Distractions

This week in New Zealand environmental law there’s been the apparent re-naming of the Fast Track Bill to the One Stop Shop, and the Resource Management (Freshwater and Other Matters) Amendment Bill is in Select Committee. 

At least as these relate to freshwater, both things are distractions, as I explain.

There are just two real games in freshwater law and policy right now. The first is to understand which projects will be Fast-Tracked. The second is to focus, later in the year, on the government’s attempts to weaken the Resource Management Act’s, or RMA’s, core freshwater bottom lines. If it does, it will be first government in over fifty years to do this.

Fast Track name change

We can surmise that the “Fast Track” is no longer “focus-grouping” well.  What is a government to do when that happens?  Compromise and knock off some rough edges, change the packaging, or a bit of both? The government would have us believe it is doing both.

On the rough edges side of things, though, the “sensible” substantive changes signalled by the government remain undefined.  So too does the list of projects which will be Fast-Tracked, which list has been hidden since March.  The result is that there is still no settled Fast Track Bill, even in core respects, and still no real places to which the Bill would apply, even though it could apply almost anywhere.  In other words, there is a continuing absence of any information about which we can arrive at a properly informed view on the Fast Track.  This information situation seems set to remain beyond a time when the public will be able to comment on the Fast Track. 

For this reason, we are discussing a phantom, and the public debate retains its almost nonsensical quality as I’ve said before.

A name change in these circumstances is another sign, as I suggested in relation to the Fast Track Advisory Group in the above-linked piece, that the government lacks the true confidence in its convictions:  unprepared to wear the full political cost for infrastructure or industry it believes in.  And as if a name change means anything at all without other substance, it also shows that however you voted, the government seems prepared to insult your intelligence.

The Freshwater Bill

One of the main issues in this week’s Freshwater changes, is to remove the need to think about Te Mana o Te Wai near future resource consent applications, as explained here.

Te Mana o Te Wai articulates a number of principles, including a hierarchy. This hierarchy puts the health of the water before health needs of people, and both of these before the ability for people to meet their social or economic needs.  It sits in the National Policy Statement for Freshwater 2020, or NPS, which is made under the RMA.

The standard account from the ENGOs seems to be that the loss of Te Mana o Te Wai is grave. Andrew Hoggard et al are over the moon, as perhaps are trading banks. Neither account bears great scrutiny. 

The better account is that this change is almost exactly of a piece with the Fast Track name change:  a sign that the government doesn’t believe strongly in what it is doing, and a sign the government is prepared to engage in distraction in this area. Te Mana o Te Wai will live on, whether or not it is deleted from the NPS.

To see the first part of that, we just need to understand that any “nationally or regionally significant” operator – including any significant irrigator – should be able to access the Fast Track straightforwardly, at least if they have usual levels of lobbying power, and are competently advised.  In the Fast Track, it is possible that environmental concerns will not figure at all. This week’s Freshwater Bill even shows us, in its way, that the Fast Track environmental considerations will be weakened, announcement or none: otherwise we would have the strange situation of this week’s Freshwater Bill angling for “more yesses” for smaller time operators but leaving things difficult for the “big end of town” including big irrigators.

Whatever happens with the Fast Track, we need to remember that this week’s Freshwater Bill changes will only apply to smaller time operators.  So in relative terms these changes should not much matter for the water, at all. 

If that’s the implication for water, then in a “practical” sense the story is similar.  These changes will matter only for small operators in the future. But their consulting bills will not drop a cent as a result of this week’s proposed changes.  In other words, these changes are political only: they will operate mostly to alleviate short term irritation with a perceived “red and green tape”.  They are about looking busy and scratching supporters’ itches.

To see the rest of the picture, we need to ask what, though, if these changes do end up mattering in the end, once the Fast Track picture clears up? This might happen, for example, because of a much diluted or narrowly-focussed Fast Track, or because underlying freshwater settings outlive the Fast Track.  

In this scenario, many are looking at Te Mana o Te Wai issues as if a protection is being lost. As I have said before, this misses the “main game”.

