I was really impressed and heartened in late 2010 when a group of 27 constitutional law experts from all six New Zealand law faculties issued an open letter (See http://thestandard.org.nz/open-letter-on-the-cerra/) detailing concerns about the breadth of the proposed power to be granted to the Government, calling the Canterbury Earthquake Response and Recovery Act (CERRA) a “dangerous precedent”. In that letter they stated
“… abandoning established constitutional values and principles in order to remove any inconvenient legal roadblock is a dangerous and misguided step. Yet this is what our Parliament has done, in just a single day, by unanimously passing the Canterbury Earthquake Response and Recovery Act 2010. It represents an extraordinarily broad transfer of law taking power away from Parliament and to the executive branch, with minimal constraints on how that power may be used….We feel their action was a mistake, and they too quickly and readily abandoned basic constitutional principles in the name of expediency. We hope that with a period to reflect on their action and the consequences this might have that they now will revisit this issue in a more appropriate manner“.
CERRA was later repealed by the Canterbury Earthquake Recovery Bill 286-1, 2011. The Bill puts certain checks in place to guard against the inappropriate use of the powers given to the Minister and CERA. The Minister must also prepare and present to the House a quarterly report on the operation of this Act. Each report must include a description of the powers exercised by or on behalf of the Minister or the chief executive under this Act during that period. (See http://www.legislation.govt.nz/bill/government/2011/0286/latest/DLM3653504.html?search=ts_bill_canterbury_resel&p=1). CERRA was closely followed by the establishment of the Canterbury Earthquake Recovery Commission and its successor, the Canterbury Earthquake Recovery Authority/Committee (CERA/CERC) to ‘provide leadership’ and act as a second reporting mechanism. CERA was established by the Government the week before the second major Canterbury earthquake. It is effectively a government department reporting to Hon. Gerry Brownlee and was made effective by Order in Council. The authority is supposed to be overseen by an independent four person review panel, chaired by a retired High Court judge and would assess all legislative and regulatory changes CERA seeks to make. A cross-party forum of Canterbury Members of Parliament was to be set up to provide advice and a forum of Canterbury community leaders is to provide input on important local issues. Did anyone ever see evidence that this has happened? There are said to be appeal rights against decisions made by the authority, with hearings heard in the High Court.
The Bill provides that only the Recovery Plan for the Central Business District requires consultation with affected communities with a view to restoring the social, economic, cultural, and environmental well-being of greater Christchurch communities. The Canterbury Earthquake Recovery Minister is not required to consult with any person about the development of any other Recovery Plans. The Recovery Strategy identifies the proposed recovery plans as including: the Land, Building and Infrastructure Recovery Plan; Economic Recovery Plan; Education Renewal Recovery Plan; Finance and Funding Recovery Plan; Built Heritage Recovery Plan. So all in all, far too much power has been laid at the feet of one individual – Hon. Gerry Brownlee!
Despite the powers assigned to the Earthquake Recovery Minister as a result of the Bill – surely there was a review carried out by way of the ‘independent four person review panel’ and the cross-party forum in relation to the issue of the ‘red-zone’. How was this decision made and approved? Where is the evidence that it was ever reviewed by anyone?
The red zone ‘voluntary’ offers include insured residential homeowners, insured residential properties under construction, insured not for profits, commercial/ industrial properties, vacant land and uninsured (commercial/industrial and residential properties). The Government package is not sufficiently equitable to allow citizens to buy an equivalent property elsewhere, nor will the package include the cost of moving and re-establishment wherever they choose to go. (See http://www.3news.co.nz/Insurance-loophole-a-nightmare-for-ChCh-red-zone/tabid/817/articleID/216665/Default.aspx). Nor is the offer ‘voluntary’ when there is a threat of compulsory acquisition looms over property owners. Once again the 31st March 2013 deadline for vacating the red zone is approaching. For a comprehensive understanding of the issues around the red zone and Lianne Dalziel’s (Labour Party MP for Christchurch East) complaint to the Controller and Auditor General please go to this link: https://www.labour.org.nz/news/low-ball-offer-referred-to-auditor-general, and https://www.labour.org.nz/news/mps-join-forces-to-support-human-rights-commission-call-for-residential-red-zone-delay.
We are told that 5000 red zoned homeowners (that is, land too badly damaged to economically repair) have ‘accepted’ the Government offer to buy their homes. The Government has presented them with two options. Option 1, the Government said it will purchase- “your land, the buildings and fixtures on your land, your EQC claims for the damage to your land, your EQC and private insurers claims for any damage to the buildings and fixtures on your land” and Option 2- “your land, the buildings and fixtures on your land, your EQC claims for the damage to your land.” Some citizens say that they feel bullied into leaving their homes. (See Red-zoners ‘bullied’ in Govt buyout, Ben Heather, The Christchurch Press, Jan 18, 2012). Many are unhappy with the offers declaring that it will leave them out of pocket or force them to leave properties that remain habitable. The Government has also dodged the column in respect of actions being currently fought in the courts between red zoners and their insurers, (See https://thechristchurchfiasco.wordpress.com/2013/03/01/valerie-and-matt-go-to-court/) . The real battle here should be between the insurers and CERA (or the Government), to decide if red zoned houses are a ‘constructive total loss’ or not.
So I call upon and invite the constitutional lawyers of New Zealand, as guardians of our freedom, to look carefully once again at these issues from a constitutional perspective. What is at stake is the financial well-being of thousands of Cantabrians and the issue of granting the ability to a Government to do what it pleases, regardless. Stripping the people of their assets and equity in their properties is surely unconstitutional?
As one Cantabrian put it “The CERA offer is so well spun it needs unpicking! This is theft of the rights of property owners in a supposed democracy. Surely the government offer should be voluntary in the true sense, (not the weasel worded voluntary with a gun to your head Brownlee version) and those who do not wish to take it should retain their existing rights to claim under their pre existing EQC and insurance policies? We need to fight for our right to decline the government offer and retain our pre existing entitlements. I am in the ‘green zone’, and retain those rights and choices (so far) and would strongly object to government patronisingly offering me a ‘voluntary package’ that strips my existing contractual entitlements. The government is undermining citizens contractual and property rights, to appease foreign insurers, saving them from replacement contracts, EQC land payments, and yielding the government a huge parcel of land for future development“. (See Sep 24, 2011, http://myquakereality.wordpress.com/2011/09/11/share-your-quake-reality-2/).
Doesn’t anyone care about what’s going on??
~Future Proofing for a sustainable, participatory, democratic society.
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