Environment Canterbury (Transitional Governance Arrangements) Bill

I want to talk particularly about clause 23, which I will read. It says: “In considering any proposed fresh water plan or regional policy statement during the transition period, Environment Canterbury must have particular regard to the vision and principles of the Canterbury Water Management Strategy in addition to the matters relevant under the RMA to its decisions made under clause 10(1) of Schedule 1 of that Act.” Clause 19 has a similar effect. What it basically does is entrench the Canterbury Water Management Strategy.

I want to tackle Minister Nick Smith over this, because when I was speaking earlier and I said that was the case, he was shaking his head as though this is not the case. In fact, the Canterbury Water Management Strategy is entrenched in this bill, which, therefore, calls into question why you need appointed members in order to protect the Canterbury Water Management Strategy. Perhaps the Minister could explain to us all, when the bill specifically does entrench that strategy—which is, in fact, there, which is, in fact, in operation, which is, in fact, being observed, and which is entrenched in this bill—why it is now necessary to have appointed members so that that can be protected. That simply does not make any sense to me at all, because it is already in existence. I think that the Minister and the Government’s rationale for the need for appointed members actually fall apart because of that.

In fact, what could have been done with this bill is that it could have established a fully elected regional council without any appointed members and still have clauses 23 and 19 in order to entrench the Canterbury Water Management Strategy, which is, really, the whole crux of the entire process: to make sure that there was an effective water management strategy for Canterbury. The Minister has said so, and everybody else has said so—well, actually, it is there. It is in operation and, in this bill, is being entrenched. So, again, I ask the Minister: why, then, are you insisting on appointed members?

In Part 3 I would like to take a call on clauses 24, 25, and 26, which set out the appeal rights that exist under this legislation. These parts of the legislation were subject to a number of submissions at the select committee phase, and the people who did take the opportunity to submit on these clauses and the appeal rights that are contained in this legislation were very much opposed to the limiting of the powers of appeal rights. What this legislation does is carry over some provisions that were there under the previous legislation that defined regional governance in Canterbury—the Environment Canterbury (Temporary Commissioners and Improved Water Management) Act 2010—and it replaces requirements in section 55 under that Act. What it does is take away from Cantabrians the rights that everyone else around the country has, and that is the right to make appeals to the Environment Court. What this legislation puts in place is that these appeals need to be to the High Court.

This is not some small, dry technicality buried in the 20-something clauses of a piece of legislation; this fundamentally changes the way in which people can interact with the decision that their local regional council is making. As we all know, the Environment Court is a special court in New Zealand. Not only does it have specialist judges but also it is assisted by specialist commissioners who have expertise in resource management, in planning, in environmental planning, in engineering, and in science who can be called in. This is a court that can take a much more inquisitorial approach to any appeal that is put before it, unlike the High Court, where these appeals will be on matters of law only. Whereas people in other parts of the country can go and appeal a decision of their regional council and what it is doing on the basis of the substance and the facts of what is actually happening, Cantabrians are limited in their appeal rights to only matters of law. This fundamentally changes the way in which this legislation operates.

This is, of course, a change that Minister Nick Smith, who is sitting in the chair, has been wanting to get across the line in terms of the Resource Management Act throughout the country, but he has been unable to get that across the line with his support partners. So what he is doing here, in clauses 24, 25, and 26, is trying to impose it in some kind of pilot study on Cantabrians. I do not think it is good enough that just because the Minister cannot get his resource management legislation over the line in this Parliament, he decides that Canterbury is some kind of Petri dish where he can put in place different kinds of appeal provisions, such as we are seeing in clauses 24, 25, and 26 of this legislation. I would like the Minister to take a call and explain to us why it is that Cantabrians will have lesser appeal rights than their contemporaries and their compatriots in other parts of the country, because this does have far-ranging impacts on how it is that Cantabrians are going to interact with their regional council, and what their rights are.