The “loss of Te Mana o Te Wai” may be regrettable for many, as it was long fought for.  It may be most regrettable for Māori who may feel it appropriately articulates a right relationship between tangata and wai. 

The challenge is for freshwater campaigners is to see that the real freshwater protections are not located “in” Te Mana o Te Wai at all. 

If that seems sacrilegious to some, then let’s start an explanation by getting the easy objections out of the way first.  

Some will say Te Mana o Te Wai is very powerful, or that there is no way to tell yet.  On this account, its loss is grave because it could have important prospective effect, could be used to make a better future for freshwater. In a funny way, by deleting it the government shows it shares this view, or wants to be seen to do so. 

To that, we might observe that Te Mana o Te Wai has been in the NPS since 2020.  If indeed it is such a powerful freshwater protection, a question is raised. Why, we might ask, has it not been asserted to stop freshwater decline in its tracks from 2020, or even to reverse them?  There are many possible ways this could have been achieved. Many of these could have side-stepped Te Mana o Te Wai’s prospective characteristics. And many of these could have avoided the normal legal quagmires in plan change or consent proceedings (the very same proceedings that many were encouraged into by recently-cancelled ELAF funding). There are even templates gesturing at how these kinds of cases might have worked. Even if case law has been starting to develop on Te Mana o Te Wai, its effective assertion - with real world consequences - is not what we are seeing.

To be clear, I say Te Mana o Te Wai is a useful rhetorical device. It is a powerful and appealing tool with which to defend freshwater, and any loss like this is to be regretted.  So I too would defend it.  Even if opponents are right that the case for these freshwater changes has not been made out, with limited time and resources, my view that ENGOs are better to get on and use Te Mana o Te Wai, rather than submitting on distracting things like this week’s Freshwater Bill.

The basic mistake with getting tied up this week is to think that “Te Mana o Te Wai dies if it is deleted from the NPS”. With a first principles understanding, we can see a very different picture. 

Another way to view Te Mana o Te Wai starts with noticing that it is key content in the NPSFM.  The NPSFM is key “secondary legislation”, like a regulation.  Regulations are made by the executive government, and they are constrained by their empowering Acts made by Parliament. In the NPS’s case, this means constrained by the RMA.  Speaking approximately, then, the NPSFM can do no more and no less than what the RMA asks of it.

What does the RMA ask freshwater regulations?  Readers will know that lawyers could argue for years about this.  I will make just two observations here. 

First, the RMA has an open-textured purpose that appears to pull in all sorts of directions, but detractors of Te Mana o Te Wai say that it pulls in just one direction, that of freshwater quality.  If they are right, then Te Mana o Te Wai would exclude all other pulls – for example the pull to economic prosperity.  All this raises a question:  if that’s correct, would including Te Mana o Te Wai in an NPS in 2020 even have been lawful in the first place? 

Needless to say, there are cases aplenty with reasoning on which one could make such an argument. But we can infer: 1) from the fact that that it did become a key part of a key regulation in 2020; 2) from the lack of cases asking the legality question; 3) and from this government’s preference for law change over some targeted disallowance by simple resolution of the House, that this is not a strong position. 

In other words, Te Mana o Te Wai would seem to do “no more” than what the RMA asks of it in a general policy sense.

A second observation.  Often in law the special will be said to prevail over the general.  So what happens when we get into RMA’s specifics on freshwater?  As explained in previous weeks, what happens is that we find qualitative freshwater bottom lines with explicit lineage going back to 1967.  These have much deeper roots indeed, going back into English common law certainly.  And to the extent tikanga can be generalised, these provisions perhaps even bear a family resemblance to some tikanga.  In this sense we might ask: “Does Te Mana o Te Wai do any less” for freshwater than what the Act asks of freshwater regulations?”  

