Natural Environment Bill

Committee of the whole House

Thank you, Mr Chair. Part 1 includes the definitions. It also includes the purpose and the Treaty of Waitangi clause and some new clauses related to that and the rules that contain fishing. Not too many clauses here, but some important ones, including, of course, the purpose.

I want to go to my published Amendment Paper 686. This relates to page 25, and again, we’re on—

CHAIRPERSON (Teanau Tuiono): Did you say 686?

Hon RACHEL BROOKING: Yes, I did.

CHAIRPERSON (Teanau Tuiono): Just checking my hearing.

Hon RACHEL BROOKING: I just had to check. I do have Amendment Paper 666 coming up as well, but not quite yet.

Hon Chris Bishop: 666!

Hon RACHEL BROOKING: Yep.

Hon Chris Bishop: OK.

Hon RACHEL BROOKING: Anyway—but I’m not on that one yet.

CHAIRPERSON (Teanau Tuiono): Heavy metal.

Hon RACHEL BROOKING: We’ll come back to that.

Now, I’ll start again. I am looking at the Minister responsible for RMA Reform’s Amendment Paper 7-1-0—or 710 might be an easier way to say it—which is the whole bill with some amendments that were made late last week. I presume that there are no other amendments from the Minister on this bill.

Hon Chris Bishop: There are a couple of minor slips.

Hon RACHEL BROOKING: A couple of minor slips. Well, I’ll have a look at the Table and find those.

But for now I’m going to talk about the definition of “infrastructure”, and that is what my Amendment Paper is about. Of course, the definition of “infrastructure” has an “or” in it. It means “a physical structure, facility, or network that performs a public function; or”—and the “or” is very important because it doesn’t need to perform a public function. It can be something that has no public function—no public function—but “is necessary to … the functioning of the economy:”. Then there are one or more of the following—so it can just be one; it can just be the functioning of the economy. Infrastructure is now defined as “a physical structure necessary to support the functioning of the economy:”. That is how the definition of infrastructure can be read, and that is very much how I am reading it for this bill, the Natural Environment Bill.

This seems incredibly wide, particularly as the term “infrastructure” is used to determine a whole lot of situations around—we will get to limits and when limits can be avoided; not a limit, but we’ll talk about that. The question is if the Minister would agree with my Amendment Paper 686, and that is to delete “the functioning of the economy:” so that infrastructure has to either perform a public function or be related to the functioning of communities, the health and safety of people, the protection of the environment.

Committee of the whole House

We spent about an hour on this during the Planning Bill and the definition is the same.

Hon Rachel Brooking: Oh, did we?

Hon CHRIS BISHOP: Yes, we did. I’m not sure it’s really worth the committee’s time debating the same debate.

Hon Rachel Brooking: Why have two different bills then?

Hon CHRIS BISHOP: Well, that is an issue of debate, but not really part of this part that goes to the structure—

Camilla Belich: Which part is it part of?

Hon CHRIS BISHOP: Well, it goes to the structure of the overall approach, which is for the various different readings rather than the part-by-part analysis. We have debated this at length—the definition of infrastructure is broad to recognise a range of infrastructure needs, support long-term planning, and avoid disputes over whether particular assets qualify as infrastructure. Decisions about the priority given to infrastructure and the rules that apply to it are determined, obviously, through national instruments and plans.

Before the member asks: yes, the green infrastructure is captured in the definition of it. Again, we debated this at length about 24 hours ago. “Infrastructure” includes a natural feature that is modified to perform certain functions—for example, a wetland that is modified to act as stormwater retention to reduce flooding. This change was made by the Environment Committee to ensure green infrastructure was included in the definition of “infrastructure”. I wasn’t on the select committee, but I suspect the member was advocating for precisely that change, which is an example of a collaborative and collegial way the Environment Committee worked its way through the issues.

CHAIRPERSON (Greg O'Connor): Just before I take the next call, this bill will be treated as a new bill—for those who are watching; for those who subsequently will need to look at comments in the Hansard. From the Chair’s point of view, we treat it as though it is what it is, which is a new bill here. Those on my left are fully entitled to examine it as they would any other bill.

Committee of the whole House

Thank you, Mr Chair. Thank you for that clarification as well. That’s very useful because, of course, we may have debated things 24 hours ago—maybe even more than 24 hours ago, I don’t know; I’ve lost track of time. But even regardless of that, the definition of “infrastructure” is important for this bill; for this Natural Environment Bill, because it goes into—we will get into the limits later.

I appreciate the Minister responsible for RMA Reform’s pre-emptive strike on green infrastructure. Indeed, that is a good change, and I would just say that Government members should listen to me more frequently. I’m going to give them an opportunity to do that right now, and that is to go to clause 4, which is the purpose, and I have Amendment Paper 688. That would be to change the purpose—and I am very happy to admit to the committee that this purpose has been plagiarised from advice that the Parliamentary Commissioner for the Environment has given, and that is to make the purpose an actual purpose clause rather than talking about a framework.

I am pleased that the purpose clause does talk about the enhancement of the natural environment—it is a good word to be included in the purpose. But Amendment Paper 688 proposes to change it to: “The purpose of this Act is to maintain and improve the natural environment and safeguard human health, provide for the adaptation to climate change effects, manage risk of natural hazards, and inform planning under the Planning Act 2025.” In terms of informing planning under the Planning Act, I’ve got some amendments later as well that go towards trying to integrate these two pieces of legislation that we were talking about, one bill after the other, but they are in separate bills and they are going to have term after term that repeats, which I just think is stupid and entirely inefficient. I don’t know why anybody would want to do that, unless they are hellbent on trying to end integrated management, and I would say that that is where I think the ACT Party sits on this, but I would have thought better from the National Party.

This purpose is a way to help integrate those two bills and to talk to how they talk to each other. I’m happy to amend my amendment so that rather than “improve” the natural environment it’s to “enhance”, if we think “enhance” is better than “improve”. The Minister could comment on both my suggested purposed changes and also the integration of the two bills, noting that the natural environment is not some magical other that is outside of our cities or our built environments. When we go outside of this building, there are trees; when we go outside of this building, there is rain, there is air pollution—you know, just one step outside of the building, we have these impacts. So that is why it’s good to think of them all together and to have integrated management. Thank you.

