Wellington Town Belt Bill

I am pleased to begin a couple of calls that I hope to take now, and then perhaps a couple later on, to both introduce the bill back into the Chamber, through this Committee stage, and to highlight some of the core elements.

The first thing to say is that we come to the Committee tonight with this bill, towards the end, now, of a very long process. I am going to seek the indulgence of the Committee to give a little bit of a history lesson around the town belt, to set the context for what we are doing. But the history I am talking about at the moment is the history of the piece of legislation. As I said in my first reading speech, my particular personal involvement in a piece of legislation to protect and enhance the town belt goes back to the period around 2001, when the Hon Marian Hobbs, the then member for Wellington Central, was attempting to do exactly what we are doing tonight: to provide a strong legislative basis to protect the town belt in perpetuity, and to provide the ability to enhance it. It is now, some 15 years on from there, that we finally find ourselves in the House with a piece of legislation.

My involvement in that 2001 stage was not the beginning of this. I do want to acknowledge in the Chamber tonight that in the gallery are people who have worked for decades to support and enhance the town belt: the Friends of the Wellington Town Belt group—and I am particularly thinking of Joan Quinn, who is in the gallery tonight—and others as well, who have done so much over so many decades to ensure that Wellingtonians have the facility, have the beauty that is the town belt available to us. I want to acknowledge Joan particularly, and all of those who have worked on the town belt.

This is a local bill, and, therefore, I am introducing it and have it in my name on behalf of the Wellington City Council. This is an initiative of the Wellington City Council to protect and enhance the town belt. Many councillors and staff have worked hard on this bill over a long period of time—and their lawyers, I might say. I want to acknowledge, in the most recent triennium, councillor Helene Ritchie, who has led the council in terms of its consideration of this, and also Michael Oates, who has been with it throughout its gestation period, as an official at the council. These are the people who make bills like this happen, and I think it is important that we acknowledge them at the outset.

The Wellington town belt, as most members of Parliament will know, is the horseshoe-shaped green space that encircles the city. Its life began, I might say, a little before the Town Belt Deed, which we put into law tonight, was signed. So that was 1873. The New Zealand Company, as it began its process to establish Wellington City, wanted from the outset to have some green space. John Ward, the New Zealand Company’s secretary, made this instruction in 1839: “It is indeed desirable that the whole outside of the Town, inland, should be separated from the country by a broad belt of land which you will declare that the Company intends to be public property on condition that no buildings be ever erected upon it.” That is from 1839.

What then followed, as has been the history of the town belt, was not quite exactly what was intended. From 1840 onwards, things began to look a little different than the New Zealand Company had intended. Clearly, there was a series of issues around the use of the town belt, because—we have had a few conversations about the New Zealand Company as we have gone through this legislation, and I do not think that the New Zealand Company can get away with looking completely altruistic with their creation of the town belt, for two reasons that I want to talk about.

The first of those is that, actually, part of the motivation of the New Zealand Company was to drive up land prices inside the city of Wellington by having an area of land that could not be used, because that actually would help. That was sort of how the New Zealand Company operated from time to time. But, quite clearly, the other core element was that parts of this land were, in fact, already under the ownership of those iwi who had been here for some time.

It is very important, at the outset, to acknowledge Te Ātiawa, Ngāti Ruanui, Taranaki, and Ngāti Tama, whom we collectively call Taranaki Whānui, and also Ngāti Toa Rangatira. Both Taranaki Whānui and Ngāti Toa Rangatira were the occupants of this land—the inhabitants of this land. It is without doubt that through the Treaty settlement processes for both Taranaki Whānui and Ngāti Toa Rangatira—we recognised the Taranaki Whānui in the Port Nicholson settlement legislation.

The Crown recognised the breaches of the Treaty of Waitangi that led to the acquisition of lands that are included within the town belt. A process was gone through, and I do want to acknowledge here all those who were part of the Port Nicholson Block Settlement Trust, who were able to see that the town belt was now such an iconic part of Wellington that they desired it to remain in that place. So in this legislation—which, Mr Chair, I am sure you are pleased I am going to actually speak directly to now—we do make a specific acknowledgment of the role of tangata whenua in the management of the town belt, and we do something that is unusual in legislation, which is that there is a preamble that runs through the history of the town belt and also explains exactly the process that those iwi went through, and who had their own ahi kā over particular areas within the town belt. It is important, and unique in many ways, that this is what we now have in terms of the town belt.

I do want to acknowledge again, at this point in the process, the importance for mana whenua of this land, and the partnership that the Wellington City Council has been engaged in for some time through the Wellington Town Belt Management Plan. But in law we now have a process by which the management of the town belt and the role of tangata whenua is specifically recognised.

As I was saying on the history of the town belt, land has been alienated from it. The original idea was a 632 hectare area of land. Little by little that was whittled down, for various reasons—some legal, some not. The Public Works Act eventually had a say, and we have ended up where we are today, with approximately 400 hectares remaining in the town belt as it is today.

But it is important to acknowledge that in the early times of the city, land was lost from what was wanted to be the town belt, and for me, that is one of the great strengths of this piece of legislation. We now have the capacity to add land to the town belt—to enlarge the town belt, and perhaps get it back to the status that was originally envisaged. What we will do as we pass this legislation, when it goes through its third reading, is we will add another 120-odd hectares immediately—immediately on the passing of this legislation. That is something for this House to be proud of—that, actually, we will be adding to the town belt straight away, and creating the facility to continue to add land to the town belt over time.

