Urgent Debates — Whangamata Marina—Minister’s Intervention

I move, That the House take note of a matter of urgent public importance. What occurred last Tuesday, when Chris Carter overruled the decisions of the Thames-Coromandel District Council and the Waikato Regional Council, an agreement signed by the Department of Conservation, and a decision of the Principal Environment Court Judge was an outrage. Every New Zealander in this country should be concerned about and up in arms at that dictatorial decision, which brings the whole process of resource decision-making in this country into disrepute. It is a sign of the dictatorial, arrogant Government, which National wants to bring to account this afternoon.

The resource consent for the Whangamata marina was lodged back in 1994. The application was considered after public notification and the hearing of submissions by the Thames-Coromandel District Council and the Waikato Regional Council, and both those bodies—those locally elected bodies—gave approval for the marina. In 1998 the Department of Conservation negotiated an agreement that was signed by Mr Greg Martin, the regional conservator, with the Whangamata Marina Society. After 7 years of machinations and 27 days of hearings, the Environment Court concluded that the project was sound and met the requirements of the Act, and in October 2005 it gave approval for it. What is it about Chris Carter and this Labour Government that means they believe they have the right to overturn the local council, the regional council, their own department, and the Environment Court? What sort of arrogance now pervades the Beehive that means the Government can ride roughshod over our courts and our democratically elected councils?

Just prior to the election, the Minister said to the Local Government New Zealand conference that Labour believes in local people making local decisions. Why, for goodness’ sake, did he say that prior to the election but afterwards ride roughshod over them? It is also interesting to note that the Prime Minister said to the Local Government New Zealand conference in Christchurch last year that Labour believes in local people making local decisions. Her word, too, has been broken with this appalling decision. But the issue is not just with regard to the councils. It is even more serious in respect of the courts. This decision was not made by some lowly official within the Environment Court; it was a decision of the Principal Environment Court Judge—the top judge in New Zealand in respect of environmental issues. What sort of mickey mouse outfit do we have in this country when we cannot have confidence in the decisions of New Zealand’s highest court?

When we asked the Minister in the House this afternoon how many days of submissions and how many days of evidence he had heard to match the 27 days that the Environment Court had heard on this matter, he told the House he had received some emails. Then the Minister had the gall to say that the majority of people in Whangamata oppose the marina. What evidence does he have of that? My colleague Sandra Goudie pointed out that it was not a survey. The Waikato Times had phoned every single household in Whangamata, and found that 66 percent of people supported the marina and 20 percent were opposed to it. So we demand to know from the Minister this afternoon where the evidence is to back up his claim that the Whangamata people oppose the marina.

To give the House some idea of the political machinations that have gone on behind the scenes—the sort of manipulation that Chris Carter and his Labour mates will do in order to override proper process—I will read out to members what was written in an email. Bob Harvey—a former president of the Labour Party—stated that he had “confirmed that the Minister has the balls to stop the marina going ahead.” That was 3 days before the Minister said that he had made his decision. The email goes on to state: “He has asked for support from those that will back him. Please drop Chris a line”—members should listen to this—“so he can say the majority of people who contacted him will support his decision.” That is an appalling manipulation. That is the sort of thing that has gone on in the background in order to override 27 days of hearings in the Environment Court.

Resource consent decisions are too important to be left to some sort of popularity contest. They should be based on evidence and robust judicial processes. If the Minister wanted to uphold the process, there were other perfectly legal options for him to pursue. I asked him in the House this afternoon why he did not use the very specific power in section 119 of the Resource Management Act to refer the case back to the Environment Court. The Act states that the Minister of Conservation, if he or she is concerned that all issues have not been taken into account, can do just that. Chris Carter chose not to use that power. Why? Because this was a political decision to play to Labour’s Green and Māori mates—it had nothing to do with good resource management, and nothing to do with the law. Furthermore, of course, the Minister had the power to appeal the decision to the High Court, but he did not choose to do that, either.

If we look back over the 9 years that National administered the Act, we will find that not once, despite hundreds of applications, did any National Minister overturn a decision of the Environment Court. We can imagine the uproar if a National Minister had overturned a resource consent that had been approved by the Environment Court—Labour members would have been protesting and rioting. But when Labour does just that, somehow it is justified. The truth is that Chris Carter has abused his powers. He has got it awfully wrong; he should resign. He would be far better as the Minister of Conservation in Robert Mugabe’s Zimbabwe Government.

It is not my intention to canvass all of the issues that were properly considered before the Environment Court. But I draw attention to three particular facts that the court noted. The first is that Chris Carter would have us believe that the whole estuary is to be taken up by the marina, although it actually takes up 4 hectares of the 440 hectares, or less than 1 percent. The second is that the Minister said he made his decision on the basis that the salt marsh was extra significant. Well, that is not what the Environment Court found. In fact, Chris Carter’s own department stated in its report that the salt marsh was not of great significance, that it was significantly deteriorating, and that it would recommend that a better investment in the protection of salt marshes would be rehabilitation, with money from the marina society, for one of the salt marshes further north. The third point I note is that the Minister has somehow pretended that the marina is a threat to the surfies who enjoy Whangamata Beach. Yet, the official report of the Waikato Regional Council makes it plain that there is no risk; in fact, it notes that the marina would increase the tidal flows and increase the security of the beach and the harbour.

What really worries me about this issue are the underlying currents that go with the Minister’s decision. This is part of the Government hating success. It does not like people who work hard, save their money, buy a boat, buy a yacht, and are able to enjoy that which is special to New Zealand. This decision is a sick part of the tall-poppy syndrome that this Government represents: it does not like people who use marinas, and it does not like people who have boats.