I would also like the Minister to talk about what alternatives might be available to Cantabrians to take an appeal to the High Court, because, whereas someone could access funding through the environmental legal aid fund, which was established to aid people in taking appeals to the Environment Court, will there be a similar fund for Cantabrians who want to appeal a decision that is made under this piece of legislation but are forced to take that appeal to the High Court on a matter of law, which is a much more expensive process and, actually, will limit people’s ability to have access to justice around this? Will there be a similar fund to the legal aid fund that is available for people taking cases to the Environment Court?

This is about access to justice. We are seeing that this is a Government that is eager to shut down people’s access to the courts and their ability to get their day in court and to have those questions answered, in many aspects of Christchurch and Canterbury at the moment. I would like the Minister to take a call on that, and I look forward to hearing from him.

I am delighted to be able to answer the questions that both Denis O’Rourke and Megan Woods have asked about Part 3 of the Environment Canterbury (Transitional Governance Arrangements) Bill. Can I deal, firstly, with the issue of the Canterbury Water Management Strategy, of which I think both Mr O’Rourke and I share the view that it was a good piece of work. It was developed collaboratively by the people of Canterbury. It was actually developed by a large amount of work from the mayors and the other councils in Canterbury because they were so frustrated about a lack of progress on water management by the previous Environment Canterbury.

But here is the key point that Mr O’Rourke has missed: the Canterbury Water Management Strategy has no legal status. You can have a strategy—sure, you can have a strategy—but it has absolutely no legal effect unless it is recognised in law. We recognised it in law in 2010 with the Environment Canterbury legislation and we are recognising it here as a document that Environment Canterbury needs to take into account as it completes the exercise of putting water rules in place in Canterbury.

💬 Denis O’Rourke: Exactly. They are the basis of it.

If Mr O’Rourke’s position is actually to take effect, what he is effectively saying is “Great. Canterbury has a water management strategy but it has absolutely no legal status anywhere.”, and that, to me, seems an extremely illogical position. I challenge him. If he really believes in the Canterbury Water Management Strategy he will vote for this bill, because it is the only way of giving it any legal status in the management of water under the Resource Management Act. That can be done only with this bill.

I now want to come to the question that has been raised by Megan Woods. It is an important one. It is around the appeal rights and it goes to the heart of the challenge around water in Canterbury. You see, under the existing schedule 1 process of the Resource Management Act the average time for getting a plan in place is 8 years, Actually, in the water area it has been even longer than that—more like 15 years—and here is the challenge for Parliament: can Canterbury wait 7 to 15 years to get some rules in place for fresh water? I do not think any member in this Chamber would honestly say that is true.

If I listen to the questions of Labour environment spokesperson, David Parker, in the Chamber today, what he is rightly arguing is that, actually, we need to get some rules around agricultural intensification and other things a lot more quickly than that. But here is the dilemma for Labour members. They cannot argue in one breath that we cannot have any change in the process of submissions, of cross-submissions, and appeals on putting water plans in place. You cannot have that position and simultaneously argue that you want to get some progress urgently made on getting some constraints and some rules on the water pollution issues in a region like Canterbury.

That is why—and this is the hybrid, and I openly say to the Parliament that it is a hybrid—we want to be able to appoint people with judicial skills on to Environment Canterbury over the next 3 years. I pay absolute tribute in this Chamber to the work of Environment Canterbury commissioner Peter Skelton, one of New Zealand’s most experienced Environment Court judges. We appointed him on to the commission so that we could have a hybrid process of judicial rights, judicial skills, and other skills in a single-step process.

💬 Dr Megan Woods: That is horrifying. That is not an appeal right.

That is what we are doing with this bill quite deliberately, I say to Megan Woods. We do not have time in Canterbury to have the normal long schedule 1 process to get not just the natural resources plan, which the commissioners have done, but the specific rules for each of the catchments of Canterbury. The best way, we believe, to do that is to have a hybrid process, not have appeals to the Environment Court but ensure that you have got people like Peter Skelton on the process of setting those rules, region by region, so we can actually get the rules in place. That is where Part 3 in providing for no appeals to the Environment Court is the quid pro quo to ensuring that the Government can appoint those judicial skills and make sure that we get these rules in place once—but that we get it right—and in my view that is the best way forward for Canterbury.