In the process of the bill going through the select committee we had to take out one small parcel of land that we were going to add, which is still the subject of first right of refusal under some of the Ngāti Toa settlements. It is a small parcel of land, but it was important we kept faith with that. Subject to that settlement going through, we will be able to include that final parcel of land. But an additional 120 hectares is, I think, very, very important.

The early stages of the piece of legislation are the preamble, and it is also important to note, in this first call, the principles of the town belt legislation, which are the management and partnership with mana whenua, and that the town belt must be protected and enhanced—that is it. If any future council or any future Government intended to do something that did not protect and enhance the town belt, that would be against the law, and that is why I have been so passionate about getting this piece of legislation before Parliament. It is not because the Wellington City Council has not done a good job of managing the town belt over the years, but that we do now have a legal instrument that says the town belt must be protected and enhanced, and defines the fact that it must be kept as a public recreation ground and defines what that is. I can come back to that in later calls for those who want that.

The town belt is also to “be accessible to all and for all [Wellingtonians] to enjoy,” to “be available for a wide range of recreational activities,” and for “community participation in the management of the Wellington town belt to be encouraged and supported.” They are the core principles, and they are the things that underlie why a piece of legislation like this is so important. I will return, in a later call, to some details.

It is a pleasure to rise and talk in this Committee stage of this Wellington Town Belt Bill. The member in the chair, Grant Robertson, canvassed, quite broadly, the history and purpose of this piece of legislation, and I would just like to take the opportunity now to acknowledge again that, unless there has been some sudden change of heart across the House, and I do not think there has been, this is a bill that does have broad support—in fact, unanimous support—across the House. I think Mr Robertson is to be congratulated on the work he has done to shepherd this, and to be commended for his perseverance. He is sponsoring a bill on behalf on the Wellington City Council that is going to receive unanimous support.

The reason I say these things—and we can be completely non-partisan about this—is that, taking the liberty that Mr Robertson took, I will talk a little bit about why this town belt bill is so important. As we know, and we can all acknowledge in this Committee, Wellington is, without question, the finest city in all of New Zealand, and in doing this we are going to protect a very important part of our city and it is what makes our city the city that it is, which is that green belt. I mean, there are many great things about Wellington. There are the interesting and challenging elements of a hillside city, there is the beautiful harbour, and there is just sufficient air flow to keep air pollution away. It is, indeed, a great city to inhabit and, for some colleagues across the Chamber, to visit from week to week.

The town belt has long been a feature of our city. It has been a good showcase, actually, for the heart of the city, and I would remind us all that although we might dwell and work in the concrete jungle, such as it is, we enjoy, as all New Zealanders do, the green outdoors and the generally pure nature of New Zealand. So I am extremely pleased that this bill is going to receive endorsement across the House because I do believe that that town belt is not only a feature of Wellington; it is something that we should treasure and we should protect.

The particular clause in the bill that I want to refer to is clause 23. The bill as originally introduced was going to provide some carve-out mechanisms from the Public Works Act, and although I do not cast any aspersions at all on the council or on any others in the drafting of the original bill, I do think that it is a far better bill for the removal of those carve-outs. It is providing protection to the town belt but also ensuring that where there are requirements or desires that would ordinarily fall under the aegis of the Public Works Act—for roading, primarily—not only is there the ability to do that but it is also under the same terms and conditions for those same works anywhere else in the country, because it is important that they are maintained here as well.

There is an odd thing in the bill—and, like with any bill or any potential piece of law, everything is open to interpretation. But, certainly, one reading of the original bill as it stood is that it could have been seen to permit the Wellington City Council to negotiate to sell elements of the town belt, had it chosen to, but it would have been required to object to any attempt to acquire it compulsorily. You might argue that you take a different view on that, but it is just an oddity in terms of a bill that was meant to protect the town belt that we might have had a situation that would seem counter to the things that were intended. So the change to clause 23, aside from ensuring that the Public Works Act provisions will apply, also removes that potential source of interpretation, or, some might say, misinterpretation.

So we are left with a bill that I think absolutely achieves the purpose that Mr Robertson pointed out in his contribution, which is to protect this thing, which is not only a thing of beauty but a showcase of Wellington City, and to ensure that it is more effectively, coherently, and properly governed by bringing together all of the provisions of management and governance under a single Act, rather than the separate pieces of legislation that currently exist.

Also, I would share Mr Robertson’s point about the ability to add to the town belt. I agree with him that introducing about 140 hectares of additional land to begin with is a wonderful thing, but what we have done is, effectively, struck a balance. The amendments that I referenced that will mean that the Public Works Act and compulsory acquisition will still apply are balanced by the fact that the council and the citizens of Wellington will still have the provision to add to this town belt, should they choose to do so in the future. So I think we have seen a wonderful bill come into the House.

Kia ora, Mr Chair, and thank you for the opportunity to speak in the Committee stage of the Wellington Town Belt Bill. I would also like to just add my congratulations to the member in the chair, Grant Robertson, for his role in shepherding this bill though the House, and also the wonderful people who have been so passionate about this kaupapa within the Wellington City Council and across this great city of Wellington.

This is a wonderful bill. As I have said previously, I do wholeheartedly support the bill. For everyone who visits the city of Wellington, a striking feature is the town belt. There is history in those bush-covered hills. I am so pleased that Mr Robertson spoke about, obviously, the immediate history, in terms of the trust deed and the length of time and the technical issues that have given rise to a long overdue modernisation of the administration and the rules governing the town belt. But I also acknowledge the member for going back to the 1830s and the 1860s when the town belt was part of the tribal estate of the Taranaki tribes that inhabited this great city and, indeed, are mana whenua today. This is a great piece of legislation.

