Environmental Protection Authority Bill

I begin by making a couple of preliminary observations about Part 1 of the Environmental Protection Authority Bill. The first observation relates to the way in which the legislation is structured, and this reflects comments made by Labour in our minority report after the select committee process. The difficulty with what has emerged from what the Minister for the Environment put in front of the House is that rather than a comprehensive, strong, independent environmental regulator that is able to provide sectoral leadership, which is so badly needed in this country, we have a piecemeal reform.

The Minister promised early on that, for example, regulation of the marine and coastal environment and the activities being conducted in the exclusive economic zone would be within the purview of the Environmental Protection Authority. Well, we do not have reference to those responsibilities in the bill. Although the Minister said last year that those powers would be covered in this bill, we have a promise from the Minister that there will be further legislation at some point to confer those powers. That is not good enough. It should have been done with this legislation, particularly given the massive increase in prospecting and exploration activity that we are seeing off the coast of New Zealand at the moment. There needs to be proper, strong, central oversight of that activity. There needs to be a body that is responsible for consulting communities and iwi about that activity.

The Minister makes much of the work that the establishment Environmental Protection Authority has done already in terms of getting big projects going. What is needed is central, strong oversight; careful environmental management; and careful monitoring of all that offshore exploratory activity. Before that, what is obviously needed is strong consultation with affected communities. One of the reasons we are seeing so much disquiet and objection to existing drilling activity is that there has not been consultation. Affected communities, particularly iwi, do not feel that they have any sort of stake in the exploration activity that is going on at the moment. I want to hear from the Minister for the Environment, if he is able to address the question, on why such consultation requirements have not been put into the purposes and objectives of the bill.

The Environmental Protection Authority should be responsible for consultation. When people hear that we have an Environmental Protection Authority, they assume that consultation is one of the core functions the body ought to be undertaking. I know that the Minister tried to get that function into the bill, but he has not managed to get that set of activities taken into the work of the authority yet. At least, that is the assumption I have made. If there has not yet been a strong attempt to get that set of activities into the work of the authority, we should know why, and if it is to go in, we really need to know when. If we do not have some sort of certainty about this issue, the risk, as the Minister knows, is that we will have a central environmental agency that is weak. We have seen the dangers that result, as far as policy making and enforcement are concerned, from having a weak central environmental agency.

We all wish the Environmental Protection Authority well. We want to see a strong, independent, successful voice that will work as an advocate for the environment. We want to see expertise deployed in the centre that will allow for New Zealand’s incredible environmental potential to be realised. The worry here has to be that because of the odd, piecemeal conferral of functions on the Environmental Protection Authority, we will not see that potential realised. In particular, there will be major worries about public confidence in the entity if all this offshore activity is to go on for a period of time until the Minister can get the central oversight function conferred upon the Environmental Protection Authority, and if it is to occur in the current regulatory vacuum.

We have heard already this week from the Acting Minister of Energy and Resources that the only effective oversight body for offshore exploration at the moment is Maritime New Zealand. Well, that is not good enough. It is not good enough because we know that many, many entities are interested in ensuring that they can engage in offshore exploration. There should be central oversight, and there is not.

There are two other matters that I want to advert to in this initial contribution, and they relate to, first of all, the general structure of the bill. I have already said that the bill does not give the authority responsibility for oversight of offshore exploration and exclusive economic zone activity and that it should. I hope we will hear from the Minister as to whether and when the authority will be given responsibility for those activities, because he has given some undertakings on the issue that have not yet been fulfilled.

The other odd thing about the way the body is set up is that it takes functions under the bill from different entities. The Environmental Protection Authority will take on the hazardous substances and new organisms functions from the Environmental Risk Management Authority, climate registry functions, and certain other functions. In order to understand the powers of the Environmental Protection Authority in any particular case, one has to read the relevant empowering legislation alongside the particular other Act in question, be it the Hazardous Substances and New Organisms Act, the Resource Management Act, or the Climate Change Response Act. It is a clumsy way to require people to understand New Zealand’s environmental law. It is not a good way to promote accessibility of the law. It is not a good way to allow the layperson to be able to understand immediately the environmental statutory requirements in any particular case.

It would be much better if we were presented with omnibus, comprehensive environmental legislation that sets out not only the Environmental Protection Authority’s functions in a comprehensive sense but also an environmental code that the authority is responsible for administering, rather than having to go to all these different statutes and statutory instruments. That is the other aspect of the bill that is of concern. One has to go to a lot of delegated legislation and tertiary legislation to understand the requirements of the law in any case. Environmental law ought to be simpler and more accessible than that.

The final point I want to make relates to the Treaty obligations that are in the bill, or rather that are not in the bill; that is the problem. The different environmental statutes that will affect the work of the Environmental Protection Authority all have Treaty clauses in them, but they are different Treaty clauses. The Resource Management Act and the Hazardous Substances and New Organisms Act have requirements to take into account the principles of the Treaty, but they also refer to Te Tiriti, so by implication one has to look at the English and Māori versions of the text. However, the Conservation Act and the Climate Change Response Act require only giving effect to the principles of the Treaty; there is no reference to Te Tiriti.

