Environmental Protection Authority Bill

This is the part of the legislation that deals with the actual set up of the Environmental Protection Authority, its membership, its board provisions, its objectives, and its relationship with the Minister. It includes clause 7, which sets out that the authority is to be a Crown entity. It also includes clause 11, which sets out the authority’s objectives, and clause 12, which sets out the authority’s functions. I mention those three clauses in particular because there are amendments lodged in my name that would amend each of those clauses. I would like to speak to the issues that each of those amendments raises.

We have already heard in the debate on Part 1 that the Environmental Protection Authority is not a comprehensive environmental regulator that the Committee is debating the creation of. The Minister said that it is proposed to give the authority further functions at a later date. That will occur, we are told, both by additional legislation and by ministerial direction. We have already said that it would have been much better if, rather than having this piecemeal, adding-in approach from time to time, the Minister had brought comprehensive legislation to the House. That is not what has happened, and as a result the law is left in a confusing and unsatisfactory state. This is something that the submitters to the Local Government and Environment Committee pointed out time and time again.

There were many other logical functions that ought to have been carried out by the Environmental Protection Authority, and a couple were added in by the select committee. There were the ozone layer protection functions, and the import and export functions that were formerly carried out by the Ministry of Economic Development. But so much more could be done by the Environmental Protection Authority. The Waste Minimisation Act could have been brought within the ambit of the authority. That would be a natural and sensible thing to have done. The authority could be the body that would urge the Minister to get on with creating the product stewardship schemes, which members on this side of the Chamber would so love to see, under that Act, so that this country could have, at last, decent recycling, waste minimisation, and reuse policies put in place. There are many more additional functions under the Resource Management Act that could, and should, be carried out by the Environmental Protection Authority. We have already talked about the coastal and marine management issue and the exclusive economic zone issue.

Like my colleague Brendon Burns, I take the Minister at his word. I know that he is somebody who wants to see the right thing done in this area, but I am concerned that it has not been done. I am concerned that the delay in bringing those functions into the Environmental Protection Authority, while there is all the extra activity going on in our coastal and marine areas around minerals exploitation, will lead to a loss of public confidence in the new environmental protection agency from the outset, because that body does not have any authority to deal with those issues. As we heard from Sue Kedgley in the debate on the earlier part, that is a real problem.

When people hear the expression “Environmental Protection Authority” they think that is a body that will be protecting the environment—

💬 Hon Dr Nick Smith: It is.

There are so few functions, I say to the Minister, that inhere to that authority from the outset that it cannot be said that that is what we are creating today.

We have already talked about the manner in which the Environmental Protection Authority is intended to function. The Minister has taken functions away from other entities, like the Environmental Risk Management Authority. He has taken the hazardous substances and new organisms function away, and he is putting it into the Environmental Protection Authority. Likewise the Climate Change Response Act responsibilities will come from the Ministry for the Environment and elsewhere, and they will go into the Environmental Protection Authority. What we will have is environmental law by hotchpotch. The Minister will be creating under this regime a necessity, as I said earlier, to read with the Environmental Protection Authority legislation the particular piece or pieces of other environmental legislation that are in question.

The other problem is there is this provision in the legislation that will allow the Minister to direct the Environmental Protection Authority to carry out additional functions from time to time. The assurance we have had from the Minister and from his officials is that these will be only minor, ancillary functions. No substantive new functions that require legislative amendment will go to the authority as a result of ministerial direction. It is: “Trust me. We’ll do it the right way”. I see the Minister smiling, because he knows that the problem is there is just no bright line in our law between a substantive and an ancillary function. I expect that when the Minister takes a call he will point to some provisions in the legislation that touch on this matter, but it really is not satisfactory that new functions should go to the Environmental Protection Authority simply by political judgment and ministerial fiat. It should be the legislation that founds the authority that gives it decent and comprehensive functions from the outset.

