Why are the govt really taking over on the Auckland Waterfront?

On the face of it, today’s call from Murray McCully to ‘nationalise’ the Auckland waterfront under the RWC Empowering legislation looks like a no-brainer. Shambles on Friday, so the government steps up to tidy everything up. Certainly that’s how Daniel Farrell sees it (see the previous post on this blog). Yet look a little deeper, and it looks suspiciously like a hatchet job on Len Brown, the Auckland Council, and local government in general. 

The government last year passed the Rugby World Cup Empowering Act. The relevant bit of the Act in this context is section 52, which allows central government to declare specific activities or facilities as permitted activities. In effect, this means that for Rugby World Cup-related activity, the government can over-ride local government plans. Local government plans are in turn empowered by the Resource Management Act. Thus, section 52 of the Rugby World Cup Empowering Act effectively over-rides the RMA and the normal planning and consent processes for activities. One might say that’s a little undemocratic (and a little nanny state) – but we’ll come back to that later.

Anyway the fact is that this legislation has been in place since last year. If the government really were concerned about the Council’s ability to deliver on Opening Night, they should have used the enormous power given to them by the RWC legislation BEFORE the big party, not after it. There will likely not be another event the size of Opening Night for the rest of the World Cup – yes the big games are still to come, and more gigs are planned for Queens Wharf – but there won’t be another fireworks display, opening ceremony etc. Oh, and there’s going to be another THREE fanzones across Auckland for the knockout rounds – Albany, Mangere and Trusts Stadium.

So with the prospect of another 200,000-strong crowd at the waterfront highly improbable, why bother closing the stable door after the horse has bolted?

Quite simply, the government are playing politics. Given that there’s no event as big as Opening Night planned again, this latest move is not so much about ensuring the rest of the RWC goes smoothly as it is about undermining Len Brown and the Auckland Council. Make no mistake – the government created a monster with the Super City legislation, and they don’t like it. Ever since Len Brown was elected Mayor ten months ago, the government have been at loggerheads with Auckland Council, mainly over public transport funding. Associating Len Brown with the Opening Night fiasco plays right into the government’s hands – faith in public transport has taken a hit, and Len Brown is copping the blame. Meanwhile, the government is seen as the knight in shining armour, coming to the rescue of hapless Auckland.

The wider issue in play here alluded to earlier is democracy. How democratic is it when the government can pass legislation that directly over-rides the provisions of another Act still in force – in this case the RWC Empowering Act over-riding the RMA. Indeed, this is how ‘Party Central’ on Queens Wharf happened in the first place – the ‘Cloud’ is a permitted activity under the RWC Empowering Act, yet no democratic RMA planning process took place. The zoning of the wharf under the RMA is still the same as it’s always been – port activity. How fair is it that the government can take over what is Council-owned land and plonk what they want on it just because of the RWC, when every other normal land owner has to rightly apply for consent under the RMA to build something. Surely there’s some irony in this government labelling the previous one “nanny state” when they’re now passing legislation that effectively allows them to do anything they want.

This latest action by Murray McCully is simply an extension of this – using (abusing?) the RWC Empowering Act to further undermine a democratically elected local body. It is a continuation of a disturbing trend under the current government of showing a complete disregard for local government democracy. Remember, it was just last year that the government fired Environment Canterbury’s elected councillors and replaced them with hand-picked commissioners, simply because they refused to grant consent to high intensity dairying in ecologically sensitive river catchments. Earlier this year we see central government sweeping into Christchurch post-Earthquake, sidelining Christchurch City Council and establishing CERA under Gerry Brownlee. The wet-blanket reaction from central government to Christchurch City Council’s rebuild plan is familiar to any follower of Auckland’s struggles with central government.

So in short, let’s not delude ourselves – this is nothing to do with the RWC going smoothly. The biggest RWC event is over, so the government is solving what is likely to be a non-issue in the coming weeks. This is nothing more than political points scoring in the on-going battle between the central government and local government, a battle that has been raging in Auckland for decades and has only gotten worse with the advent of the Super City and the mayoralty of Len Brown. The constant meddling by central government in the affairs of local government fundamentally detracts from our democracy in my view.

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About Liam W

Urbanist, transport nerd, general curmudgeon.

Posted on September 13, 2011, in New Zealand Politics. Bookmark the permalink. 15 Comments.