I have tabled an amendment that would remedy that concern. The amendment would expressly require the Environmental Protection Authority to take into account the principles of the Treaty in carrying out its work. I think that would be a much preferable way to proceed, rather than to give the authority this four-headed mandate, whereby it has to work out on any particular occasion whether it is to give effect to or take into account the principles of the Treaty.

I am aware that my parliamentary colleague Rahui Katene has also tabled an amendment on this matter. I have indicated to her that we would be supportive of the approach in her amendment. I would have preferred that it had been before the select committee so that people could have made submissions on it. It is unsatisfactory that this sort of thing has to come up this late in the debate. I am a bit sad that the Māori Party was not able to influence National, its coalition partner, on the question of the Treaty obligations in the bill. But either way, whether we go with the Māori Party’s amendment or the one I have tabled, I urge the Minister to consider favourably the question of giving the Environmental Protection Authority, right from the start, an express and clear Treaty obligation, given that all other environmental legislation currently on the books in New Zealand does so.

That point in particular is one that it would be useful to hear a response from the Minister on. Clearly, on the other issue I raised—the piecemeal nature of this legislation—it is too late at this stage to fix it, but for the Treaty question it would be helpful to hear a response.

As I prepared for this debate today, by sudden good fortune an e-pānui newsletter appeared in my in-box. It was a newsletter from the Commission on Environmental, Economic and Social Policy, chaired by New Zealand’s own environmental expert and indigenous leading academic, Aroha Te Paraeke Mead. The newsletter was headed with a statement of vision, which said: “A world where equity is at the root of a dynamic harmony between peoples and nature, as well as among peoples.” There would not be a better model out there to demonstrate the meaning of these words than the global conference held by this commission earlier this year. The Sharing Power conference was a unique partnership between Te Rūnanga o Ngāti Awa, Te Whare Wānanga o Awanuiārangi, and the International Union for Conservation of Nature, and participants came from right across the globe.

We come to the Environmental Protection Authority Bill absolutely committed to an ideal of a world where “equity is at the root of a dynamic harmony”. There is absolutely no question that we need to uphold a commitment to this ideal when considering the matters of national significance in this bill. The authority has to deal with such matters as those called in under the Resource Management Act, the functions inherent in the Environmental Risk Management Authority under the Hazardous Substances and New Organisms Act 1996, or some other functions such as the emissions trading scheme under the Climate Change Response Act 2002.

From the point of view of tangata whenua, there is a lot at stake. All of the consultation with tangata whenua has promoted the need for Māori representation on decision-making boards to be increased to at least two representatives, and the establishment of a statutory Māori advisory committee. The committee should not be seen as a substitute for local iwi engagement, and iwi had a clear preference for the Environmental Protection Authority to be established as a stand-alone Crown agent.

I am not going to dwell further on the detail of implementation other than to say that we in the Māori Party were concerned to ensure the balance, the equilibrium, of so many competing priorities. We believe we have achieved this balance with two simple amendments to clause 3, which Mr Chauvel has referred to. They are in the amendment I have tabled, which inserts new clause 3A. It begins: “In order to recognise and respect the Crown’s responsibility to take appropriate account of the principles of the Treaty of Waitangi,” and seeks to maintain opportunities for Māori to contribute to decision making under an environmental Act. Part 2 of this Act establishes the Māori advisory committee. Clause 3A(b) states that all persons exercising powers or functions of the Environmental Protection Authority under an environmental Act shall apply any Treaty of Waitangi provision in that environmental Act. We believe that these two new provisions give effect to the principles of Te Tiriti o Waitangi in a way that will recognise and respect the responsibilities of the Crown to do the right thing. These provisions do not interfere with any of the specific Treaty provisions in the environmental Acts such as the Resource Management Act 1991, the Hazardous Substances and New Organisms Act 1996, and the Climate Change Response Act 2002. They should not create interpretation difficulties or increase the risk of a judicial review.

We appreciate the support of the Minister for the Environment and his officials in helping us come to a meeting point where we could agree on a mechanism to actively protect Māori interests and give effect to the principles of the Treaty of Waitangi. We are really pleased to have received the approval of many other parties in this Chamber for our amendment, and we thank them for that.

I will speak on clause 3, “Purpose”, in Part 1 of the Environmental Protection Authority Bill. I will address the purpose clause, and the purpose of the new authority. The purpose clause is one of the briefest purpose clauses I have seen. It just states: “The purpose of this Act is to establish an Environmental Protection Authority and to provide for its functions and operation.” I suggest there are actually three real purposes to the Environmental Protection Authority, none of which are spelt out in Part 1 of the bill.

The first is to set up something that sounds great. It is great public relations. National will be able to go into the election and say it has set up a wonderful, new, great-sounding authority, the Environmental Protection Authority. Not many people will actually read the fine print or realise, when they look at the functions of the new authority, that there is no objective to protect the environment. It sounds great, but it actually has no objective, whatsoever, to protect the environment—quite to the contrary.

