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OPINIONPoliticsMay 9, 2024

Wellington’s new District Plan can be the path forward out of the city’s malaise

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The District Plan is a blueprint for a bigger, better Wellington, through tens of thousands of new apartments and townhouses and a new approach to urban growth. Joel MacManus lays out the vision.

The process of putting together Wellington’s new District Plan has been long and excruciating. As a city, we spent years arguing about density, character protections and housing affordability through the Spatial Plan and District Plan processes. With housing minister Chris Bishop’s sign-off yesterday, it’s finally over.

It’s no secret that Wellington has been going through a bit of a tough time lately. The pipes leak, the transit is underperforming, and most of the coolest buildings are closed for earthquake repairs. Wellington doesn’t have the same GDP or population growth as Auckland, and worst of all, Gen Xers who were around in the ’90s keep telling me the city isn’t as cool as it used to be.

If we embrace it wholeheartedly, the new District Plan could be the path forward out of the city’s malaise. Not everyone will agree with all of it, but it is a plan, and it’s the best one we’ve got. The District Plan is a blueprint for a bigger, better city, through tens of thousands of new apartments and townhouses and a new approach to urban growth.

A study released yesterday by Sense Partners, commissioned by Greater Wellington Regional Council, compared how housing density affects the cost of infrastructure to local government across Wellington. The results are almost perfectly linear: the higher the density of the area, the lower the cost of infrastructure per dwelling. The solution is obvious. Wellington will only fix its problems by growing. More people and more homes means more ratepayers to cover the costs of better infrastructure, better transit and better civic services.

Higher-density areas have a lower cost of infrastructure per household. Source: Sense Partners

A larger, denser population will also mean a more powerful city economy with more productive, high-tech jobs, and patrons to support a more vibrant arts and culture scene. Density has plenty of other advantages too, like lower emissions, cheaper house prices and better access to services.

But arguing about the merits of density is kind of a false debate in Wellington anyway. There are some parts of New Zealand that can have that discussion. Christchurch could realistically reach a population of one million with suburban sprawl alone. Auckland already did. Wellington simply doesn’t have room. The hills and harbour limit the amount of flat land. Wellington doesn’t have a choice between high-density growth and low-density growth. It has a choice between high-density growth, or stagnation.

So now that the District Plan has passed, what can Wellingtonians do to support the future of their city? For starters, we should wholeheartedly embrace our identity as a growing city. We should take pride in new housing developments and taller buildings as symbols of our city’s progress, rather than trying to fight them.

In the next few years, someone might try to build a new apartment building near your house. You may feel uncomfortable about how it changes the street you know and love. Some of your neighbours may try to oppose it (although they will have a much harder time under the new rules). I’d encourage you to reframe that worry – it’s not just change, it’s progress. It will mean more homes for people, more customers for local businesses, and better outcomes for the city.

We need to embrace the things that support density, too: public green spaces, pedestrianised areas, and space-efficient transport like bike lanes, bus lanes, trains and maybe even (*gasp*) light rail. It’s not a debate about whether you like cars or not, it’s simply physically impossible for Wellington to grow while still being car-dependent.

Wellington is already more compact and denser than any other city in New Zealand. The path forward is to double down on that, embrace it and make it part of our identity. It’s a point of difference and can be a point of pride. The capital isn’t like any other city in this country, and it doesn’t need to be. It can be better.

A quick note on heritage

Housing minister Chris Bishop rejected amendments by the council to remove heritage protections for 10 buildings, including the Gordon Wilson flats and the Miramar Gas Tank. That’s the headline most media ran with, and it’s a point that generated a lot of outrage online. I chose not to focus on it too much, because those 10 buildings are a relatively small point relative to a plan that will completely change the future of housing in our capital city.

But for what it’s worth, I think Bishop has done the right thing here. I know he absolutely despises the Gordon Wilson flats, and would have happily knocked them down if he could. It seems the council’s amendment lacked the evidence needed for him to legally remove the heritage listings. It would have required some kind of expert evidence to suggest those buildings didn’t warrant a heritage listing – not just that the heritage listings were inconvenient and annoying.

There is still a huge problem in Wellington and nationally with heritage buildings that are earthquake damaged or otherwise inhospitable but can’t be torn down. There clearly needs to be some kind of reform to allow councils to remove heritage protections, but it would be better to do that through an actual law change rather than rely on piecemeal repeals once every 20 years when a council passes a new District Plan.

‘Hutt Valley, Kāpiti, down to the south coast. Our Wellington coverage is powered by members.’
Joel MacManus
— Wellington editor
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A fair legal system honours tikanga and reo Māori (Image: Tina Tiller)
A fair legal system honours tikanga and reo Māori (Image: Tina Tiller)

OPINIONPoliticsMay 9, 2024

Tikanga is the first law of Aotearoa

A fair legal system honours tikanga and reo Māori (Image: Tina Tiller)
A fair legal system honours tikanga and reo Māori (Image: Tina Tiller)

A senior lawyer has filed a complaint about tikanga becoming a required law school module. Law lecturer Carwyn Jones explains what he’s getting wrong.

“…the first law of Aotearoa, a law that served the needs of tangata whenua for a thousand years before the arrival of tauiwi.”

