Planning Bill

Committee of the whole House

Thank you, Madam Chair. Just for those viewers at home, to try and replicate what the Hon Scott Simpson used to do when I was in the same seat that Simon Court is in, he’d remind the viewers of the excitement of where we were with the Resource Management Act (RMA) replacement legislation. Three and a bit years on, here I am, reminding those viewers that we have just started Part 2. I have put forward my great amendments to the goals. There was not very much interest from the Minister. I’ve asked about the hierarchy of the instruments; I’ve asked about the “polluter pays” principles; so now I’m coming to—other people might be going somewhere else—clause 13, and that is “Procedural Principles”. Before I get there, I have been asking the Minister who was in the chair last night about the track changes in this Amendment Paper, and whether or not the member in the chair can tell us if it’s just a movement or if it’s a policy change. That’s the question about clause 12(1)(a)—if he can comment on that.

CHAIRPERSON (Barbara Kuriger): A movement or a policy change—was that the question?

Hon RACHEL BROOKING: Yes. Sorry, what I mean by that, Madam Chair, is often in these quite complicated pieces of legislation, bits will move to other bits of the bill, and then they’ll be tracked as a change, but in fact, they might just be a drafting niceness, not a policy issue. Or, of course, it could be a brand-new big policy issue that we might not spot, given that we haven’t had these changes for very long. That’s all—and that they are new from select committee. That’s what I was asking the Minister last night: if he can just take us through the track changes as shown on his Amendment Paper 709, and tell us what they mean. It’s fine to say it’s just a movement; it’s not a policy change—not that I set the rules, but if someone was asking them, that would be a fine answer.

Now, “Procedural Principles”: this is at clause 13. I have an Amendment Paper, 701, which is to delete clause 13(1)(e), which is to “act in a pragmatic way that supports practical solutions:”. I’m particularly interested in this use of “pragmatic way” in a piece of legislation. It’s not a term that I’m familiar with—you have terms like “reasonable” and “significant”, and those types of words, but not “pragmatic”. I was wondering if the member in the chair would accept my Amendment Paper to delete that, and, if not, if he can tell us why it is that such a novel term won’t add to the chaos of this new system and all of the litigation that will surround it. I’ll get to some of that chaos and ministerial decision-making shortly, but that is my question on clause 13. I’ll leave it there before I get on to clause 14.

Committee of the whole House

In response to the member’s question around changes to clause 12(1)(a), that is a ministerial decision. To clarify, the decisions on consents and permits must be made in accordance with the funnel concept in this legislation. They must first consider the provisions of the relevant land-use and environmental plan, and then any national rule contained in national standards. That is policy intent.

To the second question the member asked about procedural principle, “to act in a pragmatic way that supports practical solutions”. For far too long under the Resource Management Act, we’ve seen planners and decision makers impose impractical conditions, whether through plan rules or consent conditions, on people seeking to use their land for their own purpose. We’re very clear in this legislation: “pragmatic” indicates that we expect decision makers to make trade-offs and to see the trade-offs, to see the benefits in development applications and proposals to use land, and where there are effects to be managed, to come up with practical solutions and to accept an applicant’s or proposer’s solutions to manage those effects. This is a significant culture shift between the planning system we have now and the planning system that we aspire to and intend to have.

Committee of the whole House

Thank you, Madam Chair. I’m just wishing to acknowledge the passing of Dolly Parton, who I think was meaningful to all of us. Moe mai rā.

In Part 2, there is reference to infrastructure and natural features as part of the goals. Last night, the Minister was quite vociferous in articulating the definitions of what those things are. It is very clear from the first part.

Part of the essential character of urban areas is the urban ngahere—trees—and the most valuable urban areas are known as leafy suburbs, because they are generally characterised by having a large number of mature trees. My first question is: which of these definitions captures urban trees? Are they infrastructure, under the definition that’s outlined in Part 1, which the Minister referred to—“infrastructure … (b) includes a natural feature that is modified in order to (i) perform a public function; or (ii) support a matter described in any of paragraph (a)(ii)(A) to (D).” Now, not all trees in urban areas are modified. For example, in the west part of Auckland where I live, most of the vegetation there is regenerating native bush. Is that captured by being modified infrastructure?

It includes also remnant forest, which is sometimes centuries old. Is that defined as infrastructure? Further on in that section of “Goals” in Part 2, clause 11(1)(g), states, “to protect from inappropriate development the identified values and characteristics of—(i) areas of high natural character within the coastal environment, wetlands, and lakes and rivers and their margins:”, which wouldn’t include urban trees, reading that as it’s written. Secondly, the goal is to protect “(ii): “outstanding natural features and landscapes:”, and I don’t think it’s clear that that includes urban trees. So where in these goals are urban trees captured?

When instituting and implementing the law, how was a planner, a council, or whomever—a developer—able to understand, in their interaction with an urban tree, where it fits in this definition? That’s my first question, and I’ve got further on the subject once I get clarity on that from the Minister, please.

Committee of the whole House

I thank the member for his question. As somebody who’s lived in West Auckland, in the Waitākeres, for decades, of course we appreciate the value of trees. In answer to his question—what are trees? —well, trees can be part of an infrastructure solution; the legislation provides for that. When we’re considering developing cities or responding to intensification, providing infrastructure solutions so that we can build up and out, trees will surely form part of an infrastructure solution—whether that’s in open spaces, for community facilities, or whether that’s part of constructed wetlands, places where we can provide for managing stormwater in the urban environment. That is surely part of a well-functioning urban area.

Committee of the whole House

Thank you, Madam Chair. So to that point, Parliamentary Under-Secretary to the Minister Responsible for RMA Reform, I believe you were answering in terms of development of new infrastructure. I accept that point, yes, and I agree that the trees are an important part of that.

What I would like to clarify is where is the existing urban ngahere, the thousands and thousands of trees that existed across the urban environment? How are they captured in this legislation and recognised as having any value? Because it’s not clear to me which category they fall into, and I feel that the Minister has given clarity that there is an infrastructural component to a developmental approach that would see the planting of new trees or wetlands or water management infrastructure, which we’re supportive of; but it’s not clear whether he regards the existing urban ngahere, which, if you fly across any of our cities, is a striking and appreciated and hugely valuable feature of what makes those cities liveable. It’s not clear whether that is captured by “outstanding natural features”, which seems to set a very high bar and wouldn’t appear to capture the value of a mature tree standing on public land or parkland or private land. I would just like further clarification. Where does the Minister see existing urban trees being captured in the definitions in the goals?

To that point, there’s a follow-up question. Currently, we have a scheduling system for trees that are seen as having exceptional value, whether it’s ecological value, botanical value, amenity value, or heritage value, and they have a special protection status. There are around 6,000 scheduled trees in Tāmaki-makau-rau Auckland alone. There are similarly large numbers in other cities, and these are the sorts of magnificent trees that you might see in Hagley Park, or you might see in the Domain, or you might see growing alongside a road, you know, a 300-year-old pōhutukawa tree, or one of the earliest oak trees planted when the British first arrived. They’re recognised for their exceptional heritage, amenity, and ecological value. Those are scheduled trees. What is becoming of the tree schedules across our cities through this legislation? Is there any maintenance of their protection, or is it a blank slate now and each of those trees needs to be individually planned for under this new regime?

Committee of the whole House

Just to refer the member to definitions, that was in the interpretation section that we had debated yesterday. It’s in Part 1. With respect to where the trees are in the legislation: well, trees are provided for in terms of open areas on public land and private land. They form part of a well-functioning urban area, which is where the member’s questions are targeted. Of course, we don’t need to specify every single aspect of the urban environment in order for people to understand the concept. Where are trees provided for, the member asked, and what about the heritage trees, those wonderful trees planted by the English, those great oaks, say, in Christchurch, and many others? Some people even regard a Norfolk pine, imported here from Norfolk Island, as a tree that is worthy of some type of protection. In the new system, heritage trees—trees that have that heritage value that the member spoke of so fondly, and which I share—will be provided for in the new system.

Committee of the whole House

Thank you, Madam Chair. In going back to my questions before, thank you to the member for answering about clause 12(1)(a), that’s helpful. If he could just touch on this. He said that it’s incorporating the funnel approach. Is it relevant to the Minister’s decisions? That’s just one question there.

Then, going back to clause 13, “Procedural principles”, the member talked about how great it was going to be to be practical. I would remind the member that I did ask about court cases, and with his new terminology. When we already have, in the procedural policies, “use timely, efficient, consistent, and cost-effective processes:”—that is there already—and at paragraph (c): “act proportionately to the scale and significance of the matter to which the function, duty, or power relates:”. Those are already there, as well as at paragraph (d), “ensure they have sufficient and necessary information…after considering—(i) the cost and feasibility of obtaining the information; and (ii) the scale and significance of the matter to which the decision relates:”. My question, again, which hasn’t been answered, is why keep including these new words that are unnecessary, from what the member’s answer was, when that will lead to more upset in the system? That’s my question on clause 13.

Moving now to clause 14, which is a very important clause, and it’s particularly important because, in effect, most of it will be in effect—a lot of the use of the word “effect”, isn’t it—in just one month’s time after this bill commences, and we’ll get to commencement provisions later. But it is very important that people understand effects outside the scope of this Act, because it’s happening now and councils need to understand what they can and cannot consider.

I have a couple of amendments on clause 14. One is a published amendment at Amendment Paper 697, and that is to replace, “(a) both—(i) the internal layout of the building: (ii) the external layout of any building on the site of the effects of the layout remain within the boundaries of the site:”, by deleting that (ii), and then also to specify that at—sorry, these are all very long, aren’t they. My Amendment Paper is 697, and is a change at clause 14(1)(h) so that we replace where it says “the effect on landscape if the landscape is—(ii) not outstanding; or not an area of high natural character:” with “(ii) not an area of high natural character;”—so that repeats—“or (iii) not regionally significant for the purpose of the regional spatial planning only:”. That’s a restriction of what landscape is out of scope.

Then, to add subclause (2A), which would be a new subclause (2A). Subclause (2) of this clause says, “This section does not restrict the consideration or management of—(a) areas of high natural character…” etc.; so to add to that list “green space and urban trees.”, which might deal with some of the comments that the member Steve Abel was talking about.

I also have a tabled Amendment Paper, and that was tabled at 7.36.06, and this is after clause 14(2)(e)—again, these things that can be considered well-functioning urban environments—to add in “well-functioning urban environments”, so that can be a consideration of effects. And then I did have, in the last part, the definition of “well-functioning urban environments”, which would again go to the issues that Mr Abel was concerned about.

I’m asking, really, for some comment about the importance of those effects outside the scope of this Act, and whether they can be reduced so that, rather than “the effect of the landscape if the landscape is not outstanding”, that it’s “not regionally significant”, and that we get rid of that “external layout of any building on a site of the effects of the layout remain within the boundaries of the site” and then add in—

CHAIRPERSON (Barbara Kuriger): Hon Rachel Brooking.

Hon RACHEL BROOKING: —thank you—these extra two regarding the well-functioning urban environment.

Those are the questions around clause 14; reminding the Minister that I did have that question around clause 12A and 13 as well.

Committee of the whole House

Thank you, Madam Chair. In terms of the member’s question about 12A, I have answered that: there was a policy decision taken by the Minister responsible for RMA Reform.

Hon Rachel Brooking: But does it apply to the Minister? That was just the question.

SIMON COURT: It doesn’t apply to the Minister.

Hon Rachel Brooking: Does it? Does not?