If we read the objective clause, we see it is all about the efficient and effective management of New Zealand’s environment, which, of course, is code for setting up an agency that will enable us to undermine the environment. It will do that by enabling the Government, through the authority, to fast track major projects in New Zealand so that it can circumvent the Resource Management Act. It will enable the Government to ram through the roads of national significance and other things by circumventing the Resource Management Act. That is its major purpose.

In the last week I have discovered yet another hidden purpose to the Environmental Protection Authority. I realised this only when I read Rodney Hide’s latest paper on smart government or something like that—his latest paper on local government. It says, basically, that once the Environmental Protection Authority is in place it will be able to take over the regulatory functions of regional councils, thus enabling the Government to roll out its agenda for local government, one centrepiece of which is to get rid of regional councils. So once we have set up the Environmental Protection Authority, we will then say there is no need for regional councils to have those regulatory functions, because they will all be taken over by the Environmental Protection Authority. Then we will be able to say that actually there is no need for regional councils, at all. That is clearly spelt out in Rodney Hide’s latest local government paper.

It is no wonder Don Brash changed his mind and decided to keep Rodney Hide in the local government portfolio. If he had read Rodney Hide’s local government paper, which he probably did late one of these recent nights, he would have been rubbing his hands with glee, because the paper is all about implementing ACT’s agenda for shrinking local government and getting rid of as many layers of local government and democracy as possible. It turns out that the Environmental Protection Authority is all part of that agenda, because once it is established it will take over the regulatory functions currently done by regional councils.

I just wanted to spell out the real purpose of the Environmental Protection Authority. I wish it had the objective of protecting the environment; sadly, it does no such thing. It is providing a mechanism for the Government to undermine our environment by fast tracking projects that would normally, under the present situation, attract huge opposition. Major projects such as roads and motorways being bulldozed throughout New Zealand would ordinarily attract huge opposition, because they will undermine the environment in so many ways. We have set up this authority to enable the Government to get around the Resource Management Act.

The establishment by the Environmental Protection Authority Bill of the Environmental Protection Authority is all about creating a strong, independent regulatory authority that, contrary to Sue Kedgley’s opinion, will protect our natural environment. It fulfils National’s election promise, and will improve the environmental management system at a national level. Internationally, New Zealand is known as a beautiful country, and New Zealanders are known to appreciate our great outdoors. The Environmental Protection Authority will help us deliver on our “clean, green” image. It will give greater central government direction and more consistency to the management and regulation of the environment. It will bring together a whole range of regulatory functions, and provide stronger direction to the environmental roles of regional and district councils. The Environmental Protection Authority will be a one-stop shop for environmental regulatory functions: consenting, monitoring, and providing technical advice. It will provide more effective, efficient, and transparent management of regulations in relation to New Zealand’s environment and natural and physical resources. The authority is a very positive step for New Zealand, and for all New Zealanders.

Kia ora, Mr Chair. Thank you very much for the opportunity to speak in the Committee stage of the Environmental Protection Authority Bill. Labour opposes this bill, and we will do so vigorously. I will tell members why. We voted for the bill at its first reading because we believe in democracy. Democracy is about letting communities—local people—have a say in interests that will affect their lives. Our opposition is because we listened; now we will highlight the rationale for our opposition.

In the explanatory note of the bill it is stated that the Environmental Protection Authority arose from a decision to remove political interference. Well, that is a complete joke. As we all know, the Minister will have more influence, not less, and the members of the Environmental Protection Authority, whom the Minister will appoint, will advise and make recommendations to the Minister regarding how the Minister can use call-in powers that circumvent Environment Court processes. How will that help to ensure that local communities have a say? Providing a formal ministerial mechanism to fast track projects actually circumvents democracy, and it is absolutely appalling. Members on this side of the Chamber reiterate that we think it is vital that local people—mum and dad New Zealanders—have an opportunity to have a say in developments that are happening in their communities.

💬 Hon Dr Nick Smith: But they do.

They will not have a say in their communities, because the Minister will veto them. That is the reality.

There is no correlation in objectives and functions between the Environmental Protection Authority and the Resource Management Act. That Act, under this body, plays a significant role, as the Minister knows. Again, I ask why not. For the Minister it is all about mimicking and minimising the voices of local people.

💬 Hon Ruth Dyson: Again.

That is right. We want and need the Environmental Protection Authority to have functions that actually say it will protect the environment. I think it is absolutely ridiculous to have such a title, the Environmental Protection Authority Bill, when the bill will not even protect the environment. How ridiculous! The bill, of course, comes from that side of the Chamber, because those Tories over there do not care about communities or about local people having a say. Otherwise they would not put in place processes like this that actually minimise the ability of mum and dad New Zealanders to have a say in the developments that will affect their lives. You do not care. For you it is all about big business—

The CHAIRPERSON (Lindsay Tisch): I know that the member is learning, on these occasions, but whenever she says “you” it refers to the presiding officer at the time. Members cannot use the word “you”. The member can use the words “the members” or “the member”, but not the word “you”.

