ECan Act “constitutionally repugnant”

… constitutionally repugnant…

…contains elements of subterfuge…

…a constitutional affront…

…simply unacceptable…

…failed the legal requirement that the law should be general and forward-looking, not retrospective…

…denied all the equal protection of the law…

…either gratuitous or disingenuous…

…does nothing to promote respect for the law…

…a disproportionate response to the issues…

The bleatings of an embittered sacked Environment Canterbury councillor, perhaps?

No, these references to Nick Smith’s and Rodney Hide’s ECan Act were all made by Professor Philip Joseph of the University of Canterbury Law Faculty.

Joseph is a public law expert and the author of the leading text Constitutional and Administrative Law in New Zealand. He is an adviser to several government organisations, including parliamentary select committees, the Law Commission, and government departments. In 2004 he was conferred with a Doctor of Laws degree for his work.

His opinion is that the ECan Act is such a constitutional affront that the Government should repeal it and start again.

Of course they won’t, because they have no respect for due process and democracy. By Nick Smith’s own admission, he sacked the elected ECan councillors and cancelled the October elections because he was “wary of the outcome” of the elections.

16 thoughts on “ECan Act “constitutionally repugnant”

  1. Canterbury Regional Democracy Down the Gurgler

    Here is the current shameful litany of democratic destruction in the Canterbury Region
    – Taxed without representation in contravention of common law & statutory rights enshrined since the Magna Carta;
    – Regional electoral voting rights removed – many feel for good
    – Commissioners denying some annual plan submitters speaking rights
    – Commissioners posting private security guards at the council chamber
    – Commissioners new contact hotline/email (widely advertised at great expense) simply goes to ECan staff customers services – so you can’t have confidence that the officer you maybe complaining about is not being read and replying to your complaint!
    – Commissioners not available for constituency work – we used to be able to ring up Cr Ross Little to report river levels, live rural issues or have a driveway meeting – but no longer
    –Thank goodness the good folk at ECan in Exile have republished the Crs contact details at their website: http://ecaninexile.wordpress.com
    – Rumoured that commissioners last week briefed local MP’s on ECan issues – but just the National ones – so other citizens reps are out of the loop and so not able to put alternate viewpoints
    – New crucial water zone committee look like being stacked like a govt qango. Reported a Canterbury university professor was turned down because his speciality is ecology!!!
    – Court appeal rights on the substance of an issue have been removed – but just in Canterbury – making us 2nd class citizens – this was pointed out to the govt by the justice dept before they chose to pass the ECan law without democratic select committee process!!!
    – Rumoured that the commissioners want to lift their own popularity by bringing in a minimal 2% ECan rates movement but will rob ECan reserve funds and vital programmes to achieve this and also put the cost of the water strategy onto our local council rates, perhaps using the special legislation clauses in their ECan law.

    Why aren’t Cantabrians in the streets? Apathy maybe but possibly because the Commissioners are hiding their tracks behind a bureaucracy they are busy building up right now.

    PS: I understand the new ECan chair is so dedicated to us and the crucial tasks ahead that she has gone off overseas on holiday!

    Luke

    Like or Dislike: Thumb up 7 Thumb down 1 (+6)

  2. Hmmm….

    Common law is the law made by judges, because it seemed right at the time.

    Parliamentary sovereignty is parliament’s right to have the law say anything it wants.

    How do common law and parliamentary sovereignty interact?

    Like or Dislike: Thumb up 0 Thumb down 0 (0)

  3. As I said on another blog, I find what the government has done troubling but the fact Cantabs are not rioting in the streets moreso…

    Like or Dislike: Thumb up 4 Thumb down 1 (+3)

  4. Hi jc2
    I’m not a constutional lawyer and these technical nicities are not what annoys me. What annoys me is I used to be able to get help and have a say on the big water, air, frieght transport issues that affected our business and lifestyle and now I can’t but the b**gers are still expecting me to pay the ECan rates for something I don’t get any say in.

    I can’t even campaign to vote out the regional council if I don’t like them coz Nick Smith (who was a Rangiora boy before he headed north to sunnier climes) has decided he knows what I want and need. You used to have to be declared insane or criminal before they took your vote off you, but now it seems to be enough that Nick is ‘wary of the outcome’ of OUR election.