Committee of the whole House

Thank you, Mr Chair. Like my colleague Rachel Brooking, I really appreciate the clarification about how important it is that we treat this bill with the respect it deserves, given the serious implications for the entire country. The points that my colleague has made about it being nonsensical that these bills are split in the first instance—this is just one example of why that is the case and why everyone who interacts with these bills across the whole of the planning sector is going to find this same issue, where they feel like there’s confusion, there’s repetition, there’s complications, and that’s what we heard, resoundingly, from submitters.

To begin with, I wanted to pick up on something in the definitions, because I have an Amendment Paper about it later in the actual Act. But what I want to touch on is the definition of “interim limit”—this is on page 25 of the Minister’s amendment. My impression is that everyone wants a resource management system that actually gets us somewhere. One of the huge disappointments that came with the changes during the select committee stages was just this constant delay, pushing things out, and we’ve seen it again with the Minister’s last-minute amendments and changes to Plan Change 1 and Plan Change 2—sorry, stopping them in their tracks, I should say. Everything is pushed back; even, in those instances, the dates for when the planning system may be in place is around 2032 or 2033, and at that stage, these so-called interim limits are just at decade-long intervals.

My question for the Minister is: why was it the Government’s decision that they so deliberately wanted to push out, even in the interim limits, to 10 years? It’s actually extraordinary in terms of claiming that there is a want and a desire to actually improve things, when even the interim limits will be that far in the future. So really interested to hear that.

The next aspect I want to touch on is, of course, the purpose. I note in my colleague Rachel Brooking’s amendment to simply put in place some basic direction that the Parliamentary Commissioner for the Environment has encouraged us to do. But I want to also bring up the fact that we had an independent KC advise us at select committee on the purposes of the two bills, and she was absolutely clear, and has in her advice to us, that the purposes will not guide or influence decision making. Now, that should be a concern, an absolute concern, for the Minister, for the Government, that there is not clear purpose in these bills.

We’ve had on the Table, and we have on the Table right now, directions in terms of options for the Minister to actually listen to this; to pick it up and decide that he wants to improve things. I want to specifically touch on one of the Amendment Papers that is in the name of my colleague Hūhana Lyndon, and this is changing the purpose at clause 4. Instead of it being so nothing, and to simply establish a framework which doesn’t do anything, we’re proposing that the purpose of the Act is actually to manage the environment in a way that protects and restores the health of the natural environment; that safeguards the life-supporting capacity of air, water, soil, and ecosystems; and that provides for the use and development of the environment in a way that actually promotes the wellbeing of both present and future generations within limits. What else is the point?

I’d love to hear the Minister respond to the fact that there is not an intergenerational approach to these bills—can he please address that? Thank you.

Committee of the whole House

Just dealing with the last objection first: you don’t need to have intergenerational language in the purpose clause to have intergenerational impacts, so I regret that.

Let me just take the issues raised by both Ms Brooking and Ms Pham in relation to purpose. I mean, the member sat through the select committee process. I’m a bit surprised to hear her say the purpose clause doesn’t do anything, it won’t have an effect, etc. That’s the point. That is the point of the Government’s purpose clause. That is the point. I mean, like, she sat through hours of select committee hearings, we had a debate around the same provisions on the purpose—

Hon Rachel Brooking: And everyone says it doesn’t work—it doesn’t work.

Hon CHRIS BISHOP: The whole point is that it’s a descriptive framework clause. We’ve sort of been there, done that, on this issue. The whole point is that we wish to avoid the endless litigation about the purpose clause in the new system. So the Resource Management Act’s (RMA) approach of sustainable management in the purpose, etc.—endless debate around that—that’s the approach we’re deliberately trying to steer away from. So it is a descriptive purpose clause in the Natural Environment Bill, as it is in the Planning Bill.

The problem with her Amendment Paper, which I’ve looked at, is that it just—I mean, it’s even worse than the RMA in the sense that it just conflates a whole lot of different concepts and just shoves them in the purpose clause. It would be a recipe for endless litigation and debate and complications. That deals with Ms Brooking’s and Ms Pham’s questions around that.

In relation to interim limits, she asked why 10 years. Interim limits are a tool for when a limit is breached, and 10 years is to align with plan making, because plans are done every 10 years so the interim limits can be done every 10 years. The interim limits are used when a limit is breached. I actually see them as a step forward, because their wayfind is along the way, right? They’re interim—on the way to the limits.

To the member’s last statement, and to return to the start of it, in terms of intergenerational limits, that is going to be something that you achieve over the long term. I mean, the starting point is that the RMA doesn’t have limits—the Natural Environment Bill is going to have limits across a variety of environmental domains. That is a massive step forward. And I appreciate the member doesn’t think they go far enough; there’d be others in the community who think the same thing, but there will be others equally on the other side of the debate who don’t think we should have limits at all. So the member wants very strict environmental limits probably immediately. A lot of people don’t want limits at all. We’ve reached a position in the middle. I think it’s a good step forward for the country. And, as I’ve said multiple times, we should have economic development and growth within limits. That’s what this bill sets up.

CHAIRPERSON (Greg O'Connor): Lan Pham.

Hon Rachel Brooking: Point of order.

Lan Pham: Thank you, Mr Chair. Just to pick up—

CHAIRPERSON (Greg O'Connor): Sorry, point of order, Hon Rachel Brooking.

Committee of the whole House

Yes, just before, we had a quick interaction about amendments and which Amendment Papers we were looking at. We’re looking at this Amendment Paper 710. The Minister indicated that there were some small Amendment Papers. I’ve just been to the Table and I have not been able to find—

Hon Chris Bishop: They’re extremely minor PCO drafting things.

Hon RACHEL BROOKING: OK. But they’re not on the Table yet?

Hon Chris Bishop: I don’t believe so, no. They’re coming.

Hon RACHEL BROOKING: OK, thank you. That is the answer to my question.

Lan Pham: Point of order.