I think that last speech by the Minister for the Environment shows what a muddle we are getting into with resource management in New Zealand. As I understand what he was saying, it was that people with judicial experience will be appointed as the commissioners on Environment Canterbury. They will be hearing the submissions on the plans, and yet, under the resource legislation, the changes that the Minister is making to the Resource Management Act are aimed at reducing the role of elected councillors in making decisions on plan submissions. So we are going to get completely different regimes around the country.

In this call I would like to talk specifically about the plan-making provisions in clause 19 of the Environment Canterbury (Transitional Governance Arrangements) Bill, because what the Local Government and Environment Committee did was restrict the scope of this clause slightly so that it applied only to freshwater plans and the regional policy statement, though I suspect there will be debate about what happens with estuaries.

The Government has been very mischievous here. At the same time as the Minister has criticised the elected council for being too slow, the Government is now giving this hybrid model 9 years, until 2019, and giving the commissioners 9 years to develop new plans, and yet it is not just shutting off the appeal rights for plans that the second-class model has finalised—it has heard the submissions, it has made the decisions, and then it has said there is no ability to appeal to the Environment Court—but it is also shutting off the appeal rights to the Environment Court for plans that the regional council has simply notified before they have gone through that whole submission and hearing process.

So it means that this bill is going to extend its impact way beyond 2019, because Environment Canterbury will be able to notify any freshwater plans in the dying days of the hybrid model in mid-2019, and the public in Canterbury still will not be able to appeal that plan because of the effect of this legislation applying to notified plans and not just to plans on which the council has made decisions. To me that highlights the Government’s desire to absolutely control the way in which plan making is done in Canterbury, and the way in which the rule regime will work to ensure that you get a regime that irrigators and water users like, rather than one that actually protects fresh water.

We have seen, with the collaborative process that the Minister is so proud of in Canterbury, environmental organisations and Fish and Game being highly critical of that being captured by irrigators, and users walking away from the process. And so the decisions on what the plan should be will be made increasingly by zone committees and the council, with appointed members on it. It will not have the check, which appeal rights to the Environment Court provide, for everybody to be able to challenge those provisions because, as Megan Woods has noted, there is no appeal right to the Environment Court, only on points of law to the High Court, which is a much more circumscribed process. So not only is this bill about undermining local democracy but in this part it is also about constraining access to justice by removing the ability to appeal to the Environment Court, not only between now and 2019 but well beyond that, for all of those plans that Environment Canterbury may notify in the last dying days of the hybrid model in 2019.

The other issue I would like to talk about in this part is clause 21, about water conservation orders. There was a report in 2011 by the New Zealand Conservation Authority, which the Minister will be familiar with, that highlighted that we have not done enough in New Zealand to protect our rivers and lakes and waterways. The Resource Management Act and the definition of sustainable management is about use, development, and protection, but too much of the decision making and the plan making focuses on use and development and very little of it focuses on protection. Water conservation orders have been the major mechanism that Fish and Game and conservation groups have used to implement a degree of protection, particularly around flows rather than water quality.

This Government, with the principal Act, totally overrode the provision for a water conservation order for the magnificent Hurunui River. It retrospectively prevented the Environment Court from hearing appeals on that water conservation order, and now, in clause 21, the Government is providing for the same processes that apply around the rest of New Zealand to again apply in Canterbury. We should welcome that, because it is one area where Canterbury is not being singled out for a second-class regime. But—and there is a big “but” here—at the same time as the Minister is giving back the law around water conservation orders to Canterbury, rather than the weakened regime that exists in the principal Act where he had the provisions around development having to be given greater weight than the normal Resource Management Act requirements in Part 9 of the Act, which are much more about the protection of outstanding values, in the Resource Legislation Amendment Bill that is a major attack on water conservation orders.

