Resource Management and Electricity Legislation Amendment Bill

It will be helpful at this time in the debate to recite the sorry history of this Government’s approach to resource management law. Six years ago Labour’s very first act as a Government was to kill off a very constructive bill, Simon Upton’s Resource Management Amendment Bill. At that time, Labour Ministers said that the Resource Management Act was all honky-dory, that it was beautifully crafted and beautifully written, and that things were all just going very well. Well, is it not interesting that in the very last act of this dying, rotten Government, it has to revisit the cock-ups it made 6 years ago? In fact, it is interesting to note that over 12 of the changes in this bill are straight out of the amendments proposed by Simon Upton over 6 years ago.

I have been waiting patiently to hear a Government Minister get to his or her feet and apologise for stuffing things up, and admit the Government got things wrong, put people to extra costs, stopped roads from being built to deal with congestion, and stopped power stations being built. I have been waiting to hear a Minister say the Government has added millions of dollars of cost to people, and that he or she is sorry it got things wrong. But no, this arrogant Government does not know the word “sorry”. Its members will use whatever trick they like in order to try to avoid scrutiny of their mistakes.

I want to note, for instance, that the big change that the Minister in the chair, David Benson-Pope, promised in this bill was to get rid of de novo hearings in the Environment Court, and everybody said that he had got that wrong. Even in February the Minister in the chair was saying no, he had got that right, and it would work really well. But that provision has disappeared. He has had to concede that his most important reform in this bill was a dog and, appropriately, it has gone.

What is really worrying is the lost opportunity with regard to this bill. Every New Zealander knows that a shambles is going on in respect of Māori consultation and the Resource Management Act, but we hope that a Government will be able to see through that. We hope that a Government will be able to cut through that nonsense and let New Zealanders get on with creating the wealth, the jobs, and the infrastructure needed for our country to go forward. [Interruption] But the sad reality, I tell Mr Cosgrove, is that we will still have the Environment Court chasing the home of the taniwha, because of the PC brigade like that member of the Labour Party.

I was driving through Waimakariri last week, and what is really interesting about Clayton Cosgrove’s hoardings was that there was no mention of the Labour Party. The Labour Party just was not there. I can remember that; I can believe that.

💬 Clayton Cosgrove: You can’t read.

Did I not take my microscope? Does one need a telescope to be able to find the tiny little Labour logo on his hoardings? I do not blame Clayton Cosgrove. If I was a member of the Labour Party, I would be deeply embarrassed at the mess-up that Labour has made in respect of the Act. This bill will just make the problems of cost, uncertainty, and delays with the Act worse.

But there is good news. The good news is that help is on the way. In a few weeks’ time New Zealanders will reject this rotten, decaying Government and employ people with the wherewithal to get on and make the changes that are needed, so that we can fix the transport problems in Auckland, provide security of electricity for our homes and businesses, and let farmers get on with creating wealth for this country, without the politically correct nonsense that Labour would impose on them. The reform of the Act is absolutely critical to New Zealand’s well-being. We, more than any other country, depend on the smart use of our resources to create wealth. We want to be able to provide the sorts of changes that will make New Zealand prosper.

I am pleased to respond to some of that nonsense, because it really encapsulates the difference between what the Government has carefully done over the period since 1999 and the extraordinary contradictions we are already seeing in what National would offer to our community. I was a city councillor in Dunedin during the time of the last National Government, and I recall only too well the appalling “we know best” attitude that was shown by Dr Smith and his National Party colleagues.

💬 Hon Dr Nick Smith: How much did rates go up?

I can recall that Dr Smith was part of the Government, part of the executive indeed, that made the council and the community of which I was a part sell the Waipori power station. Dr Smith should not talk to me, or the Dunedin community, about talking to people. We have seen the same arrogant, unconsultative behaviour in terms of the development of the National Party’s policy. Labour inherited a shambles with the Environment Court in 1999, because of Dr Smith’s incompetence. Since that time we have resourced the Environment Court. It has reduced its backlog by 50 percent since 2000, and currently it mediates 80 percent of cases. We have put in new judges to cope with the workload that the court could not cope with because that member and his incompetent colleagues did not resource it.

One of the most satisfying things, as part of this process, is the way we have worked with local government—a way that Local Government New Zealand describes as an exemplary collaborative exercise. Is it any wonder that that level of cooperation could not be achieved with our predecessor in Government, National, because it was making cities sell power stations, and was even embarking on a lunatic proposal to privatise our roads? That member cannot talk to me or my community about working with people.