CHAIRPERSON (Greg O'Connor): A legitimate point of order, thank you. Lan Pham.

Committee of the whole House

Speaking to the point of order, Mr Chair, is it possible for us to be—for the Minister, when they do come in, just for him to alert us. Because sometimes officials come in very quietly, but I would be really keen to see those amendments. Would that be appropriate?

Hon Chris Bishop: Yeah, I can I tell you.

Lan Pham: Thank you. Mr Chair?

CHAIRPERSON (Greg O'Connor): Lan Pham.

Committee of the whole House

Thank you. Just responding to the Minister’s comments around interim limits, you know, they’re a stepping stone, and yet, stepping stones would be within the plan time frames. The fact is, with these 10-year limits, they are at the edge of the 10-year planning cycles. So I’m not sure how that is possibly an improvement and how they are stepping stones when they are at the edge of the time line that is actually available. So I’m really interested to hear the Minister—

Hon Chris Bishop: I’ve answered that question.

LAN PHAM: So you’re comfortable with just pushing out?

Hon Chris Bishop: They’re interim. They’re interim limits.

LAN PHAM: So take the example, Minister, of the changes in Plan Change 1 in the Waikato so that plan will be in place in, say 2033. Your explanation documents make that clear. That will have an interim limit of 2043.

Why are you shaking your head, Minister? That is the actual implications of what you’re proposing here. I’m not sure why he’s shaking—why are you shaking your head, Minister.

Committee of the whole House

I’m not going to say anything.

Committee of the whole House

Thank you, Mr Chair. Yes, I don’t know what’s happening with the shaking of the head, either. But when I was just talking about clause 4 and the purpose, and the Minister said, “I don’t know why you guys weren’t listening in select committee. The whole point is not to have a purpose really.”

Well, we were listening in select committee. And we did listen to the advice of our independent KC—that is, a very fancy lawyer. And we did listen to many submissions on this topic as well, and they told us—and it does go into Part 2, which are the goals, as well. But that relationship between the two Acts, between the two purposes, between the goals, sets up the whole regime for failure. It is a hot mess.

That hot mess is going to result in exactly what the Minister doesn’t want, and that is endless litigation. It is going to be great for resource management lawyers, and no one else. Oh, no—it will be good for polluters as well. That’s who this is going to be good for.

I’m surprised that the Minister is refusing to engage with that point: that the select committee heard advice after advice that his purpose clauses, his framework purpose clauses, and his hot list of goals in two different Acts, they won’t do what his stated objective is, which is to reduce litigation. He said, as a counterfactual, I guess, “Oh look, the Resource Management Act had a whole lot of litigation around its purpose clause.” And that is correct; I do not disagree with the Minister. There was a lot of litigation around the purpose clause of the Resource Management Act (RMA) and it is now settled.

So if the Minister really wants to avoid court action, he could import the purpose clause of the RMA. He could import “sustainable management” and words like “wellbeing” and “future generations”. That could come into this legislation, if he really wants to reduce litigation.

Of course, I remember being in that Chair that the Minister is in over three years ago and members, who were then on this side of the Chamber, were ridiculing any changes in language that we made to the purposes of the Natural and Built Environment Act because it was going to create a whole lot of litigation, they said. That was their main argument. The argument they gave was that it was too long. These were the two substantive arguments that I heard against the Natural and Built Environment Act.

Now, he is going in totally the opposite direction. So how is it—has he got advice that the select committee did not see that somehow, magically, all the fancy lawyers are wrong, and that, in fact, there will be no work for them to do and that litigation will reduce because this purpose clause is so weak?

Committee of the whole House

The easier answer to that is that the funnel design, that is the design of this bill and also the Planning Bill comes out of the work by Janette Campbell who chaired the expert advisory group alongside other Resource Management Act (RMA) practitioners, planners, there was a freshwater expert and a housing expert on the committee, on the group who did.

I appreciate the member’s got a view, and I respect her, obviously, as a former resource management lawyer.

Hon Rachel Brooking: It’s not my view.

Hon CHRIS BISHOP: Yeah, I know that. I’m just making the point that I respect her view and the views of others, but I respectfully disagree. And there are plenty of people who will say that as well.

We’re deliberately trying to—I mean, if you just go back to the beginning, the RMA’s approach to very broad purpose clause and the litigation over it, which she accepts has happened, has not worked. So after 30 years, time to try something new. What we’ve gone for is a framework-based approach, a descriptive clause, in which we don’t have all of the debate up in clause 3 of this ginormous statute, which dictates everything else that happens down at an individual consenting level. You should not have to go and prove that you’re complying with 14 different national policy statements, some of which conflict, and regional policy statements and have debate with your local council about whether or not doing simple things complies with clause 13 of some bill or Act you’ve never heard of.

The point is to design the funnel. We’ve talked about this at length. Start with a purpose clause, which doesn’t do very much; goals that govern the setting of the national direction; and then the combined plans, land use plans, natural environment plans. Below that, down at an individual consenting level, standards are there to help along the journey.

It is, I guess, just like a fundamental disagreement. I haven’t heard the member, who’s asked multiple questions about this—I haven’t heard her outline an alternative approach to that. I suppose the Natural and Built Environment Act was an alternative approach, alongside the Spatial Planning Act. But as the member adverts to in her own remarks just then, one of our criticisms in Opposition was that that approach was just reiterating and repeating the same mistakes of the RMA.

I appreciate there’s a legislative architectural design difference here, which is important. But we stand by the new approach we’re taking, which has been based on extensive advice from not just the expert advisory group, but also extensive advice from a very hard-working team at Ministry for the Environment and now Ministry for Cities, Environment, Regions and Transport.

Committee of the whole House

In response to that, then, is the Minister saying that the Resource Management Act (RMA) purpose, the litigation—we both accept that there’s been a lot of litigation around that. Is he saying that that has not now been resolved? That it remains unresolved?

We’ve been talking in this House recently about the King Salmon case, and it seems very much the purpose, and where the purpose sits within the RMA, has been resolved if you have those higher order documents, then you do not need to go back to the purpose.

