike Kleynbos holds a Bachelor of Environmental Management and Planning degree from Lincoln intact, while emergency powers were University and is currently doing postgraduate studies at Lincoln.

Policy Quarterly – Volume 11, Issue 3 – August 2015 – Page 41 Changes in Urban and Environmental Governance in Canterbury from 2010 to 2015: comparing Environment Canterbury and Christchurch City Council

Figure 1: Freshwater Policy: 20 years of policy development and decisions

Sustainable Sustainable Development Land Strategy: A New Management Programme Start for Freshwater RMA Strategy of Action Freshwater NPS

1991 1995 1996 1999 2002 2004 2008/9 2010 2011 2014

Environment 2010 National Agenda Freshwater for Land and New Draft “Decline in freshwater for sustainable a Sustainable Water Forum NPS Amendment quality a major Water management: Future/Programme and National environmental Action Plan of Action Framework problem”

Courtesy of Dr Hugh Logan, used with permission granted to a new government department enjoy reasonable autonomy, with flexible the direct intervention of a territorial for five years. direction from central government. authority. One might expect the more drastic The Resource Management Act aims Perhaps more concerning, this lack of and long-lived central government to ‘promote the sustainable management central planning guidance unintentionally intervention in response to the more of natural and physical resources’ (section reverses the intended hierarchy of the drastic crisis. Canterbury defies such 5). The RMA’s governance structure RMA. Rather than planning within expectation. Though the justification for allows the government to provide central the intended hierarchy, communities intervention appeared stronger in the guidance to district and regional councils are instead forced through a bottom- earthquake, the less life-and-death crisis in the form of national policy statements up approach of case-by-case decision- received the more drastic intervention. (NPS) on resources such as freshwater, making with its attendant inefficiencies We explore this difference. We find biodiversity and the like. Regional and inequities (Brower, 2008, pp.57-8). that government interventions go well councils then use the NPS to establish Between 2010 and 2012 both ECan beyond who is at the top. The method regional goals (in a regional policy and the Christchurch City Council faced of choosing who is at the top (local statement); then district councils work governance crises deemed to be so pressing elections or government appointment) is within and implement both the national that the central government intervened. but a small part of the changes in natural and regional policy statements. This Thus, ‘normal circumstances’ described resource rules in Canterbury. We propose planning hierarchy establishes a system above started to change in April 2010 with that there might be broader motives, in which local authorities make decisions the passage of the Environment Canterbury with national implications, for the within central guidelines. (Temporary Commissioners and Improved changes in Canterbury governance, and However, these national policy Water Management) Act 2010 (ECan Act). for the differences observed. Those other statements have been slow to arrive (see They changed again in September 2010 and motives might be as simple as facilitating Figure 1). Thus, for freshwater and other March 2011 with passage of the first and irrigation approvals, or as far-reaching as resources the RMA planning hierarchy second earthquake acts. using Canterbury as a testing ground for has had little at the top (Oram, 2007; national changes to environmental laws. Memon and Gleeson, 1995). This lack of Environment Canterbury central direction has led local and regional Let us start with the regional council, Christchurch and Canterbury before 2010 authorities to facilitate strategic land use Environment Canterbury or ECan. Under normal circumstances in New policy through the Local Government Section 30 of the RMA authorises Ecan, Zealand the authority to manage water, Act 2002, as it offers broader strategic like all regional governments, to manage soil, geothermal resources, natural tools than the RMA (Swaffield, 2012). the water, air and coastal resources of hazards, pollution, costal management, Examples of this include the current the region. The ECan Act replaced the land use, subdivision and hazardous Greater Christchurch Urban Development ECan councillors with government- substances is devolved and delegated to Strategy, and Christchurch’s 2006 Central appointed commissioners, suspended district and regional councils by way of the City Revitalisation Strategy. They are regional elections, suspended jurisdiction Resource Management Act 1991 (RMA). strategic attempts to create planning of the Environment Court over certain Those district and regional councils certainty within Christchurch through types of decisions, allowed the minister

