Key the constitutional reformer

It’s the Queen’s official birthday today — a quaint tradition, like much of the monarchy. Her actual birthday is on April 21.

John Key is in sync. He quaintly revived the tradition of knights and dames. A fresh crop is just out.

But don’t let this medievalism distract you. Key is a constitutional reformer. It just happens that the Queen, while a target for republicans, is irrelevant to his brand of reform.

One branch of this reform is Rodney Hide’s drive for reform of the way laws are made. He and Bill English last August issued a directive to ministers and state sector chiefs requiring much more rigorous justification of new laws and re-examination of existing laws.

A discussion paper is due soon on Hide’s proposed Regulatory Responsibility Bill, which would elevate property rights to special status on a par with rights in the Bill of Rights, with court reviews, and set in stone tough hurdles for new law.

The cabinet will not go that far. It will aim for legislation requiring a government to state the principles to which it requires law to conform and to stand by those principles or explain why not. This is akin to the legislative requirements on fiscal prudence, which greatly improved fiscal transparency.

Lawmaking principles could be similarly constraining and thereby amount to a change in the way power is exercised which would in turn amount to constitutional change — minor but significant.

Key’s second reform is of local government. The drivers are Hide as Local Government Minister, associate minister John Carter and Environment Minister Nick Smith.

Super-Auckland may in time prompt other conurbations, such as Wellington, Christchurch and the Waikato, to contemplate emulation. And the ultimate logic of Smith’s Environmental Protection Agency is to take over some, most or all of regional councils’ environmental functions, possibly alongside a water commission.

That would remix local government: super-councils, some surviving regional councils, councils collaborating in all manner of services and activities and a conversion of some into unitary authorities, with stronger local boards reminiscent of the old boroughs.

The third reform is the biggest. It is what Chris Finlayson has been up to as Treaty of Waitangi Negotiations Minister.

Finlayson picked up where Michael Cullen left off. Co-governance and co-management are now bywords in Treaty settlements.

Co-governance is a radical shift. It gives effect to the principle that the “Treaty partner” (iwi and hapu) has an equal say in running something with the “Crown” (in non-quaint parlance, the central, regional and local governments).

The high-profile example is the arrangement for the Waikato river: iwi have an equal voice in broad decisions (the “Crown” is represented by regional council and central government nominees) and in managing bits of the river. This limits regional councils and adds to their costs in money and time.

Unsurprisingly, co-governance and co-management of rivers and other waterways are now standard negotiating requests by iwi and hapu. Many will be granted in some form or other. This is an important variation of resource management law and a change in the way power is assigned and used.

Likewise for conservation land. Until very recently the Department of Conservation administered and managed that land on behalf of the nation of New Zealanders. It is a statutory duty. In a widening range of places it is now to share management.

Add in Key’s proposed foreshore and seabed regime, which iwi leaders say doesn’t go far enough. The government’s preferred regime posed complex governance and management questions, according to a Local Government New Zealand analysis which particularly worried that if an iwi won customary title it could veto development, which would cut across councils’ statutory duties. Again, a significant change in the assignment and exercise of power.

Now add in the Declaration of the Rights of Indigenous Peoples. The cabinet’s qualifications in effect negated important aspects but over time, given the courts’ track record on Treaty issues and attention to supposedly non-binding international pacts and the Bill of Rights — not to mention an unguarded political comment or agreement or legislation by a future government — those qualifications may well biodegrade.

Next is the constitutional review Key promised in the Maori party’s support deal. The review was supposed to get going in February but is stalled at high level by arguments over both the terms of reference (the Maori party wants wider ones than National) and who should be on the team. Where there review might lead can only be guessed at.

Over the past month, the cabinet has drawn back a bit, epitomised in refusing Tuhoe ownership of the Urewera National Park, though offering a “strong” co-management regime.

You can see why it drew back. Constitutional reform at Key’s pace and depth is not an habitual National preoccupation.