Crown Minerals (Permitting and Crown Land) Bill

It is fantastic to be speaking on Part 4 of the Crown Minerals (Permitting and Crown Land) Bill, which deals with amendments to the Reserves Act 1977. This was one of the less contentious areas within the bill. As I noted earlier, it certainly would have been our preference, as we indicated as this bill was introduced, to debate to agreement the concerns that we had, and obviously the concerns that other parties had as well. I thought that the Commerce Committee made really rigorous efforts in that regard, and I want to commend the chair, Jonathan Young, for his behaviour and conduct of the proceedings. There were obviously strongly held views on many of these issues, but, unfortunately, when we got to the end of the proceedings, we were not able to agree on the fundamental points that we had raised when the bill was introduced.

The primary one was the dual decision-making. This part here is one that the Minister of Conservation maintains. It is very good. It has some automatic scheduling of reserve land into schedule 4, and that is obviously an improvement on the existing position that the Minister of Conservation holds. But, tragically, it does not outweigh the weakening of the ability of the Minister of Conservation to make a decision in regard to minerals, whether it is exploratory drilling or mining itself. That has been discussed in earlier parts of this bill, but it is particularly relevant to Part 4 as well. It does not outweigh the concerns that we have about that dual decision-making.

In question time today I also mentioned the comparison of the current structure of the Department of Conservation, which obviously is responsible for the Reserves Act 1977, and the way that the department has now modelled itself on Cabinet dual decision-making, where we have the Minister of Conservation and the Minister of Energy and Resources taking decisions jointly, where previously it was the Minister of Conservation’s mandate. In the same way, the Department of Conservation, in its proposed new structure, is going to have two positions of equal status. One is going to be the chief ranger, who is responsible for conservation issues, and the other one, in the same tier of the department, is going to be called the relationship manager, and that person will be focused on the business side of the Department of Conservation. Like most of this bill, it represents a significant weakening of the mandate and the responsibility that the Minister of Conservation currently has.

That concern was only heightened when on Easter Sunday we had the Minister of Energy and Resources, the Hon Simon Bridges, dumping on the Committee a massive Supplementary Order Paper, Supplementary Order Paper 205, without any consideration of referral to the select committee. It is a significant piece of work that changes the rights of protesters in regard to their opposition to any activity on the continental shelf. If you look at how many changes the select committee made to Part 4, which was not a contentious area in comparison with some of the others, there are significant alterations. There are large sections of Part 4 that have been deleted. There are significant insertions, and obviously there was a lot of debate. So how could we have had this much debate and alteration in Part 4, a comparatively uncontentious area, when the Minister Simon Bridges can justify dumping a significant, controversial Supplementary Order Paper on the Committee on Easter Sunday without any select committee consideration or ability to debate it or change it? That is really the height of arrogance.

I was very disappointed in the Minister’s behaviour when he was in the chair last evening. I was very disappointed in the behaviour of the Attorney-General. I have not actually heard before the denigration that occurred towards highly respected members of our community Dame Anne Salmond and Sir Geoffrey Palmer, both of whom hold strong views but are very highly regarded. Dame Anne Salmond is the New Zealander of the Year, and yet in this Chamber and in this debate they were treated very poorly. I really regret that, in the same way that I regret the treatment that the Minister has given this Committee. If you can compare this Part 4—

Part 4 of the Crown Minerals (Permitting and Crown Land) Bill amends the Reserves Act 1977, and this is where we see that synergy that we had with Part 2 where any new land that is deemed to be a reserve will now automatically go into schedule 4 of the Crown Minerals Act and will therefore be protected. Well, that is the general idea.

We have concerns that that may change in the future, given the noises that have been coming from industry. Businesses are going out and actually prospecting on schedule 4 land. The Government says they are just having a look. They are just interested to see what might be out there. My experience is that businesses do not pay money just out of pure curiosity. They are doing it because they have obviously had an indication from this National-led Government that at some point in the future those parts of schedule 4 are going to be opened up for exploration. Otherwise why would they be looking?

