Natural and Built Environment Bill

We come to Part 1. This is the debate on clauses 3 to 12, “Purpose and preliminary matters”. The question is that Part 1 stand part.

Thank you, Madam Chair. We intend to spend a bit of time, on this side of the Chamber, on Part 1 because it is fundamental to the way in which the new Natural and Built Environment Act—if it becomes an Act—will operate. I want to start with clause 3, which is the purpose of the bill. I want to ask the Minister about “te Oranga o te Taiao”, which states very broadly in clause 3(1): “The purpose of this Act is to uphold te Oranga o te Taiao.” I’d like to know from the Minister why the Government has decided to insert into our planning and resource management legislation an entirely new legal term, and has the Government thought through the implications of that, because there has been some quite noteworthy public commentary around the potential for extensive litigation as a result of this?

I have a series of other further questions, but, as a starting point, I want to know about the rationale from the Minister for the insertion of “te Oranga o te Taiao” into our new—potentially new—legislative framework, because the select committee actually strengthened, if anything, this provision and has made it very clear, through clause 3(1), that the purpose of the new Act will be to uphold te Oranga o te Taiao. I’ve got further questions around how the use and development of the environment is subject to that. But that’s a starting point—question—for the Minister.

Thank you, Madam Chair. And thank you for the question; it’s an important one. This essentially adopts the recommendation of the Randerson panel that has since been worked up by the Environment Committee and by officials. The recommendation of the Randerson panel was to change the purpose clause from the Resource Management Act (RMA) purpose clause to “te Mana o te Taiao”. When the exposure draft went to the select committee for an inquiry around these essential parts of the bill, the recommendation of submitters and the select committee was to change the term from “te Mana o te Taiao” to “te Oranga o te Taiao”, and through the development of the legislation the meaning has been further clarified. It is a Māori word, but it is a defined term and I don’t think the committee should get hung up by the fact that it is a Māori phrase rather than an English phrase.

The defined term is intended to emphasise that the purpose of the bill is essentially twofold. The RMA system has failed on both the protection of the environment and the enabling of development. We’ve seen the problems with the RMA in respect of development show up in the escalating land prices, the huge increase in the cost of consenting infrastructure, which, for a mid-sized project in New Zealand, the Infrastructure Commission has proven that the consenting costs—never mind the cost occasioned by delay—have increased to 5.5 percent of project costs for mid-size infrastructure projects. For small projects, the cost is about 16 percent of the project cost, which is disproportionate relative to the benchmarks overseas.

So it’s failed on the pro-development side, but it’s also failed on the protection of the environment side, as evidenced by the fact that we’ve had declining water quality, we’ve seen continued loss of biodiversity—particularly around wetlands, but lots of other instances of loss of biodiversity—and the existing RMA system has been ineffective at guarding against cumulative effects. The “avoid”, “remedy”, or “mitigate” principles of the RMA may have, in the end, turned generally into mitigate, and large numbers of mitigated effects have piled up into cumulative effects that have seen the degradation of water quality.

So the purpose of the new Act is to overcome both of those problems, and it’s achieved by setting out this purpose clause, which does have a Māori phrase, but it’s a defined term and members will note that it’s defined to mean in the bill “the health of the natural environment, … and the relationship between the health of the natural environment and its capacity to sustain life,”. And none of those are new concepts—“the relationship between the health of the natural environment and the health and well-being of people and communities”; I think we can all agree with that as a House as well. And then “the interconnectedness of all parts of the environment”, which is not just a reference to the natural environment but it’s also the built environment—agriculture; it’s all caught within the broader definition of environment, which is set out in the bill. And then the final part of the text is “the relationship between iwi and hapū and te Taiao that is based on whakapapa.” That reference to whakapapa was inserted by the select committee—it actually came from a suggestion from Barbara Kuriger, who was worried that the prior reference was unclear that this was a reference to the whakapapa relationship, or the historic relationship, if you like, between people locally and their natural resources.

Now, the purpose of the Act is to uphold te Oranga o te Taiao, and it must be achieved in a way that firstly protects the health of the natural environment—that’s to guard against these cumulative effects, and there are some exceptions to that for infrastructure that’s necessary, but we can come to that in later parts of the bill. But then having protected the natural environment—and this is a reference to the biophysical environment, not matters of personal taste that have bedevilled the RMA, which has, you know, led to a lot of nimbyism. It’s about the health of the natural environment. But then, subject to that, once you’ve protected the natural environment, fill your boots, fill your boots—it’s saying, subject to this, “enables the use and development of the environment in a way that promotes the well-being of [both] present and future generations.”

