The Hurunui Water Project
Your story of Andre’s friend and his allergies was beautiful; an adventurer who is not able to adventure
anywhere there is pollen. Excellent. So where does he go? The Sahara and Greenland, of course. And how did that turn out, exactly; sitting by a fire made of shrub wood and Muskox dung, staring at a seventy foot moraine of ice, and not a tree for a thousand
miles? For you, bloody perfect. For me, it would still have to be Lake Sumner.
We went there once to spend Christmas far from the madding crowd. It’s three hours of tussock flats and gnarled matagouri, and then the last mile
cuts through thick scrub and old beech stands where ancient vines rope up into the overhanging canopy like pythons. We emerged suddenly from the cool, moldering bush to find the lake spread before us. It was like falling; a kind of vertigo that had you reeling
for an instant. Breakers from the winds that funnel down this glacial valley have thrown the crisp shingle beach into shallow undulations where bleached shards of beech wood, enough for a thousand billies of tea, line the high water mark. We pitched our tent
in a sheltered niche and brewed dinner over a bowl of glowing embers while the sky turn green.
During the night the wind died and in the morning the lake lay before us trammeled with just the echoes of bellbirds and the occasional dimple
of a rising trout. The only other movements were a couple of sooty shags making their way down to where the lake empties out in a satin knurl; and a mile across from us a few faint cattle foraged in the narrow hem between forest and water. The sky was clear
except for a couple of small clouds close to the divide, indicating a rising late morning breeze, but nothing more than that. I stripped and stood at the edge of the water shading my eyes against the reflections, peering down to where the shingle banked steeply
into blackness. A thin forest of delicate green tendrils floated upward to within a foot or two of the surface. They were flecked with pale water flowers. A few dark twists of beech wood lay amid them and I guessed an eel or two were snaking around down there.
I put taniwhas out of my mind, tilted forward and clumsily split the satin surface. The water was warm enough for a foot or two but it was ice cold beneath that sun-soaked layer. I was quickly out again and hunkering by the fire as Ali dropped a palm full
of fine grounds into the billy. She let it stand for a while and then poured it through a silk scarf into two tin mugs. As we sat together with our cups in hand at the edge of that vast pool beneath an untroubled sky, we were, in that moment, the wealthiest
people on the face of the earth.
Half a day’s walk south of Lake Sumner will take you to Esk Head station. A few years ago an expat economist millionaire called David Teece bought it, supposedly in order to facilitate the damming
of the south branch of the Hurunui. It was his way, it has been implied, of giving a little back to the country that had spawned him. But you would have to be a little green around the gills to take this at its sentimental value only; water schemes are
not at all unfamiliar territory to Mr. Teece.
Two hundred farmers have signed up to this scheme, and over the last three years they have held numerous ‘woolshed’ meetings around the district to work out among themselves the
apportioning of the coming wealth; while their spokesman, Waikari farmer Mike Hodgen, deals with the detail of acquiring it. As I say, these farm meetings have been secretive affairs, no ‘environmentalist’ has ever been invited to attend. The first
rule in cases like these is to keep the public at arm’s length until the last possible moment, and the last possible moment is the consents application process which requires public notification. But the Hurunui Water Project has drawn assistance from
the district rates, which include many people who are not farmers, and over half a million dollars of tax payers’ money which has been poured into the scheme through the Sustainable Farming Fund. One would assume that where public money is involved in
a process, the public might be invited to take part. They would say, of course, that we were; that they went to extraordinary lengths to consult with the community. That’s what they would say.
I see it differently: Consultation in its true form
no longer exists in this country. The Hegelian idea of creating synthesis out of opposing ideas is too damn democratic for us it seems. Instead, ‘consultation’ has morphed into ‘presentation,’ and presentation is another creature altogether.
Here’s how it works: Someone with a fast-food franchise, for example, comes to town and meets with the people. ‘Look, we have this project we want to set up right here in Main Street,’ they say. ‘Here is the model for
it, here are the consents. If you have any worries about any part of it then tell us today, and tomorrow we’ll bring you someone with a PhD in fast-food and small communities to tell you why your fears are groundless.’ In this way, presentation
seeks to bend the community to the shape of the project. Consultation, on the other hand, asks how the project can be remade to best meet the shape of the community. If the Hurunui Water Project goes ahead in its proposed form, it will bend this community
to such an extent it will be unrecognizable.
