Is the government's investigation of the performance of Environment Canterbury open to more robust critique than it has been getting?

The worm turns.

In my post last week here on Pundit, I gave vent to some exasperation and befuddlement, about why the Greens keep regurgitating the same old information about Wyatt Creech’s convictions for illegal effluent management, and using this to dispute his standing as chair of the Environment Canterbury (ECan) governance and performance review.

I argued that I did not find this, in itself, at all convincing; certainly I was not prepared to put as much weight upon it as the Greens. As far as I had been able to ascertain to date, ECan was indeed highly dysfunctional. The Press has been reporting in some lurid and frequent detail on how councillors are spending at least as much time scrapping with each other, as running Canterbury. It seemed plausible that in such a toxic political environment, there could well be, as the ECan report had suggested, a need for breathing space and a fresh start. I thought that the Greens' line sounded like a conspiracy theory, and a highly politicised line, that in the end had backfired, provoking Kiwiblog to respond in a fashion not complimentary to the Greens.

Pundit reader Paul McMahon responded on the comments thread. Without having made any attempt myself to verify his views, I have taken the liberty of lifting them up, verbatim, into a fresh post. I have done this because, if correct, it would without doubt cast a fresh and illuminating light on things; it therefore deserves to be given proper priority, with some urgency, given that the government is, as we speak, considering its response to the Creech report.

Here are his views:

Most of the criticsms in the Creech Report focused on historical issues which have largely been resolved and even on consents processing ECan is in the top 20% of regional authorities in NZ. A recently published survey showed that the rate of economic development in Canterbury was among the highest of any region in New Zealand.

When ECan was first setup they failed to deal with water issues then and now it is coming back to haunt them. You are right that there is a lot of emotion in the debate and the politics has been particularly unpleasant - but that's the stuff the media tend to over-report.

ECan is castigated in the Report for the failure to have a "water plan" in place, but the media have failed to mention that the Minutes of ECan meetings show
clearly that in earlier times some ECan Councillors wanted to produce such a plan but it was voted down by non other than the farmer members of the then council.

In short, the Creech Report, the Mayoral Forum, Rodney Hide and Nick Smith have created a strawman of ECan.

Another thing the media don't say much about, for instance, is that Bob Parker and the Mayoral Forum have been trying to put as much pressure on ECan to as they can in an effort to undermine the regional council. (Incidentally, Bob Parker promised during the last elections that he would disclose his donors after the elections and hasn't...)

It is utterly scandalous that those councillors didn't excuse themselves from voting on irrigation issues (though being present at the discussions themselves did not constitute a conflict of interest, imho) and, while they might not be legally obliged to resign, they clearly are ethically obliged to do so (at least, imho) and have not. Their democratic mandate is undermined by their unethical and unjust actions.

ECan has been remarkably functional under the chairmanship of Kerry Burke (despite it being highly partisan and despite the rural gerrymander) and improved markedly under his leadership. The big failure is on water and that is at the root of the acrimony and emotion that is so headbangingly frustrating.

City (70% of ratepayers) and town are divided very strongly on this issue, as we saw with the election of the two Save Our Water candidates last election. The latest representation review of ECan reduced the rural gerrymander enough that it may mean (or have meant) that 2021 and its allies (the largely urban, pro-environment group) could have a majority and the chair after the 2010 elections.

For the irrigators it's now or never to get rid of ECan, or risk an ongoing 2021-led council who is "science-led" rather than "science-informed" and "too focused on the environment", in the words of the Creech report.

By all means, please, discuss.

 

Comments (31)

by Claire Browning on March 22, 2010
Claire Browning

For completeness, I note that, as well as being a Pundit reader, Mr McMahon may be somewhat active in the Labour party. However, I would be grateful if people would do him and Pundit the courtesy of responding to the substance of his views, since he has taken the trouble and care to set them out for us in such a detailed way.

by Robert Winter on March 22, 2010
Robert Winter

Thank you for this post. Mr McMahon's comments are similar to those that I have heard about ECan. I don't think anyone thinks it to be the best thing since sliced bread as an organisation, but it has grappled seriously with internal and external issues and has markedly improved its game. What it cannot deal with easily is the power politics of vested interests with multiple agendas.

by Claire Browning on March 22, 2010
Claire Browning

Thanks Robert. But what a shambles this is.

Paul invited me to do some deeper digging, on the other thread. I told him I had; I also promised to do some more; and in the meantime, I posted his comment for balance, because he wasn’t alone in his views. Not-so-very-secretly, in fact probably quite transparently, I also hoped we might make a collective assault on this, but it seems it is not to be.

The short point is that I have been all round the traps in the few days since then, and on the whole, I think I had a lot of things right the first time. But this time, I am going to write it down …

The review document acknowledged throughout the extent to which progress has been made by ECan (eg, on resource consent processing), and other positives attributable to them (eg, working constructively on the CWMS / Canterbury Water Management Strategy).

It is simply not true, on my reading of the report, that the reviewers failed to take full and fair account of ECan’s side of the story, or acknowledge it, in a balanced way.

However, the reviewers decided this was not enough to outweigh the problems.

It’s true they didn’t consider how Canterbury was performing economically relative to other regions. I couldn’t find that survey, but it fits with what we know about the growth of dairy in the region, and I’m not sure this is an answer to the critics anyway; equally, it might prove their point. That is, it’s not true that because we’ve had mega-development, we don’t need better water management; the mega-development is part of the reason the water management need is so pressing.