Given the old bottom lines, there is a good argument that the answer is “no”. On this view, then, Te Mana o Te Wai arguably does no more and no less than the RMA asks of its freshwater regulations.  Put another way, Te Mana o Te Wai is “in” the RMA whether or not it is in the NPSFM. And in turn, the RMA evokes ancient common law. Put more metaphorically, water has mana whatever some piece of secondary legislation might say. It might even retain that mana unless a statue explicitly kills it.

This should all be comforting for freshwater campaigners, because it would mean that the RMA’s freshwater law would not lose real strength with the mere deletion of Te Mana o Te Wai from the NPS.  The price is recognising that neither did the RMA’s freshwater law really gain any real strength with the introduction of Te Mana o Te Wai into the NPS in 2020. 

On this view, Te Mana o Te Wai has a different role than that of totemic figure or scared cow.  Its role is to have made another articulation of what has always been and remains in the RMA; an articulation many will see as appropriate to 21^st century New Zealand. This view also offers the twin attractions that Te Mana o Te Wai will not die at the hands of this week’s Freshwater Bill, and will be very difficult indeed to kill.

This view explains why this week’s freshwater changes are fundamentally a distraction. 

Relationships with Whenua   

I wrote a few weeks ago that these weekly efforts wouldn’t just take in law, but also lore and some small contribution to the conversation on “how best to be” down here on this island. 

Having stuck mostly with law so far, one or two people have asked me “where’s the other bit”?  To be clear, when I mentioned “how best to be” I wasn’t looking to set out principles to live by - more to describe my own relationship with this place, something which readers might (or might not) ask themselves about.

There’s an endless amount to say about all that, as an example over Matariki weekend served to remind.  On the Saturday I had the chance to walk up the hill out of Lake Hawea with an old friend and a new one.  We started near John Creek, below the grey ceiling of the “inversion” so common to the Upper Clutha winter.  On the way up we enjoyed the varied conversation a new group inevitably brings.  As if to embody an hour of that magic, there was Brocken spectre on emerging into the open world above.  And rounding out the climb, the likes of Castor, Pollux, the Ice King Tops and Aspiring rose out to the west.  Not to make any comment on the conversation, this was almost best of all for me, with the distinct feel of an airport arrivals lounge, of reuniting with a loved one after a long absence.  That rush of sheer joy, flashes of raw memories of all kind, that capacity for surprise on seeing a familiar face anew, and that kind of comfort as the conversation settles almost immediately into a phase surfacing fresh stuff in a familiar rhythm.

Time and energy dictate leaving off there for now, but those so inclined can find further stumbling efforts on this theme – which I believe is important for anyone who loves the New Zealand whenua – in a recent edition of FMC’s quarterly magazine Backcountry (see page 18).

Housekeeping

Finally this week, two housekeeping notes. 

First, I have not been on any social media for many years, except recently LinkedIn.  I do not post this material anywhere but LinkedIn.  I have noticed that LinkedIn has many of the same issues of other platforms, just with a professional intonation.  One such issue – and credit to my wife for the pithy observation – is that either the algorithm or users or both value a new thing, a change, a “bang”, far over plugging away.  True to this, I noticed an apparently warm reaction to my starting these efforts a couple of months back, with reaction receding to almost nothing now.  I recognise, of course, that this could indicate a low quality of writing or a niche subject-matter or style.  This change could indicate something at readers’ ends also, and in my observation many of us say they feel life getting busier each year.  Of course, there is the inevitability of some algorithmic aspect also. 

As outlined my hope is to create conversation starters.  Some have gotten in touch, and I reiterate the invite.  I also reiterate the invite to widen the conversation by sharing. I care more about the quality than the quantity of the conversations coming out of this. Stats are not the object. But of course, my hope is that these views could offer a fresh perspective to many.  And as many have said to me, it’s up to us to share with friends or colleagues if we think they might like to partake – the online platforms won’t converse for us.

Second, writing this kind of thing publicly and once a week is a tough but valuable discipline. Some people have said they aren’t into reading it so often, and again the stats are showing that a bit. So again in that spirit of conversation, I want to find a good medium for frequency, just as long as it’s consistent. Please let me know if you have views this.