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Canterbury Earthquake Recovery Bill Now On-Line

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• Canterbury Earthquake Recovery Bill 286-1 (2011), Government Bill
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Explanatory note

General policy statement

The Canterbury Earthquake Recovery Bill repeals the Canterbury Earthquake Response and Recovery Act 2010. The Bill sets out appropriate measures to enable the Minister for Canterbury Earthquake Recovery and/or the Canterbury Earthquake Recovery Authority (CERA) to facilitate and direct, if necessary, greater Christchurch and its communities to respond to, and recover from, the impacts of the Canterbury earthquakes. The Bill is founded on the need for community participation in decision-making processes while balancing this against the need for a timely and coordinated recovery process.

It is necessary to put in place stronger governance and leadership arrangements for the rebuilding and recovery of greater Christchurch from the cumulative effects of the 4 September 2010 and 22 February 2011 earthquakes. In developing the Bill to put in place new arrangements the following factors were taken on board:

• the scale of the post-earthquake rebuilding effort recognising that the 22 February earthquake represents an incomparable natural disaster in New Zealand's history:
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• lessons learnt from international experience and from the recovery planning after the 4 September earthquake including the strong indication to have a single entity in charge of, and responsible for, the recovery efforts:
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• the need for timely and effective decision-making powers; and
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• the significant co-ordination needed between local and central government, residents of greater Christchurch, Te Runanga o Ngai Tahu, NGOs, business interests and the private sector.
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The Canterbury Earthquake Response and Recovery Act 2010 expires on 1 April 2012 and so do any Orders in Council that have been made under it. The recovery effort is likely to go on for some time past this expiry date. There is therefore a need to put in place legislation that will provide for a timely and coordinated recovery effort of Christchurch and the greater Christchurch region.

This Bill recognises that current institutions simply do not have the capability to deal with a disaster of this magnitude. New institutional arrangements with specific powers and access to streamlined regulatory processes are needed to meet the challenges of recovery.
Canterbury Earthquake Recovery Authority (CERA)

A new Public Service department, CERA, has been established, which will, under the leadership of its chief executive, coordinate the recovery effort. CERA was established under section 30A(1) of the State Sector Act 1988 by way of Order in Council, made on 29 March 2011. The Order in Council adds the department to Schedule 1 of the State Sector Act. The Public Service comprises those departments listed in Schedule 1 of the State Sector Act.

A second Order in Council was made on 29 March 2011 which places CERA onto Part 1 of Schedule 1 of the Ombudsmen Act 1975 and means that CERA will be subject to Ombudsmen Act reviews and Official Information Act requests.
Purpose

The Bill sets out a series of purposes that will guide decision-making by the Minister for Canterbury Earthquake Recovery and CERA. The purposes are about ensuring that there is adequate statutory power to enable community participation in decision-making while also ensuring a focused, timely, and expedited recovery of greater Christchurch and its communities.
Input into decision-making processes

To ensure local involvement in decision making the Minister for Canterbury Earthquake Recovery and CERA will work alongside the Christchurch City Council, Environment Canterbury, Waimakariri District Council, Selwyn District Council, and Te Runanga o Ngai Tahu, business and community interests and the private sector in order that the planning processes under the Bill take into account local views. Cantabrians will also be able to provide their input via a community forum made up of representative community leaders and through a cross-party forum of Canterbury Members of Parliament that will advise the Minister for Canterbury Earthquake Recovery and CERA, as well as through public consultation processes. It is expected that, as the new planning mechanisms are developed, processes for effective community consultation will be developed. This ensures local people will have the ability to express what’s important to them in developing and carrying out the plans for rebuilding Canterbury.

Planning regime

Planning for the recovery of the greater Christchurch region will occur through the development of a Long-Term Recovery Strategy (Recovery Strategy) which will be developed by CERA in consultation with Christchurch City Council, Environment Canterbury, Selwyn District Council, Waimakariri District Council, Te Rūnanga o Ngāi Tahu, and other parties deemed necessary. The Recovery Strategy will set the overall direction for the recovery efforts. The purpose of the Recovery Strategy will be to address some of the high level questions that will need to be addressed for the recovery to occur in a timely and co-ordinated way. It will need to be produced within 9 months of the Act coming into force.

Underneath the Recovery Strategy will sit a series of more detailed Recovery Plans that will set out the detail of what needs to be done and how it will be implemented. Recovery Plans will be able to cover—

• any social, economic, cultural, or environmental matter:
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• any particular infrastructure, work, or activity—
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on a site-specific or wider geographic basis within greater Christchurch.

The Bill sets out provisions to enable the planning and implementation processes to be streamlined.

The Bill provides for the development of an overarching Long-Term Recovery Strategy by CERA in collaboration with key stakeholders. The purpose of the Recovery Strategy will be to address some of the high level questions that will need to be addressed for the recovery to occur in a timely and coordinated way.

The process for the development of the Recovery Plans will be determined by the Minister for Canterbury Earthquake Recovery. The Bill provides for the Minister for Canterbury Earthquake Recovery to require, as necessary, the preparation of Recovery Plans by CERA, relevant government agencies, councils, or other bodies, authorities, or entities. It is expected that processes for community consultation will be an integral component of the development of such plans. This participation, will however, need to be carefully balanced with the need for a timely, focused, and expedited recovery of greater Christchurch. The necessity for such Plans will be determined by the Minister for Canterbury Earthquake Recovery and set out in a schedule notified in the Gazette for the purpose of public notification. Recovery Plans must give effect to the Recovery Strategy.