  1. I am afraid I take exception to your comment “So with the prospect of another 200,000-strong crowd at the waterfront highly improbable, why bother closing the stable door after the horse has bolted?” I think that when (love my optimism) NZ reach the finals Aucklanders will in general want to congregate at “Party Central” With a population of 1.4 million and the thousands of overseas visitors I would fully expect it to reach numbers of at least 150,000. How many people wanted to go to Albany or Manakau last Friday night. New Zealanders have been promised by this Government a World Cup they could all enjoy. And the attitude of the Events manager saying there are no more large events planned so no changes are needed was not what Aucklanders,visitors, and the government wanted to hear. This is Aucklands chance to present itself to the rest of the world as a fun place to be and so far whether we like it or not the overseas media are focusing on Friday nights farce. This is not the image we need and sorry but getting a report on Wednesday on what went wrong the previous Friday is not acceptable. I by the way voted for Len Brown so am not a right wing party supporter. Len Brown however has been a huge disappointment for me and it was a way before last Friday night. I have been very concerned about this particluar Government’s attack on democracy and justice why did Auckland Council give them the chance to take over and as far as most people over the age of 30 Auckland Council and Mayor Brown handed over the keys with their reaction(or lack of) to Friday night

  2. Fair point – Aucklanders were out in force and enjoying their waterfront as they should be (which gives Mayor Brown a further mandate to push ahead with the new waterfront plan I believe). But I think 200,000 on the waterfront again (even during finals wknd) is unlikely – just because a) no huge events on other than the games/gigs – no fireworks etc; b) alot will have been turned off by the overcrowding first time around, and c) yes there will be alternative fanzones that some will find more convenient/attractive. But if by chance it does happen again, then sure I guess the govt can take responsibility for how that goes.

    My point is that it’s a bit rich them coming in now when what is unarguably the hardest night to plan for has come and gone. Political points scoring. Say what you like about Brown’s reaction, but he did front – nobody else had the balls to do anything but point fingers.

    Len Brown’s mayoralty thus far…alot have been disappointed. Rates rise of 9.8% was initially projected by Transition Agency (costs to amalgamate apparently), got them down below the rate of inflation. Little progress on public transport pledges yet, but he’s had less than a year and he’s up against a govt notorious for its pro-road/anti public transport bias for funding – yet he has a vision, and they’ve made a start on consenting work for the CRL. Quick change is difficult when the machinery of the Super City is still being built – still working on the spatial plan etc. I think the success of the mayoralty has been Len’s ability to get people excited and pumping with civic pride for their city and making it somewhere to go again – like you say, people are taking ownership of the city for RWC, and alot of that lies in civic pride that wasn’t there previously in my opinion.

  3. Given a choice of John Banks and Len Brown again I would stil vote Len Brown sadly not because I had faith or believed in Len Brown’s politics or vision but that I was scared shitless of John Banks. Sadly my vote was a negative one I was I guess voting against one candidate. I do not think Len will be so lucky again. Aucklanders have always come out to play when there has been a reason too. How about the Whitbread yachets arriving in Auckland in the middle of the night to huge crowds cheering them and the Americas Cup regattas as 2 examples. There was no one planning for Friday night Veola? (trains) stated they were only planning for 15,000 passengers The 4 pm ferry sailing was cancelled why didn’t they know what 99% of Aucklanders over the age of 18 knew that everyone was going to use public transport because that’s what we had all been practising for at least 2 years. When the trains failed due to patrons pushing the emergency button at the U2 concert they said there is no way they would allow that to happen again why did it and why do we have to wait until Wednesday to find out?.If the weather is fine people will want to soak up the atmosphere and enjoy the “party” this weekend and lets be honest we have all had a very trying year. The last thing the National Party needs heading into a general election is pissed off Aucklanders. So yes this move is politcally motivated why did Auckland Council have to hand it to National on a plate

  4. Hate to say it, Liam, but I disagree with you here.

    First point though, I do agree that there is not going to be anything as big as the opening again. However, I do think there will be events that attract more than the 12,000 people able to fit into Queen’s Wharf. A simple solution might be to remove that stupid bloody giant rugby ball and bring the capacity back to 50,000. But regardless, something needed to be done. The Auckland Council did nothing. There needed to be some response, even if it was something simple like putting up some signs that ask people to not press the emergency buttons on the trains or something like that. But there was nothing.

    I disagree with the fact you say it’s non-democratic. Yes, the Auckland Council was voted in and therefore has mandate, but they only have mandate because of Central Government giving it to them. Without the Local Government Act 1974 originally and now the Local Government Act 2002, the Auckland Council and councils like it around the country would not exist. The Government has delegated power to them. It’s like the CEO of a business delegating power to the middle management. But when middle management don’t do their job properly, the CEO can, and will, take control of the situation. That’s what the Government is doing now.