SIMON COURT: It does not. In terms of other jurisdictions, it “does not apply to a court or person exercising a judicial power or performing a judicial function or duty.” That’s clause 13(4). I don’t mean to conflate the two things, but in terms of the member’s other questions: will there be court cases? Well, the intention is that the legislation is clear, but no doubt some will seek clarity. That’s not for me to predict, but no doubt, but let’s be clear about what we’re trying to do here with the procedural principles: we’re trying to change a deeply embedded and entrenched culture of “no” under the resource management system to a culture of permission and recognising that most of the solutions for managing effects are already well understood, which is why we’re shifting from litigating and relitigating at every consent matter, which if we followed the right process, we would say, ‘We’ve done this before. Isn’t there a way we can cut and paste?” That’s why we’re shifting to specific standards to manage effects, and the procedural principles are helpful to shift from where we are now to a more standardised approach of managing effects.

Let’s be clear: we need to raise our expectations about the performance of the planning system and those who operate in the planning system, and that is why we’ve been very clear that our expectations are that those “performing a function, [power or] duty … must take all practical steps to act in accordance with the following principles:” which includes acts “in a pragmatic way that supports practical solutions.” Most New Zealanders sitting at home or watching—and good morning New Zealand from the House of Parliament—would understand what being pragmatic means. It means making trade-offs and what is a practical solution; something that works and doesn’t cost the earth.

Committee of the whole House

Thank you Madam Chair. Like my colleague the Hon Rachel Brooking, I have a question about clause 14, which is of course the clause that, essentially, deals with mandatory considerations that the duty holder must not consider, which is an interesting way of framing it. My question relates to how this clause interacts with the New Zealand Bill of Rights Act (BORA) and specifically clause 14(1)(f); this is that the “type of residents to be housed in a new development:” is not a consideration.

The context of the New Zealand Bill of Rights Act is that we have non-discrimination provisions that are attached to the Human Rights Act, and within those provisions there is the obligation to ensure that there isn’t discrimination against disabled people. The Minister, just then, referenced most people in New Zealand will expect—well, one in four New Zealanders have a disability. According to our international obligations, we have an obligation of what’s called reasonable accommodation. This has been brought into domestic law through our case law and by signalling those lamp posts in the New Zealand Bill of Rights Act and the Human Rights Act, there’s a case of Smith v Air New Zealand that says the Government has a duty of reasonable accommodation.

The question to the Minister is whether this bars the councils from making directions about accommodation in that sense for our disabled population, or even in a broader way in terms of social and economic need, whether it would bar a council from setting guidance around the affordability of public housing, as well as the accessibility of public housing. We’ve got, now, this piece of legislation that when read on its own appears to give a clear direction. The New Zealand Bill of Rights Act itself says that where possible, Governments must aim to try and read in those rights, in as far as is reasonably possible, so the two must engage; they have to, by virtue of the New Zealand Bill of Rights Act.

My question is whether this is intended to override that or whether the Minister still sees that there is some room for rights consideration as is intended by a section 6, 5 and 4 of the BORA.

Committee of the whole House

Thank you, Madam Chair. First of all, responding to the member Vanushi Walters: indeed, I can confirm that this clause is intended to mean that the type of residents to be housed in a new development will not be a matter that’s in scope, because what we want is for our cities and the places where people live to be open and accessible to all, and rules and decisions not to exclude or discriminate on who the type of resident is. We’ve been very conscious, very purposeful, and very directive in making sure that in the new system, that will not be a consideration. I hope that puts the member at ease and deals with that question.

I just want to come back to questions from Rachel Brooking about clause 14(1)(h) which was a proposal to add additional qualifiers onto effects outside of the bill, being the effects on landscape, if that landscape is not outstanding or not an area of high natural character. This Government is very clear that we want plans, rules, planners, decision makers, national policy direction, and standards to focus on protecting what matters and protecting what is important. In this case, we want the system to focus on protecting outstanding landscapes and high natural character. We’ve been explicit that if it doesn’t fit into that group then it is, in effect, out of scope.

I want to just address the member’s question on clause 14(2)(a) where the member has proposed adding an additional qualifier to proposed new clause 14(2), which is, for those listening and watching: “This section does not restrict the consideration or [the] management of—(a) areas of high natural character within wetlands, lakes, rivers … in the coastal environment … within 3 nautical miles [of the shore] … (b) [and] outstanding natural [features and landscapes] in the coastal environment … (c) significant historic heritage: (d) sites of significance to Māori: [and] (e) the effects of natural hazards.”

Those are all in scope of the system. We’ve just been explicit in this part that they are not excluded, but if we’re going to start adding additional matters like green space and urban trees, the next thing is you’re really starting to introduce matters that are out of scope of the legislation in terms of what the effects are that we’re trying to manage, because there are positive effects of green spaces and positive effects of urban trees that councils or private property owners are—quite happy for them to invest in those things and to provide for those things, but they’re not an effect that needs to be managed in the context of this legislation.

Committee of the whole House

Tēnā koe, Madam Chair, thank you. I have a specific question about the wording in clause 14(1)(b): “negative effects of development on trade competition” are out of scope. What is meant by “negative” in this context, because I would read it as reducing trade competition is therefore out of scope but then it says “including on competing providers of input goods and services:”, so that’s just a bit unclear. Do we think “negative effects of development on trade competition” means less competition or less competition? The second half of that paragraph seems to imply that you can’t consider that it would make things more competitive and that would adversely affect a business that’s there—let’s say, because a competing business, a competing supermarket, is going to set up. But then I would think that would be a positive effect of the development on trade competition, so I’m just a bit confused about that.

While I’m standing, just in case I don’t get another call on this part, I just want to ask the Minister: while there’s this—you would not find a bigger advocate for allowing more housing within existing urban areas than I. I want to ask: under this regime, who is responsible when the impact of a development becomes clear? I have a very specific example in Island Bay at the moment with the Erskine Chapel. A whole lot of housing was put in there, which is great—council gave consent for it. Unfortunately, there’s a lot of paved-over area because it’s very car oriented—it doesn’t need to be. But there are now constituents who live down the hill from the Erskine Chapel who say that since that development went in, their house has repeatedly flooded. Who bears the cost of that impact when that was not foreseen? The council isn’t in a position to and doesn’t seem like they’re going to be able to like. And I’m not even sure if, legally, there’s a way to hold them responsible. Where’s the developer? Is it the owners of the—you know, that’s the sort of problem and impact on individuals and families and neighbours that we’re trying to avoid through a sensible approach to planning.

I’m just a little bit concerned that in the rush to get rid of harmful rules or a harmful approach to planning, the Government is actually getting rid of everything. Obviously, that happened under the previous regime, but I could see it happening a lot more because it’s not clear. When these things become obvious after the fact of permitting and consent, who is helping these people. They’re being told their insurance company is only going to repair the job so many times; the insurance company is never going to provide the funding to significantly protect the property. It is clearly an impact from the way the development happened—not the fact that there’s more homes, but the fact that they didn’t do sufficient work to ensure that the stormwater runoff wouldn’t adversely affect places around there.

I’m just trying to get to the fact that we heard in the Transport and Infrastructure Committee, particularly around clause 4, that there were issues around cumulative impact of developments—how does that get taken into account?—because it seems like it could be excluded.

Just to the Minister’s point: why should urban trees be considered? I mean, urban trees and planting and green space are always to prevent flooding and over-inundation of our reticulated stormwater network, so that’s a reason why it probably should be in the goals.

I’m just interested if the Minister can address: under this regime, who is going to be responsible for considering what the impact of stormwater and flooding is going to be of specific developments? And how do we hold people accountable? Who pays the price when we get that wrong and we’ve permitted too much of the wrong type of development that’s then affecting other people?

Committee of the whole House

In answer to the member the Hon Julie Anne Genter’s first question about effects excluded under this Act—clause 14(1)(b): “negative effects of development on trade competition, including on competing providers of input goods and services:”—the intention is that we want more competition, and that effects on a trade competitor, which have been have been brought into planning discussions in the past, are specifically excluded. So if a business wants to set up, sell something to people, trade, exchange value for value with other members of the community, their ability to carry on trade should not be a matter that the planning system needs to consider.

Hon Members: Madam Chair.

SIMON COURT: So in answer to the member’s second question—we’ve got two hours—about a specific case—

Tamatha Paul: We’ve got longer.

SIMON COURT: Oh, yeah, I’ll be back. A specific case where it sounds like there’s some stormwater impacts on people downstream from a development. Look, nothing’s changed in the way that those type of matters are viewed between the Resource Management Act and the system that we are intending to implement. But there will always be a need to assess effects beyond the boundary, like stormwater runoff, and if the member was to look to cause 15, “Considering adverse effects of activities”, the member will be able to see what is envisaged there. Thank you.

CHAIRPERSON (Barbara Kuriger): I’ll just make a point before I take another call, in that the Minister was referring to his two hours. There’s still lots of questions, but I will note that a lot of the people asking questions are taking quite full speeches. I’m not going to close anyone down while there’s still relevant questions going, but I’d really like the questions to be a bit more succinct than what a number of them have been this morning.

Arena Williams—you’ve been very patient.

Committee of the whole House

Thank you very much, Madam Chair. I want to ask two brief questions of the Minister, just clarifying earlier what he said. I’m on page 45 at clause 13(4). He clarified that the hierarchy, as he is provided, doesn’t apply to the Minister’s decisions, and he drew on that, sort of, judicial power for the reasoning for that. When the Minister’s appointees are making decisions using the Minister’s public power, does that also apply to them—say, the hearings panel in Auckland, which is a special case; I just want to clarify whether it applies to them or not.

The next question I have is about both the effects and procedural principles. This is a new substantive question, it is about how the hierarchy applies when making procedural decisions when also considering the broader requirement of the duties, which exist at common law, under Te Tiriti o Waitangi: the duty of active protection, the duty of good faith, the duty to consult. I’m asking him, in a similar way to how human rights are intended to provide—at the end of all exercise of public power, you also need to comply with our international obligations in relation to human rights. We also have constitutional arrangements in New Zealand which are meant to work in the way that once you have gone through the process of exercising power which is constituted in legislation, you also need to apply the duties that exist within our constitutional framework, which are those duties to consult and of active prediction.

In relation to both the effects and the procedural principles, I understand what the member is trying to do here to limit the effects of that, but my question to him first is: if the purpose of narrowing the bill is to provide certainty around which Māori interests the planning system recognises, what happens to those legitimate Māori interests which have not been anticipated at the moment in time or by his bill? A normal way of interpreting, say, the Resource Management Act or other legislation would be to read them in, because we have that duty of active protection within our constitutional framework that sits above the legislative framework.

My second question to that is, to the member: does he accept that the courts have developed that consultation requirement specifically as part of the informed decision-making processes that we require people who are exercising a public function, because the Crown cannot always determine for itself in advance of the consultation procedure the nature and extent of Māori interests that are affected. It’s a special question in the resource management context because those rights are protected in different ways—land use, forests, rights to taonga tuku iho [Authorised translation to be inserted by the Hansard Office]—and the Minister, in designing this legislation, has given some of those special precedence in the hierarchy of decision making. But the point is that we had to go through this in the court system from the 1980s to the 1990s to today because Governments have needed to update the way that consultation works under our constitutional arrangements. So I want to ask him: in the procedural principles, how we are meant to read his limiting scope and the broader scope which exists at the same time?

Committee of the whole House

I’ll just come back to clauses 12(a) and 13(4). If I wasn’t clear in a previous answer: 12(a) does not apply to the Minister; 13(4) does.

In answer to the second question that the member asked, we’ve been very clear that we intend to provide for Māori interests, as set out in the goals in the scope of the legislation, through Māori participation in development of national instruments, regional spatial plans, and land use plans. The reason for that is where the most strategic matters are discussed and agreed on in terms of national instruments, national policy direction, and national standards—for example, the regional spatial plans that identify, say, where natural hazards are and where infrastructure is, and land use plans, which set the rules for a district, for example. We feel very strongly that that is the right place for Māori interests to be identified and expressed, and that extends to the identification and protection of sites of significance to Māori, some of which are identified here—it’s not an exhaustive list—enabling the development and protection of identified Māori land, because for far too long, we’ve heard that it’s too difficult to develop Māori land. There are a number of barriers to that, not all of which are covered by this legislation, but in this legislation we want to be absolutely clear that we want to enable the development of identified Māori land. That is the intention of this legislation. I’ve covered the intention of how this Government intends to provide for Māori interests.