Page 42 – Policy Quarterly – Volume 11, Issue 3 – August 2015 to selectively suspend sections of regional policy statement and creating its Parliament to abdicate its authority, environmental law, and changed the rules natural resources regional plan.1 Different by delegating to the political executive for river protection (Brower, 2010). The teams were working on the different (minister for the environment) the statute set an expiry date, of 2013. In 2013 plans, creating potential for conflict. power ‘to make regulations suspending, Parliament amended the act to extend Creech argued that this highlighted amending, or overriding primary the expiry date to 2016 (Public Act 2013 ECan’s inability to create definitive and legislation’ (Joseph, 2007, p.503). New No. 6). In 2015 Cabinet proposed another durable regional policy. Zealand constitutional law scholar amendment, not an expiration. None Many have said that the Creech report Philip Joseph calls this type of clause of this applied to other regions; neither prompted the ECan Act. But Smith did ‘constitutionally objectionable where they was it quake-induced; nor did it happen not need special legislation to replace are used for general legislative purposes’ overnight. ECan councillors with commissioners; (Joseph, 2010, p.195). In 2009 the government commissioned his government held the power. There Section 52 then restricts Cantabrians’ a review of the RMA which suggested are several reasons the government access to the Environment Court. Under abolishing regional councils altogether might have gone to the trouble of special the ECan Act, Cantabrians can no (Gorman, 2009b). Amy Adams, now legislation to create powers it already longer appeal the substance of regional minister of justice, reminded then (and had. Perhaps it: 1) was not confident that government decisions about water now) minister for the environment Nick ECan had breached legislative thresholds; conservation orders (WCOs) and the Smith that the government held the power or 2) had other goals. Understanding the regional plan and policy statements. While to sack poorly performing regional and rest of the ECan Act sheds light on the all other of the ECan Act’s provisions were district councils, with solid evidence of that poor performance (ibid.). Smith then threatened to use these powers if ECan A resource management lawyer acting failed to speed up consents-processing. Governments had sacked councils before, for the Fish and Game councils of without special legislation (Staff, 2000, New Zealand commented on Radio 2001). The communications officer of the Department of Internal Affairs, Tony New Zealand: ‘it’s still a possibility that Wallace, further reminded the public that the government could replace the council those iconic rivers will remain protected, only in cases of ‘significant and identifiable but I wouldn’t bet … on it’ mismanagement of the resources of the local authority, or [inability] to perform and exercise its duties’ (Gorman, 2009b). Later in 2009 the Canterbury Mayoral possibility of those other goals. meant to expire at the next election, even Forum wrote to Smith asking for central Section 31 of the ECan Act gives with its flexible date and form, section government intervention in ECan. The the minister for the environment the 46(4) excludes the Environment Court government inquiry, led by former power to decide where and when from Canterbury water conservation National deputy prime minister Wyatt environmental law applies in Canterbury. order proceedings. Section 46(4(a)) Creech (Gorman, 2009e), suggested ‘a The ‘transitional regulations’ of section directs that the revocation of appeals to new regional authority to handle all water 31 give the minister the power to specify the Environment Court on WCOs will issues’, echoing the government’s review that certain sections of the RMA ‘do not continue to apply even after the next of the RMA eight months earlier (Staff, apply, despite being applied under this election (Brower, 2010). This removes 2010). It argued that ECan had suffered Act; or do apply, despite not applying the court’s ‘sober second look’ (Waldron, from the ‘gold rush’ effect of the ‘first under this Act’ (section 31(b)(i)(A, B)). 2008) at the substance of environmental come, first served’ case-by-case decision- Constitutional law scholars call section decisions, and risks compromising the making for water rights, which slowed 31 a ‘Henry VIII clause’, because it creates quality of decision-making under the consent processing. Creech (Creech at the authority to dis-apply the empowering RMA in Canterbury. In the end section al., 2010) found no current and ongoing legislation (the RMA) selectively and 46(4) mattered little, as the non-electoral substance to the mayors’ criticism, instead at will without recourse to Parliament provisions are set to outlast the electoral expressing optimism that systems had (Geddis, in Gorman, 2010). This is akin provisions. been sufficiently amended to allow for to selectively beheading inconvenient Section 46 also changed the rules adequate consent processing. sections of the RMA, as dear old Henry for new WCO applications.2 In all Creech was most concerned by the beheaded inconvenient wives. other regions of New Zealand regional council’s ability or otherwise to create Section 31 gives supremacy to councils must prioritise protection of a effective regional policy. At the time, ECan subordinate legislation (ECan Act) over river’s nationally outstanding ecological, was in the midst of both reviewing its primary legislation (RMA). It also allows recreational, cultural, or wild and scenic

