Resource Management (Waitaki Catchment)Amendment Bill

I want to bring to the Committee’s attention a particularly important amendment that National is moving in this part. The amendment relates to the vital issue, for the people of the upper Waitaki catchment, of the commitments that were made to them at the time of the huge hydroelectric developments that took place there in the late 1960s and the 1970s. That community has seen huge changes in its landscape and in the use of its water. Both Ministers and politicians at that time gave commitments to that community of an allocation, in today’s terms, of 15 cubic metres per second of water for the purpose of irrigation.

The course of the history of what happened after that is somewhat fuzzy. During the select committee stage, members of the Local Government and Environment Committee questioned extensively just how it came to be that the 1969 Order in Council that promised that water for that community disappeared out of existence. There was a very complex legal set of the Water and Soil Conservation Act being repealed, of the Resource Management Act coming into effect, and of the resource consent applications that were lodged at the time by the Electricity Corporation of New Zealand—subsequently overtaken by Meridian Energy. Two things were clear through that process: firstly, there was no deliberate decision by Ministers, by Parliament, or by the community of the Waitaki to surrender the water rights that were promised to the community at the time, and second, nor was there any deliberate attempt to lock up every drop of water in the Waitaki catchment solely for the purpose of electricity generation.

Today we challenge Parliament to put some justice back into what occurred then, by supporting the amendment that is in my name. All that we are asking is that when the board comes to allocate the water in the Waitaki River, it takes into account—it is not absolutely bound by it—the Order in Council of 1969, and the commitments given by Ministers of the Crown at that time to the people in the upper Waitaki River area. Members on the Opposition side of the Chamber believe we should support that amendment because it is good environmental lawmaking. All sorts of communities around New Zealand have very difficult and contentious issues when there are major developments, as there were in the 1960s when the huge upper Waitaki scheme was built. It is very important that people can trust the word of Ministers. It is very important that when communities come together and do a deal, people know that those deals will be honoured in the long term. That is why I call on this Committee to do the honourable thing and support that amendment.

The Government wants to play games now—I have seen that in the media, with regard to Jim Sutton and David Benson-Pope. They want to have an argument about the history of what occurred in 1991. I am not saying that we were flawless then; I am not necessarily saying that what was done was right. What I do say is that there is no record of Ministers deliberately taking away those rights to water. There was no deliberate decision of this Parliament, or of any Government, that all the water would be set aside exclusively for electricity generation. If we have any respect for good process, then I invite the Committee to back that small rural community, which has been disadvantaged by the outcome that has occurred since then. I challenge the member for Aoraki, Jim Sutton, and the member for Otago, David Parker, to note what the local people think. There is a choice as to whether the water of the Waitaki River—every single drop of it—will be used for generating electricity for the rest of the people of New Zealand, or whether we will allow a tiny amount, 2 percent of it, which is what was promised to the people back in 1969, to be used for irrigation purposes. Do we think that the promise that just 2 percent of the water of the Waitaki River would be used for irrigation purposes is something that should be taken into account as this legislation comes into effect, and as the water of that great river is allocated?

I make a very honest plea to this Committee: let us do the honourable thing. Let us do the right thing for the people of the upper Waitaki catchment, and let us do something to enhance the reputation of politicians, Ministers, and the Crown. A lot is said about honouring the treaty, but what about honouring agreements with rural high-country farmers? What about making sure that when they have an agreement, it is honoured? I call on the Committee to support our amendment.

We have heard some extraordinary things in the Chamber in the last 12 hours or so, and not the least of them has come from the previous speaker, the very confused Dr Smith—the man who told North and South that he had been “screwed” by his leader, and that he was not here in Parliament “to shag spiders”.

💬 Hon Dr Nick Smith: That’s not true.

Well, I have read North and South, I tell Dr Smith—

💬 Hon Dr Nick Smith: I raise a point of order, Madam Chairperson. This is the second time that this Minister has chosen to simply engage in derogatory personal statements that are not true, and you know, Madam Chairperson, that if a member says something is not true he is to be taken at his word. I think that for the Minister, who is meant to be a Minister of the Crown, to immediately begin a debate of such crucial importance to the people of the upper Waitaki with those sorts of untruths does this Committee no credit, at all.

