Hurunui/Kaikōura Earthquakes Emergency Relief Bill

I thought I might begin this contribution by talking to the Supplementary Order Paper that stands in the name of the Hon Gerry Brownlee, Supplementary Order Paper 253. Because of the truncated process, with this bill having been read a first time earlier in the week, going to the select committee for a very short period—was it a day; I do not know. It seems to have been a long week. A day, was it?

💬 Andrew Bayly: A long day.

A long day. There is insufficient time for parliamentary counsel to draft into a later version of the bill the amendments that are suggested, which are not very substantial, but none the less it is not possible to produce another version of the bill. So the procedure that has been adopted is that the changes recommended by the select committee are set out in a revision-tracked version of the document, which has been tabled in the name of the Hon Gerry Brownlee, and we thank him for doing that.

Can I thank the officials for their participation and the submitters who at very short notice submitted. I just want to take a few minutes to bring to the Committee’s attention the recommendations from the select committee that are set out in the revision-tracked Supplementary Order Paper, and then make reference to an issue that is not an enormous issue but it is one issue that I have in respect of my own amendment, which is a separate document.

The main changes that have been made by this bill are threefold. One is that it changes the notice period that councils and owners of public infrastructure have to give when they are doing something without a resource consent as an emergency repair, pursuant to section 330 of the Resource Management Act and some subsequent sections that relate to that. That seems sensible.

We extended the period recommended in the version that came to select committee, for the timing of giving notice of exercising these emergency powers, to 40 days. Our reason for doing that was that it was pointed out that for some of that work, 14 days would have already passed—or at least 10 working days. Some of that work would have been started immediately, and it was thought, particularly given the intervening holiday period, that that will further make some of this administrative work a bit difficult, but it was appropriate to allow 60 working days for that notice to be given rather than the 40 recommended in that version of the bill. We did not change the period of 120 working days, which applies to when a resource consent has to be applied for retrospectively. I do not think there is much more in respect of that part that I want to mention.

In respect of the part relating to farmers’ rights to rehabilitate their land or to make emergency repairs to roads or ponds or dairy sheds—whatever it is—we, again, have recommended that their right to do that be carried on until 31 July 2017, rather than 30 March 2017. That was in response to Federated Farmers and the Kaikōura District Council both telling us that some of these practical measures will be needed following rains that will not come until next winter. Some of the effects of the earthquake, once you get a bit of rain on some of these slopes that are more erosion-prone or partially down, are such that land will need to be modified probably after those rains next winter. So the date they asked for is 31 July 2017, and the committee thought that was a reasonable request.

There are two other points that I will make if I have time before I sit down. We did try to make clear, in respect of the Kaikōura Harbour rehabilitation work that is necessary, that the wording was a little bit, I thought, confusing in that it introduced this new notion that depositing, other than dumping, when they already had the right to dump, is limited to dumping the dredged spoil on the land or foreshore rather than at sea. So we have cleared that up. They have also got the right to discharge this sort of material that is disturbed as they dredge. So, for example, if you were dredging an area or blasting a rock that needs to be removed, some of that minor debris will inevitably be scattered, and that is allowed, pursuant to section 16(2)(f). We thought that that plus the dumping right was all that was needed, and they did not need a separate right to deposit. I think that is a good change because I thought it was a bit confusing to add that additional part.

I am sure others will make other points, and I will not try to cover all of the little changes. I think they are the main ones that I would refer to. The only other point I would make is that there was a discussion at the select committee as to what happens to enforcement proceedings. Clause 13 of this provision suggests that enforcement proceedings, after all of these things happen, should be able to be taken only by the relevant local authority. I agree that we should be very permissive for people to do things, but then having gone too far or having refused to take the steps that are relaxed under this provision, but none the less necessary, eventually, I think that people other than the council ought to be able to enforce. Indeed, we had submissions to that effect. Select committee members saw that for themselves, but we had similar submissions, I think, from the Legislation Advisory Committee and another submitter whose name I have forgotten. They said you do not need to do that, so I have got a Supplementary Order Paper that knocks out clause 13 and the related clause 14(3)(b). I think it would be preferable if we did remove that. The bill will still have our support if it is not; I just think it would be better legislation if that was not there.

