Natural Environment Bill

Committee of the whole House

Thank you, Madam Chair. I’m interested in the way that the joint management agreements and iwi participation agreements work together. There are a number of questions that I have about them in this part, but I’ll start with clause 236, on page 181. I hope the member in the chair will be able to flip back and forth on this, but this is sort of the centre of it, so I’ll start here.

The first question is, really: under clause 236, the formulation of joint management agreements is similar to the one in the Resource Management Act, but obviously the Mana Whakahono ā Rohe agreements are very, very different—can an iwi enter into a joint management agreement with a local authority?

Committee of the whole House

Joint management agreements are provided for in Treaty settlements, and where they are provided for in settlements, this is the process set out in clause 236.

Committee of the whole House

Thank you, Madam Chair. That’s right, and we canvassed a little bit of that in the committee last night, and the reason why I raise it again is because “joint management agreements” are the words that are used in some Treaty settlements, but, obviously, the ordinary words “joint management agreement”—I can enter into that with the member in the chair, Simon Court. There are no protected words for what a “joint management agreement” means. For the sake of this Act, it’s set out what a joint management agreement can do in the Act, but there’s no restriction on what you can call a “joint management agreement”. I want the member in the chair to clarify: is there a protection for use of public power in that kind of joint management agreement? It also goes to the question of whether you can enter into a joint management with, say, a group of developers, which, on the natural reading of this, you can; it’s just that no authorities have.

I guess, when you get down into the points around how you can use a joint management agreement and how it’s different from the iwi participation agreements, that becomes really relevant for a lot of the groups of iwi that already have established arrangements with councils to enter into what they already have, essentially, with councils and not to go through the iwi participation agreement process. A joint management agreement could allow a vehicle for new groups of iwi to be able to do that. It doesn’t seem to be connected in the legislation to someone who has been granted by the Crown a legitimate public interest in having a joint management agreement with a local authority. It just seems to be, on this formulation, anyone who can enter into that.

My other question about the iwi participation agreements, just to start this off, is the way that clause 237 applies. This also seems to support the reading that a local authority could exercise some of its functions before entering into a joint management agreement with iwi on its own. The way that clause 237 is formulated seems to suggest that we’ve got this use of public power, so it’s appropriate that a local authority would be able to exercise that on its own and therefore make sure that it’s a sort of special formulation of how you use the joint management agreement in a planning context. It would be good to start there.

Committee of the whole House

I’ll attempt to answer fulsomely. I’ve been advised that there is no interaction whatsoever between joint management agreements provided for as part of specific Treaty settlements and iwi participation agreements, which are set out in clause 237A.

If I intimate what the member Arena Williams is getting at around joint management agreements and other public agencies, that is provided for not as a joint management agreement but, in clause 232, as “Transfer of powers”. It’s been described to me during the policy development process that if, for example, a regional council had a small area of reserve near the Department of Conservation estate, potentially the responsibility for managing that could be transferred, say, to the Department of Conservation.

Committee of the whole House

Thank you, Madam Chair. Just one more question on how these powers work together. That was what I was asking: would it be illegal or unlawful for the council to enter into a joint management agreement with an iwi that had a schedule that said they were to enter into a joint management agreement in their Treaty settlement? I think the answer was no, but you would have to comply with clause 232, which is the “Transfer of powers” provision.

If you could transfer the powers to a body that could deal with public powers, you would be able to do that. This is for local authorities to transfer a power fully, and I assume that’s also delegations—delegations is at clause 233. But, if you’ve got the local authority still overseeing the exercise of that power and signing it off, you don’t have a transfer, you don’t have a delegation; you have something in the middle, which is what I’m asking about with joint participation agreements.

Committee of the whole House

Joint management agreements are provided in specific Treaty settlements. Clause 236 sets out the local authority’s role if they are required by provisions in a Treaty settlement to enter into a joint management agreement. There’s no anticipation that joint management agreements are available to others—only as it relates to specific provisions in specific Treaty settlements.