Policy Quarterly – Volume 11, Issue 3 – August 2015 – Page 43 Changes in Urban and Environmental Governance in Canterbury from 2010 to 2015: comparing Environment Canterbury and Christchurch City Council characteristics before allowing resource appointed commissioners. Smith said this body in 2016, to extend the special use, unless the economic potential was model for Ecan powers. This could ensure that important on a national scale.3 The there is no period in which there is ECan Act changed the order, so that enables a majority of elected a need for a return to the standard conservation loses its priority status. In representatives while ensuring resource management arrangements other words, it took the conservation out continued momentum on the before the RMA reforms are of water conservation orders. But again, Canterbury Water Management implemented. To return to standard this was only in Canterbury. A resource Strategy and earthquake recovery RMA arrangements for just a short management lawyer acting for the Fish work. We considered other options period may be an inefficient use of and Game councils of New Zealand of a fully elected council and resources and a source of confusion commented on Radio New Zealand: ‘it’s alternatives that involved substantive for Canterbury communities still a possibility that those iconic rivers changes to council functions. Our and other users of the resource will remain protected, but I wouldn’t bet preliminary view is that these carry management system. (Ministry for … on it’ (Baker, quoted in Pettie, 2010). too many risks given the critical the Environment, 2015, p.22) The Environment Court appeal on stage of work on the Canterbury the Hurunui River water conservation Water Management Strategy and the Whether this statement foreshadows order was scheduled to begin on 30 May earthquake recovery. (Pearson, 2015a) the future of the RMA remains to be 2010. Parliament passed the ECan Act seen. If it does portend the contents of already-signalled changes to the RMA, then we might see the rest of Given the government’s keen attention New Zealand following the Canterbury model, with its bottom-up collaborative to leading the ECan cart to remediate approach to water management in the Canterbury water management strategy apparent regional policy failures, one and its top-down directive approach to would expect similarly enthusiastic representation in its mixed-governance model. If this comes to pass it would attention to the local Christchurch be legislation by synecdoche. Deborah Stone describes synecdoche, a type of City Council’s troubles following the symbolism that represents the whole by earthquakes of 2010–2011 one of its parts, as common in politics: Politicians or interest groups deliberately choose one egregious or outlandish incident [such as under urgency in April and changed the On 22 June 2015 Cabinet considered Canterbury water] to represent rules at half-time on the Hurunui. Jurists and affirmed the proposal (Staff, 2015). the universe of cases, and then use view shifting the goalposts at half-time as Under the new structure ECan would that example to build support for constitutionally objectionable because it still enjoy the extra powers, the non- changing an entire rule or policy that violates the principle of equal application electoral provisions described above. The is addressed to the larger universe [of of the law (Joseph, 2007, p.212).4 In report also hints, rather openly, that the natural resource management in all other words, the non-electoral provisions soon-to-be-released reforms to the RMA of New Zealand]. … As with other of the ECan Act – the authority granted will spread Canterbury’s special powers, forms of symbolic representation, in section 31 to selectively not apply and perhaps its mixed-governance model, the synecdoche can suspend our the RMA, the supremacy of subordinate around the country. The report states: critical thinking. … The strategy of regional legislation, the partially suspended focusing on a part of a problem … jurisdiction of the Environment Court, Since the review provisions in the is likely to lead to skewed policy. Yet and half-time changes to river protection ECan Act came into force, reforms it is often a politically useful strategy rules – change the shape of regional have been proposed to the RMA, … because it can make a problem democracy in Canterbury more than which if enacted, would make concrete, allow people to identify suspending elections did. planning and consenting functions with someone else, and mobilize On 18 March 2015 Nick Smith released more efficient and effective and anger. Also it reduces the scope of the a discussion document proposing a plan will remove the need for the new problem and thereby makes it more for the future of ECan, and invited public governing body to have special manageable. (Stone, 2002, pp.146-8) submissions. The proposal is to impose power. However, a transitional a mixed-governance model, with seven arrangement could be put in place In its resemblance to a cart leading its elected councillors (in 2016) and six for [Canterbury’s] new governing horse, legislating by synecdoche turns the