Regarding whether I was, perhaps, putting undue weight on ECan’s personal / political dysfunctionality, the reviewers found that it was not wholly dysfunctional, in the isolated context of the LGA:

“Almost all external parties interviewed had a negative perception of ECan’s governance. There is a widely held view that councillors are so polarised at times that they are dysfunctional as a group. There is insufficient leadership, and the council is too busy protecting individual / Party perspectives and fails to pay sufficient attention to leading the Region. Our investigation did not bear this out. ECan is meeting its legal obligations under the LGA but has been unable to establish a firm planning environment which flows through to poor relationships and decisions under the RMA. The Review found that while the process for debating strongly opposing views has been marred by poor behaviour and reflects past grievances in some cases, the governance of ECan is functional and enables it to meet its statutory obligations. Mostly, the tensions that exist arise from differing political perspectives and not from any fundamental dysfunction.”

However, water management was the main issue. The gap between the organisation’s capability and the adequate management of freshwater issues was “enormous and unprecedented”, and the reviewers emphasised a number of respects in which Canterbury faces nationally significant and particularly difficult water management issues.

I am inclined to step very cautiously in second-guessing that expert advice on capability, because it is an expert field. And water has been the key area of conflict among ECan councillors, such that the reviewers felt they would not be capable of progressing beyond broad statements of principle (eg, as in the CWMS) to implementation of the strategy on the ground.

The government has said (here, and lots of other places) that it does want to irrigate the Canterbury plains – one can guess, for dairy purposes – which will have other downstream environmental effects. Add to that Paul’s comments about the changing faultlines of ECan representation [which I haven’t confirmed] and there are transparent political motives, and reasons for a Green to be concerned.

I still don’t think it’s totally helpful to keep casting Creech as the axe man, without qualifying it: the four reviewers were unanimous, and it is quite insulting to imply the other guys were pushovers. On the other hand, in the RMA and LGA areas, led by other people, only process improvements were recommended. It was water where the really far reaching change was recommended, and it’s not clear who “owned” that. I'm inclined to think you have to conclude they all did, but maybe, that was Creech's bit.

It would be a real shame to cut off at the knees the work of the Canterbury Water Management Strategy – Strategic Framework (CWMS). That document, now endorsed by all 11 councils, says that it is not in anybody’s best interests for the highly adversarial approach to water allocation and management to continue. It gives a lot of emphasis to environmental measures of success, including listing “environment” as the very first of a group of “first order priorities” (see pp 7-8). It suggests a mechanism to address all affected interests: national, regional, and local.

And yet, the Mayoral forum, whose Strategy this is, agreed with Creech et al’s findings, subject to the proviso that any intervention by the Government must be consistent with the direction of the CWMS. This is perhaps because the reviewers, too, endorsed “aspects of the CWMS, notably its vision and objectives” – which is the pp 7-8 part of the Strategy I have described above, with the strong environmental objectives.

And as well as the Mayoral forum, the government’s just-completed consultation with regional councils and other affected organisations has been reported as finding a lot of support for the view that substantial intervention is required, and that replacement of ECan by commissioners would be the most favoured option. In other words, there are a whole bunch of elected representatives not happy with ECan, although perhaps they have their own reasons for resentment – specifically, according to ECan, tensions arising out of RMA non-compliance.

The main thing I had not properly understood about this before, when I went launching in, was how stark the political faultlines are. I don't know, in hindsight, how I failed to grasp this. The review talks about it, at section 4.2. The council is currently balanced (7:7) in respect of environmental and economic issues” it says, and goes on to mention residual bitterness from Kerry Burke’s (Labour) ousting by Alec Neill (National, alongside Creech – so no favouritism there then, at least). This follows through to the various views reported around the place, eg Fed Farmers liking life better under Mr Neill. I must have been dozing off a little bit. To the left, it must feel like being done over, all over again.

So yes, the Greens over-simplified what is not a simple issue, and yes, they put a lot of weight on a not particularly weighty point (in my view, others disagree), and yes, we can debate till the cows come home who did or didn’t have conflicts of interest. But my criticism of them for politicising this was daft. It is inherently politicised.

Finally, the government’s response. They seem to be leaning pretty heavily here (and elsewhere) towards the third option, of replacing ECan with commissioners “to sort out the most urgent issues”. I don't know why else Nick Smith would be compiling a list of 20 names, including Shipley's, as he said on TV the other night. There is some room for debate I think about how well a total sacking of the council sits with the review findings, that ECan is capable of doing at least part of its job. Insofar as the RMA and LGA were concerned, replacement was not recommended; commissioners were the recommended holding pattern specifically in the water context, to manage the transition to the new CRWA. Given that, ECan’s own suggestion, of retaining the democratically-elected council structure for all functions other than water” rather than general replacement sounds like a decent compromise. But what do I know. Like I said: shambles.

by Robert Robertson on March 23, 2010
Robert Robertson

Claire

You may be either naive of somewhat ignorant of how important water is in Dryland Canterbury.

It is obvious that some of the Ecan councillors should have declared their vested interests and now resigned.

The Canterbury councils are hardly credible esp when one looks at the likes of Parker, and his other actions in Christchurch. He and his support base spent considerable time getting rid of Kerry Burke so that the water issue can be taken out of any transparent debate.

 

by Claire Browning on March 23, 2010
Claire Browning

Oh, ok Robert. Yes. Thanks for your thoughtful views. At least they were mercifully short, unlike mine.

by Judy Martin on March 23, 2010
Judy Martin

Don't apologize, Claire. One of the things I most like about your writing is how willing you are to examine evidence and re-adjust your views accordingly.

I thought when I read your criticisms of the Greens for being overly simplistic and negative, that I know how hard it is for them to get media coverage except when they are negative. I also saw a possible parallel to your own blogging experience.

You've done some fantastic pieces that have, as you have said, "sunk without trace". But a "controversial" piece taking a divergent view on whaling has become one of the most commented pieces on Pundit. Not saying that that piece was not fantastic, but it was couched in "black and white".

 

by Claire Browning on March 23, 2010
Claire Browning

Hi Judy. I wasn't apologising to Mr Robert Robertson, that is for sure!

