Speaker by Various Artists

150

We don’t make the rules, we're just trying to play by them

by Kym Niblock

As we all know, the internet is disrupting business models around the world – not least in the online entertainment area, as events in New Zealand over the last few weeks have shown.

There’s been a lot of emotive commentary about the action a group of competing New Zealand companies are taking to clarify the legality of GlobalMode, a service designed to bypass geographic blocking. Russell has kindly allowed me to share my perspectives as the CEO of Lightbox, one of the companies seeking this clarification.

I fully understand that we live in a world where tech-savvy customers want freedom from commercial constraints which might limit their access to their favourite content.

But whether we like it or not, the reality of the content model today, put in place by content owners, is that premium video content is sold with geographic rights at very substantial prices. And often those geographic rights are a key part of the revenue model that allows that content to be made. It’s a similar principle that sees the NZRU dependent on selling rights to broadcast All Black tests exclusively and at a premium in order to help retain talent.

We also understand and appreciate that people want fast access to their favourite shows - we are big TV fans too. We are all moving rapidly to provide that access, and if you look at the services now available in New Zealand you can see there's a large and growing avenue for legitimate choice. There's not many popular shows you can't get in New Zealand any more, and many premium shows are delivered express within hours of airing in the US.

The NZ companies who are investing in this premium content to bring to the NZ market need to defend their commercial rights as they currently stand, otherwise they are wasting their money and will be less likely to invest in future content for NZ consumers.

Lightbox has spent $35 million already (let alone what our competitors have spent) in building a viable SVOD service in one of the most competitive marketplaces in the world. We remain convinced New Zealanders want a healthy and sustainable New Zealand market for online TV. We don’t think people want control over content concentrated in the hands of a few big US players (players who, I might add, contribute little or no tax to New Zealand).

We also understand that the way content rights for the most desirable shows are now sold may well change over time and perhaps end up being sold in global deals rather than geographic deals. Indeed bigger players like Netflix US have already signalled their intentions in this area. But right now these are the rules that content buyers have to work with – and we don’t make the rules.

As for content that is less attractive on a global basis, that’s another matter. For many smaller and local content creators, a global rights model is quite threatening as territorial rights are essential to fund development, so a breakdown of the current model could well put smaller, independent or local creative output at risk.

It is possible we may end up with a two-tier market – one for global premium content, one for regional content. If that is how things pan out, then the NZ SVOD market will inevitably adapt. But despite the certainty of many in the tech community, one thing I am sure of is that nobody really knows exactly how this is all going to evolve.

That is why these four competing companies want to clarify the questionable legality of GlobalMode. It’s a service specifically designed and promoted to provide access to content in other countries whilst we are working under the current geo-located rights models. We think that’s not on, particularly when we have paid for and are providing most of that same content legitimately in this market. 

We have repeatedly said we are not concerned about how individual customers go about accessing content in the privacy of their own homes. That remains the case. VPNs and other services do have legitimate uses for individuals and it’s not for us to decide when use is legitimate and when it’s not.

Our concern is that NZ companies like Callplus, who have paid nothing for content, are actively promoting a commercial service which enables large numbers of customers to access content without needing any technical know-how, in direct competition with legitimate NZ services, and we believe knowingly and openly in breach of their content rights.

It’s a bit rich for Callplus and others to claim that they are the ones providing consumer choice and to characterise those who are actually investing in delivering more choice to New Zealand as ‘bullies’.

Let’s be clear, nobody is forcing these companies to sell a service of questionable legality. They have invested nothing in building a viable NZ SVOD market or obtaining rights to the best shows in the world for NZ consumers. Instead they are offering a service specifically designed to avoid regional rights constraints, put in place by content owners, in return for commercial gain.

Callplus, and its subsidiaries Slingshot, Orcon and Flip, say they strongly believe that access to the internet via Global Mode is completely legal. If that’s the case, now’s the time to clarify it. However this pans out, we will get more clarity on the legality of these services and the value of "exclusive" rights.

Again, we don’t make the rules, we are just trying to play by them. Some are arguing that we are chasing the wrong people and that we should be chasing those who sold us the NZ exclusive content rights in the first place. The "double-dipping" argument. I don’t believe it’s fair or reasonable for content sellers to be regarded as responsible for the active promotion by others of services that avoid the constraints of the geographic rights they have sold.

Some are arguing that the internet genie is already out of the bottle and that open and global access to content must prevail. The "Kim Dotcom" argument. If that is so (and if it is there may well be unintended consequences in terms of the impact on the NZ creative industry), then clarifying the legality of these services is a constructive next step and will help the businesses who are actually investing in NZ to make future decisions.