The question that the member raised around what the courts’ job is to develop the law: the courts’ job is—and I urge the member to refer to the speech that the Attorney-General, the Hon Chris Bishop, gave to the Law Society a few weeks ago. The Minister was absolutely clear: it is Parliament’s job to establish the law through parliamentary process and it the courts’ job to interpret that law. During the development of this legislation, the Minister and I have held that front of mind, which is why we have chosen very carefully the words in the legislation, and they mean what we intend them to mean.

Committee of the whole House

Thank you, Madam Chair. This is my first contribution in this debate, so I appreciate you allowing me to take a call. My call is going to focus on clause 11(1)(i), continuing on the question lines around Māori interests. I appreciate the Minister’s comments clarifying intent, but I’m more interested in the avenues by which that intent will be delivered. I have, I think, three tabled amendments which seek to strengthen and protect Māori interests within this bill, that I will speak to as well, if I have time—taking the Chair’s advice to stick to questions and not yarn for too long.

In terms of those Māori interests being provided for in the bill, I want to understand what avenues councils will have at a regional or at a city council level. What tools will they have available to make those interests known and to actually give effect to partnership between iwi or hapū and councils? Because that was the intent of Mana Whakahono ā Rohe. Those were the arrangements by which iwi and hapū and councils or local authorities could get together and develop shared principles, or plan shared aspirations for land use within their rohe, and those have now been taken out—with great announcement by the Government parties and in collaboration with Federated Farmers and other advocacy groups.

So if the Minister could let me know what some of the avenues are where that collaboration and where that planning takes place, that would be really helpful. None of us on this side of the House would say that saying, “Oh, the councils and iwi will just have to work it out.” is sufficient, because the reason that Mana Whakahono ā Rohe existed in the first place is because councils across the country were so inconsistent with their consideration of protecting special Māori interests, sites, and aspirations. What is the vehicle by which those points under clause 11(1)(i) will be actually carried through, because those are the ends we’ve got on the bill, but what are the means by which that will be expressed?

The other question that I have on that point is, how has the Minister considered the fact that so many settlements that have already been settled across the country with various iwi and some hapū groups, and those who have legislation that recognises multiple hapū within a rohe—has the Minister considered that those Treaty settlements were negotiated on the assumption that the provisions to protect Māori interests existed, which existed formally within the Resource Management Act? Now that those interests have been obliterated, how do you go about rectifying settlements that were made on assumptions that no longer exist? That’s really important.

The final question that I had on Māori—

CHAIRPERSON (Barbara Kuriger): I’ve just been told that your most recent point was back in Part 1.

TAMATHA PAUL: OK. That’s all right. I’ll come back to this point that I’ve been talking about, and, as a genuine question for the Minister, whether he and the Hon Chris Bishop have considered issuing a national direction using the tools available in this part, in terms of policy direction and policy statements, and if there’s an intention to use those instruments to actually provide direction on Te Tiriti o Waitangi.

I don’t know if the Minister is aware of this, but the competency throughout councils in this country to actually understand what Te Tiriti means, what rights were entrenched, and what different iwi and hapū have entrenched in their settlements or agreements with council is lacking. Competency is completely lacking across the country. It’s inconsistent. It depends on whether the iwi or hapū has the resources to actually participate, because some iwi are very small. They might not even have planning experts within their post-settlement governance entity or whatever entity set-up that they’ve got. Would the Minister consider issuing some form of policy instrument, mandated within this bill, to actually provide some direction on how councils will deliver Te Tiriti?

I haven’t even touched my amendments, so I’ll hopefully take another call—actually, I’ll take another call.

Committee of the whole House

Look, many of the matters that the member raised were covered in debate last night on Part 1, particularly around Mana Whakahono ā Rohe agreements, but let’s be clear, Māori participation is provided for in terms of iwi participation agreements that are provided for in legislation. There may be other ways that councils seek to engage—

Tamatha Paul: I’m asking for specificity.

SIMON COURT: In answer to the specific question, yes, national standards can be used to provide more detail around how that engagement may occur or is required to occur. Councils are also required to consult with iwi authorities before notifying plans that have a regional role. There is provision for it. We do recognise that, across the country, there is variability in the way local government engages with Māori groups about various matters, but in relation to this legislation, we’re very clear about what is in scope. It’s in the goals set out in clause 11(1)(i), and we intend that the Crown fulfils its obligations and that those acting under the legislation do too.

Committee of the whole House

Thank you, Madam Chair. This is actually a supplementary question from a question I asked a while earlier on reasonable accommodation. I just did want to say that the Minister made the point about being clear in terms of their objectives. Of course, one of the things that courts look to is the Hansard, and, particularly, responses from the Chair during this session. In my last question, the Minister made two comments which lead to two very different conclusions, so I just want to put those back to the Minister to be clear on which outcome he is saying will eventuate from the bill as it’s drafted now. On the on the first hand, when I talked about reasonable accommodation and whether a council could set guidelines in terms of disability for example, the Minister said no at the start of his answer. For example, if the council said they wanted 10 percent of housing in a particular area that had reasonable accommodation in terms of transport, according to the first half of his answer, it sounds like that would be unlawful or outside the scope of the legislation. At the end of his answer, I was heartened because he then said “accessibility for all”. That suggested to me that his view is that the legislation, essentially, directs that all planners in this space must have their mind turned to accessibility at all times. Now, if that’s the case, that is potentially compliant with the New Zealand Bill of Rights Act. The Minister’s laughing, but this is important because it does determine what will be the day-to-day lived experiences of thousands and thousands of New Zealanders going forward. It could also result in litigation if the Minister isn’t clear about what his intent—what the Minister’s intent is—is at this stage.

Committee of the whole House

Thank you, Madam Chair. Let me clarify that. Clause 14, “Effects outside [the] scope of the Act … the type of residents to be housed in new development.” We’re very clear about that language. That’s what it means. “A person exercising or performing a function, duty, or power under this Act who is considering the effects of an activity must disregard— … the type of residents to be housed in a new development:”.

Now, the member Vanushi Walters then segued into outcomes. Look, under clause 11, “Goals”, we’re very clear the instruments of this bill “must seek to achieve the following goals”, but we’re also clear that’s not in all places at all times.

To clarify any misconception the member had that the type of residents to be housed in new development—they are effects outside the scope of the Act.

Committee of the whole House

Thank you, Madam Chair. I’d like to draw the Minister’s attention to new clause 15A. It is on page 46 of the bill. This was put in, I think, by the Environment Committee. I don’t sit on that select committee, so I am concerned about this particular clause. What the clause does is it says that a person, when performing a function under this Act, when considering the effects of the activity, “must not … consider any adverse effect on climate change of any greenhouse gas emissions that … may … be increased by the activity, whether directly or indirectly; [but] (b) may consider any positive effects of the activity that are associated with avoiding, reducing, removing, or displacing greenhouse gas emissions.”

There’s an imbalance there. I was trying to think through an example, and I guess one example might come down to wetlands. We know that, with some activities, developers—whoever—take particular effort to either protect an existing wetland or to restore a wetland. Of course, that has a positive impact on climate. That would be, I guess, a tick in the developer’s box. It’s a good thing to do. But, by the same token, if that same developer actually destroys a wetland, which has a negative effect on climate, then that would not count as a negative in assessing the activities, and so on.

Now, there may be better example than that, but it does seem, to me, to be an imbalance here that if a project can consider the positive impacts on climate, why can’t it also consider the negative impacts on climate? I do regard that as an imbalance. It would be good if the Minister could explain why that imbalance is thought to be appropriate and if it’s rectified somewhere else in the bill.

Committee of the whole House

We’re very clear—and the reason that this new clause 15A has been inserted is, essentially, for the avoidance of doubt that we already have a cap and price on emissions through the emissions trading scheme. We already have the Climate Change Response Act, which provides for policy and regulations. The intention of this Government is to reduce regulatory duplication and overlap, avoid matters being considered in multiple scenarios, whether it’s a Building Act matter or a climate change matter, whatever it is.

So it’s very clear: there’s already legislation and systems to deal with the adverse effects of climate change, but we do want decision makers to be able to consider the positive effects of, say, reducing emissions, because there may well be cases where planners and decision makers need to make trade-offs about, say, the establishment of batteries, wind turbines, solar panels, and the impacts that that may have on others. We want to make it clear that where there are positive effects of an activity, such as providing for energy security and affordability and diversification of the energy system, that they can be considered as a positive effect.

The Government’s intention is very clear. The language is clear. It means what we say in the bill.

Committee of the whole House

Thank you, Madam Chair. It’s really great to be examining the clause 15s. What I’m really keen to pick up, very briefly, is a clarification from the Minister around the “outside scope” clause 14, because I’ve got some really specific examples that we heard during the Environment Committee time, which I’m really interested in the Minister’s response to where these communities actually go, because what we’re talking about here is concerns that were raised about outstanding natural landscape and areas of high natural character, essentially, being too high of a bar.

We heard from the likes of Waitomo District Council, particularly around their cast system; their rare, their valuable, their fragile areas, like geothermal features, braided rivers, high-country tussock landscapes. What is the pathway now for these areas that don’t meet the high bar to actually be provided for and considered in the planning landscape?

I note, particularly, we had a really good submission from the New Zealand Institute of Landscape Architects, and they raised similar concerns about these cumulative losses around the landscapes that have very significant values but they have not been at that bar to actually meet either outstanding or a specific categorisation of “high natural character”. They described the exclusions as that if you really want to protect those areas of outstanding landscape or high natural areas, these exclusions of the areas that, basically, lead up to them are—they use the term—“structural blind spots.”

I really want to hear from the Minister how regions, district councils—however they’re trying to provide for these areas in the spatial plans, how they’re actually going to do this, when the bar, essentially, is really high. Thank you.

Committee of the whole House

Thank you, Madam Chair. Look, I do welcome the member Lan Pham’s question, particularly as a self-confessed geology nerd. I’m familiar with the cast formations in the Waitomo district. I’ve been underground in the Waitomo Caves a number of times, including in other caves, and I’ve spent quite a bit of time on friends’ farms in that part of the country, and it is fascinating. But there is one thing that I can reassure people who are listening and watching: hardly anyone at all lives in Waitomo, and that there may well be a need—

CHAIRPERSON (Barbara Kuriger): A few people do.

SIMON COURT: Hardly anyone lives in Waitomo, compared to places like Auckland, and there may well be a need for future development, including in places where this underlying geology exists. But if we were to recognise all of the underlying geology in New Zealand and attribute some special characteristic to it, we wouldn’t get very far.

We’ve been very, very clear that, in the goal, we want to protect areas of high natural character and outstanding natural features and landscapes from inappropriate development. We intend that development proceeds in places that have these values as long as it is not inappropriate. That’s different from the resource management system, which provided for the protection of a whole lot of landscapes, features, and natural character. That has locked up land that could otherwise be developed for productive use. You might want to build a hotel on it, you might want to build a gondola, you might want to build a luge, or, you never know, you might want to set up another Waitomo Caves operation down in Waitomo.

The resource management system is far too restrictive. We recognise that New Zealand is largely empty in many of the places, even where development is possible, and we want to make sure that development that is not inappropriate can be provided for.

CHAIRPERSON (Barbara Kuriger): I’m going to take a call from the Hon Rachel Brooking. We’ve done quite a lot of coverage of this up until about Subpart 2 and we’ve just touched on clause 15, but I know that the member has a process that she follows around her questions, and so I just wanted to check to see if there are any burning questions left up until that point before Subpart 2, because I really would like to move forward.

