Environmental Reporting Bill

I wanted to speak about only clause 3 of the bill, which is, of course, the purpose clause—rather, it is supposed to be the purpose clause of the bill. But, in fact, it now includes only part of paragraph (a) of the original version and simply states: “The purpose of this Act is to require regular reports on New Zealand’s environment.” If you compare that with the original clause 3, we see first of all that the words “as a whole:” have been deleted from paragraph (a).

You could ask the question: why? In the commentary on the bill you simply read that this is done to simplify the bill. I thought it was pretty simple as it was already, and that removing the words “as a whole” is a mistake. Those words are important. They would require, in my view, a more holistic approach to reporting under the bill. It is not good enough, I think, to do only some environmental reporting and leave out topics that the Government actually does not want to be reported on. It is also not good enough to report on topics in isolation from each other without a big-picture reporting mechanism—such as, for example, on the effects of climate change—as a result of some of the more specific reports.

I also note that paragraphs (b), (c), (d), and (e) in the original clause 3 are not included either. Therefore, not only is reporting on the environment as a whole removed but the subsidiary reporting on specific listed domains in paragraph (b) is not referred to as a purpose at all any longer. Paragraph (c), which talks of the requirement for independent, fair, and accurate reporting, as a purpose, is also removed. Yet these are some of the most important parts of the bill.

The truncation of the purpose clause to just the words in paragraph (a) without the words “as a whole” renders the purpose statement in the bill virtually meaningless, in my view. It adds no more, actually, than what you read in the title. So it is hardly worth having that as a purpose statement at all. But, more important, the clause now fails to state clearly that there are—or, rather, should be–dual purposes in the bill and not a single general one as appears there now. The first of those is reporting on the environment as a whole, and, secondly, reporting on the named specific domain areas.

The amendments to clause 3 are like having a car that stops due to some sort of defect, and then, instead of fixing the defect, the engine, the gearbox, the drivetrain, and so on are removed as a means of making the defect disappear, but in the process, of course, it makes the whole vehicle useless. That is what has been done with clause 3. It was a useful clause and now it is virtually meaningless. I would like to see at least the first three paragraphs—(a), (b), and (c)—reinserted so that it is a more meaningful purpose statement.

The real reason, of course, for these amendments is what is interesting. I think it is simply to hide the fact that later in the bill overall reporting on the environment is deliberately to be avoided by the Government because the Government actually knows that its record on reporting on the environment generally is poor. To remove independent reporting on specific domains and topics is also a very poor response to what the select committee considered. Because the Government intends to use executive powers and not report at all on some potentially embarrassing matters, it has decided to go through the bill and remove all those parts that would cause it to have to report on some of the matters I have referred to. That means reporting holistically on all of the matters relating to environmental reporting as they relate to each other, as well as reporting on specific domains and topics in the bill. That is the major defect with regard to clause 3, as I see it. So this pathetic amended clause 3, in my view, is not a valid purpose statement at all.

I will comment just on Part 1 of the Environmental Reporting Bill. The whole Government objective for this bill, as outlined in the departmental disclosure statement, was “to have a legislative basis for independent environmental reporting in order to give the public certainty about the scope, timing, and quality of the information” that the public will receive. It is recognised that there is quite a range of reporting that is done at the moment by regional councils, by territorial local authorities, and by Crown research institutes such as the National Institute of Water and Atmospheric Research, and it is certainly a good idea to have consistent, consolidated, and comprehensive state of the environment reporting. So we support the original objective of the legislation, but it is fatally flawed because, as other speakers have noted, it does not provide for independent state of the environment reporting. The topics will be set by the Minister.

Comments have been made about clause 3, which previously had quite a list of matters, one of which actually was to “ensure that producers of environmental reports act independently and produce fair and accurate reports.” Of course, that has been amended through the select committee process by the wishes of the majority of the committee. So the purpose statement in clause 3 is now much shorter. In my Supplementary Order Paper on this bill, Supplementary Order Paper 87, I propose a small change to that clause to actually include that the report should be on “the state of” New Zealand’s environment, because simply reducing the purpose of the bill to be requiring regular reports on New Zealand’s environment means that those reports do not actually have to be about the state of the environment.