It is very, very disappointing because obviously this is an issue that the public are extremely concerned about. When you have tens and tens of thousands of people marching up Queen Street, that sends a very strong message. The Government said it would back down, but all indications are that it is doing it on the sly now.

So although I welcome this amendment to Part 4, which deems that any new land that is added to the Reserves Act 1977 automatically goes into schedule 4, and there does not have to be a process that is gone through—that is very good—it is the same thing again, which is right through this bill: one step forward, five steps backwards. That is a disappointing thing. Yes, that is good. Yes, it is good that Part 4 means that any new reserve land goes straight into schedule 4—that is fantastic.

But what else does Part 4 do? Again, it completely dilutes the role of the Minister of Conservation. One of the really big concerns has been where we have seen the role of the Minister of Conservation undermined—no pun intended—

💬 Hon Phil Heatley: Very clever, though.

—and replaced by Order in Council. Did you like that, Mr Heatley? It was not bad, was it? It has been completely undermined. The role of the Minister of Conservation is basically to be the guardian of the Department of Conservation land for the public of New Zealand. That is their role. They are there to ensure that future generations of New Zealanders will continue to enjoy the beauty, the biodiversity, and everything that our conservation estate has to offer.

Here we are in Part 4 and, for example, clause 64 amends section 5 of the Reserves Act 1977 by removing the ability of the Minister of Conservation to declare State forest land to be a reserve under the Reserves Act. That might not seem like a big deal to a lot of people, but, again, this is death by a thousand cuts to the Minister of Conservation. And we have had endless examples of that, through every single part of this bill. It is a shame that we did not get a longer debate on Part 1, actually, because we did not even manage to get to all the powers that are being removed from the Minister of Conservation in Part 1. But here it is in Part 4. We had it in Part 2 and we had it in Part 3. Here is Part 4, a seemingly innocuous part of the bill that does a good thing, which is ensuring that all new reserve land goes into schedule 4. Yet again—time and time again—it is taking away the powers of the Minister of Conservation to be able to effectively protect the Department of Conservation estate. So that is clause 64—that is one example: the removal of the power to declare State forest land to be a reserve under the Reserves Act.

If we go to section 6 of the Reserves Act 1977, this provides the Minister of Conservation with powers in cases where there might be doubt or uncertainty about a reserve. This is a very important role that the Minister of Conservation carries out, because from time to time—and I suspect marine reserves in particular are a classic example—you are going to get uncertainty or doubts about what was agreed about where boundaries might lie and about the rules of engagement in terms of how people are able to utilise that reserve land. There are endless reasons why concerns might be raised or there might be difficulties with determining what actually was agreed to in the case of a reserve. It is the role of the Minister of Conservation to ensure that, in deciding how that is worked out or sorted out amongst the various parties that disagree, the best interests of the conservation estate and the preservation of the conservation estate are absolutely paramount.

So what are we doing in Part 4 of this bill? What we are doing is again inserting, through this amendment bill, new legislation that takes power away from the Minister of Conservation and gives to the Governor-General the power to declare that the land is or is not a nature reserve or a scientific reserve. It says that this power overrides the powers of the Minister in section 6 of the current Reserves Act. So you know what that means. That means that the Government and Cabinet get to make the decision—because the Governor-General is not going to go out there and have a look. I mean, his role is kind of a formal one. This is the Government again taking away the powers of the Minister of Conservation, who is the particular Minister to have sole responsibility for that, and giving those powers over to a Cabinet that, by its very deeds thus far, has shown us that it is not really interested—

💬 Andrew Little: You know who the Cabinet Minister is.

—in protecting the conservation. That is right: Steven Joyce, the Minister for Economic Development, will be making this decision. It will not be the best interests of the conservation estate and the protection and preservation of the conservation estate for future generations that will be paramount when the Governor-General is making those decisions about whether to declare that land is or is not a nature reserve or is or is not a scientific reserve. That is not appropriate. Again, it is diluting away the powers of the Minister of Conservation.