The Minister says, “Well, I haven’t heard anything from you.” Well, he should read my Amendment Papers, for a start. I need to start this part of the contribution by saying: I totally agree that one of the major problems we have in our system at the moment is that too much of the activity is consent by consent. We were trying to change that in our reforms as well. That is a problem. There’s no disagreement about that. We do need to have a much more efficient system that moves those trade-off decisions up away from consent by consent, into the plans, into the national direction. That I totally agree on.

However, where my amendments come in is on the advice of all these people that came to the Environment Committee, and that is to have a stronger purpose that informs how the legislation is to work, and goals that have some semblance of a hierarchy.

Because at the moment, and I’ve done that—we’ll get to that in the next part. It’s a very inelegant way of doing it, and I’m very happy to, if anyone else wants to do amendments on that—very happy to change the approach. But the objective is to not have decisions at the consent level going back to any purpose statement, any goals, anything like that, because it should come down the system of the national direction and the plans so that the consents don’t need to get involved in that discussion, that argument.

The problem with these bills and what the Minister was just talking about is that it is ministerial discretion that informs all of that hierarchy. All of that conflict goes to the ministerial discretion. So that then will sit at the top of the system, and if that gets wrong, then it will come down—it funnels down like a spinning top, you move the spinning top around, and what happens when it wobbles? The whole thing falls over. So that is a problem with this legislation.

This is not me speaking from a policy position of “Oh, we need to change the legislation to do better for waterways.” I’d like to do that as well, but I’m putting that to one side now. This is just an efficiency systems issue. The Minister has not dealt with it, and it’s a real problem. We’ve had expert after expert saying this, and I think he should consider some of my amendments which, as I said, I’m happy to have them amended. They are suggestions of how to fix this structural problem with this bill.

Committee of the whole House

Thank you, Mr Chair. I want to pick up specifically on clause 8, “Treaty of Waitangi/Te Tiriti o Waitangi”, and clauses 9 and 10. This is about upholding Treaty settlements and the Crown’s obligations in this space.

Throughout the select committee process, we heard incredibly strong submissions from iwi and hapū, from post-settlement entities, about how offensive—the word that I think Waikato-Tainui used was how the pushing through of these bills would “eviscerate” Crown-Māori relationships. A big part of that was the fact that the bills would be rushed through, as they have been, and so many provisions in them have such serious implications for Treaty settlements in particular, let alone implications for the broader environment and the connection of mana whenua with te taiao, the environment.

So what I’m really interested in is: why was it not the case that the Government took seriously those submissions and actually held this off, given how serious the implications are, to get to a point with iwi-Māori where there was much more of a collective drive to actually work together on making this a functional system? Because throughout all of this bill—and the Planning Bill is the same, but it actually at least has some decent bits in it—we’re seeing total dysfunction. We even heard today at Environment Committee—Te Rūnanga o Ngāi Tahu were presenting on a different bill, the Conservation Amendment Bill, but even there, they referenced how offensive these bills have been in terms of their exercise of rangatiratanga in their rohe.

Now, to make some form of basic amendment, my colleague Hūhana Lyndon has Amendment Paper 748 to introduce some basic strong direction to give effect to Te Tiriti that is consistent with that from the Natural and Built Environment Act in 2023. We know that this is a better place to be in because it actually had some form of buy in from iwi Māori. I’d really like to hear the Minister’s response to that in particular. If he wants to respond now, I can wait until I go to the next one.

Committee of the whole House

I don’t have a huge amount more to say than what I’ve already said, which is: we’ve worked really hard to be very particular about the role of Māori in the planning system and the environment system in the new bills. We specifically and very deliberately did not go for what I’ve called a “generic Treaty principles clause”. As I’ve said repeatedly both inside the House and outside the House, Parliament’s failure to actually articulate what it is trying to do is partly what’s led to the angst and difficulties that we’ve experienced in that whole debate. So there is a Treaty clause in this bill, but it’s not a generic Treaty principles clause in which we hand it over to the courts and say, “Good luck”. We’ve actually been really clear about what the role of iwi Māori is in the system.

In relation to settlements, which is a related but separate issue, I take issue with the idea that this bill’s been rushed through. The bill is having its committee stage under urgency, but the bill spent a considerable length of time at the Environment Committee; there were endless submissions that they did a really good job working their way through. The second reading was a few weeks ago. We’ve now got the committee stage, and when they’re eventually done, we’ll get on to the third reading. It’s just followed a standard, ordinary parliamentary process. I accept the bills are complicated and they’re important, but I resist the idea that they are being rushed through, in the same way that I resist the idea that they are “eviscerating” Māori-Crown relations.

For example, we have reached agreements in relation to the preservation and upholding of settlements with the river iwi Te Ture Whaimana and, likewise, Ngāti Porou and the related arrangements to the Whanganui River. Those are listed in the bills. There’s still a bit of work to do with other iwi, obviously, but this is not a problem that is new to this Government. This same problem afflicted the previous Government, to be honest, when it came to the Natural and Built Environment Act and the Spatial Planning Act.

The great challenge is how you give effect to settlements that were signed in the age of the Resource Management Act (RMA)—so the planning and the environmental statute—and you’re changing the underlying statutes. As I said in the previous debate, there are some people who say, “Well, that’s just the way it is. You’ve locked in formaldehyde the RMA.” That can’t be true as a proposition of law, and it can’t be true in principle.

So we are changing the underlying statute, which is fine. Then the question is: well, how do you make sure that the Crown’s upholding its settlements? It’s actually in the coalition documents between the three parties that make up the Government, that we uphold Treaty settlements. They are very solemn legal agreements that the Crown has entered into, and that’s why clause 9 is there to say, “Crown to seek to enter agreements to uphold Treaty settlement redress or arrangement”, “The Crown must,” etc. And then there’s clause 10, which means that Treaty settlement redress will operate with the same or equivalent effect, to the greatest extent possible.

Now, obviously, that’s a judgment as to what that means. It’s a contextual-based judgment; it’s a fact-based judgment as to the precise circumstances you’re talking about. And there’s a bit of work to do around that, but it’s a best-endeavours, good-faith legal obligation on the Crown, and decision makers operating under the new statute, to make sure that we’re upholding Treaty settlements. I’ve spent a considerable amount of time talking to iwi leaders and talking to rangatira and iwi Māori about this issue. If you go back to Lord Cooke’s dicta, good faith counts for a lot, and that’s what we’re trying to do.