I also say that this decision is part of a culture where Māori and iwi have used the process to lobby the Minister behind the scenes, rather than going through the proper process of the courts. I say to members on the Government side of the House that if iwi had a concern, the proper place to express that concern was before the courts. It is an absolute disgrace, frankly, that it took 13 years for this resource consent to be processed. What sort of country is it that when 200-odd genuine boaties want to improve the facilities in their community, it takes 13 years to get a resource consent? Do the Minister and the other Government members believe 13 years is a reasonable timetable to make a decision in? What do they say about the $1.3 million that that community group has had to try to invest in order to bring about an improvement in its community?

I draw attention to the public meeting that was held in Whangamata on Saturday. The Government was invited to attend it. There are 50 Labour MPs, but not one of them had the courage to front up to those 380 people and explain the decision of their Minister. An absolutely unanimous vote of no confidence was passed in that Minister. The people of Whangamata call on this Parliament to uphold the decision of the Environment Court, and they call on this Parliament to remove the power that can be abused by Ministers like Chris Carter.

We on the Opposition side of the House say the Resource Management Act is in desperate need of reform. We tabled a substantial reform bill way back in 1999, arising from the Owen McShane review, which recommended that the ministerial veto be abolished. We say again today that it should go and that National will repeal it at the first opportunity, in order to stop Ministers like Chris Carter abusing their powers.

This decision goes to the heart of the integrity of good government. Do we have respect in our courts? Do we trust our locally elected councils—the regional councils—to have the right process for dealing with those sorts of decisions, or are we to have a cheap process where Chris Carter and a few of his political mates, like Bob Harvey, can override 13 years of proper, robust, judicial process? National says that Chris Carter has abused his powers. National says that the Resource Management Act must be reformed. National says that the Labour Party owes an apology to the people of Whangamata, who have beavered away for years to try to improve the facilities in their community. And National says that we must have respect for the proper process of the Environment Court, and not have Ministers ride roughshod over that.

We have a national coastal plan. We have regional coastal plans. The Minister has the power to approve both of those plans. The Minister has extensive powers to appeal decisions that the courts have made concerning decisions that affect him. But the Minister should not have the right to be able to do what he did last Tuesday. I call on every member of the House to stand up for integrity in Government, to stand up for proper process, to stand up for some integrity in resource decision-making, and to overturn the decision of Chris Carter, who abused his powers last Tuesday.

As the Minister of Conservation I am charged under the Resource Management Act with protecting the public interest in the spectacular coastline of New Zealand. As part of that responsibility, which I take very seriously, I am required to make the final decision on restricted coastal activities under the Resource Management Act, including those activities that will occupy public space on the coast and involve large-scale dredging or the construction of structures.

My office gets roughly 25 of these applications a year, and I have declined just one—an application to build a marina in Whangamata Harbour. I turned this application down because, having looked at the issues involved in the proposal, the way the Environment Court approached them, and the evidence, I was not satisfied that allowing use of the public’s coastal marine area for that development would be appropriate in terms of the Resource Management Act. I am conscious that in making this decision I am going against a recommendation of the Environment Court, but the law requires the Minister of Conservation to exercise an overall judgment on certain coastal development matters that is distinct from the court’s. I have fulfilled my statutory duty and made an overall judgment in this case.

The reasons for my decision are twofold. First, the marina requires a salt marsh to be turned into a car-park. The value of that salt marsh to the area is heavily contested. Three experts before the Environment Court said it was valuable and one—the expert put up by the applicants—said it was not. The Environment Court in its judgment highlighted the difficulty it had in coming to a decision about the salt marsh. In the end the court favoured the applicants; I did not. My judgment was that the salt marsh is valuable and important to the ecology of Whangamata Harbour.

My second reason for declining the application was the impact the proposal would have on Māori and the shellfish beds in Whangamata Harbour. The marina would require extensive dredging. Initial construction would remove up to 167,000 cubic metres of seabed. A further 6,000 cubic metres per year would have to be removed on an ongoing basis. The marina would require the construction of a channel that would cross Whangamata Harbour and sever the shellfish beds. Once again, conflicting evidence was presented to the Environment Court on those matters. The court chose to go one way, and it was a direction I could not agree with. It is my judgment that there would be an inappropriate impact on the shellfish resource and on local iwi who use the area. The scale of that impact is evident by the fact that the iwi have been consistent in their opposition to the marina proposal from the start. What is more, they have been unified by their opposition—a sign of how deeply they feel about Whangamata and its significance to New Zealand. We need to respect those views in this House and also acknowledge that a great many members of the public share them, as well.

Since announcing my decision I have seen hysterical claims that I have subverted proper process and committed a constitutional outrage in turning down this application. I utterly reject those claims. The proper process is laid down in law, and the law requires me to be the final decision maker on restricted coastal activities. Each and every Environment Court judgment on restricted coastal activities that comes to me comes as a report and a recommendation only.

Parliament’s intent in the Resource Management Act is quite explicit: the Minister of Conservation must make the final decision. The courts themselves have required that of the Minister. In Hastings District Council v Minister of Conservation, in 2002, the High Court stated: “If the Minister was not, lawfully and properly, able to depart from the recommendation of the Committee or Environment Court, there would be no point in vesting in her the ultimate decision-making power, as s 119 does. Although the Minister must take into account the recommendation of the Committee or the Court, she is not bound by them. She is not merely a rubber stamp. She is able, indeed she is required, to exercise her own judgment.” I have done just that. That ruling was from the High Court of New Zealand in 2002. I have followed the proper process. I have upheld the law and I am quite prepared to consider further advice from the courts should this issue proceed to judicial review and return to me. It is not I who is subverting proper process or committing a constitutional outrage; it is those people like National MP Nick Smith, who is now seeking to take the extraordinary step of retrospectively changing the law to allow this proposal to proceed.

