Environmental Protection Authority Bill

I am very pleased to pick up on Part 6, which is where we see a widening of the powers of the Minister for the Environment in respect of his capacity to call in matters that are deemed to be of national significance. I think we need to look through the 10 points in respect of how that power is to be given to the Minister. He is able to call in an issue and have the Environmental Protection Authority steamroll it through on any one of 10 points. Let us look through them. The Minister may call in an issue where it “has aroused widespread public concern or interest regarding its actual or likely effect on the environment (including the global environment)”. A very, very broad sweep is encompassed in that particular proposed new subsection. The Minister may call in a project that “involves or is likely to involve significant use of natural and physical resources; or affects or is likely to affect a structure, feature, place, or area of national significance; or affects or is likely to affect or is relevant to New Zealand’s international obligations to the global environment;”.

I would like the Minister to give us some indication of the sorts of scenarios where he envisages he could use the sweeping powers we see here in Part 6. What is the risk to our international obligation to the global environment that would see him call in a project under Part 6? Is it in respect of climate change issues, for instance? Is it in respect of a hazardous substance being released into the environment? Is it in respect of ozone issues? Clause 82 is very wide ranging. It goes on to state that a matter can be called in where it “results or is likely to result in or contribute to significant or irreversible changes to the environment (including the global environment);”. I cannot see any particular problem with that. Obviously, if something very quickly led to a huge impact on the New Zealand environment or the world environment, then we would want to see a Minister with the capacity to intervene rapidly. But I cannot see that a small agency like the Environmental Protection Authority, which will probably have only around 20 relevant staff, would have that capacity. The Minister can correct my estimation of the figures if I am wrong, but we have already heard that the number of Environmental Risk Management Authority staff transferring across is of the order of 90. I think there are 20 or 30 staff in respect of addressing climate change. The balance of the staff is mostly in respect of this call-in unit that is provided for in this provision. I do get a sense that this clause is sort of the Trojan Horse of the bill and that it is there as a rapid agency for fast tracking particular projects. We as a Parliament deserve to hear from the Minister about the various scenarios he sees.

Looking further through clause 82, we see that a call-in can be invoked where it is likely that an application may “involve technology, processes, or methods that are new to New Zealand and that may affect its environment;”. Obviously, technology moves very, very rapidly; there may be scenarios that the Minister has in mind in respect of that clause. This clause signals to me that, basically, the Minister wants the power to do a call-in no matter what the issue. If the Government wants to push something through very rapidly, this clause seems to embody that power, because it says that a call-in can happen where it “will assist the Crown in fulfilling its public health, welfare, security, or safety obligations or functions;”. I have to suggest to the Minister that there is not much within the purview of Government that would not fall broadly under that remit. He might have to spell out education as the missing clause, but if he needed the power to intervene, this is the hold-it clause. When the Minister says that he needs the power to fulfil public health, welfare, security, or safety obligations or functions, I think he has the open door to an intervention on a proposal of national significance, as he sees fit, rather than it having any particular issue of real national significance. It is a very wide clause, and I would like the Minister to indicate the sorts of circumstances that relate to that clause that he would like to see introduced.

I have a particular disquiet about this part, and it goes back to my past life as the editor of the paper in Marlborough at the time when the fast ferries started. It is very topical issue at the moment.

I want to provide the member Brendon Burns with just one very simple reassurance. The criteria regarding resource management matters going before the Environmental Protection Authority are exactly the same as the criteria that currently exist for Ministers to be able to call in and deal with consents of national significance.

I thank the Minister for the Environment, but, of course, it is a different complexion of Government in charge at the moment, so I still have some fears in respect of these clauses and how they might be applied. There is a different agenda. There is definitely a growth agenda in Cabinet at the moment.

I refer to the article that Colin James wrote in January of this year about the Minister wishing to influence better environmental outcomes but, as Colin James reported, being in the grip of an economic growth cabal. There is no doubt, as we stand and look across the Chamber, where the power is based. It is certainly not in the environment portfolio and it is certainly not in the broadcasting portfolio. We could go down a number of other portfolios where the power and weight are minimal compared with a clutch at the top that certainly have a very fixed agenda, and that is why Part 6 provides a very, very wide-ranging opportunity for intervention. It was used on occasions by the last Government. I remember my friend and former colleague Marian Hobbs using it in respect of Project Aqua, and that was an appropriate intervention. But the concerns we have—and why I want reassurance from the Minister—are in respect of the capacity for the 10-part section 142(3)(a) in clause 82(1) to be used to evoke a very rapid set of interventions driven by that growth agenda.

Coming back to the concern I have about this kind of power, in the mid-1990s I was the editor of the newspaper in Marlborough at the time the fast ferries began. Two or three groups sprang up in opposition to the wake that was being effected by two fast ferry operations. It was not a situation where the proposal of national significance provision was used, but the power of those companies was sufficient to bring charges against those two or three small groups and whack them with very considerable costs. That is the imbalance that can be created when legislation allows a big entity—that is, the Government—to take on a small entity, a small ratepayer-based or community-based group, that wants to challenge the power of the Crown or a major corporate. The imbalance that can be created can be monstrously unfair. The irony of that situation was that the then Minister of Conservation, one Denis Marshall, was one of those who had costs awarded against him, along with two Marlborough Sounds - based community groups.

