Environmental Reporting Bill

I am happy to take a call in the Committee stage of the Environmental Reporting Bill. Specifically, I want to talk to new clause 3, the purpose clause of this bill, because I think that within new clause 3 of this bill—the purpose clause, and what we would expect of this bill, and what we will find through further contributions on this piece of legislation—we will see why it is that Labour is unable to support this legislation. It is not with any great happiness that we come into this Chamber unable to support this legislation. If we look at the broad purpose, at the fact that New Zealand is one of the only countries in the OECD not to have a robust environmental reporting system—if we look at the broad purpose, that we would have an independent check and balance on the state of our environment, these are all worthy aims and something that we could support. But, unfortunately, what we do not see in the detail of the legislation that we have before us is a piece of legislation that fulfils those lofty and worthy goals that we would be happy to support.

The purpose clause of this bill was the subject of a reasonable amount of activity for the submitters on this bill. Eleven submissions were received on this part of the bill in the submissions that were heard at the Local Government and Environment Committee’s deliberations. Most of the submitters did recommend some tidying up of the drafting that was in here. In particular, the Parliamentary Commissioner for the Environment gave a very good submission that proposed a much cleaner clause 3 of this legislation than the one that was in the early draft that went to the select committee. The suggestion of the Parliamentary Commissioner for the Environment was that there be just a very simple purpose statement put in here around what it is that the bill purports to do: “The purpose of this Act is to require regular reports on the state of New Zealand’s environment.” This was supported by a number of agencies. Not only did the Parliamentary Commissioner support this, but so did the Royal Forest and Bird Protection Society, Business New Zealand, the Environmental Defence Society, the Resource Management Law Association, and Fish and Game New Zealand. Indeed, Sir Geoffrey Palmer, in Fish and Game’s submission, wrote a very good opinion on why it was that that was to be the case.

But what needed to be done to the previous clause 3 is much of what is problematic throughout the rest of this legislation. It was muddled, it did not really do what it needed to do, and it was not in a logical way to achieve it. That is a problem that we will be referring to throughout our contributions at this Committee stage—what the problems with this legislation are. We did make some changes at the select committee. We did remove a very cumbersome purpose statement in clause 3 and replaced it with a much shorter, more elegant purpose clause, which now reads: “The purpose of this Act is to require regular reports on New Zealand’s environment.” It was good that we managed to tidy this up, but it was not actually what was asked for by the submitters, who had given very thoughtful submissions on the very purpose of this legislation.

There is a critical piece missing from that purpose statement, and it is for that reason that we will be supporting the Green Party’s Supplementary Order Paper 87, which seeks to insert “the state of”. It is not just about the environment. It is really important that this is about the state of our environment that we are reporting on, when we report on it. It is really important that we capture that in the purpose statement—that we have a very short, a very elegant, and a very well-crafted purpose statement, potentially, that we can put there that gets to the nub of what this legislation purports to do.

Some other changes were made at the select committee to Part 1 of the legislation. These were changes that we were happy to support, and they were unanimous changes for the committee. One of these was the recommendation to insert a Treaty of Waitangi clause at new clause 4A. The insertion of this clause was to make this legislation consistent with other legislation, and recognise the principles of the Treaty. The principles of the Treaty are really important when we are considering environmental reporting and reporting on the state of the New Zealand environment. We were more than happy to support those changes and the work that had been done.

It is a real opportunity that we are missing here. I think that these changes that we want to see to Part 1 and the inconsistencies that we are going to see throughout the legislation—because what we wanted when we first started talking about environmental reporting was independent environmental reporting. That is not what we are getting through this legislation. What we are getting is a piece of legislation where the Minister ultimately has control. That is a problem for us, no matter who sits on the Government benches. It is a problem when there is not independence attached to this kind of reporting. It is not a slur on any particular Minister. What it is saying is that we genuinely want independent reporting on the state of our environment in New Zealand. We have the opportunity to do this, with this legislation. There are some changes that could be made through Supplementary Order Papers that are on the Table and that, if agreed to, would mean that Labour could support this legislation. Fundamentally it is a good idea. But the execution that we are seeing in the bill that we have before us in the Chamber tonight does not fulfil the purpose that we are talking about in new clause 3 of this legislation.