You're right. I do know how hard the Greens try and often fail to get media coverage -- and also, how they've been criticised in the past (eg, 2005 election campaign that Russel managed) for over-complicating the billboards.

And despite my long process of thinking aloud, and trying (and failing) not to get caught in the political crossfire on this, I do not in fact think the conclusion they have reached, about what the government is up to in Canterbury, is necessarily wrong. I think there is a lot of ground for worry that they (and Paul, et al) have it exactly right. I agree with comments people have made about the high threshold for interfering with democratic mandate, and I find the review report pretty cavalier on this.

But I also think that if the government is pushing an agenda through here, ECan should wear at least as much blame, for opening up the door. And I do find it hard to dispute the findings about capability. Even though ECan is working hard now, to show how constructive it can be on the CWMS, even very recently Jo Kane has shown a complete inability to deal with the Mayoral forum. I know there are reasons behind that. But I think it naive to expect that this history will just evaporate into sunshine and "happy ever after", if ECan is left alone.

There I go again, all in shades of grey. The Greens don't have this luxury; they have to decide. What was getting on my nerves is that, to try to prove their point, they resorted over and over again to chucking the same smelliest little bit of muck they could find, until DPF flung it back. I do think, assuming they had an argument along the lines Paul has set out above, they could have done more to communicate it. None of the points he made is difficult to convey, via a series of press releases if necessary. Or a few hints to a normally pretty friendly blogger, if nobody else is listening. I would have followed it up. And if they didn't have such an argument, I come back to my point about the dangers of conspiracy theories.

Easy to say, I suppose, in hindsight, from my ivory tower ...

Regarding Mr Creech, I also wanted to say that I think his appointment was stupid, regardless of the discharge convictions. It was stupid because the government must have known, even if I didn't, about the high political emotion on this issue. Putting someone like him in charge is red rag to a bull. Either that, or I deduce they simply did not care and were pushing on regardless, which shows real arrogance and supports the agenda theory. Ditto talk of Shipley as Commissioner -- which I guess is why Labour keeps pushing that.

by Claire Browning on March 24, 2010
Claire Browning

Here [youtube clip] is a response from the Greens' Ken Graham, in general debate in the House this afternoon.

There are one or two points of agreement with where I got to, eventually ... chiefly, the arrogance point.

by Rod Thomson on March 25, 2010
Rod Thomson

Surprisingly, the Creech Report itself contains little justification for dismembering a democratically elected body.

The Greens' and Kennedy Graham's explanation for this government power play may be simple, but it is not simplistic. The National Party is moving on Ecan because its members are upset.

Several aspects of the brawl need further clarification. The 'gerrymander' in Ecan voting mentioned above  will be news to many of its ratepayers. How far is the current system away from 'one man one vote'?

And cash, as always, is crucial. The steady shift to 'user-pays' means farmers and developers pay more, and the big passive rating base in ChCh pays less.

It will be recalled that Cr Bronwyn Murray's conflict of interest arose on a vote which would have cost her family farm some $13k, under a 'user-pays' regime.

Ironically, there are as many complaints of water over-allocation in Canterbury as there are of slow progress in allocation.

 

 

 

 

 

 

by Simon on March 25, 2010
Simon

Claire,
You may be interested in a few thoughts from someone who was once on the "consenting frontline" at Environment Canterbury. Through the 'noughties', I either worked for or contracted to Ecan, as a (consents) compliance monitoring officer or a consents investigating (processing) officer or as an author of the annual environmental enforcement report or as a contracted reporting officer at consent hearings.

Yes Creech's involvement is not that relevant. Yes the Creech Report is not above criticism. For example, it says almost nothing about agricultural intensfication and water quality. Yes the Greens have gone from criticising Ecan for 'not trying and failing the environment' to defending Ecan for 'trying and failing the environment'. Yes, Ecan's water consenting and water planning are the most important issue. Yes, both have been a shambles. Yes, it is a failure of both governance and senior management, and yes, there are are culpable parties, and an intervention is required to, but mainly to solve a problem. Though it would be good to hold those culpable parties responsible.

I will start with management of groundwater and surface water permits.

Here's one example. Prior to 1991, the North Canterbury and South Canterbury Catchment Boards issued water permits that specified weekly or fortnightly take volumes, maximum pumping rates and had a maximum duration of 10 years.

In the early 1990s, the new manager of the Ecan groundwater scientists wished to manage water consenting much as he had done at his previous employer, Nelson Catchment Board. He wanted short duration permits (5 years), clearly stated maximum pumping rates and weekly/fortnightly volumes limits, and compulsory measurement via water meters of volumes taken. At Nelson, after five years, they replaced expiring permits with new permits with annual volume limits based on actual usage. Pretty commonsense sustainable management of water resources you would think.

However, the Consents Manager (who we used to call 'Mr Teflon' as nothing used to stick to him) did the exact opposite.

He bowed to pressure from rural councillors and began issuing non-notified water permits with the maximum duration, 35 years, without water meters, and without the weekly volumes, instead only stating a maximum pumping rate. This was a huge strategic mistake. The 35 year duration was out of step with other regions and has been validly criticised by DOC, Fish and Game, Ngai Tahu, the Water Rights Trust and Judge Smith in the Lynton Dairies case.

Obviously (in hindsight, to me anyway), the then CEO, the Director of Regulation and the Director of Planning Policy, either tolerated or acquiesced in councillor interference in statutory decisions delegated to a 'tier 3' manager, and had failed to plan for the issue. To me, that was clearly a failure of governance and senior management.

Water planning. As the most water-abundant region in New Zealand, Canterbury should have led planning for water allocation under the RMA, instead of being the laggard. Why doesn't Ecan have an operative regional water plan? Why is the proposed Ecan plan stuck in limbo? I have several reasons.