Three years ago I met with Hodgen at his home to discuss our different points of view. Mike is a third generation farmer. He’s stocky and hirsute with a thinning pate. He’s cuddly as a teddy
bear and muffled in an habitual home spun jersey. His eyebrows slide down from his wide brow in an attitude of surprise, or apology, or as if in the act of delivering unsavoury news to someone whose feelings he doesn’t want to hurt. It’s altogether
a deceptive brow. Mike is a joker who prefers the joke to be on someone else. He used to solve his differences by punching heads; these days he punches with his mouth, employing a traditional form of bucolic wit that has been lovingly documented by social
historians such as Carl Sandburg and James Thurber. You would call it schadenfreude. A typical meeting with Mike at, say, an evening water forum might go something like this:
whatta you doing out of bed so early?’
‘What are you doing out of bed so late, does your mother know?’
‘Geeze, wish I had all that art funding coming through my mailbox every week. I get tired
crutching sheep, I could do with a bit of a lie in. Ha, Ha.’
‘Then why not cash in daddy’s golden gift like a good trust-fund baby and go to sleep for ever?’
‘Listen, I never got given a
thing, Sam,’ says Mike, his eyebrows shifting to the horizontal position, ‘I had to work for my farm, unlike most of the pooftas that came out of that school of yours.’
And that’s all quite true. Nevertheless we should be talking
about water, trying to find a way to agree instead of wasting time, but we tend to wit our way around the hard talk and for the rest we just biff pine cones over the woolshed.
Thirty years ago Mike spent a short time at Lincoln College,
studied a little, learned a lot and got exceedingly drunk. And how would Mike described me? Well, just a raggle-taggle tree hugger I guess. ‘A waste of time.’
The meeting at his farm was friendly enough. ‘We can talk,’ he said.
‘But I’m not comfortable being recorded.’ He grinned, ‘Not after some of the things you’ve written about me lately…’ Two weeks earlier we had both submitted articles to the local paper. He had repeated his assertion
that water was needed for the welfare of the community and the sustainability of farming in our district. I focused on the issue of consultation. This is an edited version:
A school group came up from town to discuss sculpture a few weeks ago.
After an hour we adjourned to engage in a practical study of the more serious art of soccer. As we walked to the field I noticed a debate going on concerning who would play against whom, who would be striker, who would be goalie etc. Then one boy stood aside
from his mates. ‘Listen,’ he said, ‘We can please one of us, or we can please the whole team. What’s it gonna be?’ This eleven year old boy had just enunciated for me one of the primary reasons why the issue of water has become
so fraught. No one is trying to please the whole team…
Mike Hodgen told me a lovely story once about how he had heard of a plan to break in to his café in Hanmer and make off with the cash register. Mike, not entirely trusting
the apparatus of the law, took it upon himself to defend his property by sitting out the felonious night in a lonely vigil, a flask of coffee in one hand and a baseball bat in the other. It’s a romantic image and it will make a fine painting one day.
Given a similar lack of faith most of us have in the apparatus of environment law, I imagine Mike would crack a grin of understanding if he were to find one day a couple of hundred stakeholders lining the banks of the Hurunui similarly prepared
to defend their property. Hopefully things won’t get that far out of hand. Hopefully someone will have the wit to employ that eleven year old kid as a facilitator. ‘Hey, you guys’ he’d say, spreading his hands. ‘It’s like
this; we can please one of us, or we can please the whole team. What’s it gonna be?’
A few days later The Farmers Weekly described my article as ‘a stinging attack.’ And a farmer down the valley suggested that if they
were ever going to get irrigation they’d need to shoot Sam Mahon first.
‘You know you really piss me off,’ I said to Mike. ‘You make our life here bloody uncomfortable. It seems I’m not allowed to hold any
form of opinion that differs from the agricultural brotherhood. Do you have any idea what a bullying community this has become?’
‘Well, that article of yours didn’t do me any favours either,’ he said. ‘People
around here are starting to look at me sideways. Coffee?’
From where we sat in Mike’s living room we could look out across beautiful fields of autumn pasture tinged green with the recent rains. There was a lake slung in the
lap of the low hills half a mile away where huge bergs of limestone stood as lonely as Easter Island heads. We talked about the history of the irrigation scheme, how it got started and how it got passed like a football along a staggered line of desperate men,
and how the touchline seems as far away today as it was six years ago.
‘And you still reckon you don’t have the answers to our questions?’