    Regardless of if there is another big event or not, we needed someone to do something. It is a terrible look for New Zealand to screw something up like Friday was screwed up and not have any response what-so-ever. I hate to say it, but your take on the situation seems to be little more than spin, taking situations completely unrelated and applying them to this situation.

    • Hi Daniel,

      I have to disagree about your comments on democracy. I think it’s a very poor argument to talk about local government as delegated authority rather than as a layer of democracy (the comparison to a CEO delegating authority is particularly inappropriate given the undemocratic nature of most companies and corporations in terms of internal structure – the expression ‘line management’ emphasises the lack of democracy). The relationship between central and local government is only technically (in terms of legal powers that the central government holds for emergency purposes) a case of ‘delegation’.

      The ability to engage in local decision making (minimally through a vote but, more significantly, through attending council sessions, consultation processes, hearings, etc.) becomes removed when a higher level layer of governance removes those processes that exist in a lower level layer of democracy. To say, ultimately, it’s democratic because the state level government was elected and has statutory rights to disestablish the powers held by local levels of government would be to ignore the fact that democratic processes have, in fact, been removed and, hence, democracy has been reduced. It would be an extraordinarily legalistic and impoverished perspective to adopt.

      There are, after all, situations of more or less democracy. What has just happened in Auckland reduces democracy in just the same way as replacing ECAN with Commissioners and establishing CERA reduces democracy in Canterbury (of course such measures do – that’s their point).

      Imagine how your argument would run if we had a democratically elected world government but no local government here in New Zealand. How democratic would it be – and feel – to be run from the global governmental headquarters?

      Frankly, what Murray McCully has done is a far worse look for New Zealand than last Friday night’s fiasco.

      • Local Government is a delegated authority by definition. They can only create regulations in areas that Parliament has delegated to Local Government in a piece of legislation. If Local Government tried to create a regulation that was beyond that delegated authority, it would be overturned by the courts. It’s not technically delegation. It is delegation.

        Yes, engaging in local decision making is an important part of the democratic process. However, when the Local Government refuses to take action when action clearly needs to be taken, it is the responsibility of Central Government to either make Local Government act, or to act on behalf of Local Government.

        So you think that Central Government should have done nothing with the Christchurch Earthquake? CERA has authority that Local Government would never be given but is necessary for the rebuild process. Sure, they reduce the level of democracy, but they are necessary. That’s what the Doctrine of Necessity is for – not that it was required because creating CERA was not a breach of the Constitution.

        A ‘global government’ running everything and no local government would, if voted for by New Zealanders, still be a democratic process, so I don’t see your point.

      • Daniel,

        What your argument conveniently ignores is that Auckland Council already has the power to do everything the government has done in this situation. Let’s not forget, the Council OWNS the Ports of Auckland. The powers given to McCully under the RWC legislation are exactly those given to the Council under the RMA – i.e. the power to declare a permitted activity. I’m not disputing that something needed doing, but the Council hadn’t “refused to do anything” as you say – they commissioned the reports released yesterday, and have the power to do everything they need to do down on the waterfront – and I believe they would have if they had been left to it as they should have been. John Key’s sole argument for use of the RWC legislation is that consenting would have taken too long with Council at the wheel – that doesn’t change the fact that the Council has the EXACT same power as McCully – again the RWC legislation and the RMA grant very similar powers.

        I think what you touch upon is a fundamental problem with the parliamentary sovereignty doctrine in NZ. Yes the govt delegates to local govt, but does that give them the right to disrespect the mandate of a democratically elected Council? Should a national mandate trump a local mandate? If so, doesn’t that fundamentally undermine the very concept of local govt??

      • It may be true that Auckland Council would have done something eventually, once they cut through all the red tape. But action was something that needed to happen pretty much immediately. That’s why McCully needed to step in.

        The idea of local government is that in mostcircumstances, a local council can make a more informed decision because they know the local environment. Additionally, if every regulation that passes through a council had to go to Parliament, it would not work. But when local government doesn’t work, as in this situation, central government needs to step in.

        And yes, national mandate trumps local mandate when it’s the national image that’s at stake.

      • Wrong again Daniel…all the govt have done is open up Captain Cook Wharf. There would be no red tape for the Council to navigate because the wharf is owned by the Ports of Auckland, which is owned by the Council. The Council can do what it likes when it owns the land, ergo it could have and would have done exactly what the govt has done. Let’s not forget that the govt’s actions are based off a Council-prepared report suggesting that they close off more wharves. So the govt did something that a) the Council suggested, and b) the Council had the power to do. If that aint political points scoring I don’t know what is.