    And how insulting – there’s good rural councillors like Ross Little and Angus McKay ( & the urban ones too) who got up at sparrows **** to go to ECan meetings, did sterling service representing our points of view, turfed out without a by-your-leave – and without any compensation too on Nicks say so. I think they should sue him for defamation of character.

    Why ECan worked and was getting on top of the big issues of our region was because it did have a wide diversity of views around the council table. Just look at the voting records of their meetings you’ll see difficult issues mostly passed as majority decisions – some in favour of rural issues, like water and freight transport, because of the rural councillors advocacy, other issues in favour of urban issues like passenger transport and air quality because urban councillors put up a good case. Now the baby is out with the bath water and the commissioners represent just a very narrow group of powerful stakeholders who will be all pulling in their own direction to the detriment of the entire region.

    Coming back to the Bill of Rights (BORA), as I understand it BORA was put into place to codify our common law rights, developed over centuries, to enable us to move forward as a mature democracy. However, BORA has a big flaw: it is not superior law in that the courts cannot send back to parliament new laws that contravene BORA. Also we do not have the backstops other mature democracies have: eg: UK House of Lords, US Senate and written consitution. Put this together with the fact that our governor general has been stripped of the oversight role and basically has to take the Prime Ministers word that a law put before the GG is kosher, and you see the sort of thing that happened at ECan is on the cards for any aspect of human rights that the govt can push through under urgency. Today it is local govt voting but tomorrow it may be discrimination, property confisication, unfair prosecutions etc etc.

    This is why this whole thing needs to be put before the UN and Transparency International and why any right thinking kiwi needs to withhold their general election vote from any party who won’t commit to make BORA superior law and enshrine voting rights for any body that can levy rates or taxes.

    Phew…thanks jc2..for helping me all that get that off my chest

    Cheers Luke

    Like or Dislike: Thumb up 6 Thumb down 1 (+5)

  5. @jc2
    Simple really – Parliament can legislate to overturn any common law principle it chooses.

    I think the issue here is not one of the relationship between common law and Parliamentary sovereignty, but the issue of whetehr it is appropriate for Parliament to do whatever it wants.

    In this instance the Government rammed the Act through under urgency with no select committee consideration, no submissions and no consultation with those affected. The Act sacked the elected ECan councillors and replaced them with Commissioners appointed by the Ministers, cancelled the 2010 ECan election, removed the rights of appeal on Water Conservation Order decisions in Canterbury (but nowhere else), and empowered the Minister for the Environment to suspend parts of the Resource Management Act insofar as the Canterbury region (but nowhere else) is concerned.

    In many other countries, such a law would be struck down by the judiciary as unconstitutional. In others, there would be an Upper House that could hold up its progress and send it back for proper process to be instigated.

    But in New Zealand there are no safeguards against constitutional outrages such as this. I think it is high time we started to develop some.

    Like or Dislike: Thumb up 4 Thumb down 1 (+3)

  6. Otago Regional Council rolling out proposal to radically change its approach

    (Southern Rural Life – Wed May 12th)

    “OTAGO Regional Council (ORC) is contemplating a radical departure from its present approach to managing environmental water quality.
    It no longer wants to take a prescriptive approach -telling landowners what they must do to protect water quality – because it sees this as ineffective
    Rather, it says it wants landowners to be free to chose how they use the land , provided discharges – surface run-off, groundwater seepage and discharge from drains – meet water quality standards which the council will set.”

    Farmers, it seems, aren’t interested. Two meetings have been arranged and 1000’s of invitations sent. The first meeting has been cancelled through lack of response.

    Like or Dislike: Thumb up 2 Thumb down 0 (+2)

  7. ORC plan a cost burden, farmer says

    “If Otago Regional Council (ORC) adopts an effects-based method of water-quality management it will be difficult to implement fairly and only impose further costs on farmers, a North Otago dairy farmer says”.
    The ORC believes that they will pre-empt the Government by implementing this system. They expect the Government to bring this approach in when it decides on it’s national water quality strategy.
    This mirrors moves in the fishing industry to establish an ‘outcomes’ based system that allows the industries to ‘do as the will’, provided the certain standards are met. The fishermen seem enthusiastic, the farmers do not. Curious!