The proposed-but-not-operative Canterbury Natural Resources Regional Plan ("NRRP") was fundamentally over-scoped from the beginning and the plan writing process suffered from continual scope-creep.  The best metaphor is that the NRRP is the 'INCIS Police Computer System' of RMA planning and local government. The NRRP is more a code to completely replace the RMA in Canterbury, rather than to complement the RMA in setting the most important rules for the highest priority matters such as water allocation and agricultural intensification.

I once tried to goad one of the senior Ecan planners (an ex-catchment board planner) with the quip that the NRRP was like the bible, capable of any interpretation. The planner started a serious discussion with me about how one strength of the NRRP was it's comprehensiveness. He just didn't get it.

Here's a real-world example of this. At the 2006 Rakaia-Selwyn groundwater hearing, the applicants' planning witness (of course a former Ecan consents team leader) gave a plausible interpetation of the NRRP 180 degrees different from Ecan's. The said senior Ecan planner further sunk the Ecan case by giving three possible explanations of the water allocation provisions to the hearing panel ("On the one hand, on the second, and on the third hand..."). That typified interactions with the Ecan planners. Any discussions about the NRRP and its meaning were very open-ended and inconclusive.

From a practical consent processing perspective, a regional plan only affects the real world through the granting of resource consents. A plan can only concretely affect the real world in two ways:
* It can permit without consent some low level activities that would otherwise require consents under sections 9-15 RMA (i.e. make 'permitted' taking small volumes of water that would otherwise be 'discretionary' requiring consent).
* It can make some activities 'prohibited' that would otherwise require consents under sections 9-15 RMA (i.e. prohibiting taking water in excess of a minimum flow or allocation block).

From a theoretical plan-writing perspective, a regional plan can also have rules making consented activities 'controlled', 'restricted discretionary', 'discretionary' and 'non-complying'. A plan can also include detailed objectives, policies, and methods. From a practical consenting background, such distinctions are just mere generic 'matters to have regard to' for the decision makers.

The NRRP writers had transferred to Ecan from catchment boards (or even the short-lived Canterbury United Council) and had little or no practical resource consenting background. Not surprisingly the NRRP includes too many unfocused overly-long objectives, methods, and policies. The more unfocused provisions you have in your plan, the more open-ended inconclusive discursive debates you have about them. And the more uncertain and open to alternative interpretation the plan becomes. And the longer to get it through the submissions stage. And the less relevant the plan is to the consent process.

Again, the Ecan Councillors, the former CEOs, the Director of Regulation and the Director of Planning Policy, all failed to ensure that the NRRP's original scope was clearly prioritised and defined. They all either initiated or tolerated or acquiesced in this miss-scoped open-ended on-going never-ending discursive discussion that was the NRRP planning process. Again, I call that a failure of governance and senior management.

What should Ecan have done? Easy to answer with hindsight. There were explicit minimum flows for river in the conditions of a large number of the old catchment board surface water permits. These minimum flows and a few 'boundaries' between 'permitted' activities and discretionary activities should have immediately been written into a 'quick and dirty' RMA-styled regional plan. Ecan would have 'learnt by doing' RMA planning by incrementally writing and getting prioritised rules operative. After minimum river flows, Ecan should have worked on river allocation blocks and groundwater allocation blocks and water quality effects of agricultural intensification. Instead, they went for a 'kitchen sink' approach where the definition of the 'kitchen sink' was endlessly debated and the needed outcome, clear certain, enforceable rules, remains as far off as ever.

Whats my cure? Well, my diagnosis is that the problem is the plan, the NRRP, not the organisation, Ecan, that created it. Any new Canterbury Water Authority will be just as stuck in contentious water consent hearings as Ecan when it inherits the NRRP. The fix for the NRRP is for the Ministry for the Environment to enact a 'quick and dirty' National Environmental Standard for Canterbury water allocation under Sections 43, 43A, 43B and 44 of the RMA. These sections allow the Minister to enact an almost instant operative plan that covers "water quality, level, or flow" (s43). It trumps both a proposed and an operative plan (s 44A), thus making the NRRP a dead letter. The National Environmental Standard for Canterbury water allocation needs to be in place before the October local body elections.

Of course, the Ecan councillors should be replaced by commissioners. There has been a cumulative governance failure and some admirals need to be shot. The present councillors, especially Alex Neill and Jo Kane, can try to explain to the public in October why they should be returned to office instead of new blood.

by Claire Browning on March 26, 2010
Claire Browning

Thank you both. Simon ... wow. Rod, I was really interested in the 'gerrymander' / representation review aspects, too. To remind people, this far down the thread, this is what Paul said:

 

The latest representation review of ECan reduced the rural gerrymander enough that it may mean (or have meant) that 2021 and its allies (the largely urban, pro-environment group) could have a majority and the chair after the 2010 elections.

For the irrigators it's now or never to get rid of ECan, or risk an ongoing 2021-led council who is "science-led" rather than "science-informed" and "too focused on the environment", in the words of the Creech report.

I would like to know more about this and understand it better. I had a bit of a fossick, but so far, a fruitless one. In the time I had available this week, and probably next -- you may have noticed, there are one or two other things going on in the Green portfolio just now, mining, OI, and so on -- I haven't been able to do justice to it. I couldn't even find anything about the representation review, although to be fair, I was, by then, severely pressed for time, so it was a pretty cursory look.

Can anyone else help out, on this, or any other bit of the thread that needs more teasing out?

 

by Claire Browning on March 26, 2010
Claire Browning

Simon, a couple of follow-up comments / questions. Given your comments on the Bible-like nature of the NRRP, if there were any grounds at all to doubt the good faith of the government on this issue, it would seem to be a particular risk if ECan was replaced by commissioners, without the corresponding intervention you suggest, of a National Environmental Standard.