But just what is Nick Smith’s interest in this matter? His own involvement in it as the Minister of Conservation in the 1990s is very murky, indeed. He has made a great deal of noise about the fact that the Department of Conservation did not take part in the Environment Court proceedings on the marina proposal. But what he has not told the people of New Zealand is that the department was opposed to the marina because of its environmental impacts, and that it lodged an appeal against the Waikato Regional Council’s approval of it in 1997. It was only after pressure was put on the department by its Minister in 1999 that the department withdrew its appeal and settled with the Whangamata Marina Society. The Minister at the time was, of course, none other than Nick Smith. I challenge him to make it clear to this House today why he pressured the department to withdraw from the process and exactly how he was fulfilling his responsibility to the public, on whose property this marina is to be built.

Members of this House need to remember that the coast is not privately owned. It is a resource that belongs to each and every citizen of this country, not to just a few. It is a resource that New Zealanders value, and it forms a part of our national identity. We are an island nation, and countless New Zealand families either live or holiday on the coast. Most of us have a favourite beach or piece of headland. Most of us care deeply about what happens there, whether or not the National Party accepts that.

I suspect that this is the reason why the previous National Government, under Jim Bolger, passed the Resource Management Act with the ministerial decision-making power intact. I know that it is the reason why the power has been retained in every subsequent amendment to the Act. Given the extent of public interest in the coast, it is entirely appropriate that a publicly elected individual, accountable to the people, makes the final decision on what will happen to the coast—not the courts. As the courts have already said, it is entirely appropriate that that person can say no to the applications; otherwise, what purpose is served by his or her having a power of decision in the first place?

Although I did not take into account wider public concerns about what is happening on the coast in my decision on the Whangamata marina, I am aware that the passions the issue has invoked are common to many other proposals. Considerable anxiety has been expressed by communities around the country about the amount of development on the coastline, and the impact it is having on the character of our coast and on the traditional Kiwi lifestyle.

Because of that anxiety, I initiated a review of New Zealand’s coastal policy statement shortly after becoming the Minister of Conservation. The New Zealand coastal policy statement is the only national policy statement issued under the Resource Management Act. It guides councils in their decision making about what types of activities will be allowed, controlled, or prohibited in coastal areas. It has been in place now for the better part of a decade. In that time the pace of and trends in coastal development have changed considerably. I believe it is prudent to now re-examine how the policy is working and what we want for our coastline. An independent review of this policy has been completed and policy development is now under way. I expect to be able to release a new draft coastal policy statement for public consultation later this year through a board of inquiry. The board of inquiry will consider public submissions and hold hearings nationwide. I intend to give it broad terms of reference. That way, all New Zealanders who care about the coast can have greater confidence in the system, which will ensure that the development of the coast is sustainable.

I care passionately about New Zealand; I care passionately about our coastline. I am proud to be a Kiwi, and while I am the Minister of Conservation we will be looking after this country of ours.

Given the claim made by the Minister of Conservation that in 1999 I interfered in the process, I seek leave to table the agreement made between the Whangamata Marina Society and the Department of Conservation in 1998.

The ASSISTANT SPEAKER (Ann Hartley): Leave is sought to table that document. Is there any objection? There is objection.

New Zealand First has listened to both sides of this argument. We are happy that the law has been observed both by the Whangamata Marina Society, over many, many years, and by the Minister. It is one of those situations where we are not particularly happy with what has been done, but we cannot go up to Whangamata, as National Party members have done, and rabble-rouse and try to stir up trouble in an irresponsible way. We are content to wait for a judicial review, which we are sure will happen, and which the marina society is seeking. We are happy to wait for the views of that review to be known.

We also believe that it is important to understand that this Parliament—and I am talking now about Nick Smith’s proposed bill—does not change retrospectively a decision that a Minister has made lawfully. Whether or not we agree with that decision is another story altogether, but there is so much huff and puff going on at present that I think it will do people good just to wait and see what other people have to say about this situation.

We understand that the marina society was more than prepared to address the issues brought up by local iwi, and that it was doing that willingly and happily. We understand that the local marina society was happy to address those issues that were of concern to the surfers. We understand that all of those issues would have been addressed by the marina society. But we do accept that this is not on private land. This is on public land, and we accept that a higher barrier of proof must pertain in this situation.

The Minister has used his judgment in this case. Personally, I would probably have gone along with the Environment Court, but New Zealand First does not accept the stance taken by the National Party.

💬 Hon Tau Henare: Don’t talk rubbish.

R DOUG WOOLERTON: The member opposite says that I am talking rubbish. I am taking a responsible view, as is New Zealand First, as opposed to the stirring of the National members who are saying that democracy is being overturned when it is they who, over a number of years when they were in Government, were party to putting into law the vetoes that are being used by the Minister today. This is not something new; it is not something that has just happened. If members go back to the days of Simon Upton, Nick Smith, etc., they will see that the things National members are arguing against today are things that they put into place years ago. I, for one, do not know how Nick Smith can pretend in front of an audience in Whangamata that he is more pure than the driven snow when National is largely responsible for the legislation that has led to this decision. It is National that accepted that a Minister should have the power of veto, and New Zealand First is not denying that.