Thank you to the Minister for that useful illumination. A number of issues arise—I mean, no one’s placing much emphasis on the fact that the phrase is a te reo Māori word, or even te ao Māori. It’s the fact that it has not been used before that is the thing that people are worried about, and, yes, it is defined in subclause (3).

I suppose I’d just make a number of points to the Minister. The first is that if you read subclause (3) of clause 3, it’s all about the environment. So it’s the “health of the natural environment; … the relationship between the health of the natural environment … the relationship between the health of the natural environment and the health and well-being … the interconnectedness of all parts of the environment; and … the relationship between iwi and hapū and te Taiao that is based on whakapapa.” Well, there’s not a lot there about development and there’s not actually a lot there about growth.

The Minister waxes lyrically, rightly, about competitive urban land markets and making room for growth and urban growth—and that’s important—and says that land prices are too high, and all of that is correct. But none of that is mentioned in—and I see the Hon Phil Twyford nodding. I was going to say “vigorously”, but he’s not nodding that vigorously. But he’s nodding gently—

💬 Chris Penk: He’s nodding off.

—agreeing. He’s not nodding off; he’s very interested in this. But none of those very important matters are mentioned in subclause (3). Subclause (3) is all about the environment. I suppose that if you were stretching things, you could say “the health and well-being of people and communities;”, but the other various clauses that surround subclause (3)(c) are all about the environment.

So the first concern is that the purpose of the Act is to uphold a series of environmental outcomes, and then you get to the next bit, which is “The purpose must be achieved in a way that—… protects the health of the … environment;”. Now, as the Minister will know, “protect” has been defined by the courts in King Salmon as a particularly specific thing. “Protect” is a particular legal term, and post - King Salmon, the threshold for protecting the environment is a higher one. So the Minister says that, well, once you’ve sort of satisfied the biophysical limits, you can fill your boots and do whatever you like, except much of the development that we want in New Zealand has an effect on the environment.

💬 Hon Scott Simpson: That’s not what the courts say.

It’s not what the courts say, Scott Simpson says, but much of the development that we want has an effect on the environment.

So, for example, we want more houses. We’re desperately short of houses in New Zealand. We have uncompetitive urban land markets. Land prices and, therefore, house prices are way too high, and the Government knows this. I just wish they would go back to the work that the Hon Phil Twyford spent so much time in Government developing—which Megan Woods doesn’t appear to understand—which is that smashing urban limits is the way to drive down land values and drive down house prices. That’s what we need to do.

💬 Simon Court: That’s right.

Well, Simon Court is nodding away, but he should maybe mention that to Brooke van Velden, who also seems to think that Auckland has got more than enough housing in Auckland right now when, clearly, it doesn’t, which is why 25,000 people are on the social housing wait list and we have 10,000 families living in motels. So, absolutely, we need to smash urban limits and go for growth—and that’s actually National’s policy—but my point is that that has an effect on the environment.

To take another most obvious example, building wind farms has an effect on the environment. Geothermal power stations have an effect on the environment—they have a noticeable effect on the environment. But the point is that living our lives as humans has an effect on the environment. What the Minister is saying is that, subject to protecting the health of the environment, it can enable the use and the development of the environment.

So I suppose my overall point is that what was basically a balancing approach through the current Resource Management Act (RMA), in which we recognised that having humans living their lives has an effect on the environment, and it’s about how you take account of those effects and mitigate them where possible, but accepting that sometimes you can’t—sometimes you just can’t. Building a wind farm has an effect. It may result in the loss of birdlife. Geothermal energy has an effect on water and geothermal substructures in the Waikato and various parts of Lake Taupō, for example.

Building housing has an effect on the environment. It frequently results in more roads being built, and those roads go through areas of, well, farmland—and there’s the whole issue of the National Policy Statement on Highly Productive Land, which is a whole other issue which we will no doubt turn to in due course. But building roads has an effect and, you know, it results in embedded carbon and all the stuff Julie Anne Genter hates—all that stuff—but I think most people would acknowledge that we need roads to unlock land for housing, and, actually, I would argue that an inability to do that over the last 20 or 30 years has resulted in many of the social problems we face today: unaffordable housing and all the things I’ve previously talked about.

So it’s all very well to say that you can do whatever you like, subject to protecting the environment, but the problem is that protecting the environment has been defined by the courts already as being a high threshold. It requires quite a lot of things to happen, and this is the problem.

Clause 3(2)(b) says that the development and use of the environment “that promotes the well-being of … present and future generations.” is subject to paragraph (a), which is protection of the health of the natural environment. So it’s only once you’ve protected the environment—which, as I’ve previously indicated, requires onerous action—can you get use and development of the environment, and it’s wrong-headed. It’s round the wrong way.