💬 Lindsay Tisch: That reflection on Dr Smith has continued throughout the debate this evening. I say to the Minister, who has brought those accusations and made those personal statements against my colleague, that that is completely unparliamentary. It is unacceptable under Standing Order 116, and the statements made are untrue. I expect, Madam Chairperson, that you will censure the Minister and ask him to apologise for his conduct.

The CHAIRPERSON (Ann Hartley): I think that in the interests of good debate this evening, it would be appropriate if the Minister withdrew those remarks.

I am happy to withdraw and apologise, and I am sorry if the member has taken offence—

💬 Hon Ken Shirley: I raise a point of order, Madam Chairperson. I draw your attention to Standing Order 106, and I think that in this instance it may be the best remedy. Standing Order 106(1) states: “A member who has spoken to a question may speak again to explain some material part of the member’s speech which has been misquoted, misunderstood or misrepresented in the same debate.” I think in this instance that if the Hon Dr Nick Smith were to have another call pursuant to Standing Order 106, that would in part remedy the misrepresentation we have had from the Minister in the chair, the Hon David Benson-Pope. [Interruption]

💬 Lindsay Tisch: I raise a point of order, Madam Chairperson. While you were deliberating, Madam Chairperson, the Hon Ruth Dyson has been interrupting. There is meant to be silence during points of order. The Minister was speaking at the time that the Hon Ken Shirley was making his point. You should be deliberating, Madam Chairperson, but we have interjections all the time.

The CHAIRPERSON (Ann Hartley): The member is quite correct. I give members a final warning about speaking during points of order. One cannot rule on points of order if there is noise going on. The point that Mr Shirley raised is not pertinent. The material was part of the Minister’s speech.

What I really wanted to do was to read the even more extraordinary—

💬 Brian Connell: I raise a point of order, Madam Chairperson. This is a new point of order. I would like you to reflect, Madam Chairperson, not on the point of order you have ruled on but on the use of language by Mr Benson-Pope. Unparliamentary language like “shagging spiders” surely cannot be accepted in this Chamber. You did not ask him to withdraw or apologise for the use of that language.

The CHAIRPERSON (Ann Hartley): I have ruled on the point of order.

💬 Brian Connell: This is a different point of order; it is about the Minister’s language.

The CHAIRPERSON (Ann Hartley): The member will please be seated. I have ruled on the point of order. The point of order was about the member’s language. He has withdrawn and apologised, and that is the end of the matter.

Irrespective of what may have gone before, the most extraordinary statement made by Dr Smith in the last decade is recorded in the Otago Daily Times by David Bruce, the columnist responsible for Otago and Waitaki affairs. Since I had the good fortune to be elected to Parliament in 1999, my respect for the Otago Daily Times has grown. That is not meant to be a reflection on other dailies, but it may be something to do with the fact of its independent ownership. On matters around the Waitaki and the whole Project Aqua debate, including the debate around the water allocation issues that we are canvassing tonight, David Bruce, who is the columnist in Otago and Oamaru, has gained amazing respect for the way that he has reported very contentious and highly contested issues.

I would like to put into the Hansard this evening a report from the Otago Daily Times of 24 July this year, the byline to which is: “It reads like a ‘whodunnit’- David Bruce investigates who killed off water to irrigate the Mackenzie Basin.” The article is headed “Allocation never meant to go”. I ask members, while I read this article, to think about what they have just heard from the National Party’s chequered spokesman on this matter. The article states: “The National Party, now championing the cause of Mackenzie Basin farmers, passed legislation in 1993 that took away their irrigation allocation. However, the party’s current environment spokesman, Dr Nick Smith, said the National government in the early 1990s never intended to do that. … Dr Smith was a member of the National government which made an amendment to the RMA in 1993, removing the section of the 1991 Act which had given the 1969 order in council virtual resource consent status. Doing that also removed the irrigation allocation.”