Committee of the whole House

Thank you, Mr Chair. First of all, I’d just like to say I’m thrilled that I’m an employment lawyer. I have been trying to come to grips with this particular area of law, and so I want to ask about the clauses that talk about the schedules. There is a decision that’s been made under clause 5 that the schedules are actually references straight to the schedules in the Planning Act. I wondered how unusual that was, as a method, rather than it having its own schedules, because I haven’t come across it before. I appreciate the area is complex, but it doesn’t seem good practice that you would have to go beyond this Act to find schedules that relate and are binding upon it. My understanding is the second part schedule, 11, of the Planning Act is also relevant, and that will be because of transitions around the Resource Management Act.

I just want to ask what process the Minister had been through in terms of deciding that those schedules would be in another Act rather than perhaps even arduously copied and pasted into this one, and whether that was a practice that was followed from other pieces of legislation. I appreciate they’re related to each other, but this is highly unusual. We’re trying to allow people to be able to get to grips with the law without the involvement of lawyers, and I’m finding it rather difficult.

Committee of the whole House

Well, fair enough; it’s a good question. The advice is it’s unusual but efficient, and it is, because it means—

Hūhana Lyndon: For whom?

Hon CHRIS BISHOP: Well, it’s efficient for everybody.

Hon Rachel Brooking: Not efficient for the users.

Hon CHRIS BISHOP: Well, hang on a minute. Come on, you know how most people read law these days. No one goes and looks up the actual physical statute—only old fuddy-duddies have physical copies of statutes in their offices. The vast bulk of lawyers will look at it online. You’ve got the cross-tabs and the clicks, and you just click the schedule and it brings up the Planning Act schedule. The Parliamentary Counsel Office (PCO) has built a whole new website, and it’s meeting rave reviews, by the way, I’m told—the new PCO legislative reading thing, or whatever’s it’s called.

Hon Dr Duncan Webb: Oh, sit down, Attorney-General.

Hon CHRIS BISHOP: Yeah, OK—all right. But, anyway, my point is that it’s efficient, so we don’t have to repeat it all. It’s unusual, but the short answer is, to be honest, I didn’t have a role in that. Policy decisions are made by Ministers in Cabinet, but the drafting is done by the legal beagles—the excellent drafters—at the Parliamentary Counsel Office. Thankfully, I am not a legislative drafter.

Committee of the whole House

I just want to start on a positive note for this contribution—it won’t last for long. I too am very pleased that I am not a parliamentary drafter, and would like to congratulate those parliamentary drafters for the amazing work that they do.

I wanted to go back to some remarks that the Minister was making about the equivalence clauses and in response to the Treaty clause—so clauses 8 and 9—before moving on to new clause 10A. He used some formaldehyde metaphor that I’m not sure I totally understand, but his point was, I think, that if you have a Treaty settlement and that Treaty settlement refers to clauses in the Resource Management Act (RMA), you must still be able to change the RMA, despite the fact that those clauses are mentioned in the Treaty settlement, and I agree with that proposition. Then he said that that was an issue that the last Government had as well, and that is true. However, the difference between this equivalence and our equivalence is that all of the other provisions in the legislation undermine what the RMA was doing in terms of both environmental protections—and we’ll get into that limits argument later—but also Māori involvement provisions throughout the different pieces of legislation.

So we have that change at clause 8. There’s a specific requirement, but there’s no equivalent to the RMA, which is to take into account the principles of the Treaty. We have “give effect to”, but “take into account” is gone.

Section 6(e) of the RMA, which talks about Māori interests in land and water and taonga, is not replicated fully in these reforms. There is not the equivalent of Mana Whakahono ā Rohe. Section 33 transfers have gone. Joint partnerships—they’ve gone too. All of these instruments that are in the RMA and that were in our reforms, they have gone. When the Minister says, “Well, equivalence is an issue that both Labour had to deal with and this Government had to deal with.”, that was a very different context, and context does matter.

We have had many iwi submitters say that the equivalence cannot work with those wider settings of these laws, which is why either you need to do a whole lot of new section 10As—well, that’s only for settled iwi—or you need to bring back those provisions. You need to bring back section 6(3), you need to bring back the Mana Whakahono ā Rohe provisions, and you need to bring back the section 33 transfers, but, instead, that is not what this Government is doing. My question to the Minister on this point is: does he agree that this legislation goes backwards from the Resource Management Act on Māori participation?

In our reforms as well—which were very different from these—mana whenua representatives were at the table in the making of the plans, and, of course, that has all gone backwards, as well. The RMA might be here with Māori participation and we were over here, and my question is: does he agree that this legislation is on the other side of that participation spectrum, which goes to equivalence—

Hon Dr Duncan Webb: The “enshittification” of it.

Hon RACHEL BROOKING: I won’t say that. That’s my question and I’ll come to another one in a minute.

Committee of the whole House

Madam Chair, that is a judgment that others will make; it’s not one that I intend to make. All I’ll say is what I’ve said two or three times now, which is that we’re trying to make it clear where everyone’s role in the system is and the areas that should be focused on. I think we’ve been pretty clear about what those roles are—far clearer than the Resource Management Act and other bills in the past.

CHAIRPERSON (Greg O'Connor): Just for anyone watching at home, with the Minister’s frequent references to Madam Chair, I can assure them I’m a Mr Chair.

Hon Chris Bishop: Oh, sorry—sorry, Mr Chair.

Committee of the whole House

Thank you, Mr Chair. I might be one of those fuddy-duddies, believe it or not, that does have a hard copy of the Children, Young Persons, and Their Families Act actually at my house, and so I do fit in there somewhere—just as a comment to the Minister.

Hon Mark Patterson: The Luddites strike back!

MARIAMENO KAPA-KINGI: Ha! Te Tiriti o Waitangi settlements piece—I do want to make some comments and then ask a question. Mr Chair, you may have heard that I used an expression in the previous debate. The feelings of that saying make me want to make that statement, but I won’t, because I think it’s probably already settled in the minds of people sitting in the Chamber today.