‘Not the details, no.’
spending a million odd dollars on feasibility and desk top studies the model of their irrigation plan is still heavily pixilated, with answers to some of the most rudimentary questions still missing. And it seems true; I have spoken to a number of farmer shareholders
living in the area and everyone has a slightly different story to tell. Some say there’ll be no dairy farms, others say the scheme can’t work without it. In three hours we covered a lot of ground, moving bits of the jigsaw, filling in the little
gaps where we’d been putting our best guesses. And of course Mike wasn’t giving everything away, and I didn’t expect him to.
Two days after this meeting, the chair of Canterbury Fish and Game, Martin Clements,
turned up at the Mill. I told him about our talk and how I’d asked Mike to supply us with some of their feasibility work on using the upper Waitohi as a reservoir. The Waitohi is a minor tributary of the Hurunui and it had been passed over because it
wasn’t close enough to the Alps to make it a reliable catchment. I had asked Mike about the idea of supplementing it with flood flows from the Hurunui. He said they’d looked at that. I wanted to look at it again with our own engineers.
‘Siphoning flood waters from the Hurunui into the Waitohi would be a way of meeting them on the middle ground,’ I said. ‘They’d get a smaller scheme, sure, but they’d get something. And if it avoids damming the Hurunui then damming
the Waitohi is a small price to pay, especially if we get the lower half of it flowing again as a trade off.’ Martin raised his eyebrows and nodded. He turned away and looked out toward the hills of Tekoa fifteen miles to the north where they run down
to the beautiful still waters of the gorge.
‘Sam,’ he said. ‘let me tell you a story.’ I settled back in my seat. I suspected that I was about to receive a mild telling off. I was right, and it was delivered as a
‘When I was twelve, mum would to pack me lunch and I’d cycle off to the Avon or the Heathcote or the Cashmere stream to fish, and in those days they were good fisheries and it occupied me all day.
The Cashmere stream flowed through a dairy farm and for us kids it was a little bit of paradise. Today it’s nothing more than an urban drain, just like the Avon.
Then when I was a bit older I’d cycle further afield to fish the
south branch of the Waimak and the Styx. Today only the south branch fishes.
But then I got wheels, and I began fishing the rivers flowing into Lakes Forsyth and Ellesmere:’ Martin raised a large hand and started flicking out
fingers, ‘The Okuti, Okana, Forsyth, Kaituna, Halswell, the L2, Selwyn, Irwell and Hart’s Creek.’ He shook his head. ‘But progressively, over the last decade and a half, all those rivers have largely gone. Today Forsyth and the Okuti
have notices on their banks, warning the public to avoid skin contact with the water. Most of the other rivers have either been abstracted dry or degraded to the point where they are no longer valuable as a fishery. Of all those rivers, only Hart’s Creek
and the L2 have any semblance of their former selves. I don’t go there, they’re not attractive anymore.
So then I began to move even further afield, to the rivers around here; the Waikari, Ashley, Waipara and the Pahau, and
across to the Hawkins and the Hororata. Now of those rivers, only the Ashley in its upper reaches is any semblance of the fishery it was.’
He turned his gaze back to me. ‘In less than the course of my lifetime all these rivers
have been lost. I no longer have the opportunity to enjoy them, and I think that’s rather sad.’
A grin creased his weathered face. ‘And you’re talking about middle ground?’ He chuckled and I imagined the snik
of a safety catch. ‘We have made too many compromises already, Sam. We’ve lost too much. It’s time to say, “No more.” ’
When the commissioners were appointed under the Ecan Act all the rules changed.
Canterbury was cut like a pizza into ten zones with committees appointed to each slice. They were tasked with designing models for water storage and distribution within their areas. These committees were supposed to represent a cross-section of community interests.
Mike Hodgen was appointed to the Hurunui Zone Committee. I applied, of course, but was weeded out before the first interview. ‘Quite right.’
And so the declination began. It was like bumping down a flight of stone steps on your
arse as one by one the impediments to intensive irrigation were removed. Meantime, Amanda Loeffen, HWP’s manager, continued to issue press releases in our local papers, effectively turning them into promotional billboards. It was good strategy, it seemed
to work. I tried it:
“Sir, with regard to the Hurunui Water Project, and the search for a water storage compromise, I feel it is time to sift a little silt from the turbulent waters in which the Zonal Committee seems to be floundering.
As your article of Wednesday Oct 19 points out, the farmer led irrigation lobby in its different guises has been trying for ten years to come up with a storage scheme on the Hurunui. They have been told repeatedly by Ecan and DOC that fiddling with Lake Sumner
will just not do. Saying that they will hold the lake level at its ‘natural high’ sounds innocent enough. But the ‘natural high’ comes and goes, it is never held, not naturally. Holding the lake at something approaching half a metre
above the annual mean will kill all the trees around the perimeter. This is not simply green hyperbole, HWP’s own engineers agree.
