Environmental Protection Authority Bill

I intend to take only a small call on Part 3 of the Environmental Protection Authority Bill. It is interesting because it speaks about one of the real kickers of the whole bill, which is bringing staff together. There is a definite concentration on collegiate advantage, and that will be really good. One of the points that interests me in the contributions from the other side of the Chamber so far is that the majority of people who have spoken on the bill, to the best of my memory, did not actually sit on the Local Government and Environment Committee during the hearings on this bill—for very good reasons, I am sure, as part of their internal party organisation. I honestly think that that has been reflected in the quality of the contributions they have made. Without wishing to be personal about it, they are demonstrating a very narrow understanding and interpretation of the submissions received because they missed out on the accompanying discussion, which really did broaden the whole platform.

I am sorry that that is the case, because the Minister for the Environment has responded very politely to each point that members have raised on the exclusive economic zone and the environmental purpose and status of the Environmental Protection Authority. We are hearing over and over again the same old arguments, and that does not give sufficient credit to the capacity of the Opposition to join us in promoting this bill as a good thing for the environment. The bill has been through a very robust and thorough process, and our environment is best served by us getting on and passing the law so that the authority can get on with the job on 1 July. I know that the structures that are being established in Part 3 will do that very, very effectively.

The Hon Ruth Dyson brought something contradictory into the debate the last time she was here. I note that she said in an earlier speech that the Minister had not kept me, the chair of the select committee, advised of his views of the bill, that I should be hopping mad about that, and that she would be if she were me. In response to that, I say: “He did, I’m not, and she isn’t.”

First of all, I thank Chris Auchinvole for taking a call. As I recall, it is the first call he has taken in the debate on the Committee stage of the Environmental Protection Authority Bill.

💬 Phil Twyford: It was only 4 minutes.

Although it was a short call, I think one or two points are worth mentioning. However, I will say that it is shame that we did not hear from the chairman of the Local Government and Environment Committee in respect of Parts 1 and 2, because they are the primary parts of the bill. They deal with the purpose, the objective, the functions, and all those matters that other members and, I think, the public would have liked to hear about from the person responsible for chairing the select committee. But we were denied that opportunity.

Mr Auchinvole said he was mystified—and this was his last point—by some comments made by my colleague Ruth Dyson. I remind Mr Auchinvole and the Committee what Ruth Dyson was talking about. She was talking about the tabling of an amendment earlier in the Committee stage that related to a Treaty of Waitangi clause. That was the first time that that clause had been subjected to any sort of parliamentary scrutiny. The Minister in the chair, the Minister for the Environment, is looking through his copy of the bill. It is true that that clause relates to an earlier part, but I know I will be indulged because I am responding to a matter dealt with in an earlier speech.

Ruth Dyson’s point was that it was discourteous to the select committee and its chair for a substantive Treaty clause of that nature to appear for the first time in legislation after the select committee process had finished. That means that the public gets no opportunity to have any sort of input, to have any say, or to make any submissions on the point.

💬 Hon Dr Nick Smith: What about all your amendments?

The Minister just asked about my amendments. The difference, I say to the Minister, is that all my amendments were moved in response to public submissions. They were suggested by the public, but his Government decided in its wisdom or its arrogance—members can take their pick—not to include those amendments. That is the difference.

I will take a few moments to talk about a particular provision in Part 3 that I would like the Minister to do us the courtesy of speaking to. That provision relates to Subpart 2. Subpart 2, particularly clauses 25 through to 28—and, in particular, clause 27—would disestablish the Environmental Risk Management Authority. It also disestablishes Ngā Kaihautū Tikanga Taiao—the Māori advisory committee to the Environmental Risk Management Authority. I see that one of the effects of Supplementary Order Paper 241 in the Minister’s name is to correct the spelling of “Taiao” in clause 28. I hope, as I say, given that the Minister has moved a Supplementary Order Paper that affects this part and given that it is an important part, that we will actually hear from him on it.