    Like or Dislike: Thumb up 1 Thumb down 0 (+1)

  8. @Greenfly
    too busy with the budget to bother with this today…

    One thing : “constitutionally repugnant” – many things that are done in NZ are, so what?

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  9. “so what?”

    To busy with sensible discussions to deal with this ..ever…

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  10. MORE EXPERTS JOIN ECAN ACT CONDEMNATION
    In THE PRESS this morning Lincoln University public policy expert, Ann Brower, called Nick Smiths ECan Act:
    “Of the recent changes at ECan, sacking the council is the least offensive. The ECan Act shows a breathtaking use of parliamentary power…”

    I suppose Nick Smith will try to lightly dismiss this expert too but then Nick’s qualification is in landslide engineering so perhaps he is only continuing to engineer a landslide against our democracy.

    I request our opposition parliamentarians get this ECan issue before the UN Human Rights Rapportuer, who’s visiting NZ in June, and also put it before Transparency International.

    Article Link: http://www.stuff.co.nz/the-press/opinion/3729741/ECan-Act-staggering-use-of-legislative-power

    Regards Luke.

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  11. Despotism :

    is a form of government by which a single entity rules with absolute and unlimited power.

    Features of a banana republic :

    1. A collusion between the overweening state and certain favored monopolistic concerns, whereby the profits can be privatized and the debts socialized.

    2. There must be no principle of accountability within the government so that the political corruption by which the banana republic operates is left unchecked. The members of the national legislature will be (a) largely for sale and (b) consulted only for ceremonial and rubber-stamp purposes some time after all the truly important decisions have already been made elsewhere.

    With the way this Minister (Nick Smith) has operated since his “murky involvement” to quote the Rt Hon chris Carter, in the Whangamata marina back in ’98 (see my website; http://www.whangamata-marina.co.nz should we not be just a little concerned at how the laws of this land are being applied in such a “discretionary manner”

    for further reading on political manipulation of our judiciary, read my webpage, http://www.whangamata-marina.co.nz/?page_id=16 (the case of the missing skinks) or click through to the up and comming doco, “The Fiduciary Disguise” on the “Save Matakana Island” facebook page ; http://www.facebook.com/home.php?#!/group.php?gid=114683248561058

    I guess at the end of the day we will have our chance at the next democratic election. But wait, isn’t there going to be a referendum on MMP?

    I wonder what the the FPP promoters budget is going to be….?

    Like or Dislike: Thumb up 0 Thumb down 0 (0)

  12. Despotism :

    is a form of government by which a single entity rules with absolute and unlimited power.

    Features of a banana republic :

    1. A collusion between the overweening state and certain favored monopolistic concerns, whereby the profits can be privatized and the debts socialized.

    2. There must be no principle of accountability within the government so that the political corruption by which the banana republic operates is left unchecked. The members of the national legislature will be (a) largely for sale and (b) consulted only for ceremonial and rubber-stamp purposes some time after all the truly important decisions have already been made elsewhere.

    With the way this Minister (Nick Smith) has operated since his “murky involvement” to quote the Rt Hon chris Carter, in the Whangamata marina back in ’98 (see my website; http://www.whangamata-marina.co.nz )should we not be just a little concerned at how the laws of this land are being applied in such a “discretionary manner”

    for further reading on political manipulation of our judiciary, read my webpage, http://www.whangamata-marina.co.nz/?page_id=16 (the case of the missing skinks) or click through to the up and coming doco, “The Fiduciary Disguise” on the “Save Matakana Island” facebook page ; http://www.facebook.com/home.php?#!/group.php?gid=114683248561058

    Both cases have been corrupted by the same influential forces.

    I guess at the end of the day we will have our chance at the next democratic election. But wait, isn’t there going to be a referendum on MMP?

    I wonder what the the FPP promoter’s spin doctors budget is going to be….?

    Like or Dislike: Thumb up 0 Thumb down 0 (0)

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