Local government, as we all know, works on the basis that its responsibilities are devolved by central government, and we do not have a lot of checks and balances on that. One of the things we do have, and that we will fight to retain, is the power of veto. I think it would be a very sad day if central government were just to say that it will walk away from its responsibility, that it will fire shots at local government, that it will stir up trouble locally, but that it will not accept the final responsibility. New Zealand First is not of that view. We are prepared to wait for the judicial review that we know is coming, and we will speak more on this subject then.

The Greens are very pleased that someone has finally made some attempt to defend our coastline from inappropriate subdivision and development under the law, using the law that we have available to us to do that protection. Increasingly, favourite and beautiful holiday spots—places where the public can go to camp, to barbecue, and to picnic—are becoming little suburbias. And they are not little average Joe suburbias; they are little suburbias for the wealthy and the privileged. That is not what part of being a New Zealander means. These are not the values that New Zealanders hold for the coast.

Increasingly, we see areas like Ōpoutama in the Māhia Peninsula, for example, becoming little subdivisions with a tiny little space left for those who holiday there regularly. There has been the development of Whitianga and Pāuanui, and there have even been threats to take more camping grounds off the New Zealand public, and to enable them to be privatised so that only the wealthy can get access to those coastal areas. There is increasing privatisation of public space and of the areas of land that New Zealanders hold dear to themselves and have done so for all the time we have been in this country.

Our coastal areas are incredibly important. They are pātaka kai, they are areas for recreation, and they are incredibly important parts of our identity as New Zealanders. Yet there is an increasing encroachment on them by the wealthy and by those with the privilege to privatise those areas. It is so shameful of National to take a position in support of the wealthy against the rights of the New Zealand public.

The issues at Whangamata are complex and I do not pretend to know all of the detail about them, but at the heart of the issue is the protection of our fragile coastal ecology. For example, the salt marshes have been talked about, and whether we should have 205 private berthing areas for those wealthy enough to own boats to be able to float around that area, and have car parks so that they can drive their cars to their boats and enjoy the area, whilst the thousands of people who use that area now for recreation—the ordinary families of New Zealand from around that area who use it for their recreation today—are left out.

After the foreshore and seabed debate, which was a terrible time for this country, both the Government and National refused to enable Māori customary rights over some parts of the foreshore and seabed. They argued that they did so because they did not want Māori to privatise the foreshore and seabed. They did not want Māori to own those areas, even though the opportunities for doing so were extremely slim and the law could have been fixed to make sure private ownership never happened. They argued so strongly that those areas were for the New Zealand public, for everyone to picnic at and to take their families for a swim. Yet National now says: “No, actually, some parts of the coast can be privatised.” When Nick Smith talked about the foreshore and seabed in 2003, he said that the foreshore should not be privatised by stealth and that it should be protected and managed for the benefit of all New Zealanders. That is what he said about the foreshore and seabed. What is he saying now? He is saying that wealthy people are entitled to own parts of that area—that the people who can afford to do it should be able to buy parts of the foreshore for their private and personal use. Where is the consistency in that? It is a disgusting position for that party to take after its staunch opposition on the foreshore and seabed.

All the Greens have ever said is: “Be consistent, at least. Have a principle, at least.” We opposed the foreshore and seabed legislation. We did not want the foreshore and seabed to be privatised either, by anybody, and we had options for making sure that would not happen. In this House today we maintain that same position. That coastline should not be privatised, and we should increasingly protect the coastline from privatisation. We maintain a consistent position. What do National members do? They change their minds depending on who has their ear at the time. It is a terrible disgrace for this House.

The Greens believe that the Minister of Conservation has exercised his statutory powers properly and carefully, and whether or not we agree with his final decision, the fact is it is a legal power that he is able to exercise, and he has exercised it rightfully. It is absolutely critical that somebody considers the matters of national importance that are part of the Resource Management Act. We need only look at section 6 of the Resource Management Act to see that as a matter of national importance we must protect the character of the coastal environment from inappropriate subdivision, use, and development. Yet that very strong principle for the protection of all New Zealanders has been abused in the past, and at some point a line must be set and a decision made that we will protect our coastline from private purchase. We will protect our coastline for the benefit of all New Zealanders. I am strongly in favour of the Minister’s decision, because he has done that. Let us just hope that this sends a strong signal out to our community that someone is prepared to defend our public rights to our coastline, because somebody has to. The Minister’s power must be increasingly used, otherwise we will find ourselves in situations, as across the globe, where the wealthy and people with access to resources—by whatever means—can get access to our coastal environment and ordinary New Zealanders are left out in the cold.

We are very proud that the Resource Management Act has finally been used for something constructive that will protect the interests of the people of this country. There is no point having national guidelines or national standards if they are not applied, and the Minister of Conservation has done that. A strong statement about the protection of our coastlines was made during the foreshore and seabed debate. It is timely that it is applied. If that is the principle we apply in this country—that it must be protected for the public use—then it is absolutely critical that nobody gets extra privileges just because they have a bit of extra money. The Greens believe that the right decision has been made, and we are very pleased to support it.

I raise a point of order, Madam Speaker. I am concerned, and I want to seek leave for this House to note its concern to the Minister that he has not even bothered to stay in the House to listen to the debate, even in respect of his coalition partner.

The ASSISTANT SPEAKER (Ann Hartley): The member will be seated. That is not a point of order.