Some are arguing that we are old "dinosaur" media models that will inevitably be disrupted so it’s futile to try and hold back the tide. The "King Canute" argument. In fact, Lightbox is actually a new media model, one of the first real SVOD services brought to market in New Zealand, and one that is focused on disrupting traditional TV delivery models in our country. And we are putting our money where our mouth is by investing millions on content for New Zealanders.

I’ve also heard the line that this is "just like" parallel importing. It’s our understanding the laws allowing parallel importing are about importing physical objects not digital services, so are not applicable – but this is another reason why the rules need to be sorted.

Some argue as long as consumers are paying to watch content, either in the US, or here in NZ, what’s the problem? That’s fine for consumers, but it undermines the rights model that content creation is currently based on. Content buyers and distributors lose out, and the US based services benefit from the selling of content in markets they don’t have rights for. 

I believe New Zealanders respect property rights and have a strong sense of fairness, and most prefer to access TV shows and movies legitimately – and also understand that's important so that the artists who create their favourite TV shows or movies and the people who invest in supporting those artists get the benefits they deserve.

The world of entertainment is changing rapidly. We are on board with that and that's why we've established our own internet-based services. We welcome fair competition from the likes of Netflix NZ and Neon, and indeed we all compete fiercely with one another.

But the four companies involved in this step share a common belief that protection of content rights in the new digital market is important for New Zealand businesses and, ultimately, the New Zealand consumers we serve. So that’s why we are trying to sort the rules.

Kym Niblock is the CEO of Lightbox, the subscriber video on demand service launched last year by Spark.

She will be discussing the "global mode" wrangle on Media Take this week, alongside NBR's Chris Keall. If you'd like to catch this evening's Media Take recording, come to the Victoria Street entrance of TVNZ at 5.30pm.

48

A conversation from belief

by Francis Ritchie

Following the Media Take show last week that got quite a bit of attention, Russell asked me to write something for Public Address that goes into how, as a "believer", I approach those who believe differently from me.

I’m grateful for the opportunity. I’m guessing it’s because he’s found something in who I am and how I relate that isn’t exclusionary in the manner Christianity is often seen to be.

To give you some context, I’m a Christian Minister, ordained in the Wesleyan Methodist Church of New Zealand. Because of circumstances, I grew up experiencing the breadth of flavours and diversity that make up the Christian community in New Zealand. I feel very privileged to have had such an experience though the circumstances that created it were less than ideal. Growing up, I also explored other religions and worldviews, with an extreme fascination for the way humans think, filter and approach the world around us.

I’m someone who, for various reasons that I won’t expand on here, believes in the traditional Christian views encapsulated in the ancient creeds known as the Apostles Creed and the Nicene Creed. We could have discussions ad-nauseam about the minute detail in those creeds, but broadly speaking I hold them to be true. I believe in the historical Jesus, that he was both divine and human, that he died and rose again. I believe in the authority of scripture (the Bible), but we could have a long discussion about how we should understand the word authority.

All that to say, I don’t go to church simply because it’s a nice thing to do that gives me warm-fuzzies, but because I truly believe in the story that infuses and unites the diverse Christian community. Hear me when I say that I truly get and understand how this belief sounds ludicrous to some people and I understand why it gets likened to believing in fairies. Those accusations make me giggle and I’m good with that. As much as I’ve tried to let it go from time to time (sometimes I think life would be so much easier if I didn’t believe it), the story of Jesus and what he and his place mean in the world, grips me to the deepest core of my being. I can’t shake it.

I think many people would recognise that in our age of enlightenment and in our culture of pluralism, my core beliefs are often seen as strange, and almost (or very definitely in the eyes of some) antiquated and archaic. Many would also point to the worst of how Christians have engaged the world around us as a reason for rejecting who we are and the place we might have in a diverse culture. It’s understandable. I can’t speak for the whole Christian community, but I can certainly try and go some way towards explaining my own approach.

In my more strident days I thought the way I saw things was the way everybody needed to see things (I’m somewhat of an activist at heart), including other Christians, and I engaged hour upon hour in endless debates about the truth of what I believe with anyone from atheists to other Christians.

In a former blogging life I devoted way too many hours to endless discussions that were never going to sway those who see things differently from me, and in return, their endless attempts at persuasion were never going to work on me (it was a polite form of the worst of the internet ... "someone’s wrong on the internet, I have to fix it!"). They were fun times that went a long way to shaping who I am, but I could have approached things very differently. Let’s just clock it up to youthful arrogance on my part.