At the Zone Committee meeting of Monday 18th October 2010, following a presentation by the
Kayakers association, chair of HWP, Mike Hodgen, addressed the kayakers in words to this effect: “If you don’t like our scheme, why don’t you come up with something better?” Whether or not it was a rhetorical remark, conservationist
Edward Snowdon took it in the spirit of true consultation and rang engineer John Rice to ask if he would like to accept Mike’s challenge. Within four days Rice had drafted a scheme for storing water in the Waitohi gorge, a scheme previously deemed impractical
due to the costs of pumping from the Hurunui. Rice’s scheme, however, showed that if you pumped at times of low power cost and then ran the water back down the same generators at times of high cost, the electricity price could be negated or even turned
into a gain for the irrigators. It took him two months to polish the idea and when it was presented to the zone committee it met with almost unanimous approval. Ecan liked it, the commissioners found no fault with it and Meridian offered financial backing
for further investigation. More importantly, the conservationists could live with it. It seemed at last we had established a workable compromise.
Ten years and a great deal of taxpayer’s money had been spent chewing on the old bleached
bone of Lake Sumner. Two thousand submissions had been made to the Water Conservation panel against the Hodgen scheme with only 200 in support, the approximate number of his shareholders. And yet HWP seemed intent on ignoring public sentiment and continued
to swim doggedly against the rising tide of public opinion.
It should be remembered that the evidence had already been fairly weighed. It had been weighed intricately by an independent panel which found that Lake Sumner met the high test
of an outstanding natural body. It took Nick Smith’s intervention and the Ecan Act to put the wind back into HWP’s sails.
In the face of pragmatic law making, and not withstanding the dismembering of the collaborative process,
conservationists are still engaged in finding a ‘best outcome.’ How ironic, therefore, that a conservationist should solve a problem that has vexed the irrigators for ten years, and do so without using one dollar of taxpayers’ money.
Hodgen complains that he has been pushed into the Waitohi option by the Zone Committee, and that it will be too costly. He shouldn’t worry; what the Zone Committee decides is only ever a recommendation. Smith can turn up tomorrow like
a fairy god-mother, wave his legislative wand, and cause the Zone Committee to vanish if he chooses. But what a shame if that were to happen: HWP would simply drag its shareholders back into the Hurunui headwaters and like spawning salmon continue their graceless
fumbling amid the turbid shallows of expediency.”
Rule of Law
‘Law never made men a whit more just. And, by means of their respect for it, even the well-disposed are daily made the agents of injustice.’
your lake. I love to think of it from time to time and your cottage there surrounded by dogwoods and meadows of rank grass, especially in spring. I’m sorry to hear those old problems hang above it still like winter mist. I would have thought the pretty
Doris Leuthard would have wooed the entire Bundesrat on to your side by now. There must be lakes all over Switzerland in the same kind of trouble.
I biked to Halwil once. You were at the university so I went alone. I paused for coffee at
the hut and then started running; it was such a beautiful day. The track was over-arched by trees and their translucent leaves were newly unfurled. There were motor-scythes puttering in the hay fields with sturdy farmers in broad straw hats trudging along
I think it was twelve miles around the lake and I was used up by the time I got back. That night you played again, and afterwards I asked you about the pump houses. There had been three of them equally spaced around the lake. You
said they were there to keep the water oxygenated, that it was polluted with nitrates from years of intensive farming. The pumps were there to feed air into the water for the same reason you feed air into a gold fish bowl, to keep it alive. Without them, the
lake would die and it would cloud over with a mat of algae, The blood of Burgundy. What a lovely name.
And this is what frightens me most: in your country, in most of Europe, and especially in America, these lessons have been learned.
For example, Denmark is the same size as New Zealand with the same population. Twenty years ago it went through the same mad intensification and lost all its rivers and eventually its seaboard. It has taken them all this time to get back half of what they
lost. We know what’s in store for us if we maintain our agricultural course, and yet we do nothing to avoid it. Thus we condemn our children to a life less lived.
As I said, those few years following our political defeat were bleak. More
and more of our rivers were dying and the Canterbury Regional Council, whose job it should have been to protect them, was unrestrainable. Most of the science percolating to the fourth floor advocated the precautionary principle, but the councillors were deaf
to anything other than the demands of their rural constituents. Making submissions before Council (Ecan) was a consummate waste of time.
