Environment Canterbury (Temporary Commissioners and Improved Water Management) Bill

I have been very keen to get back to the regulatory impact statement, which was not included with the Environment Canterbury (Temporary Commissioners and Improved Water Management) Bill. Under the leadership of Rodney Hide as the Minister for Regulatory Reform, this Government has decided to take all the regulatory impact statements out of bills and to hide them away on the individual websites of the relevant ministry and of Treasury. This regulatory impact statement would have to qualify as one of the most damning indictments of any Government’s process, or of any bill that I have ever seen in this Parliament in the 20 years since I was elected to represent people in Christchurch. I think I have some justification for feeling pretty aggrieved about how the people in our area have been treated by this Government.

I direct the Committee’s attention to the regulatory impact analysis, which is unpaged. Let me read out a quote under the heading “General discussion of options”. It states: “Options that rely on introducing legislation in a very short timeframe increase the risk of poor or misdirected intervention resulting in unintended consequences and the need for subsequent intervention to remedy these consequences. Ad hoc intervention also potentially undermines the integrity and credibility of existing legislative provisions. However, in this instance, because any national level decisions on water management (particularly WCOs)”—which are included in this part of the bill—“have the potential to undermine the government’s New Start for Freshwater policy programme and the work of the Land and Water Forum, it is considered preferable for any intervention to have a narrow Canterbury-specific focus in the first instance.”

So this is the beginning. It is the beginning of a new approach that this Government will have. This is the end of water conservation orders. That is why I have an amendment on the Table of this House to ask that the sections relating to water conservation orders be removed from the bill. I hope that I get the support of other members of this Committee. I do not think that Government members or the parties that are supporting the Government, particularly the Māori Party, fully appreciate the extent of what is happening to water conservation orders under this legislation. I honestly do not believe that that has been fully explained, but it all becomes very clear when the regulatory impact analysis is analysed.

The regulatory impact analysis goes on to say “The results of any intervention” in Canterbury—and that is what Part 3 of this bill implements—“could provide useful information for decision-makers on the outcomes of the New Start for Freshwater policy programme and potentially an opportunity to trial alternative policy settings in a confined context.” So Canterbury is now to be the scene of an experiment in terms of the Government’s wider policy objectives with the New Start for Fresh Water policy programme. I am deeply alarmed to find that stated in the regulatory impact analysis. No commentary on this agenda is contained within the explanatory note of the bill. We have to go to the regulatory impact analysis, which is no longer contained with bills, to find that this is the Government’s objective.

Another point in the regulatory impact analysis says—and I think it is relevant that the Minister has not commented on this; I think perhaps the Minister in the chair, Chris Finlayson, could take up this particular issue, because it is within his broader portfolio—that “Any intervention that alters the nature of the relationship between Ngai Tahu and the body responsible for governance and decision-making on natural resources, particularly water, will need to be designed in light of the Crown’s Treaty responsibilities. In particular, commissioners will individually and/or collectively need to have a strong understanding of the Ngai Tahu perspective, rights and interests.” Not once have we heard the Minister talk about how that will be addressed in the context of implementing Part 3 of the bill.

Part 3 creates a whole new paradigm for water conservation orders. If we go through the regulatory impact statement, we find that the Government is a little concerned about the nature of the requirements for assessing water conservation orders. That is why my amendment becomes all the more important. The regulatory impact analysis states that one of the options was to put together the whole question of water conservation orders. The concern was expressed that “This would displace the statutory purpose of WCOs as an instrument for protecting outstanding amenity or intrinsic values of water bodies and would allow decisions on the allocation of water from these water bodies to be made in the context of sustainable management of resources.” I think the Minister should talk to us about this issue, because there seems to be a very deliberate decision by the Government to shift from the conservation values that are behind our water conservation orders in one part of the Resource Management Act to another part of that Act, which talks about the sustainable management of resources. I think that if the Minister is doing that as part of a long-term objective to shift over time in that way throughout New Zealand, this is not the way to do it. To have an experiment in Canterbury, to see whether we can trial a different way of doing things there, is actually quite untenable.

The regulatory impact analysis contains 3½ pages on option one. A regulatory impact statement requires the Government to set out what the objectives are, to set out the range of options, and then to analyse each of those options: do a bit of risk analysis, opportunity costing, and various other tests when looking at the risks and benefits of a particular approach. In this regulatory impact statement there are three pages on option one, which is the legislation to replace Environment Canterbury councillors with commissioners. There is half a page each on the other four options. We have option two, “Legislation appointing commissioners to take over resource management functions only”; option three, “Legislation replacing council with commission tasked with transitioning to Canterbury Regional Water Authority”, which I believe is still on the agenda; and option four, “Implement Canterbury Water Management Strategy”.

It is interesting that when one looks under option four, one sees that it states that “The visions and principles of the CWMS seek balance between environmental, economic, social and cultural outcomes, but this balance is to be achieved under the over-arching presumption of more reliable water and more intensive land use - an outcome that has not been subject to assessment against the purpose of sustainable management set down in the RMA.” So even the regulatory impact analysis, in ruling out one of the options that is actually being implemented by this bill, is inconsistent with the provisions that the Minister really ought to be operating under in respect of the Resource Management Act.

The regulatory impact analysis also goes on to say that “The potential inconsistency between the overarching presumption behind the vision and principles of the CWMS and the purpose of the RMA has implications for the planning framework in Canterbury post-intervention.” That would have to be the understatement of the year; of course it has implications post intervention. But I would really like the Minister to talk about that, because not once have any of those issues been raised in the debate so far. We are passing legislation under urgency where we have not had an opportunity to have a rigorous debate about those things, which really matter in Canterbury and around the country.