Committee of the whole House

Thank you, Madam Chair. To the member Simon Court: I also have a question about delegations but in relation to a different clause, clause 232, “Transfer of powers”. This is where a regional council can transfer its powers to, essentially, any other public authority, in accordance with that clause. Clauses 232, 233, and 234 all refer to that delegation of power to others, essentially, the effect of that, and that being the same as if the regional council were effecting those powers itself. There’s no statement about a residual duty that exists with the regional council itself.

I’m just wondering whether there was consideration of that overarching governance statement that, ultimately, the duty still lies with the regional council. There is the power to revoke or alter the delegation, but, really, my view is that it would be useful to state that explicitly. In clause 232(3), it talks about the revocation of duty, and subclause (4) talks about the delegated authority or delegated individual being able to relinquish the transfer, but there’s no statement about the regional council automatically assuming that function again. It’s just, really, a question of being crystal clear about who holds the duty, the residual powers, and what happens when that duty is relinquished.

Committee of the whole House

The member Vanushi Walters is absolutely correct. “Transfer of powers”, clause 232, does allow regional council to “transfer any of its functions, powers, or duties under this Act to another public authority in accordance with this section.” I think, if they’re not specifically transferred, if it’s not explicit what has been transferred, it should be safely assumed that the regional council retains responsibility for all the matters, apart from what is specifically transferred or delegated in the clauses that she’s described.

Committee of the whole House

Thank you, Madam Chair. I’m really pleased to pick up on the iwi participation agreements as well, noting that this is an entirely new clause and was a significant change even from where the select committee had got to. When the report back from committee came, Mana Whakahono ā Rohe were still going to be upheld; they were going to be transitioned into the new system. Then it was announced within hours that they would be scrapped and these iwi participation agreements would be in place. I’m really interested to hear from the member Simon Court how many Mana Whakahono ā Rohe agreements were in place and how many were initiated. Then, also, the rationale behind this is that they can transfer into this new system. But I’m particularly interested in the Crown’s obligations when it comes to not only Te Tiriti but particularly under Treaty settlements, how, I guess, reliable and what does the member see the value of these being? Because I’m noting, particularly in clause 237D, when it comes to the termination or renegotiation of iwi participation agreements, iwi can give written notice at any time, wanting to withdraw, but the same goes for local authorities seeking to renegotiate their own involvement in an iwi participation agreement at any time. Now, what is the difference between the relative stability or a framework around Mana Whakahono ā Rohe compared to this new section?

I think why I’m particularly keen in understanding that is because there was so much emphasis and there’s been so much said by iwi Māori or hapū who’ve been part of these Mana Whakahono ā Rohe agreements about how they finally have—or had, rather—not only transparency for the public about how they were working in the roles and responsibilities and how they were working with councils but they also felt a sense of stability and clarity about what those roles were and that they would continue in perpetuity. So I’m really interested to hear from the member about those things particularly.

Committee of the whole House

Thank you. The member Lan Pham had a number of questions. In answer to the member’s question about how many Mana Whakahono ā Rohe arrangements had been established, that number was eight. In response to the member’s question of how many were initiated, it’s been publicly reported that Horizons Regional Council have stated that 11 were initiated in the period after the Natural Environment Bill and Planning Bill were introduced, which did not provide for new agreements in the new system, but we estimate that there are dozens more.