The final thing—in fact, I might leave it to one of the others to talk about the notice provisions that we have in respect of where someone is not there when a network utility authority or a council comes along and does something to the land. Thank you.

I am pleased to take a call on the Hurunui/Kaikōura Earthquakes Emergency Relief Bill. It was a very constructive process in the select committee and, like others, I would like to acknowledge the extraordinary work by officials from the Department of the Prime Minister and Cabinet and also the Ministry for the Environment, particularly when some of those officials have been displaced from their buildings in Wellington.

This bill makes quite major changes to existing legislation, particularly the Resource Management Act. It is giving rural landholders in Kaikōura, Hurunui, Marlborough, and potentially also Tasman and the Nelson area quite wide powers to do activities on their land in response to the earthquake; to do vegetation clearance, undertake earth works, and activities in riverbeds, if those are proportionate with the response that is needed to the damage that is being done by the earthquakes or there is a significant risk of injury or risk to stock. So it is giving very permissive status around this. There is a good deal of trust that landholders will not use this power to do things that they might want to do without getting a resource consent. I guess it requires the councils in the districts to actually monitor, perhaps by ear, and get a reasonable handle on what is going on.

Because a lot of these properties are thousands of hectares in size, the damage has been significant. We do want people to be able to recover as quickly as possible, but we also want to ensure that the environmental effects of these activities are of a proportionate scale in accordance with the legislation.

The other major area that the bill deals with—and there were improvements made in select committee, as Mr Parker has noted—was in relation to the blasting, dredging, and related works in South Bay and around Ingles Wharf in North Harbour around the Kaikōura Peninsula. The bill allows over a radius of 0.6 nautical miles, so it extends as far as Cone Rock, I think, in South Bay, and beyond Nine Pin Rock around the North Harbour. It is allowing the regional council, Environment Canterbury, and the Kaikōura District Council to do these works as a controlled activity. The current plan for the area highlights that the peninsula is an area of significant natural value and that any such works have to be undertaken very carefully as a non-complying activity, which, of course, is subject to a great deal more scrutiny under the Resource Management Act and to stiffer tests than controlled activity. So this a commitment by Parliament to allow the councils to restore boat access to those harbours through doing these rehabilitation works.

We were pleased by the clarification in select committee around where the material is to go, making it very clear that that rock is to be dumped on land and is not able to be dumped at sea. There were changes to ensure that the councils actually can consult the wider public if they wish, and we would strongly encourage the councils to do that because there were strong submissions from people like Ted Howard, who is involved with community organisations, about the fact that we are dealing with very complex systems in the marine environment, and, as he said: “We have a great deal of local knowledge present in the community. We ask that at every stage of this process all plans and the rationale for them are made fully publicly available rapidly, and that locals are given an opportunity, for a few hours even, to comment on those plans and any reasonable alternatives.” When communities are involved in critical decisions in response to natural hazard emergencies, they feel they have a stake in those decisions; the decisions are legitimated.

So the council, because of the changes made to the bill, has an opportunity to invite comment, not just from Government agencies, not just from other Ministers like the Minister of Defence, the Minister for Primary Industries, and the Minister of Conservation, but others in the community. We would encourage the councils to do that so that they have as much information as possible contributing to a good decision.

The other changes in the bill, in relation to the time frames, were in response to very practical, pragmatic submissions by Federated Farmers that highlighted the difficulty that the time frames in the bill imposed. We would like to see the councils work alongside landholders, as they are doing already, because we think that people can often make decisions under stress while trying to get their farms up and operating again—to go ahead with things like earthworks when often it will be a combined approach to those problems, working with the council and neighbouring landholders, that may actually develop a better solution.

So it is continuing the good communication that has occurred in the immediate aftermath of the earthquakes to ensure that people are not putting themselves and rivers and land at risk by undertaking quite high-risk activities with a “she’ll be right” attitude. These things have to be done carefully. The land is still very unstable, and people need to do it in quite a considered way.