Committee of the whole House

There are, Madam Chair, and these are new questions that haven’t been addressed yet on clause 14. Clause 14 is so important because it is really the mechanism by which the ACT Party and the member Simon Court are restricting environmental considerations and are enabling what he’s specified, and so that’s why we’re quite focused on it.

I want to ask, though—as I’ve said—some quite different questions. One is in response to the member’s response to Lan Pham, and that was that with regard to these “Effects outside the scope of this Act” considered in clause 14, it’s not just for consents that these factors must not be considered but that they must be disregarded; it’s for the planning, as well. That’s the one question, and I ask whether he can confirm that.

My second question is on clause 14(1)(c), and it is that “retail distribution effects:” are outside of the scope. This is quite a new idea. I agree with what the member the Hon Julie Anne Genter was saying with regard to “trade competition,” and I take the member’s point about the wording. But with regard to “retail distribution effects:”, I’m interested in the mischief that the member is trying to avoid by including “retail distribution effects:” in that, what analysis he has and what he expects to happen without retail distribution effects being considered, and what that will do for our town centres. That’s one other question, and so that’s two questions on clause 14.

Then, at clause 14(1)(e), we have “the character, appearance, and aesthetic qualities of a use, development, or building:”. Is it the member’s understanding that paragraph (e) means that the urban design is disregarded? Where does urban design sit with regard to that paragraph (e)? Is there any room for urban design, at all? That’s three questions.

The fourth question is this: a new insertion in this Amendment Paper 709, at new clause 14(1A), is this concept that if activities are “located more than 3 nautical miles from the landward boundary of the coastal marine area,” their effects on an “outstanding natural landscape or feature:” or an “area of high natural character.” must also be disregarded. Now, I imagine that most of the activities that would be located more than three nautical miles from the landward boundary are going to be either offshore wind turbines—I don’t know if that would be onshore wind in some places—or aquaculture. If the member can talk us through why this is now in the Amendment Paper—so this is a new concept. It’s fresh. It is a policy change, and so I don’t need to ask my standard question. What is the mischief about the “3 nautical miles”, and what is it intended to capture?

Then my last question on clause 14 is this. There was a discussion earlier between the member and the Hon Julie Anne Genter about stormwater, where the member said that nothing has changed, and he was referencing boundaries. Is it the member’s understanding that the effects outside the scope of this bill which could apply to plans—if he can confirm that—is somehow restricted to boundaries, and how does his understanding of boundaries come into play with this? This is desperately important because, of course, these provisions relate to the ones that will have near immediate effect.

I can move on to clause 15. I’ve got—

CHAIRPERSON (Barbara Kuriger): Perhaps we’ll get Simon Court to answer your questions on clause 14, and then I’ll give you another call for clause 15.

Hon RACHEL BROOKING: Great, thank you. It’s just a short one on that.

Committee of the whole House

Thank you, Madam Chair. I’ll just come to “retail distribution effects:” first—effects that are now outside the scope of the legislation. For far too long, those who seek to develop commercial retail premises in new communities or in new locations have faced this contention that no development must be concentrated in, say, an existing town centre—that’s what the member referred to—and, as a result, there’s been extensive time and cost delays to the establishment of, say, new supermarkets.

There was a case in Christchurch where the council in Christchurch said, “You can’t build a new supermarket in a new subdivision, because there are already enough supermarkets.” Well, this Government has been very clear that we want more trade competition. We want more places that people can go because that promotes affordability and choice, and so when it comes to excluding retail distribution effects, we’re very clear that decision makers’ plans and rules should not be able to limit where people want to set up a business because somebody in council might say, “Oh, there are enough supermarkets.” That’s not the role of Government and that’s not the role of local government.

When it comes to town centres, there are many other ways that local government, in conjunction with their business associations, can get together and work out plans to revitalise their town centres. Now, if the member wishes to engage me in a flat white after this session, I’m happy to go into it in detail, but that’s not what this legislation is intended to do, and that is why retail distribution effects are out of scope.

Now, urban design: is urban design in scope? Urban design on private property is not in scope. That is in response to the question on clause 14—

CHAIRPERSON (Barbara Kuriger): Clause 14(1)(e).

SIMON COURT: —clause 14(1)(e)—thank you, Madam Chair.

Coming to clause 14(1A), look, if you’re sitting on a beach, it’s very, very difficult to see more than three miles out to sea, which is about five kilometres, and so we’re being very clear that the effects of an activity on any outstanding natural landscape or feature or any area of high natural character must be disregarded. We intend that developments of all kinds can take place in the coastal area in order to take advantage of the economic and other opportunities that that provides, and so we’re being very clear that if it’s farther than three miles out to sea, these matters are out of scope.

Hon Members: Madam Chair.

CHAIRPERSON (Barbara Kuriger): The Hon Rachel Brooking indicated that she wanted to ask some questions on clause 15.

Committee of the whole House

Yes—thank you, Madam Chair—and I’m just reminding the member Simon Court that I did have a question about what processes clause 14 applies to beyond consents. I asked whether it applies to plans and the Minister’s decisions, as well, and so there’s that question.

In clause 15, “Considering adverse effects of activities”, at subclause (1)(b), there is “must not consider a less than minor adverse effect”—and “less than minor” is a term that will be familiar to practitioners—“except where their cumulative effect results in a minor or more than minor adverse effect.” My question on this is: how does the member envisage the identification of cumulative effects in this system?

We know that cumulative effects have always been a problem within the resource management framework because, of course, they are difficult to manage if you just say that they are cumulative. Whilst one application on its own might not do very much damage, if you were to have 10 applications, then, combined, they could have a very negative effect, and so that is the cumulative effect. If he can explain how that is going to be managed in clause 15, that would be very useful. It’s difficult—cumulative effects is difficult.

Then I just have one final question on this subpart. That goes to new clause 15A, “Considering climate change effects”, and there was an exchange before between the Hon Dr Deborah Russell and Simon Court, the member in the chair. He talked about the positive effects of the activity that could be and that can be considered, and the references were to batteries and things like that. Now, I’m interested in urban planning. Does he think that those positive effects can also apply to urban planning? An example would be something around public transport. If you were putting in a bus lane, do you get the advantage of that consideration of a public effect under new clause 15A(b)? Those are my questions on Subpart 1 of Part 2.

Committee of the whole House

Look, I thank the member for her question. I’ll just come back to a question that she asked in a previous question about stormwater matters. The effects of stormwater beyond the property are in scope and will continue to be.

Hon Rachel Brooking: Where does it say that?

SIMON COURT: Well, the member’s free to ask another question when she gets the next call. Yes, clause 14 applies to all in the system. The question about cumulative effects in relation to clause 15, “Considering adverse effects of activities”—cumulative effects can be detected through monitoring and the need for enforcement, and then councils can choose to change plans, change rules, and, potentially, there can be changes to national standards as a result of identifying issues associated with cumulative effects through monitoring and fulfilment. There are some potential cumulative effects that can obviously be assessed upfront, such as multiple small water takes from a kitchen, and that is envisaged by this system.

The member also asked a question about considering the positive effects of an activity for avoiding, remedying, reducing, or displacing greenhouse gas emissions. Would a bus lane be a positive effect? Yes, indeed. The intention of the legislation is to encourage good stuff that leads to a reduction in greenhouse gas emissions but does not punish or stop other things.

CHAIRPERSON (Barbara Kuriger): I want to make it quite clear that I want to move on to Subpart 2 now, but, in fairness, does one of those three people standing up on the side of the Greens have a question prior to clause 16?

Scott Willis: Yes, Madam Chair.

CHAIRPERSON (Barbara Kuriger): Scott Willis hasn’t asked a question yet.

Committee of the whole House

Thank you, Madam Chair, I appreciate this, and certainly, my question is prior to Subpart 2—clause 15A. We’ve had two previous questions from my colleagues in Labour, but the Minister yesterday asserted that climate change is dealt with elsewhere, so it shouldn’t be in the Planning Bill. I missed the irony in that response, because we can see that climate change is dealt with in the fast-track legislation because it’s going to open up the Denniston Plateau, and that climate change is dealt with in the Gas Security Fund. Those are bits of legislation that are opening up.

My question is about this asymmetric upside that this bill gives us, because new clause 15A(a) says that a person “must not … consider any adverse effect on climate change of any greenhouse gas emissions that will or may result from or be increased by the activity, whether directly or indirectly”, but then clause 15A(1)(b), as we’ve heard, says that we “may consider any positive effects of the activity that are associated with avoiding, reducing, removing, or displacing greenhouse gas emissions”. How is it rational that we can consider the upside but not the downside? We can’t consider the greenhouse gas emissions of a coalmine, but we can count the use of electric vehicle heavy vehicles at the coal mine. Can the Minister really explain the rationale behind this, where we’re not considering the adverse effects but we are considering some of the positive impacts, and we have a commitment to meet our climate change greenhouse gas emissions by 2050? I’m really trying to understand how this works together—why it’s rational.

Committee of the whole House

We’ve gone over that ground extensively with the Minister last night. I’ve answered a number of questions today which were basically on the same topic. The legislation’s very clear; the drafting is very clear. It means what it says.

CHAIRPERSON (Barbara Kuriger): I am going to take a call now from the Hon Rachel Brooking, because we are moving on to Subpart 2.

Steve Abel: Point of order, Madam Chair.

CHAIRPERSON (Barbara Kuriger): Point of order, Steve Abel—not questioning my ruling, of course. I’ve made it very clear that we need to keep moving. I’ve made notes of all of the things that have been discussed and we are starting to go over old ground, so I want to move on. The Hon Rachel Brooking.

Committee of the whole House

Thank you, Madam Chair. I do not have very many questions on Subpart 2 of Part 2, but I do have one—[Interruption]

CHAIRPERSON (Barbara Kuriger): I’m trying to hear the Hon Rachel Brooking, please.

Tom Rutherford: Sorry, I’m just getting over the last call.

CHAIRPERSON (Barbara Kuriger): Thank you.

Hon RACHEL BROOKING: I do have one Amendment Paper that I’ll get to in a moment, but most of my questions around this subpart just relate to the changes that have been made in the Amendment Paper and whether or not they are policy changes or if they are the move-arounds that we were talking about earlier. I’d just remind the member that he didn’t answer my question about the boundaries and where it is that things are restricted to boundaries or not boundaries.

Anyway, it might just be useful if the member could go through these pages, from page 50 to—

Tom Rutherford: Page 79?

Hon RACHEL BROOKING: Page 79, you say across there? Oh, to the end of Subpart 2. That would be useful, to say whether or not they are policy changes. Then, actually, my amendment is on Subpart 3, so I don’t have any other specific questions on Subpart 2, apart from those that might come up if the member tells us that, actually, some of these amendments are policy amendments.

Committee of the whole House

As far as I can tell, there are no substantive policy changes in Subpart 2. There are changes to better reflect policy intent and Parliamentary Counsel Office drafting clarity.

I’d just come back to the member’s question around boundaries—what’s in and what’s out. She felt like that wasn’t clear. I did make it clear that stormwater effects beyond the boundary are clearly within the scope. So are things like overshadowing, but building layout and matters internal to the layout of the building are not in scope.

Committee of the whole House

Thank you, Madam Chair, and I apologise, I haven’t been in the Chamber all morning—

CHAIRPERSON (Barbara Kuriger): Just for clarity, we’re on Subpart 2.

Hon DAMIEN O'CONNOR: Subpart 2? Clause 14, or we’ve moved beyond—

CHAIRPERSON (Barbara Kuriger): We’ve moved on. It’s clause 16 and beyond.

Hon DAMIEN O'CONNOR: Oh, OK. You can’t go back? It’s still in Part 2.

CHAIRPERSON (Barbara Kuriger): No, we’re not going back.

Committee of the whole House

Thank you, Madam Chair.

CHAIRPERSON (Barbara Kuriger): I was just about to take Lan Pham’s call, and then the member stood up—so, Lan Pham.