We’ve gone from what was, essentially—I’m paraphrasing, and I’m not a legal expert—a balancing approach through the current RMA, which no one is defending as being perfect, but we’ve got to deal with what’s in front of us, and it’s been put on the Table by the Government. We’ve gone from what was, essentially, a balanced approach, or a balancing approach, to something that I think, and I think many people think, looks like an environmental protection statute at the expense of many other things.

The Minister, I think, knows that the legislation we’re passing has to accomplish many things. That’s why, if you read through the supplementary analysis report and all of the voluminous volumes of paper that have been produced about competitive urban land markets and the promotion of renewable energy and all of the things that most of us want—the Greens don’t, but most of us want—the Minister knows that all of those things are important.

And here’s the issue: I worry that if we pass this, we are going to end up with a statute that makes it nigh on impossible to actually accomplish those things, because we will be writing into statute a provision that makes it very hard to actually fulfil clause 3(2)(b), which is the use and development of the environment, because we’re saying that using the environment and making use of the abundant natural resources we have in New Zealand, or the abundant land—we’re the size of the United Kingdom, but we’ve managed to design a planning system that has resulted in some of the most unaffordable houses in the developed world. We’ll be writing into law a provision that acknowledges those problems, but actually makes it impossible to use our abundant resources to develop our economy and our wellbeing, which is the buzzword du jour, because we’ve decided that the protection of the natural environment is, essentially, the—it’s not quite the be-all and end-all, but it’s not far off the be-all and end-all, because everything else is subject to the health of the natural environment and the protection of the health of the natural environment, and the purpose of the Act is to uphold te Oranga o te Taiao, which—as I’ve said before—if you read through, it contains very little reference to many of the other goals the Minister has rightly talked about.

All four of the five subclauses in that clause are about the health of the natural environment. Clause 3 is fundamental and I think it is going to sink the whole bill, personally, because it is absolutely critical, and members will know that it’s the purpose clause. This will suffuse itself through and diffuse itself through everything that happens through the new regime, if, indeed, it passes into law. The courts will refer back to it, decision makers will refer back to it, and people will be obliged to refer to it. It’s the purpose clause of the whole bill and we’ve got to get it right, and I am utterly unconvinced we have the balance right. I think it will be a disaster in practice.

So that’s many a contribution there. No doubt, the Minister has many things to say in response.

Thank you, Madam Chair. I will endeavour to respond to each of the points that the member has made, and if I fail to address some of the points that are important to him, feel free to put them back to me again because I believe there are answers to all of the questions that have been posed. For a start, I would make reference to the definition of “natural environment” and “environment”. Now, “environment” is defined in the interpretation section of the Act to mean the natural environment, which we all understand; people and communities and the built environment, that includes buildings and roads and farms, etc.; and social, economic, and cultural conditions that affect those matters. So the “environment” is, as you would expect, a very broad definition. The “natural environment” is narrower than that. But when the member referred to “the interconnectedness of all parts of the environment”, that is expressly making reference to the fact that the built environment—the farms, the industry, the roads, the trains: they’re all an important part of the equation.

Now, the second point I would make is in respect of the purpose clause. It says that subject to protecting the natural environment—and that’s not an absolute: you can’t always protect a natural environment; I agree with the member’s point there. You can’t absolutely go back to some sort of idyllic conception of New Zealand’s natural environment pre-occupation or pre-possums who’ve desecrated our forests, or pre-human activity. So it’s not saying that we’re going to return New Zealand to an idyllic state like that. It’s saying that subject to protecting the health of the natural environment—which isn’t an absolute—we enable the use and development of the environment that promotes the wellbeing of present and future generations. And that includes housing, that includes roads, that includes rail, that includes industry—that’s all in there.

How do we do that? The purpose clause is necessarily a statement of generalities; it always is. So how do you put that into practice? Well, the member will be aware that the next clause after the purpose clause sets out the means for achieving the purposes of the Act, and it says, “This section sets out the following key [matters] to achieve the purpose of the Act”. And the first is the system outcomes which must be provided for the national planning framework, and, at a regional level, plans. Now, I’m not going to go through all of the other subsections of that because the first two are probably sufficient for the current discussion. Those system outcomes are then set out at clause 5 of the bill and they include, amongst other things, environmental things to be provided for, public access, recreational use, well-functioning urban and rural areas that are responsive to the diverse and changing needs of people and communities in a way that promotes the use and development of land for a variety of activities, including for housing, business use, and primary production. So the outcomes, which sit under clause 5 of the bill, expressly provide for those development outcomes.