That is only a regulation, so the government promulgates it (via the Governor General by Order in Council), but at least their ownership of it would be transparent, and although it is secondary legislation, it would at least be subject to Regulations Review Committee scrutiny (I assume) -- as opposed to the new commissioners having leeway to interpret as loosely as they choose.

Second, I didn't react to the review report, as a whole, quite as swingeingly as Kennedy. However, I thought it had two key failings, which coincided curiously with two key reasons for concluding ECan should be dismissed -- one might either find this unfortunate, or quite telling I daresay, depending on one's point of view.

I mentioned above, as did Rod, that I found it cavalier in documenting its justification for dismembering a democratically elected body. It gave its reasons, to be sure, but it didn't attempt at all to analyse them by reference to the particular democratic context (ie, whether the capability failure was so large that, even given the large countervailing consideration, it was enough).

Secondly, on the question of whether ECan had been misapplying the RMA, the discussion was very muddled, and the evidence presented very thin. I'm referring to the part that began from the premise that one person had said in interview that "our name is Environment Canterbury, therefore, our job is to protect the environment". Kennedy says this is true. I say yes too, but only as far as it goes. More accurately, I would have thought the job is to protect the environment in accordance with the RMA, which would seem to be the real bone of contention -- ie, whether there has been an undue or improper focus on the environment by ECan, in terms of the RMA.

Any comments on that, from your expert point of view? Did you or do you find that ECan's focus has been wrong in that regard, on a case by case basis?

by Simon on March 26, 2010
Simon

Claire,
The rural to urban weighting of Ecan constituencies for 2004 and 2007 is found in 'Local Government Commission Determination of the representation arrangements to apply for the election of the Canterbury Regional Council to be held on 13 October 2007' (http://www.lgc.govt.nz/lgcwebsite.nsf/Files/CanterburyRC2007/$file/CanterburyRC2007.pdf)  by Sue Piper (Chair) and Gwen Bull (Commissioner), 10 April 2007.
In 2004, the 8 urban councillors represented 43,012 voters each. The 6 rural councillors represented 29,417 voters each.
(http://rwmjohnson.blogspot.com/2010/03/canterburys-urban-rural-voter-spl...)
In 2007, the 8 urban Canterbury councillors represented 40,284 voters each. The 6 rural Canterbury councillors represented 33,062 voters each.
(http://rwmjohnson.blogspot.com/2010/03/canterburys-urban-rural-voter-spl...)

by Simon on March 26, 2010
Simon

Claire,
"I found it (the Creech Report) cavalier in documenting its justification for dismembering a democratically elected body"
Yes I agree totally. The report has large portions that are just a grab-bag of embittered comments from district councils and consultants.


"on the question of whether ECan had been misapplying the RMA, the discussion was very muddled, and the evidence presented very thin".
Yes again I agree with that too. The Creech Report is an inherently political document. Kennedy Graeme's speech, as well as being enjoyably eloquent, was pretty much right in referring to it's circular logic and preconceived conclusion. A contact informed me that the review team arrived late for their day at Ecan and left early.

I think Creech and Doug Martin, who is a very experienced operator-around-politicians, knew they had a 'rush-job' on. I think they also knew that Smith and Hide didn't really want detailed analysis. It would have been wasted on them! I think they also knew that whatever they recommended, Smith would probably not follow it any way (Remember the Royal Commission on Auckland Governance?).

So I think they deliberately gave Smith an extreme recommendation (or a "hatchet job") which would give him the justification and the space to do whatever he wants to. As whatever Smith decides will appear well within the scope of the Creech recommendations and therefore more 'balanced' and 'moderate'.

"I would have thought the job is to protect the environment in accordance with the RMA, which would seem to be the real bone of contention -- ie, whether there has been an undue or improper focus on the environment by ECan, in terms of the RMA"

You make a good point here. This comes back to what "in accordance with the RMA" means to the various actors in the tragedy!

The Creech Report RMA experts are almost as vicious as Creech about Ecan's "improper focus on the environment". That is because Bryan Jenkins (and therefore Ecan) has committed a heresy against RMA orthodoxy. Jenkins stated that Ecan has not been able to apply sustainability limits to groundwater because the RMA is 'enabling legislation' (Rather than because the NRRP is as helpful as the Book of Mormon. Or because Ecan's senior planner and senior hydrogeologist were poor witnisses).

RMA orthodoxy, as espoused by the MfE Commissioners course and by RMA lawyers, planners and consultants, is 'weak sustainability rules okay'. For Jenkins to say otherwise is a heresy against the RMA mainstream. Jenkins also publicly and explicitly criticised a decision of a hearing panel - the decision to approve more groundwater abstraction from the arguably over-allocated Rakaia-Selwyn groundwater zone. Also heretical.

by Paul McMahon on March 26, 2010
Paul McMahon

Wow. This has turned into quite the substantive thread. Thanks for posting my comments Claire. Your digging has yielded some gold too :)

Simon, thank you particularly for your contribution too.

I don't have any substantial comments to make at this point (or at this time of night), but would love to hear anyone else's comments on the rural gerrymander etc.

 

 

by Rod Thomson on March 27, 2010
Rod Thomson

Simon's contribution is crucial to a serious discussion of ECan's water allocation strife. It confirms what many on the outside suspected.

But the ECan issues are not all water, nor simply urban vs farming. ECan has been bitterly opposed by ChCh City in its efforts to clean up the ChCh smog, and the city also persisted with estuary sewage disposal until ECan forced it to accept the new ocean pipeline.

So it is not surprising that the Facebook page 'Friends of ECan ' at last glance had only about 150 members.

But yesterday's Press reports that the councils criticizing ECan have been asked by Cr Jo Kane to 'put up or shut up' - and have had little to put up in the way of documented previous complaints.

So there is still a way to go with the whole stoush.