Committee of the whole House

Thank you, Madam Chair. Noting that there haven’t been substantive changes, but there have been changes, I’m really keen to pick up on concerns that were raised by submitters across clause 20 and clause 21. The most consistently and strongly expressed concern was really the concern that particularly clause 20 might overprotect existing uses, particularly when it comes to hazard-prone areas. Councils were really concerned that this could undermine their own ability to reduce those risks over time by moving development away from certain areas.

This was across local government, it was professional bodies, and it was hazard agencies and insurance companies. They were all concerned about this. They raised the point about the concern that buildings might be rebuilt like for like in these areas even where risk from new information is materially increasing. We had both Taituarā, which is the professional body for local government professionals; and Greater Wellington Regional Council, in particular, pointing out that these clauses could actually frustrate their own adaptation and managed retreat planning. We also heard from Tauranga City Council, Tasman District Council, and Christchurch Council, seeking amendments that actually allowed them to remove existing use rights where new information has shown that hazards would then, essentially, pose intolerable risk, or increasing risk over time. One of the submitters we had was from the New Zealand Banking Association, and they talked, again, about just clearly how critical it is that this legislation steers individuals, steers councils, steers developers away from these areas.

My question to the Minister is: where these clauses have now arrived at, does he feel that these concerns have been addressed? Noting that there hasn’t been substantive changes, I’m really keen to hear his response.

Committee of the whole House

Thank you. The member Lan Pham raises a really important point. I’ll answer the second part of the question first, on new clause 19A. New clause 19A provides for rules that can modify or extinguish the existing land-use and existing building work protections. The change that the Environment Committee added to provide a mechanism for specified natural hazard rules to enable existing land uses to be modified or extinguished to manage natural hazard risk has been retained. A further minor technical change has been provided for in this Amendment Paper to clarify that requirements for a rule to qualify is one of the special natural hazard rules that they can qualify as a natural rule or in a land-use plan and proposed land-use rules with legal effect.

But new clause 22A provides for existing activities affected by these rules to continue while the plan-making and consenting processes are completed. The reason for that is because natural hazard rules have immediate legal effect from the time they’re notified, even though the potential appeals to plan rules have not yet been completed. We’ve provided for sufficient and limited flexibility so that these activities can carry on, rather than being forced to comply before the rule is finally determined. It’s, essentially, a natural justice matter for people who are affected by this type of rule.

Committee of the whole House

That makes sense to me. I thank the member for their explanation of that. I want to ask directly about clause 22 on page 51. Existing building works—this clause goes so far as to include at clause 22(1)(c)(ii) all of the allowed activities that were permissible without a consent at a certain time. We’ve written in that the natural hazard rules will apply from the beginning. In answer to Lan Pham’s point, in situations like the Tauranga Council, where they’re notifying a very large number of landowners that their properties will be affected by flooding in the future—

The member has taken care of that situation. But in the situation where you have very long-term consents, or in the situation of, say, wharves built on properties that extend out into mangroves or into swamps or into lakes or into the sea; where those didn’t need a planning consent, he’s also included those. The natural hazards rules won’t affect those because they’re not immediately impacted by flooding or any kind of environmental impact that will cause harm to life and limb.

But they are things that councils want to regulate in a different way in the future, because they will be affected by different environmental impacts in the future, like rising sea levels and erosion of beaches. In that kind of situation, existing structures, and the rules around them, do need to change with planning changes, but I think the very broad permissive nature of what’s drafted in now means that they’re not. I can understand why he’s done that for building works that are consented and they’re stuck in the system—in the situation of the Auckland developers who were just stuck in the system because the permissible activity under the old system now needed a different sort of permission in the new system. That makes sense, because the check was at the Building Act check, and those consents were short-lived, a decision maker had made a decision in a short time. But what about those wharves that are 30 years old and the fixes in the Rangitoto baches which are 90 years old—can he explain that very, very permissible (ii)? It doesn’t seem to make sense in those situations.

Committee of the whole House

I thank the member Arena Williams for the question. Clause 22 is essentially a carry-over from the Resource Management Act. So status quo—no change.

Arena Williams: But you’ve added—

SIMON COURT: The member’s free to take another call if she has further questions.

And on clause 23 the member referred to wharves. Wharves are more fulsomely covered under the Natural Environment Bill, which we’ll be getting to later in the week. I just want to be clear that if there is an existing use that was lawfully established, was permitted activity, or otherwise could have been lawfully carried out without consents, that may be sustained. And that’s just with reference to clause 23.

CHAIRPERSON (Maureen Pugh): Lan Pham.

Committee of the whole House

Ha, ha!

Hon Member: Tamatha Paul.

CHAIRPERSON (Maureen Pugh): I am sorry.

TAMATHA PAUL: That’s all right. She is a great person.

My questions—and just taking the Chair’s advice around potentially moving on from Subpart 2, I thought I’d better quickly ask a question about my amendment, which is tabled amendment 25 August 5.10.14. It is to replace the word “mitigate” with “minimise.” That’s under clause 25 “Duty to avoid, minimise mitigate, or remedy adverse effects”.

I wanted to ask the Minister whether he might consider replacing the word “mitigate” with “minimise”. I think it’s pretty self-explanatory, but, basically, mitigating means, obviously, offsetting potential adverse effects. We think that it would be good if those adverse effects didn’t happen in the first place. Therefore, maybe the person undertaking the—whatever they’re doing with their consent, or under the plans, or under the rules, whether they should be required to instead minimise that effect, as opposed to just mitigate.

Committee of the whole House

Madam Chair, we've already moved on from Part 1 to Subpart 2. But I just, for the member’s benefit—

Tamatha Paul: Sorry, Point of Order. Point of Order Madam Chair. It’s my understanding that we’re still in Subpart 2. Am I—

CHAIRPERSON (Maureen Pugh): Correct. And you were referring to clause 25?

Tamatha Paul: Yes, within Subpart 2 and my amendment. Sorry, the Minister just said I was referring to Subpart 1, but I was referring to Subpart 2, clause 25, and my tabled amendment, which I named and numbered.

CHAIRPERSON (Maureen Pugh): Correct.

SIMON COURT: Thank you for clarifying that, Tamatha Paul. I thought you were harking back to clause 15.

Tamatha Paul: It’s 25.

SIMON COURT: I understand you’re referring to clause 25. Thank you. I understand also that this was extensively covered in the Environment Committee and that submitters overwhelmingly favoured retaining the use of the term “mitigate,” which is a well-understood legal term, whereas “minimise” would be a novel term. The select committee did not agree to change that and neither does the Minister and I.

Committee of the whole House

Thank you, Madam Chair. I’m going to move forward to Subpart 3, and this is “Key instruments”. Very importantly, in this subpart there is the classification of activities.

In the Planning Bill, we have gotten rid of non-compliant activities—and, also, controlled activities in the Planning Bill, but they come up again in the Natural Environment Bill—so most of my questions, again, are about whether the member Simon Court can take us through the changes that have been made in the Amendment Paper that was lodged at the end of last week; if they are policy changes or not. I notice, of course, that at clause 38 there is permitted activity rules that require registration. If he can comment on how they are different from a controlled activity, and if, in fact, it would be simpler just to have controlled activities rather than permitted activity rules that require registration.

My Amendment Paper that I have on this is on clause 31, “Guidance for classifying activities”, and subclause (2)(a) relates to a “permitted activity”. Something can be classified as a permitted activity if “the activity is acceptable, is anticipated, or achieves the desired level of use, development, or protection;”—and this is the important part; there is an “or” after paragraph (i)—“or (ii) the adverse effects of the activity are understood and can be managed:”. It’s one or the other, and my Amendment Paper would change that “or” and make it an “and”, so that to be a permitted activity, the activity has to be acceptable and the effects have to be understood. I’m wondering if the member can comment on my proposed amendment there—if he can also comment on the changes that have come through in this Amendment Paper and if they are changes to policy or not.

The third question was on these new permitted registration clauses—that’s at clause 38—and if it would be simpler, in fact, to have it as a controlled activity, as we will get to controlled activities when we go to the Natural Environment Bill. If not, why not? What’s the policy intent here?

Committee of the whole House

Thank you, Madam Chair. I’ll just cover off clause 28 first. That has been deleted in its entirety as it was considered unnecessary and added complexity, and these matters can be better directed through national standards or non-statutory guidance. That was a decision that the Minister responsible for RMA Reform and I took.

On clause 31, “Guidance for classifying activities”—a “permitted activity”—the intention is that the new system is much more permissive of activities that do not have an effect that meets the threshold. We do not want to bind up planners and decision-makers and applicants—investors—in having to deal with a whole lot of different constraints if we say it’s permitted. So we won’t be accepting the member the Hon Rachel Brooking’s recommendation.

On clause 38, “Permitted activity rules that require registration”, look, there are some matters—and they can be specified in subsequent national standards—where it will be important to identify where certain permitted activities are taking place. That may well be to identify and manage the effects of, say, cumulative effects, but we didn’t feel it was necessary to retain, from the Resource Management Act, controlled activity status, because so many more activities are going to be permitted and are going to be provided for in national standards. As the member mentioned, when it comes to the Natural Environment Bill, which we’ll get to later in the week, there is a provision for controlled activities there. That’s to provide certainty for investors that they can get a consent for a matter and that the conditions that are likely to come with that consent are likely to be well understood in advance. Under the Planning Bill, what we intend is that far fewer consents will be needed at all, and that’s what this provides for.

Committee of the whole House

Isn’t this registration requirement, though, effectively a need for a consent? Is the member Simon Court saying, like his use of “pragmatic”, that it’s really about slogans and to say to different lobby groups, “It’s OK. It’s permitted, but”—but, but, but—“you need to do this registration”, which makes it just like a controlled activity. Why not step above that noise and say, “Well, no, there are these things that we do need to be controlling for”—yes, you can have the certainty that the member just spoke to, about a controlled activity; that it will be granted—“but you also need to do these various different steps.” Why not just call it a controlled activity? Is it, in fact, just a political sloganeering statement to make to different lobby groups?

Committee of the whole House

I reject the assertion in the member the Hon Rachel Brooking’s question. The purpose of this reform is to reduce the number of activities that need consents. When it comes to this bill, the Planning Bill, we’re intending, by providing for registered permitted activities in limited cases—and only if allowed or required by a national standard—to reduce the number of low-risk consents that are needed. This is intentional, and it’s going to have a very significant benefit. We intend that the number of consents that are required are reduced by up to 46 percent. Now, that’s just for starters, and this is one way to do it.

For the member’s benefit, and for those listening and watching, registration is a checklist exercise; it does not require an assessment. It will simply provide for identifying where certain types of activities are happening, but only once national policy direction clarifies the direction—how the legislation is to be implemented—and national standards provide for that once the development of that standard has established a need for it. It’s quite some way down the track.

Committee of the whole House

I’ll move on to Subpart 4, I think, and that is “National instruments”. These are very important because so much of this bill turns on what is in the national instruments, and so much of the ministerial power that we’ve talked about leading up to this committee stage goes to decision making in these national instruments. It has been described to me like a spinning top. Whilst the Government members talk about a funnel, you can also look at it like a spinning top: you have all this weight at the top, which the Minister decides in the national direction, and then that flows down. But, if something goes wrong, the spinning top will fall over, so it’s really important that we consider how it is that these national instruments are made.

At the moment, there are not very many constraints or processes required for the making of the national direction, and it does end up with the Minister determining conflicts—the Minister is the person making the national instruments—between the goals. We’ve looked at the goals before, within the Planning Act, and I do note that at page 69 of Amendment Paper 709 there is a new definition of conflict and what conflict means. Included in the meaning of conflict, at paragraph (b), is “conflict between the goals in section 11 of this Act and the goals in section 11 of the Natural Environment Act 2025;”. I note that it’s a new institution, and it’s certainly something that the select committee advised needed to happen. The member might want to comment on that interaction between the two sets of goals and how they are different. The member, again, might want to go through and say whether there are other substantive policy changes in the Amendment Paper or whether there are more clarifications. I note there is quite a lot in there about national standards and the content of national standards. I have an Amendment Paper 751. This is a published Amendment Paper, and what 751 does is it requires a board of inquiry process for national policy direction. I have based the Amendment Paper, which is quite a large one, on the board of inquiry process that would have been used for the national planning framework within the Natural and Built Environment Act, now repealed.

