The Environment Canterbury Temporary Commissioners and Improved Water Management Act

Its no longer a bill. At 7.50 p.m. I switched to Parliament TV and watched the last few speeches of the third reading debate. Lianne Dalziel was fairly good.

The third reading debate concluded and the matter was adopted at 7.59 p.m. with National, ACT and United voting for and Labour, the Greens, the Maori party and Progressive against.

Environment Canterbury Temporary Commissioners and Improved Water Management Bill became law just in time for me to switch channel to "The Big Bang Theory".

The Environment Canterbury Temporary Commissioners and Improved Water Management Bill

I am quite concerned about some aspects of the Environment Canterbury Temporary Commissioners and Improved Water Management Bill. (Oh no another awful acronym, the "ECTCIWMB"!)

Under Part 3 of the bill, Dame Margaret Bazley and the Environment Canterbury commissioners will become the decision maker for the Hurunui Water Conservation Order application when that process is perhaps 80% complete (Tribunal compromise decision with Minister) .

Water Conservation Orders were the only part of RMA deliberately not subject to Part 2 (sustainable management) of the RMA, as the statutory purpose inherited from the previous legislation is preservation in the natural state of nationally significant rivers. Dame Margaret's decision on the Hurunui River WCO must consider 'sustainable management' and the principles of the Canterbury Strategic Water Management Strategy.

And there is of course the Hurunui Water Project suite of storage and irrigation consents notified at Ecan, which cannot co-exist with the Hurunui River WCO if approved in it's current form.

This part is a major change to the water and rivers framework of the RMA that is nothing to do with Ecan's jurisdiction or performance. It is being rammed through Parliament without due process. It's an affront to due process for Fish and Game (as the Hurunui WCO applicant) to have the legal process (and goalposts) changed at the nearly the end of the process.

It's also an affront to the transitional practice that has applied to all previous (overly numerous) amendments to the RMA: that the process for all applications and plans are 'grandfathered' with the version of the RMA that existed on they day they were lodged.

Here's a quote, not from the Greens, but from Canterbury NBR correspondent Chris Hutchings

"The move represents a victory for Irrigation NZ and rural interests seeking control of the region’s waterways for irrigation projects involving the Hurunui, Rakaia, Waimakariri and other main rivers."

In respect of that part of the bill, it's hard to disagree.

Environment Canterbury Councillors Gone-Burgers!

With apologies to Jim Hickey and Jeremy Wells, Nick Smith and Rodney have made a decision on the Creech Report on Environment Canterbury.

The decision on the Beehive website and on the Ministry for the Environment website, replaces the councillors with up to seven commissioners to be chaired by Dame Margaret Bazley. Special legislation, an Environment Canterbury Temporary Commissioners and Improved Water Management Bill, will be introduced under urgency in Parliament this week. It will amend the Local Government and Resource Management Acts to give Dame Margaret and co. some special powers:
* to complete the Canterbury Natural Resources Regional Plan (NRRP);
* to decide Water Conservation Orders (the Hurunui River Water Conservation Order is in draft form being appealed to the Environment Court) and,
* to impose moratoriums on consenting over-allocated water resources (with the consent of the Minister).

The commissioners will govern Environment Canterbury until October 2013 (for a complete 3-year electoral term).

There is a Q and A sheet (pdf).

Scoop has coverage, as does Fairfax/Stuff.

Alec Neill, the short-lived Chair of Environment Canterbury has just recycled his previous press release about working constructively to ensure a smooth transition.

Hasta la vista, Alec!

Environment Canterbury's RMA heresy

Claire Browning of the Pundit blog, asked some follow-up questions on my long comment on the Creech Report on Environment Canterbury and its performance in managing Canterbury's water resources. Claire's questions are in italics.

"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 Nick Smith and Rodney 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 Nick 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 witnesses).

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.

Rod Oram on Brownlee's conservation mining

Rod Oram has a good column in today's Sunday Star Times on the Government's proposal for mining in Schedule 4 conservation areas .

A while ago, I was a bit surprised to hear Oram saying to Catherine Ryan on Nine to Noon that he supported a stocktake of the mineral value in conservation areas that are off-limits to mining under Schedule 4 of the Crown Minerals Act 1991.

However, Oram's logic is roughly;
We could be leaders in environmentally responsible mining, the science around it and the high-value downstream products and services flowing from it. Then we could prove that the economy and environment, treated well, can enhance each other.

But Oram considers that this will never happen under the Key National Government because;

• National was vague about its mining intentions at the 2008 election.


• Brownlee only takes advice from mining industry insiders.


• The estimated mineral value, $194 billion, is not credible.


• 'Surgical' mining is not credible.


• Neither is the royalties-funded conservation compensation.


• Nor are the assertions that tourism will not be harmed.

Oram concludes:
..Key and Brownlee are determined to use old-style adversarial politics to bulldoze through their high-risk low-value plans..

I couldn't agree more with that last point though I will point out that Oram leaves out the two important reasons for not going ahead with more mining in conservation areas (whether listed in Schedule 4 or not.