The member had a question around stability: how stable is an iwi participation agreement compared to Mana Whakahono ā Rohe? Well, under the Resource Management Act, which is the legislation that we will be repealing when this legislation passes, Mana Whakahono ā Rohe could be initiated at any time by any iwi. They are related to the scope of the Resource Management Act, and sometimes they went well beyond that, as in case of the Northland District Council’s Mana Whakahono ā Rohe arrangement with Ngāpuhi, which provided for Northland District Council agreeing with Ngāpuhi that they never ceded sovereignty to the Crown. So one of the issues with the Ngāpuhi agreements is that while they were provided for in the Resource Management Act, they were not tightly scoped and they certainly have been very difficult—the existing ones, or any initiated ones—to port into the new system, given expectations. As the member rightly point out, the expectations around Mana Whakahono ā Rohe arrangements enduring—because in the old system if an iwi asked for them, council could not say no. So we have been very specific about what we intend for iwi participation agreements in the new system: that they are voluntary agreements, to be entered into by iwi that seek such an agreement; councils have the ability to negotiate the terms and conditions, but they must be very tightly scoped to the scope of the legislation.

Committee of the whole House

I just wanted to respond to the Minister’s answer to my earlier question on the transfer of powers in clauses 232, 233, and 234. He made the point that if a power is delegated, that power is delegated but the regional council retains all other powers. My question was more about whether there exists a residual duty—whether even if a council is delegating a particular power, given it’s the primary duty-holder under the statue, it holds a residual duty. That’s question one; the second question was whether, if it does so, that should be articulated in the legislation. My view is they do hold that residual duty and that should whoever they’ve delegated that power to not comply with the statute, they actually have the primary obligation then to revoke that delegation. So I just want to make that clear.

The second thing was on clause 235. This is about the scope of delegation to employees and the hearings commissioner. The scope of delegations are extremely broad: it is “any function, power, or duty”. My question is whether there was consideration of whether there should be a line drawn between powers that can be delegated—some sort of line drawing—and where it’s contested whether something will have a minor to a mid-level impact on the environment—for example, where there might be substantial opposition to a particular plan or plan change—whether that should more appropriately be held with the primary decision-maker under legislation.

Committee of the whole House

Madam chair, if I could just respond very briefly. Thank you for the member’s question. Look, the transfer document will set out the individual arrangements, including the specificity about what each party is ultimately responsible for. So I cast forward to what might be in such an agreement, but we can safely assume that legal obligations will be set out very, very precisely.

In response to the member’s question around delegation to employees and others, and her question around whether decision making around matters that could lead to environmental effects—it’s quite clear under clause 235(3)(b) that a regional council may not delegate a decision on an application for a natural resource permit. That’s because those matters are reserved for council.

Committee of the whole House

Just a follow-up on that question. To the member in the chair, Simon Court, you can cast forward because the Local Government (System Improvements) Amendment Bill, which the Government is progressing right now, would change Schedule 7 of that Act at clause 31 to make an amendment, which would mean that delegations to employees were very different from the general resource management system, and mean that employees can’t, say, serve on committees, which effectively is the problem here. Why don’t the current rules from the Natural Environment Bill set this out, when things like Auckland Council—big place—has to make 300 decisions every week, I am told, in the transport and access space. Some of these are environmental decisions, like discharge from roads into drain water of stormwater, and things like oil contaminants. They have to make so many decisions that, essentially, that committee meets every Friday—I know this from the Regulations Review Committee considering it this year. That has to be a committee of employees because I do not want for my council colleagues to have to sit through that every Friday—Mr Court, are you going to make them?

Why doesn’t this bill take the opportunity to update the delegations functions in a sensible way, to reflect that kind of decision making which is appropriately done by elected members and sometimes will be appropriately delegated to employees, in a more specified way? Because the problem is that relying on the old resource management provisions doesn’t allow for mega-councils like Auckland, and it also doesn’t serve the very small councils, which I understand the Government is trying to encourage to be more efficient. It is inefficient to have a committee of fully elected members making the sorts of environmental decisions which affect a particular street or a particular home.

The delegation functions are important, and then they’re also important to the joint management agreements, because the joint management agreements can delegate to a joint management committee. Under the old system, the other local government powers that went along with those meant that you wouldn’t have been able to enter into a joint management agreement with a group of developers, but under the new formulation, that is possible. Is it possible to enter into a joint management agreement with a group of developers and delegate functions to it?

