ROTACION DE DIRECTORES:

New Zealand is a constitutional monarchy and power is distributed across three branches of government—Parliament which makes the law, the executive which administers the law and the judiciary which interprets the law through the courts.⁶ New Zealand has two levels of government.⁷ Parliament is elected on a three-yearly cycle and has devolved powers to local government which is elected in a similar manner every three years to represent communities and make decisions on their behalf. Everything local government does is within a legislative framework generated and maintained by Parliament at the national level. Local government comprises 12 regional councils based on catchments and 57 smaller-scale territorial local governments, which include 16 district councils and cities. There are also five combined regional and district councils, called unitary

6 Refer to http://www.parliament.nz/en-nz/about-parliament/how-parliament-works/our-system/00CLOOCHowPWorks111/our-system-of-government

7 The material in this section draws from the author’s knowledge of the institutional framework (having worked within in it for three decades) and from the documented history which is cited where available.

27

authorities, which include the recently formed Auckland Council which is responsible for about a quarter of the New Zealand population.

New Zealand has an Environment Court, which is a special purpose court operating outside the hierarchy of courts of general jurisdiction, comprising a Judge and several Environment Commissioners operating under the Resource Management Act 1991 (RMA). The Environment Court addresses the intersection of the law and policy in two ways: by declaring whether local authority policies and planning measures give legal effect to central government policies under the RMA; and by adjudicating on appeals to determine whether policies and planning measures should stand or not (Somerville, 2013). Of relevance to climate change risk in this thesis are those policies and measures relating to land use, subdivision, coastal permits or a combination of these and the location of infrastructure and utilities. The Court decisions can be appealed only on points of law to the High Court, and beyond that to the Supreme Court.

National-level arrangements for managing climate-related risks, including disasters arising from extreme events, are set out in most countries’ national legislation and confer powers, duties, functions and financial accountability across agencies and at different scales (IPCC, 2012). New Zealand, however, has some unique institutional arrangements and experience in managing natural hazards that, in theory at least, should enable changing climate risk and the consequent costs to communities to be reduced.

Management of natural hazards, land-use planning, provision of water services and planning for civil defence emergency management are devolved to local government as part of an institutional regime that comprises powers held at national, regional and local governance levels with respect to those functions. Consideration of the impacts of climate change is part of this regime. The institutional framework embodies precaution, risk and the interests of future generations, to greater or lesser extents, depending on the statute and the practice under it (Ministry for the Environment, 2009, 2010). The governance framework and functions, and the statutory framework and its supporting institutional arrangements are shown in Figures 2.5 and 2.6. These statutory responsibilities and regulatory provisions, the organisations, functions and professional disciplines, and the supporting institutions outside the statutes (guidance, information, informal processes) comprise the institutional framework referred to in this thesis—defined as the documented structure and governance hierarchy that support the rules, procedures and programmes that are codified in statutes, and the organisations and measures that support the implementation of the framework through practice. The framework sets out the roles and responsibilities at national, regional and local levels for land use planning, natural hazard risk

28

management, planning for the effects of climate change, provision of water infrastructure and emergency management. The responsibilities were designed to be implemented in a complementary way across governance scales (Bosselmann & Grinlinton, 2002).

Figure 2.5⁸ The governance framework and functions

8 Refer to the Glossary for definition of terms.

29 Figure 2.6 The statutory framework

The primary statute that empowers local government is the Local Government Act 2002 (LGA).

It enables local councils to exercise functions independently and fund activities to reflect their community social, economic, environmental and cultural well-being. Local government has both sole and shared responsibilities for example; sole responsibility for storm water, waste water, water supply and some airports, and shared responsibility with central government⁹ and other agencies for transport infrastructure and energy utilities. Implementation is through 10-year long-term plans and 30-year infrastructure plans. The Local Government Official Information and Meetings Act 1987 governs open information provision to the public related to its responsibilities and provides for Land Information Memoranda to note impediments on properties. Territorial local councils issue building permits under the Building Act 2004 (BA) and subdivision consents under the RMA. Principles that underpin these responsibilities are community consultation, transparency, financial responsibility and liability in event of failure to act responsibly and with competence.

9 Central government in a New Zealand context refers to the national governance scale.

Statutory framework

Local Government

Act

Building Act

Land Drainage Act

Civil Defence and Emergency

Management Act Soil

Conservation and Rivers Control Act Resource Management

Act

30

The RMA is the primary statute for integrated resource management, including land-use planning.