I would like the members’ discussion to consider this and having the safeguard of a board of inquiry process. This is something that the Parliamentary Commissioner for the Environment has been calling for, in particular, and it should give the Minister some cover against judicial review in cases that will go to the Minister’s discretion and ask what was considered. If the Minister can say, “I put it to the board of inquiry and they heard submissions and they made their decisions.”, then that gives the Minister a lot of cover. It goes to the efficiency of the process and is surely something that this Government should be interested in. Plus, it goes to the community input into the process of these national instruments and the trade-offs that the member was earlier speaking about. So much of this new system relies on the national instruments that there should be a robust process for the creation of those instruments and the ability to challenge them. Thank you.

Committee of the whole House

Thank you, Madam Chair. Quite a lot in that, and I appreciate that the making of national instruments is fundamental to the implementation and operation of this new system. Just to come back to considerations for national policy direction, the member has raised the matter of whether a board of inquiry would be better placed, as she proposes in her Amendment Paper, to consider national policy direction. The Government disagrees. The considerations of the process to be followed are set out in clauses 58 and 59 for the national standards. Let’s be clear, the national instruments do not replace the framework set by Parliament, but what they do is they seek to achieve compatibility between the goals as far as practical, and when the Minister is developing the proposed national policy direction, that is what the Minister will be required to do. If compatibility between the goals, whether it’s in the Planning Bill or the Natural Environment Bill—or the Acts we intend they become—can’t be achieved, then identifying and providing for the resolution of conflicts between the goals or within a goal is required to be considered by the Minister.

We also accept that national policy direction is not required to identify and provide for the resolution of every conflict. There will still be a role for standards further down the system to identify how activities are managed to an acceptable level, because we still need to carry out activities in the natural environment—for example, like installing stormwater culverts, building bridges, and clearing gravel from rivers. All of these things require us to manage the conflict between human needs, the need to protect our infrastructure, operate in the environment, and to operate around people.

So there will be a role for national standards, spatial plans—the rules and plans—to manage conflict. Much further down the funnel—which is the Government’s intended way to approach it and for those who operate in the system to see it, rather than the spinning top the member alluded to—right at the bottom, there’s still going to be the opportunity for consents to manage effects on people and property. That’s how it’s intended to work, and it’s set out very clearly in the legislation what matters need to be considered for national policy direction.

Committee of the whole House

Thank you, Madam Chair. A question for the Minister in relation to the provisions under clause 52 in the Minister’s Amendment Paper 738 that inserts the following phrase: “(6B) National standards may include requirements relating to the performance or exercise of the functions, powers, and duties of the statutory officer appointed under section 188A”. So this has to do with the land market officer. My question is about the desired independence of the land market officer, and really my question is: why does the new clause touch on every function, power, and duty of the officer rather than being confined to, for example, procedural, administrative, or notification requirements? We share, I think, the Minister’s desire that the land market officer operates within their mandate and can’t be, basically, bossed around or manipulated by the Minister of the day. It seems that this clause would, basically, give the Minister of the day that ability to not just direct through the national standard those kind of administrative or procedural matters but, actually, it touches on all of the kinds of factors. I suppose another way to ask the question is: can that national standard, in this case, prescribe the officers, for example, the economic methodology that they use, the thresholds, or the substantive analytical approach? Because if that’s the case, it doesn’t seem like a good idea to me, and I’d be surprised if the Minister was supporting a provision that would risk really undermining the necessary independence of the land market officer.

Committee of the whole House

Thank you, Madam Chair, and I do appreciate the member the Hon Phil Twyford’s long-term commitment to urban development and intensification, particularly in Te Atatū Peninsula where we both live. We have experienced both the benefits and the dis-benefits of urban intensification.

The intention of providing for national standards to include requirements relating to the performance or the exercise of functions, powers, and duties of the statutory officer appointed under section 188A is really around how national standards can set expectations around the standards for data collection and the way that that data can be managed, and methodologies. The purpose of national standards is to make sure that everywhere around the country where an activity is undertaken—in this case, the activities of the statutory officer—they’re undertaken in a consistent way. The planners and decision makers can make sense of the information and then respond in a consistent way.

Committee of the whole House

I move, That debate on this question now close.

CHAIRPERSON (Maureen Pugh): It’s a bit early I think, Mr McCallum.

Committee of the whole House

I’ll make the questions very brief, Madam Chair. Firstly, to new subclause 45(2). I just want to ask the Minister a question around whether directions under the new formulation in the new amended version also includes ministerial directions. Are there new directions? Is that why this is here? If so, are there also meant to be directions—not in the natural meaning of the word but in this section—which apply to directives that are given by the statutory officer? Does it also then apply to directions that are given by a panel exercising the ministerial powers that are delegated to it by the Minister? That’s the first question.

The second brief question is—under new clause 51, on page 71, the reformation of the new subclause (1)(f), I want to ask whether this was changed, because it is now more explicit that national rules should set the scope of public consultation, and the consultation scope. The member in the chair will understand that I’m asking this because there are also consultation requirements which exist outside of the funnel in relation to, say, Māori rights and interests. But is it intended that—because the national rules are not primary legislation; they’re secondary legislation—it is not Parliament’s intention to delegate a function which would seek to exclude those duties which exist both in common law and in our constitutional arrangements? Actually, I’ll leave that there.

I also wanted to ask the Minister, in relation to the new statutory officer functions and the way that that will interplay with the national standards, whether the statutory officer, under new clause 52(3B) and (3C) in Amendment Paper 709, will also be able to have an influence over the way that local authorities maybe are required to exclude a rule from a plan, and, in the normal way that you’d read that, the statutory officer doesn’t seem to have that power in the order of precedence. But if my reading of directions, under clause 45 in Amendment Paper 709 is right, then I think the statutory officer might have a role there, and particularly around that restricting a local authority from including the rule in its new plan at (3)(b). Does it mean that’s only in relation to the statutory officer’s functions or does it apply more generally to that?

Committee of the whole House

Thank you, Madam Chair. I appreciate the member Arena Williams’ questions—there were quite a few in there, so I will attempt to answer them in the order that they were asked.

I understand that the member had a question around clause 45(2) in Amendment Paper 709, which relates to “Local authority and spatial plan committee must implement national instrument”. Have I got that correct?

Arena Williams: The directives, yeah.

SIMON COURT: And (2) is “In this section, directions includes any directives or other requirements.” Look, I’ll just come back to the overriding approach we’re taking, that, as far as practical, in terms of the scope of this legislation and the Government’s policy intent, we intend to standardise the way that local authorities carry out their functions and duties and exercise their powers under this legislation. So that may well include directions including any directives or other requirements relating to the making of plans, for example. That is entirely intentional, but because the legislation has not passed yet, we’ve been able to release an illustrative national policy direction, which I urge you and other members interested in this legislation to go and have a look at, which sets out the direction of travel, the themes that will be provided for, and, under each theme, the standards that we intend to be applied in each theme or activity or domain. That is TBD. That is what that clause provides for.

In terms of your question around “Can the statutory officer tell councils what to do?”—no, they will be able to provide a determination as to whether there is any restriction on a competitive urban land market and provide information for councils to respond to, but it’s not intended the statutory officer has the same power as a Minister.

Another question that the member asked—and, forgive me, I’m actually struggling to recall what specific clause that related to the consultation scope set out in standards. Can the member just enlighten me with what clause that was?

Arena Williams: Clause 51(1), new paragraph (f).

SIMON COURT: Clause 51(1), new paragraph (f)—“require or preclude targeted or public notification of an application for a planning consent for an activity:” Again, the intent is that we standardise, as far as practical, avoiding bespoke approaches in different parts of the country—you know, 67 towns and cities, 14 regional councils—to provide standardised methods for matters like consultation. However, that does not preclude consultation with Māori, which I understand the question was referring to, as provided for in Treaty settlements where there might be specific relationships with the rohe or a council, and, of course, in the intended iwi participation agreements. Thank you, Madam Chair.

CHAIRPERSON (Maureen Pugh): Scott Willis—Steve Abel.

Committee of the whole House

I’ll take that, Madam Chair. Thank you, Madam Chair.

CHAIRPERSON (Maureen Pugh): So sorry, my apologies.

STEVE ABEL: That’s OK. I’m not as handsome as Scott Willis.

CHAIRPERSON (Maureen Pugh): I beg to differ!

STEVE ABEL: Oh, that’s very kind—you’re entirely forgiven.

I’ve got a very narrow and specific tabled amendment to clause 49, around national standards. Initially, I thought this was a somewhat inelegant way of dealing with this problem. We didn’t have an opportunity earlier on in the bill because we moved on. It’s reflecting on the points that the Minister has already made about his intention as articulated in the legislation that the only means for trees to be protected in urban areas is through recognition of their heritage value—that means their amenity, biodiversity, and other values that they offer are not recognised, only heritage value. The consequence of that is, I fear, that he and the other Minister involved, Mr Bishop, will fail in their objective, which I take at its face value to be genuine, that this legislation is designed to improve and enhance the quality of the living spaces in our urban environments.

My proposal is that under the national standards, additional to clause 49, that after the word “standards” insert “including a national standard providing for urban tree and urban tree canopy protection.” Now, it’s a very simple broad requirement that is non-prescriptive, other than that it does set a standard. It’s a minor specific thing in one sense, legislatively, but it has a significant consequence nationwide because it recognises the huge value that trees bring to making our cities livable.

I’ll give you one specific example before finishing, Madam Chair. Trees, particularly large mature trees, are like giant outdoor air-conditioning systems. Because of the phenomenon—the extraordinary natural phenomena—of transpiration they cause an incredible localised cooling effect. That is but one of the many huge amenity values that they represent and why this amendment should be accepted by the Minister. I wonder if he can respond to that, please.

Committee of the whole House

Firstly, I accept that the member Steve Abel would know what the air conditioning in a tree is like, because he spent over 240 days occupying a tree in New Lynn in West Auckland, stopping a housing development, where there are still no new houses!

But, no, we won’t be adding a qualifier to clause 49, “National standards”, “There must always be national standards.”, because the intention is that the content of national standards is set out in new clause 50A in Amendment Paper 709, and that we do not intend to be overly prescriptive in the legislation, the purpose of the legislation has a framework, and that the content of those standards can be developed further down the track.

I do urge the member to get a copy of the national policy direction (NPD). The illustrative NPD that was put out for consultation yesterday morning at 9.15 sets out very clearly the themes and the approaches to resolving conflicts, and the type of directives that this Government intends to apply in the system down the track, and also sets out under each theme, the standards that are intended to be applied under each of those themes. So I urge the member to do that. Thank you.

Committee of the whole House

Thank you, Madam Chair. I am taking a call on clause 58 and the changes at the bottom of page 77 and also clause 62A, which I think are linked. I want to ask the member in the chair, Simon Court, about the new insertions, and then at the bottom of that page, how the conflict provisions are then meant to be interpreted by the Minister?

He’s created a new provision here which is a new thing in the Amendment Paper. When the Minister sees and must now be satisfied that the national planning instruments, which are the secondary legislation, might be in conflict with each other—these are the national directions for the natural environment and the national directions set for planning. The Minister must now be satisfied that he first appreciates the conflict—that is a legislative requirement—and has considered it and presumably must take advice on it for there to be evidence of that consideration. Then it steps out for him, at the primary legislative level, how he is meant to appreciate that conflict and not necessarily resolve it. I want to ask the member in the chair first, that seems to be an opening for the courts rightly to interpret, in any given context, whether the Minister has done that—not that he’s resolved it but whether he has turned his mind to the conflict.