I am entitled to seek leave. I seek leave for this House to pass a motion expressing its concern that the Minister—

The ASSISTANT SPEAKER (Ann Hartley): The member will be seated. The member knows very well that he is not to refer to members being or not being in the House. He knows that very clearly.

First of all, I would like to express my thanks to Madam Speaker for allowing the Minister’s decision to be debated in the House today, because that is just and proper. We are, at the heart of this issue, looking at an unprecedented, deliberate veto by the Hon Chris Carter that overturns a decision or a recommendation of the Environment Court. In response to the Green Party members, when they talked about “no one”, I ask: does that include a duly convened court of law? Why do they conclude that wisdom resides in one single person, to the exclusion of an entire community, an entire process, and a properly convened court of law?

Central to this issue is justice. Surely the reason for being here, the raison d’être for this Parliament’s existence, is to uphold the standards of justice in this country. The people of New Zealand elect us as a Parliament to ensure that the system is fair and just, and in this particular situation there is no doubt whatever in my mind that the result that has been arrived at is completely unjust. We should be the ones who take it upon ourselves to guarantee justice to the citizens of New Zealand, and the Minister’s actions, I believe, violate that key principle.

Let us consider the facts as we know them. The Whangamata Marina Society has followed due process, a process of law that was laid down by this Parliament. The process has taken no fewer than 14 years. I repeat: 14 years of effort has gone into it. It has cost $1.3 million and all of that culminated in the decision of the Environment Court, headed by the specialist in this area, the person who has the responsibility for the decision and who made a decision, I believe without fear or favour, as an independent member of our judiciary, which, under our constitutional rules, is, of course, independent of Parliament. By any definition that we can imagine, it was a thorough process. Every relevant fact and, I am sure, many irrelevant facts were taken into consideration. The views of all were considered. There was analysis, dissection, and study. Scientific tests were carried out ad nauseam—one could say, when considering that it was a 14-year process, to the point of exhaustion—firstly by the local territorial authority, and then all over again by the Environment Court.

Everyone had a say: local citizens, iwi, and the Department of Conservation—which, of course, is the Minister’s very own department—and they had expressed their contentment with the marina. As has been outlined to the House earlier, the Department of Conservation actually entered into a contractual arrangement, saying that it would no longer oppose the marina. The court finally made its decision, which was, of course, that the marina could and should proceed. So it seems to me to be an almost capricious response that the Minister has decided to exercise his reserve power and veto the decision, following that whole process. How can that be just? How can that be fair? How can that be right?

The Minister’s response in the House today was simply to say that he followed the right procedures and had the legal ability to overturn the court’s decision. Therefore, as happened with the Dominion Post and TV3 in relation to the cartoons of Mohammed, and as happened with the “Bloody Mary” episode on South Park, he basically said that because he had the right to do it, he would do it. I remember full well that on the occasions I have mentioned the Minister, Chris Carter told the media—it was on television—that just because one can do something, that does not mean one should do it. I think in this case he has actually gone against his own principle and violated that. It is not a good argument to say that he followed the right process and he has the authority to do something, so he will do it. Chris Carter needs to be able to demonstrate objectively, in relation to the facts of the matter, that indeed he reconsidered the court decision.

The Minister should be able to spell out to this House, which he has failed to do, exactly what his grounds were. Where was the Environment Court wrong? Where were the local people wrong? What new considerations did he bring in? As has been pointed out, even if the Minister had some justifiable concerns about the marina, why did he not refer the matter back to the Environment Court? It seems to me that it is unwise to give the Minister a veto power in our legislation, but as long as we have it, it should certainly be the very last option and every other option should be looked at first. Otherwise, we come to the situation where literally one person has the ability to overturn a decision that has gone through a 14-year process.

In a question to the Minister today, I drew attention to the fact that recently a court in New Zealand has ordered the Rt Hon Winston Peters to pay costs of $30,000—

💬 Bob Clarkson: $40,000.

—$40,000—I beg the member’s pardon; I meant to say $40,000—to Bob Clarkson, now the member for Tauranga, which was actually a 50 percent contribution to the costs of $80,000 the member had incurred in defending an action against him. Well, fifty-fifty means just that, and there is another injustice here. It is the fact that, as I mentioned earlier, the society spent $1.3 million, and that money is down the drain. That money, which was spent in good faith following the law of this country, has gone down the drain. It is a significant loss by any standards, and I think that is quite wrong.

We also need to ask ourselves where the Minister’s decision leaves the community of Whangamata. Is it, alone amongst the coastal communities of New Zealand, to do without a marina? Is that what the decision means? I believe that it does mean that. I believe it means that for all time, unless we do something about it as a Parliament, there will be no marina in Whangamata. If the Minister disputes that and says that there is an alternative site, then let him tell us where it is. Let him define exactly an alternative site that would satisfy his environmental concerns, so that the people of that community can have a marina. Why should they be denied what so many other people, in virtually every other coastal community in New Zealand, have been given? Why should we separate them out, as it were, for special, negative treatment?

Or are the people of Whangamata now to go back and start the whole process all over again, on an alternative site? Are they to take another 14 years of effort and spend another $1.3 million? I would ascertain that, allowing for inflation over those 14 years, it would cost at least $2.6 million. Is that the only option that the decision leaves them with? I think it probably is. That is the hard reality, and I do not think that it is fair.

United Future will therefore give its support to the member’s bill in Nick Smith’s name, which attempts to overturn the Minister’s decision. I know that in the normal course of events we do not like retrospective legislation, but I want to draw the attention of the House to the bigger picture, which is that we are here in the pursuit of justice. We should look at the decision objectively and say that we got it wrong, that it is a totally unjust result for the people of Whangamata, considering all the effort they have put in, and that we should revisit the decision.

