Resource Legislation Amendment Bill

I want to explain why the Labour Party will be voting against Part 4. The reason relates to clause 181(2)(b)(ii), which sets the time period within which anyone who wants to object to an application for a concession has to file their objection. My understanding—the Minister can correct me if I have got this wrong—is that presently there is a 40 working-day period for people to put in an objection in respect of a concession application on conservation land, and that is being halved to 20 working days. I want to explain why, in practice, that is going to mean that people who should have a say in this are not going to have a say.

Conservation land is public land that is being managed on behalf of the people of New Zealand by the Department of Conservation, where civil society generally represents its interests in the conservation estate through groups like Federated Mountain Clubs, Forest & Bird, and other environmental groups. They might be local tramping clubs, or they might be local environmental defence groups. Those groups are groups of volunteers who meet periodically. They do not spend their lives scanning public notices, although they probably have a system through which they look periodically at public notices. They do not meet every week; generally, they meet monthly. In order to make a decision as to whether they are going to support or oppose something, or try to participate in an application for a concession in the area that affects them, they have generally got to meet as a committee so that they can take a decision through their rules—which are probably rules for an incorporated society—as to whether they are going to do something. Until they have done that, no individual member of that committee can just go off and do something off their own bat. They have got to make a proper decision in accordance with their constitution.

Achieving that within 20 working days is often impossible, or at least quite inconvenient. So let us take an example. Let us say a group meets on the 20th day of the month. It has to put out an agenda to its members to get its members to come along. It probably has to put that out at least a week before then, so that would be on about the 13th day of the month, in the week prior. So what happens if something comes to the notice of the Otago Tramping Club, down in my patch in Otago. It has just had a meeting, so its next meeting is not for another month, and yet within 20 working days it has got to make a decision as to whether it should put in an objection or put in a submission so that it is heard—it might not be objecting, but it might just want the terms to be changed a little. It has got to do that within 20 working days, which may be impractical, and I think that is what sits behind the old rule of having 40 working days. It is to make sure that members of civil society, as they go about their normal 1-monthly cycle of business, can have a bit of time to get the public notice, to think about whether they should be putting this before their committee structure, to make a decision, to prepare their submission, and to send it to the director-general. I think 4 weeks is impractical.

I would also like to hear the Minister say—and there may be provisions about this already in the Conservation Act, but if there are, I do not know about them—what happens over the Christmas period. Does that automatically get extended if something is notified during that period? Is there a longer period that applies, or do you ignore certain days during that Christmas period, when, traditionally, these organisations do not operate as effectively as they do during the rest of the year? So I am going to be submitting an amendment—unless there is already one on the Table in the name of my more efficient colleagues in the Committee—to put that 20 working days to 40 working days.

Just following on from the Hon David Parker, we will certainly be supporting that amendment, because there has been a 40-day period for the public to make submissions on concession applications since the Conservation Act was introduced and passed in 1987. So it has got a 30-year track record of working, and Mr Parker makes very valid points.

Conservation land is public land. All New Zealanders have an interest in how it is managed. I take the Minister back to major proposals like the one in Fiordland for a big monorail. Eighteen thousand people made submissions and spoke out to protect Te Wai Pounamu, to protect Fiordland’s beautiful forest, and to protect the Mavora Lakes from that monorail proposal.

One of the difficulties with having a 20-day period for making submissions is that the first time the public has an opportunity to actually comment on the proposal—to actually even understand it—is usually when the Department of Conservation notifies the proposal that the applicant has put in. Rarely do applicants go out and actually engage community organisations or environmental organisations like Federated Mountain Clubs or Forest & Bird. It comes to public attention when it is notified, when the assessment of effects and the supporting documents actually go into the public domain. So for big, complex projects like the monorail and like the bus tunnel—which was an 11-kilometre bus tunnel that had its portal proposed at the start of the Routeburn Track, which would have completely ruined that experience—having the public have only 20 working days to get an understanding of that proposal is far too short.