There is an amendment tabled on this matter. It would add in a couple of functions for the authority from the outset. It would remedy the failure to deal with coastal and marine management, as well as environmental management of the exclusive economic zone, by putting those functions directly into the functions of the Environmental Protection Authority right from the outset. I do not pretend that that is a substantive answer. I accept that further legislation would be required in order to accomplish that fully. But the Minister has told us that he has a report. This is an urgent matter: the drilling is happening. The exploratory licences are being granted. The public do not want to wait for a proper regulator and a proper body that is designed to be in charge of public consultation on these issues. They want to see that happening now. There is no reason, with the constitution of the Environmental Protection Authority by the legislation that this House is now accomplishing, why we cannot do that. There is a separate amendment that would add the administration of the Waste Minimisation Act into the functions of the authority, and I commend those two amendments to the Committee.

The next point that concerns me in respect of this part is the actual function or responsibility of the Environmental Protection Authority. As I said before, when people hear the expression “Environmental Protection Authority” the immediate thing that springs to mind is a body with comprehensive and independent regulatory powers over the environment. The problem here is that this body does not even have an express responsibility to protect the environment. Nowhere in the statute will that requirement be found. That is why I have put forward an amendment that will insert in clause 11 an express objective for the authority, which will be to protect, maintain, and enhance New Zealand’s environment. It is a crying shame that the Minister did not think that that overarching objective ought to have been in the bill from the start. The failure, in my view, to do that speaks volumes about the commitment of this administration to the fundamental importance of protecting and maintaining the integrity of the environment. I say to the Minister that we must have something of that nature in this legislation. A strong objective must be put in from the start; otherwise his work will be, in large part, for nothing because of the public confidence issue that I referred to earlier.

The final amendment I have put forward that is relevant to this part relates to the independence of the Environmental Protection Authority. There are three types of Crown entity under the Crown Entities Act: Crown agents, which have to give effect to Government policy when directed under the relevant legislation by the responsible Minister; autonomous Crown entities, which have to have regard to Government policy; and independent Crown entities, which cannot be directed by the responsible Minister unless there is an express power.

The problem we have here is that it is quite obvious that the legislation sets up the Environmental Protection Authority as something other than an autonomous Crown entity. In fact, in respect of some of the powers in the Act, such as the hazardous substances and new organisms powers, it involves taking authority closer to, rather than away from, the Crown.

I will take only a very brief call to respond to two of the points made by Charles Chauvel. The first is a point that has also been made by the Green Party members. Why, they ask, do we not put a specific environmental protection function into all the decisions that the Environmental Protection Authority makes? The very simple answer to that is this.

💬 Hon Steve Chadwick: An overarching requirement.

Yes, but let us just test that. Would that achieve the objective? I put these questions to members of the Opposition. Does the Resource Management Act protect the environment? Yes, it does. Does the Ozone Layer Protection Act protect the environment? Of course it does. Does the Hazardous Substances and New Organisms Act protect the environment? Of course it does. [Interruption] So the issue I put to Steve Chadwick, who is interjecting, is this: if we have a different set of objectives in this legislation, when the authority comes to perform its functions in those other Acts we will end up with a legal mess. If Labour wants to create that sort of legislation, well, it would be pretty typical, but that is not where this Government stands. That is why that is not a sensible proposition.

I refer to the second approach, and that is in respect of the exclusive economic zone and Charles Chauvel’s amendment. I have a simple question for him. Do we really think that the marine environment would be better managed? Let me tell members what the amendment would do. Who is responsible for managing the fish if we say it is the role of the Environmental Protection Authority to manage the exclusive economic zone? All the amendment says is “to carry out the environmental management of New Zealand’s Exclusive Economic Zone”. What a mess! We would have the Environmental Protection Authority and the Ministry of Fisheries, under a whole number of Acts, with functions. What about marine mammals? They are the responsibility of the Department of Conservation. So what is Labour saying about the department’s role in protecting marine mammals?

The reality is that if this Committee votes for the amendment that has been put forward by Charles Chauvel, we will end up with an awful mess whereby neither the authority nor the Department of Conservation nor the Ministry of Fisheries—[Interruption] Steve Chadwick says that somehow that would not be the case. This legislation sets out the functions very clearly between those bodies, and if members vote for this amendment, who, I ask Steve Chadwick, will be responsible for fisheries? There is silence. Labour has no idea. The amendment has not been properly thought through, and that is why National will not be supporting these sorts of amendments, which are nothing more than political grandstanding. National will do the hard yards to come up with really good legislation that will properly protect the exclusive economic zone and provide the sort of environmental framework that this country deserves.