Option five is “Use existing RMA intervention powers”; and option six is “Targeted assistance to Environment Canterbury”, which was based on the proposal that Environment Canterbury put back to the Minister. To be honest, that did not get even a fair hearing, in my view, because the Government had already decided that it would go with option one. So option six, which was proposed by Environment Canterbury, was ruled out beforehand.

I will now talk about how other Government departments responded to the consultation after the review of Environment Canterbury. I am really quite shocked to find all of this detail in a document that was not even tabled with the bill. As a result of the consultation with a number of Government departments, a whole lot of concerns were raised. First of all, on “proposals to replace the elected Councillors for all of ECan’s functions, suspend local body elections or remove the right of appeal on the NRRP or Water conservation orders, except on points of law”, the concern was that “These proposals appear [sic] present a prima facie access to justice issue and some departments were concerned that this may not be consistent with the Government’s statement on regulation: ‘better regulation, less regulation’ which requires ‘a particularly strong case [to be] made for any regulatory proposals that are likely to override fundamental common law principles”.

Which of the Government departments that were consulted said that? Was it the Department of Internal Affairs, the Ministry of Agriculture and Forestry, Treasury, the State Services Commission, the Ministry of Justice, the Ministry of Transport, Te Puni Kōkiri, or the Department of the Prime Minister and Cabinet? Which one of them, or which group of them, said there were serious concerns about the likelihood that this would “override fundamental common law principles”? Which one said that? That is what it says here: “These proposals appear [sic] present a prima facie access to justice issue and some departments were concerned …”. Well, I am more than concerned after reading that.

The regulatory impact statement goes on to say there was concern about “the potential for the proposal to mean that parties with a stake in Canterbury’s natural resources will have less ability to protect their rights and interests via appeals on resource management decisions than elsewhere in the country.” So Canterbury misses out again, by being alone in the application of this change to the rules.

The regulatory impact statement also refers to concern about “the proposal to transfer the entire range of ECan’s roles and responsibilities to commissioners despite the finding that ECan was performing adequately outside of its water-related functions”. That entire part is focused on water-related functions, yet the research, the report, and the review—everything that has been done—says that Environment Canterbury was performing adequately outside of those functions. So we are to deal with the whole of Environment Canterbury, we are to just wipe the whole lot of those functions, and we are not to mind the fact that there is the issue of whether “the gains of such a move outweigh the costs of removing democratically elected representatives.” I am quoting from the Minister’s own department’s report on the regulatory impact analysis. This is not something that I am just making up. The Minister’s own department has reported this to him as having been expressed as a concern by a range of other Government agencies. Goodness knows why the Ministry for the Environment does not think these issues are important either.

Proposals to change the water conservation order processes have the potential to be highly controversial, particularly given that the Government has not signalled such a move in its New Start for Fresh Water policy programme. Because of those concerns, three minor changes were made to the proposal, but that is it, and there is nothing of substance in terms of the seriousness of the issues that have been raised.

I am deeply concerned that this kind of information, this quality information, is withheld from members of Parliament who are standing up to debate this bill in the Chamber.

💬 Hon Dr Nick Smith: It was tabled.

It was not tabled with the bill. The Minister can interject as much as he likes, but the Government made a decision to no longer include regulatory impact statements with bills. They are now available separately on websites, and members have to go back to the House and get a copy of those statements in order to ensure that they have the information in front of them. I think that is a poor process, in terms of our ability as a Parliament to monitor anything of substance in a way that enables us to speak for our constituents. They expect us to be able to debate authoritatively on subjects, on the basis of all of the information being made available to us when it is required.

The comments from the Opposition on this bill come down basically to two features: misinformation and personal denigration. I will address both of those in this short contribution.

The first concerns the regulatory impact statement, which the member has claimed was not tabled in the House. I tell members that it was tabled in the House, right in front of me, at exactly the same time as the bill was tabled. It was also provided to the Bills Office at exactly the same time.

I will also address the issues that have been raised by Russel Norman. I note that Jeanette Fitzsimons, who was a passionate leader of environmental issues, in all the years that I spent in the House religiously focused on playing the ball and not the man. But I have seen from Russel Norman—and I think this will be terminal for the Green Party—that he is choosing to attack the integrity of Wyatt Creech and the others who did the review, and today he started on David Carter. There is a very important point that I will put on the record: on Monday, when Cabinet made its decisions on Environment Canterbury and on this bill, David Carter was not even present. For members in this Chamber to attack a Minister when that Minister is offshore doing the work of New Zealand, I think is below the standards that the Green Party itself would set for its members.

I will address quite specifically the three major parts in this portion of the bill. In my view, they are critical to the step change in water management that the Government wants to deliver. Let me go through those three parts.

The first is that the Government is providing the commissioners with the power to put in place a targeted moratorium on water takes. Some members who are also farmers are concerned about that provision, and they would prefer that it was not there. But it is time we were honest with water in Canterbury, and say that in some areas there is not more water to allocate. For us to spend large sums of money on lawyers and on process when there simply is not more water is not wise, which is why that measure is in this bill. Interestingly, I have the correspondence that I tabled earlier in the Chamber when Environment Canterbury made submissions to members such as Ruth Dyson, Lianne Dalziel, and many others. Environment Canterbury asked for that power during the course of the previous Government, but the council was ignored. I think that the provision for that power to be available is overdue, if we are to properly manage water in Canterbury.