But with “Māori interests” and words like that, the implications will fall differently on Māori hapū and iwi. I do hear, Minister, an intent in you when you’re responding, and I am responding to that in a kindly way—at this point, anyway—because the context matters hugely, and I just heard Rachel Brooking make that same statement. It matters hugely and I hear that you’ve expressed that you’re meeting with many rangatira and iwi leaders, and, I think those are good things. But, honestly, the bigger context of this is that the last three years have been absolutely horrible for Māori—just horrible..

The thing that’s missing the most, most, most—which, I think, is fundamental to what you all need, and we all need—is trust. And it’s just simply not there. It has been at its lowest—in fact, not only for Māori but for many, but definitely for Māori. Definitely for Māori, the trust is so, so low, because the harm has been an accumulated harm. When you’re dealing with those dynamics, the responses, Minister, that you may have gotten, and feel a little bit of comfort in as you move forward this way, is, I would imagine, even just the tolerance that Māori have, to be able to have certain conversations and to get something moving. But there’s such a high level of tolerance on this side, or this battle, and I’m talking about hapū, and I’m talking about iwi Māori, and Māori communities in general, Minister.

The trust is so low. My question, then, is: is now the time to do this? Is now the right time to bring this through? I mean, honestly, is it? I’m keen to get a real sense of it from you, personally as well as politically, because I think that’s what our whānau are saying, and this is what our hapū are saying when I go back to our marae committees, and they’re like, “Meno, we cannot trust virtually anything that’s been said.” We might nod and go, “Look, yeah, let’s get going.”, but, in fact, in the deeper conversations that are had when the time is given to those, Minister, I can assure you that trust is so low and tolerance, on our side, is so, so high. Is this the right time? Is now the time? Can I leave that there? Thank you for that.

Committee of the whole House

Madam—Mr Chair. A couple of—

Hon Rachel Brooking: You did it again!

Hon CHRIS BISHOP: I know, I know, sorry—Mr Chair. A couple of brief comments. The question was: is now the right time to do this? The answer, in the Government’s view, is yes. Our planning system has held New Zealand back for far too long, and it’s held iwi Māori back from using their whenua for far too long. Some of the more enjoyable conversations I have with iwi around the country is on the strictures of the Resource Management Act (RMA) that are getting in the way of development. As my good friend Matua Tuku says to me all the time, he says, “You know, we’ve got economic interests too. We’re farmers. We’ve got developments.” You know, they’ve got Ruakura—they’ve known all too well about the RMA. I mean, ask Ngāi Tahu about Hananui Aquaculture. The last Government set aside some settlement area for a salmon farm, and there was a big show and tell and song and dance about it in 2021, I think it was, and everyone got very excited. Then they rocked off to the Environment Court to get a consent to do the salmon farm and they got turned down.

Do you know, since we did the commercial aquaculture settlement back in 2006, I think it was, not a single area of Māori commercial aquaculture has been developed; not a single one. Not one. When I discovered that, I got furious about it, and, frankly, I think it’s a disgrace; I think it’s absolutely disgraceful. Just as an aside, I find it baffling that the Waitangi Tribunal is spending endless years on the kaupapa Māori housing inquiry, for example—and I’m the Minister of Housing and I know all too well about issues we have with housing in this country, including those affecting Māori—we don’t need five years’ worth of work and endless millions of dollars spent on it.

What is a contemporary breach in New Zealand? Twenty years of the Crown saying, “Yeah, great, aquaculture is amazing and we’ll help you settle your claims and develop these areas.”, and 20 years on, the planning system has not let that happen. That, to me, is a contemporary breach of the Treaty. It’s disgusting—disgusting.

Anyway, the good news is that Hananui Aquaculture, which has hundreds of millions of dollars of salmon farms in Rakiura / Stewart Island, has now got fast-track consent. Everyone said it was going to be a disaster for Māori and a disaster for the environment; it’s now got fast-track consent and they’ll be getting on with that. So it’s great news.

But here’s my challenge: how do we design a system so that there’s not just Hananui, and that the legitimate aspirations of iwi at the top of the South, for example, around aquaculture, are given effect to? And there’s others as well: Tainui at Ruakura, and the developments in the Waikato. You think about Tūwharetoa; think about Ngāi Tahu and its various different takiwā. I don’t want to list them specifically, but any post-settlement governance entity with aspirations—as they all have, when I meet with them—to look after their people and provide jobs and prosperity: how do we give effect to those aspirations? The answer is so often, as it is with everybody else, not just iwi Māori, is about the planning system, which has not allowed for enough growth and development and prosperity.

My message to Māori is the same as it is for everybody else, which is that we can have a planning system that is far more enabling of growth; we just have to choose it, and that’s what this Government is choosing to do. We think we’ve got the balance right when it comes to Maōri interests, which the members can see laid out in clauses 8, 9, and 10, and it’s the same as it was in the Planning Bill, and we’ll continue to stand by those decisions.

CHAIRPERSON (Greg O'Connor): I know it was a very broad-based, contextual question, and a justified broad response, but henceforth we need to get just a little bit tighter, please, on these questions.

Committee of the whole House

That’s me—thank you, Mr Chair. I actually have quite a narrow question—in fact, very narrow, around clause 6. I just can’t quite get my head around clause 6(2)(a). This is an important clause, “Act binds the Crown”, and so the Crown, in its activities, is subject to the constraints of this bill. So that’s subclause (1)—“This Act binds the Crown except as provided [below].” Then subclause (2) states, “This Act does not apply to any work or activity of the Crown that—(a) is a use of land within the meaning given in section 17;”.

So I went to have a look at clause 17, and it doesn’t give a meaning of a use of land. It gives a description of restrictions on land use. Subclause (2)(a), to my mind, just does not marry with clause 17, because clause 17 says, essentially, that a person can’t use land in a manner that contravenes a national rule or a rule in a plan or a proposed plan, unless it’s expressly allowed by a permit or other exceptions. But nowhere does it—I can’t see the body of land use, or the group of uses, that is exempt under section (2)(a). It is quite important, because if an authority is going to, essentially, prosecute the Crown or an instrument of the Crown, or a Crown entity, for breaching something in this Act, except the use within the meaning given in clause 17, we need to say—it’s just the language is terrible—that the use of the land, within the meaning in clause 17, is this use.