The Minister for the Environment has been mischievous in the extreme and is seeking to mislead, as usual, by suggesting that the Opposition members of the Local Government and Environment Committee were not supportive of the overall intent of the bill. We were also very supportive of the changes to Part 1 in relation to clause 4A, which recognises the Crown’s responsibility to take appropriate account of Te Tiriti o Waitangi, yet the Minister suggested when he made comments from the chair that there was opposition to that. That was completely incorrect. We do support that clause in the bill, but we have quite major concerns about the lack of independence for the whole system.

I think the Minister, in his comments from the chair, also suggested that Opposition members should look at the Statistics Act and the fact that that Act provides for Ministers to establish the matters that will be reported on. The major difference is that that Act was passed at a time when there was a robust and independent Public Service. We have seen under this Government a major hollowing-out of the Public Service. We have seen a lot of interference by Ministers, and we have only to look at the example of the Minister responsible for this bill when he interfered with the Department of Conservation’s responsibility for statutory advocacy on the Ruataniwha Dam and, effectively, quashed a 32-page submission by that department on the Ruataniwha Dam application. So the concern that Ministers will interfere is a very real one, given that, as the Minister himself alluded to, there has already been an example of that happening with the suppression of a chapter of the state of the environment report that made some recommendations for change.

So the two major flaws with the bill are the lack of independence and the real failure to ensure that the reports are comprehensive and take account of matters where there is inadequate information—that that is actually recognised. I have got some changes in Supplementary Order Paper 87 that address that matter. The original purpose of the bill—to provide this independent system—was good, but that is not what the bill is actually going to deliver.

When the Government members have been talking about the bill, they have been saying that it recognises that protection of the environment is intrinsic to every Kiwi. That was what Mr Doocey said. So what is the Government so afraid of in having the Secretary for the Environment and the head of Statistics New Zealand actually making the decisions around what topics should be reported on? What is it so afraid of that it wants Ministers to set out those topics? The provisions in this bill for regulations are there only to enable Ministers to set the topics to be reported on, and that is a major deficiency in the bill.

I have got a number of changes that are set out in my Supplementary Order Paper, and I hope other members can support these. We have sought to be constructive with these changes. They are not the sweeping changes that we would have liked to have made to the bill. I think it is very disappointing that the Government has not taken up this opportunity to improve the bill, because once again it is an example of legislation that the Government is ramming through that does not have the support of all of the House. It is such a fundamental part of our environmental policy to ensure that we have robust state of the environment reporting to inform changes to the law and to inform changes to policy, yet the National Government wants to slant that reporting by having it politicised, and it wants to risk the legislation being changed when there is a change of Government. It would be much better with this sort of legislation to have a consensus across the House, and for the Government to take on board some of the changes that are being proposed through my Supplementary Order Paper in order to improve the bill, rather than just reject them, as we expect that it will do. Thank you.

It is nice to finally take a call this evening on a piece of legislation in the Committee of the whole House. This Environmental Reporting Bill is an important piece of legislation, and in talking to Part 1 of the bill this evening I just really want to make the point that in the Local Government and Environment Committee we had very useful and constructive conversations and debates around a whole range of issues, particularly relating to the purpose clause, clause 3, which was well debated in the select committee. Ultimately, the select committee decided by majority that it wanted to simplify the clause that was first proposed to it in the first reading of the bill, which was long-winded and did not really get to the nub of what the purpose of the bill is. So we have ended up, by majority, landing at a place where clause 3 says: “The purpose of this Act is to require regular reports on New Zealand’s environment.” That is a short, precise, and succinct clause, but it is important because what it does is neatly sum up the purpose of this bill. It does so without politicising it and without getting into an area where parties that want to grandstand and take a platform on issues could use the legislation to pursue their own political agendas. That is the purpose of depoliticising this clause of the bill.

What we have heard in previous contributions on Part 1 of the bill is really opposition for the sake of opposing, because, as chair of the select committee, I know that, deep down, members opposite really do want to support this legislation. They do want to support it because this is the first time that New Zealand will have a legislative regime, once this bill is passed, that ensures that we do have regular, independent reporting on the environmental matters relating to the domains that are so important to our natural and environmental surroundings. Clause 4, the interpretation clause, lists those domains—the air domain, the atmosphere and climate domain, the biodiversity area, and climate is defined as well. These are where the meat, if you like, of the legislation is defined for reference, in terms of the domain reports that will be provided on a regular basis once this legislation is enacted.