Supplementary Order Paper 254, in my name, seeks to remove the block that clauses 13 and 22 put on third parties taking enforcement action in the Environment Court against local authorities if they do not carry out their duties responsibly. The Green Party thinks that the ability to take action for a declaration to actually clarify what the council’s legal responsibilities are under the Resource Management Act (RMA) and the ability to require the council to implement its responsibilities are a really important check that should be maintained. Those provisions exist in the Resource Management Act, and what the bill does is override them and say that third parties cannot take enforcement proceedings. Given that the bill creates a very permissive environment for activities on extensive areas of rural land in the northern South Island, and given that it is allowing quite enlarged powers in relation to the works around Kaikōura Harbour, we think that there needs to be this safeguard, which may not even be used but should remain in the law, so that if third parties think that councils are not undertaking their responsibilities appropriately, they can go to the Environment Court and seek clarification of those responsibilities or a direction that the council actually implements the Act.

So we hope that the Minister will consider the Supplementary Order Paper and those deletions to provide this check and a balance on the powers that are being given here to rural landholders to get on with the job but without all of the constraints that you get by going through a normal process under the RMA, and the consideration of impacts that that process provides. We hope that this check and balance, really, remains in the law, rather being removed and it being only consent authorities themselves that can undertake enforcement proceedings. But the select committee process has been a good one, though a tight one, and we look forward to the bill proceeding.

I just wanted to comment briefly on the four most important changes between the original bill and what will, ultimately, be put to the vote. The first of those relates to clause 5(2), and that itself relates to the time within which advice of an activity must be given under section 330A of the principal Act. Originally, the bill said that would be 40 working days or—what is that—8 weeks. I raised with the committee that that might not be adequate and that we ought to be generous with the time for that, and so it was agreed that 60 working days, instead, should be provided for. That is, of course, in addition to the additional days you would get over the Christmas holiday period, and the period runs from when the activity takes place, so it ought to be more than sufficient. It needs to be ample because people, of course—some of the people, at least, who would be involved—will be in remote areas where it is difficult to communicate, and they will be under stress and, quite frankly, have a lot to do to recover from the earthquake. It is better to err on the side of providing too much time rather than too little, so I think that was a good change that has been made.

The second one relates to clause 6 and the notice to be given under subclause (2)(a), as it is now. That provides for a notice to be placed on the land that would give the date and the purpose of entry and contact details. The committee felt, on discussion, that that might not be enough, given the fact that some people could be away either permanently or for extended periods and not actually see those notices, especially if they were on a part of the land that was not readily accessible. So there was an addition to that, which will now appear as (2)(b) in that clause, so that as soon as practicable after entering the land, the local authority or consent authority will have to serve a written notice containing that same information, and you would expect that that would be done by letter in the same way that, for example, rates notices would be sent out—so a good, formal, and reliable way of making sure that people are properly informed.

The third one that I wanted to raise is one of the most important clauses in the bill, and that is clause 16, relating to the meaning of “rehabilitation work”. Of course, as we know, the activity will be a controlled activity so it is one that must be allowed, but with appropriate conditions. The rehabilitation of the Kaikōura Harbour, as we know, is an absolute necessity, but care should still be exercised in doing the work that is carried out so as to avoid unnecessary environmental damage. A number of submitters expressed concerns that the bill had provisions relating to “dumping”, which we were told refers to the removal of material to another site altogether, and the term “depositing”, which means placing the material in another part of the same site where no transportation of it would be required.

There was a lot of discussion about that, and I think as a committee we have come up with a great solution to it, so that clause 16(2)(b) relating to depositing will be removed altogether. We were advised that that is simply not necessary because the works that are envisaged just would not require that provision. That will be good news to the ears of those who are worried that some material excavated from the channel to be created might simply be placed on the shoulder of the channel and do unnecessary damage to the marine environment there. They were very concerned that that could happen. In clause 16(2)(c) only the dumping of the material will be required, and then it will be required only on land or foreshore. Some submitters were concerned about dumping on the foreshore, but it is to be noted that clause 18 will apply to require proper consideration of environmental effects. When you consider, in respect of some of that material placed on the foreshore, that the foreshore has been uplifted anyway and will therefore itself have been irreparably damaged, the possibility of that further damage will be very low.

