The ECan Act rammed through Parliament recently not only removed Cantabrians democracy and opened up the Hurunui to more water abstraction and pollution, it also signalled a dangerous neo-Muldoonist direction for resource management in New Zealand. National has turned its back on transparent, participatory and coherent national policy making to protect the environment and manage resources, and has instead adopted an ad hoc approach to national intervention into local resource management. The unifying purpose of these various neo-Muldoonist interventions is to increase short term economic growth at the cost of increased environmental destruction - or 'balance' as John Key would call it.
Our natural heritage is at risk from this new direction and our children's birthright to clean rivers will only be protected if we stand up and be counted.
Central direction needed
It is a real problem with the Resource Management Act that the National Policy Statements (NPS) and National Environmental Standards that were intended to provide the national architecture for the 1991 RMA resource management system were not developed by successive National and Labour governments.
In relation to water, this left regional councils with little guidance, and little requirement, to manage freshwater resources properly. In Canterbury the dairy irrigation gold rush happened in a vacuum of effective regulation - no finalised regional water plan and no water NPS - with disastrous consequences for rivers, lakes and aquifers.
We do, however, finally have a draft NPS on freshwater management that would really help. It has come back from the Board of Inquiry and it is just waiting for the Minister's signature to come into effect. In particular it uses section 55 of the RMA to immediately introduce provisions into regional plans making agricultural intensification and new water takes a discretionary activity requiring a resource consent in catchments where there is contamination and over-allocation. Current dairy intensification is a permitted activity not requiring a resource consent, and the main control the regional council has is over the dairy shed effluent. But 90 percent of the pollution entering waterways and aquifers come from the fields not the shed, so if you can't control intensive agriculture by requiring a consent, then you have no control over most of the pollution. The NPS would change all this, and all it takes is a single signature from the Environment Minister.
This would create the breathing space to develop a more coherent approach. It is the kind of policy instrument that ECan begged central government to provide for years so ECan could have some space to deal with the gold rush, which the Labour government failed to provide.
This NPS is unpopular with Fonterra, Fed Farmers, and many in the National Party who are focussed on more irrigation and intensification and object to anything that might get in the way. Remember, John Key started parliament this year by saying that he would remove regulatory roadblocks to more irrigation in Canterbury.
National intervention
So we needed national policy instruments and national direction, and now at least in relation to water, we have one ready to go. So did National grasp the chance to implement an effective NPS? Not so far.
Instead of immediately adopting the NPS on freshwater, National has moved to give greater national direction but in an entirely different way.
Instead of using this generalised, forward looking, coherent and transparent policy instrument that has gone through an extended public consultation and submission process and been considered by a panel of experts led by a retired Environment Court judge, National instead adopted the ECan Act.
As the constitutional law expert Philip Joseph has detailed, the ECan Act is a constitutional affront. It breached rule of law in being specific rather than general, being retrospective, giving the Minister the right to unilaterally suspend the RMA in Canterbury, in restricting access to the Environment Court, in abolishing regional democracy, and so on. And the process of getting the ECan Act through all stages of parliament without a select committee or public submissions under urgency was lacking in any kind of public scrutiny or accountability.
Since then National has announced that it plans to push through changes to regional plans to facilitate fin fish farms, changes that won't go through the usual process of public notification submissions and discussion, and that have to potential to cause serious environmental harm.
This is the kind of national intervention that National has embraced instead of the NPS.
A kind of Muldoonism in process and substance.
Process wise, the passage of the ECan Act through all stages in less than 48 hours, with no opportunity for real parliamentary scrutiny or public select committee process, was reminiscent of Muldoon's attitude to Parliament - the little room he kept down the end of the hall for passing laws. And the loss of regional democracy and the smashing of the rule of law that Philip Joseph detailed is very Muldoonesque.
In terms of substance, it is a 'development at all costs' mentality hidden behind the idea of 'balance'. They will 'balance' a bit more economic growth for a bit more environmental degradation. By 'balance' Key and Smith really mean a 'trade-off' of economic growth for environmental degradation.
The Hurunui exemplifies this. The Hurunui Water Conservation Order was about to be heard by the Environment Court when the ECan Act prevented it proceeding. Had the Order proceeded the Hurunui would most likely already be protected from more irrigation extraction and damming. So now, post the ECan Act, we have a moratorium which will enable a 'balanced' compromise to be developed which will degrade the river a bit more while providing a bit more irrigation. It will be presented as a 'balanced approach', or even win-win, but it will be a win for GDP and a loss for the environment.
Conclusion
The time of Muldoon was a pretty hostile time to care about the environment, but there were some wins. Likewise it is a pretty tough time now as well, but as the victory on mining showed, if the people stand up for their natural heritage and for the things we value, we can win. For the sake of the kids we'd better.