I am pleased to follow on from the sophistry of the Minister for the Environment in respect of the Environmental Protection Authority Bill. The Minister pretends that this bill will deliver for the environment. This is a doughnut piece of legislation for a doughnut agency. There is a thin perimeter of staffing and cash and a great big hole in the middle. The bill should be called the “Environmental Projection Authority Bill” because it does not deliver. It might hold some hope but it is certainly not delivering for the environment.

The Minister has suggested that the exclusive economic zone legislation cannot be protected by the Environmental Protection Authority, but that differs from what he told the Local Government and Environment Committee back in June of last year. The comment I will read is as reported in Select Committee News. He said that a report on the issue of the exclusive economic zone would be ready in August and his preference was “to have that EEZ legislation and the EPA legislation as one package, because it is our view that the EPA will be the proper place for regulating environmental activities.”

So we come back to this doughnut bill and this doughnut agency with a great big gaping hole in the middle of it, and that is the exclusive economic zone, Antarctica, and a whole range of other environmental activities that should be the subject of scrutiny and involvement by this agency but are missing in action. That is because the Minister could not deliver, and that is because his Cabinet colleagues want growth. They want to see the seabed mined, and they do not want any agency to stand in their way. The growth agenda will take precedence, no matter what. The Minister might have thought he might be able to turn them round, but this bill is testimony to the fact that he has failed miserably in that task. It does not hold to even the promises that he projected he would be delivering on. The bill is an abject failure in his responsibilities as the steward for the environment on behalf of the Government. He has failed to deliver on it, and it is there in black and white in the difference between what he was telling the select committee, the very select committee that considered this bill, and what has come through in this bill.

It is a nonsense to talk about how we should not spell out the functions and objectives of the Environmental Protection Authority. I go back to the model that he cited himself in the past, the Environmental Protection Agency in the United States, which was set up in the 1970s. It had six goals, and they were protecting and improving air quality so that we can breathe safely; reducing greenhouse gas intensity; ensuring drinking water is safe; restoring and maintaining oceans—

💬 Hon Dr Nick Smith: In the 1970s—

That is right, and it is as valid, and more valid, today as it was in the 1970s. Issues like climate change were barely perceptible in the 1970s and now they are critical issues that have to be faced, and the Minister is not delivering the flagship for his environmental stewardship that this agency was supposed to be. In fact, the Minister has delivered a dinghy, not a flagship. It is just a tiny little vessel floating on an ocean that it has no responsibility for. It has no responsibility for the oceans, which was to be a core component of what the Minister was going to do to improve our environmental record.

We are considering Part 2. The objectives and functions of the Environmental Protection Authority are so limited as to be breathtaking in their audacity. There is absolutely no reference to environmental outcomes, no reference to objectives, no goal setting, and no vision. There is nothing in this bill that says this is an agency we can put confidence and faith in. If we had concerns in the past about our record as a nation in terms of our environmental stewardship, the Environmental Protection Authority was to be the agency we could trust to deliver, and it is just not there; there is not even a reference in the bill. There is no capacity for anybody to stand up and say to this Minister: “You set out these goals and objectives.” He did that with his Bluegreen agenda, 4 or 5 years ago. It was the great big bright hope for the environment. All I can say in that respect is that blue-green is the most toxic cyanobacteria that we could find in New Zealand’s waterways today. It is a very fitting analogy because that Bluegreen agenda, which was to deliver a functioning Environmental Protection Authority with high environmental outcomes, is not delivered. A ministry of sustainable development has not been delivered. This Environmental Protection Authority will be toothless, it will be powerless, and it will be budget-less. The bill simply transfers the functions and duties of the Environmental Risk Management Authority and the Hazardous Substances and New Organisms Act, and about 10 other staff, most of whom will be involved in fast tracking motorway projects and the like. Where are the people to deliver the environmental objectives that the Minister spelt out so boldly 4 or 5 years ago?