– Ani Mikaere

Law can be understood as a special set of social rules. Different societies adopt different rules to regulate society and develop different mechanisms for creating laws and resolving disputes about the application of those laws. For example, the New Zealand state legal system has a representative parliament that creates new laws and amends and repeals existing laws. It also has a hierarchy of courts that are responsible for the interpretation of laws and the application of laws to specific circumstances. Parliament and the courts undertake their functions by following established processes with reference to key values and principles.

There is another legal system in New Zealand that predates the state legal system and operates alongside it: tikanga Māori. Tikanga incorporates a Māori legal system that has law-making and dispute resolution institutions, which operate according to processes based on Māori values and principles. Māori law has distinctive patterns of authority and decision-making (and constraints on legal authority), particular forms of legal communication, argumentation and reasoning, and distinctive mechanisms for enforcement and remedy, in other words, the full range of mechanisms that we associate with a well-developed legal system that is able to adapt to meet the needs of society in a changing world.

Tikanga Māori is now also recognised as being a source of the common law of New Zealand. New Zealand common law has always been willing to recognise specific tikanga practices, so long as they met the common law test for what constitutes “customary law”. Specific pieces of legislation over the years have also incorporated tikanga concepts, one famous example being the concept of “kaitiakitanga” being used in the Resource Management Act. In the Peter Ellis case, the Supreme Court recognised tikanga as the first law of Aotearoa. As such, the colonial test for recognising customary law does not apply to tikanga and tikanga may be drawn on as a source of law even in some cases where there is no relevant legislative incorporation.

As a source of New Zealand law, tikanga is potentially relevant to a wide range of cases, including, like the Ellis case, where there is no Māori party involved. The New Zealand Council of Legal Education, a professional body made up of lawyers, judges, law school deans, and law student representatives, has determined that “teaching Tikanga is an essential part of legal education given frequent references to tikanga in Acts of Parliament and its acknowledgement by the Supreme Court as part of the law of New Zealand”. From January 1, 2025, the New Zealand legal education curriculum will include requirements for the teaching and assessment of tikanga Māori | Māori laws and philosophy.

A render of the soon-to-open National Centre for Indigenous Laws at the University of Victoria in British Columbia, Canada. (Source)

New Zealand legal professional and educational bodies are not on their own in recognising the need for students to engage with indigenous law if they are to produce graduates who are properly equipped to enter the profession. Canadian law schools have perhaps been leading the way in this area. Many of the most prestigious law schools in Canada, including Osgoode Hall Law School, and the faculties of law at McGill University and the University of Toronto, now have some compulsory indigenous law component within their degree programme. The University of Victoria in British Columbia now offers a programme where students can complete an indigenous law degree alongside a common law degree and they will soon be home to a new National Centre for Indigenous Laws.

Part of the explanation for why these law schools see indigenous law as relevant for all law graduates is because it expands the set of legal tools that lawyers can draw on to assist people to resolve legal issues. These moves also give effect to a 2015 recommendation from the Truth and Reconciliation Commission, which had investigated the horrific abuse within Indian residential schools and, as part of a suite of 94 “calls to action” aimed at both addressing the legacy of that abuse and advancing reconciliation, called on law societies across Canada to ensure that lawyers receive appropriate training and education, including education about indigenous laws.

I taught at the faculty of law at Victoria University of Wellington for 15 years, between 2006-2021. One of the courses that I taught most regularly over that period was a course called Māori customary law. I was never all that keen on the course title because I didn’t think it reflected the full range of law found within tikanga Māori. Like Pākehā law, Māori law includes processes for deliberative law-making, mechanisms for properly mandated bodies to make authoritative statements of law, and procedures for discussing the correct application of law, alongside law which has developed from custom.

Part of the reason that I think it is important to understand tikanga is law is because it draws attention to its foundation of legal principle and reasoning that is characteristic of healthy legal systems. But the course title was inherited from around a decade earlier when I had taken that course as a student in the late 1990s. Teaching Māori law in law schools is hardly new. I was always really interested in the feedback I received from students about this course. Over the first few years that I taught the course, it seemed to be a course that students took because they intended to work in areas of the law that had a particular Māori dimension, like Māori land law, or just because they had a kind of curious interest. However, in feedback, students often reflected on how studying the Māori legal system had enabled them to think more critically about the New Zealand state legal system and gain a better understanding of both systems of law.

Over the last few years that I taught the course, it was clear that students were taking this course not simply as a matter of interest, but because they saw how valuable it would be to their future practice. Feedback shifted to students asking why they needed to wait to near the end of their degree to gain these perspectives and insights. One year a group of students wrote a letter to the dean asking him to consider making the course compulsory because they believed it was one that all students would benefit from. For a long time now, law students have been well ahead of law schools and the profession in terms of understanding the need for law graduates to be able to recognise the first law of Aotearoa.

The New Zealand Council of Legal Education’s decision to require a compulsory tikanga component be included in the LLB curriculum is really just catching up with this hunger from students, with developments in New Zealand law, and with the approach being adopted in similar jurisdictions elsewhere.

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Toby Manhire
— Editor-at-large

For an in-depth examination of the relationship between tikanga and the New Zealand state legal system, see the Law Commission’s recent study paper, He Poutama

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