Natural Environment Bill

Committee of the whole House

Thank you, Mr Chair. I want to ask the member in the chair, Simon Court, questions about clauses 95 and 96. These provisions are where councils have to start thinking about their inclusions of national rules in their plans, and what they can and can’t include. Even sort of things that you might expect to be local choices are only available to councils where the national rules allow them to be local choices.

CHAIRPERSON (Teanau Tuiono): Did you say combined plans?

ARENA WILLIAMS: Yeah, I’m at 95—

CHAIRPERSON (Teanau Tuiono): 95, all right.

ARENA WILLIAMS: —on page 105, and 96 on page 106. The first question I have is the meaning of “preclude” in the way that these work together. The word “preclude” seems to suggest a very, very high standard—that the national rules have to actively say that local councils are precluded from including them. But it’s possible, given that we don’t have the words in front of us, that you might be able to read in when it’s heavily implied that those things are precluded, that they would also be precluded.

I just want to get some clarity from the member. Is this meant to be?

Is that allowance there for regional councils—where they’re not allowed to include a rule, is a meant to be a very high standard, or is it meant to also include things which, given the context of the national rule, are also effectively banned?

I also want to ask him about clause 95(3), where a regional council must not amend a standardised provision. This is particular question about where changing conditions mean that we’ve got a new context like changing weather. The question here is around, say, in Auckland, where a plan change—well, it was very difficult to make the change, actually, that was required, where hundreds of homes were affected by flooding and the council was required to carry through an upzoning provision. In doing so, though, that would have meant they were effectively upzoning land that needed to be downzoned because of the flooding.

So my question to him is about: what happens when things change and a council needs to make a change to what would have been a standardised provision but say, weather has changed? There is a provision for natural hazards to be recognised. But in the situation where, in Auckland, say, it wasn’t necessarily that there had been one flood or that there had been hazardous flooding, it was that there was a pattern of events which suggested that new information was available and now those houses were in places where they should not have been, but an upzone was occurring at the same time, where a council would have been held to a standard where there would have been more building in those areas.

On clause 96 itself, this is a pretty significant change in the philosophy at the regional rule level. Regional rule-making in this bill compared to the Resource Management Act is one where everything was permitted for the regional plan to be made unless there was an express provision that it couldn’t be included; now, it’s the other way around.

So I want to ask, Amendment Paper 710 actually seems to pretty significantly—it softens what was initially introduced in the bill, and there have been some changes at the Environment Committee stage around exactly that, that this was very restrictive in a way that would have meant regional councils had to change their internal processes quite a lot. I just want to ask the member to explain, now, how that change from one philosophy to another will work.

Finally—no, I’ll leave it there.

Committee of the whole House

This provision is very clear. It requires councils to included standardised plan provisions—clause 95—in the initial environment plans as directed by national instruments. Clause 96 allows councils to include bespoke plan provisions in their national natural environment plans only if this is authorised or not precluded by a national instrument This is akin to the way national environmental standards under the Resource Management Act apply to plan making.

Committee of the whole House

Thank you, Madam Chair. Maybe just to help with that conversation, when the member in the chair, Simon Court, says, “akin to how things are made under Resource Management Act”, that’s in reference to regional council plans—in terms of that the onus is different for if you’re getting a discharge consent, then the assumption is that it’s not permitted unless a plan rule says its permitted; whereas for a land-use consent, so something you get under the district council, then the presumption is it is permitted unless the plan says resource consent is required. My understanding is that this scheme doesn’t change that presumption. But the member in the chair can clarify that.

My question is on clause 97, which is “Core obligations when preparing and deciding natural environmental plan”. There’s a range of things to have regard to when a plan is being applied. One of those things is a plan relating to adapting to the effects of climate change prepared by the local authority. That is a good thing to be included there.

I have Amendment Paper 685 that would include another thing to have regard to, and that is: “any emissions reduction plan prepared under the Climate Change Response Act”. So we’ve heard the member in the chair say a number of times, “Well, we don’t have to think about climate change pollution at all because the emissions trading scheme does it all”, but of course that is not how the policy settings in New Zealand work. One of the things we have under the Climate Change Response Act is an emissions reduction plan. So it would be a good thing for the councils to have regard to when preparing their documents. And of course, I have had other Amendment Papers that have, sadly, been voted down that would give some more weight to the consideration of planning to avoid climate pollution.

Committee of the whole House

This provision relates to regional councils. I’ll answer the member the Hon Rachel Brooking’s question about clause 97(4)(c) “have regard to … —(v) any plan relating to adapting to the effects of climate change prepared by a local authority;”. The legislation specifically excludes consideration of the adverse effects of greenhouse gas. It’s clear. Those matters are managed under the climate change response Act provided for with prices on carbon under the emissions trading scheme.

Committee of the whole House

Thank you, Madam Chair. My question on clause 97 is 97(4)(c). This requires the authority to have regard to considerations of the coastal marine area. In clause 97(4)(c)(iv) here, there’s a useful inclusion of any regulations of bylaws—and presumably the primary legislation as well—of Acts which deal with Māori fishery rights. That’s great. That is a great inclusion. Why has the member not also included the same inclusion for rights over land? Because the rights that are associated with the coastal marine area that are Māori rights don’t seem to be different in nature than the rights over land that are Māori rights. But there’s no similar provision for, say, Acts and regulations which set out mahinga kai on land, for instance. That seems to be a non-deliberate overlooking of something which would have been good to include.