The 'gerrymander' needs further exposure. No doubt there is some history behind this, but the rural weighting will surprise many

Lurking in the background is the old concept of 'One Council for Canterbury.' This needs to be dusted off and given some serious study. Cantabrians should be looking at the Auckland SuperCity as it shapes up into the dominant NZ local authority.

The 'New Auckland' will have roughly three times the Canterbury population, and huge political clout when it goes to Wellington with its local questions settled.

A squabbling bunch of mostly small TAs, divided along urban/rural (and/or!) left/right lines, with a regional body in crisis - is that the way forward for Canterbury?

Somehow, Canterbury issues should be settled in Canterbury. And sooner or later, one TA will be required to do it.

 

by Claire Browning on March 27, 2010
Claire Browning

That was my next question, Rod: why do the other regional councils, and the mayoral forum, hate them so much? Of course this is a childish way of expressing it, but nobody, even other democratically elected representatives, who surely ought to appreciate how important it is to respect such a mandate, is sticking up for them. Is it just that ECan has become a sort of whipping boy for everybody's real and imagined grievances? And if so, why / how? (Thanks for the Chch smog and sewage examples, which do partly answer this.)

No mining analogies on this blog, thank you Paul ... ;-)
But I, too, am enjoying the fruitful harvest. I am going to post again on this, next week, probably Monday, but please keep going in the meantime. This is really useful interesting stuff.

by Rod Thomson on March 27, 2010
Rod Thomson

All good questions Claire, but I am not really close enough to the action to answer them.

I only know what I read in the papers, but to quote Cr Jo Kane again, she mentioned a 'feeding frenzy' among the other TAs, which seems close to the mark.

As the excellent comments above point out, the Water Strategy so long required has now been delivered, so what is the problem?

On my other point, the idea of a super-council for the Waikato has been in the news today, though not apparently getting much traction.

http://www.stuff.co.nz/waikato-times/news/3514657/One-region-not-super

These things take time. But if the small Canterbury TA's were fair to their ratepayers, they would be putting some staff resources into looking at a similar strategic study. For 500k odd people, 9 TA's is surely too many.

The situation on the West Coast, which has three district councils and a regional council for 40k people, is of course even worse!

Sorry to meander off the ECan topic, but this may prove a more useful debate in the long run.

 

by Rod Thomson on March 28, 2010
Rod Thomson

Just for the record, the TA's coming under ECan, and their approx populations are as follows -

Ch Ch City  360

Ashburton 30

Timaru 30

Waimakariri 30

Selwyn 30

Waitaki 20

Hurunui 10

Waimate 5

McKenzie 5

Kaikoura 5

Approx total 500k population, based on a quick search of council web sites. Full data from the latest census will be available from Stats NZ and would be used in a serious study. The general picture is however clear enough. Note that Waitaki District comes under ECan, based on catchment rather than 'provincial' boundaries.

by Claire Browning on March 28, 2010
Claire Browning

Rod, you needn't apologise for being right. The same is true in Wellington region. Mayor Kerry Prendergast has said, regarding a super-council, that we need to do it, or at least think and talk about it, before it gets done to us.

by Rod Thomson on March 28, 2010
Rod Thomson

I see the Hurunui District Council have posted a summary of their recent discussion and resolution.

 

http://www.hurunui.govt.nz/News/News.htm?id=8611&sec=News

by Rab McDowell on March 28, 2010
Rab McDowell

For a Cantabrian this is not just an interesting issue and interesting debate.  It is a crucial debate affecting the regions prosperity.

A comment on a couple of posts.
The gerrymander. Yes, a case can be made that a gerrymander exists. Not easy to solve. While the votes per councillor in the rural areas are less than in Christchurch city the economic value and the rates paid per voter are likely to be considerably higher. I know that is not supposed to matter in a one man one vote democracy but funding without commensurate representation seems to matter in local bodies. Particularly if the so called rural urban divide is present, as it appears to be in this region. One man one vote in this region, split as it is, would give Chch city 72 percent of the vote, according to Rod Thompson’s figures, and the ability to overwhelmingly control the Council. That would mean the representatives of the residents of Chch city who occupy perhaps one per cent of the area, having control of a vast region stretching from Kaikoura to the Lindis Pass. That would lead to a revolt by rural areas far worse than present and the certain demise of Ecan.


Councillor conflict of interest. Of course those with a conflict of interest should recuse themselves. Again, not as straight forward as one would like. One of the things about politics is that people tend to involve themselves in what they have an interest in. Notice how many doctors stand for Health Boards. Water, as most of your posters have noted, is the big issue in Canterbury. Given how important it is to their livelihoods, a number of rural councillors were likely attracted into standing for Ecan because of their interest in and knowledge of water issues and were voted into office because they represented their constituents views. Their knowledge of the technical issues is likely to mean they have a greater understanding of the issues than the urban councillor. Recusing themselves would mean that decisions would be made by those with the least knowledge of the issue at hand. Given that everybody depends on water, in this case, then how do you define what is a conflict? Would that standard of definition also apply to roading when everybody uses roads as part of their income generation, or rubbish disposal when everyone has an interest in how costs are carried, or any number of Council responsibilities? How often do doctors recuse themselves on Health boards because they have an interest in patient health? Does everybody who has a business have to divest themselves of all business interests before they can be involved in the business of governing their region?

by Paul McMahon on March 29, 2010
Paul McMahon

The Auditor-General's report into the conflict of interest is pretty clear in its conclusion (2.22),

"In our view, each of the four councillors had a pecuniary interest in the proposal when it was considered at the Council meeting on 4 June 2009. Their pecuniary interest was not one that was in common with the public, and none of the other exceptions or defences in the Act applies. Therefore, all four councillors breached section 6(1) of the Act by voting on the proposal at that meeting."