Committee of the whole House

No. In answer to the second part of the member Arena Williams’ question, joint management agreements are provided for in specific Treaty settlements. I’ve already answered that; happy to clarify. In response to the member’s question around delegation to employees and others, the member’s question—actually, a very valid question—we certainly don’t want elected members’ time taken up responding to traffic matters or trying to work out which potholes should be filled in what order. Absolutely not. That is why, in the context of the Natural Environment Bill, under clause 235, “Delegation to Employees and others”, “(1) A regional council may delegate to an employee or a hearings commissioner … any function, power, or duty under this Act except—(a) the power to approve a regional spatial plan, natural environment plan, or plan change … or (b) this power of delegation.” But it remains available to them to delegate other matters—say, to a processing planner as a council employee to carry out certain functions and duties under this legislation.

We do not want elected members having to be involved in making individual consent conditions. That might have been—

Arena Williams: I sort of want to do that.

SIMON COURT: I think it might have been envisaged, and certainly possible, under the Resource Management Act (RMA), when it was passed in 1991. But given that New Zealand’s volume of consents has swelled from about 5,000 a year, when I first started grappling with the RMA as a young engineer in 1996, to over 40,000 consents demanded of Kiwis at the latest peak of the building boom a couple of years ago, I can’t imagine councillors around the country being able to process and get their heads around and get 40,000 consents out the door. In saying that, if we can get back to the number of consents in the 1990s of 5,000 or less, maybe elected members would be able to turn their minds to that. But that’s not envisaged here.

Committee of the whole House

Thank you, Madam Chair. It’s a pleasure to take my first call—actually, my first call on the Natural Environment Bill.

Hon Members: Oh!

MIKE DAVIDSON: I’ve joined the party.

Grant McCallum: Where have you been?

MIKE DAVIDSON: I’ve been watching—I’ve been watching.

I have a question on clause 237A, on the iwi participation agreements and subclause (3) around the hapū. We know, obviously, that hapū vary in size across the motu. I look down to Canterbury and the mighty Ngāi Tūāhuriri, who have a hapū where their takiwā stretches, from the Hurunui down to the Ashburton River and inland to the Southern Alps.

When we look at the reorganisation that is going on, there is the potential that, actually, a unitary authority may completely sit within its takiwā by itself. So I do question why they have to sit alongside any agreement of an iwi authority and cannot, in their own right, have a participation agreement with a council.

I raise that question because we know, actually, that it’s the hapū that make iwi exist, and therefore we should actually be trying to create that mana to mana relationship from hapū to councils when, actually, there is only one hapū that sits with a council. It does concern me, that, actually, we have a clause in there that says, yep, hapū can be involved, but they have to join as party to an iwi participation agreement, so they are therefore excluded from having a direct relationship with the local authorities. I’m wondering whether you’d consider changing that to enable hapū to have the ability to have relationships that don’t sit alongside iwi authorities but that are, actually, directly with the local authorities instead.

Committee of the whole House

The member raises a good point, and that is why the legislation provides, at clause 237A(3), that “Hapū may join as parties to an iwi participation agreement alongside the relevant … authorities.”

Committee of the whole House

Thank you, Madam Chair. Just two brief questions following up from the member Simon Court’s responses to my last questions on iwi participation agreements. The first was just a clarification: he mentioned that the Horizons council had said there were 11 Mana Whakahono ā Rohe agreements that had been initiated. Is that purely for the Manawatū region?

And then, secondly, he mentioned about the Mana Whakahono ā Rohe agreement with, I assume, the Far North District Council, and he talked about the scope of the agreements and how Ngāpuhi have, for example, put in that that they hadn’t ceded sovereignty. Is it the member’s understanding and does he contemplate that with these iwi participation agreements, it would be entirely appropriate—and, actually, some would think, necessary—for the iwi and hapū that are involved to actually outline very key statements like that that are absolutely based on historical fact, in order to frame the iwi participation agreement? Like, if he’s saying that that kind of thing is out of scope, then what is the basis of these participation agreements?