The Government itself should also think about rectifying the situation. It has the ability to bring a Government bill to the House. We do not even know whether Nick Smith’s bill will ever come out of the ballot. In contrast with that, the Government has a clear, straightforward opportunity to bring a bill to the House and to overturn the decision. I totally agree with the statements of the Prime Minister and of Chris Carter during the election campaign that this kind of decision should be devolved to a local community. That is central to the political philosophy of the party I represent, United Future. We believe that local communities should be responsible for local issues, and that it should not be acceptable to the House or to the country for a single human being to come along and say he or she knows better, is wiser, and has access to more information than the local community. None of that stacks up to any decent analysis. So I say to the Government that I think that it should act in order to fix this matter. I know there would be some political embarrassment associated with overruling one of its own Cabinet Ministers, but, frankly, I believe that justice demands no less than to do that.

We come to the House today to commend the long-term commitment of Hauraki Māori to protect the coastline in the public interest of the community of Whangamata. Their actions speak to us of some key values that should resonate throughout the House: of kaupapa kaitiakitanga, of manaakitanga, and of respecting the covenant of Te Tiriti o Waitangi. Today we acknowledge the commitment and perseverance of the Hauraki Māori Trust Board, of Te Kupenga o Ngāti Hako, and of other iwi groups that have fought a valiant battle to preserve the mauri of the natural environment and the cultural heritage of their rohe. Their submissions and appeals have played a huge part in informing the Minister’s decision. They argued that the harbour would be polluted, that access to shellfish would be restricted, and that other kai moana would be destroyed. The Māori Party congratulates those groups.

We remind the House today that the process that members signed up to is the same process that they are now criticising. Although we do indeed agree with the outcome of the decision for the people of Whangamata, we must make it very clear that we do not agree with some members of the House who have said that the Minister in some way subverted that process, when indeed he followed the process to the letter of the law. There was always a section in the law that enabled the Minister to have the last say. He followed that process, and here we are today. We have a saying in te ao Māori: e kore te pātiki e hoki ki tōna puehu—the flounder never goes back to where the dust has become unsettled. That reminds us that we should not necessarily revisit policies that all members—I was not here at the time—were the architects of. Having developed the process, and then having encouraged people to follow the process, it is somewhat ironic that in the Chamber today we are hearing members speak with much rage and indignation about the process being overturned.

We do, however, have some very real concerns about whether the issue was a legal or a moral dilemma. We need to ask whether the means justify the end. Did the Minister anticipate the upheaval that has resulted following his decision? Did the Minister anticipate that the Environment Court would turn the applicant down? We have heard reports of—

💬 Sandra Goudie: So you want to talk about the foreshore and seabed?

We will come to that. We have heard reports of racist abuse and racial slurs being cast throughout the community. That is not an outcome that any of us would have anticipated. Is the decision on the Whangamata marina part of the Government ethos of one law for all? The last time it made a decision like that, Māori people suffered. This time it is Pākehā folk from Whangamata who are suffering, except for the surfers, environmentalists, and ecologists.

I ask members today to cast their minds back a couple of years to another controversial decision, which was made by other Ministers, to overturn a Court of Appeal finding. It was not very long ago, in June 2003, that the Court of Appeal released a decision that the Māori Land Court had jurisdiction to determine the status of the foreshore and seabed under Te Ture Whenua Māori Act 1993 and the Māori Land Act. Tangata whenua have always enabled others to enjoy access to the foreshore and seabed, and that fact should have been appreciated. Instead, the Prime Minister and the Attorney-General at the time chose to intervene and to deny Māori due process. The rest is history. I had to laugh, when listening to the Minister’s speech, at his faint rebuttal when he said that the marina decision was in the interests of Māori. How lovely! Perhaps we can count on his support when we submit our bill for the repeal of the Foreshore and Seabed Act of 2004 later this year. [Interruption] It is funny that I did not hear him say the same things a couple of years back.

We applaud the decision this time at Whangamata. We commend the way that it has drawn public attention to the loss of coastal habitat, the increased sediment, the contaminant levels in the harbour, and the impact of that on the well-being of the people. Coastal areas have always been rich sources of resources for tangata whenua. Coastal iwi have consistently followed management practices that both established and enforced harvesting limits, and also maintained the health of the ecosystem on which the resource is dependent. Coastal habitation sites like Whangamata are absolutely vital to the identity of iwi, as well as being something of a cultural icon to surfers, ecologists, holidaymakers, and New Zealand families.

The Minister has made a very positive decision, which reflects the influence of indigenous, holistic thinking. However, we fully appreciate that the Whangamata Marina Society will be reeling from the economic effects of lost opportunity, and we hope very much that the Government will consider issues about repayment to those people.

The Minister did get it wrong, and I will tell the House why he got it wrong. The Whangamata marina case raises a deep question about the principles of Government. In short, it was wrong in principle for Minister Carter to overturn the decision of the Environment Court to allow the building of the marina. It is not a case of whether the marina is good or bad; it is a case of whether the Minister should have intervened.

A fundamental principle of law is certainty. People should be able to know what the law is, that it is predictable in its application, and that they should be able to rely on the decisions of the courts. The reasons for that lie at the heart of modern society. People need predictability in order to be able to make their own decisions. If the rules cannot be predicted, investment will not take place. Orderly Government will fail. That is precisely why the divine right of kings was overthrown. The issue was not only that it was unrepresentative; the principal reason was that decisions were likely to be capricious. Those are the words of my esteemed colleague Dr Wayne Mapp.