I also want to just mention the preamble. The preamble recites the reasons that have led to the legislative provisions in this enactment. Perhaps something to consider is that it mentions in clause 3 of the bill, “Purpose”, that: “The purpose of this Act is to—(c) recognise the history of the original Town Belt and its significance to mana whenua and the inhabitants of Wellington.” Indeed, the preamble sets out very nicely the chronology of some of the main events that have given rise to the history of the town belt. But given that clause 3 mentions that the bill wants to recognise the history, perhaps the bill could have gone further. Instead of having a preamble, the preamble could have been stated in the legislation itself. Obviously, the preamble just sets the scene, but it is not actually part of the enactment. Given that there is recognition here, it is not a novel thing.

We do a lot of Treaty settlements in the House, which are all enacted through legislation. A lot of the historical background is put into a separate part in the legislation. It is enacted by Parliament itself. That historical account is not a new thing, and it could have been put into the body of the legislation. It is just a point that I wish to raise. It in no way detracts from the effectiveness of this legislation, but given that a key purpose of this bill is to recognise the history, perhaps that history could have been put into the actual body of the legislation itself, rather than just in an explanatory preamble. That is a fairly minor point, but one that I wanted to raise in this Committee stage.

I do want to return to the point of the history, which is recited in the preamble. Obviously, there are some wonderful characters who have played a part in the history of our great city here, in Wellington. One such person was Edward Gibbon Wakefield, the promoter of the New Zealand Company, but, as we call it in Māori, Te Kamupene o Niu Tīreni me te whānau w’akapiri [The New Zealand Company and the family connection]—the Wakefield whānau. But no matter from which side of history you want to look at things, Edward Gibbon Wakefield has been described as a New World 19th century visionary, with remarkable foresight and wisdom. I guess, in a sense, he did have that wisdom and foresight to put in place the foundations for the Wellington town belt. Of course, folks on the other side of the pā fence may have some different ideas.

But I am pleased that here we are, in 2016, having had the passage of the Treaty settlements for the Wellington region. All historical Treaty settlements have been completed through the Port Nicholson settlement and also Ngāti Toa Rangatira. To an extent, the foundation has been laid now to really move forward. I guess this legislation is part of that modernisation, to bring the structures up to date, to clarify any uncertainties there were about some very archaic pieces of legislation and old documents. Anyone who tries to read an old document will barely be able to understand what it is saying sometimes. So this bill is giving the council a very clear mandate and very clear rules under which they are to govern the town belt.

I do want to also touch on, and also commend, the insertion in clause 4, where it states: “(1) In performing its role as trustee of the Wellington Town Belt, the Council must—(b) have particular regard to the following principles: (i) the Wellington Town Belt should be managed in partnership with mana whenua:”. So it could not be more explicit than that. That is a grand gesture from the council. I will be interested to see what that means in practice, and how that partnership is given effect to. But I also do support the other provisions in that same clause, where it goes on to say that there should be community participation in the management of the Wellington town belt—that that should be encouraged and supported.

I guess all Wellingtonians will definitely support that as well. Those are just some brief remarks that I would like to make in this first call. I certainly will be traversing some other areas in some later calls. For now, I support this bill. Kia ora.

I thank colleagues who have spoken in support of the bill. I think in this contribution I would like to work through some of the operable clauses in the bill, because we are doing the debate as one question, to explain what is actually being done through them.

The first one I want to highlight is clause 8, which explains the legal status of the town belt. It contains a couple of elements that are core to the way that the town belt is seen in Wellington, and the way that this bill will enable it to be managed. The first of those is the statement in clause 8(1): “The Council holds the Wellington Town Belt on behalf of the inhabitants of the city of Wellington as trustee of the trust created by the Town Belt Deed.” This has been core from the beginning of the town belt—that it is the inhabitants of Wellington for whom this is held, and that the council laws are merely the trustees of that, following the trust deed. The trust deed is included in the legislation, it is now part of the law, and it remains the instrument that guides the way in which the council goes about its work, and that is importantly stated in clause 8(1).

Clause 8(3) is probably where the most controversy has arisen over the years, in the way that the town belt has been looked after. Clause 8(3) says: “For the purposes of subsection (2), public recreation ground means an area provided for—(a) recreation, sporting activities, and the enjoyment of the public, with an emphasis on the retention of public access, open spaces, and outdoor activities; and (b) the protection of the natural environment and historic heritage.” Putting that definition in law will deal with some of the issues we have had before—for instance, about whether an early childhood centre is a public recreation facility, or whether a commercial operation within a closed building is.

This is not to say that we are trying to rewrite history. There are a number of buildings on the town belt—I think upwards of around 40, perhaps. We are not pulling those down, but what we are saying is that the definition of public recreation is that it is about sporting activities, public access, and open spaces. That is what was intended with the town belt. Over the years, for a variety of reasons, and with all the best intentions in the world, people have come to see opportunity to use the town belt for things that are not public recreation. That is what we are trying to achieve here, and defining it as clearly as it is now in the law will, I hope, put to rest the misunderstandings that have occurred over the years about what public recreation actually is.

Clause 9 talks about public access, and I do want to read clause 9(1) out, because, again, it picks up the spirit of this legislation: “Members of the public are entitled to freedom of entry and access to the Wellington Town Belt,”. It is subject to some caveats, which I will come to in a moment, but that is the overriding principle. This is for Wellingtonians—this is for all Wellingtonians to have the opportunity to use. On any given day in Wellington, if members of Parliament have the opportunity to be in the Wellington Town Belt, you will see that that is how Wellingtonians see it. For the inner-city dwellers in Mount Victoria, it is their backyard. They live in small, confined properties; that is where they go. That is where they go to walk, to sit, to have their dinner, and to watch the world go by. Up where I live, on the western hills, in the western boundary of the town belt, it is the place where people go for exercise—to walk up the hills. It is where I do my training for the Oxfam Trailwalker. That is where I was, in the western hills of the city. This is a place of public recreation that requires this level of public access.