It will come as no surprise to people listening to this debate this evening that in fact we have been, as a nation, a little tardy in this area in terms of reporting regularly and independently on our environmental status. We are one of very few—in fact, I think maybe we are the only OECD country that does not currently have a legislative statutory regime for reporting of this nature. So this bill and the purpose clause neatly sets us in an area of best practice in terms of international best practice standards and also enables us as a nation to find that we have this independent reporting that is going to be so important to the underpinning of the legislation.

Clause 4, the interpretation clause, goes on to set out the role of the Government Statistician and the Ministry for the Environment by way of the establishment of a process for reporting. These are important matters and important parts of the bill because they go, again, to the sort of machinery, to the mechanics, of what makes this bill work and how it is going to tick. Bringing together the agencies of the Ministry for the Environment and the Government Statistician means that we will be able to draw as a nation upon the independent, well-respected, and credible resources of both those State agencies in a way that has previously been unavailable to us as a nation. The outcome will almost certainly help us identify areas where we could probably do better because undoubtedly, in any environmental situation, there is always room for improvement. It is very obvious to those of us who have been involved in business and commercial matters—and we understand—that what you cannot or do not measure really has no relevance or importance. For too long our legislation has not enabled us to measure these important aspects of our environment, so I am very confident that where we have landed as a select committee will ensure that the role of the Government Statistician will provide the kind of robustness that will be equalled and measured by the input of the Ministry for the Environment and that those two agencies will be able to provide us with the independence that is being sought by members opposite.

There is a Treaty clause. It is clause 4A of the bill and it is a clause that we included at the select committee in order to acknowledge the role of the Treaty and in order to recognise and respect the Crown’s responsibility to take appropriate account of the Treaty and its principles. This set of provisions in Part 1 goes a long way, I think, to establishing the foundations of a very good and important piece of legislation—one that if I was to be, I guess, picky, I would say should have been advanced by a Labour-Green Government when it had the opportunity to do so. Members opposite are now literally clutching at straws to find reasons to oppose this very good piece of legislation when they had more than enough opportunity to bring something like this in themselves when they had that chance, and they chose not to. They put it in the too-hard basket probably because they could not really get their heads around the way a piece of complicated measuring and reporting should be done. So to hear members opposite now opposing, as I say, largely for the sake of opposition a bill that deep down I know they wish to support is somewhat galling for members on this side to have to listen to.

This is very good legislation. It does not have the flaws that members opposite are attributing to it and, indeed, my advice to members opposite is to stop looking for shadows where none exist. It is very easy, I guess, when you are in Opposition to do that and to get into a mindset where things may be conjured up out of the mists of nothing—

The CHAIRPERSON (Hon Trevor Mallard): Order! I am going to interrupt the member, and in doing it I am going to plead guilty to being relatively slack in the early stages of chairing this part, especially in Mr O’Rourke’s speech but also in the first part of the member’s speech. What we are debating at the moment is Part 1 of the bill as it has been reported from the select committee. All the changes have been accepted by the House, so we are not debating what has been taken out. Mr O’Rourke was pretty irrelevant and—

💬 Denis O’Rourke: That’s absolute nonsense.

The CHAIRPERSON (Hon Trevor Mallard): Order! The member will stand, withdraw, and apologise.

💬 Denis O’Rourke: I decline.

The CHAIRPERSON (Hon Trevor Mallard): Well, the member—in my experience in these matters, and it is pretty substantial—does not have a choice. The member will stand, withdraw, and apologise.

💬 Denis O’Rourke: I withdraw and apologise.

The CHAIRPERSON (Hon Trevor Mallard): As I was attempting to say, replying to speeches that are irrelevant is in itself irrelevant. The member has now got into that, and it is my intention to tighten this debate right up to Part 1 as it has been accepted at second reading and to whether Part 1 implements the principles of the bill, which the House has already accepted.

💬 Denis O’Rourke: I raise a point of order, Mr Chairperson. I wish to say to you that I object very much to the comments you made about me and my speech. They were completely wrong, not called for, and not needed as part of the exchange you had with the other member. I would ask you to withdraw them.