So we will get it back in Canterbury for a short time, and then it will be taken away if the Resource Legislation Amendment Bill goes through. Minister Nick Smith is shaking his head, but, Minister, in the Resource Legislation Amendment Bill you are making the requirements of Part 9 subservient to the development requirements of other provisions in the Act. That is fundamentally weakening water conservation orders.

So, once again, this Government, in this bill, is undermining the protection provisions of the Resource Management Act. It is removing access to justice in terms of the independent Environment Court. So that means that the decisions that the zone committees and this new hybrid council make on plans will have much greater weight. They will be less able to be challenged, because of the removal of that appeal right. It is weakening the protection provisions in the Resource Management Act.

I want to refer to clauses 24 and 25 in respect of appeal rights, particularly clause 24(3), and revisit some of the arguments that the previous two speakers have noted. I want to note the comments that the Minister made in respect of former Environment Court judge Peter Skelton. He quite rightly pointed out that Judge Skelton is one of New Zealand’s pre-eminent environmental justices, a man with huge skill and a history in these particular issues. Then, on the other hand, he was silent, or tried to justify—I cannot recall which—the taking away of appeal rights to the specialist and highly skilled Environment Court, which, as others have said, is highly qualified and far more qualified, I would argue, than the High Court. It has a process that is inquisitorial and far less prescriptive than the High Court, where you can deal with substantive issues and not just appeal on matters of law.

So again we see a sort of inherent contradiction. On the one hand, the Minister acknowledges that he wants people of skill, in the form of Judge Skelton, and I accept that. He justifies that because he wants people who know what they are doing. He wants people who are embedded and have a history of influence, who are in Judge Skelton’s place—an eminent jurist in respect of environmental matters. But, of course, he then says: “Well, if you want to appeal, sorry. We’re not going to allow you to appeal, like every other person can, outside the Environment Canterbury boundaries, around New Zealand, to the specialist court and jurisdiction, the Environment Court—no. The parties will only be able to appeal to the High Court and those appeals will only be on points of law.”

So the question I have for Minister Nick Smith is: what is the justification for that? Like other questions we have put to the Minister in respect of the extension to 2019 and the justification for that, there has been no answer to it. So on the one hand you want—quite logical—specialist people, experienced people, people with the inherent legal skills that you require to make decisions on these issues, and on the other hand you say: “No, we’re not going to allow parties to be exposed to the court of record, the specialist Environmental Court that has been set up for many, many years, specifically to deal with those issues.”

I grant you, I am sure there are a number of High Court judges—all High Court judges I am sure would argue that they can decide matters across any jurisdiction. That is the function of a High Court judge. However, you would have to argue that issues of a technical nature, that are of a specific environmental nature, should reside within the Environment Court. Otherwise why have it? Why bother? Get rid of it and just ensure that the court of record is the High Court, to deal with all issues, technical and otherwise. They could do that but I do not think that would be logical.

So the question for the Minister is: why is there a contradiction? What is the justification for limiting appeals, or for preventing appeals, I should say, from going to the Environment Court and requiring them to go to the High Court as in clause 24(3)? What is the point? I would argue that, just like the constriction around democracy, this is about control. Just like the notion that Cantabrians cannot be trusted to elect good leadership from within their community, without being babysat by commissioners, this is about control. This is about control and limiting the rights of people, both in a democratic sense but, as other speakers have said, in respect of access to justice.

They are pretty heavy actions to take as a Government. We could make reference to other jurisdictions, as has been referenced, actually, by the Minister, quite bizarrely—his reference to Sitiveni Rabuka and the Fiji coup, in a former speech in the last hour or so. In other jurisdictions that do not value democracy as we in this Parliament in New Zealand do, those jurisdictions are more likely to embark down these sorts of paths where you halt elections, where you appoint Government folk who are not accountable to those people who elect them—they are accountable to Ministers in a Government—and you restrict the ability of people to exercise their legal rights and, more especially, their appeal rights.