If you have a longer submission period, it means that submitters can go and talk to engineers, as they did in the case of the bus tunnel, and to ecologists, as they did in the case of the monorail, and ensure that submissions are based on good analysis of the proposal and a good understanding of the potential effects. Shutting it down to only a minimum of 20 working days will mean poorly crafted submissions, potentially, and it just totally overrides the significant public interest in how our conservation lands are managed and overrides the number of people who want to get involved when we have had these big commercial developments like the monorail.

The second point is that 50 percent of international visitors come to New Zealand wanting an experience of natural landscapes and wanting to connect with natural areas. If we have poorly planned, poorly sited commercial development on our public conservation lands, we undermine that experience, which attracts so many visitors and which, through tourism, supports a lot of our local, regional, and national communities recognising the contribution that tourism makes to our GDP. There are some 4,000 concession operations, from tourism and guided walking to grazing, on conservation land. All of these deserve proper scrutiny. This bill, by cutting in half the notification period, through clause 181, is consistent with the provisions in the rest of the bill, which seek to reduce the public’s opportunities to actually engage in decision making.

Third point: we have a major problem, and I want the Minister to enlighten us here about clause 182. OceaniaGold made a submission, and it wanted the time frames for notified access applications for mining on conservation land to be consistent with concession applications. So it wanted a halving in that notification period, from 40 days to 20 days, as well. The Department of Conservation—because of the political direction of its Minister, probably—has gone along with that. This was not in the bill as introduced, so what basis does the Minister have for making this change around mining access arrangements and for halving the notification times for them through the consequential amendments around clause 182 when that was not in the bill as introduced and Parliament and the select committee have had no opportunity to get public submissions on this?

I would remind the Minister of applications like the access arrangement by Bathurst Resources for mining on the Denniston Plateau. That was the subject of huge public interest and significant ecological values are being damaged by that application, and yet we are seeing a law change on which there has been no public consultation, because OceaniaGold, in its submission—in the departmental report on page 384—said that it sought to align these notification time frames for access arrangements on public conservation land. So it is their submission that is becoming the platform for this law change rather than it being in the bill as introduced. We object to the public not having had an opportunity to have a say, because we think people like Forest and Bird, Fish & Game, Federated Mountain Clubs, which defend the public interest in our conservation lands, would have actually put in submissions opposing this.

Again, mining applications are very complex. They have a number of impacts. Mining companies do not tend to consult the public before they lodge their access application, so the only time that the public actually gets to see the whole of that is when it is notified. So, again, it is ridiculous to have a 20 working day period for that, not 40 working days. I suspect that the Minister will say: “Well, it can be more than 20 working days. It doesn’t require just 20 working days.” But it is still giving the Minister the power to reduce it to that limited period. It is public land. The public should have the maximum opportunity to make submissions on development applications and mining applications that are going to damage conservation values, ecological values, and recreational values.

So this is a bad bit of the bill. It overrides the public interest in conservation lands and it is consistent with other provisions in the bill that seek to reduce the opportunities for public participation. We oppose it.

I want to take only a short call on this part of the bill just to say two things—first of all, to agree with what Eugenie Sage has just said about the whole effect of this part of the bill. It is perfectly clear that what is intended here is to actually minimise opportunities for the public to as little as 20 days for making submissions on what could be very complex applications. That is, as Eugenie Sage said, consistent with many of the other provisions in the bill. I am not going to spend long on that because I think Eugenie Sage actually said it all very well and there is no point in my repeating it all. But that is the fundamental reason why New Zealand First could not possibly support this part of the bill. People do need to have much longer than 20 days to be able to assess and to submit on what can be very complex applications.

I want to move on to another specific point and this is the second thing I want to say. That is in relation to the new section 17SB, inserted by clause 178 of the bill. In that it says in subsection (1) “If the Minister is satisfied that an application obviously does not comply with, or is obviously inconsistent with, the provisions of this Act or any relevant conservation management strategy or conservation management plan, he or she may decline the application.” That is a very strange piece of drafting. In fact, I think it is quite amateurish drafting—with all due respect to the drafters. Why is the term “obviously” there? It is a highly subjective term. How can something be obvious—is another issue. But I just think it is deficient drafting.