So, three years after our first attempt, we tried again. By this time the people had seen for themselves
those notices along the banks of our best rivers warning them not to jump in, warning them that their health would be compromised if their bodies came into contact with fluids leaking from the pores of our unclean land. This time we won. But there had been
a change of government. It had reversed the old order, economy was now the high card and the conservationist lobby on Council bothered it: Who will rid us of this troublesome priesthood?
So the government appointed a panel to review
the Regional Council. That panel was chaired by dairy company entrepreneur, Wyatt Creech, former deputy leader of the National Party. It found the Council wanting, had it sacked, and the National government appointed more of its own people to carry on the
dirty work of the previous administration.
But in the process it had sacked local democracy, and that was unforgivable. So we took to the streets with megaphones and placards. It moved them not at all. Simply put, the law hadn’t
suited them so they changed it. And if they needed, they would change it again.
Your Federal Council is a voluntary grand coalition of political opponents and its operation is subject to numerous constitutional conventions.
You also have binding referenda. We have none of these protections. Parliament here is illimitable, it can do as it pleases. That’s something I knew nothing about until I heard a professor of law speak about it at a university forum which had been set
up to discuss what the government had done to us. He spoke clearly, and he was clearly angry.
On one of those morning walks through the frozen forest at the edge of Aarau, your father said to me that the art of education has little to
do with the answering of questions; it has everything to do with learning to ask them. That’s one of the ways we fight now: We ask questions and then whatever people tell us we write it down in indelible ink. By this documentation, when everything is
gone, our children will know whose graves to spit upon.
I called on the professor a few weeks later. I knocked on the front door and then stepped back to survey the building. That’s what we do these days, we take an inventory
of misalignments, of fissures and broken plaster. Subliminally we place ourselves in the best possible position, afraid of an aftershock, and there had been hundreds. But it seemed this side of town had faired well; it was the eastern suburbs that had been
unlucky, and it was in the CBD that most people had died. Nevertheless everywhere our material world was to some degree broken and from day to day emergency legislation was being crafted to cope with it. And whenever legislation is made in haste, mistakes
Professor Philip Joseph led me through the low-lit interior to a room at the back of the villa. Here the sun splashed about in bright disorder, a broad slab of it lighting the morning newspaper which lay on a table with its latest images of
broken buildings and yet another picture of the mayor in his yellow emergency vest, scrubbed as an altar boy, vowing to rebuild.
On one wall I noticed a lithograph by one of my old art teachers, Don Peebles. ‘It bothered him,’ said Philip.
‘When it came off the litho stone it was reversed, of course. He saw it anew and he thought it was unbalanced.’ And that’s the danger of working on anything for too long, the mind adjusts the deformities until we can’t see truthfully
any more. I remember something Don said as he watched the engineering students passing the painting room on their way to lunch. They were all wearing bushshirts with reams of graph paper under their arms. ‘They’re animals out there,’ he said.
I thought it was a stupid thing to say. After all, if we had art without engineering there would never have been a Renaissance. We need each other, just as the inarticulate need lawyers.
I turned on the dictaphone and laid it on the table
between us. There was no particular order to my questions, there never is. The trick, it seems, is in finding a beginning. Given that the Ecan legislation was nothing more than a political act of convenience, I began with a quote from Robert Bolt’s A
man for all seasons. This edited transcription will be difficult for you to follow, Franzi; it is for me. But it is sense, and sense is rare. So pick from it as if it were a wild apple tree, take what you can as provision against the subsequent chapters.
I promise you’ll be hungry soon enough.
‘Bolt wrote a line for Thomas More that goes like this,’ I said. ‘ “England is planted thickly with laws from coast to coast. If, in pursuit of the devil, you cut a
great path through those laws, then, when the devil is turned around on you, where will you go for shelter?” Law is one of the faiths on which our society is built, I would have thought. You’re a member of the Law Society Rule of Law Committee.
Can you explain what that means exactly, “The rule of law?” ’
‘Well, there are two views: Some describe the rule of law as a very stark, minimalist procedural concept. Others say no, it’s got substantive normative
content. But even the minimalist approach lays down formal requirements of legal rules which are these: law must be general, it must be prospective, it must be reasonably accessible and it must be reasonably stable. To satisfy the last requirement, the law
must not be prone to indiscriminate and/or incessant change. The theory of law that underpins all developed legal systems is that laws must be general in their application and not specific or ad hominem.’
‘You used that expression,
ad hominem, to describe the Ecan Act.’