This is a sign that this is a Government that really has lost its way. It is failing to fulfil those objectives that it set out to do. It simply does not do it. It is not a piece of legislation that is fit for purpose, if our aim is to have independent environmental reporting in this country. It is not going to do that. It shows how far out of touch the Government has got on what it needs to be doing. It shows that it is absolutely failing in this task. It shows that this is a Government that has reached the peak of arrogance, when it will not even listen to sensible suggestions from some very well-crafted and thoughtful submissions from some very, very good thinkers who came before the select committee and asked that we did have genuine independence in our environmental reporting legislation. But those pleas, and they were pleas, from many of the submitters fell on stony silence from the Opposition members. They were not willing to think about the ways in which we could improve this legislation. It is an opportunity lost. We could have done it—

💬 Sue Moroney: Government members.

Sorry, you are quite right. Thank you, Ms Moroney. It was the Government members; the Opposition members were more than willing to listen to the voices of reason and to listen to very well made cases and very thoughtful submissions, as we always are when they come before select committees. Unfortunately—you are quite right, Ms Moroney—it was the Government members who were not willing to listen to those submissions.

This is where we think about the very purpose of the bill. As we go through the stages and go through this bill clause by clause, it is absolutely imperative that we keep that purpose firmly in our minds: what it is that this legislation should be doing and what it is, when we examine other clauses of this legislation such as clause 18, that we will see this legislation does not do, and that it simply fails at that task. I look forward to further contributions on this piece of legislation, but what we have to do is consider very carefully this purpose statement of the legislation so that we can consider the other clauses as we go through and consider it. Thank you.

That was a member clutching at straws to try to find a reason to oppose a bill that will substantially improve the integrity of New Zealand’s environmental institutions.

Let me go through and cover each of the three points that Megan Woods raised. Here is the big amendment. The big amendment is that the member wants to add to the purpose clause to require regular reports on New Zealand’s environment, and she wants to add the words “the state of the environment.” This is as dicky as the only bill we have seen from the Labour Party in 6 years of Opposition. The big measure by which it is going to improve the protection of the environment is to add the words “protection of the environment” over and over again, as though somehow that will make things better. Adding the words “the state of the environment” is adding worthless extra words that actually achieve nothing.

💬 Dr Megan Woods: Will you change clause 18?

Let us come to clause 18. The member mentions it. She says that it undermines the purpose. What she is saying is that somehow because this bill—

The CHAIRPERSON (Lindsay Tisch): Order! Sorry. No, no. We are not in clause 18. We are actually in Part 1, which is clauses 3 to 5. Just concentrate on that.

There has been a question by the member around the independence of the environment reporting. What she is saying is because this bill provides for the capacity for the Minister for the Environment to be able set down regulations in the area of the topics, that undermines the independence of the environmental regime in this bill.

💬 Eugenie Sage: I raise a point of order, Mr Chairperson. The clauses dealing with the Minister setting the topics are in Part 2 of the bill, not Part 1.

The CHAIRPERSON (Lindsay Tisch): I have just asked the Minister to come back to Part 1, clauses 3 to 5, and I am listening.

In the purpose of the bill the key issue is that these environmental standards and reports are going to have integrity. My simple challenge for Eugenie Sage and members of the Labour Party is to read the Statistics Act. Every member of this House would have confidence in the independence of the statistics that are produced by Statistics New Zealand. And yet they wrote a law, passed a law, and voted for a law that lets the Minister of Statistics not have to consult, not have to write regulations, but to actually tell the Government Statistician they cannot publish a particular statistic—yes, just direct them—or that they have to produce some other statistic. So my simple challenge for Megan Woods and for Eugenie Sage, if they want to criticise the purpose of this bill and its content—the provisions in it are far more mellow in terms of the roles of the Minister than what there is in the Statistics Act, which they passed and which they would accept is independent.