But that is not the end of Part 4 and the diluting of powers of the Minister of Conservation. Clause 67 of this bill makes another change to section 16 of the Reserves Act. Under section 16 of the Reserves Act reserves are classified by the Minister of Conservation, but under the new section 16A proposed in this amendment bill the Minister will have that power to classify reserves restricted. So the Minister will be able to classify recreation, historic, and scenic reserves, but nature reserves and scientific reserves will be done by Order in Council.

So again here we have a role that the Minister of Conservation rightly carries out. It is appropriate that that is a role of the Minister of Conservation. It is the way it has always been. It has worked well having a Minister whose role it is to be the custodian of the Department of Conservation estate on behalf of current and future generations of New Zealanders. Here again the National Government is saying: “No, Steven Joyce knows better.”, so it will give him that power under Order in Council to make decisions that should be being made—and up to this point are currently being made—by the Minister of Conservation.

But that is not the end of it. Part 4 also amends section 47 of the Reserves Act to provide in future that wilderness areas will be set apart by Order in Council, rather than by the Minister of Conservation. So here we have yet another area where Steven Joyce is going to be determining whether or not wilderness areas are set apart. Again we have the removal of powers that currently sit with the Minister of Conservation.

Part 4 is seemingly not that controversial, but it has been the same with every single part in this bill when you go through it. It is the habit of this National Government in areas where it is clear where the decision-making power lies to remove it from that person and then to provide that it is done through an Order in Council process, which does not have to come to this House, which does not get to be debated, and which does not often get scrutiny, because members of the public probably do not even know what the Order in Council process is, how they can object to it, or how they can take a complaint against it through the Regulations Review Committee, which my colleague Maryan Street chairs.

The Minister who is in the chair at the moment, the Minister for the Environment, was a very active member of that committee. She knows very well about, and has a great respect for, good regulations, so I am sure she is appalled at so much more being put through these regulatory processes, away from the ability of the public to scrutinise them adequately and away from the ability of the public to make complaints. As I said, I think maybe even members of this House are not sure about how they would take a complaint against a process that was carried out by Order in Council. Even if they can take a complaint to the Regulations Review Committee, the grounds upon which they can complain are very narrow—very narrow.

So instead of having that broader debate where the Minister and the public know that this is the person who makes these decisions—this is the person who classifies reserves, and this is the person who, if there is any uncertainty, we go to, to clarify what the position is—now it is being done through this process that is very, very away from the public, difficult to understand, and difficult to access, frankly, compared with going through the Minister, because the Government does not want to have that level of scrutiny.

That makes me wonder what it has planned for the conservation estate. Why is it trying to make it difficult by pushing everything through by Order in Council? And under this Reserves Act, this is particularly worrying because this is where we have the schedule 4 land. This is the most precious land in the conservation estate, and this is where it is classified. What is the Government planning to do that it wants to make all these processes go through Order in Council rather than openly and transparently going through a Minister who is then open to judicial review, in a way that the Order in Council process is not? I think we know the answer to that. It is, as I have said before, that we have mineral companies out there now prospecting in schedule 4 land. They are not spending money on looking just for curiosity. They are not spending money on looking just for the hell of it.

Part 4 of the bill, the Crown Minerals (Permitting and Crown Land) Bill, is deeply troubling. It is consistent with the changes elsewhere in the bill to deliberately weaken the powers of the Minister of Conservation, and it establishes a new process, as Moana Mackey has highlighted, where it will be Cabinet through Order in Council, rather than the Minister of Conservation, that makes decisions about how reserves should be classified and what their protected status should be.