I ask the Minister what the effect of the disestablishment of Ngā Kaihautū Tikanga Taiao is, particularly as under clause 20 and those that precede it—19, 18, and 17—a new Māori advisory committee is established for the Environmental Protection Authority itself. If the Minister is to address the Committee on this point, I ask how these provisions fit with the amendment that stands in the name of Rahui Katene. The Committee has already discussed that amendment, but it is entirely relevant to this part, because this part abolishes the advisory committee to the Environmental Risk Management Authority.

In particular, how is the new Māori advisory committee and how is the Environmental Protection Authority to satisfy the new test that has been inserted into the law by the earlier amendment? The Environmental Protection Authority is required “to take appropriate account of” the particular Treaty clause in one of the contributing pieces of legislation to the Environmental Protection Authority—that is, one of the environmental Acts under which the Environmental Protection Authority gains authority to act. As we have heard already, there are different provisions in each of those Treaty clauses. The new obligation, if we pass this bill in the form that we so far appear likely to pass it in, is “to take appropriate account of” the Treaty of Waitangi. That is what the Environmental Protection Authority is obliged to do, but it is to do so with regard to these different Treaty clauses.

My concern is that the advisory committee that is being established to replace the existing body that advises the Environmental Risk Management Authority will be quite bewildered about how to do this. Why is that? The Resource Management Act, the Hazardous Substances and New Organisms Act, the Climate Change Response Act, and the Conservation Act, which is not legislation of direct relevance to the Environmental Protection Authority but which will obviously have an effect on the general manner in which it operates, all have different types of Treaty clauses. There are other functions to be discharged by the Environmental Protection Authority under the Ozone Layer Protection Act and the Imports and Exports (Restrictions) Act, where there are no requirements to have regard to Treaty clauses.

I think what has happened is that people who are unfamiliar with the way in which a Crown entity works have looked at this legislation and thought: “Oh, well. We’ll put a Treaty clause in and hope it works.” But it is not as if an individual staff member working in the new Environmental Protection Authority will have responsibility just for climate change, just for hazardous substances and new organisms, just for the Resource Management Act and projects deemed to be of national significance, just for the ozone layer, just for the Imports and Exports (Restrictions) Act, or just for any of the new functions that might be added to the Environmental Protection Authority either by the Minister’s fiat or by legislation in the future.

The reality is that policy analysts or others will have multiple responsibilities under all those bits of legislation. Initially they might start working just in one area, but, of course, if the Environmental Protection Authority is to work they will have to take an integrated approach. Not only will they have to direct themselves properly on the law in respect of any individual provisions in the contributing pieces of legislation, but also they will have to reconcile these Treaty clauses. Often, as I have pointed out, a Treaty clause will require one thing in one piece of the Environmental Protection Authority’s responsibility and a different thing in another, and there will be no obligation in yet another. Finally, there is this overall obligation “to take appropriate account of” Treaty provisions, which has now been inserted by the amendment already approved by the Committee in respect of an earlier part.

My concern in respect of this particular part is how these obligations are to be reconciled. There is to be a Māori advisory committee. Other committees with relevant responsibilities in the contributing organisations, particularly in the Environmental Risk Management Authority, are being abolished. A multiplicity of tests exists in other legislation and now a new overarching test in respect of Treaty obligations has been inserted by an amendment. But there is no overall requirement as to how to act in respect of Treaty matters, in respect of the consultation of iwi, or in respect of fulfilling the fundamental requirement of finding out what Māori think in respect of a particular proposal or function and then taking into account, having regard to, or having appropriate regard to—to use the three different tests that now already exist in respect of these functions—those considerations.

That fundamental matter is raised by the subpart because of the obligations, which I have referred to, and because of the disestablishment of Ngā Kaihautū Tikanga Taiao, the apparent replacement of that body with the Māori advisory committee, and these conflicting provisions, which I have referred to in this contribution.

As we deal with Part 3 of the Environmental Protection Authority Bill, I note that a major part of it relates to the disestablishment of the Environmental Risk Management Authority. We on this side of the Chamber acknowledge the benefits that could be had by incorporating the Environmental Risk Management Authority into the broader Environmental Protection Authority. There is a sound logic to that, but there is, I think, a flaw in this and that is that the Environmental Risk Management Authority’s staff will make up around two-thirds of the staffing of the new expanded Environmental Protection Authority to take effect from 1 July this year.