We have heard some comments from the Opposition about the Environmental Protection Authority Bill not being for the protection of the environment. I want to challenge the Opposition members. In 9 years in Government they did absolutely nothing structural with the Ministry for the Environment. There was absolutely no progress in 9 years.

All of a sudden, we have a Government actually willing to do something, and willing to make some changes to optimise the protection of our environment by having a very clear and integrated system in relation to the environment. It has divided responsibility so that the Ministry for the Environment will have clear responsibility for policy, the Environmental Protection Authority will have responsibility for regulatory functions, and the Parliamentary Commissioner for the Environment will be the auditor. Members on this side of the Chamber see that change as a nice flow, with the three different organisations having clear responsibilities. Unfortunately, in the 9 years that those guys on the other side of the Chamber were in power, they did not make any changes, at all.

Speaking as the member of Parliament for Taupō, I say the environment is absolutely critical to the economic growth of my electorate. I am sick to death of Opposition members talking about members on this side of the Chamber having only an economic growth agenda. Hello? We cannot separate the environment from our economic agenda. I will give members some examples. If we look at forestry, if we look at farming, and if we look at tourism, we see that they are fundamental to economic growth in my electorate. I will give another example: geothermal. We are leading the world in renewable energy. Where is a lot of that generation centred? It is in the Taupō electorate.

What does this legislation enable? It enables the creation of the Environmental Protection Authority, which enables consenting processes to be far more efficient than they ever were under the reign of members on that side of the Chamber.

💬 Brendon Burns: Fast tracking.

Does that member know what fast tracking means in this environment? It means jobs. If members on that side of the Chamber are so interested in creating jobs, I would have thought they would be interested in projects that create jobs: create jobs in their construction, create jobs on an ongoing basis, and create wealth for the iwi that have joint ventures in the geothermal projects. It sounds like a bit of a win to me in terms of economic growth. But, no, members on that side do not want to have something nice and simple so that we have clear responsibilities.

Let us go back for a bit of a reminder. There are clear responsibilities. The Ministry for the Environment looks after policy, the Environmental Protection Authority looks after regulation and provides some nice national direction for regional and district councils, and, finally, the Parliamentary Commissioner for the Environment, a very important role, provides the audit function. It fits together very nicely, and fits perfectly with the Bluegreens’ vision for New Zealand of growing the economy and protecting the environment. For my electorate, I am very clear that those two visions go hand in hand. I am stunned when the members on that side of the Chamber talk about this being a piecemeal approach. It is very integrated, it is very logical, it fits together, and we have national direction.

What about issues like national policy statements, which did not come out in 9 years of those members in Government? All of a sudden we finally have an authority able to provide some guidance, and regional councils will actually have some direction—after how long? Nine years.

I am very proud of this legislation. It is a very strong step forward. It is the second phase of the resource management reforms that have been so critical for jobs in my electorate. That is why I am proud of this legislation, and that is why it is so important. If we can get a few more new jobs up and running, not just in the construction phases of some of these critical projects but on an ongoing basis, then that is good for Taupō. That is why I am proud of the legislation.

Kia ora. I thank the speaker who just resumed her chair, Louise Upston, for a very spirited delivery. I have to say the spirit made up for the lack of substance, shall we say. Good spirit is always welcome at this time on a Thursday.

I will reference some of the language the member used. She talked about the three organisations or three elements, apparently, of the framework that has been structured. She talked about responsibility, and she is quite right: the Environmental Protection Authority will carry a burden of responsibility. She talked about it having some ability to direct policy. I point the member to the word “authority”. I agree entirely that this organisation will have some responsibility, and it may have some power to direct, but it will have no authority. The title is a misnomer, which is a point we have made already.

I reference clause 7, entitled “EPA is Crown entity”; I suspect an “a” is missing in there. I question why, of the three available levels of independence, the lowest level of independence or autonomy has been chosen for this entity. I reference the Greens’ minority report. Under section 7 of the Crown Entities Act the authority will be constituted as a Crown entity, and under section 7(1)(a) of that Act the entity “must give effect to government policy when directed by the responsible Minister.” This entity will clearly be a creature of the Minister. It puts the primary direction of the Environmental Protection Authority into the realm of ministerial policy.

Progress reported.

Report adopted.