Frankly, I am not surprised, and neither are Dr Smith’s former constituents in the Mackenzie, that he is as embarrassed as he is about that incredible cock-up, as he refers to it later on in that article. However, what does surprise me is that Dr Smith and other members stand up in this Chamber and criticise the establishment of a water allocation board in this legislation. Dr Smith was quoted later in the same article as saying: “National wants a statutory board, being established by the Government to allocate water in the Waitaki catchment …”. I say QED to Dr Smith. He has got it wrong again publicly. It is time he owned up, came clean, and got on board when the Government is trying to fix up yet another shambles that it has inherited from him and his mates.

This issue has a long history to it, and a sense of rightness about it. The position of New Zealand First from the very beginning has been that this bill is about water allocation. In passing, I say that the stance taken by the member for Otago is absolutely the correct one with regard to Project Aqua. Whether Project Aqua should proceed is not the rationale for this bill; as far as we are concerned, the rationale for the original bill and the bill before us in its present form is one of water allocation.

But there is the historical issue that has just been raised by Dr Smith—that is, the historical 1969 Order in Council that granted the Electricity Corporation the right to dam, use, divert, discharge, and take water from the upper Waitaki River and lakes. This order, as we all know, followed on the historical dam development going right back to 1928 when the first Waitaki dam was commenced. The 1969 order also provided for specified amounts of water to be granted by the Waitaki catchment authority for irrigation purposes. That comes back to the issue that has been advanced to us by relevant farmers in the district. In 1990, when the Electricity Corporation applied to the Canterbury Regional Council under the Water and Soil Conservation Act for a bundle of water rights, those rights were granted. They were granted on 1 February 1991 for a term of 35 years.

Against that historical background come the legal issues that are before us. We know that it was stated in the Environment Court on 12 December 2003: “It is very unlikely that some residents of the Waitaki catchment have legitimate expectations as to future irrigation water rights based on the 1969 Order in Council.” That decision of the Environment Court has been further before the courts in recent times. Notwithstanding that, New Zealand First gives support to the suggested amendment from Dr Smith, because all that the amendment does—and the farmers would ask for no more with regard to the history of this development, particularly in respect of the legal matters that are yet to be decided upon in another place—is place on record an ability for their case to be heard before the board that is set up in this part. We know that the present Canterbury Natural Resources Regional Plan will not be operative until 2009 at the earliest. A water allocation plan set up as a regional plan under this bill could be in operation much, much earlier than that, and when it is in operation the interests of that group, which is affected, and still feels affected, by the Order in Council, would need to be looked at again. This bill provides a suitable vehicle to undertake that role—the relevant board set up under the bill.

The ACT party will certainly support the amendment in the name of the Hon Dr Smith calling for this matter to be taken into account. Indeed, my colleague Gerrard Eckhoff, who does a remarkable job serving the interests of farmers throughout the country, but particularly those in the South Island high country and surrounding landscape, has been pressing this point in the ACT caucus, and we certainly accept that situation.

What we have is a clear promise and commitment from the Crown. In 1969, when the Crown was building those Toecap schemes in the Waitaki catchment, we had a clear commitment. What better proof of a clear commitment than an Order in Council providing for that volume of water to be made available for irrigation purposes? We know that an additional metre of freeboard was put on the Toecap structure so that another metre of water would be available in that dam for irrigation. Of course, that is the top metre. When one puts a metre at the top of the freeboard, the surface area of the dam is that much greater. That is an immense volume of water.

The other aspect that needs to be considered is that the irrigators’ demand for water relates to a very confined time. It is really during the maximum point of evapotranspiration—principally January and February, when evapotranspiration is at its greatest. That is not the time of year when we are in a most critical situation in terms of storage levels in our hydro dams—typically, May, June, or July. Yes, one could argue that, given a severe drought, all storage is critical, and that is partly true, but water supply is so intermittent so often that Meridian Energy stores all the water, then spills it all. Meridian Energy stores it through the critical period, when it could be earning hundreds of millions of dollars and enhancing the farmlands of the Tekapō Basin, then spills it down the spillway to sea, because it does not know how intermittent supply will be or how prolonged a drought will be. That just does not seem sensible.