So how does the system do that? Well, it does it both through that hierarchy that’s set out—both the principles that are set out in the Act. But, actually, the detail of it sits in national direction through the national planning framework and then in plans. But then, of course, the member, Mr Bishop—I was going to call him Mr Bridges there for a second, sorry—says, “Well, you can’t achieve everything all of the time”. Well, that’s quite true; in not every area can you protect the habitat of kiwi and build a house. It’s obvious. And the Act says, at section 5A, that “not all [of the] outcomes are required to be achieved in all places or at all times”—that’s in 5A(2)(b). So I agree with that, as well, but the legislation already provides for that.

In terms of the reference to King Salmon, the hierarchy of instruments that was found to be effective if well stated, according to King Salmon, is preserved in the statute. Until the King Salmon decision you could theoretically have quite directive statements in both the Resource Management Act and then in national direction, and then you could have some quite grunty words and plans, but then someone applied for a resource consent and the lower courts had always said, “Well, notwithstanding all of that, you balance everything”. Well, what King Salmon said is so long as the hierarchy is clearly stated, including a pro-development hierarchy where you’re developing things, then that hierarchy prevails and you can’t just throw everything up in the air again on an individual consent decision and make a balanced decision. You’ve got to do what the law says, which is set out in the Act and then in national direction. Now, the national planning framework comes into play here and I’m sure that will come up later so I won’t go into that in detail now. But it, for the first time, includes some pro-development chapters that will facilitate development of infrastructure, which of course is also central to housing.

Thank you, Madam Chair. One of the many challenges with this bill is its length and complexity, and the fact that the Minister has presented a number of changes in his Supplementary Order Paper (SOP)—I think the latest SOP was 3.56 p.m., about 15 minutes before we started debating the committee stages. So I’m not sure that I’ve come to grips with all of the changes, but the use of the revision track changes version is helpful.

Could I go to new clause 3A which is the means for achieving the purpose of the Act, which the Minister was just referring to, and note there that the Minister’s SOP is very helpfully using words like outstanding, which is referring to intrinsic values, which was missed out in the version that the select committee reported back. But in terms of natural features and landscapes, there has been a change in new clause 3A(i) that refers to the fact that natural features, including geoheritage features—and that was an important change that the select committee made to the bill to recognise geological features—and landscapes that are important at the local and regional scale, may be provided for. This is still quite a significant change from the Resource Management Act, where the protection of outstanding natural landscapes and features is a matter of national importance.

Could the Minister explain what he sees as the purpose of that change through his SOP, and whether he sees natural built environment plans, the regional plans, and the regional planning committees as having quite a responsibility to ensure that those regionally important landscapes and natural features are actually identified, and provision is made for their protection? Recognising that the way places of national importance are defined in the bill doesn’t require these places at the regional and local level to—doesn’t really include them within the definition. So if he could just talk to what he sees that the changes that he’s proposing to 3A(i) will achieve.

Thank you, Madam Chair. I take it that the member is referring to new clause 3A(h) and (i)?

💬 Hon Eugenie Sage: Yes.

Thank you. The current system enables the protection of a wide range—this is the Resource Management Act system—of biological and historical features, and features of cultural significance. The new system aims to—I’ll go back a step. The new system aims to categorise those according to two levels measures: matters that are nationally important and matters that are regionally or locally important.

In respect of those things that are nationally important, this is essentially built on the Australian system where they seem to have achieved a better balance of protecting the truly important, but not pretending that the important but not as high level of importance should have the same level of protection. Now, why is this important? When Parliament is considering the protection of important matters such as these, Parliament has a choice as to whether we have a high level of protection which is seldom breached, or a lower level of protection which can often be breached. If Parliament sets up too high a level of protection for everything, you effectively frustrate the system, and you can build things that you need, when you need to, too often. So what this section does is try—it doesn’t try; it actually achieves the requirement for the nationally important to be identified and then have very, very limited exceptions to it.

Essentially, if it’s a matter that’s nationally important in respect of a highly vulnerable biodiversity area, then that area must be recognised, protected, and sustained for their intrinsic value for the benefit of present and future generations. Then there are some very specific provisions later in the Act that say that even then you have to have the occasional exception, because there are occasions when you can contemplate—but even then there’s some important piece of infrastructure that can go nowhere else, but the country none the less needs to have.