Page 44 – Policy Quarterly – Volume 11, Issue 3 – August 2015 RMA’s intended planning hierarchy on its modify or extend the provisions of any for demolishing, constructing or altering head. Further, it gives policy supremacy New Zealand statute’. buildings. Under CERR Act authority, to a subsidiary region. The orders in council tool in section the Crown issued 14 orders in council 3(c) allowed for as-needed and on-demand amending or repealing existing legislation Christchurch City Council legislative changes to speed recovery or and regulations, in fields as diverse as Given the government’s keen attention to enhance public safety in the streets of resource management, civil defence, leading the ECan cart to remediate apparent Christchurch, without consultation with historic places and local government. regional policy failures, one would expect Parliament. These exceptions to laws on The city council used the special powers similarly enthusiastic attention to the the books were not limited to public granted by orders in council to demolish local Christchurch City Council’s troubles safety or securing the essentials of life, buildings threatening public safety only following the earthquakes of 2010-2011. as one might expect in an extended state three times.5 Many judged the council The government faced many of the of emergency. Indeed, critics warned that harshly for this (Heather, 2012). same issues with the Christchurch City the expansive powers were vulnerable Council as it had with ECan – after the to abuse (Geddis et al., 2010), and that After 22 February 2011 September 2010 quake, after the February they granted ministers the ‘unfettered The Canterbury Earthquake Recovery 2011 quake, and in the building consents right to legislate by decree’ (Public Issues Act 2011 (the CERA Act, or second crisis of 2013. In each of these cases the Committee of the Auckland District Law earthquake act) created many of the same government created special powers for the city and district councils, by way of orders in council (Canterbury Earthquake In the wake of the series of earthquakes Response Recovery Act 2010), and later for itself (Canterbury Earthquake Recovery that left 80% of the buildings in Authority Act 2011). But it never sacked the Christchurch CBD on the to-be- the councillors themselves, even though in January 2012 one councillor called demolished list, the Christchurch City for the Christchurch City Council to be disbanded (Gorman and Sachdeva, 2012). Council faced a predictable flood of CERA – the Canterbury Earthquake building consent applications. Recovery Authority – is due to last only five years and the building consents commissioner stayed just one year, compared to ECan’s six and counting. Society, 2010). Echoing constitutional special powers that the first earthquake In contrast to the electoral changes concerns over the ECan Act six months act had. But this time Parliament gave the introduced by the ECan Act, which had earlier, the Auckland District Law Society powers to a new government department legal foundations in active statute and said: ‘for Parliament to transfer such – CERA – and instructed councils to act precedent, the special powers during a extensive powers to the Crown, and ‘as directed’. Further, the CERA Act gave prolonged disaster recovery were not thereby abdicate its own responsibility on CERA the power to: amend or revoke foreshadowed by the Civil Defence and behalf of the people, is constitutionally RMA documents and city plans; close Emergency Management Act. Hence very questionable’ (ibid.). The only or otherwise restrict access to roads Parliament needed to create them by constitutional law academic who signed and other geographical areas; demolish legislation (Brookie, 2012, p.20; Rotimi, the letter objecting to the constitutional buildings; otherwise enter and manage 2010, pp.18-20), just as it needed ‘repugnance’ of the ECan Act, but did risk on private land and property (with legislation to enact the non-electoral not sign Andrew Geddis’s open letter of notice in the case of marae and dwellings); provisions of the ECan Act described concern about the first earthquake act, and require compliance of any person above. was University of Canterbury professor with a direction made under the act Philip Joseph (Geddis et al., 2010). (Buddle Findlay, 2011). The Canterbury Between 4 September 2010 and To Joseph, the circumstances of the Earthquake Recovery Act expires in April 22 February 2011 latter were sufficiently different to and 2016, though some of the special powers When the ten-day state of emergency more grave than the former that it was created by it might persist, according to after the 4 September 2010 earthquake more appropriate to invoke the flexible the minister for earthquake recovery (New ended, Parliament passed the Canterbury nature of New Zealand’s constitutional Zealand Government, 2014). Earthquake Response and Recovery Act arrangements in crafting an effective and 2010 (CERR Act, or first earthquake equitable response. The building consents crisis of 2013 act) under urgency. Section 6 allows the Before the CERR Act, Christchurch In the wake of the series of earthquakes executive to administer quick orders in City Council was bound by the RMA to that left 80% of the buildings in the council that ‘may make exceptions from, follow procedures and consent processes Christchurch CBD on the to-be-