My apologies again, Mr Chair. I will refer to the opposition, which is them, because that is who I am talking about—the opposition.

💬 Hon Members: That’s you. You’re the Opposition.

No, I am talking about our opposition, which is those members.

The third thing I will highlight is to ask which voices the Tories want to minimise and silence. Of course, they are Māoris, are they not? The Government does not want to let Māori voices have a formal opportunity to participate in these decision-making processes.

💬 Charles Chauvel: Te Whānau-a-Apanui.

Yes, Te Whānau-a-Apanui is the most recent example. Hekia over there might laugh but, “heck, yeah!”, I do not think that her whānau are laughing with her, unfortunately for her. It would not surprise anyone that it is Māori voices. Labour will oppose that. Labour vigorously opposes the fact that there is no Treaty clause in this bill. I compliment my colleague on my side of the Chamber, the “Hon to be” Charles Chauvel, on his amendments. I also say that the Māori Party has been happy, and it is wonderful to see that it has put forward an amendment. However, we have to question why it has taken those members so long.

As we know, a Māori advisory committee will be paying only lip service, which is not mana-enhancing. It certainly does not enhance the mana of hapū and iwi. The reality is that the proposed Māori advisory committee might be able to contribute to the decision making, but Rahui will know that if the committee members have something to say there is actually no requirement for the Environmental Protection Authority to listen to them. Is that not really interesting? The Māori advisory committee might want to say things about different issues, but the Environmental Protection Authority will not have to listen to it. That is what we have been used to, which is why we think we need a Treaty clause to make sure that when Māori say something, they are listened to. Māori should be consulted with and listened to.

💬 Hilary Calvert: Along with everyone else.

Yes, exactly. I expect that from National, I must say—

💬 Hon Ruth Dyson: And ACT.

—and ACT, of course—but I do not expect it from the Māori Party. So it is good to see that party finally put forward an amendment that will ensure there is a Treaty clause in this legislation. It used to be a minimum requirement, actually. Tariana will know that, because she has fought hard over the years to make sure of that.

I will make a brief contribution on some of the points that have been made in the debate on the Environmental Protection Authority Bill. I will go through them. The last speaker, Louise Wall—

💬 Hon Ruth Dyson: Louisa.

—Louisa—claimed that this bill has a veto power for the Minister. I simply ask her to say which clause. There is no veto. In fact, it is very interesting—the only power that existed for a Minister to veto a decision under the Resource Management Act was used by Chris Carter when he vetoed the decision on the Whangamata marina. A National Government repealed that provision, because on our side of the House we wanted environmental processes with integrity. In fact, there is no power in this bill for any ministerial veto over decisions. I make a further point, which is that Ms Wall claimed there were provisions in the bill to cut out the right of communities, for iwi and hapū, to have a say on a decision. Again, I challenge her to say which clause. No such clause exists in this part or this bill. I simply say this Parliament deserves better than those sorts of nonsense contributions that have no reflection of the bill before the House.

I acknowledge the enormous contribution the Māori Party has made to the bill. In the early stages Pita Sharples and the Māori Party made very strong submissions that they wanted these powers to be considered by an autonomous agency. That is exactly what we have done. An alternative point of view was put forward by officials. National, closely working with the Māori Party, agreed, and that is what is provided for. Rahui Katene has tabled a Supplementary Order Paper on this bill that provides for a Treaty clause. The Government will support that provision. It is a complex issue. Let me explain why to the Committee. The principal aspect of the Environmental Protection Authority is picking up administrator functions in the Resource Management Act, the Hazardous Substances and New Organisms Act, the Ozone Layer Protection Act, and the Climate Change Response Act. We do not want to provide legal confusion on a whole lot of sets of decision making. Rahui Katene, with her amendment—in my view, very wisely—has not changed the respective Treaty provisions in each of those Acts, but has made plain that the Environmental Protection Authority has those responsibilities. In my view that is quite sound.

Charles Chauvel raised a very proper point in his contribution, which was that the Environmental Protection Authority should have a role in managing regulatory functions in the exclusive economic zone. I do not think there is a member in this Committee who sat back and looked at the disaster that unfolded in the Gulf of Mexico who did not say that that needed to be addressed. We need to make sure that we have world best practice in New Zealand for dealing with those sorts of risks. Let me say exactly what the Government has done. We had done substantive work in relation to providing a regulatory environment for the exclusive economic zone when that disaster occurred. The Minister of Energy and Resources and I said we should hang on a moment; the work done on that issue was done before that disaster. We needed to kick the tyres to make damn sure we were getting the regulatory provisions right for it, so we sought an independent report. That independent report was provided to the Government late last year, and officials have been working on a substantive bill. Of course, this bill was introduced before that work was done. It is our view that we need to do that very robustly. It is my intention as Minister for the Environment to introduce a bill into the House this year that will provide for the proper role for the Environmental Protection Authority in regulating environmental effects in the exclusive economic zone. I look forward to the support of the House for what is an incredibly important piece of work, given that—we note—our ocean area is 16 times the size of our land area. This Government’s view is that we want to be able to utilise the resources in that space, but, equally, we want to do so in a responsible way.