Committee of the whole House

Thank you, Madam Chair. Really pleased to start with Part 3, noting the Chair’s desire that we’re simply just moving through the bill, and I intend to do that.

CHAIRPERSON (Maureen Pugh): And not making speeches as well. It’s purely targeted to the members for response.

LAN PHAM: Absolutely, Madam Chair, as I have been through the period so far.

Particularly on clause 97—these are about the core obligations when preparing and deciding a natural environment plan. Firstly, I have a question for the member Simon Court about, essentially, the test that “the regional council is satisfied that—”, or the council, because it may be unitary. They do not have to meet the provision in the regional spatial plan if they’re “satisfied that—”. It talks about a significant change in circumstances. They say, “(for example, a major environmental or economic event.)”

My question, firstly, for the member is: what is anticipated to be covered or consider as a “major environmental or economic event”? I think the reason why it’s really important that we get some clarity on this is because we know that, increasingly, it’s weekly, rather than monthly or yearly, where we are having significant major events when it comes to climate impacts. I’m interested as to whether there has been thought given to the fact that these events are increasing in nature, and what kind of threshold changes would constitute a significant event. So that’s my first question.

My second question is around those core obligations and relates to an Amendment Paper 726 that I have. Really, that’s about proposing, under clause 97(2)(a)(ii), that there’s an additional consideration which directions regional council decision-making when they’re setting their natural environment plan. That is around them having to have regard to “any emissions reduction plan prepared under section 5ZG of the Climate Change Response Act;”.

Now, why that is absolutely critical, and why I would really appreciate the member’s response to this suggestion, is that we know that a functional resource management system in 2026 should coherently talk to our climate change legislation. This is the bill the Government has consistently said is going to do the heavy lifting when it comes to emissions reductions and our response to climate change. It would make absolute sense—and we heard through a number of submitters throughout the entire process—that both the natural environment plans and the regional spatial plans should have these considerations. I’m really keen to hear the member’s response to that specifically. Thank you, Madam Chair.

Committee of the whole House

Thank you, Madam Chair. I’ll just respond to Arena Williams’ question around clause 97(4)(c)(i). If I understood the question correctly—

Arena Williams: Why isn’t it on land?

SIMON COURT: Can the member just please clarify? I wouldn’t consider it heckling.

Arena Williams: Why isn’t it on land as well?

SIMON COURT: Why isn’t the provision on 97(4)(c)(i) on land as well? There is an equivalent clause, I’ve been advised, in the Planning Bill which applies to land.

Madam Chair, if I may just answer Lan Pham’s question. In clause 97(3)(b), there is an example given about what a significant change in circumstances might be. That example is given as “a major environmental or economic event”. That stands. It’s clear. The clause provides for councils to respond in their plan to those matters, which is also a matter that Arena Williams raised in relation to Auckland floods. It’s important that councils have the ability to respond to a change in circumstances.

Committee of the whole House

Thank you, Madam Chair. I take that last answer as that regional councils would have the ability to change the standardised rules if—yeah? OK, that’s great.

Clause 101 on page 109 is where I am. I’ve just listened to the member in the chair, Simon Court, answer that there is an equivalent provision in the Planning Bill to do with those land covenants that are in other Acts, but that doesn’t seem to apply to mahinga kai that is on land that is not in coastal areas. So when I ask about 101, it’s with that in mind.

The plan can’t allow an activity which will have an adverse effect on the coastal marine area where it’s protected for the gathering of shellfish or other kai—that’s great—where it’s a protected area under the takutai moana Act. I’m not arguing for a land-based similar clause. I’m arguing for the one piece of legislation which is exactly like Ngā Hapū o Ngāti Porou, which is the Titi Islands legislation 1978. That piece of legislation has its genesis from the deed of cession of Stewart Island in 1868. The reason that legislation is important is that a plan that allowed an activity which affected the titi on those islands would amount to the same sort of breach which is being prevented by this clause here. Clause 101 prevents an activity which would have an effect on the gathering of kai in the coastal area—same as those Titi Islands.

Some of these coastal areas that are protected under Ngā Hapū o Ngāti Porou’s Act are exactly the same kind of rocky outcrop formations that the islands adjacent to Stewart Island and Ruapuke are. They’re exactly the same sorts of islands with the same sorts of kai, but we’re talking about birds in the Titi Islands sense. So why is it OK that a plan in the south of the South Island can allow a permitted activity which will impact on the ability of gathering of a traditional food source, but for the hapū o Ngāti Porou, it will not? But there are only two pieces of legislation like that—it’s not like there are tonnes. Just include this one.

Committee of the whole House

The matters that the member Arena Williams’ sought clarification on—on mahinga kai on land—are covered in the Planning Bill. I answered that in a previous answer.

In response to the member’s question about Titi Islands legislation, it’s not actually connected to the planning regime in the way customary fishing regulations are.