Dr Mapp goes on further to say—and I fully support his words—that that is exactly the problem with regard to the Minister’s decision about the marina. What is the point of preparing an extensive case for the court, and of having a hearing lasting 27 days and costing many thousands of dollars, when the decision of the court counts for nothing? The Minister takes a few hours, takes only one side of the argument, and then turns his thumb up or down—in this case, down. He actually stated, in a document I have here, that he has disregarded any other correspondence or communications he received on the marina that were not considered by the court in the statutory process, but I for one do not believe that for a moment. I do not think that anybody in his or her right mind could do that—particularly after the Minister tried to display the many emails he is using to try to justify the stance he has taken.

The Minister has argued that he is simply discharging his duty under the law, and that the law was passed by National in 1991. But a law that gives such powers is inherently bad, and blaming National for passing it—as the Minister has attempted to do on many occasions—does not make it any better. That does not get to the core issue, which is the fundamental issue of the right of veto.

National recognised that issue in a review of the Resource Management Act in 1998. In hindsight, it was clear that it was fundamentally worrying in principle to give a Minister the power to overturn a decision of a court. Labour voted against removing that power, not just once but also again in 2003, when it refused an amendment to remove the ministerial power to overturn a decision of the court. The Minister, in the Whangamata case—or indeed any other case requiring a similar ministerial discretion—should not exercise his discretion to overturn a decision of the court. The issue was a clear-cut case of the basic principle of how a Government should work, but the Minister has comprehensively failed the test of constitutional propriety, both in making that decision and also in voting against the law change that would have removed that power.

That view is supported by the concerns that have echoed throughout local government. Indeed, people throughout New Zealand were profoundly concerned about that veto. It is the first time in 15 years that the veto has been exercised. Opponents use spurious claims about rich developers, yet the issue concerns an incorporated society: a local club. For 30 years a local resident has never seen anybody, and certainly not iwi, take shellfish from the particular area where the marina is to go—which is less than 1 percent of the Whangamata harbour. Parliament has overruled the Minister in the past on such decisions, and it can do so again.

The concern that is felt throughout New Zealand about this decision is also felt particularly by local government representatives. The Mayor of Thames-Coromandel District, Philippa Barriball—one gutsy lady—has been inundated with phone calls from mayors and councillors from throughout the country. They are hugely concerned at the implications of the Minister exercising his veto. “It certainly calls into question,” she said, “why central government are intent on legislating for councils to undertake decision making, when every time we do so they tell us we got it wrong.” For example, councils are asked to provide a roading priority list to the regional land transport committee, only to have Transit say that they have got it wrong. They are asked to undertake representation reviews, and the commission comes along and says they have got it wrong. They are asked to prepare and administer a district plan, and Carter says the local authority, the regional council, and the Environment Court all got it wrong. Philippa Barriball goes further to say: “Well, my Beehive colleagues, why bother asking us in the first place?”.

The ministerial veto actually makes a complete mockery of the resource management process. Why not just go straight to the Minister and ask whether we can have something approved? Local authorities have plenty of projects throughout this country that they want to have supported, and now they want to know whether they should even bother to start the process of seeking resource consents, because that process can cost millions of dollars. We are talking about all sorts of projects here. We are talking about waste-water projects, which are absolutely vital for protecting our environment. But councils are now questioning whether they should go ahead with them if the Minister will only veto them at the last minute, given that he has the right of veto on projects in their coastal areas. A council is looking at doing a major $28 million marina project on Banks Peninsula. Why would it even start that process if the Minister will just say “Sorry, guys.” The Resource Management Act processes take years, and they take hundreds of thousands to millions of dollars, so why would councils even start on those processes?

The Minister’s decision could start local government processes to spin out of control, because local bodies will look at their waste-water schemes and say: “We need to protect the environment but, heck, if we go down this path, what do we do? Do we spend lots more ratepayers’ money or do we try to avoid the Minister’s veto and think of an alternative?”. That is in spite of the fact that they have probably spent hundreds of thousands to millions of dollars, already. It is an indictment of the process whereby the Minister has the right of veto, and for that reason we are concerned about the decision.

We want the veto to be removed. The judicial process must be upheld. Why are the law-abiding citizens of this country being treated worse in the resource management consent application process than criminals are in the justice system? That is wrong. We have heard of a worse case than the marina with regard to Wānaka, where someone with an inner courtyard wall painted blue, of which about a square metre could be seen from the road, was told to repaint the wall. It is all just out of control, and something needs to be done. Parliament needs to uphold the Environment Court’s decision. We need to have justice in this country.

When we had the public meeting at Whangamata on Saturday, I stood at the door wondering what to expect. People started to pour in, and it was emotionally overwhelming to see all that support. People allowed concerns to be aired at that meeting, and applauded the people who expressed those concerns in that environment—which was in support of the Whangamata Marina Society. They applauded the people who had the courage to come out and express their concerns, and they treated everybody with respect. To say there was any threat against other people’s lives is an absolute nonsense. I am appalled at the untruths that have been spoken through this whole process.

The fundamental issue is an issue of justice. This Parliament needs to uphold justice, so I hope that all members will consider supporting the member’s bill, in the name of the Hon Nick Smith, to uphold the Environment Court decision and to remove the power of veto from the legislation.