I do want to mention clause 10 of the bill, which is around the question of the management plan. It is not as if the town belt has been operating in a void up until we got this legislation. It has been governed by a management plan that has been through extensive consultation, reconsultation, and reaffirmation over the years. Clauses 10 and 11 outline the way in which the management plan is created, which is a highly consultative process, and what should be in the management plan itself. This is the instrument by which the Wellington City Council will, in an ongoing way, put into practice the principles and the rules that are laid down in this legislation. The process for doing that, as I say, is a public one, with a great deal of submission from the outside, and I do hope that we will continue to see that process followed through.

I want to now come to Supplementary Order Paper 169 that is in my name, which covers clauses 16 and 17, around leases and licences. When the bill came before the Local Government and Environment Committee, there were submissions about the question of leases and licences. From time to time, the Wellington City Council will grant people the ability to lease part of the land. There are two leases that are exempted from the rules that I am about to go through, and they are for the Chest Hospital and Wellington Zoo. The Chest Hospital is now actually used by the SPCA, but it is an iconic building and an important part of Wellington’s history. Wellington Zoo, obviously, everyone will know. They are exempted from this, but, otherwise, leases can be given for periods not exceeding 20 years. Licences, which are for much more short-term activities, can be granted as well, but they cannot exceed 10 years.

When the bill was introduced, there was a statement in clause 16 that referred to: “At any point in time, no more than eight hectares in total of the Wellington Town Belt may be leased,”. That is a very strongly supported clause, because we do not want a lot of land being taken out for permanent purposes beyond public recreation. A similar clause did not exist in the provision on licences, and so some submitters said that they also wanted a restriction on the amount of land that could be used for licences. In a bout of overenthusiasm, the select committee adopted the recommendation of officials to also include a clause saying that there should not be more than 8 hectares in total of the town belt to be licenced.

Those who are good at maths, like Mr Bridges, will be able to note that 8 plus 8 is 16. So we ended up with a situation where it would have been possible for there to be 16 hectares of the town belt leased or licenced. That was not the intention of the Wellington City Council, and, in fact, I am grateful to members of the Friends of the Town Belt and others who drew to our attention the possibility of the misinterpretation of this. There is a Supplementary Order Paper in my name, which makes absolutely clear that the 8 hectares in total is for leases or licences.

💬 Hon Judith Collins: Oh.

I am seeing that Miss Collins is deeply excited by this piece of information, but it is—

💬 Hon Judith Collins: You haven’t seen me deeply excited yet. You never will.

Thank goodness. But I would say that it is important to the people of Wellington that we do limit the land in the town belt that is being leased or licensed out, because although there are always good reasons for that, we do not want to see that become too much land. That is why we have a Supplementary Order Paper—to absolutely clarify that it is 8 hectares in total for leases and licences, and Miss Collins will be able to vote for that should she choose, in the next period of time.

The other clause I just want to mention briefly in this call is clause 18, the clause on business activities. I do think it is very important here, because this was raised in submissions, to note that business activities can be authorised. These are the activities that are usually associated with the leases and licences that I have just mentioned, but the business activity has to be temporary and the effect of the activity on the town belt and the public can be no more than minor. We have defined what “temporary” means, and it means, if we look under the interpretation clause, it is an activity “that—(a) is of a non-repetitive, transient nature; and (b) does not exceed 4 weeks’ duration; and (c) does not involve the construction of permanent structures or facilities”. So what we are talking about is that what is in would be having a coffee cart in the town belt when there is a particular event on so that people could use that. What would be out is what has been suggested from time to time—the construction of a gondola from the top of Mount Victoria down into the city.

💬 Hon Simon Bridges: Oh, it’s a great idea.

Simon Bridges wants a gondola.

💬 Hon Simon Bridges: No, I want one from the Mount.

The people of Tauranga might want a gondola from the ground to the top of Simon Bridges’ castle, but the people of Wellington are perfectly happy not to have a gondola in Wellington. That would not be allowed under the definition of “temporary” within business activities.

So they are some of the operative clauses that I want to mention. I will not have time in this call to talk about clause 23, and I will, with the indulgence of the Committee today, take one more call in this debate to go through what has happened with the changes to clause 23 around the Public Works Act. But I think members of Parliament will now have some idea of the purpose of the main operational clauses within this bill, which do give the practical implementation of the principles of this bill.

E Te Kaiwhakahaere, tēnā koe. I want to congratulate the member on bringing this bill to the House and, actually, for his very sensible proposed amendments on Supplementary Order Paper 169. But I also want to apologise to the member for having delayed the Committee stage, and thank the party opposite for its forbearance in allowing my own member’s bill to actually supersede the local bill that we are dealing with now, and the private bill that preceded it on the Order Paper on the day.

💬 Hon Member: Great day for the RSA.

Absolutely, it is a landmark day for the RSA. It used to be that the bell at 6 o’clock symbolised 6 o’clock closing. Now, of course, this bill symbolises the 6 o’clock opening for the RSA. But, anyway, back to the Wellington Town Belt Bill.