The CHAIRPERSON (Hon Trevor Mallard): Well, I decline to withdraw to the member. What I did say at the beginning was that I did apologise to the Committee for not intervening sooner, and the reason I did not intervene was that I wanted to consult the Speakers’ rulings and take advice as to whether or not the comments that the member made about whether or not clauses that had been taken out of the bill should have or should not have been taken out at select committee were relevant. The advice that I have received and I have taken and I have accepted, and it is now the view that I have expressed to the Committee, is that it is not relevant, and therefore I am not going to allow Government members to go on about it, because they would be being irrelevant too.

I acknowledge the content of your ruling and accept it—

The CHAIRPERSON (Hon Trevor Mallard): Just do not comment on it at all.

—without reservation. Clause 3 of Part 1 of the bill is the purpose clause, and it simply says: “The purpose of this Act is to require regular reports on New Zealand’s environment.” What the committee was, I think, trying to get to there was a question of the nature of the regularity of those reports, the nature and the breadth of the term “environment”, and whether or not those needed to be extended in any way in the drafting of the clause. We ultimately decided against that.

Clause 4 is the interpretation clause, and therefore it sets out the various domains and the context required for defining those for the purposes of the bill. “Biodiversity”, for instance, is defined as meaning “the variability among living organisms, and the ecological complexes of which they are a part,”. So it is easy for us, as a legislature, to get into quite technical and succinct parts of language that have a very scientific application. I suspect that as members who are literally members of the House of Representatives, we, by and large, do not have the expert knowledge that is required to come to terms with the absolute interpretation of those words that are used in the clauses as presented in the bill tonight. But what we do know is that the science specialists and those who have expertise in this area will be able to flesh that out in terms of the reports that are provided on a regular basis as proposed in clause 3. I think that is probably all I wish to say in terms of Part 1 of this bill and I look forward to the debate as it continues. Thank you.

Can I first of all commend the member who has just resumed his seat, Scott Simpson, for his competent and capable chairing of the Local Government and Environment Committee, which has brought the bill back to the House in a better state than it arrived at the select committee—in my view and the view of my colleagues who served on the committee. But I want to pose a question to the member—not that he is in a position to answer it, although it is possible that he may be in a position to be sitting as a Minister in the chair in the not too distant future, with the way things are going. The question is whether at the end of 2017, when he is no longer in Government, he will have achieved every single thing that he wanted to do. I think that the answer to that would be no, which is why I can say with confidence that his contribution in relation to our opposition was incorrect. That is a very generous—

The CHAIRPERSON (Hon Trevor Mallard): I am now going to interrupt this member—

Oh, that would be a change.

The CHAIRPERSON (Hon Trevor Mallard): Please take a seat. Responding to irrelevant responses cannot possibly be focusing on Part 1. I just invite the member to focus on Part 1 of the bill directly.

I certainly will and, actually, I am going to ask you to consider whether responding to his challenge on our position on Part 1 is irrelevant, because in my view that is not a correct interpretation of my contribution to the debate, because it is about Part 1 and about Labour’s opposition to it. This is not the most contentious part of this bill. It is not the issue on which the Committee will seriously divide, and I think it is a great tragedy that we will have that in the second part of the debate. Part 1 is pretty small but it covers some important issues. It covers the purpose of the bill, and I guess if you ask most people in the Chamber and outside, the purpose of the bill really is the fundamental part of it because it is what it is about.

Eugenie Sage has got Supplementary Order Paper 87, which covers a number of proposed changes to the—sorry, just one on new clause 3, on the purpose, which, after “require regular reports on”, is to insert “the state of”. So the purpose would become, if the amendment is agreed to—and I certainly hope it would be—“The purpose of this Act is to require regular reports on the state of New Zealand’s environment.”, rather than as it currently is: “… reports on New Zealand’s environment.”

In the same way, in respect of the interpretation, in clause 4, Part 1, there are three amendments, again proposed by Green member Eugenie Sage, and we will be offering our support for that. Clause 4 in Part 1, the interpretation clause, was subject to quite a large number of submissions. We have already noted the changes that were made by the Local Government and Environment Committee in regard to the interpretation clause, right through to defining who the Ministers are. That is obviously going to lead us into that more substantive debate when we get to Part 2, and the insertion—Scott Simpson, the chair of the committee, said that this change was by majority. I thought it was a unanimous insertion. The member is nodding. Is that indicating that it was unanimous, the new clause 4A Treaty of Waitangi insertion? I thought it was unanimous. It may have been by majority, but it calls into question the contribution that Minister Nick Smith made in this regard, backed up by the earlier contribution of Eugenie Sage.