Committee of the whole House

Thank you, Madam Chair. I’m actually just going to ask a question on the same clause, but it’s a different issue. This is clause 101(1), which says, “A natural environment plan or a proposed natural environment plan must not include a rule that classifies an activity as a permitted activity if that activity will, or is likely to, have an adverse effect that is more than minor”. So it does allow those minor impacts, and I understand that that’s a cross-reference to the specific wording within the Marine and Coastal Areas (Takutai Moana) Act as well.

My question is: what happens if there is initially a minor effect, but then that impact on the area increases and has a more detrimental impact; whether there’s a point of intervention? This applies to clause 101 and it’s repeated in clause 103 as well, which references minor impact. To my mind, I would read back into clause 94A and potentially see an independent hearing panel being able to be triggered at that stage. The reason I see that is because the options available to a group who are wishing for their customary rights to be protected are in clause 102, but that could take a considerable amount of time. In the circumstances I’ve described, we’ve got something that was initially minor, it’s now escalating in terms of its impact. You would want something triggered that allows a speedier resolution. So just whether I’m correct in terms of that being the pathway for someone in those circumstances.

Committee of the whole House

Tēnā koe, Madam Chair. With respect to clause 114, Te Pāti Māori is really glad to see that the Treaty of Waitangi (Fisheries Claims) Settlement Act is being upheld in some capacity by the system. But we just want to confirm with the member in the chair, Simon Court, that this bill does not directly or indirectly alter any aspects of the fisheries settlement. I asked the Minister, actually, if this clause is sufficient to preserve the fisheries settlement in its entirety. It’s the first question there.

But when looking at the list of Treaty settlements, it would be remiss of me not to ask the member in the chair to please explain why other clauses to uphold settlements were not explicitly outlined in the original bill such as Te Ture Whaimana.

Are there any other Treaty settlements that will be breached by this bill in its current form? Are there any potential breaches that could be enabled by this bill? Those are my questions.

Committee of the whole House

In response to Vanushi Walters’ question around “a plan must not permit an activity that has certain effects on protected customary rights”: yes. If an activity changes so that the impact is more than minor, then this clause would be triggered.

In response to the member Oriini Kaipara’s question, this provision that she referred to aligns with the Marine and Coastal Areas (Takutai Moana) Act. For the absence of any doubt whatsoever: the Government intends to uphold Treaty settlements to the greatest extent possible. There are provisions in Part 1 which set out the Crown’s intent. And no, we do not anticipate any Treaty breaches as a result of fulfilling the Crown’s obligations and achieving our intention.

Committee of the whole House

Thank you, Madam Chair. Just confirming with the Minister: my question was about what happens when the impact changes—so it’s initially minor and then the impact changes. I assume that that answer means that then the plan would need to change or that the panel would convene because there had been a change in the circumstances. No need to reply if that’s the case on that one.

Just looking at clause 99 as well—which I wanted to ask first, but I wanted to piggyback off Arena Williams’ earlier question, which is why I went to clause 101. This says in clause 99(2)(b) a rule that allocates a natural resource use of activity “may allocate the natural resource in anticipation of the expiry of an existing permit:”. So my question is whether we could have a situation where a permit is extended, or for any other reason exceeds the period that we thought it would be in force for, causing complications in terms of any pre-emptive allocation. That was the first one. Let me see if I can find my second.

The other question I had was in relation to clause 103B. So this is the rules to protect other property from the effects of surface water. It specifies in subsection (1) that this applies for the purpose of protecting other property from the effects of surface water requirements. So I’m just curious about whether that is true for the property itself. So whether there can be more, higher performance criteria than the building code applied because the property itself would have water damage caused to it if it were only to comply with the building code. So just those two.

Committee of the whole House

In response to the member Vanushi Walters’ questions around rules that may allocate a natural resource, it’s set out very clearly, in clause 99(2), that if there’s an existing allocation to an existing permit, the rule that allocates that resource, or that resource use activity, cannot allocate that same resource associated with that existing permit—that would not be fair on the existing permit holder—but may allocate the natural resource in anticipation of the expiry of an existing permit. That might be helpful when a permit holder is seeking renewal, or not continuing an activity, to be able to reallocate in anticipation of the expiry, rather than having a process where there’s a gap in the use of that resource.

If we just jump down to clause 99(2)(ca), “may allocate the natural resource to no type of activity:”—which, for the members’ benefit, particularly for those members who’ve been asking questions around the environment, means allocate resource to the environment.

In response to the member’s question, yes, the legislation does provide for rules to be made which create a higher test or a more strict condition than the building code, and that is likely to be in relation to natural hazards.

Committee of the whole House

Kia ora, Madam Chair, thank you very much. I want to continue to examine clause 97 of Part 3.

CHAIRPERSON (Maureen Pugh): Sorry, can you repeat that?

HŪHANA LYNDON: Page 106, clause 97.

CHAIRPERSON (Maureen Pugh): No, we’re not going backwards.

HŪHANA LYNDON: No, I’m not. I’m explaining what part of it I’m going into. I’m wanting to discuss clause 97(4) and going over to (b), (c), (d), and (e)—about all the Māori stuff—in clause 97. I’m not going backwards because we haven’t fully examined clause 97 yet.

CHAIRPERSON (Maureen Pugh): Clause 97 is before clause 101.

HŪHANA LYNDON: Yeah, all of that. So from clause 97(4)—

CHAIRPERSON (Maureen Pugh): You’re missing my point, member.