Since then I’ve reflected on my own life experiences growing up, and had life experiences both here in New Zealand and in my travels overseas, (such as brief times in the slums of Delhi and Mumbai, and getting caught in the middle of the Israeli/Palestinian conflict), that have caused me to rethink who I am and my place in the world. Plus I’ve been shaped by some of the stories of scripture that I had only given cursory time to previously. I’ll happily admit that it has all knocked me down a peg or two.

Where I once saw myself as on a mission to save the world, I now see myself as a bit player in a wonderful story, just trying to get through life like everybody else and hoping that who I am and what I have to offer may give something good to the lives of others.

If I was to frame my approach, the best way I know how, it would be to point to one of my heroes and how he framed the story of Jesus, along with a few other things. The Apostle Paul (one of the early leaders of those who followed Jesus) wrote a letter to a small, fledgling church in Philippi, a city within the Roman empire at the time. In the letter he urged the Christian community to "have the mind of Christ". To explain that, he gave them a poem, pointing out how Jesus had given up the privileges of divinity, making himself nothing and becoming a servant/slave, an action that ultimately took him to the cross.

That question of what it means to be a servant/slave and the humility that underpins it drives me beyond simply trying to be a nice guy. The same goes for many Christians and churches doing great things in their communities, things that you never hear of because they’re just getting it done with no PR or fanfare, while often the worst of who we are captures the headlines.

I put that sense of service alongside a Greek word that often appears in the New Testament in relation to Jesus – "splanchnizesthai", which is often translated into English as compassion, sympathy, or pity.

Those words sound nice, but the great 20th century theologian Karl Barth insisted that the meaning is much stronger than what those words imply. He would say that Jesus wasn’t simply moved by the suffering of those he encountered, but that their suffering drove deeply into him, that he took their suffering on and made it his own. Certainly, the way he reacts to those around him and to those who cause the suffering of others in the stories of the biblical gospels would attest to that.

Then there is the very model of how Jesus treated those around him. His anger is reserved for those who created barriers to God, heaping unnecessary requirements on people and puffing themselves up with their own self-importance in the process. His response to those who were different and that society kicked to the margins was always gracious, merciful, kind and driven by what seems to be a deep sense of love. He saw them, he heard them, he listened to them, he knew them; a real knowing, not the knowing that gives a cursory glance and then moves on to the next thing. Even in our differences, I’m convinced this approach should be our starting point. I try to live like that ... please forgive me when I fail.

All of this leads to an approach that should be quick to embrace rather than exclude even if that embrace is messy. Another great theologian of our time, Miroslav Volf, pushes for this in his book titled, funnily enough Exclusion and Embrace.

With all that in mind, for me this isn’t actually a discussion about how I, as a believer, can interact and do life with ‘non-believers’ but about how we all treat and do life with anyone who is different from us. It’s not just us Christians who are often bad at it, but many of us from all walks of life.

Doing difference well starts with some simple concepts that I often find hard to live out, humility, empathy, assuming the best of the other and having their best in mind. I’m interested in what others think and why they think it and then letting our conversation flow from that, letting our stories inform one another from a sense of respect.

A good example of this was the recent ruckus caused when Stephen Fry talked about his view of God in an interview. I wrote a piece on it for my blog. The natural and understandable reaction from many Christians was to hear an attack on some ideas they hold to be true. What I heard and saw was an intelligent and compassionate person frustrated at a popular idea of God in the face of the suffering he has encountered in the world. So rather than respond to an attack on something I hold to be true, anything I could come up with in response would be a conversation that engages where he’s coming from, a place I totally get. All I have to offer in return is who I am, and my stories.

I’m not interested in pointless and endless debates anymore, I’m interested in bringing my humanity to the table in the mess, grit, rawness and beauty of life in the hope that maybe, just maybe something of who I am and the stories that shape me, may bring something worthwhile to your life. I want to do life with people. In the process I have no doubt who you are will add something to who I am.

I have a love for the media, so I’ve started a little project called NewsLeads with the ridiculous thought that maybe I can bring this approach and who I am into that space; and in the process inject something worthwhile into the mix. Let’s see where it goes.

Francis Ritchie blogs regularly on his own website.

33

Branding a Post-Predator Dream – the Language of Extirpation

by Dave Hansford

It was the early morning of 17 January, 1770, and Joseph Banks was having trouble sleeping in. From his bunk aboard James Cook’s Endeavour, then swinging gently at anchor in Queen Charlotte Sound, the expedition’s naturalist was:

“...awak’d by the singing of the birds ashore ... the numbers of them were certainly very great ... their voices were certainly the most melodious wild musick I have ever heard, almost imitating small bells, but with the most tuneable silver sound imaginable.”