Then there are other powers like the ones at clause 62 and 62A which help a Minister to intervene in a plan once it has been made. Really the question is, firstly, is that the right interpretation of it? Are the courts now allowed to consider whether the Minister has turned his mind to the conflict at the secondary legislation level?

Then secondly, shouldn’t we have included in clause 62 and 62A the corresponding check that if the Minister does turn his mind to a conflict and does want to resolve a conflict that he or she has the power to be able to make a change at the last minute? Neither clause 62 or 62A gives us that power to resolve conflicts. The Minister has the power to resolve issues which are minor at clause 62. Then the Minister also has a power to make a change which is more fulsome, but only in relation to those two things like national standards and standards of accreditation or international obligations, but not something which is anticipated by the other plan that’s in conflict with it.

Committee of the whole House

I thank the member for the question. Look, in terms of consideration for the national policy direction, clause 58(3A) is quite clear. The Minister must be satisfied that the proposed national policy direction is consistent with other national instruments, as far as practical—I’ve highlighted that in my copy on the desk here. Then looking down to clause 58(3C), the Minister must have regard to achieving compatibility as far as is practical, and in clause 58(3C)(b), identify and provide for resolution for conflict between goals if compatibility between them cannot be achieved.

We are taking a pragmatic and practical approach to the way that the legislation is implemented through national policy direction and through standards. If we try to imagine that we can make this perfect, we can anticipate every potential conflict, right down to individual property owner level, we would never deliver a framework for the enjoyment of property and for all of those other goals to be achieved in the place and at the time where they need to be prioritised, either through national standards, through spatial plans, through rules and plans, and by decision makers. We’re very intentional.

There was another question around the amendments to national policy direction without full process. In clause 62, it’s quite clear that any amendments that a Minister might need to make to national policy direction in the context of that clause are for changes that are no more than minor or to correct errors or to make similar technical alterations throughout the document.

In clause 62A, “Amendments to national standards without full process”, there are some very limited reasons provided there, which, as the member mentioned, are to implement New Zealand’s obligations under an international treaty, for example; to align with a New Zealand standard; or to extend the time frame for implementing any part of a national standard. There are some very limited matters where the Minister may recommend the making of an amendment to a national standard without going through the full consideration process.

Committee of the whole House

I move, That debate on this question now close.

CHAIRPERSON (Maureen Pugh): We’ve still got quite a way to go, I think—well, not a long way to go, because we are nearing the end. I am inviting further new material.

Committee of the whole House

Thank you, Madam Chair. Actually, I do not have very much more on Part 2, but I have one Amendment Paper that I haven’t spoken to during this Part 2 debate. That was tabled on 25 August at 5.35.01. Unfortunately, it’s not a published amendment, but what it does is it brings in the provisions for Mana Whakahono ā Rohe from the Resource Management Act into this part of the bill, which is obviously a different policy position from the Government. But I’m just wondering if the member in the chair, Simon Court, would consider that and also he might want to comment on what part of Part 2 it would be best in. Oh, he’s shaking his head.

CHAIRPERSON (Maureen Pugh): I’m just trying to relate it to a clause in Part 2.

Hon RACHEL BROOKING: In Part 2? Well, I would have put it in a new clause, in 15B. It had a whole lot of definitions that had gone through from new clause 15B to new clause 15P. Anyway, Mana Whakahono ā Rohe have contributed to an efficient system and I think it is abysmal that this Government has gone back on what was reported back from the Environment Committee, which continued with these documents that could still work under the system that will still continue to be in force until at least 2030. Any argument that Mana Whakahono ā Rohe somehow don’t fit with this new legislation doesn’t make any sense at all. The member might want to try and explain how it can make sense and how it is not just another example of a slogan that he can use.

Committee of the whole House

The Minister was very clear when he responded to questions last night on Part 1 why Mana Whakahono ā Rohe arrangements are no longer appropriate in the context of this legislation. We are providing for iwi participation agreements which can be made in context of the scope of the new legislation. Mana Whakahono ā Rohe arrangements come from the Resource Management Act. They will end when this legislation passes through all stages and achieves Royal assent.

Committee of the whole House

Thank you, Madam Chair. Just following on from that question, I’m at clause 59(3). It’s a new insertion that is the converse power but for the secondary legislation of clause 10(2), but it applies differently here because the national standards are secondary legislation, so we’ve got decision makers here who are not the Minister. This is about giving effect to Treaty settlements that have been arranged with the Crown and that Parliament intended with its full chest to give effect to. How can that be right what he has just answered in relation to my colleague the Hon Rachel Brooking’s question, when, now, he has included a provision which does recognise that those arrangements were made under the Resource Management Act and has deliberately created this clause, which is meant to give equivalency, and yet still argue that those agreements, the Mana Whakahono ā Rohe agreements, don’t have a place in this regime when that is sort of a having it both ways clause here? We do have, actually, those settlements that are made with iwi. They are meant to be given effect to, even at the secondary legislation level, even at the national plan level, as if they were still being implemented under the Resource Management Act.

Committee of the whole House

The Minister covered this extensively in his responses to questions around clause 10 last night, but I’ll reiterate that the Government is committed to upholding Treaty settlements, and where those settlements have provisions in them which relate to the Resource Management Act (RMA), “to the greatest extent possible under this Act, give an effect that is the same as, or equivalent to, the effect that the [relevant] redress … arrangement” had under the RMA. It couldn’t be more clear in clause 10; couldn’t be more clear here. That’s the intention of this Government, and we hope that Parliament agrees with us.

Committee of the whole House

This is a call in response to that answer. The Minister can’t keep referring to clause 10 and the answers given last night by the Minister, because iwi Māori interests and participation are not exclusive to clause 10. In fact, there are provisions that provide for Māori participation in national planning instruments, policy direction, spatial plans—

CHAIRPERSON (Maureen Pugh): Excuse me, member, we are not—

TAMATHA PAUL: —rules, standards—it’s throughout the entire bill.

CHAIRPERSON (Maureen Pugh): We are not revisiting clause 10.

TAMATHA PAUL: But what I’m trying to explain to you, Madam Chair, is that Māori participation and interests are throughout the entire bill, even in this part that we’re in right now in the standards—

Simon Court: We’ve covered it.

TAMATHA PAUL: No, I will argue this point because Māori interests are provided for in various parts including this bill. So we have a right to say if the mechanism by which that is executed under the Resource Management Act was Mana Whakahono ā Rohe, and then the Minister is telling us that it is an iwi participation agreement—we have a right to try to distinguish and ascertain what that looks like. We can’t just take it as the councils will engage with iwi, because what does that mean? The reasons that Mana Whakahono ā Rohe and other participation tools and arrangements have been enshrined in legislation is because councils have not done that, historically. They have made decisions on behalf of Māori land and land that Māori have rights and interests in, and have not been consistent.

I’m asking the Chair and the Minister to consider that these interests go right throughout the bill, and every time there’s a question about Māori interests we can’t just say, “That was answered last night.”, because it’s pertinent throughout the bill on every single instrument that is in this bill.

Committee of the whole House

For the benefit of the member, the legislation provides for—and we’re talking about clause 59(3)—

Tamatha Paul: We’re talking about tools and instruments that come underneath the bill—I know what we’re talking about; I have a degree in it.

SIMON COURT: If the member wishes to ask another question, that’s fine, but I’m going to respond to the question that the member asked. This clause provides for, to the greatest extent possible, “to give … effect [to] the same as, or equivalent to”. But let’s be clear, Mana Whakahono ā Rohe arrangements do not meet the scope of this new legislation, and the Government has said that there will be provision for iwi participation through an iwi participation agreement. That’s clear. We’re not relitigating the policy. The member may wish to point this out during the course of debate on the legislation over the next few days. That’s fine. You continue to point it out, and the Minister or I will continue to point out we’ve made provision for it. So at a certain point, you know, maybe that will sink in and the member will understand that we’ve made provision for it.

Tamatha Paul: We’re asking what that looks like, but you can’t answer that question.

SIMON COURT: Well, there was no question.

CHAIRPERSON (Maureen Pugh): Sorry, the debate doesn’t happen across the Chamber. I’m going to take one more call. Hon Julie Anne Genter.

Committee of the whole House

Thank you, Madam Chair. I actually just wanted to clarify, because there is some reference to Schedule 3 in Part 2—I have some amendments to Schedule 3, but Schedule 3 is also referenced in Part 3. When is the appropriate time to speak to amendments on Schedule 3? Are we doing that now or in the next part of the debate?

CHAIRPERSON (Maureen Pugh): It is the next part.

Hon JULIE ANNE GENTER: The next part? Thank you.

Committee of the whole House

I move, That debate on this question now close.

A party vote was called for on the question, That the debate on this question now close.

Ayes 67

New Zealand National 48; ACT New Zealand 11; New Zealand First 8.

Noes 55

New Zealand Labour 34; Green Party of Aotearoa New Zealand 15; Te Pāti Māori 4; Ferris; Kapa-Kingi.

Motion agreed to.

CHAIRPERSON (Maureen Pugh): The question is that the Minister’s tabled amendments to Amendment Paper 709 amending clauses 47 and 52 be agreed to.

A party vote was called for on the question, That the amendments to the amendments be agreed to.

Ayes 67

New Zealand National 48; ACT New Zealand 11; New Zealand First 8.

Noes 55

New Zealand Labour 34; Green Party of Aotearoa New Zealand 15; Te Pāti Māori 4; Ferris; Kapa-Kingi.

Amendments to the amendments agreed to.

CHAIRPERSON (Maureen Pugh): The question is that the Hon Julie Anne Genter’s tabled amendment to Amendment Paper 709 amending clause 11(1)(a) be agreed to.

A party vote was called for on the question, That the amendment to the amendments be agreed to.

Ayes 55

New Zealand Labour 34; Green Party of Aotearoa New Zealand 15; Te Pāti Māori 4; Ferris; Kapa-Kingi.

Noes 67

New Zealand National 48; ACT New Zealand 11; New Zealand First 8.

Amendment to the amendments not agreed to.

CHAIRPERSON (Maureen Pugh): The question is that the Hon Julie Anne Genter’s tabled amendment to Amendment Paper 709 amending clause 11(1)(b) be agreed to.

A party vote was called for on the question, That the amendment to the amendments be agreed to.

Ayes 55

New Zealand Labour 34; Green Party of Aotearoa New Zealand 15; Te Pāti Māori 4; Ferris; Kapa-Kingi.

Noes 67

New Zealand National 48; ACT New Zealand 11; New Zealand First 8.

Amendment to the amendments not agreed to.

CHAIRPERSON (Maureen Pugh): The question is that the Hon Julie Anne Genter’s tabled amendment to Amendment Paper 709 amending clause 11(1)(c) be agreed to.

A party vote was called for on the question, That the amendment to the amendments be agreed to.

Ayes 55

New Zealand Labour 34; Green Party of Aotearoa New Zealand 15; Te Pāti Māori 4; Ferris; Kapa-Kingi.

Noes 67

New Zealand National 48; ACT New Zealand 11; New Zealand First 8.

Amendment to the amendments not agreed to.

CHAIRPERSON (Maureen Pugh): The question is that the Hon Julie Anne Genter’s tabled amendment to Amendment Paper 709 amending clause 11(1)(d) be agreed to.

A party vote was called for on the question, That the amendment to the amendments be agreed to.

Ayes 55

New Zealand Labour 34; Green Party of Aotearoa New Zealand 15; Te Pāti Māori 4; Ferris; Kapa-Kingi.

Noes 67

New Zealand National 48; ACT New Zealand 11; New Zealand First 8.

Amendment to the amendments not agreed to.

CHAIRPERSON (Maureen Pugh): The question is that the Hon Julie Anne Genter’s tabled amendment to Amendment Paper 709 amending clause 11(1)(e) be agreed to.