In respect of those highest level of protections, it’s a very high bar to cross to being able to get an exception, and there are only limited exceptions for the likes of those classes of infrastructure. Even then, if you got an approval because there was no other practical place that you could put it, there would be offsetting requirements in order to offset the adverse effects that were created by that infrastructure that can’t be put anywhere else.

So other than those exceptions, the high level nationally important and highly vulnerable biodiversity areas must be recognised, protected, and sustained for their intrinsic value and for the benefit of present and future generations—the Australian system, and it works in Australia, I’m advised.

In respect of the lower level—and I don’t want to diminish them to say they’re irrelevant; they’re not, but it is wrong to say that everything is just as important. Those matters, the protection of natural features, including geoheritage and landscapes, they’re important at the local and regional scale. They can be provided for, but they’ll generally be provided for in local plans. That’s essentially the rationale that lies behind those clauses.

Thank you, Madam Chair. I’m delighted that the Minister has confidence that because something happens in Australia, it might happen here. Well, I’m not so sure and I remain to be convinced.

But I think partly the issue that we have on this side of the House is that what we’ve heard just from the chair of the Environment Committee about the Supplementary Order Paper (SOP) being delivered to the Table literally 15 minutes before this debate commenced—

💬 Hon David Parker: That’s not this one.

It’s not this one?

💬 Hon David Parker: No.

Well, I’m interested to know, then, what was the SOP that the chair of the select committee was referring to.

But, indicatively, that’s part of the problem, and has been from the get-go, with this piece of legislation. It is that it is being amended on the fly and has been for the last six or seven month that it’s been considered either through the initial Randerson report, through the initial draft piece of legislation that we saw and considered at the select committee, and then to the actual legislation, and then to the submissions, and then officials changing their mind and rewriting and re-wording all the way through. It has been very much a moving feast and continues to be. I think that’s really the essence of some of the problems that we have with Part 1 of the bill.

I want to go back to some of the issues that my colleague Chris Bishop raised in his earlier questioning of the Minister, and it relates to the inclusion of this whole new unjudicially tested concept of te Oranga o te Taiao. Now, we’ve heard the Minister talk about the rationale for inclusion of that, and it goes back to Randerson, and we understand and get that, but we haven’t actually heard why—why it was that this terminology was used. At the select committee, we heard from many submitters who thought that the wording should be different. There were some who were interested initially in the original wording, which was that “te Mana” be used rather than “te Oranga”. So there was a change there along the way somewhere, and I’m keen to know in some detail about what that change was.

Then we also heard from a number of iwi and hapū submitters that they felt that they should be able to define the phrase, rather than letting the Parliament define the phrase. My concern is that it won’t be the Parliament or indeed hapū or iwi who end up doing the definition; it will be an activist judge somewhere or a whole bench of activist judges somewhere that will make a final determination as to what the interpretation of that phrase means and what its implications are, because they flow through the rest of the entire statute.

And then the Minister rightly points out that clause 3(3) then goes on to define what the meaning is. Well, I’d say that’s not so much a definition; it’s more of a description rather than a definition. The potential for judicial interpretation is going to be obvious and it’s going to be long and it’s going to be expensive. And I just pity the poor schmuck that is going to be the first test case for the interpretation of some of these new phrases, the new terms. We all accept that much of the existing Resource Management Act is not serving us well. But to consider that a whole new phraseology and new terminology is going to somehow clarify that, I think is folly and I think it’s going to create even more problems than we have heard to date.

I don’t doubt the sincerity of the Minister. He’s very good and I respect his knowledge and his expertise, both from a ministerial point of view but also as a former practitioner in this area of the law; he knows what he’s talking about. But most people don’t. Lay people don’t, and many of the legal practitioners don’t. The challenge, I think, for us when we are preparing legislation of this sort is that the terminology, the phraseology should be, wherever possible, consistent with that which has already been interpreted by the courts. And it would have been useful if we could have had wording that was consistent, tested and understood by lay people, by practitioners and by developers, and also by environmental groups, NGOs and the like, who obviously take an interest in all these matters.

So we are concerned, on this side of the House, about the use of new terminology, what it means, how it’s going to be interpreted. And the Minister said that, really, a purpose clause is nothing more than a statement of generalities. Well, actually, that’s true to a point. But the trouble is that those generalities then have to be interpreted and made to work in practical terms. What we will be testing as we go through this clause by clause, part by part, over the next day or two, is: what does this mean in practical terms? What is it going to mean for someone who wants to build a development, a housing development? What does it mean for a local council that wants to do some development? What does it mean for someone who just wants to build a house? Does it make it easier to get things done? And we on this side of the Chamber have some real concerns about that.