1. Its bad for biodiversity to remove or further fragment indigenous habitats.
2. Its bad for global warming as deforestation of forest for mine sites releases stored carbon.

Canterbury's Urban-Rural Voter Split 2007

In 2007, the 8 urban Canterbury councillors represented 40,284 voters each. The 6 rural Canterbury councillors represented 33,062 voters each.

(Source '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', by Sue Piper (Chair) and Gwen Bull (Commissioner), 10 April 2007.)

Environment Canterbury constituencies 2007 local body election
Constituency	Urban Rural	Population	Councillors	Population/councillor
Waitaki
Rakaia(Ashburton)	Rural	32,480	1	32,480
North Canterbury	Rural	73,620	2	36,810
Selwyn-Banks Peninsula	Rural	36,870	1	36,870
South Canterbury	Rural	55,400	2	27,700
		198,370	6	33,062
East Christchurch	Urban	80,620	2	40,310
West Christchurch	Urban	81,290	2	40,645
South Christchurch	Urban	81,130	2	40,565
North Christchurch	Urban	79,230	2	39,615
		322,270	8	40,284
		520,640	14	37,189

Canterbury's Urban-Rural Voter Split 2004

Claire Browning is interested in the representation weighting between rural and urban constituencies of Environment Canterbury's councillors. In 2004, the 8 urban councillors represented 43,012 voters each. The 6 rural councillors represented 29,417 voters each.

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', by Sue Piper (Chair) and Gwen Bull (Commissioner), 10 April 2007. (http://www.lgc.govt.nz/lgcwebsite.nsf/Files/CanterburyRC2007/$file/CanterburyRC2007.pdf)

Environment Canterbury constituencies 2004 local body election
Constituency	Type	Population	Councillors	Population/councillor
Waitaki	Rural	12,300	1	12,300
Ashburton	Rural	26,700	1	26,700
North Canterbury	Rural	55,300	2	27,650
Selwyn-Banks Peninsula	Rural	39,100	1	39,100
South Canterbury	Rural	43,100	1	43,100
		176,500	6	29,417
East Christchurch	Urban	81,300	2	40,650
West Christchurch	Urban	85,200	2	42,600
South Christchurch	Urban	85,500	2	42,750
North Christchurch	Urban	92,100	2	46,050
		344,100	8	43,012
Total		520,600	14	37,186

Environment Canterbury and the Creech Report

Claire Browning of the Pundit blog has written intelligently about Environment Canterbury and the Creech Report.

I have been delaying commenting on the Creech Report, but I felt Claire deserved an inside viewpoint on Environment Canterbury. So I have finally come up with an opinion (below), which I posted as a comment on her post on Pundit.

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 intensification 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 solve a problem and it would be good to hold those culpable parties responsible.

Here's one example of bad management management of groundwater and surface water permits. 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 volume limits, and compulsory measurement via water meters of the 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 can be seen as 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.

Gerry Brownlee and Kate Wilkinson's conservation mining proposal

I have posted three letters about Gerry Brownlee and Kate Wilkinson's conservation mining proposal. Here is the letter I sent John Key.

"Dear Mr Key,

I have just read the joint statement of Gerry Brownlee and Kate Wilkinson, “Time to discuss maximising our mineral potential”, released yesterday, 22 March 2010.

I am very disappointed that your Government intends to increase potential mining within conservation areas by removing 7,058 hectares of Crown-owned conservation land from Schedule Four of the Crown Minerals Act. This idea is completely contrary to the statutory conservation management purposes of those areas.

This decision will damage 'Brand New Zealand', our clean and green image that exporters and the tourism industry rely on.

I am also completely unconvinced by the assertion that such mining will be environmentally responsible. If your Government were genuinely concerned about ensuring that mining was conducted with environmental responsibility, you would have acted on the PCE Dr Jan Wright's recommendation of 27 October 2009 to do something about the holders of 111 old mining licences that operate without resource consents.

Dr Wright's report is Stockton revisited: The mine and regulatory minefield. She recommends that the 111 old mining licences should be supplemented with adequate resource consents that have up to date monitoring and mitigation conditions.

I am not convinced that the likely mining impacts of the additional mining can be either mitigated or compensated for. Given your Government has reduced the Department of Conservation's budget by $15million per annum for the next three years, the proposed $10million per annum compensation fund does not even return DOC to square one."

I still have not received a reply from my last letter to Key, or even an answer from the hon Anne Tolley.

The property rights of mining conservation areas

For any new Government policy, Robin would probably have asked "what property rights are involved? Who holds them? Who is trying to change them?"