Committee of the whole House

In response to the member Lam Pham’s question around Horizons Manawatū, it has been reported—and I have read it with my very own eyes, but I can’t verify the reports, because it’s in the mainstream media—that 11-month Mana Whakahono ā Rohe arrangements were initiated, so I would invite the member to have a look at her media feed—there will be reports of that; I’ve seen them.

In terms of the content of iwi participation agreements under clause 237C, it is set out what should be included, but with respect to the Far North District Council entering into an agreement with a group that claims that they never ceded sovereignty to the Crown, I just need to remind all New Zealanders that the Crown is sovereign in New Zealand, and we have laws, and every New Zealander is subject to the same laws, and should expect equal treatment before the law. But if we entertain the notion that some groups haven’t ceded sovereignty and are not subject to the laws of the land, then we will descend into anarchy.

This Government will not allow New Zealand to break up into anarchic little sub-regions where people claim the Government doesn’t have sovereignty. How on earth the Far North District Council thought it was appropriate to pull into an agreement relating to the Resource Management Act—I can’t see into their minds, and it’s probably because there’s not much in there; it’s a dark space.

Committee of the whole House

Thank you, Madam Chair. In response, just a quick question as follow-up. Given that the Mana Whakahono ā Rohe agreement has been entered into and the Far North hasn’t entered into anarchy, what evidential basis is the member actually basing those comments on?

Committee of the whole House

Thank you, Madam Chair. I want to go back to my questioning line from before, because I do not feel the member in the chair, Simon Court, actually answered my question.

CHAIRPERSON (Maureen Pugh): The member addressed your question, so if you’re going to ask the question, I’d advise against it.

Committee of the whole House

Thank you, Madam Chair. I have a question on liability and, specifically, shared duties and how that translates into shared liability or not—this is clause 236, the joint management agreements. Under subclause (2), it says “A decision made under a joint management agreement has legal effect as a decision of a regional council.” I’m just wondering about where liability sits if anything under those agreements is challenged in law. Is it treated as a breach of duty by the regional council according to subclause (2)? If the management agreement itself says that liability will be shared because the duties are shared, then does that alter where liability sits? If the management agreement is silent as to whether the duty stands, does that mean that subclause (2) takes effect or that there is an automatic split so anyone raising a complaint could raise it against both? Thank you.

Committee of the whole House

The agreements can only be entered into in the context of law. I urge the member to refer, again, to clause 237C, “Content of iwi participation agreements”. If councils are not following the law, of course they are open to challenge.

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 48

New Zealand Labour 34; Green Party of Aotearoa New Zealand 12; Te Pāti Māori 1; Kapa-Kingi.

Motion agreed to.

CHAIRPERSON (Maureen Pugh): Hūhana Lyndon’s amendment to Amendment Paper 710 deleting clause 219(1)(f) set out on Amendment Paper 752 is out of order as being inconsistent with a previous decision of the committee.

The question is that the Minister’s amendments to Part 5 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 48

New Zealand Labour 34; Green Party of Aotearoa New Zealand 12; Te Pāti Māori 1; Kapa-Kingi.

Amendments agreed to.

A party vote was called for on the question, That Part 5 as amended be agreed to.

Ayes 67

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

Noes 48

New Zealand Labour 34; Green Party of Aotearoa New Zealand 12; Te Pāti Māori 1; Kapa-Kingi.

Part 5 as amended agreed to.

Committee of the whole House

Part 6 Enforcement and other matters

CHAIRPERSON (Maureen Pugh): Members, we come now to Part 6. This is the debate on clauses 243 to 332, “Enforcement and other matters”. The question is that Part 6 stand part.