Planning Bill

Committee of the whole House

Thank you, Mr Chair. This is a very substantive part of the bill when it’s called “Foundations”. I don’t think it includes any schedules, but it does include a lot of important clauses. The first of these is clause 11, which is “Goals”. A lot of the architecture and framework of these pieces of legislation go to those goals. They don’t have a hierarchy, they’re going to be in conflict with each other, and they’re very development-focused in this bill.

As we work our way through this part, we can get to the issue of the resolution of conflicts that the Minister cites. But starting on goals, I have an Amendment Paper, 694, which would replace clause 11 with some of the same goals but also different goals. Some of these goals are talking about, in my new clause 11(1)(b), supporting and enabling economic growth “alongside environmental protections, restoration, and enhancement of the natural environment:”, and also (c): “to create well-functioning urban and rural areas that are responsive to the diverse and changing needs of people in their communities in a way that promotes—(i) the use and development of land for a variety of activities, including for housing, business use, and primary production; and (ii) development capacity, in relation to housing and business land, being available well ahead of expected demand; and (iii) adaptable and resilient urban forms that provide access for people and their communities to and between social, economic, recreational, and cultural opportunities while protecting productive soils:”. That is important.

Another change would be at 11(1)(i), which is to provide for Māori interest, and to replace that with the equivalent of section 6(e) in the Resource Management Act, and to also include a climate change goal in paragraph (e) of my Amendment Paper, which states, “to assist New Zealand to meet the target set under section 5Q of the Climate Change Response Act 2002 through the reduction of greenhouse gas emissions and the removal of greenhouse gasses from the atmosphere:”.

I think these would be great changes to the goals, in order to have a piece of legislation that does better for all of us. So I would be interested in the Minister’s comments on that, and then I have another amendment in that Amendment Paper, which would be to insert a new clause 11(3), which is, basically, that if there is a conflict between the goals, then you go to the purpose of the Act. My version of the purpose of the Act that we discussed in the other part was a bit more fulsome than the Minister’s in terms of the fact that it talked about integrated management. So I was wondering if the Minister would like to comment on my great recommendations for improvement to the “Goals” clause, to do better for all of us.

Committee of the whole House

The short answer, without being disrespectful or rude, and I’m sure the member’s put a lot of effort into them, is that we also have, equally, put a lot of effort into the goals of the Planning Bill, which members can see at clause 11, and we’ve literally thought very carefully about every single word and the provisions there. We think we’ve got the balance right. The goals are at the heart of the new system, and we’re not intending to make any changes.

Committee of the whole House

Thank you, Mr Chair. I have no doubt that the Minister responsible for RMA Reform won’t be interested in my tabled amendments amending clause 11, but I do want to speak to them and ensure that they are sufficiently on the Hansard, because I think this really comes to the heart of the missed opportunity to create an enduring and bipartisan approach to planning and environmental protection.

While Government parties may have thought carefully about the wording in the goals, it’s pretty clear that it is not wording that I think captures the broader interests of New Zealanders in our urban planning system, which is not simply to ensure that land use doesn’t unreasonably affect others. So my first tabled amendments would change the first paragraph (a) of subclause 11(1), to state, “to ensure that land use supports sustainable, livable, and affordable human settlements while reducing greenhouse gas emissions.”

I’m totally open to the purpose changes that the Hon Rachel Brooking put in the first part, and also the alternative wording to take into account climate change. But there’s no question that fundamentally creating towns and cities that reduce greenhouse gas emissions is part of the solution to climate change. If we don’t have that as a goal of this bill, then there’s not going to be the ability to do that important planning that would reduce the emissions from people living their everyday lives.

A whole lot of the emissions that are making climate change worse and then flooding our communities or creating unbearable heat in the northern hemisphere during their summer—our winter—are affecting the ability for us to produce food affordably, and can be seen in the fact that our planning rules and planning approach basically maximised greenhouse gas emissions, because it makes it so that people have to drive around and use excessive amounts of fossil fuels to get from point A to point B, which, by the way, is a horrible waste of time, a drain on our productivity, and a huge cost to individuals. So here is a total missed opportunity to do something that would get better outcomes.