‘Yes, because the Ecan legislation singled out the Hurunui Water Conservation order. It applies to that particular proceeding and to no others of like or similar standing. So in this case
the law was not general in its application, it was specific. Laws must be prospective in application, they cannot be retrospective because in that case it would be impossible for you or I to organise our affairs to comply with the law.’ He paused. ‘Retrospective
law is like shifting the goal posts after the ball’s been kicked.’
‘Is there any precedent for the Ecan Act?
‘I’m not aware of any, which is of course why it has caused such a reaction
in Canterbury. The resource management process has been running since 1990. But I don’t recall any regional authority having the rug pulled from beneath its feet in this way.’
‘Have you read the initial report on Ecan?’
‘I’d be interested in your opinion. About seventy percent of the people interviewed for the report were farmers or aggrieved councillors and frustrated developers. It was a very disproportionate
survey. I was impressed by the amount of anecdotal evidence it seemed to depend on. And then printed at the bottom of each of these complaints was a cautionary line to the effect that the Commission could find no evidence to support it. It was absurd. Who
are these reports meant to convince?’
‘They’re written for the government, but for a public purpose, of course. I mean the answers you get always depend on the questions you ask.’
you speak to a question once, Is there a future for environmental law? Is there?’
‘Environmental law is not my particular area of expertise,’ said Philip and shrugged. ‘Really, I can only speak from a constitutional
point of view.’
‘Well, I would say that most New Zealanders don’t realise we have a constitution. I didn’t. Do we?’
He grinned and tapped the cover of a thick volume that lay
on the table beside him. ‘I hope so,’ he said. ‘I wouldn’t like to think I’ve written thirteen hundred pages on something that doesn’t exist.’
‘Alright. So if the constitution is a solid
and very real entity, and this act of Smith’s affronts it as you say, then shouldn’t someone be taking the government to court?’
‘Well, there is a short answer
to that; we labour under a bizarre doctrine called parliamentary sovereignty. We’re one of the few countries in the world with a sovereign legislature whose powers are absolute and illimitable. Our Parliament can enact anything. It can square the circle,
or as Dicey said, it can commit all blue-eyed babies to death at birth.’
‘Dicey wrote in 1885 the definitive text which has had huge influence throughout the commonwealth jurisdictions,
including New Zealand, and he gave legal definition to the concept of parliamentary sovereignty; that Parliament’s powers are unchallengeable and illimitable. You can’t limit them because Parliament has continuing sovereignty. If you limit Parliament
it is no longer sovereign. In so far as Parliament passed this statute, the Ecan Act, it’s a valid, effectual law. You cannot challenge that law.’
‘Ah, but you have said there was one power greater than Parliament: The
‘Well, this is where it gets a little more complicated. As Dicey points out, you have to separate the political sovereign from the legal sovereign. Now the legal sovereign is Parliament and it can enact any law it
wants. But the political sovereign is ultimately the people, and clearly, although Parliament could enact a law along the terms of, say, death to all blue-eyed babies, the political sovereign would never allow that to happen; the people would have to take
leave of their senses to allow Parliament to do that. So the theory disconnects from reality. That’s what Dicey was saying. But now, with the Ecan Act, reality has somewhat coalesced with theory because it was a constitutional affront, and yet
you can’t challenge it.’
‘You wrote a paper for the New Zealand Law Journal on the Ecan Act. Why were you moved to do that?’
‘When the Ecan Act was passed, the Chair of the Rule of Law
Committee asked if I’d have a look at it. I soon realised it was riven with rule of law issues. And because these issues were so far reaching, the chair suggested I publish the report as a stand alone piece. Now, I take a very different view of that
legislation from the earthquake emergency legislation, which is something very different. Law is applied sociology in a sense, it’s entirely contextual. So if you look at Canterbury post-February, it’s like a war zone. These are extraordinary times
with huge property damage and loss of life. And sometimes extraordinary times justify extraordinary measures. But that cannot be said of the Ecan legislation - there was no emergency, exigency or other extraordinary circumstance that might justify the measure.’
‘Are there any parallels here with America’s Patriot Act and the subsequent undermining of civil liberties?
‘I agree with some academics who say that it is in times of emergency that you must be most
vigilant in order to safeguard your liberties. Perhaps that accounts for the agitation shown by the 27 legal academics - I was not one of them - who signed the open letter following the September quake. They objected vociferously to the legislative response.
But, none the less, you must not lose sight of the utility and purpose of the law, and to use it to maximize the social good. In terms of the earthquake legislation, the social good was to get Christchurch back operating again.’
isn’t social good a little like the term common sense? It depends on who’s making the assessment. For example, Nick Smith created the Ecan Act as a tool to dismantle the barriers against massive irrigation systems in Canterbury.