The second part of this bill is concerned with getting a plan. I am advised that on the current programme it will be at least 2 or 3 years before we finally get a plan on water. Members on the Government benches are saying that that is too long, that we need progress and we need a plan. That is why there are quite specific provisions in this part to fast track the provisions of establishing a water plan in Canterbury.

The third issue is one of integrated management. It does not make sense for either the Environment Court or a special tribunal appointed by myself to make decisions on water conservation orders in Canterbury, separate from the commissioners. If we are really serious about getting a group of people to get hold of this issue of water in Canterbury and to make integrated decisions, it is absolutely right that those decisions are made by the commissioners.

The last point I will make is that decisions on water conservation orders in the current law are—and in the amended law will be—made by the Minister for the Environment. That remains the case. To the accusations that somehow decisions on water conservation are being politicised, I say “Well, hang on.” The decisions are made by the Minister for the Environment, by whoever is privileged to hold that office at the time. But the provisions in this part are the vital extra powers that are required for the commissioners to be able to get on top of water management issues in Canterbury, and that is why the Government has included them in the bill.

I am quite pleased with the Minister for the Environment’s contribution. I hope that he will say a little more because he might then understand that, as well as being frustrated and very angry at having our votes stolen from us, we are even more angry about the idea of having our water stolen from us. Taking away our vote is frustrating enough, but taking our water will make us really upset. If the Minister continues to engage, as he just did, in what I think is a considered way, then we may eventually get to the point where he will understand our concerns. Instead of just riding roughshod over them, instead of just wiping them aside and making smart alec contributions to the debate, he might start thinking about some of our amendments and the contributions we are making, because a lot of them are being made in good faith.

In this contribution on Part 3 I will focus mainly on the water conservation order issue. A lot of people, understandably, do not understand what a water conservation order is. They do not have a particular interest in the environment, or they do not live in Canterbury where water is a very hot topic for us. We are very keen on water and on improving its quality. A water conservation order has been described as being like a national park for rivers. That might not be such a great comparison to bring at the moment, given what the National Government wants to do with our national parks listed on schedule 4. I am not accusing the Minister of wanting to mine in our water conservation order areas, but we never know. Down the track he might decide that these are not very important, either.

💬 Hon Member: They want to mine water!

Mining under the riverbed would be a more logical place than mining the water.

My understanding of the changes—and it has been quite difficult to fully absorb the content of the legislation, given how late we received it, and given that we have been debating it continuously, with the exception of question time, without any select committee consideration or the benefit of any public input through a select committee process—is that we now have a water conservation orders regime whereby the appeal process to special tribunals and the Environment Court has been entirely axed. The Minister for the Environment has nodded.

💬 Hon Dr Nick Smith: Replaced.

That is pretty sad. We do not have recourse to special tribunals or the Environment Court now, in terms of water conservation orders.

My second understanding—and I will be pleased if the Minister wants to confirm this by nodding, by sign language, or by taking a further call—is that the criteria for a water conservation order established under the Environment Canterbury (Temporary Commissioners and Improved Water Management) Bill is different from the current criteria for water conservation orders. I am not quite sure why that would be. Why would we have two different regimes running parallel? It would be sensible if the Government decided that one set of criteria was not robust enough, or that the threshold was not high enough, was too high, or whatever, and that it wanted to change it. That should be a ministerial prerogative. But, in my view, a Government would not sensibly have one regime for some rivers around the country and another regime for others. If the criteria are now different under the Environment Canterbury area—the Canterbury Regional Council catchment area—then I would really like to know why that is the case.

I mentioned in a contribution to an earlier debate, but it is more relevant to Part 3, the fact that, despite the Minister going on and on about the lack of a water management strategy, the strategy is in schedule 1 of this bill. That is the first confusion I have. The Minister has also been very clear that he wants to make sure that the water management strategy is implemented, that it moves on, and that it has some legislative grunt, yet this bill, which is going through under urgency, is all about Canterbury water management but the implementation of the water management strategy is not in it. It is about as shallow as a puddle after a brief bit of rain out on Lambton Quay. One could not get shallower than the attention paid to the Canterbury Water Management Strategy in this document.

I tell the Minister in the chair, the Hon Nick Smith, that he has lost a huge opportunity. I agree with him that the Canterbury Water Management Strategy should have legislative grunt and should be put in the part, but where is it? It is outlined in schedule 1; it tells us all about it. It tells us that we believe in motherhood and apple pie, and access. It tells us that we want our water to be of a high quality and drinkable. We want it to be wet and we want to be able to use water for recreational activities. Wow, that is gobsmacking news! I ask where in this bill it tells us how we will set up the committees, and how we will ensure that all those different groups that have worked together on the Canterbury Water Management Strategy stay working together and improve what is happening to our water in Canterbury. It is nowhere. There is a big hole in this legislation in that regard, and it should be fixed.

The commissioners will be required—this is very tough—to have regard to the vision and principles of the Canterbury Water Management Strategy. Well, that will sort it out, will it not, I ask the Minister. By goodness, let us get Dame Margaret Bazley to have due regard to the vision and principles of the Canterbury Water Management Strategy. It is a bit like national standards. That will fix everything, will it not; after that it will all be all right. Once Dame Margaret has had a quick browse through the Canterbury Water Management Strategy and has had due regard for it, then we should be all right. There should not be any problems with water management in Canterbury! It is really frustrating that with legislation like this, being abused though it is through being rammed through under urgency with no select committee process, we still have an opportunity to put in the law what needs to be in the law, and the Minister has missed the chance.