The last point I wish to make is about some of the views in relation to the functions. The Green Party and a number of others have cried foul and asked why we do not have a set of high-level, broad environment principles that apply to the Environmental Protection Authority. I will explain to the Committee exactly why that would be an unnecessary and bad thing to do. We have, under the Resource Management Act, very long-debated principles of sustainable management. Charles Chauvel will know there have been long debates in the courts about defining what those principles are for the 50,000 resource consents per year that come before resource consent decisions. Equally so, there is a different provision under the Hazardous Substances and New Organisms Act. There is another provision in respect of the Climate Change Response Act. There is a further provision under the Ozone Layer Protection Act. If we started putting in the sorts of provision that the Greens or others propose, are decision makers making decisions about ozone protection, resource management, climate change, or any of those issues to apply the principles in the base Act this Parliament has agreed to, or are they to apply the principles in the Environmental Protection Authority legislation? That would create a legal nonsense. That would not work, so I simply ask the Green Party and Labour to reflect on their rhetoric, and to think in a thoughtful way about how we can provide the Environmental Protection Authority with clear instructions for how it administers those very important Acts.

I am pleased to take an initial call in the Committee stage on the purpose of the Environmental Protection Authority Bill. Of all the bills that have, and indeed might, come into this House, a bill that seeks or purports to establish an Environmental Protection Authority would be a bill that the Greens would support over all others. Indeed, we supported the bill to the first reading in the hope—a forlorn hope, as it has proven—we could get sufficient movement on the provisions of the bill at the Local Government and Environment Committee, so that it might be something we could continue to support. Regrettably, that has not happened. The bill, in its somewhat amended form, is still far short of anything that we could put our name to willingly.

Over all other things, a Green Party that in part grew as the parliamentary wing of the broader environmental movement would seek—indeed, it has long been our policy to see—the establishment of an Environmental Protection Authority, as ecological wisdom is one of our core principles. Indeed, some would have us stick to environmental issues and not engage in other social or economic issues. Of course, that is nonsense, given that we know that protection of the environment is also protection of our communities and of our people.

Of all the countries in the world, New Zealand is economically reliant on the quality of our environment. If we do not have a clean, green environment, we have a very, very vulnerable economy. Those links are very well made. For that reason, it is essential that we establish some sort of well-resourced, strongly autonomous authority that has real authority to make decisions, and to make determinations in the event that applications are made for developments, projects, or whatever it might be with an environmental effect—in particular, an adverse environmental effect.

There is a great deal of potential support for an authority, and the Minister must be pleased by the quality of the submissions on the bill that came from groups like the Environmental Defence Society, the umbrella group Environment and Conservation Organisations of New Zealand, the Royal Forest and Bird Protection Society, and numerous smaller but very credible and articulate groups who had opinions about the bill. For so many of them the recurring theme was to question the authority, the power, and the autonomy of the organisation.

The purpose of the bill is to establish an Environmental Protection Authority. The challenge we put back is to ask where the authority is in the agency, given that the status of the agency will be such that it is liable to ministerial direction. The authority is obliged to accept ministerial direction. Of the three levels under the Crown Entities Act, this type of organisation is the weakest form of Crown entity that one can have. That is unfortunate. The authority should have some genuine autonomy and be able to stand up to a Minister—be it this or any other Minister who might be seen to be swayed or persuaded, for whatever reasons, that a particular development is desirable. The agency must genuinely have the authority to say no. We need an organisation that can say no.

It is our clear belief that the purpose of the authority, as the bill is modelled, is to be an authority that is empowered to say yes more quickly. We have heard much talk about streamlining, efficiency, and simplification, specifically of the Resource Management Act, and those are good things. I do not believe that public processes, be they environmental or any other, should be deliberately complex, convoluted, or lead to significant delays for developers or those opposing or supporting development. In this instance, however, I think the rhetoric about balance between the economy and the environment is purely rhetoric. The framing of the argument that we must achieve balance simply denies the reality that we cannot balance environmental degradation—which tends to be at least long term if not permanent—against some perceived or hoped for short-term economic gain.

In terms of the purpose of the bill, we have decided we will no longer support the bill, because there is simply nothing in it that gives us any satisfaction that the authority will be a genuine protection agency.

As I embark on debate on Part 1 of the Environmental Protection Authority Bill I will comment that I think the bill is a failure, not just of the Minister for the Environment but of Cabinet. I am sure the Minister wanted to achieve more, but when I look through the bill in the form in which it goes through the Committee stage I see five failures: timing, the scope of the bill, the budget it carries with it, the delivery it brings, and the promises that were held for it.

I take the Minister back to a speech he gave 2 years ago this month to the Planning Institute where he said he wanted to have the Environmental Protection Authority operational by 1 July 2010. So the bill is a year late.

💬 Hon Dr Nick Smith: I did.