If we look at the risks to our environment, we find they are mostly risks to our reputation. We make a living in the world on the basis of our clean, green image. We need to look only at media overnight and the interview with the Prime Minister on the BBC HARDtalk programme, when he was grilled about whether New Zealand really is as clean and green as the tourism campaign suggests. The interviewer put it to John Key that Mike Joy, a leading environmental scientist at Massey University, recently said that we are delusional about how clean and green we are. Dr Joy made that comment particularly in respect of the issues facing our waterways, with more than half of our lakes and lowland rivers being polluted. The Prime Minister’s response was that he did not want to get into a flaming row with one of our leading academics, which sort of suggested that scientists are a bit like lawyers, in that we can get whatever outcome we want from them. I think that is a bit offensive to the science community, because scientists make their interpretations based on science. It is a bit of a smack in the face for the scientific community, which is not like one or two other professions, because all of its work is based on science.

The core of this legislation is trying to protect the environmental reputation of our nation, which makes two-thirds of its living from what we produce on our “clean, green land”. We should also consider that this is not the first time that a leading world news organisation has questioned how tenuous or otherwise our reputation is, and how real it is for us to be claiming that we are “100% Pure New Zealand” and marketing ourselves as such.

We are establishing an Environmental Protection Authority that does not have an objective and goal of protecting and enhancing our environment, and two-thirds of its staffing is made up of one important but still relatively small component of the environmental picture. The key thing that I would have thought the authority would deliver is the enhancement and protection of that environmental reputation, which is the very core of our economic basis as a nation.

When I look at Part 3, I see that the Environmental Risk Management Authority is included in the authority, and issues of climate change are to be addressed by the authority, but then I look for the gaps. I wonder why there is not a division of some kind to manage water or provide policy advice to the Minister for the Environment on water. We have to conclude that the reasons it is not there are, firstly, budgetary, which is always a reason we have to acknowledge, or, secondly, relating to the question of whether the Government really wants strong science on water from one of its own agencies, which can confirm the sorts of findings like those of Dr Mike Joy that are being quoted to the Prime Minister on the BBC. I ask whether that science would truly be wanted by a Government that has made very clear its primary objective of rapid new growth, which is seeing allocations of water take place as we speak in Canterbury and other places, driving a new wave of production in industries such as dairying. It is not exclusively in dairying, and I have to say that dairying can be done responsibly, but, unfortunately, far too often that is not the case.

Part 3 incorporates the Environmental Risk Management Authority in the Environmental Protection Authority, and includes addressing climate change as an important component of the authority’s work, requiring probably around 20 staff, meaning we are now up to 110 staff of around 140. There is also the fast-track component, which involves another portion of the staffing.

I would like the Minister to take a call at some point and tell us how many people with some water science experience will be there to either agree with or comment on Government policy, so that the Prime Minister is not just basically chipping away at the credibility of scientists when he responds to what I think will be increasing questions from international media, and others—because farmers and farming organisations will be taking note of that interview. I ask what environmental science the Minister will be able to access so that he can say that Mike Joy may have one point of view, but scientists working for the Environmental Protection Authority have a different view. Is it because the science is actually fairly strong? There is no doubting that we have polluted waterways in New Zealand, and my source for that comment is none other than the Minister himself. He made something of a triumph of noting that water quality was deteriorating in New Zealand, vowing that the situation would be turned round. He talked about 9 years of inaction on water, yet yesterday we saw him delivering a national policy statement on freshwater management, which had provisions that he acknowledged would take, in his words, several years to implement. In fact, when we look at the detail, we see that councils will be given until 2030 to bring everything into line in respect of improving water quality. Beyond that, acknowledgments are given in the Cabinet paper that where a waterway is too badly degraded it will not have to come up to any standard; the assessment of improving water quality will be made on the whole region. So in my region of Canterbury, that might mean that Lake Ellesmere, which is a vital source of food for Māori and is now managed, in fact, by Ngāi Tahu, may never have to improve its water quality to a point where it is acceptable once again to swim in it or take fish from its waterways. It would also mean that that would be all right because some improvement may be made in other parts of Canterbury, and over the next 16 years overall water quality will be deemed to have risen to some acceptable point. Those are the kinds of reasons why we should have in the Environmental Protection Authority some strong water science. It is a gaping hole in this legislation. Although we have some coverage in respect of environmental risk management through the Environmental Risk Management Authority, and some coverage in respect of climate change, water management is a gaping hole.