But for the Government now to pretend that it does not have any obligation, when an Order in Council in 1969 gave that commitment, seems rather strange to the ACT party. The fact that this Government is happy to renege on it disturbs me, but we have some precedents for that. Let us think about the West Coast Accord. The Labour Government signed the West Coast Accord, which included the union movement, local government, and all the forest industry. It was an absolute commitment in perpetuity. It was going to provide for a sustainable yield of beech forest in perpetuity. How long did “in perpetuity” last? The accord was signed by Phil Goff, the Minister for the Environment, in September 1987. One of the first things this Labour Government did when it came to office was to tear up that accord. It just tore it up. This Government’s word is worth nothing. It is a bit like its tax policy: it said that only 5 percent will be affected, but we already know that 10 percent is affected.

💬 Brian Connell: 12 percent!

That is right—12 percent. That figure was mentioned in question time today. We are guaranteed broken promises from this Labour Government. To get back to the bill, it is a critical issue, and it can be provided for. We do not believe there should be special legislation, but if this board is to be set up, then for goodness’ sake let us at least let the board weigh up the merits and take into account that Order in Council. As I understand it, that is all that Dr Smith is asking for. It is a very reasonable request. How could one possibly vote against it? All that the amendment states is that the Order in Council should be taken into account and considered. Hopefully, we will have a panel of competent experts. I am not too sure that the Labour Minister will appoint competent experts, but let us hope he does—in which case, how could one vote against that amendment? I call upon United Future. How could United Future not support this amendment to make that water available?

This is a very important issue that we are debating right now in relation to the Mackenzie Basin. The 15 cumecs of water was promised to the farmers in 1969. It is something that appealed to all of us as we sat on the Local Government and Environment Committee and heard the submissions about this issue. We unanimously agreed that everything possible ought to be done to try to resolve this issue, because it is, clearly, something that Parliament should give its attention to.

We have debated this issue a great deal. If it was simply an issue of legality that could be addressed by giving back rights that were lost, I believe that it would have been in court by now, or would be going to court, and that would be the appropriate way to address it. But we know that that option is not open to the farmers as the 1969 Order in Council has been revoked. There is no way for them to proceed legally, particularly because there is a High Court decision at the moment to do with water allocation in the upper Waitaki, and that decision will have a bearing upon this issue.

I am firmly convinced that the 15 cumecs of water do not pose any threat to Meridian Energy’s ability to generate hydroelectricity, and, any way, a good percentage of it would flow back into the catchment area and be useful downstream. I have worked very hard with the Minister to investigate all the avenues by which Parliament can do the best we can to ensure that the Waitaki Catchment Water Allocation Board does take this matter into consideration. Ultimately, I believe that the case rests on an environmental issue rather than on the legal issue of the 1969 Order in Council. It is obvious to anybody who visits the Mackenzie Basin that it needs water, and that tonnes of dust every year are blown away as a result of the basin having been deprived of water for a considerable number of years.

The Minister, in response to our concerns, has stood in this Chamber and given an assurance that she will make sure that the water allocation board does take into consideration these issues. All the historical data that is there will be put before the board, all the various concerns of the Mackenzie Basin residents and the issues there will be presented, and I believe that that will resolve the issue. I do not believe any water allocation board worth its salt would ignore the need for water in the upper Mackenzie Basin, particularly given that it is such a small amount—15 cumecs. I would hope that the residents would get much more than that; that when, finally, a decision comes down from the courts about the consents in the upper Waitaki, the water allocation board may allocate more water, because huge productivity is possible up there if water is made available for irrigation.