In relation to the regard that is being required to be paid to the water management strategy, the final point I make in this contribution is that I do not understand the different levels of regard that are required in this legislation. The commissioners are required to have “particular regard” to the Canterbury Water Management Strategy, but with regard to statutory planning documents such as regional policy statements, national policy statements, and the regional plan—plans, documents, and policy statements that have been through a really rigorous public process—they have only to “have regard”. Why are there two tests? Why is there one test for “have regard” and another one to have “particular regard”?

I am happy that the Minister is getting some advice. I can understand that when a bill is thrown together in such a shoddy way with very little consideration of any cross-Parliament support on such an important issue and then totally bypasses the select committee process, and when the House goes through under urgency on the bill from, I think, 5.30 last evening until 10, resumes again at 9 this morning, and then goes through until 1 p.m. with a brief adjournment from the debate for question time from 2 until 3.15, and here we are, at 25 minutes to 4, still debating it, the Minister would not even know that there are two thresholds for consideration. The first is for the Canterbury Water Management Strategy, which commissioners have to have “particular regard” to, and the second is for the statutory planning documents, which they just have to “have regard” to.

This is a really shonky way of trying to improve a serious situation in Canterbury. People across the political divide agree that we have a problem with the amount of water that people need for their lives, for their business, and for their development, and the amount of water that we have to give. There is a further debate about what, if we even had more water, that water should be used for—whether it is best to use it in the way possible. Nothing in this bill helps us to address those fundamental issues.

It is a really good opportunity, in respect of which the Minister must have slept in. The bill came knocking at his door one morning and said: “Here I am. Here is the legislative vehicle available for you to drive a way in to help sort out the water management issues in Canterbury.” The Minister just rolled over and went back to sleep, and completely missed that vehicle. The only bus that he got on was the “Let us sack the Environment Canterbury councillors” bus. That is all he did. Although sacking a whole council might make the Minister feel better, and might make him feel like he has a bit of power, it is a disgraceful thing to do. It is disgraceful when the so-called independent report of a group chaired by Wyatt Creech—who we cannot say is about as independent from National as one can get—came back with the view that, despite all the anecdotes, despite all the stories, and despite all the political scaremongering that had been generated by self-interested people in Canterbury and South Canterbury, there was no basis for doing this.

We are dealing with this bill under urgency, with no select committee process, as we strip away the way for Cantabrians to have the vote. Subpart 3 deals with water conservation orders. Water conservation orders are a tremendously important part of the environmental regulation of New Zealand. To be fair, most people probably are completely unaware of water conservation orders, which is why the Government is quietly moving on them in this bill. Water conservation orders are national parks for our rivers; they set standards. For example, the water conservation order on the Ahuriri River sets a minimum flow rate of 10 cubic metres per second of water that has to flow through it, and if the rate falls below that, then water takes have to drop out. So water conservation orders are a way for us to protect our rivers, and they have a whole bunch of conditions attached to them.

This bill fundamentally changes water conservation orders for Canterbury—both the process for dealing with water conservation orders, particularly the Hurunui one, and what could happen to the existing water conservation orders. So the first issue is the Hurunui River order. It is not correct to say that currently there is a water conservation order on the Hurunui River. In fact, the process is under way. It was due to go to the Environment Court in May or June, and that has been an issue of contention. This bill cuts that process off at the knees. After the applicants have spent many hundreds of thousands of dollars trying to get this process through, going through a special tribunal, to the Environment Court, and then to the Minister, this bill intervenes in the middle of that process and sends it to the Government’s hand-picked commissioners to make the decision about whether the Hurunui water conservation order will be decided. Then it goes to the Minister for the Environment. So this bill cuts through the existing process.

From my point of view, and the point of view of those who care about rivers, this is a totally unacceptable cutting off of the normal process for water conservation orders. That would be worrying enough in a bill that ostensibly is supposed to be about Environment Canterbury, but at the back of this bill there is the process for cutting off the application for the Hurunui water conservation order—that is, the attempt to put a national park on the Hurunui River.

The Hurunui River, for those who do not know, is the last remaining wild river that runs from the mountains to the sea, via a natural lake on the east coast of the South Island, and is subject to an irrigation scheme. They want to put a 70-metre dam on the south branch, and a weir on the north branch. This bill intervenes in the process of trying to protect the Hurunui, through a water conservation order, and the danger is that we will open it up to the irrigation project that has been so talked about.

If it was just about the Hurunui, it would be worrying enough, but the other problem is that this bill now makes it possible for any irrigator in the country to apply to the Minister for the Environment to open up any of the existing water conservation orders without going through the normal process. Normally if we want to amend or revoke a water conservation order, we have to go through a very elaborate process because they are like national parks. This bill suddenly opens up the existing Canterbury water conservation orders so that they can be contested by the irrigators. Graeme Sutton from Irrigation New Zealand is jubilant about this bill because he knows what it means for the existing water conservation orders. For example, people may remember that the cubicle farm application on Killermont Station relied on taking water out of the Ahuriri River in order to irrigate the station. There is no way that project could have gone ahead under the current law, but this bill allows those who were putting forward the cubicle farm application to go to the Minister for the Environment, without any of the normal due process, to get a variation on the water conservation order on the Ahuriri River so that they can get access to water to irrigate Killermont Station, even though it would take the river below the minimum flow that is currently outlined in that water conservation order. This bill is setting up a situation whereby we can revoke and amend existing water conservation orders on the Ahuriri River, the Rākaia River, the Rangitata River, and Te Waihora. All of them can be amended through, basically, a stroke of the pen of the Minister for the Environment.