Hon Rachel Brooking: Point of order. I acknowledge that we’ve been trying to move through, but, of course, there’s people in different places asking different questions, so it’s going to be impossible for us to sequence perfectly clause by clause. We’ve been doing subparts and saying when people are moving on to subparts.

CHAIRPERSON (Maureen Pugh): I understand what you’re saying, but we’ve spent five hours on one part.

Hon Rachel Brooking: We’re on a different part now.

CHAIRPERSON (Maureen Pugh): Yes, I know. And we’re not going to spend five hours on this one, I can tell.

Lan Pham: Point of order. We’re really happy to move through sequentially so that we’re not going back—

CHAIRPERSON (Maureen Pugh): What’s your point of order?

Lan Pham: I’m trying to speak to the—

CHAIRPERSON (Maureen Pugh): There’s no need. If the member has some new material to raise on that clause, go ahead. But we are not going backwards, OK. So raise your new material.

Ricardo Menéndez March: Speaking to the point of order.

CHAIRPERSON (Maureen Pugh): Are you going to challenge?

Ricardo Menéndez March: No, I’m seeking your guidance—

CHAIRPERSON (Maureen Pugh): Speaking to the point of order, Ricardo Menéndez March.

Ricardo Menéndez March: So this quite a new introduction of guidance of like the moving—

CHAIRPERSON (Maureen Pugh): No, it’s not. Sit down please, Mr—sit down Mr March. Sit down.

HŪHANA LYNDON: The parts of this clause that I want to examine which have not been spoken to yet by the member in the chair, Simon Court, is in relation to clause 97(4), head over to the page on page 107, where I want to talk about (b), (c), (d), and (e). All of these areas have not been discussed by anybody to date.

CHAIRPERSON (Maureen Pugh): Clause 97(4) and (c) have been debated about 20 minutes ago.

HŪHANA LYNDON: No, no. We want to examine—

CHAIRPERSON (Maureen Pugh): OK. Go ahead. Quickly.

HŪHANA LYNDON: Thank you. So in terms of the way with which iwi Māori who have statutory acknowledgments, who may have mātaitai or non-commercial Māori customary fishing interests, and also the marine coastal area—MACA—Ngā Hapū o Ngāti Porou, we understand that the Minister or the regional council must take into account—kia aroha mai [my apologies], I lost my train of thought because of the raru—take into account matters relating to their input. So these are Māori groups with interest in these areas for local regional council to take into account their feedback, and other relevant groups. If we flip over to page 108, it also says that they are to “take into account the matters in the environmental covenant, to the extent that they relate to the part of the common marine and coastal area of the customary marine title area”.

So what I’m asking of the member in the seat is “taking into account” is written in the legislation, but what does that tangibly mean for councils in terms of the direction of travel that they are required to engage with iwi Māori? Is it meaningful enough or is this a paper-based desktop exercise? Is there like a hierarchy in terms of setting out how regional councils need to engage with these different iwi groups? It’s really good the way that it’s set out: it’s choice. We can see that there are different groups that are required to be engaged with, but it’s the taking into account that I want to unpack with the member in the seat. What does that look like? What are the expectations? I can’t see a hierarchy in terms of what that tangibly means in practice.

CHAIRPERSON (Maureen Pugh): The member can answer.

Committee of the whole House

“Take into account” is a well-understood legal term. The member Hūhana Lyndon will find it throughout this legislation. It was commonly used in the Resource Management Act. I do acknowledge the member seeing that we have tried to be as particular as possible in the way that this is set out so that we provide for rights and interests.

Committee of the whole House

Thank you, Madam Chair. I’m interested in the adaptive management incentives. I’m going to ask the member a question that I don’t think he will be surprised about, about Sustain Our Sounds. So I’m on page 111. Clause 104 is the first part of this, but it also relates to clause 167.

First: is the existing case law on adaptive management plans still meant to apply? I think that it does. So I want to ask him whether it’s still the case that clause 104 cannot lawfully be used where the environmental effects being monitored may become irreversible before the adaptive management trigger can operate. Essentially, the principal in Sustain our Sounds—for anyone who doesn’t know; I’ll just be quick—is that you can’t use adaptive management in a plan if the monitoring will show you a result once the harm has already irreversibly been done.

Committee of the whole House

The adaptive management criteria here are set out clearly. The member Arena Williams’ question was: does existing jurisprudence and case law continue to apply? My expectation is it will apply as far as it continues to be, or matters that came up are relevant or outcomes are, within the scope of this legislation.

Committee of the whole House

Thank you. I think that does require a change. I think what the member Simon Court has said—and he can correct me if I’m wrong—is that you can use an adaptive management plan if you have a monitoring mechanism which will indicate harm after it has been done, but you have to also fulfil the rest of the criteria which is set out in that section. I guess the problem with that, in say the case of the Sounds, was that once you have damage to a coastal area and a marine ecosystem, it is very hard to adapt over time to those adverse effects.

He’s got some adverse effects conditions here and I’m sure that they will be dealt with in the plans; even, you know, having a plan in the challenger area which sets bespoke provisions is allowed, but the question is, really, that these are, on the face of it, unlawful in the situation of, say, a salmon farm. They might be lawful in other situations, but I think what he’s told me is that they are lawful even in a salmon farm case.