The Bill provides for a mandatory Recovery Plan to be produced for the Christchurch commercial business district (CBD) within nine months of enactment. Christchurch City Council will lead development of the CBD Recovery Plan (including community engagement) with input from CERA, Te Runanga o Ngai Tahu, and Environment Canterbury. It is expected that Christchurch City Council will develop a consultation plan to engage the many views from within the Christchurch communities. The Minister for Canterbury Earthquake Recovery may identify other parties to be consulted in the development of this plan.

Once approved, the Bill provides for a Recovery Plan to be ‘read into’ statutory plans (including plans under the Resource Management, Local Government, Land Transport Management, Reserves and Wildlife Acts) and prevail to the extent it is inconsistent with those statutory plans.

Powers to be exercised in accordance with the purpose of the Bill

Other powers created under the Bill to ensure a focused, timely and coordinated recovery effort will need to be exercised for the specific purposes of the Bill, where the Minister or CERA reasonably consider them necessary.

These powers include but are not limited to—

• the ability to obtain or require information from any source, including the commissioning of reports:
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• powers to enter onto land, remove fixtures and fittings, perform work on land, construct structures on or under that land, leave and maintain structures on or under that land and register its interest in those structures:
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• the discretionary power to close roads and divert traffic:
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• the power of entry and removal, including demolition powers for commercial and possibly residential demolition project (both in CBD and suburbs):
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• the power to require land to be temporarily vacated so work can be coordinated (which may involve buildings being demolished):
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• the power to acquire land through a process of compulsory acquisition:
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• the ability to approve certain council or organisation contracts, over a certain threshold, if necessary; and
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• the ability to suspend, amend, cancel, delay, any council plans and policies.
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These are mainly reserve powers, only to be used if they are necessary. Checks will be in place to guard against the inappropriate use of the powers given to the Minister and CERA. The powers provided to the Minister and CERA will only be available for the duration of the legislation, a period of 5 years, but the need for the Act to be continued will be reviewed annually.

Significant checks and balances have been built into the Act to ensure that powers are only exercised in accordance with the purpose of the Act and only if reasonably necessary. As well as the exercise of a statutory power being subject to judicial review, the Bill also contains other significant protections, such as—

• the power to require information can only be used where the information can be provided without unreasonable difficulty or expense:
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• before disseminating information the chief executive must consider the privacy principles under the Privacy Act 1993 and the need to protect confidential and commercially sensitive information:
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• the person exercising the power of entry must produce evidence of authorisation and where practicable must exercise it at a reasonable time and give prior notice of entry:
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• before exercising a survey power the chief executive must consult with the Surveyor-General, and a dispute mechanism has been introduced where land owners disagree with the survey decision:
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• in undertaking building works, etc a notice is required to be served on owners, occupiers and other persons with an interest in the land:
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• the powers of direction and call-in rights do not include the ability to collect rates or take any action or make any decisions affecting rates:
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• notice of an intention to acquire land is required:
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• persons who have had their land compulsorily acquired or a building demolished will be entitled to compensation:
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• any person may appeal to the High Court against a determination of compensation, against any decision in respect to which there is a right of appeal or objection under the Resource Management Act 1991 or from a dispute over a survey definition decision.
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There is another, significant, control in this Bill. The Minister must prepare and present to the House a quarterly report on the operation of this Act. And 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.

Delegated legislation

While the Bill is to replace the Canterbury Earthquake Response and Recovery Act 2010, it retains the statutory scheme that permits the Governor-General to make Orders in Council on the recommendation of the relevant Minister to exempt, modify or extend provisions of any enactment.

It is necessary to retain this Order in Council process as it is not possible to anticipate every power or statutory provision that may require to be amended to achieve the purposes of the Act. When the Order in Council process was first introduced it attracted some criticism. However its operation has been largely successful and proportionate. Other than one case involving an unsuccessful attempt to halt the demolition of a heritage building, the process has not been the subject of successful judicial challenge. This is due in no small part to the careful way in which the process has been managed. This is illustrated by the fact that not all requests for Orders in Council have been granted.

As with the previous Act, Orders in Council may only be used where necessary and fit within the purpose of the Act. Another significant control is the requirement under the Bill for there to be a Canterbury Earthquake Recovery Review Panel. The panel is to comprise members with relevant expertise and appropriate skills, to review draft Orders in Council, and provide to the Minister a report that includes the panel’s recommendation as to whether the Order in Council is appropriate.

Extent of Powers

CERA will not assume any role, functions, or powers specifically provided for within the Civil Defence Emergency Management Act. If another emergency occurs in greater Christchurch, the Civil Defence Emergency Management framework will prevail for the response period. The response roles and functions of agencies such as the New Zealand Police, New Zealand Fire Service, and the New Zealand Defence Force will not be altered. Any recovery from a new emergency event would fall within the new framework proposed in this Bill for the period this framework is in place.

The rest of the bill is available online here )

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