The third point that was raised by Megan Woods was this: she would prefer that we had the old-style, vague Treaty clauses that just refer to the principles of the Treaty of Waitangi. The difficulty with that—in fact, I have heard, probably, the most eloquent speeches by members of the Opposition—is that vague laws such as those that simply refer to the principles of the Treaty actually work better if we have, as we have drafted in this bill, a Treaty clause that is quite specific about the way in which that Treaty obligation is met. If Labour is back in the position of referring to vague principles, which was the drafting style back in the 1980s, it shows how far out of touch and how lacking in new ideas it is in writing new law. All of the new statutes passed by this Parliament now refer to the specific requirements that go with the Treaty clause so that it is more specific.

I am actually very proud that we are a Government that is implementing a system and putting in place a state of the environment reporting system, a good system, which means we are going to deal with the fact that we are the only OECD country—and my challenge to members of Labour is: where were you for 9 years? Actually, I will tell you where you were. The record is very clear that if you want to talk about interference in environmental reporting, I would ask Labour members to read the history in 2007 when that is exactly what their Minister for the Environment was caught out doing. That is one of the reasons why we committed to bringing this legislation to this House—so that just as in education, where we have open standards of education being reported, and just as we are proud of our history in terms of financial reporting with the Fiscal Responsibility Act, we are applying the same principles in this area, and that is why this part of this bill should be supported by members.

Occasionally in this House one comes across legislation with aims that are entirely laudable but implementation that is entirely mistaken. This is one of those bills. Labour and the Greens both supported this legislation to the Local Government and Environment Committee. We did so because we took the Government at its word. This was a bill that was ostensibly designed to improve the quality of environmental reporting. We take no joy, in the Committee stage, in now having to take the floor and say that the select committee’s analysis and the submissions to the select committee have revealed such fundamental flaws in the drafting that we can no longer support the bill. There are such fundamental flaws that we are forced to the position where we believe they are designed-in—let me be clear about why. There is some discussion that we will come to in later parts about clause 18. What so many submitters saw as a fundamental flaw is that Ministers, by regulation, can set the topic.

The ASSISTANT SPEAKER (Lindsay Tisch): No, no—

I said we will come to that later.

What I wish to turn our attention to is Part 1, clause 3, the amended purpose clause. It is very interesting that the bill as reported back from the select committee described the all-important purpose of the Act as to require—independent reports, perhaps? No, there is nothing about independence. Fact-based reports? No, there is nothing about evidence. It simply requires regular reports, and regular is a bar that is far too low for our precious environment.

The old version of the purpose clause had such radical language as to specify that it wanted regular reports on the state of the atmosphere and climate. It is no wonder the Government did not want that in. Fresh water—I can see why they did not want that in; just go ask Ruataniwha. Land and marine domains—just ask Māui’s dolphin.

The bill had a prior clause 3 that sought to “ensure that the producers of environmental reports act independently and provide fair and accurate reports”. Well, that was all too much for the Government. That got struck out by a majority. The prior clause sought to “ensure that the expertise of government departments is utilised”—that means that it is evidence-based—and to “affirm the role of the Parliamentary Commissioner for the Environment in reporting on environmental reports and the processes that produced the reports.” So the watchdog is not only the watchdog on the issue but the watchdog on the integrity of the process that defines the issue, and both are essential.

What do we find further down in the interpretation clause, clause 4? Well, we scan down, we go to e, f, g, and then we jump to i. The only i word is “impact”. There is no independence defined in the bill. The principle of independence is missing. It has been excoriated from the draft legislation, and the Minister has the temerity to ask why the Opposition can no longer support this mistaken piece of drafting.

It is no accident; this Government has a stock-in-trade technique. It is one that has been employed repeatedly in New Zealand. It is one that the same consultants have advised for Mr Cameron’s British Labour Party, and it is called taking an issue where your opponent is making—

💬 Hon Dr Nick Smith: Mr Cameron’s Labour Party?

Mr Cameron’s conservatives. Take an issue where your opponents are making ground and cover it, like in a tacking duel of yachts; take the air off it by offering the “lite” version. This bill is “environmental reporting - lite”. It lacks teeth in its purpose clause. It lacks independence. It lacks integrity.

It is not the only time the Government has tried the “lite” version as a way of giving some public impression of progress while ensuring that the vested interests that stand behind it are not too threatened. It has an “emissions trading scheme - lite”, one that will not change behaviour for decades to come and where friends of the Government routinely pop up in the media and say that climate change is a hoax. It has a “capital gains tax - lite”, the one you have when you have not got a capital gains tax. [Bell rung] Mr Chairman?