Committee of the whole House

No, I’ll just clarify for the member Arena Williams: it can be any kind of harm that can then trigger the need for adaptive management.

Committee of the whole House

Thank you, Madam Chair. Moving directly to my Amendment Paper 677. This is a topic that I haven’t got to at all; it’s new topic because it’s to do with core obligations when preparing and deciding natural environment plans. I’ve had a previous Amendment Paper on this, on a different subject. This one is about the necessity that the core obligations, when preparing and deciding a natural environment plan—that the regional council actually ensure that none of those provisions are conflicting with an environmental limit.

I’m really interested in the member Simon Court’s thoughts around this and commentary around this, because, presumably, the key thing that we want to achieve when it comes to natural environment plans is some improvement in environmental limits, noting that those limits have already been set, not on an environmental basis, but with the community’s social and economic needs. Therefore, given that they are already in a compromised state, would it be worthwhile—from the member and his Government—to actually put it as a core obligation that that will be a key consideration when it comes to the setting of those plans?

Committee of the whole House

In response to the member Lan Pham, in relation to her Amendment Paper 677: there are already sufficient safeguards to ensure decisions in a regional spatial plan do not breach limits. For example, clause 97(2)(a) requires a regional council to comply with the environmental limits when preparing the natural environment plan. Clause 60B requires councils to take all reasonable steps to avoid breaching environmental limits; 50B(3), limits—you only have to have “regard to the regional spatial plan” rather than implement. This allows flexibility to ensure that the natural environment plan implements a spatial plan, but could do this in line with the obligation.

The natural environment plan in clause 97(3) doesn’t have to implement regional spatial plan if new information supersedes the information used for the regional spatial plan or if there’s a major event. I thank the member for her consideration, for the amendment, but we won’t be proceeding with that.

Committee of the whole House

Thank you, Madam Chair. I’m going to move to—but noting that other people might not have moved to where I’m moving to quite yet—clause 111; that’s an exciting number to say, isn’t it?

Glen Bennett: It’s an emergency.

Hon RACHEL BROOKING: It is an emergency, Glen Bennett. We’re in an emergency with 111 because this is—

Hon Members: Regulatory relief.

Hon RACHEL BROOKING: —regulatory relief; and boo! Tonight, Madam Chair—and you were in the chair last night when I had a similar amendment paper on a different bill—I have Amendment Paper 666, and I’m quite excited about that. It is just so apt that it is on this clause.

Hon Member: Section of the beast!

Hon RACHEL BROOKING: That’s right. Regulatory relief even becomes more important after tonight’s conversations about environmental limits and how, whilst there are health limits, the environmental limits could be nothing because of these regulatory relief provisions and other costings and economic factors that are coming in. So this is your chance, member Court. This is your chance to do the right thing, to say yes to 666.

Committee of the whole House

I feel that the member has some insights into my Spotify playlist. However, the Government will not be accepting the member’s amendment to remove regulatory relief from the system. I made the case very clearly last night when clarifying the intention of regulatory relief. It is possible, and it is intended, that if councils seek to impose controls on private property in relation to indigenous biodiversity under the Natural Environment Bill—soon to be Act, touch wood—they will be able to, but they will not be able to do it without confronting the costs of any proposed application of the planning rule in relation to indigenous biodiversity that impacts the property owner, above the threshold provided for in legislation.

Committee of the whole House

Thank you, Madam Chair. I’m really keen to pick up on regulatory relief, and particularly noting the previous Chairs last night, when we were on the Planning Bill, advised to save all of our natural environment - related questions and content on regulatory relief for this bill, so I just want to flag that because it is in Schedule 3 of the Planning Bill, but the implications of it are very clear throughout there, and the Chair made that really clear that we would draw that line and move that part of the debate into this bill, so that’s where I’m moving to now. Thank you, Madam Chair, and that’s in response to being on clause 111 of Part 3.

Picking up from where we were, moving into the indigenous biodiversity aspects of the regulatory relief, what I’m really interested to hear from the member is the very little information that we had at the Environment Committee about regulatory relief was this extremely wide—and, actually, the report itself made it clear that it was sort of like putting your finger in the air and making up a number. But the number that they arrived at when they looked at what regulatory relief might actually cost councils, and therefore ratepayers, was in the realm of $2 billion. What I’m really interested to understand is whether the member and the Government have any more detailed information that they can share with councils and the public tonight about the aspect of that regulatory relief cost when it comes to the protection or otherwise of indigenous biodiversity.

I’m really interested in that particularly, because I understand from the provisions in this bill that there is no ability, for example, to put in place general vegetation rules—clearance rules around vegetation. What that means is that there’s a really high bar, now, when it comes to significant areas of biodiversity. When you’re below that and you basically—the biodiversity is essentially invisible. What I’d love to understand is if the Minister has more detailed responses about the cost to communities when we so clearly heard—particularly from councils across the board, but particularly those smaller councils like Waitaki or MacKenzie—that they will be unable to put in adequate protections that protect the biodiversity in their council area. So I really invite comments from the member.

Committee of the whole House

Firstly, I’m absolutely stoked that the member Lan Pham is picking up regulatory relief. Excellent, we’re making great progress. But I’m concerned that the member might seek, through the planning system or environmental protection system, to protect invisible biodiversity.