For paragraph (b), I, of course, as a Green MP, don’t think economic growth for the sake of it is worthwhile. Economic growth, just GDP growth, could mean a whole lot more costs and a whole lot more misery for a lot of humans. What we do want is to support and enable quality of life, affordable housing in transport, and density and diversity of land use within urban areas. I think the Minister might agree with that last bit. So that is my alternative clause 11(1)(b), which makes it more about what the actual point of the economic growth is in the Minister’s mind, which is actually improving the quality of life for people. That should be the goal, not economic growth for the sake of it, which could come at the expense of wellbeing for a whole lot of people, and indeed does, at the moment, in places like the United States.

In clause 11(1)(c), after “rural areas”, I suggest simply inserting “within environmental limits”, because I think that is important that we recognise that well-functioning urban and rural areas do have to be within environmental limits, because everything we do as humans is reliant on a planet that has life on it, that has clean water, that has clean air, that has healthy soil, that’s able to produce food, that has a stable climate. Clause 11(1)(d), after “business use”—again, just adding something to the end of this: currently, it says “to enable competitive urban land markets by making land available to create abundant development opportunities for residential and business use”. I insert, following “business use”, “while protecting the health and diversity of natural ecosystems.” I just think that point has to be made so clear in 2026, in the second quarter of the 21st century, where we’re seeing catastrophic loss of species and increasing severe weather events that are affecting the ability of people to live. We will not have a thriving future if we don’t start living within environmental limits and looking after the health of ecosystems.

Clause 11(1)(e): before “infrastructure”, I suggest inserting the word “sustainable”. I think sustainability has a pretty well understood meaning, in terms of both fiscal and environmental sustainability. We also had suggestions—[Time expired] Mr Chair, if you don’t mind, I’d like to continue to finish summarising my amendments to clause 11.

CHAIRPERSON (Greg O'Connor): The Hon Julie Anne Genter.

Hon JULIE ANNE GENTER: Thank you, Mr Chair. There was quite a proposal from, I think it was, The Aotearoa Circle—I think it was them. There was a group that did a big splash about natural infrastructure, or green infrastructure—

Hon Rachel Brooking: It was them.

Hon JULIE ANNE GENTER: It was The Aotearoa Circle—sorry, it’s kind of late. They were suggesting explicitly defining natural infrastructure and green infrastructure. There’s just this huge opportunity to recognise natural ecosystems as part of our infrastructure, and they can do somethings better than we can. For example, kelp forests are possibly more effective than seawalls at preventing encroachment of rising seas and tides, and kelp forests have all these other fantastic benefits. For most of the 20th century, I’d say—maybe it goes back as far as the Industrial Revolution, but especially in the 20th century—civil engineering, for all its wonders, undervalued the impact of natural ecosystems and the possibility of working with ecosystems rather than working against them.

Anyway, we could have “natural infrastructure” instead of “sustainable infrastructure” or “green infrastructure”. It would be helpful, I think, to add that to the definitions or to recognise it explicitly in our planning laws. I was at the World Green Infrastructure Congress speaking two years ago in Auckland. It was a massive world conference where experts from all over the world came to our country and we’re speaking about the role of green infrastructure in lowering costs and getting better outcomes for air quality, biodiversity, water management, and climate control in cities. That concept seems to be entirely missing from this. Admittedly, the Government could put it in the national direction—

Hon Chris Bishop: It is.

Hon JULIE ANNE GENTER: I look forward to seeing it in national direction—fantastic. I haven’t had a chance to read it, because I’ve been reading the amendment Bill.

I’ve just got one more, Minister, which is on clause 11: after clause 11(1)(g), inserting a new paragraph (ga). This is, again, an alternative to what the Hon Rachel Brooking suggested, which was an explicit goal to reduce greenhouse gas emissions and adapt to climate change. It seems a sensible thing.

Committee of the whole House

Happy days for the Hon Julie Anne Genter. Infrastructure, which we just covered in Part 1, “(a) means a physical structure, facility, or network”—blah, blah, blah—“(b) includes a natural feature that is modified in order to—(i) perform a public function; … (c) includes a physical facility …”. I think the member’s points around natural features and green infrastructure and ecosystems are included within the definitions of what she is talking about. So I agree with you.

Hon Julie Anne Genter: It’s not in the goals.