The difficulty that we face is that if we tamper with the legislation as it currently stands, we may actually create more difficulties than we are trying to resolve. I am confident that the water allocation board will be provided with all the information it needs in order to make a very good decision. I will continue to work very hard on behalf of the Mackenzie Basin residents to ensure that that does occur. Unfortunately, while we are sympathetic to the amendment from the Hon Dr Nick Smith, our having been presented with it just minutes ago means we are not able to give it our support; it is something that would have to be taken to our caucus, and I have not had the opportunity to do that. But I want to indicate to the Committee that we are very, very committed to these concerns, and I believe that we have already addressed them and that they will be resolved by the water allocation board when it is set up through the passing of this legislation.

In speaking to Nick Smith’s amendment, I admit to some sympathy towards what he is trying to do. I do think that the 1969 arrangements are part of the matters that the board ought to consider. I also do not think there is anything in the legislation at the moment that prevents the board from considering that issue, but I was quite sympathetic to the view that we direct it to do so. However, on looking at the amendment, I do not think that is what it actually does.

The amendment is added on to clause 21, which sets out what must be done in order to evaluate whether the allocation decisions that the board has already reached meet the requirements of section 32 of the principal Act. So that is the section 32 analysis, and as I read the Act, the bill, and Supplementary Order Paper 244 in the name of the Hon Marian Hobbs, the board has to consider, after it has made the allocation decision, whether what it has done is appropriate, and it has to consider the benefits and costs of its decision. If Nick Smith’s amendment were to be added on to that, then the board would have to consider the Order in Council as part of the process of evaluating whether its allocation decision, which had already been made, was appropriate. It seems to me that the place to consider the Order in Council is in making the allocation, not in evaluating the allocation, so the amendment may tend to tie the board in certain legal knots. On that basis, we may be better to rely on the fact that the bill as a whole does allow those matters to be considered. Possibly the member should have considered amending new clause 14AA, inserted by Supplementary Order Paper 244, which sets out what the board must do in reaching its allocation decision. We have not yet voted on that clause.

However, I do want to comment on new clause 14AA, which is now all that remains in terms of describing what the board has to do in making its allocation, given that clauses 17 and 18 have been entirely removed from the bill. The four matters in new clause 14AA are not prioritised, at all. There is no direction to the board as to whether it should first provide for stock watering, firefighting, and domestic use, then provide for the intrinsic values of the river itself, and then allocate water between different activities, which is what we have all assumed it should do. In fact, there is nothing to stop the board, given the way that the Minister has worded that clause, from providing first for hydro and irrigation purposes, and only secondly considering whether the local farmers can water their stock and fight their fires, and then, thirdly, considering whether it has left anything at all for the river itself.

It seems that new clause 14AA is seriously lacking, in not setting any priorities for the way that those four matters are to be ranked. I think that is a serious problem. There is no help in doing that from the clauses that previously provided quite detailed directions to the board as to the matters it was to consider and that, in fact, turned the process into much more of a catchment management process than simply a water allocation process. But clauses 17 and 18, where the Local Government and Environment Committee put in quite a lot of work and added to what was originally presented to us, have completely gone, and we now have only new clause 14AA. Exactly how it will mesh with the principal Act is still really quite unclear. The board will find itself in some difficulties in trying to interpret what the Minister has given it to do in that rather ill-advised Supplementary Order Paper.

It has been fascinating listening to the debate in the last few moments. Two members from two minor parties that are known to support the Government have spoken against the Hon Nick Smith’s amendment. Let us look at the events that led up to that point. What we have in Part 2, which was voted on recently, was the setting up of a Labour quango.

💬 Brian Connell: What’s a Labour quango?

A quango made up of former Labour members of Parliament who no longer have a job after they leave Parliament. Such people will go on a board that decides what happens with water allocation. [Interruption] David Parker, Jim Sutton, and there are a few other candidates, I am sure.