We thought we had national parks for our rivers. The environment movement has fought battle after battle and spent literally millions of dollars to get water conservation orders in place across New Zealand, including in Canterbury, and now, because of the votes of National, ACT, and the Māori Party, we will see water conservation orders upended at the whim of the Minister for the Environment, at the stroke of a pen. Water conservation orders protecting some of our most important rivers in Canterbury can now be overturned.

On the one hand we have the special situation tucked away in the schedules that relate to this part, which deal with the Hurunui, to give special consideration to the Hurunui, so that the irrigation scheme can go ahead and Mr Carter can get access to water for his farm. Aside from the Hurunui situation, we have a more general problem whereby all of the water conservation orders in Canterbury are now under the gun. The environment movement fought long and hard, and worked with tangata whenua over many years in order to get in place water conservation orders to protect our wonderful rivers.

I was on the Hurunui on Sunday. I met with Mark Solomon from Ngāi Tahu. We spoke at great length about what a precious river that was, and how important it was that there be a water conservation order to protect that river from irrigators, yet here we have the Māori Party voting today for a bill that threatens the Hurunui River. It seems to me totally unacceptable that anybody who cares about the wild rivers of this country could vote for a bill that threatens the water conservation order on the Hurunui, and opens up every existing water conservation order in the Canterbury region so that it can now be overturned at the stroke of a pen by the Minister.

What kind of a national park do we have then? We have a national park that is a bit like—oh, the schedule 4 national parks, which can be mined. We have that kind of national park, the national park that we thought was for good, but in fact the water in these water conservation orders can now be mined for irrigation schemes, because of the changes that the Government is forcing through, all through the day and all through the night, without a select committee process, and under urgency.

I will respond to some of the Minister’s comments, and his attacks on me and the Green Party. The Minister has made various comments, at which personally I take offence. He said that we are doing an ad hominem attack on Mr Creech. That is the allegation, essentially. I dispute that. I say that the issue with Mr Creech is not Mr Creech himself. The issue is that he was the director of a dairy company that was doing a review of the regulator of the dairy industry in Canterbury. That was the issue with the appointment of Mr Creech. It was not that Mr Creech was a bad person. It was that Mr Creech was, at that time, a director of a dairy company that had multiple convictions for pollution of water, and who was, at that stage, doing a review of the regulator of the dairy industry. That is not an ad hominem attack. It is a problem with setting up a structure whereby we appoint someone who should never have had that role. It is that review that has provided the basis for this bill.

The extraordinary thing about the water conservation order provisions in Subpart 3 is that there is no way we can take the changes to water conservation orders out of the fact that Environment Canterbury may have been too slow on its resource consents, or it may not have processed enough resource consents to suit some irrigators. We cannot blame water conservation orders for that. It is not the fault of water conservation orders, which have been fought for in good faith by the environment movement and tangata whenua over many years. We cannot blame water conservation orders for that, yet in Subpart 3, and hidden away in schedule 2, there is a whole series of changes to the way that water conservation orders currently work. These are the orders that protect our nationally significant rivers.

It is also important to look at the way the test will be changed. There is quite a lack of clarity in the test of what will now be a water conservation order in the Canterbury region. This bill introduces a whole series of conflicting things that must be taken into account in any consideration of a water conservation order in the Canterbury region. It is unclear where all of this will end up. It is almost certainly the case that it no longer prioritises water bodies of national significance, which was always meant to be the whole purpose of a water conservation order. It was to protect water bodies of national significance in perpetuity. The whole idea was that it was like a national park for rivers, and that is what is being overturned in this bill. The test for getting something even into being considered for a water conservation order has now been muddied and made very unclear, because there are now multiple and competing demands on any decision maker when it has to be decided whether a body of water qualifies for a water conservation order—what used to be called a water body of national significance. These changes are fundamental to the way we manage water in New Zealand, and to water conservation orders, and we will be opposing them.

I will take up where the member who has just resumed his seat left off, and ask the Minister in the chair, the Hon Dr Nick Smith, to take a call specifically on the Hurunui water conservation order. We have to think seriously about what this bill is doing in terms of a process that is well and truly under way. For the benefit of the Committee, I point out that hearings are set down for the Hurunui water conservation orders to start on 31 May. They are set down to begin. A process is in train, whereby people have begun and are now part of a process, yet this bill walks in during the middle of that process and states that the process is all over and completely discarded as a result of this legislation. Government members need to stand up in the Chamber and acknowledge that that is what they are doing. A hearing is set down to begin on 31 May for 6 weeks to resolve, once and for all, issues to do with the Hurunui water conservation order, and this bill will totally remove the ability of the Environment Court to hear that. It will weaken the legal test, as Russel Norman has just said. The water conservation order will be re-notified.

At the end of this, it will be the commissioners, who will have a massive job on their hands anyway as a result of what is being done in this legislation, who will have to hear it and issue a decision. That decision will be able to be appealed only on a point of law, so in fact in this bill we are completely changing the way in which this very important water conservation order is being dealt with. No one from the Government has been prepared yet to say that they are taking away the legal rights of a number of people and a number of groups who have been involved in a process for some considerable time on this water conservation order. Nobody from the Government seems prepared to stand up and say that that is what they are doing. They are taking away legal rights, and the announcement has already been made today—

💬 Simon Bridges: That’s what you did on the foreshore and seabed.

