Extinguishment of Hurunui litigation rights recalls the Foreshore and Seabed Act, and it is breathing life into the embers of green activism

The damned Hurunui has lit a fire that will not be put out…

The Environment Canterbury (Temporary Commissioners and Improved Water Management) Act 2010 (the ECan Act), passed under urgency before the Easter recess, changed Canterbury’s water conservation landscape. It handed power to administer water conservation orders (WCOs) to the newly appointed ECan commissioners, on the grounds that to do their job properly, the commissioners need a fresh start and a free hand.

Water conservation orders are the ‘national parks’ of water management. They recognise and protect outstanding water body values. There is a national interest in them. They are not normally governed by regional councils.

The Act included special provisions for the Hurunui WCO. Recreational NGOs (Fish and Game, et al) had applied for a WCO to counter the Hurunui Water project— a damming and irrigation project. They were exercising their Resource Management Act right to make submissions to the Environment Court.

The government cut this litigation process off at the knees. The ECan Act ousts Environment Court jurisdiction on the Hurunui WCO, and gives it to ECan instead: see part 2 of Schedule 2. Chances are, this condemns the Hurunui, converting it to rural working purposes.

The government hasn’t finished cleaning up Labour’s legacy mess on the Foreshore and Seabed Act (which fellow Pundit Andrew Geddis described as a “stain on New Zealand's Parliament”), before making another one of its own.

I write this warily, with the spectre of holocaust analogies hovering over the keyboard. Make no mistake: there are some very important and sensitive respects in which the two legislative Acts are not at all similar. They cannot be classed as equivalents; the foreshore and seabed issue had a scale and significance all of its own. It was discriminatory, extinguishing only Māori customary title, not European forms of title, and it undermined the Treaty partnership.

So I’m not belittling that. And yet, there are e nough points of similarity to make a grubby fingerprint, or some sort of nasty reflux.

The Foreshore and Seabed Act, too, extinguished a litigation right. The Court of Appeal had held that the Māori Land Court had jurisdiction to hear Māori claims to customary title of the foreshore and seabed. The right to return to court to test that case has been the Māori Party’s refrain, and bottom line.

Both Acts conjured out of expediency some quite novel administrative arrangements. In the ECan Act, this takes the form of the commissioners, and their unprecedented responsibility for managing WCOs. Under the Foreshore and Seabed Act, the court was able to make a preliminary finding about the veracity of Māori grievances, which would then be handed over for negotiation between Māori and the Crown.

Both instances spiked goodwill, on bedrock issues of national importance, by forcibly and unilaterally ripping away the bone of contention. This joint media statement from five NGOs charges the government with breaching the Land and Water Forum’s collaborative good faith process.

The Land and Water Forum was supposed to be the basis for a durable national solution on New Zealand’s next big policy challenge. But as with the foreshore and seabed, the government, by jumping pre-emptively, has poisoned the well.

And the Foreshore and Seabed Act gave the Māori Party its mission statement and ticket to Parliament. The Greens already exist, of course, with a loyal five-percentish base. And as I noted on the comments thread of Tim’s post here, they may find their 2011 ticket on another bandwagon— Coromandel mining, rather than the Hurunui.

But Quentin Duthie, conservation advocate for Forest & Bird, says that the government’s recent serial attacks on the environment have reinvigorated the environment movement, and a public environmental consciousness. Miscellaneous NGOs, that were always broadly friendly, but with somewhat random agendas, have coalesced. (And I am living it: I thought, when I started writing for Pundit, I would prattle on quite a lot about my garden, but the politics has not stopped.)

Duthie also says this can work for good or bad. It’s unfortunate, he says, because it draws energy away from positive individual and community initiatives, and critical global challenges like climate change, into defence of what New Zealanders thought was protected.

Labour underestimated the power of the foreshore and seabed issue; or at least, they recognised its power, but overestimated their own curative capability. They are ruing it to this day, as they try to find a way to spike the Māori Party’s guns.

And similarly, we never could have expected, in electing this National government, that the environment movement would have so much to thank them for. National may go down in the annals of Green history as a better, greener government than we knew, or they intended.