The most telling comments I can contribute to the debate are not my words, but come from two articles that were in papers in this country in the last 3 or 4 days. The first comments come from an article by a senior planner in Auckland, who is writing on behalf of the Environmental Defence Society. I will read just a few comments from that article: “The National Party’s policy proposals to ‘rebalance’ the Resource Management Act are a direct attack on people’s rights to have a say on what happens to their environment… That provision removes significant rights of people to protect their property interests and the environment. It is backward move… This is because National proposes to abolish legal aid for RMA cases, so there will be no financial support available for those without financial means… So what will be the result of these provisions if they are implemented? They will mean poorer quality decision-making, greater degradation of our environment, more procedural litigation and huge frustration in the wider community at the new system. This is in no one’s interests apart from second-rate developers who will be able to get their proposals approved more easily.”

💬 Hon Dr Nick Smith: What did Business New Zealand say?

Well, what did Business New Zealand say? I am afraid that Dr Smith has walked into that one, because the Business Council for Sustainable Development has written to me and said that it got six out of the eight things it approached us for. While Dr Smith is accusing Labour of bribing people, I can tell him that we do not bribe the editorial writers of the Otago Daily Times. I will repeat for him comments from the document I tabled yesterday. The editorial from last Friday’s Otago Daily Times states: “The Government wants faster decision-making for resource consents, more power for local councils to work with developers to speed things along, and national guidelines to avoid the conflicting standards between regions. National wants to go much further—too far, in fact … Under National’s proposals, we very much doubt whether, for example, the campaigns which succeeded in Lake Manapouri being saved from destruction, or Aramoana from smelter construction, would have been more than pipe-dreams. National’s proposals … are a bare-faced attempt to erase basic rights of dissent, while its measures intended to diminish the rights of local government in resource consent matters would actually extinguish a basic premise of the Act, which is that communities most affected by applications should have the principal say in decision-making.”

💬 Hon Dr Nick Smith: Just your mates.

That member cannot talk to me and the Government about mates when he is advocating a “chequebook wins” policy in resource consent applications.

The leader of New Zealand First often refers to “two tired old parties”. That exchange, first of all by Dr Nick Smith and then the response from the Minister, brings every use of that phrase to mind. I have been familiar with this Act since it was passed in 1991. When I hear Dr Smith making those very passionate comments, I think of the period between 1991 to 1999, when I saw one guiding step from the Government—namely, a coastal policy statement. Not one other item of real guidance went to councils throughout the country, who basically had to find their way through the planning stages from 1991 to 1999. It is no wonder, therefore, that many councils, although they are sympathetic to the present suggestions in this bill, are also very well aware, as I have already mentioned, of the high cost in terms of funding, staffing time, and, even more important, the community input that produced their plans. As has already been said, although the councils have been, under the auspices of Local Government New Zealand, generally sympathetic to this bill, in other ways they have reservations about how it will impact on the community.

For a Government that has prided itself, as it did during the passing of the Local Government Act 2002, on a high level of advocacy with regard to consultation, and that has talked about expanding the role of councils—I believe unwisely—so that they are now all things to all people, at a high cost to their ratepayers, to now come to the Chamber and suggest that it has adopted a different path, is rather unseemly. I too recall coming to this Chamber in 2002 and seeing a truncated attempt by the present Government with regard to the reforms advocated by Simon Upton. It was very, very strange, as I observed in the first reading debate, to come back and see how many of those ideas are inherent in this bill, but never acknowledged. Instead, we still have no real acknowledgment of much of the genesis of the ideas that are being expressed in this bill.

I know that many councils are friendly toward this bill and the suggested changes. They have yet to see the real teeth with regard to policy statements and national standards, which I have no doubt will be superimposed on what I have already stated as being a command and control approach to these matters. I would have hoped that for once in the course of this debate there would be a reasonable explanation by the Minister in the chair, David Benson-Pope, as to what the Government’s intention really was in bringing this bill into the House. I see it as being not much different from that envisaged by Simon Upton in 1999.

I say on behalf of New Zealand First that we do not support this bill. We recognise again the excellent work done by the Local Government and Environment Committee and the people who were involved in advising it, but this bill is not the answer. The time for change is yet ahead, and I look forward to being part of that process after the next election.

It is unusual for clause 2 of a bill, the clause that sets the date on which certain provisions will come into force, to be as significant as clause 2 of this bill. I want to talk about the significance of this clause 2. It relates to clauses 82 and 83 in Part 1, which deal with an idea introduced in 1999 by the Rt Hon Simon Upton. The idea was that it should be possible to seek a declaration from the Environment Court on whether a matter should have been notified by a council.