I suggested to him that these proposals stand to destroy small communities like mine. He replied that it was for the public good. I also asked him how, as a defender of private property rights, he could support the compulsory transfer of private property in
the central plains to a private company. He said the same thing; that it’s for the public good. How do you challenge that?’
‘With difficulty. All government action must be for the public good. But there are processes
and procedures to be upheld, and these are ultimately our protections.’
‘Well, there is a certain weariness in those of us who have been trying to fight for environmental
protection by following the paths of due process. When the path is shifted under our feet, how can we regain our faith in the rule of law?’
‘Well let me give you an example of the rule of law in operation: You may remember
that in 1975 Muldoon campaigned for election principally on the Labour government’s superannuation legislation. He didn’t like the employer/employee contribution system and said that when he got into government he would repeal the Act. On December
12, 1975 he was duly sworn in. Three days later he gave a press statement saying that the superannuation scheme was at an end and that no further contributions were to be made. As a result, the board administering the scheme disestablished it. Muldoon also
said that when Parliament was called in the new year he would repeal the legislation retrospectively to that date. Fitzgerald, an employee in the Education Department, brought an action in the High Court. The Chief Justice, Sir Richard Wild, held that Muldoon
had acted unlawfully, that he had breached Article 1 of the Bill of Rights. Now, you ask me if we have a constitution; the answer is “yes.” The 1688 Bill of Rights was an enactment that was part of the revolution settlement in Britain. It was initially
proclaimed to the people as a declaration of rights to extirpate the abuses of the Stuart kings. When New Zealand was established as a colony in 1840, under the common law principle of settlement, the settlers took with them such portion of the English common
and statute law as was applicable to their new situation. Along with that inheritance, we not only inherited the Bill of Rights but also Chapter 39 of the Magna Carta of 1297, which is for some the foundation of liberty: No free man shall be disseised of his
life, liberty or property without due process of law. Article 1 of the Bill of Rights outlaws the pretended power of suspending Acts of Parliament by pretense of the prerogative, which was the legal ground of decision in Fitzgerald v Muldoon.’
‘The Stuart kings, if they didn’t like a statute that Parliament had past, would simply say, “oh well, I’m suspending that by royal proclamation.” Or, in individual
cases, they dispensed with the laws regarding particular individuals. The revolution of 1688 erupted the moment James II decided to dispense with certain laws prohibiting Catholics from public office; Article 2 of the Bill of Rights actually outlaws the pretended
power of dispensing with laws.
So here we have Muldoon, in 1975, purporting to stand in the shoes of the Stuart kings by suspending an Act of Parliament. Now, you ask me about due process; here, Muldoon had clearly not followed due process. He could
have ended the superannuation scheme through the proper channels, through Parliament assembled, but he chose to do so through royal decree, his decree. It’s very interesting; Sir Richard Wild granted the declaration in June 1976 before Parliament had
been assembled. Parliament didn’t assemble, in fact, until July. This, I suggest, is somewhat incredulous. You’re talking about eight months after Parliament was dissolved. Wild CJ gave the declaration that Muldoon had acted unlawfully, in breach
of this ancient statute, but declined the further mandatory orders of mandamus to compel the superannuation board to be set in place once again and reinstate the superannuation scheme. Muldoon had about a 2/3 majority in the house, and as the Judge said, by
the time they started cranking it up into operation again, Parliament would be assembled and would pass the necessary legislation to abolish the scheme. Nonetheless, the case was a vindication of the rule of law. Muldoon’s action might well have been
for the public good; after all, the public had voted Muldoon in on the promise to end the superannuation scheme. But he’d used the wrong channels.’
‘So how does the Ecan act measure up against the rule of law?’
‘Well you have to begin with the standards the rule of law implies. The Ecan Act was retrospective in its effect on the Hurunui Water Conservation Order application, and it was also retrospective in regard to changes to the regional
policy statement and district plans. The act was retrospective in effect because once you set in train a statuary process, then the policy of the law is that the statutory process must be followed through to its completion. The special tribunal had given its
recommendation on the Hurunui River application and the next step was the Environment Court. Everyone, I think, was in the midst of exchanging notes of evidence when in came the Ecan Act and said no, all bets are off, the decision will now lie with the appointed
commissioners. Well, that was retrospective. The whole thrust of the act was retrospective. Moreover, section 31 was a Henry VIII clause which said to the commissioners that they can pick and choose which provisions of the RMA will apply and which won’t
apply. Such clauses are probably the greatest affront to the rule of law; because a decision-maker can say, “Don’t like that law, so I’m not going to be bound by it.” ’
‘And yet they exist.’