There is a large area of conservation land that is stewardship land. That means it has not got the additional protection that reserve status, such as scientific reserve or nature reserve, would provide. That reserve status does provide additional statutory protection when you have applications to do activities in the reserve areas that might destroy the vegetation and modify the habitat values. The Reserves Act is providing that stronger statutory protection for areas that have the ecological or scenic values that deserve reserve status. So what this part of the bill is doing is making sure that it is a Cabinet decision, rather than a decision by the Minister of Conservation, as it is at the moment, to gazette the reserve and to improve the protective status. Areas that would be affected are potentially a large area of forest south of the Cook River in South Westland, which is part of the South West New Zealand World Heritage Area. The Department of Conservation was charged with undertaking a national park investigation into this area in the late 1980s, but it never had the resources to do that.

Now none of that land could be reclassified as scientific reserve or nature reserve without it going through Cabinet. That will mean, of course, that there will be other Ministers who will object to that, and we will have what happened when the Kahurangi National Park was established. Areas that have mineral potential, like Sams Creek, were being excluded from the park, even though they should be part of the park because of their ecological values. Areas like the Mōhikinui catchment were also excluded, because there was lobbying at the time the national park was established to exclude these areas, even though the investigations by the Conservation Authority had clearly shown that areas like Mōhikinui had status that deserved to be part of the national park.

So the problem here is that the technical, scientific, and ecological reasons for a change in the land status are being dismissed, and you are getting political considerations of whether that land can be available for exploitation, which will determine whether it is gazetted as a nature reserve or a scientific reserve, or whether the protective status is upgraded. Similarly with wilderness areas, because that provides for the same process. The Paparoa wilderness area, when it was established, was controversial because of the mineral potential. So we will see, as has happened with the marine reserves on the West Coast, where you get commercial industry involved, that they will lobby hard, behind closed doors, and not through the public process, and the areas that are finally protected will shrink quite considerably.

But one of the very troubling things in section 24(9), inserted by clause 68 of this Part 4 of the bill, is where it talks about a change to the classification or the revocation of the reservation status. That potentially means that if the land status is changed, areas that go up into schedule 4 that are supposedly protected will be open for mining. I think that is what the Government’s intention is. It says it is about permanent protection through schedule 4, but this clause means that that land status can be revoked. It may not be revoked over the whole of the reserve area, but it could potentially be revoked over a part of an area, which, if it is in schedule 4 at the moment, would then be opened up and available for mining.

So this provision, which allows for revocation without any obvious public process, is a potential way in which the Government can undermine the protective status of a lot of areas of conservation land. Certainly there are some criteria in section 24(10), inserted by clause 68, that the Minister must be satisfied that the reserve is no longer suitable for the purposes of its classification, but the wording in that clause is very general: “or for any other similar cause;”. That is very broad. That is giving the Minister a lot of discretion when he or she is bullied by Cabinet colleagues that the economic benefits, the jobs that will be created, outweigh the ecological values of that land. That is because that is what this Government is about—short-term jobs and exploitation rather than having areas properly protected and getting the legal recognition that they deserve because of the biodiversity, landscape, and habitat values that would see them classified as a scientific reserve or a nature reserve.

The fact that this applies to wilderness areas is also really troubling. Wilderness areas were established to provide areas that do not have tracks or huts, and where people can experience nature in a completely unmodified way. They can rely on their own resources. Wilderness areas come from a tradition of recognising that there are some areas that we want to set aside that are totally undisturbed, except by factors like climate change. This provision in relation to wilderness areas is potentially going to reduce the ability to have large wilderness areas that protect the capacity for people to walk, to climb, to enjoy those areas that are untracked, and to camp. Again, it is just this whole weakening of the Minister’s powers that the bill is all about and this is one of the worst provisions of the bill for that. Thank you.