Of course, that issue is rapidly coming back into sight at the moment as in the last 48 hours we have seen our rail company indicating, with the support of the Minister of Transport, a wish to rapidly reconsider the option for a new port at Lake Grassmere to replace Picton as the main port at the top of the South Island for rail-ferry traffic. That proposal deserves to be considered on its merits. It is an issue that will divide the Marlborough community, which I still have strong connections to. Already the people of Picton are expressing some very real fears about the impact of that project. I would like to know from the Minister whether that is the sort of project he envisages would be taken in under clause 82, with its 10 wide-ranging provisions with enormous power for call-in. I think the people of Marlborough would welcome such an assurance from him tonight, and perhaps the member for Kaikōura might be willing to take a call on behalf of his constituents in respect of that particular application of Part 6.

I guess it was useful to take the assurance of the Minister in the chair, the Minister for the Environment, that, in repealing section 142(3) of the Resource Management Act and substituting the new subsection in clause 82 in this Environmental Protection Authority Bill, the provisions there are all the same as those that are currently in place—that is, they provide the ability to call in a resource consent application. I trust that that is true, but I suspect that there are some changes. No one could argue with the general thrust of all the provisions in the new subsection (3). In deciding whether a proposal is of national significance, the Minister may have regard to widespread public concerns, significant use of natural resources, effects on structures and features, international obligations, etc. There are a number of them. They are all laid out here; members will be pleased to hear that I will not read them all out. All of these relate to one particular project that I can think of, and that is dairying in the Mackenzie country. I was down there the other day, visiting communities and individuals, and investigating. The big proposals down there all meet the criteria laid down in new section 142(3) in clause 82.

I guess that means that the Environmental Protection Authority can step in and make a judgment. It can assess all the criteria and make a judgment on it. But then the thing that concerns members on this side of the Chamber is that if we go to clause 82(3), which adds section 142(7), we see that that subsection states: “To avoid doubt, the Minister may make a direction under subsection (2) that differs from the direction recommended by the EPA …”. The underlying or overarching concern—whichever way one sees it—that we have is the ministerial power in all of this. I do not mind trusting one of my colleagues as a Minister, but I am not sure whether I have confidence in the current Government, because the Minister in the chair at the moment—the Minister for the Environment, I think he is called—is the same person who proposed, along with all his colleagues, mining in national parks. This Minister—

💬 Hon Dr Nick Smith: I raise a point of order, Mr Chairperson. There is absolutely no reference to the issue of mining in national parks in the part of this bill that we are debating, so it is not appropriate for the member to raise those issues.

Mr Chairman—

The CHAIRPERSON (Eric Roy): I do not need any assistance. I was listening very carefully to the member and I think he was phrasing his remarks about clause 82 and the Minister’s call-in powers. I will just ask the member to restrain himself to that example. We do not need to relitigate the matter that was the example—I do not want to restate it—but the example was, I think, one that was pertinent to clause 82. If he would contain his speech to that comparison.

I will hold myself back. We are talking about clause 82. The Minister may call in a matter that is, or is part of, a proposal of national significance. The Minister and his wise Government considered the Waterview Connection, Transmission Gully, and the proposed prison in Wiri. All of those issues are of national significance, so the Environmental Protection Authority will call them in. But the precious Minister takes offence at my saying that a proposal to mine in a national park may not be called in by the Environmental Protection Authority. Well, I put it to members that that is exactly the kind of proposal, to mine in a national park, that this Minister, who already supports that, may take to the Environmental Protection Authority. What we have seen is that this clause here overrides the Resource Management Act and replaces the basic and well-understood provisions that say the community, through the resource consent process, has the ability to have a say and have an influence. The Environmental Protection Authority Bill will remove that ability. So on projects of so-called national significance, the Environmental Protection Authority may make a direction or ruling, but the Minister, of course, can override that sort of advice. That is the concern that we have. It is right here in this part of the bill; it is laid out and spelt out. I say to the Minister that if we cannot ask questions about how the Minister will or will not use those powers, then we are not doing our job.

I say that in Opposition I have to ask that Minister, who supported mining in national parks, whether he will, when this legislation passes, take to the Environmental Protection Authority proposals to mine in national parks—because they are of national significance. Clause 82 provides that the Minister, in deciding whether a matter is, or is part of, a proposal of national significance, may consider whether there is widespread public concern and whether matters involve significant use of natural and physical resources. It lines up. We must ask questions around the inevitable use of this legislation through the country.

As I say, the Government already has the Waterview Connection, Transmission Gully, and Wiri Prison, and we have had a proposal to mine in national parks. I am a supporter of mining, but the public of New Zealand, and every wise person in this country who understands and upholds environmental protection and all the values that go with it, knows that national parks have been set up, and established and entrenched in legislation, for their natural and recreational values, not for their mineral values. I know that is frustrating, but the mining industry itself understands that. The question I ask the Minister is whether he will bring to the Environmental Protection Authority a proposal that will generate “widespread public concern”, to quote new subsection (3)(a)(i), inserted by clause 82. Will he bring that to the Environmental Protection Authority and then instruct—because he can make a direction—the Environmental Protection Agency to approve that?

That is my last word on this—that a very important issue is raised in this section, laid down here in black and white, and it will be up to the courts, no doubt, and to the Minister, to establish some precedent beyond the passage of this bill. That is why the Opposition has an obligation—a moral obligation—to ask those questions and to try to get an answer from the Minister.