Banks was listening to the melody of a largely intact mainland forest – something no New Zealander has heard for more than two hundred years. Even Banks’ choir was by then missing a few critical sections – Maori, and their dogs and rats, had by then exterminated at least 35 species – native swans and geese, pelicans, adzebills – and of course the moa and its mighty foe, Harpagornis, the biggest eagle that ever lived.

Cook was already busy releasing pigs and goats, but far worse was to come: in his wake came British and European settlers, and they brought ruin with them: cats, mice, ferrets, stoats, weasels, rabbits, hares, hedgehogs, possums, deer, chamois, thar and disastrously, more rats – and these ones could climb trees.

In just 750 years, half of New Zealand’s vertebrate fauna disappeared. At least 51 bird species, three frogs, three lizards, a freshwater fish, four plant species, and an unguessable host of invertebrates are gone forever. No one will ever see a living moa, a piopio or a laughing owl. The songs of the huia and the South Island kokako have long stopped echoing. All are now just dusty bones and skins, the relics of oblivion. New Zealand’s list of extinct species is one of the longest in the world – only Hawaii has suffered greater losses – and the file is far from closed. There is no corner of the country, no matter how remote, steep, or frigid, that has not been overrun by the pests of the pioneers.

If only this were simply a cautionary tale of old. Sadly, New Zealanders are still bystanders to extinction: it’s going on all around us, right now, every hour, every minute. By current reckoning, 2788 native species are threatened with nihility – a third of all those we know of. The Department of Conservation, stripped in 2011 of $54 million over the following four years, and a further $9.3 million a year* from natural heritage management, can now minister to fewer than 200 of them. So we’re reduced to triage: trying to pick likely survivors, and turning our backs on the basket cases.

Conservation in New Zealand means killing things: trapping and poisoning pestilence so that native species might just get enough breathing space to breed. But the conservation estate is vast – at eight million hectares, nearly 30 per cent of the country – and only a million hectares receive any kind of intervention. Elsewhere, populations are left to die. Kiwi are disappearing from such neglected corners at the rate of six per cent a year.

As it stands, then, pest control is too little, and for many will come too late, if at all. More species will go extinct, which is why the notion of a predator-free New Zealand, conceived by the late Sir Paul Callaghan and upheld by a think tank of conservationists including Rob Fenwick, Gareth Morgan, and Charles Daugherty, is one we simply must have, and hold close.

But before we embark, we need to be crystal clear about what we mean, and honest about what we want. In much of the literature to date, “pest” and “predator” have been freely interchangeable, but they mean two very different things, and the distinction is a deal-breaker. For the purposes of publicity, “predator” appears to mean rats, possums and mustelids (ferrets, stoats and weasels).

This is unquestionably the unholy trinity of pest control. Collectively, they do the bulk of harm to native birds, but there is a whole host of other imports out there doing proven and significant harm to native species – cats, hedgehogs, wasps, wallabies, wild pigs, goats, deer, thar, chamois, and while we’re committing blasphemy, we may as well utter the unutterable: trout and salmon.

But few are prepared to publicly brand these animals as “pests”, despite reams of peer-reviewed literature which clearly shows that, ecologically, that’s very much what they are. That’s because one person’s pest is another’s recreational resource, stuffed trophy or even their prime income. There is simply no Government, trust or NGO, real or imagined, that will risk taking on the hunting and fishing lobby, nor ordinary household cat lovers. That’s why the predator-free NZ web site is silent about these creatures (although Gareth Morgan has publicly campaigned for cat control – and was predictably vilified): to advocate for their removal would be to lose the PR battle before it begins.

The elephant of conflicted interests has ever stalked the conservation boardroom, and practitioners have tiptoed round it. But is it ethically acceptable to engage the New Zealand public with these game-changing aces firmly concealed up your sleeve? A pest-free campaign will depend critically upon public support, moral and financial. But many people will assume they’re sponsoring the final, enduring salvation of endemic biodiversity when in fact, mustelids, stoats and possums are really just the top priority.

Even if we put aside the damage caused by browsing animals and sport fish, our flora and fauna face many further threats. Nobody can accurately predict the impact of climate change on native ecosystems, but projections are frightening: early work by botanists Stephan Halloy and Alan Mark found that New Zealand’s alpine habitat – reckoned in 2003 at 30,000 square kilometres, or 11 per cent of our land area – could shrink to just 6700 square kilometres, or 2.4 per cent – by 2100.

That loss of habitat, combined with displacement by exotic weeds exploiting the new opportunity, could see the extinction of between 200 and 300 native alpine plant species. And that was based on conservative warming estimates.