That is right, I say to Mr Bridges, we have heard announcements today on the Foreshore and Seabed Act, on which people have campaigned in the past on the issue of people’s rights to due legal process. What is happening about due legal process here? What is happening about the water conservation orders that are already being discussed, for which a process is already in place? I would ask respectfully for the Minister in the chair to take a call to clear this up and ensure that we have an understanding here. But for the Hurunui water conservation order—that process—where hearings are already set down to begin on 31 May, has that opportunity gone? Is that the situation we have? If it is, we will be putting people who have been in this process in a very difficult position.

I will also pick up the point that Russel Norman made about the question of what the test now is. The ability to impose the national park equivalent on rivers has gone. That seems to have gone for Canterbury but not for the rest of New Zealand. So now for Canterbury we have a different set of rules from the rest of New Zealand, in terms of conservation orders. I do not think this bill will lead to any streamlining of the process around the water conservation orders. In fact, I think it will make it more difficult, because the role now falls to the commissioners, who have an extremely busy process in front of them in terms of taking on the responsibilities of Environment Canterbury, and now they have this particular water conservation order put in front of them.

The process was meant to be completed by mid-July. The hearings would have been over and the court would have reported by mid-July. Now, we have a bill in which the Environment Court has been totally taken out of the process, and the commissioners will take over. First, they will give the conservation applicants 30 days to amend their applications, then the amended application will be followed by an additional public submission period even though there has already been a complete public submission period anyway. The commissioners will hold a hearing, during which they will be required to take no account whatsoever of the special tribunal that the Minister for the Environment has already set up for the Hurunui water conservation order. Then the decision of the commissioners, after they have heard this evidence, can be appealed only on a point of law.

So we are reducing the rights of a number of people who have already been heavily involved in this process, who have already made submissions, and who thought they were part of a process. This legislation is pulling that away. There are overall concerns about water conservation orders and what this will mean for them across the Canterbury region; but I would like a response specifically around the Hurunui case from the Minister for the Environment, because there is a great deal of concern out there from a number of people involved in that.

I will respond to some of the points that have been made by Opposition members, so that people can be clear about the intent of the Environment Canterbury (Temporary Commissioners and Improved Water Management) Bill, and so that we can be helped to have a constructive and robust debate.

The first point is that Ruth Dyson made the argument that the Prime Minister today was incorrect in saying that we do not have a plan for water in Canterbury. She said: “Yes, we do. We have the Canterbury Water Management Strategy.” That, to me, spoke volumes about why we have the mess about water management in Canterbury. If that is the understanding of the law about water of a senior Minister from the previous Government, it is no wonder we have a problem. The reality is that the Canterbury Water Management Strategy—

💬 Hon Ruth Dyson: Smart alec. That’s not what I said and you know it.

No, it is actually Ruth Dyson who is being smart here. She probably does know that the Canterbury Water Management Strategy has absolutely no legal status as a plan. Under the Resource Management Act—

💬 Hon Ruth Dyson: Why isn’t it in the bill?

When the Prime Minister says there is no plan for water management in Canterbury, that is because the natural resources plan is still being heard 18 years after the passage of the Resource Management Act. That is why the provisions in Part 3 of this bill enable us to both fast track that plan and, for the very first time, give some legal status to the Canterbury Water Management Strategy.

A second question has been asked about water conservation orders. Again, I am not sure that Opposition members understand the process as it is right now; I ask members to let me explain it. At the moment, a person who wants a new water conservation order, or a variation, lodges an application with the Minister. The Minister appoints a special tribunal. There is all this rhetoric about my having my National Party mates on the tribunal—I can do that right now; I have absolute discretion about whom I appoint to the tribunal. The reason why I want water conservation orders to go to the commissioners is very simple and straightforward: if we are to properly manage water in Canterbury, we need an integrated approach. Having one bunch of people over here making a decision about a water conservation order, and a different bunch of people over there making a decision about the plan, is to me a nonsense. There is one catchment, and if there is anything I have learnt in my professional experience as an engineer with water, it is that catchments have to be managed in an integrated way. So to have one group of people making decisions in the lower part of the river and saying “Here is what we are going to do.”, and to have a different group of people making decisions in the upper part of the catchment, makes absolutely no sense. I challenge members: I say that if they want an integrated approach to water management—and it is essential that that is managed competently—then it makes great sense for water conservation orders to be considered by the commission that is making the other decisions in respect of water in Canterbury.

The next point I will make is that of course whether the decision goes to the commission or to the tribunal, the decision on water conservation orders rests quite properly with a politician, the Minister for the Environment. So in relation to all the stuff about a political agenda, I remind members that the decisions on whether or not those orders proceed come back to me in both the current process and the amended process.

The final point I will make is in respect of the Hurunui River application, and I accept that what we are doing in this process does cut across its current legal aspect. But the real choice for the Government was whether, if we had a particular view about water conservation orders in Canterbury and how they were to be integrated in the bigger picture, it was better to allow all the money to be spent on lawyers before the Environment Court arguing a particular case, when we already—

💬 Hon Member: It’s already happened.

No; it has gone to a tribunal. It has not gone to court yet. It has gone to the tribunal; it has not gone to court—righto? So does it make sense for the Government, if it has a particular view about the orders, to pre-empt the process because I as Minister finally get to make the decision, or is it more honest and upfront to say, both to the applicant and to those who have a say, that the Government wants an integrated approach to water management in Canterbury? Is it not more honest to say, through this bill, that that Hurunui application will go to the commissioners in Canterbury—who will be making the decisions about the regional policy statement, as well—so they can make a decision in an integrated way? Let us open up the process, as we do in this bill, to all those parties, including the applicants and anybody who has made submissions to the tribunal, in order for them to have a new opportunity to be able to present that view. I suggest to members on the Opposition benches that that is a more straightforward and open way to do it, rather than to have me, as Minister for the Environment, sit back and allow all that money to be spent on lawyers and process and then come to a different decision at the end.