I see you’ve got advice. Either it’s just clumsy drafting and it’s going to have to come out a bit later on, or something’s gone wrong.

Committee of the whole House

Thank you, Mr Chair. I do want to respond to some of the comments made by the Minister, which may be more wide-ranging, but he did make them. And that is about the Hananui aquaculture, near Rakiura / Stewart Island. I think what the Minister was doing was he was saying he was angry about aquaculture settlements, and that’s a good thing to be concerned about. But he was using this as an example—and the Minister does this a lot, using a strawman—to say, “Well, because it didn’t get consent under the RMA, that means that the RMA is terrible and it needs to end and we need to replace it.”

I would like the Minister to consider whether, in fact, that was made under a version of a fast-track consent, and whether some of the speed of that decision making led to a decision that said, “Well, we don’t have enough information on biodiversity and the impact on the hoiho.”, which is a very threatened, very special penguin, particularly as they like to hang out in Ōtepoti, in my electorate. We’re concerned about that, and there were time constraints in that decision-making process, and also there were some landscape effects.

Now, I know that these bills, in combination, will change the landscape effects, and I’m not arguing with the Minister on that in this case—but if there was a real question about biodiversity, is he saying that that first application should have been approved, even though the time limits and everything else pointed to issues with that biodiversity, and that goes to this Act, because this is the Natural Environment Bill, and was that decision made under the Resource Management Act (RMA)?

And he’s then talking about his fast track, which is not this legislation. So is he saying, as well, that he thinks that type of application that another body felt had some issues with the amount of information provided, and I’m not commenting on whether that was right or wrong—that that information wouldn’t be required under this legislation?

Hon Chris Bishop: No, I’m not saying that.

Hon RACHEL BROOKING: Well, it sounded like the Minister might have been.

Anyway, I’m going to turn to a different issue, and that is that the Minister was saying, in relation to a question from Lan Pham, that, in fact, this legislation wasn’t rushed, and “Why is she saying that things are rushed?” But we are looking at an Amendment Paper that we got late last week, and there are significant changes in this Amendment Paper. So I do challenge him on saying, “Oh, there’s absolutely been no rush.” We are here, of course, in committee stage, and we were sitting till midnight last night and we are here at 9 o’clock in the morning. So this is going through a process, and I don’t think he should diminish the amount of changes that have been made subsequent to the Environment Committee report back.

I have two questions on new clause 10A, “Te Ture Whaimana” in Amendment Paper 710. I accept what we’ve heard, that there’s been some talks with the Waikato River iwi to implement this. I have no problem. But the question is: should there be more of these clause 10As? I know there’s some Ngāti Porou, and I think the Minister mentioned the Whanganui River—I’m not sure where that is. But is this the device, is this the mechanism, that needs to get round the problem that I was talking about earlier over the equivalence, when these bills are not equivalent even to the RMA; is the mechanism more of these specific clauses like 10A? That’s one question.

A second question is in relation to—I haven’t got, still, any amendments coming, but there were amendments in the other bill, two plan changes that relate to these water bodies, how much pollution can go into the river that’s under control. That is also rushed. That is going to my “rushed” point. How those changes interact with these new provisions, I think, is important. I understand that that was in the other bill. However, I’m going to talk about it now very briefly. Because Schedule 1 refers back to the schedules in the Planning Bill, I think I am able to refer to it. We have these changes to those plan changes, and we have heard, on this side of the Chamber, that that river authority is not happy with the pause on a plan change that would reduce pollution. So if you pause the plan change, then that’s going to increase pollution. It’s a very basic way of thinking about it, but I think it’s accurate.

The Minister has come to us with this 10A and said, “We’ve had these sensible discussions, as we should, in good faith.”—good, good, good. But then, on the other hand, we are saying, “Oh, but all the regulation is going to lead to more pollution, which is going to undermine this very agreement.” How in the world does that work?

There are a number of questions there; one is: should there be more 10A equivalents; the second one is: is this pause on the plan change going to result in more pollution and does that, in effect, undermine this 10A? He didn’t answer me if he agrees that—well, maybe he can confirm whether he says to my question of “Does this legislation go backwards from the RMA in terms of Māori participation?”, “Well, it’s more specific in the clause 8.” Sure, but it doesn’t have a whole lot of other things in it. So does he agree it goes backwards, with my premise?

And then if he wants to comment on whether his strawman of the Rakiura aquaculture—what exactly it is in this legislation, not the fast track, that would enable that activity and if that is to do with reducing consents and conditions and considerations of biodiversity or not. That’s very important. I love the hoiho.

Committee of the whole House

Just on Rakiura, I wasn’t saying it should have been granted consent under the Resource Management Act (RMA). I’m not the factual decision-maker on that. I was just making the generic point that there is a deep irony about everyone making a song and dance about the commercial aquaculture settlement of 2021, or whenever it was, and then it got turned down under the RMA. I’m not saying it should have been—you know, I’m not super familiar with the case; I’m just making the point that we want to see development of aquaculture, and people involved in that industry, including Ngāi Tahu themselves and other groups, would say to you that the RMA has been a massive stumbling block, which is partly why we’re changing it. I wasn’t trying to pre-decide the outcome or anything like that.

In relation to Duncan Webb’s question, I’m advise that the provisions he was talking about are rollovers from the RMA directly.

In relation to Te Ture Whaimana, new clause 10A is included because of the Kiingitanga Accord requirement to consider Te Ture Whaimana clauses. It’s a highly complex and unique arrangement. I’m not considering any more specifically like 10A.