Ocean acidifcation, kauri dieback, the truly neutron time-bomb of invasive pest plants, loss of genetic diversity, illegal introductions and translocations of game animals and fish – all these things will go on to sapping any recovery, regardless of how many rats are killed.

And then there’s habitat loss. Native forest continues to fall to the axe on private land, taking crucial local populations with it. Wetlands, incomprehensibly, are still being drained, despite the fact that we’ve already lost 90 per cent of the original extent. Rivers and stream flows are forever appropriated for irrigation, and filthy, nutrient-sodden effluent allowed to run back into them.

Because the Government shows no inclination to act (thereby following a long, shameful tradition) it’s left to the public and enlightened businesses to bankroll any new vision for our Nature. So yes; we manifestly need initiatives like predator-free New Zealand. It must happen.

But if the public is stumping up the cash, they deserve more than a PR strategy. If we’re selling them a future of some ringing, abundant utopia – a reprise of Banks’ shoreline cacophony – we do them, and biodiversity, no favours by sanitising the action plan. They need to know that it will demand much more than simply extirpating a narrow suite of predators.  

We should warn them that it will get ugly, that some species will be lost regardless, and that they will need to make some tough choices. Cats or wildlife? Hunting or healthy forests? Sport fishing, or hope for the three-quarters of our native fish facing extinction?

Intact, diverse ecosystems? Or a compromised, dysfunctional theme park?

 

* There was a last-minute $20m top-up in the 2013 Budget to try to stem a haemorrhage of jobs in the Department. 

17

The Power of N – Nutrient Caps and Peak Dairy

by Dave Hansford

Chris Lewis quickly backed down from the suggestion of a dairy moratorium in the Waikato, but environmentalists won’t let it go so easily. The Waikato Federated Farmers president now insists he merely raised the notion as a “straw man” at an executive meeting, and that he was subsequently misrepresented. But the genie is out of the bottle again, so we may as well talk about it.

Lewis’ comments specifically referred to a plan by state-owned farmer Landcorp to run another 27,000 cows on 20,000 hectares of former forests at Wairakei, near Taupo, by 2021. They came as something of a surprise because until now, the Feds’ response to everything – climate change, the economy, food security – has always been to argue for still-greater production. But Lewis has spotted a game-changer coming: one that has only just begun to divide the country’s most muscular agricultural cartel.

It’s all about cows’ wee. Each day, every dairy cow in the country passes 23 litres of urine, and there are now 6.7 million of them. There are also around 3.6 million beef cattle, which means our landscape gets drenched with more than 230 million litres of bovine urine (plus the outpourings of calves and 29.6 million sheep) every day. The nitrogen load of a single urine patch can run to a tonne per hectare, and that’s far more than any natural system can absorb – more than 750 tonnes of nitrogen run into Lake Rotorua alone each year.

Depending on soil type and topography, it can take up to 100 years for nitrogen to leach into the nearest waterway, and that’s the zinger right there. Many of our waterways are already saturated with nitrogen (and its evil twin, phosphorus), such that regional councils are spending tens of millions of ratepayers’ – and taxpayers’ – dollars trying to clean them up. But we haven’t even begun to see the worst of it. Beneath every dairy district, there is a subterranean tidal wave of nitrogen seeping inexorably downhill, into groundwater, into creeks, then rivers, then estuaries. As it goes, it whips plants into superfertile overdrive: freshwater algae run riot, exploding into blooms of sometimes-toxic scum.

All this comes at the expense of other creatures: studies show that high levels of dissolved nitrate can stunt development and reproduction in aquatic invertebrates and fish, or straight-out kill them. People cannot swim, or fish, or paddle, or drink the water. By any sane measure, it becomes clear that New Zealand reached Peak Dairy years ago. It has to stop; councils know it, and now some farmers understand it too. Nitrogen caps are limits, set and enforced by regional councils, on the amount of nitrogen allowed to leach from a given farm. Horizons Regional Council in the Manawatu has finally, after years of litigation by farmers, imposed a duly compromised set of restrictions around land use and runoff, and requires each farmer in the Manawatu River catchment to prepare a nutrient budget. The Bay of Plenty Regional Council, faced with crippling bills to rehabilitate Lake Rotorua, has moved too. Similar restrictions now guide agriculture around the margins of Lake Taupo.