I will pick up on what the Minister has just said, and will refer back to clause 34 of Part 3 of the Environment Canterbury (Temporary Commissioners and Improved Water Management) Bill, which I commented on earlier. I will pick up where I left off on that. I have a couple of comments I would like to make. Before I do, I will clear away one thing so that we do not have to revisit it, because I think it is rather unedifying for this House. There are various forms of ad hominem attacks, and I took some exception to the Minister in the chair casting a slight—an aspersion—on the Green Party’s co-leader Russel Norman, who asked a question in the House in good faith today. That question pertained to a conflict of interest, and I would like the Minister and his colleagues to accept the fact that any Opposition member in this House does have the right to ask a question pertaining to conflict of interest, which is a constitutional precept embedded in this democracy.

To conclude on that point, I find it somewhat gratuitous of the Minister to offer his view of what the Green Party’s previous co-leader might have to think about the standards of this party. Our co-leaders, both previous and present, aspire to the highest standards. I know them very well, all three whom I do know: the two current co-leaders and Jeanette Fitzsimons. I do not think this party needs to take advice from this Minister about the standards that the Green Party is aspiring to attain. If he continues to do it, then he would invite me and others, but particularly me, to rank this Minister in terms of integrity and dignity in the context of some of his predecessors, some of whom I know very well indeed.

On a more positive note, I would like the Minister to address one thing that has not come out in the debate to date. That is the following: I presume that the Creech report and the Minister’s judgment about the Environment Canterbury regional council are not based in any way on a judgment pertaining to the individual capabilities, competence, or integrity of those councillors. It is to do with something else. I think it would clear the air a little bit if we could invite the Minister to make a statement to that effect. Correct me if I am wrong, but I have not seen it made before. I know at least half of the councillors, and I have a high regard for each of them as individuals. They have done good work, and if they are to be disbanded, for whatever reason—and we can debate the reasons here—then I think it is incumbent on the Minister and the rest of us to acknowledge the individual competence and good work they have each done.

The Minister was wont, just a moment ago, to refer to the Canterbury Water Management Strategy, and he complained that the Labour members had misunderstood the point. As he put it, the natural resources management strategy has been in place for the better part of 18 years, and there is no water management plan coming out; therefore, that is the principal reason, the criterion, for disbanding the council. I remind the Minister that the National Government back in 1991 introduced the Resource Management Act. Exactly 18 years later another National Government, its successor, amended the Act. Clearly, the Act was not perfect at the very beginning. Does that require that we disband this Government? It is the same period of time.

I spoke earlier about the deadlines that Environment Canterbury was meant to meet, and failed to meet, in producing the water management plan. That appears to be the principal reason that Environment Canterbury is being disbanded. I identified the fact that out of 15 regional and unitary councils, six of them did not have complete water management plans established. Three have not done any, one has made a statement, and two others have simply introduced water management plans in part only. So where does that leave us in terms of time frame? One of the issues we have to look at is the various sizes of the irrigation responsibilities, regional council by regional council.

I can offer statistics for the Minister, and he is free to correct them if he thinks they are different. These are the statistics we have gathered, and they are the following. Of the irrigation undertaken in New Zealand, 62 percent comes from Canterbury, 17 percent comes from Otago, and the rest account for 5 percent or less. So there is this huge differentiation. If we put Canterbury and Otago together, it is 79 percent of irrigation, which is huge. So it is important to regard those two regions more or less as separate and unique, compared with the others. But, as I say, some of the others have not achieved the stated goal, the criterion by which the Minister is disbanding Environment Canterbury. Let us look at them and have regard to what fate may lie in store for them.

We find that Marlborough has 3 percent of irrigation. It has a plan in part only. We have Tasman, which has 2 percent of irrigation. It has not yet introduced Part 5 of its plan. When run together, those two councils represent 5 percent of New Zealand’s irrigation. I ask the Minister what we are to do with those. Let us put a deadline on those two regional councils to complete their work, let us say by 30 June this year, the failure of which would require that they be disbanded and we can introduce an unelected commission. We find Gisborne, which has 0.4 percent of irrigation. Let us give it a deadline of 30 June. It has made a statement only. Let it translate that statement into a water management plan by 30 June, failing which it will be disbanded. Auckland is responsible for 0.2 percent of the country’s irrigation. It is tiny. But we know what is happening to Auckland, so let us give the super-city an extension. Let us give it to 1 April 2011 to introduce a water management plan, failing which we will have to disband the super-city and return to the status quo ante.

My favourite is the West Coast. The West Coast is responsible for 0.37 percent of the nation’s irrigation. Members may think that is trifling, but I suggest that it is an onerous responsibility on the West Coast to draw up a water management plan. I think we should give it only 5 months—until 31 August 2010. Failure to have a complete integrated water management plan in place by 31 August requires that it be disbanded. It should not be beyond our competence collectively, watching this Government in action, to ensure that in addition to Canterbury, the other five regional councils will go under the guillotine no later than 1 April 2011. Thank you.

I move, That the question be now put.

I rise to speak on Part 3 of the Environment Canterbury (Temporary Commissioners and Improved Water Management) Bill. I think there is a very important question to be asked: who is next? I know that a number of my colleagues have asked that question. The provisions in Part 3 are around the moratoria and water conservation orders, and I want to touch on water conservation orders in my speech.