The Resource Management Act is very clear on the question of notification. It makes it clear that an application must be notified, unless the effects on the environment are minor. Even if the effects are minor, the application must still be notified if persons affected have not given their consent. The Supreme Court, in a very useful judgment just recently, made it clear that that minor effects test is the overriding one, and that if the effects are not minor one does not even go so far as to ask who might have to give consent; the public must have an opportunity to be heard.

Councils for some years have been taking a very strange view of “minor effects”. A number of projects have been declared to have minor effects, and have therefore not been notified—projects like big open-cast coalmines, coastal landfills, 13-storey buildings right next door to people who did not even know those buildings were going up, and the clearance of very significant areas of native forest. There has been increasing concern that the test of “minor effects” has been interpreted extremely liberally, and that people who should have been notified about a project have known nothing about it—but there has been no real redress.

To challenge those notification decisions, people have had to go to the High Court for judicial review of council decisions. Not only is that very expensive—most community groups cannot afford it—but it is also unlikely that the High Court would be able to issue any redress, even if it found that challengers were right. So the cases that have been taken to the High Court for judicial review have tended to be cases of wealthy businesses reviewing decisions on the applications of other wealthy businesses, rather than those concerning community groups and individuals, who have been shut out of the process.

Simon Upton proposed that instead of the High Court, the Environment Court was the court that should be able to consider whether notification decisions had been made in error. The Environment Court is used to considering environmental issues. It is familiar with the minor effects test, and it is accessible to people who cannot pay $20,000 first up before they even hire a lawyer.

The Greens strongly supported that provision of Simon Upton’s bill—unlike most of the other provisions, which we managed to knock out at the select committee stage. The select committee agreed to support that part of the bill, as well. But the bill came back to the House, sat here for 2 years, then that clause was taken out by the Labour Government in a Supplementary Order Paper to an earlier amendment to the Resource Management Act.

The provision is now back, in clauses 82 and 83 of this bill. The Local Government and Environment Committee added to it and gave the Environment Court powers to offer redress in situations where the public had been excluded, wrongly, from commenting on an application. But it is a pyrrhic victory, because clauses 82 and 83 will never come into force unless Cabinet chooses to pass an Order in Council.

That is the same trick Jim Bolger played on Winston Peters over the Overseas Investment Act. Mr Peters’ amendments were passed into law, and he did not notice until the time of the next Government—when the Greens pointed it out to him—that, in fact, his amendments had not come into force at all, but were waiting on an Order in Council as well.

That did not happen this time. I read the bill from the beginning, looked up the references in clause 2, and knew immediately where the Government was coming from. The Government argues that it is necessary to delay the coming into effect of those clauses because the Environment Court is too busy to hear such cases. It has promised that when the Environment Court is less busy, then that Order in Council will be passed.

Well, I am sorry, but I have to point out that the Environment Court is now meeting its deadlines. It is hearing cases within the time frame that has been set for hearing cases. In fact, in some cases it is offering a hearing date before the applicant is even ready to proceed, and the applicant is asking for a delay. A great deal has been done—and I have to give Labour credit for that—since the Labour Government came to power, to speed up processes in the Environment Court, by creating a new division, more resourcing, another judge, and so forth. That court is never likely to be less busy than it is now, so this is clearly just a tactic to make sure that that clause never comes into effect.

The Greens are not to be duped like that; we are not like Winston Peters. We do read the legislation, and we were aware right from the beginning that this was happening. I want to place on record our very great disappointment and concern that a good proposal like this has been put on indefinite hold by the Labour Government. But I also have to express my disgust at Simon Upton’s erstwhile colleagues in the National Party. After lauding all the things in his 1999 Resource Management Act Amendment Bill they are now totally opposed to this legislation, because it would give members of the public a real opportunity to exercise some control over councils that sometimes get just too close to developers.

Before we move on to speeches on the third reading, I would like to make just a few comments in response to Jeanette Fitzsimons’ very clear description of what is taking place within this bill in terms of amendments to allow for appeals on notification to go to the Environment Court. I think she explained the situation very well, in that while this bill does allow for those appeals to take place, it is unlikely they will ever occur in the future. I think that that is United Future’s position. We would probably rather see the Order in Council for appeals to transfer to the Environment Court never materialise.

Today I reviewed United Future’s position on this matter, going right back to October 2002 when I made a speech concerning the Resource Management (Controlled and Discretionary Activities) Amendment Bill, a member’s bill of Owen Jennings, and when we first committed to reform within the Resource Management Act. I made it very clear that United Future’s position was that we did not want to see the removal of appeals from the High Court. In fact, as I looked, I found that it was the Government of the day that removed that provision from the Resource Management Amendment Bill (No. 2), so it was certainly not keen to see that happen.