I want to welcome the amendments that Grant Robertson has proposed in his Supplementary Order Paper. I think it is very sensible that the 8-hectare allowance for the town belt—no more than 8 hectares—to be given up for either lease or licensing to strictly non-recreational purpose be just 8 hectares, not 8 plus 8. This is actually a very sensible measure. So this covers, as the member has pointed out, not only Wellington Zoo but also the Chest Hospital—amenities that are important to Wellington but perhaps not strictly within the terms of recreation that people might consider in this day and age.

Also, the term for a lease not being granted for any longer than 20 years seems quite reasonable to me, although, unlike the member, I am not so hostile to the idea of a gondola. I actually like a scenic cable car, or gondola, or sky cabin—whatever you want to call it. I like this idea. There may be other areas of Wellington, though, that it could be implemented in rather than intruding upon our precious town belt, which all of us value so much for its recreational amenity. But, also, just the visual effect of having our beautiful city surrounded by a belt of green, largely native foliage is hugely pleasant. So I think it is apposite that clause 16(3)(b) be amended in accordance with the member’s Supplementary Order Paper.

I would also like to welcome the addition of clause 16(5)(a), which states that the monies generated from any lease or licensing of town belt land must be put back into the town belt, and that investment is very sensible, in my view. We have a current outdated piece of legislation that actually prevents the addition of extra, new lands into the town belt, so I think it is important that we, going forward, enable the council to ensure that new lands are vested into the town belt via those funds that are garnered from lease or licensing out of that land.

There was one issue that came up at the Local Government and Environment Committee that I am very glad the member has acquiesced to. That is—and I think he will know where I am going with this—the issue of the application of the Public Works Act. A point that one submitter—our local power lines company—made, which I think was quite convincing, was about not having the ability to put emergency power cables through the town belt. Our hospital in Wellington, which is based in Newtown on Adelaide Road, is our main hospital. It serves as a central hub hospital for this entire region. In the event of an earthquake, and should other generation capabilities be disrupted, without full applicability of the Public Works Act there would be a concern that we may not be able to string the emergency power pylons on a temporary basis—these are simply temporary emergency pylons—through the town belt to ensure that the hospital, for instance, is powered during that crisis.

I think all members would accept that that is an important capacity to retain in the second most earthquake-prone capital city in the world, which Wellington is. So I am very glad that the member accepted that that should be the case and that Public Works Act applicability would remain. Other than that, I just want to congratulate the member on the way in which he has brought this to the select committee.

New Zealand First will be happy to continue to support this bill. I have to say, before I ask some of the questions that I am going to ask in a moment, that I have been given this bill to speak to only in the last hour, so I have not really had the time that I would like to have spent on it before asking these questions. It may be that some of the questions that I am going to ask have already been answered at other stages of the bill, which I have not had the opportunity to hear. If that is the case, then I apologise for that, but I think that I should raise them anyway, and if some of those members opposite would just like to breathe through their noses for a while, I will take that opportunity now.

The first thing that I want to raise is the principles in clause 4, which I have heard the member in the chair, Grant Robertson, say are very important to the bill as a whole, and I agree—they are obviously a primary part of the bill. It is stated in clause 4(1) that the council must first of all: “(a) recognise and provide for the protection and enhancement of the Wellington Town Belt for future generations;”. Then it goes on in clause 4(1)(b) to say it must have particular regard to a number of principles. But each and every one of those principles is framed with the word “should”—“should be managed”, “should support”, “should be accessible”, “should be available”, “should be encouraged”, “should be recognised”, and so on.

I just wonder whether that is appropriate language in a clause that is supposed to be empirical. I wonder whether those words, “should be”, and so on, could be interpreted as introducing an element of discretion or not. So I would like the member in the chair just to think about that and whether we should be taking this opportunity to make an amendment to that Part, should he feel that that is a problem.

Just further on that issue of those principles, I am looking at other parts of the bill, and clause 8 is obviously a very important operative part of it. However, there is no reference anywhere there to those principles, and I would have thought that it would be advisable to do that. If the principles are going to be really central to the way in which the council exercise its functions, then it might have been a good idea to add them to at least either subclause (2) or (3) of clause 8. I would say the same thing about clause 10, and I heard the member say how important he thought that was. I would have thought, for example, that in clause 10(2) there might be a requirement for the council to exercise its functions having regard to those principles in clause 4. I just make those comments constructively, in case the member thinks it would be helpful to make some changes there. If not, then we are not going to die in a ditch for them, and that is fine.

I would like to go on and just raise some questions also about Supplementary Order Paper 169. First of all, in the amendment to clause 16(2) a reference is made to “no more than 8 hectares in total”. I do not understand what is magic about the 8 hectares, and I have not been able to find any reference to it anywhere, so perhaps we could know why that figure has been settled upon.

More seriously though, I would like to raise, especially with the member, some of the wording in subclauses (3) and (4) of clause 16 as proposed in Supplementary Order Paper 169. I read in paragraph 16(3)(b) the words “not be granted for a term, including any renewals, exceeding 20 years;” and in paragraph 16(4)(b) the same words—“not be granted for a term”—are there and then the words “including any renewals,”. Does the member think that the inclusion of those words will actually prohibit the council from granting a lease to the same lessee after 20 years and renewals, should that actually be required by the council and desired by the community? It is the same in new clause 16(4). Would it operate as a prohibition, and if that could be the case is that what is intended? This is the time to deal with those sorts of issues.

I have not got much more to say. If I turn over the page of Supplementary Order Paper 169 I see new clause 16(5), and I am looking at the words: “The Council must—(a) spend all money received under a lease …”. Would there be a problem if, for example, there were rates payable under a lease, or insurance, or other payments made under a lease that are obviously intended for specific purposes, that might be caught in an unintended way by those words? I just raise that, again constructively, in case the member thinks that there might be a problem there to fix. I hope those comments might be helpful. Otherwise, as I have said, New Zealand First is very happy indeed to support the bill; we just want to make it as good as it can be.