Then Part 3 has screeds of regulation, with clause after clause that restricts the board and tells it exactly what it can do. The Hon Nick Smith has a huge amount of institutional knowledge on the whole history of the Resource Management Act and, particularly, this issue. The Associate Minister for the Environment himself waved a bit of paper around; he gave a bit of the history of it that confirmed what the Hon Nick Smith had said. He did not counter it; he confirmed what the Hon Nick Smith had said, which was that an injustice has been done to a very small group of people, through no fault of any particular Government. It has happened by accident. Nick Smith has a way of amending it. I ask the Minister what harm it will do to have one small amendment that fixes that wrong. The Minister might take a call and explain that to us.

The members of the minor parties have said that they have not had time to take the amendment to their caucuses, and that they cannot consider it in such a short time. We have passed Supplementary Order Papers in this Chamber tonight that were 9 pages long. One of them was 17 pages long—on the fisheries amendment bill. I wonder how much time those parties spent considering that in their caucuses. Yet there is not time for them to consider one minor amendment to one clause, so they cannot support it. It is unbelievable.

Let me say this to the Minister: here is a chance for this Parliament to restore some of the dignity of this Parliament. Here is a chance to do that. It is often said about members of Parliament that they are dishonourable, all of them go with what is popular, and they will not do what is right. People say that all MPs go in whatever direction the wind is blowing. That is unfair. There are some hard-working and dedicated members of Parliament who are maligned by that public perception. Here is a chance for this Minister to right a wrong, and do members think he will support it? Not on your nelly!

The Hon Ken Shirley touched on a similar example earlier on—the West Coast Accord. That was passed by none other than Phil Goff, under a Labour Government. In perpetuity, the Government gave the West Coasters—a minority group, once again—some certainty about their future and what they could do with their own property in their own area. What happened when the next Labour Government came in? It screwed the accord up and threw it out—and it was all done in the national interest, supposedly. Here is another example of a contract that was entered into by Parliament, by the Government—by the executive, the 20 Cabinet Ministers of the day—not being honoured and not being carried out. This Government has a chance to fix that up. Will it do it? The answer is absolutely not. I can almost predict that it will not happen, although the Minister is not saying one way or another.

I acknowledge the contribution made by the honourable member Jim Peters tonight. He is a person who has a lot of knowledge about local government, and a lot of depth of knowledge in a lot of other areas. I listened with great interest to the contribution to the debate from that member. This amendment would allay a lot of the fears that the member mentioned in his speech earlier on. It would fix some of the problems that the member talked about. He understands the concern here, and this amendment would fix it.

So I ask the Minister in the chair, David Benson-Pope, to take a call and explain to this Parliament tonight, to the affected people, and to the people out there who have formed a very bad opinion of what members of Parliament do in this place at this hour of the night, why he will not accept this minor amendment put forward by the Hon Nick Smith, who is trying to right a wrong that came about through no fault of any particular person—that came about by accident. There is a legal opinion—I was unaware of it until just before—that was given to the select committee that backs that up.

I move, That the question be now put.

The CHAIRPERSON (Ann Hartley): I will take a call from the Hon Nick Smith, who has put an amendment, but I point out to Dr Smith that there is only about 1 minute to go before I have to report progress.

I will keep my comments quite brief, in terms of the important issue with regard to the Mackenzie Basin. I particularly want to issue a challenge to the Minister of Agriculture, Mr Jim Sutton, who is the member for Aoraki. I say to that member that there is a very intense interest in this issue in the Mackenzie Basin. This issue is a test of whether Mr Sutton will put first the interests of his constituents in the agreements that were made by his community with the Government back in 1969—whether he will ensure that the water allocation process puts right the injustice and does a fair deal for the people of the Mackenzie Basin—or whether he will back the Labour Party. That is the real test. We on the Opposition side of the Chamber say to Jim Sutton and to David Parker that they should back their constituents, and should understand that their constitutional role is to do their best for their electorates. It is interesting that not a single Government member has risen to his or her feet and tried to justify that the people of the Mackenzie Basin should be short-changed. Yet, secretly, the Government members are so concerned for Meridian Energy that they are prepared to do that.

Progress reported.

The House adjourned at 9.55 p.m.