I rise to speak to Part 4 of the Crown Minerals (Permitting and Crown Land) Bill, which amends the Reserves Act 1977. I am caused a great deal of concern by this part of the bill, and I wish to continue the theme that my colleague Moana Mackey outlined earlier. As the chair of the Regulations Review Committee I am very aware of the process of scrutiny, which is the only process of scrutiny that regulations have in our Parliament. Many members are aware of that, but, as Moana Mackey said, many members of the public are not, and are not aware of the checks and balances that are available through the scrutiny of regulation. The point of this is that clauses in Part 4 hand over the responsibility of the Minister of Conservation from primary legislation to regulation. Regulations do not come before this House for scrutiny. Primary legislation like this, like a bill, does, but regulations do not. Regulations are promulgated by Cabinet. They are taken to the Executive Council, where the Governor-General signs them, and they become, once the Governor-General has signed them, Orders in Council. So they do not ever come to this House for scrutiny. The only way a check or balance can be applied to them is through the Regulations Review Committee, which scrutinises every regulation and every Order in Council that the executive—that is, the Government—promulgates.

So I have great difficulty with these bits of Part 4 that divest the Minister of Conservation of the responsibility for declaring that land is or is not a nature reserve or a scientific reserve, or declare that a reserve must be held for the purpose of a nature reserve or a scientific reserve—and that particular clause is subject to a Supplementary Order Paper, Supplementary Order Paper 210, from the Minister of Energy and Resources anyway. But, in addition, in clause 69, section 47(1) of the Reserves Act is amended to say: “The Governor-General may, by Order in Council”—this process I have just described—“made on the recommendation of the Minister, (a) set apart the whole or any specified part of a reserve as a wilderness area: (b) vary or revoke any order made under this subsection.” So, by regulation, something that was a wilderness area may not be or become or remain a wilderness area, if I read this correctly. If I am reading it wrongly, I invite the Minister in the chair, the Minister for the Environment, to correct me, but it seems to me that in section 47(1)(b) as amended: “The Governor-General may, by Order in Council made on the recommendation of the Minister … vary or revoke any order made under this subsection.” That includes setting apart the whole or any specified part of a reserve as a wilderness area.

My particular worry about this at the moment is enhanced by a visit that I paid over the Easter break to a very famous wilderness area around the Dart River. There is a proposal on the books that the Minister of Conservation is taking upon himself to decide on, which is whether or not a tunnel should be built, excavated, dug—mined, if you like—through those mountains in that wilderness area in order to cut down the travel for tourists to Milford Sound by about 5 hours each way. I use this as an example because I am concerned that if it is possible for the status or the setting apart of the whole or any specified part of a reserve or wilderness area to be revoked by regulation, then this Government is seeking to deliberately lose control of parts of our environment that are hugely valuable. Not only is this particular part of New Zealand—around the top of Lake Wakatipu and Glenorchy and that area surrounding the Routeburn Track—a World Heritage area, but it is recognised as a wilderness area. And should that status or the purpose of that be able to be amended by regulation alone, then all of a sudden it may be possible for people to be confronting activity in that area, such as excavating a tunnel or putting down oil drilling equipment or whatever—mining equipment of any sort—and setting that into the environment without anybody knowing except the Regulations Review Committee.

That is a serious, serious consideration for this Parliament to make. That such a thing might be possible by regulation absolutely flies in the face of what this Parliament should be doing. It should be protecting and upholding and enforcing and enhancing by primary legislation laws that protect our environment, and not allowing potential destruction of our environment and the overturning of primary legislation by regulation to proceed and to be passed in this way. This is a real concern. It is not about only the potential damage. I hope I am not reading too much into it. I am an optimist by nature, but I am deeply concerned that there is a sinister agenda behind this.

I am concerned also not only by the content of this but by the process that is exemplified by this particular part of the Crown Minerals (Permitting and Crown Land) Bill. Part 5, in amending—

The CHAIRPERSON (Lindsay Tisch): Part 4.

Sorry—Part 4. I beg your pardon. I flipped the page. Part 4, which amends the Reserves Act 1977, should be something that allows proper scrutiny, and the alteration of legislation that should be the remit of the Minister of Conservation to administer, protect, and uphold, having been passed by Parliament, should not be subjected to Orders in Council, which do not get parliamentary scrutiny. So I have deep, deep concerns about Part 4 on content and on process. Thank you.

The question was put that the amendments set out on Supplementary Order Paper 210 in the name of the Hon Simon Bridges to Part 4 be agreed to.