Policy Quarterly – Volume 11, Issue 3 – August 2015 – Page 45 Changes in Urban and Environmental Governance in Canterbury from 2010 to 2015: comparing Environment Canterbury and Christchurch City Council demolished list, the Christchurch City intervention. Environment Canterbury December 2011 (Heather, 2012). After the Council faced a predictable flood of faced challenges with plenty of precedent, 22 February 2011 quake the government building consent applications. In February and well-known roots in the national handed those same special powers, and 2012 the council announced that it had context. The government had several more, to a new government department, hired 69 new full-time staff to process policy options for ECan, each fairly well- which used them less sparingly. Then the consents (Christchurch City Council, trodden paths. It could have followed government revoked consenting authority 2012). By 1 July 2013 those extra staff were RMA procedure – adopting national and replaced a council department for not enough. International Accreditation policy statement guidance. A slightly a year in the building consents crisis of New Zealand revoked the council’s less well-trodden path was replacing 2013. accreditation, and the prime minister elected councillors with appointed While the legislative framework held a press conference announcing that commissioners. It is well within the surrounding the Christchurch earthquake he was revoking the council’s authority government’s power to do so, if the response is set to expire in April 2016, to issue building consents. Revoking a council has documented deficiencies. Yet the ECan anomaly is set to endure. council’s authority was ‘unprecedented’, the government created its own path for According to our reading, the Ministry Key said, but, rather than take unilateral ECan, passing special legislation under for the Environment’s proposal for mixed action through an act of Parliament, he, urgency. governance seems to imply that the new several ministers and officials would meet Perhaps among the government’s ECan model will act as a transitional with the Christchurch City Council to put primary goals were the non-electoral phase, until the proposed RMA reforms spread the non-electoral provisions of the ECan Act to the rest of the country. Allowing the Canterbury case study However, the changed numbers in Parliament following the 2015 Northland to guide national legislation looks like by-election might render the government legislating by synecdoche. unable to pass its preferred changes. Conclusion We are not arguing that any of these actions were frivolous or unnecessary. ‘options on the table and seek … council provisions of the ECan Act, which changed We note with interest the apparent over- agreement with a proposed course of water conservation orders and affected legislation for ECan and under-legislation action’ (Key, quoted in Cairns and Young, applicability of both the Environment for Christchurch City Council. There 2014). Within a fortnight the government Court and sections of the RMA. The is a discrepancy between well-trodden had appointed a Crown manager to minister of agriculture at the time, David actions the government could have taken oversee the building consents department Carter, said as much in a 2010 speech to in replacing elected councils, and the for one year, and the Christchurch City Irrigation New Zealand: actions the government took for ECan chief executive, Tony Maryatt, had been instead. This discrepancy suggests that in put on ‘gardening leave’ indefinitely I would have thought what amalgamation talks, territorial authorities (Bayer, 2013). happened recently with Environment would be wise to be careful what they To some commentators’ mild surprise, Canterbury would be a signal to all wish for. the elected councillors and their mayor regional councils to work a bit more The Canterbury comparison has kept their jobs throughout (McCrone, constructively with their farmer broader implications for national 2015). stakeholders …We had to act here environmental law and legislative in Canterbury because the situation style. The government’s 2015 proposed Discussion was untenable if we are going to amendment to ECan governance hints It is timely and instructive to compare seriously make progress in delivering that many of the non-electoral provisions the trajectories of Christchurch and this irrigation. (Carter, quoted in of the ECan Act will be echoed in RMA Canterbury. It is particularly so as Williams, 2010) amendments foreshadowed for 2015. Christchurch looks to a post-CERA city, Allowing the Canterbury case study Canterbury looks to partial regional Although 2016 will see partial regional to guide national legislation looks like elections, the government looks set to elections return to Canterbury, the non- legislating by synecdoche. This echoes reform the RMA, and discussions around electoral provisions will remain. constitutional scholars’ criticism of the amalgamation continue in Wellington A few months after the ECan Act was Henry VIII clause, section 32, of the and elsewhere. passed, the government created special ECan Act. Legislating by synecdoche In Christchurch the government emergency powers for Christchurch City gives supremacy to a subordinate regional faced, and still faces, an unprecedented Council, which used them sparingly after governance model. In other words, it challenge. Most expected government the major quakes of 4 September and 26 would be the national horse leading the