 

 

 

 

 

 

 

 

by Claire Browning on March 29, 2010
Claire Browning

Robert, good point on the 'gerrymander'. But on the conflict of interest, the issue as Paul has noted is that they had a direct pecuniary conflict, and a clear pecuniary gain from the decision that was made. I wrote about this very briefly, here in January:

The council had been considering funding sources other than general rates to meet [water management] costs, chiefly, different options for levying resource consent holders -- in other words, user pays. The councillors in question were themselves dairy farmers, who held permits to take water and/or discharge effluent. Their decision resulted in a general rate rise of 10.6%, that would otherwise have been 2.7%.

This has been mentioned further up the thread, in relation to Cr Bronwyn Murray.

by Simon on March 29, 2010
Simon

Claire,

Why are the Canterbury rural district councils so embittered towards Ecan?

I think its a mix of their capacity and their RMA implementation. From Rod Thomson's data on the populations of the districts, it's fairly clear that there is not much of a rate payer base to support the rural district councils. I mentioned this once to my father who was an agricultural economist. He said that he had been long aware of the problem of the small rural borough and district councils simply being too small in scale to have the capability to carry out their functions.

As for RMA implementation, just a reminder, district councils approve, monitor and enforce land use consents required under a district plan. Regional councils approve monitor and enforce river bed, water, air, contaminant discharge and land use consents. These consents include district council consents for infrastructure such as water supply and sewage.

Typically rural district councils have only one or two people working in consent processing. They contract out complex consent applications to consultants. And they usually have no specialist RMA compliance or enforcement staff (N.B. Ecan has about 7 enforcement staff, about 15 compliance monitoring staff and 2 solicitors). Consequently rural district councils do very little or indeed no monitoring or enforcement of consent conditions. They do not have the capability to prosecute RMA offences.

Also there are differing attitudes to implementing the RMA. Rural district councillors are just not culturally interested in enforcing the RMA on their constituents. As a gross generalisation, they would belong to the sturdy practical self-reliant 'Balclutha' tribe, same as most of their ratepayers. Did you see from Rod's link to the Hurunui District Council's discussion that the councillors complained about Ecan's consent processing delays suffered by their farmer constituents?

A cousin of mine used to work as a water engineer for a north Canterbury council. He explained that his council viewed its infrastructure consents as coming out of a 'black box'. They contracted preparation of the application for an Ecan-issued consent to a consultant. The consultant scoped out the application, added a page of mitigation conditions (on fancy letterhead), informed Ecan that of course the district council would abide by the conditions. The district council would get its consent. But it would not have "bought into" the consent conditions, and staff resources are scarce, so the detailed conditions would be ignored. Ecan's compliance monitoring staff would eventually inspect and report non-compliance. How unreasonable of them!

In South Canterbury, Ecan had the gall to successfully prosecute the construction company, Doug Hood Ltd, involved in the South Canterbury politicians' pet water-storage-and-irrigation project, the Opuha Dam. The prosecution was for an offence against S 15 RMA, discharging a contaminant, a nearly-built dam down the Opuha and Opihi Rivers. Doug Hood Ltd were held guilty as they had not taken all reasonable steps to avoid dam collapse in a heavy rainfall event. In other words, they had cut a corner by taking a big risk that there would be no heavy rain during construction.

Here'e some examples.
Editorial: Irony in award to Opuha dam 01/11/2008
(http://www.stuff.co.nz/timaru-herald/opinion/698762/Editorial-Irony-in-a...)
"the relationship between Ecan and the dam company. The council's insistence on prosecuting the company - albeit on a 7-6 vote - was a contributing factor in the proposal still under consideration for the Central South Island to create its own regional council."

Stoush in the south The Press 01/01/2009 (http://www.stuff.co.nz/the-press/lifestyle/mainlander/150421/Stoush-in-t...)
"Then there is the belief that ECan is too heavy-handed or displays a "we know best" attitude when it comes to using its regulatory or punitive powers. Critics point to the hugely expensive decision to fight a losing battle against the Pegasus township development in 2002; in the south, ECan's decision to fine the builders of the Opuha Dam more than $500,000 following its breach by floodwater in 1997 is still remembered bitterly.."

Editorial: You're right Sir Kerry The Timaru Herald 28/08/2007.  (http://www.stuff.co.nz/timaru-herald/opinion/39636/Editorial-You-re-righ...)
This editorial gives the following reasons for dissatisfaction with Ecan
* South Canterbury was denied it's own regional council in 1989
* Ecan prosecuted Timaru District Council for a sewage discharge into the Temuka River
* Ecan prosecuted Doug Hood Ltd for being responsible for the Opuha dam collapse
* regional rates generally rising more quickly than district rates; ( I don't know about that)
* Ecan's Christchurch voice dominating South Canterbury.

by Rab McDowell on March 29, 2010
Rab McDowell

Don't get me wrong. I was not trying to defend conflict of interest. I was asking how you define it and at what point is a preceived conflict no longer relevant.

It would seem to me that a council deciding whether to charge for rubbish collection rather than including it in the general rate would have a similar problem with any councillors who put rubbish out for collection. Or library fees or roading or water meters etc. Is it the level of pecuniary interest involved? One of the Sth Canterbury councillors caught in the conflict of interest stated that in her endeavours to service her constituents she had nor claimed her full entitlements for travel and, as she was distant from Chch and had a large electorate, her unclaimed travel entitlements were of far higher value than the pecuniary interest she had in the conflicted vote.  That is no excuse and she should have sought full reimbursement but it does perhaps show that, in her case, the interest was not great and that she did not have a developed mercenary interest in the "trough" that many elected officials are accused of.