In the House today we are hearing a lot of railing against the Whangamata decision. It is not coming from the banded rail, a species on the classification list that is threatened by the Whangamata proposal, but from members of the Opposition, who themselves could be seen as a threatened species on that list. I heard the member opposite say that the use of the law that the ministerial powers invoke was just a weak excuse—and that from a member who went out and slashed mangroves. It is simply a disgrace to say in this House that the Minister is hiding behind the law.

💬 Sandra Goudie: I raise a point of order, Madam Speaker. The member has just charged me with cutting mangroves, and that is actually not true.

The ASSISTANT SPEAKER (Ann Hartley): That is not a point of order; it is a point of debate.

This has been a long process, and we do understand that it has also been a very complex process, under way since 1994. National members, though, have demonstrated that they simply get grumpy and cynical when the law goes against them and when, as is this case, they did not get their way. This Government is a caretaker of our lands, our coasts, and our seas—

💬 Hon Dr Nick Smith: What did the council decide? What about local decision-making?

STEVE CHADWICK:—as that previous Minister of Conservation well understands.

The Minister’s decision making must be made based on recommendations—they were only recommendations, not decisions or rulings—from the Environment Court. The court did not make a ruling; it made a recommendation to the Minister of Conservation. The Minister followed a law passed by National, and exercised his right under section 119 of the Resource Management Act of 1991. The High Court noted in 2002, in a decision made in Hastings, that the Environment Court does not make decisions on restricted coastal activities—

The ASSISTANT SPEAKER (Ann Hartley): I ask the member to please be seated; I want to rule. Reasonable interjections are obviously acceptable, but barraging is not.

As the High Court noted in the Hastings decision in 2002, if the Minister was not able to depart from the recommendation of the Environment Court there would be no point in vesting the Minister with the ultimate decision-making power. The Minister is not merely a rubber stamp. The Minister is able—indeed, required—to exercise his own judgment. In this case, and as the Minister said, he has 25 applications annually, and this is the first to be declined. I am sure that is why there is this cynical railing of the Opposition.

The Minister is not going against the advice of his own department. The Department of Conservation initially opposed the marina because of its environmental impacts, and it lodged an appeal against the Waikato Regional Council’s approval of it in 1997. However, under pressure on the department in 1999 by the then Minister of Conservation, the Hon Nick Smith—who is so rudely shouting at me—the department was forced to withdraw its appeal and settle.

The ASSISTANT SPEAKER (Ann Hartley): Can I draw to the member’s attention that I have already ruled that reasonable interjections are allowed, but not barraging interjections.

💬 Hon Dr Nick Smith: I raise a point of order, Madam Speaker. Earlier the House allowed me to table a document to show what the member says is not true. The department came to an agreement in 1998—it is simply not possible—

The ASSISTANT SPEAKER (Ann Hartley): The member knows that that is not a point of order; that is a point of debate.

It is ironic that the department was—

💬 Hon Dr Nick Smith: Tell the truth.

💬 Darren Hughes: I raise a point of order, Madam Speaker. Just now, and indeed two or three times previous to that, Dr Smith called out “tell the truth”, which is an unparliamentary remark and is not allowed. So I ask him to withdraw and apologise for that and to bring his outbursts into line with the Standing Orders.

The ASSISTANT SPEAKER (Ann Hartley): I have warned the member several times about the constant barraging and I ask him to be reasonable about interjections.

One remains cynical about why the department was forced to withdraw its appeal and settle with the Whangamata Marina Society.

What future action has the Minister proposed, along with the decision that he made on the Whangamata marina? This is about a review of the coastal policy statement, and it has been stated in the House that this is now 12 years old. I think it is time, because coastal use and coastal values are important to all New Zealanders, not only those related to the Whangamata marina application, which involves 200 boaties. All New Zealanders are very concerned about coastal access, coastal use, coastal and land use, and the relationship to the Oceans Policy. The Minister has announced that he is appointing a board of inquiry to hear public submissions on a new coastal policy statement, with very broad terms of reference. The member opposite also knows that the Local Government and Environment Committee had a briefing on the Oceans Policy just this year, and learnt of the call for an integrated approach to oceans and coastal management. In fact, 37 laws and 25 agencies have an impact on the way we manage the coastal margins and our oceans. Of course we need to integrate and rationalise our decisions there.

We are aware of the costs of the Whangamata Marina Society, and the costs to date are not insubstantial. But the law can, and must, be applied, and in this case it was applied appropriately. Any judicial review would decide whether appropriate action was taken.

We would all agree that the foreshore should not be privatised by stealth, and I tell Dr Smith that all New Zealanders would agree with that. We must not pick away at the coast on a piecemeal approach—an iconic piece of our New Zealand landscape that impacts so much on our Kiwi way of life and, indeed, the six Hauraki iwi who also opposed this marina decision. Local decisions must be taken into account, and that principle was reiterated by the Minister in question time today.

We can wage a war on the volume of emails—and they have been voluminous—survey responses done by media, and phone calls. But that will not give us the durable answers that we need for the development of our coastal estate. We do not need to promote change just for change’s sake, but we do need to build on what we know is working well, and change only what we must change on an all-of-Government approach, including input from users in the public.

This Government is responsible for finding durable and sustainable solutions for land, coastal, and oceans management, and we will continue to pursue sustainable results.

The time for the debate has concluded.

I seek leave on behalf of the ACT party to make a contribution to this urgent debate.

The ASSISTANT SPEAKER (Ann Hartley): Leave is sought for the member to make a contribution to this debate. Is there any objection? There is objection.

The debate having concluded, the motion lapsed.