In this bill we really do have a great compromise between United Future’s position and the Labour Government’s position, as has happened on many occasions—unfortunately, not on some of the occasions when we would have liked to see it happen. Certainly, in this case we are pleased with the arrangement in this bill—where we have provision for the change to occur but a recognition that it is probably not in the best interests of the overall process for the Environment Court to have to deal with those issues—and we look forward now to the final passage of this bill through its third reading and into law.

As other speakers have said, this bill, and the time that Parliament is spending on it, have given an opportunity to try to fix something that many, many New Zealanders have been begging to have fixed for a long time. It has also been an opportunity to fix something that a huge number of New Zealanders—probably the vast majority of New Zealanders—do not even know is making their lives a misery. They are New Zealanders like the Grey Power members who are busy demanding that the Government renationalise power generation. They are people like those sitting in traffic jams right now, as traffic starts to build up in Auckland, and wondering why it is so hard to get what seem to them to be common-sense requirements to break the logjam in Auckland roading.

This bill, or what it should have been reforming, is affecting the people who are trying to meet their water rates, in places where there are water rates. It is affecting people who are struggling, and wondering how they can ever buy a house on their income when land prices have gone to a multiple of three or four times the average wage.

This bill does not touch on the basic problem that the Resource Management Act created. The Act’s intention may have been well meaning, but for years people have clung to the idea that all that was wrong with it was its silly administrators—that all that was needed to do was to tell the bozos in local authorities that they should not misuse its provisions. I have heard it said so often that there is nothing wrong with the Resource Management Act except that it is badly run.

But the Resource Management Act is fatally flawed, and this bill simply eliminates a small part of the difficulty for Government in relation to infrastructure. It eliminates some of the worst irritants, particularly for those major developers who will be able to afford to attract the attention needed to get their developments called in under this legislation, but it leaves irritants in place where the Act most needs reform—that is, for the everyday developers, who are probably individuals maybe once or twice in their lifetimes needing to make some change in their land use.

This bill should have been absolutely panned by every Māori member of this Parliament, because it simply confirms that the Government regards article 2 of the treaty as an empty nonsense. The bill continues to entice Māori into using their iwi consultation rights, when the very existence of those rights is a denial of the undisturbed use, possession, and power to control the use and disposition of land that article 2 promised them. Instead of Māori being here to ask for the legislation to be repealed, and to ask for the property rights they were promised to be restored, they have been suborned into being part of the process of attacking everyone else’s property rights. Māori have been gulled into being part of the process by which busybodies and newly-minted planners impose their ideas of how property should be used, on the people who actually wear the costs.

If this bill had been doing what it should have been doing, we would have seen house prices falling as sections became available, without the imposition of years and years of delay, and years of complaint from people who want the status quo. The absolutely natural tendency of humans is to want the status quo all around them, but also to have the freedom to do what they wish on their own property. The whole idea of property rights promised in the treaty was that within one’s boundaries one could do what one wished, even if the authorities did not like one’s disturbance of the status quo.

What New Zealand has done with the Resource Management Act is to re-communalise property decisions, and we are paying an enormous price for it. We are paying for it with our risks of electricity shortage, and we are paying for it in our roading paralysis. My executive secretary 35 years ago was buying the land to complete the Auckland roading network. He looks at it now and sees that the roads are still not built. That is not just because of political paralysis; it is because of the absolute despair that people feel when they know they will have to go through this palaver.

I heard from someone working in the authority responsible for fixing up that death-dealing road between Hamilton and Auckland that the authority did not dare build a new bridge, because officials could not stand the thought of the consultation processes they would have to go through in order to build it. It was considered to be far better to build wings on the existing bridge—but less safe, less long-lasting, with less capacity, with millions more in costs, and with more disruption while being built—than to go through the hassle of having to apply to build a new bridge, which would have gone alongside the old bridge. The Government should be absolutely ashamed that it has not moved to make that sort of outcome impossible.

Sure, Supplementary Order Paper 389 is now doing the sensible thing of involving iwi consultation—at the risk of mysterious taniwha being discovered—and restricting it to the planning stage. But, of course, plans can be changed—and need to be changed frequently—so we will not see an end to that little irritant in the relationship between Māori and Pākehā.

Unfortunately, this bill is a huge missed opportunity. There are sensible things in it but what has been missed out is of much greater importance, so ACT will be obliged to vote against this part of the bill in order to mark what has been lost.

on behalf of the Minister for the Environment: I move, That the Committee divide the bill into the Resource Management Amendment Bill (No 5) and the Electricity Amendment Bill (No 3), pursuant to Supplementary Order Paper 388.