It is on record that the Minister wanted it up and running in July last year.

💬 Hon Dr Nick Smith: It is.

It is 2011 now. The Minister said that by 1 July 2010 he wanted the authority to be fully operational and expanded, not a ministry of five or six staff seconded across from the Ministry for the Environment. A ministry employing seven staff is not the fully operational Environmental Protection Authority that the Minister wanted by 1 July 2010.

The second failure is the scope of the bill. As my colleague Charles Chauvel has noted in his amendments, it was certainly envisaged that the agency would have a range of functions that are certainly not provided for. The Minister has given us an indication that later in the year he wants to bring in some additional scope for the bill in respect of the exclusive economic zone. In the Minister’s speech 2 years ago he was looking at the issue of ocean management, which is not mentioned in the bill, the implementation of the Waste Minimisation Act, and other environmental priorities. This is the Environmental Protection Authority and those are environmental priorities, but they are not mentioned in the bill and therefore are not being given the duty of care we envisaged from the Environmental Protection Authority.

I note from commentary in the Select Committee News of 18 June 2010 that the Minister was saying that 40 staff associated with administration of the emissions trading scheme would be coming across to the authority. I know there are about 90 staff coming across from the Environmental Risk Management Authority. That is 130 staff. Where is the rest of the staff to do the big tasks for the environment? I understand that the staffing level is estimated at 140. There is also the fast-track mechanism. So I cannot see that there is any additional resource. It is simply a carry-over; existing staff are being put into a new agency. Where is the brave new world for the environment that was going to be created from the Environmental Protection Authority, as the Minister heralded in the Bluegreens document of 2006? The authority was going to create a brave new world for the environment, and it was going to be allied with a ministry for sustainable development, which never emerged. It absolutely disappeared in the process. What we have come back to is an Environmental Protection Authority, the purpose of which is defined by the bill as “to establish an Environmental Protection Authority and to provide for its functions and operation.”

Compare and contrast that with the objectives, goals, and functions of the Environmental Protection Agency in the United States, which was a brave model. I have to say it became a tainted model, because President George W Bush put people in charge who had come out of organisations like Monsanto and the mining industry, who are not exactly going to be environmental warriors. I know we are not going down that track with the appointments that will be made to head this Environmental Protection Authority—well, one hopes not. But the objectives of the Environmental Protection Agency in the States were to address clean air and global climate change, to have clean and safe water, to have land preservation and restoration, to have a commitment to healthy communities and ecosystems, and to have compliance and environmental stewardship.

Where are those objectives in the bill? There is no reference to those kinds of objectives. They should be at the heart of the bill, because the Environmental Protection Authority is the agency that should be delivering on those objectives. If those objectives are not specified in the bill, how on earth can the handful of officials, few as they are, who are not going to be transferred over, who are not going to be tied up continuing the duties of the Environmental Risk Management Authority under another name, who are not going to be managing the Hazardous Substances and New Organisms Act—and who actually might have some capacity to deliver on all those brave environmental objectives set out in the Bluegreens agenda? How are the officials going to deliver on those objectives if they are not spelt out in the legislation the officials are required to operate under? It is a greatly disappointing document, to say the least.

We wanted to see a strong Environmental Protection Authority. It is absolutely essential to have a strong Environmental Protection Authority, but it has to be resourced, it has to be given the leadership, and it has to be given the principles, goals, and objectives that it will work to. Otherwise, the chances are that it will not deliver. It will not deliver for the environment. The track record of the Minister for the Environment on these matters is concerning to us all. I note the recent delivery of the Land and Water Forum report, a process I utterly applaud. It absolutely picked up the model that had been developed in Canterbury in respect of the Canterbury Water Management Strategy—led by Environment Canterbury before its demise as a democratic organisation. I absolutely support the Land and Water Forum and the bringing together of all of those parties. But what was the Minister’s prognosis for what will happen from here on in respect of the recommendations made? He said it will take “several years” to implement the recommendations of the Land and Water Forum—several years. What will happen in the interim to the waterways of my province of Canterbury, when we have a doubling of the production at the Synlait milk powder plant, a plant very close to the township of Dunsandel, which has had E. coli in its water supply for the last 18 months? What will happen to the water around the plant Fonterra is going to build out at Darfield—a 2 million litres a day processing plant? What will happen to protect the waterways of my province in the several years of interim?

The Minister has often used the phrase “the long 9 years of the Labour Government” in terms of its supposed inaction on water. The policy statement on fresh water landed on his desk as he became the Minister; 2½ years on, nothing has happened with it other than his referring it, kicking it for touch, to the Land and Water Forum. Now the Minister is saying it will take several years. So there will be 9 long years, perhaps, of inaction before the Minister actually gets something into place. I would like to know what the Environmental Protection Authority will do. What tools has it got, what staffing resources has it got, and what objectives has it got to deliver on environmental outcomes that will improve the water quality of my province and the rest of New Zealand over the next several years while we wait for the Minister to start implementing the national freshwater policy statement and the recommendations of the Land and Water Forum?