In relation to some of the Hon Rachel Brooking’s other questions, it is fair to say that the river iwi are not happy about the changes we’ve made around Plan Change 1 (PC1), but the Government is in a genuine bind on this. I met with the river iwi many times over this issue. We’re in a genuine bind because we do wish to change the resource management system and planning system, and we wish to do that in an expeditious and practical way, and, of course PC1 is coming to the end of its process just as the system is changing. So the path we’ve taken is, essentially, a middle path, just to say, “We’ll just taihoa for a bit, hold off on that, while we change the underlying system architecture but use the work that’s already been done on PC1 as the basis for the new natural environment plan in the new system.” Not everyone is happy about that, I accept that. Some people are very happy about it; other people are not. It’s one of those invidious decisions that ends up on Ministers’ desks and Governments’ desks that you have to make. We stand by that decision.

Committee of the whole House

Thank you, Mr Chair. I want to acknowledge the Minister responsible for RMA Reform’s changes to the bills when it comes to Te Ture Whaimana, because I think, you know, they are, at least, this bottom-line semi-safeguard, if you can kind of call them that, given the broader picture of the retreat from environmental protections. But it is quite extraordinary to hold that with, as the Minister mentioned, the kibosh that the Government has just put on Plan Change 1. I acknowledge that the Minister is saying, you know, this can all be picked up in the new system, but it’s very clear that the time frames on that are going to get us nowhere fast, and, in fact, it’s likely we’re going to go backwards.

What I want to move on to is new clause 10B in Amendment Paper 710. These are the rules that control fishing. Now, this, again, was part of the last-minute amendments that came into place just at the end of last week. The implications, as far as I understand them, are that fishing impacts when it comes to indigenous biodiversity in the marine environment are now beyond the jurisdiction of councils being able to set rules to actually protect that marine biodiversity. It means that those places that have since put in place protections post the Mōtītī decision are likely to have to have those revisited.

Now, what I’m interested to hear from the Minister responsible for RMA Reform is what specifically happens to those areas with those existing marine protections? We’re talking Northland, Bay of Plenty, and Marlborough. Do they remain in place, and once these new plans come in, do they have to then remove them or is there ability for them to somehow use something in the Acts to actually mean that they have some form of continuation?

The aspect that I’m really interested in hearing from the Minister about is that there’s an argument that, instead of relying on the protections of these Planning and Natural Environment bills, we can instead rely on the Fisheries Act. Now, we’ve seen demonstrated time and time again that it’s often, usually, when fisheries are at the point of collapse when the Fisheries Act has enough impetus in it for things to actually change. It doesn’t also deal with broader effects of fishing, such as natural character; it doesn’t deal with life support and capacity, or the maintenance of indigenous biodiversity; and it has absolutely no relationship to climate change. So I’m really keen to hear from the Minister because I know that the communities are reeling from this change.

Committee of the whole House

I can answer that question quite simply. Current council fishing controls in Northland, Bay of Plenty, and Marlborough will remain in place during the transition period until the new system comes online as part of their respective Resource Management Act (RMA) plans. Existing RMA plan change processes involving proposed fishing controls and plans that are not subject to plan stop will also continue to progress during the transition period.

Committee of the whole House

I move, That debate on this question now close.

CHAIRPERSON (Greg O'Connor): No, we’re still going, and we’re still getting new material. We haven’t heard any repetition at all, but, members, we do need to be making sure it’s new material.

Committee of the whole House

Thank you, Mr Chair. There was so much excitement in the House there, I may have misplaced which question I was going to ask. I think it was in relation, again, to the Minister responsible for RMA Reform’s comment that things aren’t rushed, and this amendment that we’ve had very late in the piece relating to the Plan Change 1 and the Plan Change 2. Is it Plan Change 2? This comes through in terms of, as I noted before, schedule 1 of this bill that says, “See also Schedule 11 of the Planning Act 2025, which sets out amendments to the Resource Management Act and other legislation.”, and that includes those plan stops that the Minister only introduced in an amendment on the day that we were starting the Planning Bill. This is very fresh and this is very rushed, and he was just speaking about it and saying, “Well, we’re taking a middle ground.”

These plans have been in development for years, and what they are fundamentally doing is to manage pollution and to stop pollution from going into the rivers. It’s very simple. Now, the Minister says, “Oh, well, they’ll come on stream at some point in the future, just not now.” Why I am worried is, why is there a need to put them on pause if, as he said is in his opening statement, this bill is going to allow a development within environmental limits? Those plan changes are about environmental limits in terms of what pollution there can be and what controls on it there are. Is he saying, either, that by pausing these plan changes pollution will increase, and if so, what is the time frame to stop that; or is he saying, “Oh, these plan changes, they’re not actually going to make any difference to pollution anyway, so we can just continue on.”?

These are these are important questions because my observation is that you’ve had some very loud lobby groups say, “We don’t like the direction of these plan changes. We’re going to have to change some of the things that we do, so what we want to do is this cynical move that has happened time and time again throughout this Parliament.”

This Government has stopped plans where it looked like they were going to deal with pollution, and this seems to be the case again at the last minute where the Government rolls in and says, “Oh, look, we’ve been lobbied. There were going to be more controls on pollution. We’ll just talk about a pause. We’ll pause those controls on pollution.” Will there ever be any controls and will the pollution increase in the meantime? My worry is that the answer to those questions is no, there will never be controls, and yes, the pollution will increase in the meantime. I would like the Minister to tell me why I’m wrong.

Committee of the whole House

Very briefly, I mean, what I just said before, at least twice, which is that the plan changes are coming to the end of their process, but the system is changing. The Government has to figure out a pragmatic way—it’s a bit like the plan stop processes. Some are relatively simple, they mesh well into the new system, we’ve let them go through to the keeper and happen, but others are highly complicated. The Gisborne forestry plan change is extremely complex and complicated and will take five years to do. So rather than have people implement a new plan which has to be changed when this new system comes in, we’ve tried to be pragmatic. I accept it’s a bit messy on the way through. When you change a system for the first time in 30 years, it is, but we’ve got to make pragmatic decisions here, and that’s what we’ve done.

CHAIRPERSON (Greg O'Connor): The time has come for me to leave the Chair for the lunch break. The committee will resume following question time at 3 p.m.

Sitting suspended from 12.57 p.m. to 2 p.m.

House resumed.