There is one other hole, and it might be particularly appropriate to raise this issue tonight because some of us in this Chamber will go, once the dinner bell rings, to one of the Speaker’s excellent science lectures, and tonight the featured topic is New Zealand’s leading role in Antarctica. When the Minister spoke to the Local Government and Environment Committee in June of last year about the shaping of the Environmental Protection Authority, he indicated that there would be within the authority coverage of Antarctica, yet that is also not in Part 3. It is missing in action. If we consider how important Antarctica is to the issue of climate change, it is rather curious that it is not associated with the Environmental Protection Authority. It is missing in action, and I would like the Minister to take a call to explain to us why nobody will be employed to oversee water issues. I would like to know not only whether there will be staff on the ground for the Environmental Protection Authority in regions such as mine in Canterbury but also why there will not be any staffing for water. I am sure part of the answer will be that it is covered by other ministries, but if we are to have this strong new watchdog, as this authority was envisaged, surely, when our living is made through water, it should be at the very core of this new authority.

I will take a quick call on Part 3 of the Environmental Protection Authority Bill. It probably reflects the fact that some of us were not on the select committee, but we were trying to get our heads around this new Environmental Protection Authority, as opposed to the old Environmental Protection Authority. I suppose Part 3 shows us what is in and what is out, and the danger of this part is in the missing bits. I cannot work out, for the life of me, whether this is an authority to protect and enhance the environment, which we really hoped it would be, I say to the Minister in the chair, the Minister for the Environment. There are substantial bits missing.

One of the issues I am really worried about here is the disestablishment of the Environmental Risk Management Authority and Ngā Kaihautū Tikanga Taiao. I understand that the Māori Party has acceptance for a Treaty clause to go into the bill, but I cannot understand why we are setting up a Māori advisory committee in the Environmental Protection Authority. It is subservient to the authority and is just an advisory committee. We have had trouble before with Māori advisory committees and their standing, in terms of how much their advice is taken by any authority. We saw it in Auckland City, we saw it in Canterbury, and we are now seeing it again in this new Environmental Protection Authority. The Government is being too tidy in thinking we will just tuck in a Treaty of Waitangi clause and that therefore we are looking after the interests of Māori and iwi.

I say to the Hon Nick Smith, the Minister in the chair, that I am glad he is there, but I am not sure whether the iwi advisory committee will pick up the functions of Ngā Kaihautū Tikanga Taiao or whether he is intending an entirely new modus operandi for that committee—that little advisory committee. How toothless will it be? How much authority will it have? Will it be listened to, or is it just a little bit of flannel sitting there in the Environmental Protection Authority, to be listened to but not to be taken much notice of? That is something that I think is offensive to Māori.

One of the issues that concern me greatly is what is missing in this bill. I am struggling to find out why some bits are not here, with the movement of all of the hazardous substances and new organisms responsibilities, and loss of the Environmental Risk Management Authority. What is in, and what is out, and what is now sitting with the Ministry for the Environment? It is not easy to understand, and—heaven knows—I was a Minister of Conservation for some time so I do understand the overlapping responsibilities between conservation, and the protection of the conservation estate and species, and the Ministry for the Environment. But this legislation does not make it any clearer to me, at all.

It is amazing that coastal marine management and the environmental management of New Zealand’s economic zone is not part of this Environmental Protection Authority. I cannot work that out. We have had a Minister of Conservation, though, who sat on the New Zealand Coastal Policy Statement for over 18 months. It was ready to go when I completed my term in office, but was not tabled in the House until pressure was put on—

💬 Hon Dr Nick Smith: I raise a point of order, Mr Chairperson. We are debating Part 3 of this bill. There is absolutely no reference to national policy statements, or, frankly, to any other matters that the member has been raising. This part is limited to disestablishment. We have already argued about the functions of the new Environmental Protection Authority. This section is simply about disestablishment and the transfer of functions. The issue of the Māori committee was covered in the previous part, and I think the member should be brought back to the provisions of this part.