The Minister, in answer to some of those questions, especially around the issues that I have posed, cited district health boards and said: “Well, you know”—the usual sort of stuff—“Labour sacked a district health board, and x, y, and z, and how can we get up and have the views we do?”. Well, there are times in Government when you do actually have to sack some people if they are not actually performing. We would acknowledge that. That is a logical thing to do. But in respect of the district health boards, there are a couple of differences. The first is that those district health boards were then rapidly reinstated. The same—the Minister mentioned in his speech—goes for the sacking of school boards where one puts in a commissioner. But, again, unlike this piece of legislation, those school boards, as a general rule, are pretty rapidly, once the situation has stabilised, converted back to elected boards of trustees.

The third point in respect of district health boards and school boards, but especially district health boards, is that they derive their income directly from the Government—the taxpayer, via the Crown. They are totally Crown funded—totally Crown funded—whereas Environment Canterbury, of course, apart from some transport funding and others, derives the vast majority, the overwhelming majority, of its funding from the local ratepayer. That is the difference. Do you know the old saying “No taxation without representation.”? It is a bit of a cliché, but it is probably apt in this debate today.

I am surprised that the Minister, again as I have said in other speeches, holds the view that he does. Actually, his view where he said that “Democracy is risky.”—at least he is being honest about that, because as we go through these parts and specifically this part about constricting and preventing the rights to take appeals to the Environment Court and restricting them to the High Court, that actually provides evidence that he was telling the truth when he said “Democracy is risky.” I would put it to Government members—there are a few foreign affairs specialists over there—that those are the sorts of attitudes and those are the sorts of actions one would expect from some Third World jurisdictions, not from a First World country called New Zealand. But the Minister believes it. It is probably the most honest statement he has made, and these actions actually provide evidence that he believes this.

So I would like to ask perhaps the Minister in the chair, the Hon Nikki Kaye, even though it is not her portfolio, whether she could shed some light on the contradictions that I have pointed out in respect of the High Court and the Environment Court. I think the people of Canterbury are owed some specific explanations, not just a lot of clichés and a lot of lip-service. They have lived with this for 9 years. Gerry Brownlee has seen the light, given Cantabrians back a lot of power in respect of the earthquake legislation, yet a week later we have this, which is pretty heavy-duty, Draconian legislation. The Minister, sort of, gives various commitments. He gave commitments in 2013 and he broke his word. So we wait with bated breath.

Sitting suspended from 6 p.m. to 7.30 p.m.

I believe we are on Part 3 and schedule 3 of the bill—

The CHAIRPERSON (Hon Chester Borrows): It is all about water.

Pardon?

The CHAIRPERSON (Hon Chester Borrows): It is all about water, is it not?

Right. Yes, it is. Correct. That is correct, Mr Chair. You are right. Ha, ha! I would like to pay particular attention to schedule 3, if I am able to. It is, I believe, a document that was authored in late 2009 around the vision and principles of the Canterbury Water Management Strategy. I want to focus first on the vision statement that it has. It states that the vision for the strategy is “To enable present and future generations to gain the greatest social, economic, recreational and cultural benefits from our water resources within an environmentally sustainable framework.” As a vision statement goes, I do not think anyone in this Committee would have too much of a problem with that as a vision statement. The problem we have though, as in within other parts of this bill—Part 1, Part 2, and Part 3—is the lack of public ability to be able to democratically choose a body to try to achieve that vision statement.

I think the vision statement, as it stands, is a very worthy one, but I think the public, and especially the people of Canterbury, deserve the right to be able to elect an Environment Canterbury board to try to achieve the vision that that schedule 3 sets out. I do not think it is overly complicated. I think that, potentially, people who were elected to an Environment Canterbury board could achieve that vision statement, but my question to the Minister in the chair—and I realise Hon Dr Nick Smith is not in the chair at the moment—is about why he believes that a fully elected Environment Canterbury board cannot achieve that vision statement.