I mean there may be microbes—we did get into algae at one point. But let’s be clear, the purpose of regulatory relief is when councils identify indigenous biodiversity that meets the threshold warranting consideration for protection on private property, that they will carry out an assessment. And if that assessment shows that there’s an impact on the use of that private property, which exceeds the threshold, which might trigger a regulatory relief conversation, they can first offer the private property owner the ability to receive that protection, that planning protection, voluntarily for no exchange of money or any other relief.

Because there are some people who say, “You know what? That patch of bush at the bottom of the farm that we’ve fenced off, if you’ve identified that as significant indigenous biodiversity that needs to be protected, we’re happy to accept that protection.” Some people might say, “Well, I was going to put it into a QEII covenant, but if I can achieve the same level of protection with a planning control, and it sits there on my property, that’s fine.” But as I explained extensively last night, the purpose of the regulatory relief approach is that councils that seek to impose these controls on private property are forced to, firstly, test themselves as to whether it’s really necessary and meets the significance test. These matters will be set down in regulations and there will be national standards around these matters. And if it meets the threshold, then there will be a process where councils can go through and, potentially, in exchange for protection of what they consider important public value and private property, they will be able to offer the property owner where that protection impacts their property in a way that triggers regulatory relief mechanism—rates relief, cash, additional development opportunities, another part of the property, or additional development opportunities on another property that that owner owns.

I’ll come to the member’s question. Essentially the member brought the MartinJenkins report into the debate, which estimated the potential cost of regulatory relief to council somewhere between $7 million and $2 billion. And look, I mean, some reports are really valuable, and the value in this report that shows you that there’s not a lot of people who understand how the system works. Minister Bishop and I have been very clear how the system works. I explained it in detail last night and there are many who have told me, over many years, since I began the work of developing the concepts and the policy that now has led to the development of this legislation we’re talking about today, time and time again, that protections like significant natural areas have been applied to private property in a way that impacts people’s ability to use their land at no cost, and if no tension against what the council might seek to impose. So for the first time in New Zealand history, in fact, for the first time that we know of, a system is going to be applied that puts a referee on the field—a test councils have to pass.

Now, many have asked, “Well, if it’s so novel, how do you know how it’s going to work?” Well, there is actually something that’s not too different; it’s called the Public Works Act. When, if a designating entity seeks to take land or restrict the use of land for a purpose, the landowner is entitled to compensation. That’s not a novel concept. It’s the first time it’s been done in resource management.

So for the member’s benefit and the benefits of the committee—I explained this in great detail last night—this provision refers to Part 4, Schedule 3 of the Planning Act 2025. I’ve been over it in detail. I’m happy to clarify a few matters, but we covered it extensively last night. The provision that this applies to in the Natural Environment Bill—there is only one matter—is significant indigenous biodiversity. So I’m happy to take further questions, but probably not a lot more content I can add.

Committee of the whole House

Thank you, Madam Chair. Just on that point about the regulatory relief—my question is brief. It’s about the incentives for council to find any way that they can to make the sorts of changes that they need to protect ecosystems and biodiversity without using the biodiversity limb here because the member in the chair has given two ways for councils to, effectively, protect different sorts of animals, wildlife. One is by the system inputs, say water quality, say ecosystem protections, which don’t attract regulatory relief, or the system measurables, e.g. the number of eels, which does attract regulatory relief. So won’t we just see councils using the ecosystem protections which don’t attract regulatory relief to actually get the outcomes that they need?

I’ve got one more.

Committee of the whole House

How might councils protect indigenous biodiversity? They could make a park—this is outside the scope of this legislation by the way—they could turn a park into a forest; they could use their budget to make an appropriation and a long term plan to make an investment in public values of indigenous biodiversity. But what they won’t be able to do, without being confronted with a regulatory relief provision, is apply these controls to achieve public values on private property.

Committee of the whole House

The other question that I had, twigged by the member in the chair, talking about those cash payments. Is that also part of the incentives regime? At clause 105, you’ve introduced what is a pretty novel, I think good, introduction to the Resource Management Act, which isn’t a feature of our planning law or the planning law of other countries.

Incentives make sense in the system, but I’m assuming that those won’t be cash payments, because a local authority distributing ratepayers money to system users does seem to be over and above what the normal function of public power would be—redistributing rates to other ratepayers in the form of a cash payment like that.

Committee of the whole House

In answer to that question: how would I, standing here tonight, anticipate incentives? Look, this is important—

Arena Williams: It’s just about the cash.

SIMON COURT: Cash, potentially—but let’s be clear, natural environment plan might provide an incentive for a landowner trying to take an activity. Look, I’ve described additional development opportunities that may be available in exchange for voluntarily agreeing to, say, fence off or protect a piece of land that has indigenous biodiversity values on it. All of these matters are available to councils.

Committee of the whole House

I move, That the debate on this question now close.

CHAIRPERSON (Maureen Pugh): I’m just going to check if there are questions about aquaculture or joint plans.

Hon Rachel Brooking: Yes, I’ve got questions on clauses 128, “Wildlife approvals”, and also—

CHAIRPERSON (Maureen Pugh): OK, there’s a little bit left to go.