Hon CHRIS BISHOP: It’s not in the goals, because it doesn’t need to be, because the word “infrastructure” is in clause 11(1)(3): “to enable infrastructure …”. Then you look at what infrastructure means and you look at the definition. This is basic statutory construction. Infrastructure includes the things I’ve just talked about. There is no need—in fact, arguably, it is more confusing—to add prefatory phrases in front of key terms, because then the lawyers will say, “Well, but infrastructure is already defined in clause 3 and you’ve added something else to it, so now we’re in a confusion.” We don’t need to do that. That would actually be bad drafting. It’s included. Every word matters. To quote the great matua of the House, Mr Peters, “words matter”, and that is true.

Tom Rutherford: The great rangatira.

Hon CHRIS BISHOP: The great rangatira; that’s right. I agree with you about green infrastructure: it’s important, it’s useful, it’s necessary. I don’t think adding the word “sustainable” adds anything to it, frankly. Likewise, the same critique can be made of the idea of adding the phrase “within environmental limits” into the goals. We actually thought about that; some members made a good point. There is a whole separate regime in the Natural Environment Bill in particular around limits. Given you’ve got that environmental limits regime in the bill, you don’t need to repeat it in the goals.

Clause 11(1)(d): I’ve dealt with the point around ecosystems. Climate change: just to lay on the table the Government’s position, we have a whole separate regime to deal with the effects of greenhouse gas emissions.

Hon Rachel Brooking: How’s it going?

Hon CHRIS BISHOP: I can hear the cries already: “The emissions trading scheme is ineffective.”, “It’s not perfect.”—blah, blah, blah.

Hon Julie Anne Genter: But it’s after the planning happens, so it’s not an effective price signal.

Hon CHRIS BISHOP: The Government’s view is that the appropriate place to deal with the negative effects of greenhouse gas emissions is not the environmental system or the planning system; it is the Climate Change Response Act. The positive effects of things like renewable infrastructure, renewable energy infrastructure, for example, are included in the system, but the negative effects of greenhouse gas emissions are not. I accept that members have a different view around that; it is a legitimate debate about public policy around that. The Government’s position is the one that I have laid out. Natural hazards is important as well, which includes things like floods, erosion, and other areas. The effects of that should be dealt with through the planning system, but climate change emissions reduction is not included in this system.

Committee of the whole House

Thank you, Mr Chair. One further Amendment Paper that I had on the goals: if in the unfortunate event that the Minister responsible for RMA Reform doesn’t agree with my Amendment Paper 694, how about including, at clause 11(1)(d), after “competitive”, “and efficient urban land markets”? There’s just a little Amendment Paper there, No. 743, that the Minister might want to consider. Then I’ll move on.

Clause 12 is the relationship between key instruments in decision making. At subclause (2), it says “Each key instrument (other than the national policy direction)—(a) must implement the instrument listed directly above it; and (b) must implement an instrument higher up the list if required by that instrument.” It’s just a very small question here to the Minister: does he read that as, essentially, codifying King Salmon? Is that why we’re putting in clause 12 there.

I’ve also got a very different amendment from the ones I was talking about before. This is Amendment Paper 707, and it’s an inclusion at subclause (3). We’re still on clause 12, which is “Relationship between key instruments in decision-making”. At subclause (3), it says, “A person exercising or performing a function, duty, or power under this Act in relation to a matter” must consider various things. I’ve got an insertion there, which is a paragraph (d), “must consider the polluter pays principle.” I think this would be an excellent thing to give some comfort that the Government isn’t, in fact, doing what I suspect they’re doing and just opening up our whole economy for polluters to pollute some more and for the public to pick up the price tag.

Committee of the whole House

Nice try! No, we won’t be agreeing to that. It depends what you mean by “polluter pays”, of course, which would be the great challenge there.

Hon Rachel Brooking: We could define it.

Hon CHRIS BISHOP: Oh, well, I look forward to that! In relation to the Hon Rachel Brooking’s substantive question around King Salmon—there’s a lot in King Salmon, but in relation to the point she was making—I’m going to give a tentative yes to that intention. Codification, I think, is probably not correct. New Zealand law doesn’t really codify things. We have laws or we don’t, but it certainly lays out a statutory schema of, as I understand it—she’d know more about it than I would—the King Salmon decision from 2006, I think.