The other change that was made is that the term “fish” has now been added as one of the specified examples in relation to this so that those who are worried about fishing—and I am one of those—can be assured that the care required concerning environmental effects will also consider that aspect of it.

The fourth and last change that I wanted to mention relates to the public meetings provided for under clause 19. The committee has recommended the addition of clause 19(1)(c), which says that the authority “may, if the consent authority considers it appropriate, hold a meeting to allow those persons to orally present their comments.” There were submissions by a number of people who were concerned that some of the special expertise that local people have—special local knowledge—might be lost if they did not have a chance to say what they wished to say. The committee agreed, therefore, that it would be appropriate that a public meeting be held, where it is advised, concerning some of the applications that might be made—so not necessarily for all, but for those that are appropriate. The committee agreed in the end that it would be best for the council to decide that rather than that be provided for directly in the Act itself.

I think that is a good compromise. People will get a good chance to comment and to share their expertise and their local knowledge, but the council can decide when and where and for which subjects that is appropriate. We do not want it to happen for everything—it would make processes too long and too difficult—but I think that is a good balance between those considerations.

Those are all the particular changes—the most important changes that I think the committee looked at and is recommending to the original bill, and I think that it will make a valuable contribution to ensuring that this legislation will be up to speed, and as good as we can possibly make it, in the time available. I certainly wish the people of Kaikōura well in working their way through this legislation. We have done our best to make it readable for them and understandable, and we will provide them with the powers that they will need to do what is necessary and do it quickly and effectively. Thank you.

Members, we come to the vote, and the question is that—

💬 Steffan Browning: Mr Chair.

The CHAIRPERSON (Lindsay Tisch): Is the member going for a call?

💬 Steffan Browning: Yes, I am.

The CHAIRPERSON (Lindsay Tisch): Well, you must go very quickly. Steffan Browning.

I can see that! I rise to speak on the Committee stage of the Hurunui/Kaikōura Earthquakes Emergency Relief Bill. I am very pleased to see that there have been a number of changes made because of the submitters. It was very important that fish were included in this bill; it is very important that notices are actually sent to the landowners of properties that would be affected by this bill.

But I would like to focus a little bit on Supplementary Order Paper 254 from my colleague Eugenie Sage. It is critical that there is a level of oversight, you may say, for people who are wanting to initiate proceedings if something goes wrong. I have experience, up the Clarence Valley, of where people have done the right thing, I think, of getting in and doing some changes, which this bill allows to happen. Although that has been good in this instance at the moment, further activity by some may impact on other landowners. I can think of land where roading goes through it, or a stream is diverted—not by the earthquake but by the remedial actions of someone trying to correct things for themselves or for their own operation or property—and it actually has an impact on others down the line. You could imagine gravel and rubble pouring across someone else’s field, and theoretically they are not meant to do that. Theoretically, this bill suggests that they should not be doing that, but things will happen and people must be able to have redress, because it will be after the event rather than before it as we are avoiding this necessity of having to get consents ahead of the operation.

The same does go for what will happen in the marine area around Kaikōura. I have been there, and I know what is happening in that area, and I can see, again, where you have got the local authorities looking after what they think are their best interests but maybe going a little bit beyond it. There must be opportunity for third parties to have some reach to go for redress out of that. So it will be important for the House to support the Supplementary Order Paper of Eugenie Sage in order to make sure that this anomaly is corrected. Thank you.

The question was put that the amendments set out on Supplementary Order Paper 253 in the name of the Hon Gerry Brownlee be agreed to.

Amendments agreed to.

The question was put that the amendments set out on Supplementary Order Paper 254 in the name of Eugenie Sage be agreed to.

David Parker’s tabled amendment to delete clause 13 is now out of order as being the same as the amendment already negatived. Moving to David Parker’s tabled amendment to clause 14(3)(b), this is out of order as being inconsistent with an earlier decision of the Committee.

Parts 1 to 3 and clauses 1 and 2 as amended agreed to.

Bill to be reported with amendment presently.

House resumed.

Bill reported with amendment.

Report adopted.

Third Reading