So my questions to the Minister relate again to some further probing of the use of the new terminology. Yes, I understand that this is terminology that was first conceptualised in the Randerson report. But what we don’t have is an analysis of why Randerson necessarily should be carved down as some kind of a tablet from upon high as being the be-all and end-all. We have never accepted that on this side of the House and we still don’t today. So I’m keen to delve into what that was all about. Thank you, Minister.

Thank you, Madam Chair. In respect of the Supplementary Order Papers (SOPs), can I begin by thanking the Environment Committee, because, actually, relative to the length and importance and detail of a cornerstone piece of development and environmental legislation, the changes that have been made by Supplementary Order Paper today are very small, because the hard work that was done by the select committee put in the vast majority of the amendments that were necessary.

Now, the amendments that are set out in a change-tracked version of the bill, which is Supplementary Order Paper 389, members will see, as they leaf through that, that the vast majority of this text is unaffected by the Supplementary Order Paper. And members will see, when they read through those change-tracked versions there, that nine out of 10 of them, or 90 out of 100—or 99 out of 100; I’m not sure—really are technical changes. There’s not much of substance in the SOPs.

In addition to that, there are three tabled amendments that are in my name that are a page long each. The latest of those was tabled at 3.56 p.m., which was the one that was referred to by the Hon Eugenie Sage. You’ll see that they’re very, very brief tabled amendments.

In respect of the fact that there will be some new law as a consequence of the change to this regime, you can’t change the regime without changing it. This moves to an outcomes-based regime from an effects-based regime. Those outcomes, as I have previously described, they can’t all be achieved at all places, but generally we’re trying to put heightened emphasis on protecting the biophysical or natural environment. We are lessening the impact of matters of personal taste, because we think that’s been a crutch upon which nimbyism has rested. And subject to that, we are pushing forward development to make it easier to develop.

Now, even if we hadn’t changed the purpose clause and we had just said that the old Resource Management Act purpose clause had to be achieved according to the new outcomes regime of the new legislation, that would have thrown up for reinterpretation the existing purpose clause, because the effect of the purpose clause would have been different than it is in the new statute because of this movement away from an effects-based regime to an outcomes-based regime. So the idea, with respect to members who think that you can actually substantially change your resource management system without having reinterpretation of the same phrase or a substitute phrase for it, is, with respect, incorrect.

I’ve gone through for prior members at some detail how te Oranga o te Taiao works. The change from “te Mana o te Taiao” to “te Oranga o te Taiao” as being the term which is defined occurred at the first select committee inquiry on those main provisions of the bill, and it’s been further refined at select committee to, we think, make it clearer so that, in part, the development side of the purpose clause is not complicated by environmental outcomes.

Obviously, if you’re developing, you still want to minimise the environmental effects, but the part of the purpose statement that relates to development, which is the second part of the purpose, enabling “the use and development of the environment in a way that promotes the well-being of present and future generations.”—and, as I said before, “environment” includes buildings and roads as well as animals, be they indigenous animals or introduced animals like sheep and cows. We think it’s clearer now than it was under the existing statute that we are trying to promote development outcomes so that we don’t have a recurrence of these ridiculously high land prices, and so that it doesn’t cost the earth to consent infrastructure.

Thank you, Madam Chair. It is a pleasure to speak on the Natural and Built Environment Bill. While I did spend some time on the Environment Committee on this, but not as much as others—to my good fortune, I think!

My question to the Minister for the Environment is around clause 4, around the Treaty of Waitangi, where it says, “All persons exercising powers and performing functions and duties under this Act must give effect to the principles of [the Treaty of Waitangi].”—or “Te Tiriti” or whichever way you want to call it, and there are differences; there is one here. I’d like to know why they chose that version and not the “the Treaty of Waitangi”—the one that took primacy in 1840.

Further to that, where are the principles? There’s no reference in that clause to the principles. What are they? Where are they listed? How will they work? We can’t judge that unless we know what they are. I would suggest that that’s going to make it pretty difficult.

I do note, at the beginning of the original bill, it gives a definition, although it’s not in the bill itself, of “tikanga”. We heard in the Environment Committee last week, expert witness evidence on the seabed mining inquiry about such matters and the difficulties that they create, because, ultimately, good law is something that has to be able to be known—it doesn’t have to be known, but has to be able to be known—and yet tikanga is not known; it’s, essentially, secret knowledge. In a normal case of events—and this is where it relates to this bill, Madam Chair—when this bill becomes an Act and tikanga comes up in a hearing or in a consent process, it doesn’t have the same process as it would if it was expert evidence, say, about environmental effects. So if we had a marine biologist, for example, giving evidence about the effects of potential seabed mining, for example, or it could be a wind farm and the effect on birds, where we have witness expert evidence that would come up from the applicant, and then those objecting to it, on the other side of the argument, could get their own expert witness and then we would have something to weigh up and a decision to be made. But with tikanga, that can’t happen. Well, that’s my understanding, but perhaps the Minister is going to enlighten us all, because it certainly had that legal expert very confused as to how that might work and the practicalities of it and also the fact that money changes hands to get a lot of these reports through. So I asked that witness—

💬 Hon Member: A lot of money.