The question I raised earlier and which has not been addressed by any of the commenters is how much should some one who has a business have to divest themselves of all business interests before they can be involved in the business of governing their region? I know that it is common in high office to put interests in trusts etc. Do all office holders no matter how minor need to do the same?

by Rab McDowell on March 29, 2010
Rab McDowell

In regard to Ecan performance this blog from Stephen Franks on his conversation with an Ecan official may explain some of the frustrations. It may not be typical but poor governance is likely to make it more common.

http://www.stephenfranks.co.nz/?p=2606

by Claire Browning on March 29, 2010
Claire Browning

On conflict of interest, those are good questions Robert. And, like so many questions on this thread, I cannot answer them! Maybe Simon knows ... 

Funnily, it's kind of how this thread kicked off - in this earlier post, where the Greens had taken issue with Wyatt Creech's company's convictions for illegal effluent holding and discharge, saying this disqualified him from water decision-making, I suggested they had a couple of conflicts of their own if one wanted to be strict about it, and Creech's were no more significant than those in the scheme of things. Whereas others thought my Green examples (eg, Sue Kedgley having a brother-in-law who hosts Sunday mornings on RNZ) weren't enough to disqualify.

It is murky. Actually even in the ECan context pre-Auditor General it was murky: see here, part 1 of the OAG Report, paras 1.9-1.20, which talks about conflicting legal advice.

It's not even just money. At what point do friendships or family connections or working relationships give rise to such loyalty that one needs to stand aside? And it's not just formal office holders; you get the same questions arising from time to time in the criminal jury trial context, for example (eg, is it unacceptable for juror X, many years ago, to have officiated at the Crown prosecutor's wedding? Or for juror Y to realise part way through the trial that in her last job she worked alongside the sister of witness Z?).

by Simon on March 29, 2010
Simon

Claire

The clearest example of unfairness coming out of Environment Canterbury's electoral system of first-past-the-post 'wards' was in 2004, when Sam Mahon and Lesley Shand and other advocates for clean water contested the Ecan elections under the 'WeCan' banner.

Mojo Mathers for WeCan received 7,719 votes in Christchurch South. She did not get elected as Kerry Burke and Bob Kirk each received 14,000 votes. Compare Mojo's urban 7,719 votes with successful Angus McKay's 5,526 votes in Ashburton and especially with Cr June Slee's 2,367 votes in Waitaki. Thats pretty unfair, isn't it? Rural Waitaki votes were counting way more than urban South Christchurch 'green' votes.
(http://ecan.govt.nz/publications/General/electionresults2004.pdf)

As for conflicts of interests, I dusted off my MfE Making Good Decisions manual.

It says roughly "any perception or suggestion of conflict in a council decision should be avoided. Either; delegate decision to independent commissioner, excuse yourself from decision, or obtain legal advice'.and 'Under the Local Authorities (Members Interests) Act 1968 a member of a local authority shall not vote in or take part in the discussion of any matter in which he or she has a pecuniary interest'

At MfE Making Good Decisions course I attended, the presenters stated that conflicts of interest were 'red ink law' to be absolutely avoided. That was also the message in all similar RMA training I had while at Ecan.

Reflecting on the decision of the water-permit-holding councillors to vote on permit holder cost recovery, they clearly and intentionally broke the law. They had a direct pecuniary interest in the matter they voted on. The voting was intentional and tactical, as they had obtained before the meeting legal advice (that turned out to be incorrect) that they could get away with it.

The councillors would have done the same training as I had. They knew what they were doing was unlawful so they looked for and found a loophole to wriggle through: reliance on an erroneous legal opinion. To me thats a classic case of double standard; one rule for the Ecan staff, a different rule for rural councillors.

That alone justifies their dismissal and replacement by a commissioner. Otherwise, they are getting away with deliberate unlawfulness.

by Claire Browning on March 30, 2010
Claire Browning

Simon,

On the ‘gerrymander’ -- no, the numbers aren’t fair. And I started by thinking Robert made good points, from a pragmatic point of view, and also a practical one. Take my own example, to try to lift it out of the Canterbury melee. I live in semi-rurally, in South Wairarapa -- which has a cluster of little towns, Greytown, Featherston, Martinborough, population 9,000 approx. Wellington City is the population centre of the region, population 180,000 approx. Should we get a super-council, one of these days shortly, do I think it would be fair or right for Wellington to govern South Wairarapa’s destiny? I emphatically do not ...

But then I checked it out by reference to the existing Greater Wellington Regional Council. On GWRC, Wellington has 5 seats, Wairarapa one -- but that one seat represents not just SWDC but all 39,000 in Wairarapa as a whole (9,000, plus 7,000 Carterton, plus 23,000 Masterton) -- which against the 180,000 works out close enough to right, proportionally speaking. This map shows the sizes of the respective constituencies. It’s the same issue, isn’t it Robert? Why should Canterbury be any different?

I wasn’t disputing the Oldfield, Murray, et al conflict and bad behaviour, and I’m not entirely sure Robert was either, although the general thrust of his egs and questions leans on the side of minimising it. He was groping after the general principle. I can get some way towards that, by drawing a distinction between people in a quasi-judicial capacity (in the sense of determining other people’s rights and obligations), as opposed to advocacy, with the former having higher duties. So on that approach, Creech and the councillors (and jurors and judges) fall on one side of the ledger; Greens, and bloggers for that matter, on the other advocacy side. I suspect that is what lies beneath the general feeling my examples weren’t convincing. But Robert was also asking: at what point along the spectrum of perceived or alleged conflicts is the subject of the conflict obliged to act? Because some people will find a conflict when it suits them, and use it to serve their purposes. As has been pointed out.

And thank you, by the way -- for the whole thread, but more recently your explanation of the inter-council dynamics, and all the examples.

by Dave Head on May 04, 2010
Dave Head

Mr Carter [Minister of Agriculture] said in a speech to the Irrigation New Zealand conference in Christchurch : "I would have thought what happened recently with Environment Canterbury would be a signal to all regional councils to work a bit more constructively with their farmer stakeholders."

Just what do you think he was saying?

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