        “National mandate trumps local mandate when the national image is at stake”…robust argument that one buddy…when is national image at stake?? How do you define that – seems very much like a case of shades of grey. For what it’s worth, in this case NO international media have been running this story. So what do you define as national image? What is projected by media? Visitor experience? Very flimsy stuff when you consider it’s the argument on which you’re basing an anti-democracy argument…

        Incidentally, I think an image of diminished democracy isn’t a great one to be projecting for our national image but hey, that’s just me…

  5. Funnily enough I agree with your second point Daniel. This is definitely a matter of central govt delegating power to Auckland Council. But two points to make:

    1) With all the media hooplah about this being the Mayor’s fault, something conveniently gets lost in translation – the opening night festivities were organised not by the Auckland Council, but by Auckland Tourism, Events and Economic Development (ATEED), a Council Controlled Organisation staffed by non-elected officials with no mandate from the public and no accountability to the Council itself. Rodney Hide imposed this model on us with the Super City Legislation, and we’re now suffering for it. It’s emerged that Len Brown himself said he was expecting 100-150K people, yet ATEED were planning for 50,000. Yes they fall under the umbrella of Auckland Council, yet they operate at arms length from the Council and are not publicly accountable. This has to be an illustration that the CCO model is fundamentally flawed in that it is not publicly accountable for its actions – the direct result of this being the shambles that was Friday night.

    2) Should the govt be making laws, and then contradicting them with other laws? There is a process under the RMA for deeming what activities are permitted and what activities are not. There is a reason for this process, and the power to administer it is given to local government.

    • If there was no red tape, why was it taking so long to actually do something? If the council suggested it and they had the power to do it, why didn’t they.

      I am not at all giving an anti-democracy argument. I believe in democracy. However, I do believe there are times when the Government needs to take a more authoritarian stance. Effectively, what I’ve been saying anyway, is that it’s not anti-democracy. It’s removing one type of democracy and replacing it with another. Both organisations were democratically elected, so I don’t see the issue.

      Len Brown asked for trouble when he said he wasn’t going to take the train because “something might go wrong”. I don’t disagree that the set up of the Auckland Council was fundamentally flawed – in fact I strongly agree with you, and would like to stick a boot firmly up Rodders’ backside. But it’s what we’ve got and we need to work with it somehow. Changing it would simply be too costly.

      The doctrine of Parliamentary Sovereignty would say that yes, Parliament can make law, contradict laws, amend laws and basically do whatever they want, as long as they don’t stop other Parliaments from making any law they want. That’s why the Bill of Rights isn’t entrenched and why the Electoral Act is only pseudo-entrenched. That’s the system we have and it seems to work quite well most of the time.

      • What do you mean “so long”??? Between Saturday and Wednesday, the Council (NOT the govt) wrote three reports on what went wrong/how to prevent it from happening again. Then on Wednesday upon release of the reports, the govt acted on the Council’s suggestions when the Council could have just as easily done it themselves, having devised the solutions themselves and owning the Port land themselves. Again, this is sounding broken recordish, but it’s a political stunt when the Council could have done it themselves.

        Yes it is an anti-democracy argument Daniel. What you are saying is that under certain circumstances it’s okay to cancel out the mandate of a local body. That by definition is anti-democratic because you are effectively telling the voters of Auckland that the mandate they gave to the Auckland Council means nothing. Of course parliamentary sovereignty allows for this, and that I think is a fundamental flaw in our democracy. You say it “works quite well” and I won’t argue, it usually does – but in principle it is anti-democratic.

    • The previous council wanted multiple fan zones but this was rejected by the govt. I would therefore say they had a much bigger role in the debacle than just about anyone.

  6. I’m not going to argue any further about whether it was a political stunt or not. You have your opinion and I have mine on that one. I don’t think we’re going to agree.

    I don’t agree that the voters of Auckland gave the Auckland Council mandate. Sure, they gave the people on the Council mandate, but the legislation gives the Council itself mandate. So in that sense it’s not anti-democratic.

  7. Legislation gives Council a mandate yes – but that mandate would apply to ANY Council. But the public decide who is on that Council. So you might say two mandates – one from legislation, another from the public. If you’re trying to tell me that the mandate from the public doesn’t matter then you’re fundamentally undermining how representative democracy works.

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