Hon Rachel Brooking: —schedules; there’s a number of schedules as well. I don’t have many questions on them.

CHAIRPERSON (Maureen Pugh): The Hon Rachel Brooking.

Committee of the whole House

Point of order, Madam Chair. Can I please clarify the advice that was given to us, from the chair last night, that we would have a fulsome assessment of the regulatory relief provisions for biodiversity. It is on the Hansard. I tried to clarify with the chair last night whether we needed anything formal. His response was, “It is on the Hansard, it will be followed through with.”

CHAIRPERSON (Maureen Pugh): Yes, we’ve had a line of questioning and I’ve listened to the answers. There’s nothing new coming out of the answers. But I’ve also got another call that I’m taking. I haven’t taken a closure motion. So just let us get on with it.

Committee of the whole House

Thank you, Madam Chair. How about we just do some jumping around because we do have—I don’t think anyone’s touched on any of the schedules that apply to this part. Those Schedules are 2, 2A, 3, 4, and 5. I will pre-empt my comment by saying I don’t have very many comments on those schedules, but other members may.

At clause 128, the section about wildlife approvals, I have a tabled amendment to that, which is to—

CHAIRPERSON (Maureen Pugh): Just to the member, I think that is Part 4.

Hon RACHEL BROOKING: Oh, have I moved on to Part 4 already?

CHAIRPERSON (Maureen Pugh): But I’m happy to move on.

Hon RACHEL BROOKING: Oh, there we go. Sorry, I have moved on. So I think I’ll sit down. You won’t need to hear from me again, but, my colleagues, you do.

CHAIRPERSON (Maureen Pugh): So in response to my question before—

Hon RACHEL BROOKING: Sorry, no, I didn’t have anything. I’ve moved on to Part 4.

CHAIRPERSON (Maureen Pugh): I’m going to take one more call.

Committee of the whole House

Thank you, Madam Chair. A few questions. Given that the existing Resource Management Act (RMA) controls that are in place with plans right now have been known to purchasers since their introduction and therefore internalised in terms of their land values, what is the justification for allowing the retrospective application for the relief regime? Now, the Government can swear black and blue that the retrospective nature does not exist, when they know full well that every single protection that currently exists—particularly for biodiversity, but across sites of significance for Māori—everything will be new under the new system and will be subject to regulatory relief. Now, we’ve already had pointed out very clearly to us, and I would like to understand if the member Simon Court has understood, the example of Auckland Council, where, before they even put in these rules, they have to do a property level assessment of over 20,000 properties that could be subject to regulatory relief. I’m really interested in that question.

My next question is: will assistance and compensation that has already been provided to landowners for RMA restrictions—and this has happened in a number of areas, but I want to give particularly the example of assistance provided to farmers in Taranaki around their riparian strips, which we all support. If that protection is then removed later on, why do the bills not require them to pay the council back?

I would also like to hear the Minister provide any possible assurances that the most important areas of biodiversity and landscape will be prioritised for protection, given the ecological and, actually, economic importance to these areas. That is different to the relative ability of the councils to actually pay for them, because I would really love to understand and hear from the member what the actual response is to the council saying not only is this unworkable; it will cause a chilling effect on biodiversity protections and sites of significance for Māori, and they will not be able to pay for it. This should be entirely relevant and something that we are able to explore, given how novel, as the member has said consistently, this regime is, and he’s also completely discredited the only part of information in that MartinJenkins report that he has. So if you don’t have that, what evidence is the member actually basing this whole novel concept on, other than ideology?

Committee of the whole House

It is not ideology to visit a property and to speak to a widow whose property was affected—75 percent of whose property was affected—by the application of overlays, including significant natural areas, after her husband died, and she had no recourse whatsoever—no recourse. It’s come to your contention, Lan Pham, that those who experience these controls now should know what it feels like and be happy to accept that. No—no. If they have purchased a property with the controls on them, then they will not be eligible for regulatory relief in the new system if those controls are similar. But if they did not willingly accept the controls, if they were imposed on them, then of course if a council intends to impose those type of controls that meet the threshold to protect significant indigenous biodiversity, a regulatory relief assessment and potentially regulatory relief—they will be subject to that.

Now, whether a council, having gone through the exercise of working out what’s significant, what the cost might be, what the options might be—because there might be many properties where they might wish to protect the public value of significant indigenous biodiversity, where they say, “You know what, actually, we could exchange development rights. Half the property has got significant indigenous biodiversity on it. The other half might be suitable to build”—I don’t know—“a condo on it.” All of this is going to be available to us to explore and determine in a transparent fashion. It’s never been done before in New Zealand, and this is vitally important.

Those are the trade-offs. Caveat emptor applies. If they bought a property with the existing controls and it turns out they’re similar in the new system, they won’t be eligible. We’ve been very clear: it’s not retrospective, and the trade-offs are going to be transparent. I’ve covered this extensively last night.

I understand that the member has concerns about loss of indigenous biodiversity. All I would urge the member is to provide feedback on illustrative national policy directions currently out for non-statutory consultation, to remain engaged with the development of national standards around regulatory relief, and to remain engaged in her community and through the process so that—being probably one of the more qualified people in regulatory relief now, having picked it up, as she told me in her introduction to a previous question—she remains engaged, she remains an advocate for it. We’re going to pass the legislation; it’s going to be implemented.