So Chris Lewis – and most thinking farmers – can see the writing on the wall: if they’re not already regulated, they soon will be. And the more farms – or more correctly, the more cows – in a catchment, the smaller will be each farmer’s nutrient allowance. Don’t underestimate the magnitude of what’s happening here: for the first time, the headache of nutrient leaching is slowly being transferred back to those who caused it. Farmers have enjoyed a privileged status since the country was founded. They may have had subsidies wrenched off them in 1984, but make no mistake; they’ve nevertheless enjoyed a form of protected status ever since. In the realisation of their profits, they’ve left 56 per cent of monitored lowland lakes eutrophic – full of enough nutrients to trigger a bloom – or worse. The National River Water Quality Network, a monitoring programme that regularly samples 77 river sites country-wide, recorded nitrogen loads increasing by 1.4 per cent a year between 1989 and 2007.

The Government has committed a shade under $14m to rehabilitating such fouled reaches as Lake Ellesmere, and the noxious Manawatu River, found by the Cawthron Institute to be the filthiest river in the western world. The Lake Taupo clean-up was projected to cost at least $80m, but needs much more. The Waikato River will need at least $210m to return to health. The Rotorua Lakes will cost at least the same. All these projects are funded by some mix of central and local Government funding. According to Environment Minister Amy Adams, New Zealanders have already committed more than $450m in taxes to cleaning up their own iconic lakes and rivers after farmers have finished with them. That, in any language, is a subsidy.

And that’s the damage already done: future generations will grapple for decades with the insidious, lasting legacy of what we enjoyed as a dairy boom.

Endlessly citing the familiar litany of dairy pollution, though, doesn’t get us any closer to a solution. We need to understand the position some farmers have found themselves in. The Government has saddled them – dairy farmers in particular – with the responsibility for resuscitating a moribund economy (don’t confuse the cost of earthquake rebuilds for prosperity). Under the terms of the Primary Growth Partnership, ag minister Nathan Guy wants primary sector export receipts to double in value by 2025. Given that they have already wrung monumental production increases from their properties – an average 57 per cent per hectare between 1992 and 2012 – that demand in critical markets like China has flattened, exchange rates routinely swing against them, and international dairy prices tumbled more than 50 per cent last year, the only practical thing left for dairy farmers to do is to stock more cows.

That, of course, is precisely what regional councils don’t want them to do – and nor does the public. But farmers find themselves in a crossfire of signals. The Government, like some Harlem pusher, is doing everything it can to coax farmers into still more expansion. It has adopted fresh water quality standards so lax they would give the filthy, lifeless Yangtze a clean bill of health. It removed the obstacle of a democratically-elected regional council in Canterbury that was proceeding on water issues with a caution mandated by voters. Instead, it installed pro-irrigation, agri-business-friendly “commissioners.” It has devoted $35m of taxpayers’ money to facilitating irrigation schemes. It granted agriculture exemption from the Emissions Trading Scheme on what is unfolding as a perpetual basis.

That’s only a small part of the onus on dairy farmers to intensify: many operate on land valued at close to $40,000 a hectare, with assets – stock, plant and machinery – worth an average $1.2m per farm. These costs are far in excess of what their international competition must meet, and the result is breathtaking levels of debt. Over the past decade, dairy sector debt almost trebled to around $32b – an average of more than $2.2m per farm (but debt is in reality heavily concentrated: around half of it is held by just 10 per cent of farmers). There are cases of individual farmers presently more than $10m in the hole. With that much riding on assets so exorbitant, there’s a powerful incentive to produce as much milk as you can.

So it’s all the more laudable that many farmers are spending big money to curb nutrient losses and adopt best environmental practice; writing up nutrient budgets, analysing nitrogen and phosphorus losses through dedicated software. Restoring wetlands so that they can help absorb the losses. Building stand-off pads and winter houses to get cows off boggy paddocks, when nutrients run straight off.

Which is one reason Chris Lewis is wary about the expansion plans of Landcorp and others. He insists that he doesn’t want any good work already done undermined by industrial-scale operations upstream. But most of all, he knows what will happen when regional councils eventually put a price on nitrogen and phosphorus. He knows that first-come, first-served mechanisms in the RMA will not serve smallholders and family farms well. That they couldn’t possibly compete with the likes of Landcorp when it comes to buying up allocations or credits. He knows that nutrient charges would tip scores of farms presently running on a knife edge of viability clean over that edge. The jostling for position has already begun.

For the first time in the country’s history, we are seriously considering two transformational ideas: farming within limits, and polluter pays. A very small molecule is having a profound effect.

31

So NZ First gets another list MP? Or does it?

by Philip Lyth

Winston Peters becomes the new MP for Northland,  and his party gets another list MP for a total of 12 votes in Parliament?  Or does it?  This post explores some of the issues and notes the Privileges Committee may get involved..