The ASSISTANT SPEAKER (Lindsay Tisch): The Hon David Cunliffe—but just concentrate. We are not talking about climate change and other things. Just focus on the bill.

You are quite right; we cannot talk about climate change, except in so far as climate change was specifically struck out by the Government from clause 3 in Part 1. In fact, clause 3(b) required “regular reports on the state of the air, atmosphere and climate”. It no longer does, because the Government took it out. That is why climate change is in the scope of this debate. In the same way that the emissions trading scheme has been watered down and in the same way that paid parental leave was watered down, the role of the Parliamentary Commissioner for the Environment is, in this very section, watered down. The parliamentary commissioner should be the one who is specifying what topics get reported on. The parliamentary commissioner is the independent, evidence-based, and highly qualified agent who can say what should be in the reports. We do not believe it is appropriate that a Minister, a political actor in the Government of the day—and it does not matter whether it is the current Government or the next Government—play a quasi-watchdog role. It is a conflict of interest for the Minister to be the Minister’s own watchdog, and that is why this bill is so fundamentally—

The CHAIRPERSON (Lindsay Tisch): That’s Part 2.

In Part 1—

The CHAIRPERSON (Lindsay Tisch): Yes, focus on Part 1.

—the purpose has been reduced in clause 3 to take away anything other than regularity. If I might, this is yet another example of the kind of, to use a big jargon word, reductionism—take a concept as worthy as protection and enshrinement of our environment and then reduce it to something economic, and then reduce that to a business growth agenda, and then reduce that to a private balance sheet, and then privatise the resources of the State so the ability to effect change is more limited. That is the stock-in-trade of this Government.

We are opposing this bill because we are sick of “Government-lite”. We are sick of “environmental protection - lite”. We are sick of “purpose clause - lite”. We want real environmental reporting that is truly independent, not only in the statistics that are employed from report to report—I concur with the Minister on that. Nobody on this side of the House is criticising Statistics New Zealand or its chief executive or its Minister; that is not the issue.

The issue is one of scope, integrity, and the avoidance of the impression of a conflict of interest. The Minister should not constrain the reporting of the Minister’s own outputs. That is why this bill is fundamentally flawed and why it does not, and cannot, achieve its twin objectives of providing independent advice and conveying the public impression of integrity based on evidence—and truly systemic independence, not only in the outputs but in the choice of those outputs. It is in clause 3 in Part 1 of this bill that the reader gets the first clue about what is really going on here. This is a dance of the veils, and the veil that has just come off is that of the Government’s true intent.

Clause 5 in Part 1 is the shortest clause in the bill. It simply says: “This Act binds the Crown.” I believe that that is one reason that the Minister wants to retain the power to set the breadth of the reviews—because the Act does bind the Crown. The Minister does not want the Crown being bound by a report that is directed or defined by an agency independent from it, but in so doing—in imposing the constraint that the Minister has imposed later in this bill—the Minister has actually reduced the perceived value of the reporting exercise to something that, frankly, is not worth the trees that died to produce the legislation.

Clause 4A is also important. It is the Treaty of Waitangi/Te Tiriti o Waitangi clause—and it requires that “In order to recognise and respect the Crown’s responsibility to take appropriate account of … Te Tiriti [it must] provide for te ao Māori”—the Māori world view—“[as] an impact category in preparing synthesis …”. You know, I think future generations of New Zealanders are going to really thank—

💬 Chris Bishop: The National Party. The National Government.

I was going to say Māori, but it is all New Zealanders and successive Governments, Mr Bishop, whom they will thank for the Treaty of Waitangi. They will thank successive Governments for honouring the Treaty with the return of resources, because they are not resources that are going to leave the country. The Treaty is perhaps the one provision—

I am sorry; it is time for me to report progress.

House resumed.

The Chairperson reported the Social Assistance (Portability to Cook Islands, Niue, and Tokelau) Bill without amendment, and progress on the Environmental Reporting Bill.

Report adopted.

The House adjourned at 9:56 p.m.