Committee of the whole House

Thank you, Madam Chair, and thank you for taking this call when I had indicated I was going to jump into Wildlife Act approvals and go to Schedule 2A, but then I realised my mistake, and that is that schedules—I think it’s—3, 4 and 5 are all in Part 3, not Part 4. I don’t know why I hadn’t worked that out, so apologies for that.

But I do think Schedule 5 is very important, because Schedule 5 is the farm plans schedule, and it’s been changed a lot in Amendment Paper 710. Freshwater farm plans are in Schedule 5, and this is related to section 125—and I’m happy for the Clerk or someone to tell me I’m wrong again, jumping around, but I think I’m in the right part. These are major changes being made at this late stage, and there are changes to auditing and that the certifier can be the auditor, which doesn’t make very much sense to me.

I do have an Amendment Paper, and that is No. 705. At clause 9, there is “Audit of farm for compliance with freshwater farm plan”, and it says there that a farm operator must do some things. It says, “The audit must be completed in the manner prescribed in regulations.” Then, at subclause (3), “The farm operator must provide the auditor with reasonable access to the farm”. I’ve added in new subclause (4): “The frequency of audits must be determined based on the level of risk.” So that would be good.

I’ve just been a bit worried by some of the rhetoric that’s been going around about the freshwater farm plans and these changes, which I won’t go through in detail, but I’m happy for the member in the chair, Simon Court, to make any further comments on them. But will he consider my amendment? I am interested in making sure that if freshwater farm plans are to be robust and if they are to be a useful mechanism for those farmers and processes to be able to demonstrate the good things that they’re doing, then I think it’s important that not only is there a certification aspect, but when they are audited, that audit is independent and aligns with the level of risk as well, to use the language of some other people.

That’s my question on Schedule 5. I will leave that there for the member to answer and I’ll try and see if I’ve got any other questions on the other schedules now I’ve remembered.

Committee of the whole House

I appreciate that the member the Hon Rachel Brooking wants to see risk managed effectively, but the amendment the member proposes is not necessary. The system already incorporates risk by determining which farm plans are certified and audited. The frequency of auditing is determined by the completion or not of actions, and an audit fail triggers a re-audit within 12 months.

Committee of the whole House

I move, That debate on this question now close.

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

Ayes 67

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

Noes 50

New Zealand Labour 34; Green Party of Aotearoa New Zealand 14; Te Pāti Māori 1; Kapa-Kingi.

Motion agreed to.

CHAIRPERSON (Maureen Pugh): The question is that Minister’s amendments to Part 3 set out on Amendment Paper 710 be agreed to.

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

Ayes 67

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

Noes 50

New Zealand Labour 34; Green Party of Aotearoa New Zealand 14; Te Pāti Māori 1; Kapa-Kingi.

Amendments agreed to.

CHAIRPERSON (Maureen Pugh): The question is that Lan Pham’s amendment inserting clause 97(2)(a)(iii) set out on Amendment Paper 726 be agreed to.

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

Ayes 50

New Zealand Labour 34; Green Party of Aotearoa New Zealand 14; Te Pāti Māori 1; 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 Lan Pham’s amendment inserting clause 97(3)(c) set out on Amendment Paper 677 be agreed to.

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

Ayes 50

New Zealand Labour 34; Green Party of Aotearoa New Zealand 14; Te Pāti Māori 1; 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 97(4)(a) set out on Amendment Paper 681 is out of order as being inconsistent with a previous decision of the committee.

The question is that the Hon Rachel Brooking’s amendment inserting clause 97(4)(c)(vi) set out on Amendment Paper 685 be agreed to.

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

Ayes 50

New Zealand Labour 34; Green Party of Aotearoa New Zealand 14; Te Pāti Māori 1; Kapa-Kingi.

Noes 67

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

Amendment not agreed to.

CHAIRPERSON (Maureen Pugh): The Hon Rachel Brooking’s amendment inserting new clause 100 set out on Amendment Paper 746 is out of order as being inconsistent with a previous decision of the committee.

The Hon Rachel Brooking’s amendment deleting clause 111 set out on Amendment Paper 666 is out of order as being inconsistent with a previous decision of the committee.

The question is that Lan Pham’s amendments to clause 122 set out on Amendment Paper 713 be agreed to.

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

Ayes 50

New Zealand Labour 34; Green Party of Aotearoa New Zealand 14; Te Pāti Māori 1; Kapa-Kingi.

Noes 67

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

Amendments not agreed to.

A party vote was called for on the question, That Part 3 as amended be agreed to.

Ayes 67

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

Noes 50

New Zealand Labour 34; Green Party of Aotearoa New Zealand 14; Te Pāti Māori 1; Kapa-Kingi.

Part 3 as amended agreed to.

Committee of the whole House

Part 4 Natural resource permits, and Schedules 2 and 2A

CHAIRPERSON (Maureen Pugh): Members, we come now to Part 4. This is the debate on clauses 126 to 203—“Natural resource permits”—Schedule 2, “Information required in application for natural resource permit”; and Schedule 2A, “Process for obtaining wildlife approvals under this Act”. The question is that Part 4 stand part.