It is administered by central, regional and territorial local government. Its purpose is “the sustainable management of natural and physical resources” (RMA section 5) and has other relevant provisions for climate change adaptation (see Appendix 2), including “consideration of the effects of climate change” (RMA section 7 (i))—effects which include cumulative effects, high-probability and low-high-probability effects with high potential impact. There is also provision for avoidance and mitigation of natural hazards. The RMA was designed to be exercised through a hierarchy of mandatory and optional instruments at all levels of government (Hansard, 1989):

primary statutory requirements and principles (mandatory); promulgation of National Policy Statements (NPS) and National Environmental Standards (NES) (optional); adherence to any NPS or NES that is issued (mandatory); regional policy statements, plans and rules (optional, but rules must be given effect at the district level); regional coastal plans (mandatory at the regional level);

and district plans and rules (mandatory at the district and city levels). The New Zealand Coastal Policy Statement (NZCPS) 2010, provided for under the RMA (which is mandatory and includes direction for climate change adaptation at the coast for sea-level rise, storm surge and associated wave height), is the only statutory guidance for decision makers relevant for considering climate change effects. Non-statutory guidance in technical manuals is provided on how to approach decision making for sea-level rise and for increased frequency and intensity of rainfall (Ministry for the Environment, 2008b; Woods et al., 2010). A 2004 amendment to the RMA to consider the effects of climate change reflected government policy in which central government took responsibility for policy on greenhouse gas emissions reduction through an economy-wide economic instrument (Rive, 2011) (a carbon tax in 2004 and in 2008 an emissions trading scheme).

Adaptation to climate change was made the responsibility of local government where the impacts would be felt (Rive & Weeks, 2011) on the basis of subsidiarity, meaning that an issue should be addressed at the lowest level of capable authority affected (Huntjens et al., 2012; Lebel et al., 2006).

The remainder of the framework comprises flood and erosion control through the Soil Conservation and Rivers Control Act 1941 (SC&RCA) administered by regional and unitary councils, which has the objective of preventing damage by floods, preventing and mitigating soil erosion and utilising land in a manner that achieves these objectives. There is a Land Drainage Act 1908 (LDA) administered by regional and territorial local authorities for maintaining watercourses and drains. These two statutes govern and enable funding of flood risk management in New Zealand. An emergency management system manages disaster risk at national and local levels of government under the Civil Defence and Emergency Management Act 2002, (CDEMA) and the

31

National Civil Defence and Emergency Management Strategy 2007 which sets out four types of risk-management activities–readiness, response, recovery and reduction—known as the 4Rs. An Earthquake Commission Act 1993 (EQCA) provides insurance funding for residential property damage from natural disasters, administered by the Earthquake Commission, which is funded through a levy on private property insurance, for underwriting damages up to $100,000 per claim.

Three historic trends have shaped the institutional framework in New Zealand and affect how climate change adaptation decisions can be considered—the period up to the major economic and institutional reforms of the 1980s, the 1980s reforms and the period after them to the present.

1) The period up to the 1980s was characterised by strong central government organisations like the National Water and Soil Conservation Authority (NWASCA) which, in partnership with local government, funded delivery of large flood protection schemes and soil conservation activities.

These were designed to minimise the effects of damaging high-intensity rainfall events, made worse by historic land clearance of New Zealand’s highly seismically active land (McCaskill, 1973). Public safety and development of land-based primary industry was the driver, based on engineering practice under the SC&RCA and the LDA.

2) The second period began in the mid-1980s, a period in which major economic efficiency (Evans, Grimes, Wilkinson, & Teece, 1996) and institutional reforms saw devolution to local government of functions previously carried out at the national government level, as government implemented market-driven policies (Memon & Gleeson, 1995). The RMA, passed in 1991, integrated some functions (water, natural hazards, air and land use) but not others (flood control and soil conservation). Organisations of state were abolished and new ones set up (NWASCA was abolished, Ministry for the Environment established and functions devolved to local government).

What emerged during this period was integrated natural resource management, while emphasising environmental ‘bottom-lines’ above which markets could operate (Bosselmann & Grinlinton, 2002; Perkins & Thorns, 2001). ‘Environmental effects’ practice by planners dominated within this enabling legislation (Perkins & Thorns, 2001).

3) The third period started around the mid-2000s and continues to the present. It has seen a shift in power back to the centre, with a focus on process efficiency.¹⁰ Changes during this period included limitations on public involvement in decision making, new organisations for handling consents at the national level of government rather than at local level (an Environmental Protection Agency was set up in 2011),¹¹ suspending of local body elections in one region and replacing

10 http://www.mfe.govt.nz/rma/reform/phase-two/2013-rma-amendments.html

11 http://www.epa.govt.nz/Publications/EPA_Annual_Report_2012.pdf

32

elected representatives with politically appointed commissioners in 2010¹² and governance changes occurring through local government amalgamations.¹³ In 2004, provision for consideration of the effects of climate change was added to the RMA.¹⁴ The latter part of this period has been punctuated by the series of earthquakes in Canterbury from 2010 and throughout 2011 which saw cross-scale government practice gaps identified for earthquake risk (Canterbury Earthquakes Royal Commission, 2012).¹⁵ This catalysed a proposal to elevate consideration of natural hazards and the effects of climate change to matters of national importance in the RMA (New Zealand Government, 2013), and an amendment to the LGA¹⁶ in 2014 requiring local government to prepare transparent strategic infrastructure plans for a timeframe of 30 years.

2.4 What is known about the role of institutions for addressing the decision-making