The Council Formerly Known as Elected

How the Environment Canterbury Act suspended regional democracy and created a state of exception: why that matters, and what we must learn from it.

Let us begin, as all good analysts should, with a table. A boring table. Because in the end, the machinery of the state reveals itself not through dramatic revolutions or riots in the street, but through timelines, appointments, and clauses buried in legislation passed under urgency.

March 2010

Government sacks all 14 elected councillors of Environment Canterbury

April 2010

Parliament passes the Environment Canterbury (Temporary Commissioners and Improved Water Management) Act under urgency

2010–2016

ECan governed exclusively by government-appointed commissioners

2013

Term extended by further legislation; elections deferred again

2016

Transitional Governance Act introduces a mixed elected/appointed council

2019

Full democratic elections finally restored to Environment Canterbury

2026

Abolition?

Let us not be naïve. This was not a case of central government merely tidying up a regional mess. It was a textbook instance of what Giorgio Agamben, the high priest of political melancholy, would call the transformation of a state of exception into a system of governance. The emergency becomes the norm. The rules are suspended in the name of saving the rule of law. And then, one morning, you realise the rules never came back.

According to the official narrative, Environment Canterbury (ECan) was dysfunctional. Water planning was a shambles. The region faced serious issues with irrigation, nitrate pollution, aquifer depletion, and a fractious regional council unable to produce a coherent plan. The solution? Remove the voters. Suspend democracy. Appoint commissioners who could Get Things Done.

And indeed, they did. With the help of the Canterbury Water Management Strategy (CWMS), a collaborative, zone-based framework conceived before the sacking but rapidly implemented after the commissioners rolled out ZIPs (Zone Implementation Programmes), ushered in the Canterbury Land & Water Regional Plan, and delivered the sort of bold, coordinated freshwater planning that had long eluded the region. One might almost be tempted to cheer.

But the problem, as Hannah Arendt reminds us, is not only what gets done but how. Arendt, a thinker whose entire oeuvre is one long scream against the banality of authoritarianism, saw in emergency powers the death of public space. Once a political order grows accustomed to ruling by decree, it loses the capacity for genuine deliberation. Even when the orders are wise, the habit is fatal.

Let us return to our commissioners. They were not mad tyrants. They were often respected, competent people. Dame Margaret Bazley. David Caygill. Civil servants of unimpeachable pedigree. And this is precisely the danger. As Carl Schmitt famously put it: “Sovereign is he who decides on the exception.” But Schmitt was not offering a recipe for dictatorship. He was simply describing a fact of power: whoever can suspend the constitution without legal sanction is already above it.

The ECan Act allowed precisely this. It did not merely install commissioners; it neutered appeal rights to the Environment Court, introduced a “Henry VIII clause” enabling ministers to override the Resource Management Act by regulation, and inserted special provisions for Water Conservation Orders that explicitly subordinated conservation to the visions of the CWMS. It was a beautiful, technocratic coup. Not one soldier in sight.

Some will say: but the ends justify the means. The rivers needed saving. The dairy boom needed planning. Elected councillors had failed. Democracy had become an obstacle to sustainability.

To which Agamben might reply: that is always the excuse. The exception is always for a good cause. Order. Health. Water. Security. But the moment you say, “This time it’s justified,” you lay the groundwork for the next time. And the time after that.

What happened in Canterbury was not the Reichstag fire. No jackboots. No barbed wire. But as Walter Benjamin reminds us, fascism arrives not only through crisis but through the normalisation of emergency. The fact that the state of exception in ECan lasted six years (and was extended not once, but twice) suggests that the government had grown quite comfortable operating outside the usual democratic lines.

One might object: the public was largely supportive. There were few protests. The region got on with it.

But silence is not consent. Clinton Rossiter, writing in the wake of world war and constitutional crises, argued that democracies may sometimes need “constitutional dictatorships”. But they must be openly acknowledged, tightly bound, and ended as soon as possible. The ECan regime failed at least the last two.

Even if the outcome was better water planning, the price was six years of disenfranchisement. Six years in which citizens of a major region could not elect the people who decided on their rates, their rivers, and their representation.

David Dyzenhaus offers us a more hopeful frame: the rule of law must be the law that rules in times of crisis. The task is not to deny that emergencies exist, but to ensure that even in the grip of urgency, government remains accountable, legal, and open to challenge.

The ECan Act did the opposite. It was passed under urgency. It limited judicial review. It concentrated power. It subordinated environmental protection to a regional planning document developed outside normal statutory processes. It gave ministers powers that even the RMA never contemplated.

Of course, we should not romanticise the pre-2010 council. By most accounts it was internally divided, slow, and unable to develop a regional plan that met the National Policy Statement for Freshwater Management. But democracy is not a performance test. It is a principle. You don’t suspend elections because the people are messy. The mess is the point.

Kim Lane Scheppele, writing after 9/11, shows how democracies often fall not through one big breach, but through a thousand cuts. Emergency here. Special law there. Over time, the exceptions become the operating system. This is not tyranny. It is autopilot.

One sees the same logic in post-earthquake Christchurch. Emergency powers passed swiftly. Regulations overriding the RMA. Temporary measures that lingered. Perhaps New Zealand, lacking a written constitution, is especially susceptible to this quiet erosion.

So, what should have been done? Some options were available even within normal law: targeted intervention under the Local Government Act; appointment of a Crown observer; binding performance improvement notices. None were used. The decision was made to go nuclear.

Let us now draw a breath. The ECan Act is gone. The council is elected again. Perhaps the story has a happy ending.

But the precedent remains. It is now on the books that a central government can, with parliamentary backing, remove a regional government and limit legal challenge in the name of efficiency. One day it may be used again. And next time, perhaps not for water.

Agamben called this “government by emergency”. Benjamin warned that the real state of emergency is the one we live in without noticing. And Arendt begged us to stay vigilant, lest we forget what freedom actually requires.

The point is not to demonise the commissioners. Nor to romanticise dysfunction. The point is to remember that democracy is not a luxury good. It is not something to be paused when inconvenient. Once you start believing that good governance and popular sovereignty are in conflict, you are already halfway to nowhere.

In New Zealand, we pride ourselves on our clean government and open politics. But perhaps the most dangerous corruption is the quiet kind – the belief that we are immune to erosion because we are nice, pragmatic people. But erosion is not loud. It arrives with glacial speed.

Let the ECan episode be what Walter Benjamin would call a “moment of danger”: not for the past, but for the present. Not a shame to be buried, but a warning to be read aloud.

Never again should we accept the idea that democracy must be suspended so that the experts can fix what elected fools have broken. If democracy means anything, it means that we fix things together, through debate, through patience, through law. Not through a benevolent coup, however well dressed in river stones and strategic plans.

The next exception might not be so benevolent. And by then, the table will already be set.