Up to this morning, everyone has assumed that a Winston Peters win would mean a 12th NZ First MP, but almost no-one has looked in detail at how this would be effected.  Graeme Edgeler did discuss this a month ago and thinks that, while the Electoral Act isn’t especially clear,  the result is sure.

I am not convinced,  and think the question may well end up in front of the Privileges Committee.

First,  some background.  This is the first time that a sitting list MP has contested and won a by-election.  But it is not the first time a list MP has stood.  In the early days of MMP,  ACT’s Owen Jennings stood in the 1998 Taranaki-King Country by-election and came within 990 votes of defeating National’s Shane Ardern.  Since then,  five other list MPs have stood in the Mt Albert, Mana, and Te Tai Tokerau by-elections.

The Electoral Act is silent on the specific circumstances of what happens if a list MP wins a by-election,  so it will be up to Parliament to deal with this novel situation,  as it has dealt with other matters.  The House will adjust and will cope.

The 1998 by-election made it clear that a list MP could stand in a by-election and retain their list seat if not elected.  A list MP is not prevented from standing  (whether or not you think that is a good idea.  If you want to have a say on that,  see the final para.)   I am confident that at that time,  the Clerk of the House would have prepared advice for the Speaker on the steps to be taken if the list MP was successful.  While that advice has not been published,  it would have been checked and updated from time to time,  and is probably being reviewed right now.

Is it automatic that a new list MP will enter Parliament for NZ First?  Cards on the table, I think that will happen,  but the processes of law must be followed.  And there a couple of possible difficulties. 

First,  will Winston Peters himself try to stop a new list MP?  I had been pondering this earlier this morning,  and I see TVNZ’s Katie Bradford has tweeted that when he fronted the media today:

Winston Peters is considering not replacing himself with another list MP. Says he believes in smaller parliaments.

I would put nothing past Peters,  he is wily and experienced.  He is indeed capable of defending this course of action,  pointing to both a smaller Parliament of 120 MPs,  ‘as intended by the Royal Commission’ he would likely say, and to a saving of ‘millions of dollars’ in salary and support costs over the next 2½ years until the 2017 election.

What will he do?  He again ducked the question when he was asked on TVNZ’s Q&A this morning,  saying only that “The Board [of NZ First] will turn its mind to that,”  and noting that the Official Count and the return of the writ are nearly two weeks away.  (This new twist will doubtless now be exercising fine legal brains in the Office of the Clerk, and they will be providing updated advice for the Speaker.)

The second possible difficulty is that someone will try to challenge the return and swearing-in of a new list MP.  There is no precedent and the Electoral Act is silent on what should happen,  so there is opportunity for a challenge if a person has the determination and the resources.  The greatest obstacle is that Parliament is the final arbiter of its own membership.  It does not look kindly on outsiders attempting to determine or affect that. 

I respect Graeme Edgeler’s views explored in his blog four weeks ago.  However he brings a lawyer’s view of the law and the Courts to his thinking.  As many have found in various ways over time,  Parliament is not a Court of law but a political arena.

What happens from here?  It is certain Winston Peters will do nothing in the next week.  The House is sitting until Thu 1 April,  and he will take his seat as NZ First Leader and list MP,  using his vote on various bills.  He will bask in the limelight and enjoy National’s discomfort.  Then fortunately there is a three-week recess for Easter, school holidays, and Anzac Day.  It that time much will be determined. 

The deadline for special votes is 7pm on Tue 7 April, and the Electoral Commission’s target to complete the Official Count is the next day, 8 April.  The writ naming Winston Peters as the MP for Northland should be returned to Parliament a few days after that.  A number of things could happen before Parliament resumes on Tue 28 April.

Having mused like Hamlet,  Peters could determine in his own mind that there is to not be a new list MP.  Chief Electoral Officer Robert Peden said at the time of the Te Tai Tokerau by-election

"There is no statutory obligation on a list member who wins a by-election to resign his or her list seat. However, by not resigning their list seat, the list member would be preventing their parliamentary party from benefiting from the byelection win through gaining an additional member in the House from the party's list"

Yet Mr Peden has no role to play in interpreting the law and determining what happens in this case. As Chief Electoral Officer, he and his team run elections,  and return the writ to Parliament naming the successful candidate.  He also fills any list vacancy that arises and returns the writ for that to Parliament.  But whether any list vacancy arise or not is for the Speaker and Parliament to determine.

(Parenthetically,  full credit to Robert Peden and his team for the conduct of the by-election.  Election night results from over 80 polling day voting places and over 13,000 early votes were all online by 8.45pm,  and a spreadsheet with a full breakdown of votes at each place was online by 2am. )

I think it highly unlikely that Peters would choose to renounce a 12th MP.  While he could publicly make a virtue of a smaller Parliament and saving millions, he would also forgo a crucial vote in Parliament.  For any Government bills supported only by National and ACT’s David Seymour, it makes no difference whether the vote is 60-61 or 60-60, they are lost anyway.  (Under Standing Order 153,  a tied vote is lost.)  Changes to the Resource Management Act currently fall into this category.