A party vote was called for on the question, That the amendment to the amendments be agreed to.

Ayes 55

New Zealand Labour 34; Green Party of Aotearoa New Zealand 15; Te Pāti Māori 4; Ferris; Kapa-Kingi.

Noes 67

New Zealand National 48; ACT New Zealand 11; New Zealand First 8.

Amendment to the amendments not agreed to.

CHAIRPERSON (Maureen Pugh): The question is that the Hon Julie Anne Genter’s tabled amendment to Amendment Paper 709 inserting clause 11(1)(ga) be agreed to.

A party vote was called for on the question, That the amendment to the amendments be agreed to.

Ayes 55

New Zealand Labour 34; Green Party of Aotearoa New Zealand 15; Te Pāti Māori 4; Ferris; Kapa-Kingi.

Noes 67

New Zealand National 48; ACT New Zealand 11; New Zealand First 8.

Amendment to the amendments not agreed to.

CHAIRPERSON (Maureen Pugh): The question is that Oriini Kaipara’s tabled amendment to clause 11(1)(f) be agreed to.

A party vote was called for on the question, That the amendment be agreed to.

Ayes 55

New Zealand Labour 34; Green Party of Aotearoa New Zealand 15; Te Pāti Māori 4; Ferris; Kapa-Kingi.

Noes 67

New Zealand National 48; ACT New Zealand 11; New Zealand First 8.

Amendment not agreed to.

CHAIRPERSON (Maureen Pugh): The question is that Oriini Kaipara’s tabled amendments to clauses 11, 12, and 13 be agreed to.

A party vote was called for on the question, That the amendments be agreed to.

Ayes 55

New Zealand Labour 34; Green Party of Aotearoa New Zealand 15; Te Pāti Māori 4; Ferris; Kapa-Kingi.

Noes 67

New Zealand National 48; ACT New Zealand 11; New Zealand First 8.

Amendments not agreed to.

CHAIRPERSON (Maureen Pugh): The question is that the Hon Rachel Brooking’s tabled amendment to Amendment Paper 709 inserting clauses 15B to 15P be agreed to.

A party vote was called for on the question, That the amendment to the amendments be agreed to.

Ayes 55

New Zealand Labour 34; Green Party of Aotearoa New Zealand 15; Te Pāti Māori 4; Ferris; Kapa-Kingi.

Noes 67

New Zealand National 48; ACT New Zealand 11; New Zealand First 8.

Amendment to the amendments not agreed to.

CHAIRPERSON (Maureen Pugh): The question is that the Hon Rachel Brooking’s amendments to clauses 57 to 62A in Amendment Paper 709 set out on Amendment Paper 751 be agreed to.

A party vote was called for on the question, That the amendments to the amendments be agreed to.

Ayes 55

New Zealand Labour 34; Green Party of Aotearoa New Zealand 15; Te Pāti Māori 4; Ferris; Kapa-Kingi.

Noes 67

New Zealand National 48; ACT New Zealand 11; New Zealand First 8.

Amendments to the amendments not agreed to.

CHAIRPERSON (Maureen Pugh): The question is that the Minister’s amendments to Part 2 set out on Amendment Paper 709 as amended be agreed to.

A party vote was called for on the question, That the amendments as amended be agreed to.

Ayes 67

New Zealand National 48; ACT New Zealand 11; New Zealand First 8.

Noes 55

New Zealand Labour 34; Green Party of Aotearoa New Zealand 15; Te Pāti Māori 4; Ferris; Kapa-Kingi.

Amendments as amended agreed to.

CHAIRPERSON (Maureen Pugh): The Hon Rachel Brooking’s amendments to clause 11 set out on Amendment Paper 694 are out of order as being inconsistent with a previous decision of the committee of the whole House.

Tamatha Paul’s amendment to clause 11(1) is out of order as being inconsistent with a previous decision of the committee of the whole House.

The question is that the Hon Rachel Brooking’s amendment to clause 11 set out on Amendment Paper 743 be agreed to.

A party vote was called for on the question, That the amendment be agreed to.

Ayes 55

New Zealand Labour 34; Green Party of Aotearoa New Zealand 15; Te Pāti Māori 4; Ferris; Kapa-Kingi.

Noes 67

New Zealand National 48; ACT New Zealand 11; New Zealand First 8.

Amendment not agreed to.

CHAIRPERSON (Maureen Pugh): Members, Steve Abel’s three tabled amendments to Part 2 relating to protection of urban trees and urban tree canopy lend themselves to being grouped. I will put a single question on them unless members indicate that they wish to vote differently on a specific amendment.

The question is that Steve Abel’s tabled amendments inserting clause 11(1)(ca) and 14(2)(f) and amending clause 49 be agreed to.

A party vote was called for on the question, That the amendments be agreed to.

Ayes 55

New Zealand Labour 34; Green Party of Aotearoa New Zealand 15; Te Pāti Māori 4; Ferris; Kapa-Kingi.

Noes 67

New Zealand National 48; ACT New Zealand 11; New Zealand First 8.

Amendments not agreed to.

CHAIRPERSON (Maureen Pugh): The question is that Tamatha Paul’s tabled amendment to clause 11(1)(i) be agreed to.

A party vote was called for on the question, That the amendment be agreed to.

Ayes 55

New Zealand Labour 34; Green Party of Aotearoa New Zealand 15; Te Pāti Māori 4; Ferris; Kapa-Kingi.

Noes 67

New Zealand National 48; ACT New Zealand 11; New Zealand First 8.

Amendment not agreed to.

CHAIRPERSON (Maureen Pugh): The question is that Tamatha Paul’s tabled amendment to clause 11(1)(i)(i) be agreed to.

A party vote was called for on the question, That the amendment be agreed to.

Ayes 55

New Zealand Labour 34; Green Party of Aotearoa New Zealand 15; Te Pāti Māori 4; Ferris; Kapa-Kingi.

Noes 67

New Zealand National 48; ACT New Zealand 11; New Zealand First 8.

Amendment not agreed to.

CHAIRPERSON (Maureen Pugh): The question is that Tamatha Paul’s tabled amendment replacing clause 11(1)(i)(ii) be agreed to.

A party vote was called for on the question, That the amendment be agreed to.

Ayes 55

New Zealand Labour 34; Green Party of Aotearoa New Zealand 15; Te Pāti Māori 4; Ferris; Kapa-Kingi.

Noes 67

New Zealand National 48; ACT New Zealand 11; New Zealand First 8.

Amendment not agreed to.

CHAIRPERSON (Maureen Pugh): The question is that the Hon Rachel Brooking’s amendment to clause 12 set out on Amendment Paper 707 be agreed to.

A party vote was called for on the question, That the amendment be agreed to.

Ayes 55

New Zealand Labour 34; Green Party of Aotearoa New Zealand 15; Te Pāti Māori 4; Ferris; Kapa-Kingi.

Noes 67

New Zealand National 48; ACT New Zealand 11; New Zealand First 8.

Amendment not agreed to.

CHAIRPERSON (Maureen Pugh): The question is that the Hon Rachel Brooking’s amendment to clause 13 set out on Amendment Paper 701 be agreed to.

A party vote was called for on the question, That the amendment be agreed to.

Ayes 55

New Zealand Labour 34; Green Party of Aotearoa New Zealand 15; Te Pāti Māori 4; Ferris; Kapa-Kingi.

Noes 67

New Zealand National 48; ACT New Zealand 11; New Zealand First 8.

Amendment not agreed to.

CHAIRPERSON (Maureen Pugh): The question is that Tamatha Paul’s tabled amendment to clause 13(1) inserting paragraph (g) be agreed to.

A party vote was called for on the question, That the amendment be agreed to.

Ayes 55

New Zealand Labour 34; Green Party of Aotearoa New Zealand 15; Te Pāti Māori 4; Ferris; Kapa-Kingi.

Noes 67

New Zealand National 48; ACT New Zealand 11; New Zealand First 8.

Amendment not agreed to.

CHAIRPERSON (Maureen Pugh): The question is that the Hon Rachel Brooking’s amendments to clause 14 set out on Amendment Paper 697 be agreed to.

A party vote was called for on the question, That the amendments be agreed to.

Ayes 55

New Zealand Labour 34; Green Party of Aotearoa New Zealand 15; Te Pāti Māori 4; Ferris; Kapa-Kingi.

Noes 67

New Zealand National 48; ACT New Zealand 11; New Zealand First 8.

Amendments not agreed to.

CHAIRPERSON (Maureen Pugh): The question is that Hūhana Lyndon’s amendments to clause 14 set out on Amendment Paper 749 be agreed to.

A party vote was called for on the question, That the amendments be agreed to.

Ayes 55

New Zealand Labour 34; Green Party of Aotearoa New Zealand 15; Te Pāti Māori 4; Ferris; Kapa-Kingi.

Noes 67

New Zealand National 48; ACT New Zealand 11; New Zealand First 8.

Amendments not agreed to.

CHAIRPERSON (Maureen Pugh): The question is that the Hon Rachel Brooking’s tabled amendment to clause 14(2) inserting paragraph (f) be agreed to.

A party vote was called for on the question, That the amendment be agreed to.

Ayes 55

New Zealand Labour 34; Green Party of Aotearoa New Zealand 15; Te Pāti Māori 4; Ferris; Kapa-Kingi.

Noes 67

New Zealand National 48; ACT New Zealand 11; New Zealand First 8.

Amendment not agreed to.

CHAIRPERSON (Maureen Pugh): Lan Pham’s amendment to clause 15A set out on Amendment Paper 732 is out of order as being inconsistent with a previous decision of the committee.

The question is that the Hon Rachel Brooking’s amendment to clause 15A set out on Amendment Paper 696 be agreed to.

A party vote was called for on the question, That the amendment be agreed to.

Ayes 55

New Zealand Labour 34; Green Party of Aotearoa New Zealand 15; Te Pāti Māori 4; Ferris; Kapa-Kingi.

Noes 67

New Zealand National 48; ACT New Zealand 11; New Zealand First 8.

Amendment not agreed to.

CHAIRPERSON (Maureen Pugh): The question is that Tamatha Paul’s tabled amendment to clause 15A inserting paragraph (ba) be agreed to.

A party vote was called for on the question, That the amendment be agreed to.

Ayes 55

New Zealand Labour 34; Green Party of Aotearoa New Zealand 15; Te Pāti Māori 4; Ferris; Kapa-Kingi.

Noes 67

New Zealand National 48; ACT New Zealand 11; New Zealand First 8.

Amendment not agreed to.

CHAIRPERSON (Maureen Pugh): Tamatha Paul’s amendment to clause 25 is out of order as being inconsistent with a previous decision of the committee.

The question is that the Hon Rachel Brooking’s amendment to clause 31 set out on Amendment Paper 708 be agreed to.

A party vote was called for on the question, That the amendment be agreed to.

Ayes 55

New Zealand Labour 34; Green Party of Aotearoa New Zealand 15; Te Pāti Māori 4; Ferris; Kapa-Kingi.

Noes 67

New Zealand National 48; ACT New Zealand 11; New Zealand First 8.

Amendment not agreed to.

A party vote was called for on the question, That Part 2 as amended be agreed to.

Ayes 67

New Zealand National 48; ACT New Zealand 11; New Zealand First 8.

Noes 55

New Zealand Labour 34; Green Party of Aotearoa New Zealand 15; Te Pāti Māori 4; Ferris; Kapa-Kingi.

Part 2 as amended agreed to.

Committee of the whole House

Part 3 Combined plan, and Schedules 2 to 5

CHAIRPERSON (Maureen Pugh): We come now to Part 3. This is the debate on clauses 63 to 106, “Combined plan”, including Schedule 2, “Regional spatial plans”; Schedule 3, “Further provisions relating to plans”; Schedule 4, “Independent hearings panels”; and Schedule 5, “Designations”. The question is that Part 3 stand part.