Page 46 – Policy Quarterly – Volume 11, Issue 3 – August 2015 regional cart from 2010-2015, until the purpose of a water conservation order is to recognise and (iii) for its wild, scenic, or other natural sustain – characteristics; regional cart is able to reform the entire (a) outstanding amenity or intrinsic values which are afforded (iv) for scientific and ecological values; by waters in their natural state; (v) for recreational, historical, spiritual, or cultural national horse. The former is well within (b) where waters are no longer in their natural state, the purposes; the RMA governance model; the latter is amenity or intrinsic values of those waters which (c) the protection of characteristics which any water body in themselves warrant protection because they are has or contributes to, and which are considered to less so. considered outstanding. be of outstanding significance in accordance with (2) A water conservation order may provide for any of the tikanga Maori.’ following: 3 The priority for protection arises from the requirement 1 The NRRP was ‘stuck’ in its schedule 1 phase, therefore (a) the preservation as far as possible in its natural that ‘particular regard’ be given to section 199, and then still in development and not notified yet. The worry was state of any water body that is considered to be that only ‘regard’ be given to the matters listed in section that when it was notified, it would clash with the regional outstanding; 207(a)–(c). policy statement. Option 1 of the Creech report suggests the (b) the protection of characteristics which any water body 4 Citing Thomas J in R v Poumako [2000] 2 NZLR 695 at creation of the Canterbury Regional Water Authority, which has or contributes to, and which are considered to 712-713. would create the plan (and the report details how the plan be outstanding, – 5 Christchurch City Council testimony at royal commission should work), and integrate with the ‘remaining sections of (i) as a habitat for terrestrial or aquatic organisms; hearings. the NRRP’ (Creech et al., 2010, p.16). (ii) as a fishery; 2 Section 199 of the RMA defines WCOs as follows: ‘the

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