Tuesday, 21 March 2006

Whangamata veto shows NZ's banana republic status

After spending approximately $100,000 per year for the last fourteen years shepherding their marina application through the approvals process laid down by the Resource Management Act (RMA) -- only to have it overturned at the eleventh hour by Minister Chris Carter's high-handed veto of the project -- the Whangamata Marina Society has confirmed it is heading to court for judicial review of the veto, a not inexpensive decision but one about which they have little choice.

Ironically, the advice on which they based the decision to challenge the veto was given by Chen and Palmer -- the 'Palmer' that accompanies the Chen is of course the same Geoffrey Palmer who wrote the RMA, now making good money from his creation out of those whose lives that law has made a misery. And their decision comes amid speculation as to the reasons for Carter's deux ex machina veto, and whether for example Bob Harvey's last-minute e-mail submissions from fellow surfers to Carter may have affected the decision.

That we can only speculate indicates that at least one principle of good law has been overturned here: we've almost given up expecting that justice be done, but we like to give voice to the idea that at least it be seen to be done. It hasn't been.

The absence of natural justice is one of the claims upon which the Marina Society will base their arguments. Says the society's president Mick Kelly, "Ordinary New Zealanders can have no security or certainty if the deliberations of the courts can be set aside by a single Minister wrongly trying to 'rehear' the matter, as happened in this case." He's quite right in what he says of course, but as Geoffrey Palmer himself is undoubtedly aware, the RMA is not based on any good principles of natural justice and nor is it good and objective law.

Good and objective law, as Harry Binswanger explains here, has five criteria, all of which the RMA violates.
Laws mean force; but "the rule of law" - objective law - means force limited, checked, supervised, tamed, so that it becomes the honest citizen's protector, not his nemesis.

To achieve this goal, laws must be objective in both their derivation and their form. In regard to derivation, "objective" refers to that which is tied to reality by man's only method of knowing reality: reason. In regard to form, "objective" refers to that which is tied to reality by man's only method of knowing reality: reason. In regard to form, "objective" means that which has the charcter of an object in reality: a firm, stable, knowable identity. In both respects, legal objectivity stands opposed to the subjective, the arbitrary, the whim-based.

The Resource Management Act is bad law because in every important way it violates the criteria by which objective law is judged. By that I mean that it is not just destructive of property rights, it is not just imprecise and unpredictable, it is not just vague and subjective -- in the end it is all of these things and more. Carter's veto amply demonstrates that the much-needed de-politicisation of law is in this country just a sad joke. We do not have the rule of law, what we have is the rule of men -- very small men with a very large power complex.

Carter's veto and the RMA that allows it shows that the essential separation between the state and the judiciary is in this country non-existent, and leaves all decisions open to the claim that they have been politically driven rather than judicially-based.

On this matter, a friend pointed out that author Alvarez Vargas Llosa regards this very thing as what makes his continent a wall-to-wall collection of banana republics. According to Llosa what continues to bring down Latin America again and again -- the number one thing that must be fixed if liberty and prosperity are ever to flourish on that continent -- is the lack of any separation between executive and judiciary, and the consequent politicisation of justice and law.
Individual freedom has never existed in Latin America... Vargas Llosa blames the Latin American tragedy on the oppression of State corporatism and mercantilism, the redistribution of wealth and politicized laws. In Latin America, there is no real system of justice. What we have is a political system, and the courts support whatever the politicians require.
We are not quite there yet, but Carter has shown just how close we are to banana republic status here in New Zealand. It is not just Carter that should be reviled. It is the law itself, and all those who made it that way.

UPDATE: By the way, if you like the idea of Chris Carter in a shark cage, as I do, then Generation XY may well have made your day with this: CRUEL ANIMAL EXPERIMENTS #2: Chris Carter vs. The Great White Shark.

LINKS: Whangamata Marina Society heads to court - NBR
Email turns up heat on Carter - NZ Herald
What is objective law? - Harry Binswanger -
The Intellectual Activist
Putting People First: A radical prescription for curing Latin America's ills - Newsweek
Why doesn't Latin America take off? - Carlos Ball - TCS
Liberty for Latin America: How to end 500 years of state oppression - Alvaro Vargas Llosa

TAGS: RMA, Law, Property_Rights, Politics-World, Politics-NZ, Books


  1. "...the essential separation between the state and the judiciary is in this country non-existent..."

    Exactly so. And any theoretical external threat to NZ pales beside this.

  2. Great post PC, one of your best. Lucid and punchy.

  3. Did the Marina society actually own the land or did they just want to build on the land which they didn't own and annoy other residents?


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