But consider Members’ Bills such as David Shearer’s Feed The Kids bill,  which Peter Dunne and the Maori Party were willing to support to Select Committee.  That was defeated 60-60 on a first reading;  had NZ First a 12th MP it would have been sent to select committee and possibly progressed further.  Currently NZ First has four of its members bills on the Order Paper,  and more in the ballot.  They will want to progress as many of their bills as possible,  and also to support at least some Opposition bills. That may be the decisive consideration.

( As an aside, will National whips on Members Day this week instruct their MPs to filibuster as much as possible in order to delay new bills being balloted? Or could they try to whip through business to get NZ First’s bills on Sky City Convention Centre and on Free Trade Agreements voted down before NZ First has a 12th MP sworn in?  Filibustering could backfire.)

If Peters does want to renounce a 12th MP, what then?  If the Speaker accepts the situation,  that is an end of the matter,  and Parliament continues with 120 MPs.  But what if the Speaker considers that a list vacancy has arisen?  This is an area where the law is unclear. S134(1) of the Electoral Act simply says:

If the Speaker is satisfied that the seat of a member elected as a consequence of inclusion of the member’s name on a list submitted under section 127 has become vacant, the Speaker must, without delay, publish a notice of the vacancy and its cause in the Gazette.

That would then mean the Chief Electoral Officer would then be responsible to determine the name of a new list MP.  As NZ Herald has reported,  that could be Ria Bond or if she declines, Mataroa Paroro, who is married to the sister-in-law of Tracey Martin.  Graeme Edgeler is certain a vacancy cannot arise, saying it is not provided for in s55 of the Act.  I am less certain,  given the situation is without precedent and not explicitly provided for in the Act.  David McGee,  the acknowledged authority writes in Parliamentary Practice in New Zealand notes  (3rd edition, published in 2005, well after the Taranaki King-Country by-election):

The responsibility for setting in train the machinery for filling a vacancy in the membership of the House rests with the Speaker.

and

As far as the House is concerned the Speaker has indicated that before taking the drastic step of declaring the seat of a sitting member to be vacant, the Speaker will give the member concerned leeway to argue to the contrary.  In a doubtful case this may involve the Speaker referring the matter to the Privileges Committee for consideration.

McGee also notes:

However, both the House and the courts may have a role in establishing or helping to establish for the Speaker that a vacancy in fact exists.

If Peters and the Speaker disagree as to whether there is a vacancy in a list seat,  I’d expect that the Speaker would refer the question to the Privileges Committee for inquiry and report,  and for the House to receive the report.  That has happened on occasion.  Of course Winston Peters’ seat on Privileges would have to be taken by another NZ First MP for the duration of the inquiry.

Next,  Winston Peters might,  having listened to the public clamour for a 12th NZ First MP,  and indicate he wants to bring in Bond or Paroro.  This might be a matter of straightforward mechanics:  the Clerk would indicate whether or not a formal resignation as a list MP would be required, or whether the vacancy would arise on receipt of the Northland writ.  The Clerk and her staff are very good at ensuring that procedures are understood and followed to have lawful effect.

Turning to the second area of difficulty:  what if someone tries to challenge the return and swearing-in of a new list MP?  Yes,  someone with the determination and financial resources could engage the services of a prominent public law firm and obtain a scholarly opinion with copious footnotes.  No doubt this would be used to generate heat through the media,  but might not gain much traction at Parliament.  While an aggrieved person might go to Court citing McGee above,  it is likely that the Courts would decline to rule,  citing comity and deferring to the respect the Courts and Parliament maintain for each other. 

To the disappointment of various members of the public,  they cannot complain to the Speaker on a matter of privilege  -  only an MP can take that step.  It is unlikely to see how any benefit would accrue to National by doing so, although it remains to be seen what the mood of caucus and their Board would be.  There is one MP placed to write to the Speaker:  ACT’s David Seymour.  Would he be of a mind to put pen to paper?

Finally the Justice and Electoral Select Committee is conducting its review into the 2014 election, as it does every 3 years. There will likely be in time an Electoral Amendment Bill to progress agreed changes before the next election.  I hope the members consider clarifying the law on what happens when a list MP wins a by-election.  Submissions are open until Tuesday 31 March,  and anyone can submit on this or any other matter relating to elections in New Zealand.