The only guide I have is some of the previous statements Dr Smith has made in this part of this debate. He already has a completely different vision statement than what is set out in schedule 3, because he wants to try to achieve that in a particular way, which a democratically elected board, he believes, in his opinion, would not be able to achieve. So my question to the Minister in the chair is: why has the Government chosen to not take a fully democratic role or process to ensure there is a fully elected board of Environment Canterbury to achieve that vision statement?

Schedule 3 goes on, then, to outline some of the regional approaches that the Environment Canterbury board—whether it be fully elected or a mixed model, as within this piece of legislation—has to go about its business. I think there are two points that I want to point out, which are on page 26, one of them being “A consistent regulatory approach to water is applied throughout the Canterbury region, recognising these principles.” One of the concerns that we have had is that because there is going to be a different regime for Christchurch, you may have different rules for Christchurch or Canterbury and different regimes for other parts of New Zealand. That is clearly pointed out in schedule 3.

Then the other quirky one that is in No. 2, under schedule 3, there is a slight contradiction in the way that it wants to approach water management in Canterbury but also elect a board that is going to manage the process of managing water in Canterbury. That is dot point six, where it says: “A cautious approach is taken when information is uncertain, unreliable, or inadequate.” So we have got to be cautious when there is a very murky picture with the water, but we are not so cautious when it comes to the democratic process of electing the people who are tasked with carrying out this vision statement.

We have pointed out a number of times in the debate on Part 1, the debate on Part 2, and some of my colleagues have done a very good job of pointing it out in this part of the debate, that we have serious concerns around the lack of full democratic ability of the people of Canterbury to elect the board. We do have a mixed model here, which will elect the board around the water management system.

The CHAIRPERSON (Hon Chester Borrows): Order! I just want to make a point to the member, and maybe to others who are wishing to follow on after him, and I will give him the call when I finish making this point. The fact is that it does get a bit repetitive when the same point is made over and over and over again around the democratic process, which, as everybody has heard, is made in the various parts all the way through. But just because the same point is made under each different part does not mean that it is not repetitive. So what I suggest the member and members wishing to take a call do is to dig in to the meat of these provisions and to debate them rather than go back and make the same point over and over and over again, because that is repetition, and as members will well know, being students of the Standing Orders, whether or not it is repetition is the province of the guy sitting in this seat.

I thank you for your guidance in that matter, Mr Chair. Just to put the Chair at ease, I was just coming to the end of that particular point, and I wanted to raise the other issue that is in Part 3 around the judicial process either contained or not contained within this part. The Minister in the chair noted, without naming names, that instead of allowing there to be an appeal process, he was considering—and he almost laid out that he was almost certainly going to do this—appoint a former Environment Court judge to the Canterbury board to do away with the need for an appeal process, because the learned judge would be on the board and so he would be able to use his skills to be able to adjudicate in an instance where there may be some contest.

In that respect—and I am not going to labour this point, Mr Chair, because it has been made, and repetition is not something that you want to see in this debate—we have concern around that, because the judicial process in many other areas is set up to make sure that there is an avenue, and to see that judicial process usurped or worked around by a Minister because we have got someone with the skills on the board is not a practice we want to see made a constant practice. We do have concerns around that. It is not, in our eyes, the proper process. He may have the skills, indeed, to make the call, but in terms of setting up the process so the people of Canterbury can have absolute confidence that if they do have issues and they do need to work through these water management issues and there is an appeal, then having someone on the board itself who just happens to have those skills, who has experience in the Environment Court is, in our eyes, not good enough.

It needs to be a robust process. It needs to be a transparent process. In our eyes that is not robust and that is not transparent—just co-opting someone with those skills on to the board. Maybe the Minister in the chair may like to answer some of those questions.

I am happy to take another call on Part 3 of the Environment Canterbury (Transitional Governance Arrangements) Bill and to pick up where my colleague Kris Faafoi finished off.