It is clearly intended that the term “obviously” is to qualify the terms “non-compliance” and “inconsistency”, otherwise the word would not be there. So it is there to qualify “non-compliance” or “inconsistency” with the Act, and therefore it is open to the Minister to approve an application even if it is not compliant or is not consistent because it is not “obviously” so. That is actually what would be open to a court to find. So why on earth is this term “obviously” there, if it is not for any reason other than that which I have said? I think the Minister should look at that, and, if he is genuine about the whole system that is set out here, he would delete the term “obviously” because it is highly problematic and, in my view, actually creates more problems than it solves.

I want to refer to what it says in the commentary about this. There is one sentence only about it and it says this: “As amended, new section 17SB would clarify that the Minister may decline obviously non-complying applications (without having to make a decision on this within the originally proposed 20-working-day period).” What on earth is that supposed to mean? It does not, to me, add any clarity to it at all. In fact, I believe that the addition of the word “obviously” actually does exactly the opposite. It makes it very unclear in terms of what can be declined and what cannot be.

So I just want to point that out to the Minister in the chair, the Hon Nick Smith. That is another reason we would vote against it. If the Minister wishes to simply gloss over that, that is fine. But I say to him it is an obvious defect that the word “obviously” has been put in there. If you took the word “obviously” out—

💬 Phil Twyford: Obviously.

Obviously, if you took the word “obviously” out, it would not actually change what, I believe, the subsection is intended to mean. But the addition of the word “obviously” actually creates a difficulty, because it can be taken only to qualify the inconsistency or the non-compliance. What that means I am not sure, but it is an issue and I just draw it to the Minister’s attention. We will be voting against it anyway.

I am happy to provide an explanation, and can I acknowledge the work of both Maggie Barry and the Department of Conservation in developing these more practical provisions for dealing with concession applications.

I think it is important to, firstly, understand and explain—for the question from the member from New Zealand First—that at the moment, when a concession application is received by the Department of Conservation, the Minister has to make a decision as to whether they intend to grant the concession. It causes huge confusion. The member may well recall the controversy, when I was privileged to be Minister of Conservation, around both the tunnel proposal and in respect of the monorail proposal. It creates quite a difficult confusion, because it is as though the Government wants to favour. What we do want to have is—and members like Eugenie have been absolutely correct in saying these lands are there primarily for conservation purposes. The Minister of Conservation has got a really important role to protect that.

What is being provided in the improved process in new section 17SB, inserted by clause 178, is that before an application is even notified, the department and the Minister are able to say: “No, I am not even prepared to consider that. I don’t want to publicly notify; it is obvious that it is inconsistent with the purposes of what that land serves.” In other words, it is saying that it is so out of left field that we just want to say no at the beginning, and I think that is a reasonable provision. These are public lands and for that purpose.

The second question that has been asked is around the time frames and the 40 days / 20 days. The challenge I have for members opposed to this provision is: why is it any different from the Resource Management Act (RMA)? Whether it be for mining or whether it be for substantive activities, if the arguments that Mr Parker wants to put forward that say that you have got community conservation organisations that are concerned—

💬 Hon David Parker: They’re public lands.

Or what about a major mining proposal that has big impacts on the quality of water? That is a public resource, equally important as our conservation land.

What the Government is saying, both in terms of the notification period—the 20 working days—and what is provided for in this part around the Christmas break period, is to make the provisions exactly the same around conservation concessions as they are in the RMA. If members of the Labour Party and other Opposition members want to argue that these time frames are wrong, I would put to them that they should also change the RMA, because you can have massive, multibillion-dollar projects with huge impacts on public resources, on coastal space—all sorts of things—and I just think there is a really sensible argument for those to be consistent.

The third point I would make around these provisions is actually a real problem for Ministers of Conservation—well, certainly when I was there, and previously. It is that people can lodge applications for concessions with minimal information requirements. I do draw members’ attention to this part, which substantially boosts the Department of Conservation’s requirement that if you want to apply for a concession on public land, you have to provide a lot more and better-quality information for that concession, even before the clocks start ticking and they are being publicly notified. That, I think, is a substantial improvement in the way in which we manage concessions on public land.