It is enormously disappointing to those of us with a real and genuine commitment to environmental policy to see this bill come through, because high hopes were built for it. All that we are actually seeing is a continuation. I think Colin James in an article in various newspapers in January hit the nail on the head when he said that the Minister is committed to environmental policy but the problem is he does not have the upper hand in Cabinet. The economic growth cabal is in charge. It wants fast-track growth, it wants to see the roading projects pushed through under urgency, it wants to see the new growth in the dairy industry without environmental checks and balances, and in the interim the environment will have to pay the price. That is an appalling outcome and consequence. It puts at risk our very basis as a nation, because we trade every day in the international market place on the premise that we are clean and green and that we are a nation with an absolute commitment to environmental outcomes. We trade on that reputation daily, we trample on that reputation daily, and this bill, very disappointingly, will not provide any halt or any sense of balance to that growth record.

It is absolutely a disappointment to us that we are not seeing any real commitment of funding, any real commitment of policy, or any real commitment of objectives that would see some reversal of some of the environmental declines that we have suffered as a nation. We all want to see the outcomes of sustainable growth. We all want to see our farmers able to access water, as long as they do so as responsible environmental stewards. We want to see that. This bill could have been the mechanism which began the process of turning back the clock on old-time practices—using the environment simply as a tool for production and not regarding it as our greatest treasure and taonga—and really began a process that said to New Zealand that we will uphold our environmental values. They are truly important to all our futures.

The people who will suffer the most from this bill not starting to deliver on that are those in the farming community, because they are the ones who, on the first analysis, will be penalised by international markets as they begin to see that our environmental track record has not improved, and will not improve for several years. This is the bill we had hoped would see the turn-round of that. It is enormously disappointing to see it come through in a way that simply allows the continuation of pro-growth strategies without the environmental consequences being taken into account. I think Bill English has won the debate within Cabinet. There should have been real resource for this bill and this agency.

I move, That the question be now put.

It is with considerable disappointment that I speak in the Committee stage of Part 1 of the Environmental Protection Authority Bill. I am disappointed because this should have been a bill that every single member of this House, with the exception of the ACT members, would support. This was an opportunity for the Minister in the chair, the Minister for the Environment, to make his mark on environmental protection in New Zealand. It was an opportunity for him to stand up for the things that he pledged and promised to support up and down the country in the run-up to the last election—and, in fact, to the election before that—and to put some reality to the farce of the Bluegreens. He would have got the support of the House had he had genuine legislation that offered better environmental protection.

My colleague Brendon Burns, the member of Parliament for Christchurch Central, was pretty generous. He said in the Chamber just moments ago that the Minister does care about the environment and is passionate about it—that is pretty generous—but that he just got rolled at Cabinet. Well, we could give the Minister the benefit of the doubt, but if others had been in his position, they might not have signed the Cabinet paper that introduced to this House such mickey mouse legislation. They might not have signed that Cabinet paper. That option is always open to the Minister. The officials will come up with all sorts of ideas. The Minister clearly knew that he would be rolled had he put up a strong and comprehensive package of environmental protection, because that is not what his Cabinet colleagues want. So instead he settled for this, frankly, embarrassing legislation. We were hopeful that there would have been some robust debate at the Local Government and Environment Committee, and that the Minister might have been able to gather some steel in his spine and offer some Supplementary Order Papers that strengthened the provisions. It was not the case.

That should not be a surprise, though, because National has an abysmal record in the 2½ years that it has been in Government. The National Environmental Standards for Air Quality, for example, have been pushed right out to 2018, and as a Cantabrian I know very well the huge and negative health impact that the lack of air quality standards has on the health of individuals. The Minister does not seem to give a toss about that, which is surprising given that his benchmate is the Minister of Health. It is a wonder that the Minister of Health did not mention to him that by pushing out those air quality standards, we are literally endangering people’s lives and well-being. The Minister was responsible for, and seems to be quite proud of, watering down the emissions trading scheme so that basically we have polluters being rewarded for bad behaviour, rather than having financial penalties attached to it. Of course, the Minister and his personal friend Gerry Brownlee tried to open up schedule 4 parts of our country to mining. That caused an eruption, a public outcry, up and down the country. There were more people on the streets in Auckland than we have seen for decades, protesting the proposal of the Minister and his colleagues to have mining on schedule 4 land in New Zealand.

So I do not know why we would be surprised that this bill is as poor, as weak, and as frustrating as it is. It could have been a really big opportunity for our environmental protection to be strengthened, but instead the Minister has just thrown away that chance.

Another disappointment I have is that Chris Auchinvole, the chairperson of the Local Government and Environment Committee, which considered this bill, has not yet taken a call. If he is embarrassed about what happened earlier in the day in the Committee stage, then I would not be surprised. If I were him, I would be furious. I would be hopping mad to see a member of a tiny party, which has recently become smaller, come into this Committee and tell all of us that the Minister has agreed to an amendment that the select committee did not have the opportunity to discuss. That party is in coalition with National, but it did not even give the chairperson of the select committee any respect at all—a respect that, in my view, he deserves, because I have watched him chair select committees through bumpy times—by having the amendment discussed at the select committee. That is a disgraceful way to treat colleagues. I say to Mr Auchinvole that if he is hopping mad, then I share his frustration. I think the chairperson of the select committee should share his frustration with the Minister.