In an earlier call on this part, I asked the Minister in the chair, the Hon Nick Smith, some questions pertaining to the appeal rights that are contained in clauses 24 through 26 of this legislation, and I have to say that the Minister’s response that it is OK because we are going to appoint judges to Environment Canterbury so you do not need to have appeals to the Environment Court was truly one of the most terrifying things I have heard said in this Chamber, and I have heard many terrifying things. The idea that a Minister will stand in this Committee and say “We do not need robust appeal rights in a piece of legislation because we are going to make judges the people making the decisions.”—the whole point of appeal rights is that if you do not agree with the decision, then there is a robust process of where you can take it from there. So I think we will keep asking questions of the Minister in the chair, because this piece of legislation, which we have wholeheartedly opposed from the very beginning, seems to be getting worse and worse with the utterance of the Minister.

The further question in terms of Part 3 that I would like to put to the Minister who is currently sitting in the chair, Minister Goodhew, is around the functions of what Environment Canterbury will do. What we are seeing in Part 3—the clauses that are through there—which is as close to the functions as the legislation gets, and in schedule 3, which Part 3 refers to, is that it is very much about the management of water in Canterbury. All through the passage of this legislation we have heard time and time again from the Minister, the Hon Nick Smith, that the whole basis of the need back in 2010 to throw out an elected council and put in place Government appointees was because of the Creech report, which pointed to problems with the governance in Canterbury.

I think that Part 3 is also notable for what it does not include and for what it does include. The only function that is talked about here is water management, but the Creech report was not only about water management in Canterbury; it also pointed to another flaw in Environment Canterbury, one that it said did need to have some attention paid to it. That was that it recommended a review of the transport functions of Environment Canterbury, particularly matters of public transport, given the concentration of transport functions in urban areas, especially Christchurch, within that body.

People outside that area may not understand the very sliced and diced way that public transport operates in Canterbury. For the bus system, for example, within Christchurch City Environment Canterbury sets the routes, but it is the job of the Christchurch City Council to place the bus stops. That is an authority delegated to community boards. So we have one body that decides where the buses are going to go, and another one that has to deal with the infrastructure around those. It has long been our contention—and it was something that we did hear very much through the submission process on this bill—that it was not just these water functions in Part 3 that Cantabrians wanted. They also thought that if there was anything that was going to be happening in terms of us having an examination of the role of Environment Canterbury, it should also include a functional examination, and one of those functions should be ways in which we could have more integrated approaches to transport planning in our region.

I think that when the Government talks about this being a piece of legislation that is required as part of the response to the regeneration of Christchurch there could be no greater need than to get integrated approaches to our transport planning, and I think we see that around the edges, where Christchurch City borders with other councils, whether that be in Mr Doocey’s area of Waimakariri or over the border in Selwyn. We see that we have growing and pressing needs for urban development that is taking place outside the boundaries of Christchurch City and we see the need to have strong and stable public transport links to those. The fact that this bill does not address it, that there is no function examination, and that it is confined solely to water is something that we think—if you actually were going to do anything around Environment Canterbury, taking the opportunity to do something truly progressive like looking at how it is that we could have public transport that was fit for the 21st century—

I just rise to take a short call specifically addressing clauses 24 to 26 and the limitations on the right of appeal, specifically for water conservation orders. In this bill it is saying that the community cannot appeal to the Environment Court. The only right of appeal that people will have after this bill passes is to the High Court on a point of law, which is a very significant restriction of the right of appeal.