The CHAIRPERSON (Eric Roy): Yes. I ask the member to debate Part 3.

I thank the Minister for his clarification, but I think the point has been made about what is missing, and I will continue to try to get my head around it. We are not sure about the disestablishment of the Environmental Risk Management Authority, and I can remember a former colleague of mine, Jeanette Fitzsimons, who battled away to get the authority better resourced. But in the disestablishment of the Environmental Risk Management Authority in Subpart 2 of Part 3—I hope the Minister is pleased I am referring to that, in this Part 3 debate—I am really concerned about whether all of the functions of the authority will carry over into the new authority. We are really not sure just what is in and what is out.

I think that will raise confusion for us all, even though the Minister is very clear in his head, apparently. I tell the Minister that it is about how we tell the story to New Zealanders so that they have confidence in the Environmental Protection Authority. At the moment, there are so many shifts of staff from the Ministry for the Environment and the Ministry of Economic Development to the Environmental Protection Authority. The functions of the former Environmental Protection Authority under the Climate Change Response Act will now be “in” as part of the Environmental Protection Authority. I think the country is confused, and when we are confused the Minister must accept that we do not have confidence that the new authority will have any more teeth, any more powers of coercion, or any more effectiveness.

I probably have to apologise to my colleagues for a start, because I am going to say something nice about the Environmental Protection Authority Bill. The Minister in the chair, the Minister for the Environment, may fall over as well. I think it is great that in the transfer of staff in Part 3 to the Environmental Protection Authority, their terms and conditions are locked in and carried over. I am almost amazed and shocked that the National Government would do anything like that, but it is a very good precedent to set.

The question I have of the Minister is whether this precedent will be the new standard for changes in the public sector. We accept that the Government seems to be focused on efficiency, restructuring, and part-privatisation—call it what you like—but in this part there are some very good provisions, I have to say. Under clause 38(1A), “The employee’s employment is to be treated as unbroken and the employee’s period of service with the previous employer ending on the close of the day before the employee is transferred …”.

In summary—and I accept the criticism that I was not on the Local Government and Environment Committee so I may not get it entirely right—I think that any New Zealander, as my colleague the previous speaker said, on reading through the bill will have these questions. It is very reasonable that we in Opposition ask them here, not as members of the select committee who have heard hours and hours of submissions, but as people who pick up this legislation, read it, and ask what it means. We can be sure that lawyers around the country will pick it up and take two meanings from the one word. That is the job of lawyers, in fact. But the public—

💬 Charles Chauvel: No—careful!

With all due respect to my colleague in the front there, of course. It is usually for good reason. But the point is that this legislation allows the transfer of unbroken employment terms and conditions, and that is to be welcomed.

The only question I have that relates to Subpart 3 is about how many staff members will be transferred over, because the provision is a little silent in that area. I guess it leaves the way open for a reduction in staff, although I am led to believe that the Environmental Protection Authority is severely understaffed at present. Any changes or cut-backs would undermine the credibility—not just the integrity, but the credibility—of the Environmental Protection Authority.

I will go to another issue in Part 3, and that is the consequences of the transfer of climate change functions. Again, I have to applaud the legislation, because it implies that the functions of the former agency—that is, the Environmental Risk Management Authority, I am assuming—must be carried on under an amendment of the Climate Change Response Act. Under clause 44(2)(g), “the commencement, continuation, or enforcement of proceedings relating to the function by or against a former agency may instead be carried out by or against the EPA without amendment to the proceedings;”. The legislation goes on to state: “(h) a matter or thing relating to the function that would, but for this section, have been completed by a former agency may be completed by the EPA.”

I know that the Committee will think that hearing that is a bit like watching grass grow, but I say that the devil is in the detail. We too often pass legislation in this Parliament that has not been thoroughly assessed. The select committee may have been pushed or pressured. I understand that the Minister is under a bit of pressure at the moment, and he might push through something that may, in fact, be detrimental.