—yes—how he would deal with that, how that would be dealt with in the law. His response—it was interesting, I think, and I—

💬 Hon Scott Simpson: Tell us.

Well, I will. I’m hoping that the Minister’s listening, because I’d like him to come back with an answer to this—whether this is right or not. He said, “Well, you simply make it of no value. If you can’t test it, then it’s bad law, and so therefore you have to make it of no value.” So it could be admitted and used but it has no real value, because it can’t be tested. So I really would like the Minister’s view on that. So how’s that going to work on a day-to-day basis when I make an application for a wind farm on a nice ridge line overlooking Auckland? Have they got some ridge lines in Auckland somewhere?

💬 Hon Member: Bound to.

Go and put some wind turbines up there, and the local residents complain or object, and I have some expert—

💬 Simon Court: Give them a gas turbine, Stuart.

Well, a gas turbine—well, I might be doing that as well; the same thing. It would be more efficient, I suspect, in the long run. But how is that going to be weighed up with the principles of the Treaty and how’s it going to be weighed up with tikanga? If I get someone to give evidence, who invokes tikanga and says it’s worthwhile on the basis of that secret knowledge, can that be tested, and how can that be tested if it’s secret knowledge? So I’d really appreciate the Minister’s answers to those questions.

Dealing with the first point the member raised, which was that clause 4 of the bill says that “All persons exercising powers and performing functions and duties under this Act must give effect to the principles of te Tiriti o Waitangi.”, the term “te Tiriti o Waitangi” is defined in the “Definitions” section, in clause 7(1), and it is defined to mean “the Treaty as defined in section 2 of the Treaty of Waitangi Act 1975”. I know—because I had advice on this on the way through—that definition refers to both versions of the Treaty. So it doesn’t give preference to te reo version or the English version. It does as the Treaty of Waitangi Act does and makes reference to both.

In respect of the “give effect to the principles of” the Treaty clause, that’s broadly the same as the “give effect to the principles of” the Treaty clause in the Conservation Act. So that’s not new. The wording is slightly different, but it’s of similar effect. And it was recommended by the Randerson panel and it’s previously been recommended by the Waitangi Tribunal.

The Waitangi Tribunal went quite a bit further. It’s clear from some of their writing that they would have preferred a co-governance model for resource management, that we haven’t pursued through this legislation, because the Government didn’t agree that that was appropriate.

In respect of the issue as to tikanga Māori, this is not a new concept; it is in the Resource Management Act (RMA). Is the definition the same? The definition is broadly similar. If the member’s got specific questions about that, I can dig out the RMA to answer some further questions about that, but I haven’t got the RMA definition right in front of me. But tikanga Māori is in the existing Resource Management Act.

In respect of the issues as to secret evidence that I think the member referred to, if whatever happened would be in relation to something like—if there is a place known to local Māori on their piece of land that there is a burial site, they don’t necessarily want archaeologists, if this is on public land or something, going and digging it up. So they might come and they might say to the authorities, “Look, please listen to us as to where that burial site is. We know it’s down there, but we don’t want you to broadcast that.” That would be up to the court to determine or the council to determine whether they thought that was fair. If they didn’t think that was fair, they would obviously make that sort of thing public.

But “tikanga Māori means Māori customary law, customary values, and customary practices”. Irrespective of whether we had that definition in the law, the Supreme Court has recently found that tikanga is a branch of the customary law that does have a current place in New Zealand law. It obviously has a current place under the Resource Management Act because it’s provided for. Really, the only way that this Parliament could have a different outcome in respect of tikanga, these days, would actually be to expressly exclude it by legislation to say that tikanga Māori cannot be taken into account in respect of these resource management decisions. That’s not a position that this Government or, obviously, the prior Government that was in power for nine years—the National-ACT Government never did that in respect of the RMA.

Thank you, Madam Chair. Minister, thank you for being so fulsome in your explanations and for giving your time so generously to explain this bill to the committee, and to New Zealanders who might be listening: the Natural and Built Environment Bill, which we know you have heavily invested your time in, and also directed officials and others to heavily invest their time in, and, of course, the taxpayer’s dollar to fund this development of this legislation.