Mr Chair! [Interruption] Apologies for scaring the staff of the House. Basically, there were so many questions that I had for the member who sponsors the bill, Grant Robertson, but he has been so forthcoming with information that he has actually pre-empted many of the questions that I had, particularly those around Supplementary Order Paper 169 in his name regarding leases and licences in clauses 16 and 17.

I am always interested in the submissions that come in and the viewpoints that we get from the public, and I do notice that there were 30 submissions made on this bill and almost all of them were in support of this bill. I just wanted to know from the member, for the two submissions that opposed parts of the bill, whether their opposition was addressed by the Supplementary Order Paper. You had two people who opposed the bill out of 30 submissions, and so were any of their concerns addressed through the Supplementary Order Paper?

Really, other than that, I just want to congratulate the excellent member for Wellington, Grant Robertson—what a great representative you are for the Wellington region. I also do want to acknowledge just one other person in the House, and that is Paul Foster-Bell, because he managed not only to get his bill through tonight but also to make mention of it in the third reading of the Christian Churches New Zealand Property Trust Board Empowering Bill, and to make mention of it during the Committee stage of this bill. So well done, Paul Foster-Bell, for being an effective member; a shameless member. But moving the lens away from Paul Foster-Bell and back on to Grant Robertson—well done, Grant Robertson, for being the effective member for Wellington Central.

There are some points that I would like to clarify. Obviously, we are for this. The one thing that has surprised me about this debate is everyone standing up and saying what a wonderful place Wellington is. Well, coming from Napier—I suppose everything is relative, is it not?

Mr O’Rourke brought up a very good point, and I was going to allude to this. I will not go through it in the level of detail I had originally planned to, but it is quite interesting that the principles all talk about “should” whereas most of the other things in the bill are a requirement. I am not too sure whether that is deliberate, or why it is, or whether some of these things might be more difficult to deliver on than others and, therefore, they are not prescribed in case they create a burden for the Wellington City Council. The other thing in here that I would be quite interested to know is: if, in fact, this does create a burden for ratepayers, i.e., by creating the sort of deed—this trust—does it mean that the council is going to have to put aside another $3 million or $5 million or $4 million or $10 million of ratepayers’ money to actually be able to carry out the statutory requirements that are now legislatively forced upon it?

There are a couple of serious questions that I do have. I am assuming, though, on a less serious nature, that in the principles clause, clause 4(b)(iii): “the Wellington Town Belt should support healthy indigenous ecosystems”—is that the Gareth Morgan clause? On a serious note, though, in clause 4(b)(vi), what it says here is “community participation in the management of the Wellington Town Belt should be encouraged and supported” but then I note that when you go to clause 10, the management plan, it is very prescriptive in the sense that the city council “must” seek public input for the development of the management plan. It seems as if one is saying the public should be involved in this, whereas clause 10 says the council must liaise with Wellington inhabitants. It just seems that there is a little bit of a dichotomy. It is not a big one; I think we know what it means.

But there is a serious question here, and I do not have the answer to it—maybe the member does. I am looking at the legal status of this. Clause 8 says “The Council holds the Wellington Town Belt on behalf of the inhabitants of the city of Wellington as trustee of the trust created by the Town Belt Deed.” The thing I do not quite get here is that there is something called the rule against perpetuities, and that is that every trust must have a definitive life. That is, basically, a life being plus 21 years. There is a legal definition of this, and I think it is—

💬 Hon Judith Collins: 80 years.

Yes, I think it is 80 years—thank you, Mrs Collins. It is 80 years, but I am unsure whether that same rule applies to a charitable trust.

💬 Denis O’Rourke: No, it doesn’t.

But there is nothing in here that suggests that this is a charitable trust. [Interruption] No, but all I can ascertain from this bill is that this is a trust, not a charitable trust; therefore it has a life of about 80 years. To those of us who are sitting in this Chamber—

💬 Denis O’Rourke: No.

Mr O’Rourke, it does not outline the fact in here that this is a charitable trust, so by law it has a life of 80 years. The member may correct me if I am wrong. For those of us who are sitting here, 80 years sounds like a long time, but there are a number of instances throughout history where 80 years has flown by and it leaves those who come after us with a whole lot of things to fix.

The other thing, also, because you always pick up these sorts of terms, is that it says “The council may, without complying with subsection (4)”—this is clause 10, the management plan, and subsection (4) says you must consult with ratepayers and constituents—“amend the management plan, if it passes a resolution that—(a) the proposed amendments are minor or technical in nature”. Meka Whaitiri and I are struggling with an issue in Hawke’s Bay at the moment where a number of councillors at the Hawke’s Bay Regional Council were sort of ambushed—and I use that word probably a bit too liberally, actually—when they went into a meeting and said: “We are going to pass a resolution because it is minor, it is technical, it doesn’t require any sort of public consultation, and that is that we are going to allow the council to enter into a binding contract worth $35 million.”

The CHAIRPERSON (Lindsay Tisch): Order! Come back on this bill.

So what I am keen to know here is what actually constitutes minor and technical.

I would just like to pick up on the points raised by Mr O’Rourke. It certainly is good having an experienced legal practitioner in the House, and in particular his reading of clause 4, the principles clause, because those clauses that are at the front of the legislation are, obviously, the most important. They set the scene; they establish the founding purposes and principles of the legislation.