The Treaty of Waitangi provision in Part 1 is quite a new legislative recognition of the Crown’s responsibility in regard to the Treaty. I am not sure whether members decided that that was appropriate, but it was clearly discussed at the select committee. It was not a close vote, if it was indeed a majority vote, and it certainly got support. I think that that is going to give us new challenges in terms of our understanding of the Crown’s responsibility. That is not a bad thing. I am really wanting to express my appreciation to the committee for giving us that opportunity.

In relation to the submissions on the interpretation, a lot of submitters noted the absence of definitions for key terms that were used in the bill and asked for clearer definitions. The part that we are no longer able to discuss was one example of that, but I will not, obviously, be referring to that. There were four submitters who were specifically concerned about the definitions of the various domains. These are important organisations, which had a substantive amount of consideration and input into this legislation: the Environmental Defence Society, Local Government New Zealand, the McGuinness Institute, and Seafood New Zealand. They were specifically concerned about the definitions of the various domains in the interpretation provisions. Again, these will be subject to more debate in Part 2, where we look at the domains and synthesis reports, but it is important for us to consider whether we have got the interpretation provisions correct and whether we have met the concerns of the submitters, because, as I say, I think they were substantial contributions.

Other submitters looked at the definitions of “impact category”, “ecological integrity”, “public health”, the economic benefits, and the culture and recreation, and again said that there should be more specific definitions around those. I think that the one that was singled out by most submitters though was the term—

The CHAIRPERSON (Hon Trevor Mallard): Order! I am going to interrupt the member on the same basis as I should have interrupted other members earlier. We are now debating the bill as it was reported from the select committee and the amendment of Eugenie Sage. We are not debating what is not in here. That was done at the second reading. If there was an amendment put up to include something, it becomes relevant. If it is not, it is not.

Could you just alert me to the relevance of that in relation to what I was saying, because I actually cannot make the connection.

The CHAIRPERSON (Hon Trevor Mallard): I think the member was clearly listing a group of submissions about things that should have been included in Part 1 of the bill, and it—

I am having a bad run with the Chair tonight.

The CHAIRPERSON (Hon Trevor Mallard): Because it is not relevant.

I do not think it is our lucky night, Mr Simpson. You can pass on my sharing of this feeling to Mr Macindoe when you see him later in the evening. I think there has been a bit of a hiccup in the communication. What I was—

💬 Kris Faafoi: Just stop.

It is only a quarter past nine. I do not think anyone is voting for an early knock-off. What I was referring to was specifically—

The CHAIRPERSON (Hon Trevor Mallard): Clearly one or two are, actually.

Well, if you are suggesting you might be leaving early, that might be a different matter, Mr Chairman. It was just a light-hearted response to your interjection, of course. So what I was referring to were the changes that were made in the interpretation clause, because they were the subject of substantive submissions and they were agreed by the committee. I am commenting on the changes that were made, and therefore are reported back and are included in Part 1. In fact, particularly if you look at the changes that were made by the committee in relation to “ecological integrity”, it now says “ ‘ecological integrity’ means the full potential of indigenous biotic and abiotic features and natural processes, functioning in sustainable communities, habitats, and landscapes”, which is a result of the contribution from submitters. That is where my earlier contribution was leading to.

I just want to conclude by again referring to Supplementary Order Paper 87 in the name of Eugenie Sage. In relation to clause 4, in the definition of “topic”, it asks to replace “regulations” with “notice in the Gazette”; in new clause 4A(b), to replace “regulations” with “a notice in the Gazette”; and the same in new clause 4A(b). I have noticed a tendency in some debates that we have had that the National Government has just voted against Supplementary Order Papers that are put up by members, but I urge further consideration, particularly led by the chairman of the select committee, because there has been some constructive debate about this bill. Even though we will end up voting against it, we have, I think, had a contribution that has been helpful to the debate. In the end, if we had had an environmental reporting bill as defined in the interpretation provisions in clause 4, that would have meant that we could have an independent setting of the atmosphere and climatic domains—for example, the air domains—and then it would be a bill that we could support.

The question was put that the amendment set out on Supplementary Order Paper 87 in the name of Eugenie Sage to clause 3 be agreed to.