Hon Rachel Brooking: A long time ago.

Hon CHRIS BISHOP: A long time ago, back when you were a young whippersnapper lawyer in Dunedin and I was not an MP.

Committee of the whole House

Thank you, Mr Chair. A quick question for the Minister about the “Goals” section, clause 11 in Subpart 1, read in light of the Treaty principles. The question is, should this provision be read in light of what the Resource Management Act (RMA) was before? Is this taking that away, and the courts are meant to interpret the removal of an express provision for giving effect to kaitiakitanga that you can’t sort of read in to providing for Māori interests?

The Minister will know that, so far, the duties and the powers he’s removed from the goals section where he’s striking through “all persons exercising or performing functions or powers under this Act”—previously, that probably would have brought in any sort of, say, consultation or the ability for local authorities to include iwi or Māori representatives within their decision-making processes that weren’t given effect to just buy planning instruments. But now we’re limited to just those documents, and though there’s a goal to provide for certain Māori interests within those, they’re not the full suite of what the courts have interpreted over the years as being the rights and duties that iwi Māori have to participate in local government decision making.

I’m not asking for a return to the recognition of kaitiakitanga here—I know why he’s gotten rid of that—but there are things here which seem to be missed out, and things which many in this House would see is reasonable to include iwi Māori in. Those are things like the protection of the pōhutakawa trees at Judges Bay, which were an issue of significance in Auckland’s local politics for some years when the Erebus memorial was being proposed in the Parnell Rose Gardens, for instance, that is not within the definitions of something like a wāhi tapu—those were the trees themselves.

The question here is around, well, do the principles still apply? Does the series of cases, starting with the lands case, being developed by the Huakina case, then Wellington Airport’s consultation case, which set out over a long period of time that the RMA wasn’t the basis for those consultation rights, but Te Tiriti o Waitangi and its principles were—are they meant to be updated by what he’s doing here, or do they exist in tandem and it’s for the courts to decide whether those consultation rights still exist? And when are you meant to then apply the goals if they only apply to those instruments, but there are other powers, like the duty to act honourably, the duty to act in good faith, the duty of active protection, and the duty to consult?

Committee of the whole House

Well, there’s quite a lot in that—a real tour de force through the last 30 years of Treaty jurisprudence.

Arena Williams: Very brief—very brief.

Hon CHRIS BISHOP: Very quick. Also, I’m advised that the King Salmon case was 2014, so I don’t know where 2006 came from.

Hon Rachel Brooking: Oh, OK. I wasn’t young—I wasn’t young.

Hon CHRIS BISHOP: You were a little bit younger. Anyway, I got that wrong, too, so no doubt Gary Taylor is going to send me an angry text message about my lack of knowledge.

So quite a quick tour, without presupposing where councils may get to—I mean, the member will be more familiar with Judges Bay than I am. The sites of significance to Māori is not—subparagraph (i)(ii) in clause 11, “including wāhi tapu, water bodies, or sites in or on the coastal marine area”; that’s just a kind of gloss on that. It’s not limiting to that, so it doesn’t have to be wāhi tapu. There will potentially be national direction in relation to how those are defined—look, I think there needs to be an evidential threshold. It can’t just be a self-defined, you know, “Whatever you want.” So there may well be national directional standards around evidential thresholds and things like that. The member will know more about Judges Bay and other areas in Auckland, in particular, where there’s obviously a range of sites, including here in Wellington, as well. I’m not going to get too far into that. That will be provided for through planning.

I just want to repeat what I said before, which is that the intention of what the Government is trying to do here is lay out, to some exhaustive detail, a statutory scheme that, as much as possible, addresses what the role of Māori interests in the system are. You can see that through participation in national instruments, spatial plans, land-use plans—there’s a range of other things throughout the Act. I’m not going to make a comment on some of the other things the member mentioned in her remarks, but I think we’ve done a good job at providing for laying out what those interests are and how they’ll be given effect to. And then, of course, national direction will do a lot of the fleshing out of that through the national policy direction and then the standards.

CHAIRPERSON (Greg O'Connor): The time has come for me to leave the Chair. The house will resume at 9.00 a.m. tomorrow. Everyone have a good night.

Sitting suspended from 9.55 p.m. to 9 a.m. (Wednesday)