Before I do that, I want to refer to a written question that Dr Russel Norman asked of the Prime Minister on 9 February this year, in which he asked: “In what regions of the South Island does he expect to see new water storage schemes built next year?”. The answer from the Prime Minister was: “Canterbury and potentially Otago.” I think that gives me the right to stand here today and ask who is next. Are the people of Otago about to have a local authority shake-up as well; and, if so, will they be consulted?

Last year, on 13 May, I spoke in this House on an amendment to Part 3 of the Local Government (Auckland Reorganisation) Bill, and I said to this House that I take democracy seriously. I said that what this Government was doing was not democratic, and that many of the people of New Zealand who were watching and listening were thinking the same thing. They are thinking that as we speak today. In May last year I gave the Auckland super-city bill the title “Local Government (We’ll do whatever we like because we can and we’ll be doing it to the rest of the country) Bill”.

💬 Colin King: That’s a long title.

It is a long title but I think it is a correct title, and it seems that I was right about the Auckland bill and I am about this bill. I ask the Minister to reassure the people of Otago that they will not be next. I stand here as the member for Dunedin South, representing 59,442 constituents, of whom I am very proud. I welcome the fact that in my electorate there is a strong and active local authority, the Dunedin City Council, with 14 elected councillors. The Otago Regional Council has 11 councillors, and it is a strong council. Dunedin South is a long way from Auckland, but we are not so far from Christchurch.

I believe that my constituents are united on this issue in what they want and expect from their elected representatives. They want to be listened to, consulted, and to have a voice. The people of Canterbury do not have a voice in this process. The question is whether the abolition of more councils is on the agenda. Will there be a merger of councils, with no consultation with the people of New Zealand, to create super-councils that remove people’s rights to local representation? Is the Otago Regional Council for the chop?

💬 Hon Dr Nick Smith: No.

I am pleased to hear that that is on the record.

I want to repeat what I said 10 months ago in this Chamber when I painted a picture in the minds of members and in the minds of all the good New Zealanders who were listening and watching Parliament with a sense of increasing horror. Those people are contacting me in my electorate office and in my office in Parliament about the trampling of the rights of all New Zealanders. That picture is of a bulldozer—a big bulldozer—because this Government is bulldozing the rights of Aucklanders and ultimately the rights of all New Zealanders. If the Minister has given the answer “No” to Otago, will the Minister given the answer “No” to Wellington and to other regions around New Zealand?

From time to time central government may be required to step in and remove recalcitrant councillors, and I think that members on this side of the Chamber would agree with that, but no one would expect that the people of Canterbury would not have the opportunity to re-elect their representatives at the earliest available opportunity. One would think that the local body elections that are scheduled in 6 months’ time would be a fair and reasonable time for the people of Canterbury to elect representatives.

I move, That the question be now put.

Thank you, Mr Chairperson, for that very sensible call on your part. This is the first time, as a consequence of being dragged away on other business, that I have had a chance to reflect on this very ugly example of the denial of the democratic rights of our people in the Canterbury region. At the pith of resource management in New Zealand has been a marriage between participatory democracy and resource management, and this bill, especially Part 3, fits a broader story. The story is to strip, step by step, decisions made by democratically elected representatives, delegated down to officers, and move it more into a corporate style of resource management.

I need look no further than clause 36, “Power to end moratorium”, and no doubt a moratorium will be in place as the burgeoning number of farmer-based applications come to the fore. This is actually a day where the current Government is rewarding its power base—that is, those members of that particular economic cluster, otherwise known as the farming community, who have continued to treat water as a free, unlimited resource. Obviously, once this moratorium comes off—and it will come off; I see that the Minister has the power to direct the commissioners to end the moratorium—the Minister will be under enormous pressure, enormous incentive, to open up that valuable source of wealth to the investors in that area. But that is judging the moratorium decision only in a very narrow way. It fits a broader picture—that is, to move more decisions away from local and regional government and put them in the Environmental Protection Authority; to move more decisions away from the area of Tāmaki-makau-rau and give them to shadowy, non-accountable corporate directors.

Underlying this change is not really a concern about the environment; underlying this change is a loss of confidence by the current Government in that system of governance—that is, in relying on those members of the public who step up and undertake democratic obligations, only to have the ground cut from beneath them. It might be said that they have been an abject failure and they have to go. In actual fact, the failure here is the existence of unelected and non-accountable commissioners, who will actually end up doing the bidding of central government. So the failure is that there is no more confidence on the part of these Ministers in that tenet of local government—democracy, where people in a certain region are entitled to elect their members and make resource management decisions that reflect the preferences of the region.

That idea is deeply embedded in our system of governance in New Zealand, so it would be fantastic to hear from the Minister in the chair, the Hon Dr Nick Smith, as to why, when, and how that power will be used when he or she overrides the commissioners. The narrative, as outlined by Gerry Brownlee, by the Prime Minister, and by Mr David Carter—I have nothing to add other than what the Greens have said about Mr Carter—informs us that water is to be unblocked and used exclusively for an economic purpose, that is, the provision of goods and services from the application of water. No sensible participant in this debate wants to see the economy shrivel, but the fear is that the unmitigated arrival of new applications over time will see a further degradation of quality.

We cannot rely on those advocates from the farming community who influence and drive the decision makers in this Government. They have demonstrated through the Dairying and Clean Streams Accord that the modest progress that has been made is actually undermined by a deeper attitude. That attitude has been seen today in Manawatū and in other parts of the country. It seems to me that the overarching sense of their entitlement in this area—to treat water as a free good but have no obligations to the rest of society—will be exposed.

I move, That the question be now put.