I do want to address the Minister for the Environment’s response to concerns being raised about this, where he said that we should not be worried about the reason for limiting the right of appeal, because he would probably be appointing a judge—he mentioned Judge Skelton—to Environment Canterbury so that those environmental judicial skills would be on that board. This is not a repetition of the concerns around democracy, but it is very closely aligned to them, because we have core constitutional frameworks in this country: democracy and the rule of law and the independence of our courts. For the Minister to say “You don’t need a right of appeal because I’ve bought you a judge and I’m putting him on my council.” seems to me to be an extraordinary statement and an absolute erosion of our constitutional framework, and one that really needs to be answered. I really do want to hear the Minister tell us that that is not what he meant, because it is something I think that all New Zealanders should be deeply concerned about, if they were to find out that a Minister is so cavalier about the importance of the independence of our courts as to think that he could buy that judge and put him on the decision-making panel and that we have no need for any scrutiny or independence. If that is not what he is saying, how is he going to assure that independence on points, beyond just points of law, around the absolute rights that go to and the concerns that people normally take to the Environment Court?

These are really, really important issues for the people of Canterbury. It is about ensuring they have the same rights as everyone else in New Zealand and that our system is functioning effectively, because that is why we set up our system with independent courts and a democracy: to be able to deliver for people in a way that we know works. It may not be the quickest decision-making. It may not result in decisions that we always agree with, but we know that when we start eroding those systems we actually risk everything, because it is what our society is founded on: those two core principles. It is deeply worrying to hear them compromised so blithely by the Minister.

I would refer back to, again, the comment from the Law Society, which was talking about those constitutional values and the unalterable fundamentals being our legal system and our democracy and the independence of that legal system, and I do hope to hear the Minister stand up and correct us for how we all seem to have interpreted his statements.

I am pleased to take a call on Part 3. I would like to return to what my colleague Mr Faafoi was explaining before with regard to the Canterbury Water Management Strategy. I believe that there is an internal inconsistency in the bill, because the Minister for the Environment earlier mentioned that the Canterbury Water Management Strategy had no force in law, yet a key part of that strategy—the vision and the principles—is expressed in this legislation in schedule 3. So in effect it does have the force of law because it is in the legislation. Although there is clause 19A(2), it is unclear, because in my mind if the text of that particular Canterbury Water Management Strategy is in the legislation, then it is law—it is law. It forms part of this piece of legislation. In my mind, the Minister was quite misleading in terms of saying that it had a lesser relevance.

I would like to turn to the actual body of those visions and principles, because I think they are very relevant. In particular, I would like to focus on the third clause of schedule 3, “Kaitiakitanga”. It is wonderful to see that “The exercise of kaitiakitanga by Ngai Tahu applies to all water and lakes, rivers, hapua, waterways and wetlands, and shall be carried out in accordance with tikanga Maori.” That is a wonderful primary principle that has been expressed in this legislation. As a result, I actually think that that reinforces the standing that Ngāi Tahu has, through its ability to appoint two appointees to Environment Canterbury. So I do commend that particular section of the vision and the mission.

If we carry on down to clause 5 of schedule 3, “Indigenous biodiversity”, it says: “Indigenous flora and fauna and their habitats in rivers, streams, lakes, groundwater and wetlands are protected and valued.” Again, this is music to the ear of all mana whenua, that the indigenous biodiversity is specifically recognised as a principle and that it actually forms part of the legislation. The point I am making is that although the Minister Nick Smith was, in his words, I believe, demeaning the actual importance of these principles, I believe the fact that these principles have been stated and have been included in this legislation elevates them. They have been elevated to being within the legislation—they are not just a mere document; they are actually in the body of the legislation, and they form a critical part in the process of the freshwater plans and regional policy statements. I did not want to underplay the importance of those principles, because they are a central part of the process.

Really, if we do look at Part 3, we are really getting to the guts of what this whole hybrid Environment Canterbury set-up is all about. Basically, it is all about the freshwater plans and regional policy statements and everything to do with water. That is why this particular part of the legislation is only to do with that particular aspect. If we go back to what the Minister said, there are eight water zones in the Environment Canterbury area. Only two have operative plans, so that means that this successor—this newly created hybrid body—has another 3 years to complete the process in Part 3 that they will have to follow to get those six plans in place. That is a monumental task, when you consider the difficulty—

I move, That the question be now put.