‘Henry VIII clauses allow the executive, by order in council, to override or oust Parliament’s primary legislation. The subordinate (The executive) can override the principal (Parliament). Henry VIII laws are constitutionally permissible
as transitional measures only where you get a whole legislative scheme introduced and then find it has unfortunate flow on effects that were never anticipated. The clause can then be used as a speedy way to make amendments to these other related statutes and
bring them into line.’
‘In that case would you go back to the Parliamentary debates to find intent?’
‘You could. But when you have a statutory scheme that has far-reaching consequences not all
the legal implications can be seen in advance, so sometimes you need a tidying up measure. It’s all very benign as long as they’re not effecting substantive legal changes in their own right; as long as they’re used as innocuous tidying-up
I shook my head. It was all very depressing. ‘When the Water Conservation Order for the Hurunui was placed in the hands of government appointees, we lost faith in the possibility of a fair outcome. So we abandoned
the conservation order in favour of the Natural Resources Regional Plan and the Canterbury Water Management Strategy. The reason being that both the plan and the strategy have a set bottom line that there shall be no structures in main stems of braided rivers.
That should be our protection, that was the protection we were seeking from the water conservation order. But if the commissioners are now able to say, again and again, “Ah, well, we’ll just take this little piece out,” then what are we left
to work with?’
‘Clearly your problem is section 31 of the Act: Let me quote from my law journal article: “Regulations made under this section enable the minister to pick and choose what law will or will not apply to the
commissioners. These regulations may suspend the operation of specified provisions of the RMA which regulate the functions and powers of regional councils. Such regulations need not be of transitional effect only, as the title of the section ‘transitional
regulations’ would have us believe.” Now this was more than a minor subterfuge. The heading to section 31 was ‘transitional regulations’ but these regulations are not transitional at all. The section continues: “…Section
31 regulations may be made for a specified period of time…” which might suggest they’re transitional, “…or in specified circumstances,” which suggests they need not be transitional.
In my law journal article, I
quoted the Legislation Advisory Committee which stipulates in its general guidelines for legislation, that Henry VIII clauses may be used only in exceptional circumstances. The committee recorded the situations which might justify their use, but the Ecan Act
fits none of them.’
‘You describe this legislation as fraught law. Can it be repealed?’
‘Of course it can, and I think it should be.’ He shrugged. ‘But the political decision has
been made and it won’t be revisited. And, unfortunately, there will be a cost to all this; the two lasting implications of the Ecan Act will be the negative impact on local government democracy and on the rule of law.’
It was well past midday by the time I left the professor’s house. I had parked the car at the edge of a small tree-lined park. Cicadas were busy in the leaves above me, grinding relentlessly at the rusty edge of summer. Across the park mothers strolled,
their children dancing around them like puppies. To the west, although I could not see it, a little river ran.
This used to be my wild world. A very long time ago I came here to fish with a home-made rod and lumps of damper on a rusty hook.
I knew nothing of mayflies or hellgrammites then, I came simply for the wind in the willows. And the river, small as it was, yielded an infinity of treasure; black mussels half buried in the roiling weed, coins, mysterious bottles with marbles in their necks,
and from time to time an elusive blue crayfish. Once I saw the rat himself paddling effortlessly upstream slipping through the reeds beneath my feet. I leaned out to watch him pass and fell in. Somebody’s mother pulled me out and asked if I was all right.
I didn’t answer. I walked home with my pockets full of water, my clothes sticking to my body like kisses, and my chin up, trying hard not to cry. There were chains slung low between the posts at the edge of the park. They were wreathed heavily in ivy.
I used to imagine these as an infinite line of children holding hands against me.
And I remembered the day my mother brought me there to try out a new kite. It would lift feebly into the air, flap like a broken bat and then dive for the
ground. I knew it was possible, of course, for a scrap of tissue to be hung against the empty sky like a picture in a gallery. But it was many years before I understood the principles of flight, and they kept me alive during the time I flew microlights over
the broken landscape of north Canterbury. As you know, the principles of flight cannot be manipulated; if you try, it all ends in a cortege of unhappy people. And it’s in this context that the story of Muldoon v Fitzgerald nettled me. Because
even although Chief Justice Wild had found Muldoon’s action unlawful, the superannuation scheme had not been reinstated. Contrary to legal principle, Muldoon had got his way after all.