I actually was not going to take a call on this part, but the Minister for the Environment’s responses led me to do that, and it is around—

💬 Hon Ruth Dyson: Inspired you.

—well, he is an inspiring man—clause 181(2)(ii) and the question of reducing the time for objection or submission to 20 days in the case of a concession. I think it is two points that I want to make, and then a question. The first point—actually, Eugenie Sage referred to it but in passing—is that we are talking about public land. That is the thing that makes this distinctive. While it is possible for Resource Management Act - related cases to have that, it has to be public land, in this case, because it is in the Department of Conservation’s interest. That is what makes it different. Going back—and, actually, I think Eugenie Sage might have been working on the Conservation Act in 1987 in a different guise—there was clearly an intent to make the time frame longer. Forty days is actually a very unusual time frame in terms of the law.

💬 Hon David Parker: It is not a notice on a neighbouring gate.

That is right, exactly. It is not a notice on a neighbouring gate, as David Parker says. We are talking about complex, often controversial concessions to public land being protected. It does not get much more important than that, and, therefore, 40 days is a sensible time period for that. I think that is the distinction that has been missed here, and, reading through the departmental report, it is clear that the Department of Conservation, when it undertook its concessions processing review in 2010, went looking for ways to streamline the process of concessions. There may well have been some justification around elements of that. What it says in the departmental report is that it was looking for, as I say, ways to streamline the processes, increase transparency, and reduce compliance costs.

That is all very well and good, but as we have stated time and again in this debate in the last 2 days, all of this law, be it law within the Resource Management Act or here within the Conservation Act, is about striking the balance between the way in which we allow sustainable development to occur and facilitate the public to be involved. This is a classic piece, this clause, of unbalancing that situation. By all means, find ways—and there are, in earlier clauses in this part—of streamlining the process, but let us not sacrifice the ability, as David Parker has noted often, of small-scale community groups to be able to participate in what is a large and, often, significant concession about public land.

Having made that point, and very much supporting David Parker’s typescript—as they say—amendment on this matter to return to a 40-day level, I want to ask the Minister what consideration was given to submitters who came up with other alternatives, one of which was a 30-day time frame, rather than the 40 days or 20 days, which would align it with some other pieces of legislation that have been passed by this House, or whether or not there was the ability to define large and complex conditions, which would be at 40 days, and then less complex concessions at 20 days—

💬 Hon David Parker: Obviously.

Obviously, as Mr O’Rourke and Mr Parker have now both said. I would seek some feedback from the Minister, because it would seem to me that simply a blanket going from a 40-day process, which has been in place—we have just been celebrating the 30th anniversary of the Department of Conservation. It has been in place for 30 years and has stood us in good stead as a country. To make that change on a blanket basis seems to me to deny the importance of that land to many New Zealanders and the importance of the process of going through and allowing time for submissions.

So we oppose this part because of this clause, but I do not think I have heard a sufficient explanation from the Minister as to why he may not have considered some of those in-between options. Overall, this remains, unfortunately, symptomatic of this whole piece of legislation, that in the Minister’s rush to appear to do something about issues within resource management he has chosen to accept a reduction in the ability of the public to be involved in really important concessions about public land.

I want to pick up on the contribution that my colleague was making just in passing, because what I want to really focus my contribution on is clause 182, which has not been discussed much this evening so far, and I think it deserves it. The Minister for the Environment has been assuring us throughout this debate that the point of this is to reduce bureaucracy, to streamline the process, but not to cut out the opportunity for people to have their legitimate say. I believe that he is genuine in his consideration of those facts, but I do not believe that it is reflected in the legislation that we are discussing at the moment.

The alignment in this Part 4 that we are discussing is between publicly notified concessions to the Department of Conservation and resource consent applications. The new provisions are that the Minister of Conservation has 10 days to decide whether a concession application is compliant or non-compliant. The intent to grant certification is replaced, and I appreciate the Minister taking the flak in this debate for the notification of the monorail. It actually was not his error that caused that, if my recollection is right; he inherited that from a previous Minister of Conservation and got it sorted out with a very wise decision, and I hope he always sticks to that.