I have questions, but I applaud the commitment to climate change obligations. I think they imply that environmental standards in this area will be upheld by the new Environmental Protection Agency. We can take, for example, the Transmission Gully proposal. I guess that the emissions assessments relating to that project—and extensive reports are done in this area before any such project goes through Government agencies now—will be upheld by the new agency. But the water and air quality standards may very well lapse. It is a genuine question.

Where the Environmental Protection Authority has intervened in big projects—we may think for good reason, such as efficiency, or whatever the National Government thinks—the question is whether the upholding of the climate change response obligations through Part 3, which I applaud, will surpass those of other environmental standards in relation to water quality, air quality, and any runoff. I ask members, and the Minister may want to take a call on this matter, why we are putting emissions obligations, which we understand are very important, right up on a pedestal, and, through the Act, allowing those obligations to be carried through into the new agency, but we are saying something else when it comes to water quality. My colleague referred to issues in relation to dairying; no doubt, projects will be brought to the Environmental Protection Authority in relation to agriculture. We will uphold emissions obligations but we will forget about the water quality.

I do not think New Zealanders will accept that decision as fair, and they will not accept that the legislation is progress in the area of environmental management. I thank the Chair for the ability to finish on that issue.

I move, That the question be now put.

I follow on from my colleague the Hon Damien O’Connor by saying I too was shocked to see that the Government is transferring the terms and conditions of employees into the new organisation. Frankly, I have to ask questions. It just sounds too good to be true. I ask the Minister for the Environment whether he consulted the New Zealand Public Service Association before finalising this part of the Environmental Protection Authority Bill. I ask that because clause 42 on KiwiSaver states that the transfer of an employee “does not constitute new employment for the purposes of the KiwiSaver Act 2006.” I ask myself why it was necessary to specify that. I then ask myself about the 90-days bill that the Government passed. Will the employees who are being transferred over also come under that particular legislation? Why have we not specified in this legislation that for all employees transferred over to the new organisation, the conditions of the 90-days law will not be forced upon them?

I ask again—and I hope the Minister will take a call—whether the union representatives of those staff were involved in the discussions of the bill. I also ask the Minister, because of the belief I have and that many will have that this is too good to be true, how many staff have left as a result of it being highlighted that the old organisation will be disestablished, and a new organisation will be established. It seems to me that in disestablishing the old Environmental Protection Authority—set up only in 1991, which is not too far off—I need to ask why it is that we are doing this again. In looking to the Auckland region for lessons to be learnt, I ask the Minister whether a cost-benefit analysis was undertaken before the decision was made to disestablish the 1991 Environmental Protection Authority and to establish the new organisation. I also ask the Minister what that cost-benefit analysis would reveal in terms of any cost savings to the community or to the Government, as we are talking about cost savings at this particular time.

I raise those questions because I treat the protection of our environment very, very seriously. In fact, it is an issue that the Hon Pete Hodgson and I raised recently at the Inter-Parliamentary Union conference. Many of the world’s countries have a view that New Zealand has a clean and green image. I say that the disestablishment of the Environmental Protection Authority, and the new organisation being set up to replace it, does not focus on the protection of our environment. What is the purpose of our doing this if we are not focused on the protection of our environment?

I want to be quite honest with the Minister. The Minister introducing this bill is the last Minister who should be introducing such a bill, because he does not have a good reputation with the wider community. We can look at the way he got rid of the Canterbury Regional Council—an organisation set up for the protection of the environment of Canterbury. How can we have a Minister who did that to our environment saying to the New Zealand public that this legislation will protect our environment? It will not protect our environment. I would like the Minister to take a call in that regard.

I really find it hard to believe that the bill states that these workers will receive the same terms and conditions in the new organisation. It is important, then, that the Minister answers the question of how many staff have already left because they are under pressure and under stress because of the changes that are about to come. How many staff have gone? How many staff are going to be affected? Why has the Minister specified clause 42, and what does it mean for staff who will go over to the new organisation under the 90-day law?

The question was put that the amendment set out on Supplementary Order Paper 241 in the name of the Hon Dr Nick Smith to clause 28 be agreed to.