I think that Mr O’Rourke is correct in the use of the language: instead of it being mandatory for the council in terms of performing its role as trustee, it becomes a little bit more vague when it talks about having “particular regard to the following principles: (i) the Wellington Town Belt should be managed in partnership with mana whenua”—should be. Again, the repetition of “should” occurs all the way through those very important principles provisions.

In my reading, you could say that there is wiggle room there for the council. It should “have particular regard” to these principles, but it may not necessarily do so. It is not an express prescription or a mandatory obligation on the council; it is only that it should do it. I think it is a very valid point that Mr O’Rourke raised that the language in the bill should be more express, because if we carry on through the actual nuts and bolts of the bill, where we talk about management plans and powers of the council, everything is very prescribed, it is very clear, and it is very explicit as to what the council must do and what it must not do in relation to the town belt.

We should really look at the principles provisions, because I am just noting that the first principle that is there in clause 4(1)(b)(i) is that the town belt should be managed in partnership with mana whenua—should be. But if we look at that clause, there is nothing in the body of the bill itself that actually gives meaning to what the council should be doing, or must do, in relation to its partnership with mana whenua. It is silent. It is very explicit in terms of what the council can and cannot do, but it says nothing in relation to how it is to conduct its dealings with mana whenua in its partnership—partnership—with mana whenua. So I just endorse Mr O’Rourke’s remarks, and I believe that perhaps further consideration should be given to the wording. It just leaves too much wiggle room, in my mind, having read through it again, in that there is not an express obligation on the council that it must fulfil or adhere to those principles.

Also, I do support Supplementary Order Paper 169 from Mr Robertson. It is very clear that if you are not wanting to grant a lease for—what is it—8 hectares, you should provide an open-ended licence provision to grant a licence. That has a great deal of common sense, and that has been picked up on. Also, just in response to Mr Nash’s point about the rule against perpetuities, I know it has been a long time since I looked at the law, but I think that statutory provisions would override the rule against perpetuities. I think it might apply to private trusts but not—I guess, Parliament can override those common-law principles.

Lastly, I just want to go back to the beautiful town belt itself. Yes, it has a lot of history, both Māori history and in the development of our city, but it is also an everyday space—

I want to thank all my colleagues who have made a contribution, and I will endeavour to respond briefly to the questions that have been raised, and then return, as I said I would, to clause 23.

Firstly, in terms of the principles clause, the important factor to note here is at the beginning of the principles clause, which needs to be seen as an umbrella and which also links to other elements of the bill. Clause 4(1) says “In performing its role as trustee of the Wellington Town Belt, the Council must—”, and then it outlines the things it must do. It must “recognise and provide for the protection”, and it must “have particular regard to” the principles. So it does not have wiggle room in that sense. What the council—and bear in mind this is a bill put forward by the Wellington City Council—was clear about was that the principles could not be so tight as to enable it not to actually run the city or to be able to do the things that it needs to do within the city. It is an absolute obligation to have regard to those principles, but, then, to have them worded in such a way that they can be operable principles in terms of how the town belt is managed.

In terms of the relationship with mana whenua—to pick up the comment of my colleague Rino Tirikatene—this is where the management plan becomes the critical element, because the management plan is what governs, on a decade-by-decade basis, how the town belt works, in that there is a relationship with mana whenua over the management of the town belt. The principles are high level. They have enough flexibility in them to allow the operation of the town belt to occur, but it is through the management plan that that finds itself in operation. We are making legislation here for perpetuity, and the management plan is what guides us in between times. I think it is important that we do not try to invest everything about the town belt’s operations and running in this legislation. The management plan is a critical element.

To the other question that Mr Nash raised: this is not a charitable trust; this is a statutory trust—and, actually, the word “trust” is used in the deed, which has in itself led to the concept of a trustee. But it does not suffer from the limitations that other types of charitable trusts do.

To Mr O’Rourke’s concern around why it is 8 hectares: I think that is because it is 20 acres, and I think that is a number that the council has used to define what it would deem to be an acceptably small percentage of the 400 hectares that we have and the 520 to 540 hectares that we will have. I do not think it is a number divined by anything more than being an acceptably small number relative to the size of the town belt.

In terms of the question around whether or not it is foreseen as a prohibition: that will be a matter for the council. What it was trying to get across in this was that it did not want people to believe there were 20 years followed by another 20 years followed by another 20 years without any recourse to pausing and stopping and thinking about whether or not a lease should be granted over and over again. Whether or not that would amount to a prohibition will be a decision for the council, and not, I am sorry to say, something that I can shed any light on for the member.

I want to use my remaining time to talk about clause 23. Clause 23 as introduced in this bill did create some exceptions to the way in which the Public Works Act would apply to the Wellington town belt. It has never been the intention of the Wellington City Council to exempt the town belt from the Public Works Act. What originally came into this House did add in a couple of extra provisions. After consultation between the Wellington City Council and the Government, we now have an amended clause 23. That amended clause 23 is the status quo. It means that the Public Works Act operates alongside the town belt, as it has done up until this point. There are rights of objection for the city council, and there is a process for compensation. We have not added to that, and in the Labour Party’s minority report I made it very clear that we would rather have stuck with the original clause 23, but, ultimately, this is a local bill, and the Wellington City Council has made the decision that it believes the status quo should be where we are now. I do think that is a bit of a lost opportunity to show just how special and unique the town belt is, but I do respect the fact that this is, as Mr Foster-Bell has mentioned, about the particular way in which the town belt sits in the city and the purposes for which it may be used from time to time.

Can I say this: I would hope that Governments looking at the town belt would be very judicious in their use of the Public Works Act and would actually attempt to avoid its use where at all possible and find alternatives that do not require the town belt to be taken. But it was never the intention of the Wellington City Council to not have the Public Works Act apply to the town belt.