It also reduces—and this is the bit that has been contentious in the debate so far—the time frame for public notification to receive submissions from 40 days to 20 days. A number of people have contributed to this debate to say how unrealistic that is on matters of such importance. The Minister, who has been the Minister for Conservation and the Minister for the Environment, understands the complexity of some of the proposals and understands the deep pockets that some of the proponents have, compared with the not-for-profit organisations or the communities themselves who are having to rally together evidence, expert witnesses, and a lot of information in order to be on a level playing field to contest the application, if they disagree with it—and 20 days is unrealistic. So I want to challenge the Minister to support the amendment that has been tabled by my colleague the Hon David Parker—I think soon to be supported by a replicate Supplementary Order Paper (SOP) in the name of David Seymour; that seems to be the pattern of SOPs at the moment—and to say that this debate has been right on this single point, and 40 days is far more appropriate.

As I said, though, that is not the main point of the contribution that I want to make. I was outraged when I saw a major change that was made to clause 182. A submitter came to the Local Government and Environment Committee and said: “By the way, we have got a really great idea of how we can make other processes more innovative.” The submitter was OceanaGold, and it thought that it would be “useful”, I think was the word it used in its submission—

💬 Grant Robertson: Ha, ha!

Yes, it would be useful. It said that the alignment of notification time frames could usefully be extended to include publicly notified access arrangements under section 61C of the Crown Minerals Act and mining activities on conservation land notified under section 49 of the Conservation Act.

Minister, you know—I know that the Minister is well aware—how people view mining applications on conservation land. The Minister has been at the receiving end of that response, but he has allowed this amendment to be made to clause 182 of the bill, which enacts OceanaGold’s submission without any public input at all. Nobody knew that that submission was being made until it was made public, by which time the submissions had closed. OceanaGold’s submission was not made public, as the Minister is well aware—he has been in this Parliament a long time and follows the rules carefully—until after all submissions had closed, and nobody had an opportunity to cross-submit, if you like, on it. Nobody had an opportunity to make a contribution. That is cheating the public’s right to have a say in a fundamental policy position such as this.

I think OceanaGold has got every right to make a submission. The Minister has got every right to agree with its submission. But to have it sneaked in as a change at the select committee and then notified to the House only once this bill had been reported back, with no chance, other than through the Committee of the whole House, to debate this very point I think is—the Minister is better than that, actually, would be my frank assessment. There is no need to have this change made. It was not part of the alignments that are sensible in principle, and some of the detail is wrong in this particular area, particularly the reduction of public input from 40 days to 20 days.

I would urge the Minister to consider over the dinner break, if we have not voted on this part before then, that OceanaGold decided that this change was useful—not in the public interest, not in the interests of having less bureaucracy and more efficiency, but in the interests of them being able to access Crown land for mining. That was not the point of the resource management legislation.

If that is a Minister’s decision—if a Minister in the National Government says: “We’ve decided that conservation land is no longer to be protected for future generations, and we’re happy to open it up for mining in much bigger areas than it currently is.”, that is a debate the public can have. It can go through a proper process. This does not do that. It goes through quite a weak process.

I am really pleased with the way that the debate has been going so far, because it has covered a number of different provisions. For those of us who are not on the select committee, this is the only opportunity that we get to hear the details that the select committee has been going over for some time. Each of these parts has got major changes to different pieces of legislation. That is quite a bold move for a Minister to take. I do not think that in the previous part he got it right. I was very disappointed that the Minister did not take an opportunity to answer the question that I raised. But I certainly hope that he will better reflect on the contribution that has been made on Part 4 in regard to changes to the Conservation Act, that he supports the amendment from David Parker, and also looks at a change to clause 182, so that that submission from OceanaGold either is able to be debated publicly or is just put to the side. It is cheating the public’s right to have a say by including it in the bill in this way.

The question was put that the following amendment in the name of the Hon David Parker to clause 181 be agreed to:

That subclause 2 be amended by substituting the word “20” with “40”.