So looking at Brownlee's conservation-mining proposal through a property-rights lense, I note that:
1. The property rights are initially held by the Crown as the land is public conservation land. Conservation areas are 'public common goods'.
2. That initial allocation does not change if a conservation area is mined. The miner never has full freehold title. The asset, and any liabilities, remain with the Crown, when mining ceases. For example, the Crown has ended up with a $NZ10 million liability for the Tui mine.
2. The Crown's property rights are restricted by statutes such as the National Parks Act 1980 and the Conservation Act 1987 which provide generally that such public land is to be managed for conservation purposes.
3. However, Section 61 of the Crown Minerals Act 1991 provides the exception; a statutory access process for mining within conservation areas.
4. Section 61(2) provides the specific matters that the Minister (of Conservation) must consider.
5. Schedule 4 of the Crown Minerals Act 1991 prohibits mining access via the Section 61 to certain high value conservation areas.

So, the 'property right' to mine in a conservation area is a privilege to be applied for, not an exclusive right. And it is 'prohibited' from even a case-by-case assessment under S 61 of the Crown Minerals Act 1991 in some conservation areas by Schedule 4 of the Crown Minerals Act 1991.

So Schedule 4 and Section 61 act as an 'allocation plan' for a restricted subset of property rights, the right or permission for a private company to mine, subject to conditions, within a conservation area.

But miners don't need exclusive property rights to mine and will want to avoid ownership liabilities such as orphan mines like Tui mine. Also, the relevant case law, the Buller Electricity case says that the Minister of conservation cannot dispose of conservation areas for social or economic reasons.

So the Crown Minerals Act provides a Crown guarantee for mining Crown land, as well as providing a process that gets round the obvious inconsistence of mining with 'management for conservation purposes' statutory objective.

National is proposing to change this 'allocation plan' by increasing the conservation areas allocated to 'access-on-application'. The minerals, once mined, are certainly private goods owned by the miner.

The Brownlee conservation-area-mining plan is therefore a transfer of property rights from the public to private interests.

Like a postage stamp on Eden Park

Gerry Brownlee was on TV1 'Close Up' last night and on 'Morning Report' today using his best new soundbite. The magnitude of the area of conservation land that will be opened to mining will be "like a postage stamp on Eden Park".

I sent off this email to Morning Report.

"morningreport@radionz.co.nz

Subject: Gerry Brownlee Mining

Last year, Dr Jan Wright, Parliamentary Commissioner for the Environment, recommended that the Government legislate to ensure 111 old mining licences be brought under the RMA. National and Gerry Brownlee completely ignored her.
Therefore, RATIONALLY speaking, Gerry Brownlee and National have absolutely no credibility in declaring mining of conservation areas to be environmentally responsible.

Yours sincerely"

The failure to action the PCE's recommendation shows to me that National have no real interest in mitigating the environmental effects of mining. Their talk of mitigation and compensation is just greenwashing to assist the mining industry.

National's mining of conservation areas

It's time to understate both the conservation values of conservation areas listed in Schedule 4 of the Crown Minerals Act 1991 and the environmental impacts of mining and overstate the benefits of mining within conservation areas.

Gerry Brownlee and Kate Wilkinson have released their mining conservation areas proposal. Its also on Scoop.

Their statement includes a classic oxymoron in the first paragraph. The discussion paper contains "a suite of measures to facilitate the environmentally responsible development of New Zealand's extensive mineral estate".

It gets worse. The statement includes the same grossly superficial nonsense argument that the proposal is environmentally acceptable as the newly opened areas for mining will be so small compared to the areas protected. Brownlee says:

"7,058 hectares is just 0.2 per cent of Schedule Four land. Moreover, if that land subsequently saw mining development, only around five per cent of the land might actually be mined - as little as 500 hectares. This is nothing like the vast tracts of land suggested to date by the environmental lobby".

But as I previously posted, it is Brownlee and Key who are playing fast and loose with misleading and/or factually incorrect areas of mining.

Brownlee says that of the 7,000 hectares to be reclassified, only 5% or 500 hectares might be actually mined. Didn't John Key tell us in his statement to Parliament that all mining in New Zealand only had a footprint of 50 hectares? Oh well, whats the big deal about a factual error of an order of magnitude between National cabinet ministers?

The proposal is covered by Fairfax and more acerbically by No Right Turn, who has also described National as the "Government of Orcs".

Ruahine Corner and back

On Saturday, Sunday and Monday I went tramping in the Ruahine Ranges to Ruahine Corner Hut. I went with 'Dr Fi' and her running and multi-sport friend Pip. The trip was:
Friday afternoon. We drove over the Rimutakas and up the east coast via State Highway 50 until we were about 40-50 km from Hastings. Just after Tikokino we turned off SH50 onto Kereru Road, then Big Hill Road, then along Mangleton Road.
Saturday. Masters Shelter, Golden Crown ridge, Aranga Hut, Main Range, Piopio, spot height 1503, Potae, Ruahine Corner. A 12 hour day.
Sunday. Walk across Ruahine Corner airstrip, follow stoat trap line down a spur to Ikawatea Forks Hut, walk up the non-maintained track to Trig 1407m to 'No Mans'. An 11 hour day.
Monday. Walk south along the range to the junction with Golden Crown ridge, drop down to Masters Shelter and drive back to Wellington.