Just very briefly, I do accept that the change that was desired in the original clause 23 around compensation was complicated and, I think, would have been quite difficult to implement, but there are still provisions for compensation in this. I want to make it absolutely clear to those who are listening in to this that in no way does the clause 23 that we will be passing tonight diminish the protection that the Wellington town belt has. It simply enshrines the status quo. As this will be my last call in the Committee stage—

💬 Hon Member: Say it’s not so!

—I do want to thank all my colleagues—well, I could go on—from all sides of the Chamber for their strong support of this piece of legislation. We are doing a very good thing for Wellington here, and we will—

💬 Phil Twyford: Can we build houses on it?

We cannot build houses on it, Mr Twyford. That is the point. So we as a Parliament should be proud that we have made our contribution to keeping the Wellington town belt protected for the future generations of this city.

I just wanted to respond to one thing that the member who just spoke, Grant Robertson, said, because I am not convinced by his answer, particularly. It is about the principles. I would say to him and to the people who drafted this bill, and to the Committee as a whole, which might be interested in this issue, that the words used in clause 4(1)(b) and all of those subparagraphs there are all prefatory and not imperative words, to use the legal terminology. It does not help if the introduction says “In performing its role … the Council must”, because what the council must do is have regard to principles that are stated in a non-imperative way, so in the end it does not necessarily have to comply with those principles.

I would have thought that that is important. If it were me I would redraft all of that, because I think it could be a problem. I think in the future somebody may well seize on this for some reason or another. I just make the point to be helpful. It could, I think, really improve the bill if those words were imperative and not prefatory in the way that they are stated.

That would help a lot, but if the member and the Committee do not think that is necessary, then that is fine. They intend that, the Committee intends that, and that is the way it will be interpreted in the future. But just be aware that there is an issue.

I would like to just make a few comments about clause 23, both about the distinctions between “shall” and “should”, and in relation to Mr Robertson’s Supplementary Order Paper 169. I will start with “shall” and “should”, and I just want to mention to the Committee that the distinction between the words “shall” and “should” almost brought the Paris climate change talks to a grinding halt roughly 5 minutes before the gavel was brought down because the Americans simply could not accept an agreement in which countries “shall” bring down their emissions versus “should” bring down their emissions. So I think that Mr O’Rourke does have a point in terms of the level of wiggle room that is created there, and if I were a judge it would be quite a nightmare to have to work your way through a judgment in which you had to determine whether something did or did not happen in relation to something that should or should not have happened. So I think there is a point there that may need to be addressed. In relation to Mr Robertson’s Supplementary Order Paper 169, that is obvious; we will obviously support that. It is just cleaning up an error in the drafting.

I would like to just talk a little bit about clause 23 in response to both some of the comments Mr Robertson has made and also comments made by previous speakers, notably Paul Foster-Bell. I would like to say that as the bill came to the House originally, as Mr Robertson said, it did provide some exemptions for the way some parts of the Public Works Act would apply. It is quite clear that the reason why the Government required that that change take place is that it wants to build a seven-lane motorway through Ruahine Street out to the airport as part of the roads of national significance programme. Of course, the idea of protecting the town belt meant that this was going to be unacceptable, so when Mr Foster-Bell says that the piece of evidence saying that it would be difficult to string some emergency cables up to the hospital over the town belt if we had changed that is simply looking for evidence for something that was a foregone conclusion. It was never about that kind of thing; it was only ever about ensuring that the bill was loose enough to allow the Government to push through its roads of national significance programme.

That was always the agenda from the start here, and I think it is with a great deal of regret that all we are doing here is enshrining the status quo in which the Government is able to confiscate land, and it is not an improvement on the status quo. I think that that is a great shame. Importantly, this is one of those things where you have the Government of the day that you have got. It has got the numbers, it can do what it likes, and the council is, frankly, unable to do anything about that and so of course the council and we also have to just simply accept that we do not have the numbers to preserve the bill in its original form. So the self-congratulatory tone about how it is an improvement on the original bill is the kind of tone that is easily affected when you have got the numbers to do whatever you like. I do want to say that it is a great shame that the original clause 23 was turfed out and simply replaced with the current status.

Having said all of that, the bill as a whole, with that exception, is a great improvement on the status quo, in which there is a series of very contradictory Acts—you know, a bit of a legal morass that needed to be brought together—and so it is for that reason, despite the clause 23 shenanigans that have gone on, that the Green Party is pleased to support the bill through this stage of its passage.

There is just one other thing in relation to clause 23. Part of what happened when that clause was changed was that Wellingtonians no longer became interested persons in relation to the confiscation of parts of their town belt for the conversion of that town belt into motorway. I find it extraordinary that you can actually pass legislation in which you say that Wellingtonians are not interested persons in relation to the fate of parts of their town belt as they get removed from recreational and environmental use and converted into seven-lane motorways. That is quite a contradiction. Nevertheless, it is good. We are pleased to support this bill through this stage. We also support Supplementary Order Paper 169—

The question was put that the amendments set out on Supplementary Order Paper 169 in the name of Grant Robertson, and the following amendments in his name to Part 2 be agreed to:

in clause 13(b) omit “17”; and

in clause 14(2)(a) replace “section 17” with “section 16”; and

in clause 15(3)(a) replace “section 17” with “section 16”; and

in clause 19(2) replace “sections 16 to 18” with “sections 16 and 18”.

Amendments agreed to.

Preamble, Parts 1 to 4, schedules 1AA to 6, and clauses 1 and 2 as amended agreed to.

Bill to be reported with amendment presently.