To talk more specifically, though, the amendment in the name of Rahui Katene inserts new clause 3A into Part 1. I am gobsmacked that we now have introduced at this stage, with no proper parliamentary scrutiny, an absolutely brand new definition for the Environmental Protection Authority to have to respond to. This clause says the Environmental Protection Authority will have to “recognise and respect the Crown’s responsibility to take appropriate account of the Treaty of Waitangi”. What does that mean? There is not a single piece of legislation in New Zealand law that uses the words “take appropriate account”. This amendment, introduced on the floor of the Chamber with the Minister’s agreement, but without select committee discussion or officials’ advice, introduces a brand new test for a brand new authority that does not even have as one of its functions the protection of the environment.

I want to hear from the woman who should be the leader of ACT, Heather Roy. I want to hear from her what her party thinks about a brand new test coming in. I also ask the Minister what “take appropriate account of the Treaty of Waitangi” means. I challenge the Minister to take a call and put on record what those words mean.

💬 Hon Dr Nick Smith: Already have.

He is wrong again. He has not explained what those words mean, nor has the member who exposed to the Committee the knowledge that the Minister had already agreed to this shonky, backroom deal, undermining not just the chairperson of the select committee but the entire select committee process. It is not acceptable for a new test to be introduced in relation to the Treaty of Waitangi, particularly by a party that lambasted Labour when we were in Government about our provisions in terms of recognition of the Treaty.

That is why I support my colleague Charles Chauvel’s amendment. It is consistent with other legislation. It will not need to be retested. It will not need to be argued about and debated and considered. There is a tried and true meaning of the words in his amendment, and, in my view, it is much more sensible. I do not know why the Māori Party, which says it wants to enhance the mana of Māori in this Parliament, would put forward such a weak amendment. The words “take appropriate account” are, frankly, an embarrassment to the mana of Māori. Is that what the founding document of our country has come to, with a party that says it enhances the mana of Māori? I ask Mrs Katene what “take appropriate account” means. I have no idea, and nor will the Environmental Protection Authority.

This amendment is an embarrassment. I challenge the Māori Party to think again and withdraw this weak amendment, which has been put forward only because the Minister found somebody he could get his way with and could win a debate with, instead of Cabinet, which clearly rolled him on anything that would have given proper strength to environmental protection. The only reason that this amendment in the name of Rahui Katene is here is that the Minister agreed with it. I challenge Mrs Katene to withdraw the amendment and put the name of the Māori Party, and its voting weight, behind the amendment of Charles Chauvel. That is the proper way to recognise the Treaty, particularly in an area as important as environmental considerations and process.

It would have been far preferable not to have such a mickey mouse outfit. The Minister agreed and explained to the Committee that most of the policy work that is required in order to have a comprehensive framework of environmental protection is yet to be done, but at some time in the future that work will be done. We will then get another bill before the House that will give proper environmental protection.

I move, That the question be now put.

The CHAIRPERSON (Eric Roy): The question is that the question be now put.

I raise a point of order, Mr Chairperson. I recognise that it is your absolute discretion as to whether to put this question, but I wonder whether you would hear me on one matter. It relates to the fact that, as Ruth Dyson pointed out in her contribution, this is the only time that the House will have the opportunity to debate this new and novel Treaty clause. I implore you to allow one or two more calls on it, because this debate is the only parliamentary scrutiny that this clause will get. I would very much like to be able to speak in a bit more detail about it. I think it would be really important—

The CHAIRPERSON (Eric Roy): I appreciate the member’s concern. I have been listening very carefully to the debate, both before I came into the Chamber and currently. Every member in the Chamber seeking a call has had one and the member himself has had two calls. There are only three clauses in this part. I understand what the member is saying, but I have listened to the debate and I have determined that it is time that I put the question on the closure motion.

I raise a point of order, Mr Chairperson. It is a point of clarification. My understanding was that the alternative amendment on this question was lodged before this amendment. Would that not entitle it to be voted on first?

The CHAIRPERSON (Eric Roy): This amendment is to insert new clause 3A. Chronologically, it occurs earlier in the bill, so the question is put on this amendment first.

The question was put that the following amendment in the name of Rahui Katene to Part 1 be agreed to:

to insert the following clause after clause 3:

3A Treaty of Waitangi (Te Tiriti o Waitangi)

In order to recognise and respect the Crown’s responsibility to take appropriate account of the Treaty of Waitangi—

(a) section 17 establishes the Māori Advisory Committee to advise the Environmental Protection Authority on policy, process and decisions of the EPA under an environment Act; and

(b) the EPA and any person acting on behalf of the EPA must comply with the requirements of an environmental Act in relation to the Treaty, when exercising powers or functions under that Act.