Minister, before I come to some questions, I just want to make it clear what ACT believes the issue is to solve, with resource management law. We have environmental protection on one hand; we have urban development and infrastructure needed to deliver social and economic benefits to communities on the other. How do we balance our desire, our passion, as New Zealanders, to protect those special places, those special parts of the environment, those iconic places which feature in our tourist promotions—the places where we go tramping and camping, those places where we go fishing and diving, and those unique wetlands, for example, where endangered birds like the kōtuku, the white heron, live? How do we balance up the need to protect these very, very unique and special places, with our need to occupy, develop, and use resources for our economic and social wellbeing?

Well, Minister, unfortunately, ACT opposes this bill because we do not believe that it efficiently resolves the obvious clash between those two outcomes. And that’s because it retains an integrated approach to land use, planning, and environmental management—that was the original flaw of the Resource Management Act (RMA), rather than separating them into two separate regulatory systems: one to protect the special places, which we could do if we had a piece of legislation, such as an environmental protection Act that said where the special places are, how we know that they’re special, and what the criteria are—is it water quality, is it ecology, or is it a threatened species, is it a national park somewhere with our tallest mountain on it? Let everybody chip in and identify—through consultation, through legislative process, and through select committee submission—what the special places are that they want to protect and why.

You might have to also identify where these might be on private land because, of course, if the Government intends to restrict the use of private land and say it’s special to other people, they should have very, very, very good reasons as to why to do it, and be prepared to pay for the privilege, because that’s not Government land, that’s not public land, that’s private land. But, of course, if the Government wants to protect public land and say that these are special places, then it should have the right to do that by the means of an environmental protection piece of legislation.

Alternatively, when it comes to urban development and infrastructure development, having carried out spatial planning activities—which are pretty common across New Zealand, although not to the same level of detail; I mean, why would you do it to the same level of detail in Kaitāia as you would for an urban metro like Auckland or Hamilton or Christchurch? It’s absolutely vital that where that planning shows people will live and where business land is zoned for business activities—manufacturing, production, and so on—we need a piece of legislation that identifies how infrastructure corridors are protected, and then how that infrastructure should be delivered, funded, and financed, and which entities might have responsibilities in that sector, and, of course, when it comes to urban development, where people want to build in existing urban areas or in new urban areas, that there is legislation that provides for affordable housing development and also linked to the provision of services. Two pieces of legislation, Minister, that, if separated, would be a much more efficient way, in ACT’s opinion, of giving effect to the laudable objectives expressed in this bill—essentially to protect the environment, the special places, while making it easier to build and get on with delivering infrastructure that has social and economic wellbeing outcomes.

But, Minister, I just have a few questions for you now, because if we are intending to solve that problem this evening or tomorrow morning, if we continue—[Bell rung] Madam Chair?

CHAIRPERSON (Hon Jenny Salesa): I call on Simon Court. And can I actually ask the member to get to his questions. It’s a wide-ranging debate, but you’ve had five minutes of really wide-ranging speech. Please ask the Minister your questions.

Thank you, Madam Chair. So the issues to solve appear to be complicated by the purpose clause—in particular, the purpose of the Act is achieved in a way that enables use and development and promotes the wellbeing of not just present but future generations.

So, question one, Minister: how are we to value resources for future generations when we might want to use them now to build stuff? We might say there’s a piece of land that somebody owns, whether publicly or privately, which might have quarry resources on it, valuable minerals, or rare-earth minerals that might be used for electronics or batteries or to help achieve a low-carbon future for some technology; how do we balance the needs of present generations against future generations, when it’s the people who are here now, our children who are with us now, whose economic and social wellbeing we must surely give primacy to, Minister?

Second question: te Oranga o te Taiao—and I have been listening to the debate and I know you have answered some questions, Minister. Will you please describe what “interconnectedness with all parts of the environment” means? Because, if you think about electrons, if you think about physics, if you think about atoms or neutrons, they’re all buzzing around, they’re all connected. How does that help a decision maker—either looking at a resource consent application or a judge looking at an appeal—decide whether an applicant is upholding te Oranga o te Taiao? Should they have knowledge of physics and, potentially, advanced physics, or is this something that is intrinsic knowledge? And if it’s intrinsic knowledge, Minister, that a judge or a decision maker will need, how do they get this knowledge? Is it absorbed, somehow, through life experience? Is it learnt at university? Are they born with it? Is it an ethnic thing? Minister, explain how on earth somebody is supposed to understand that as a decision maker? Because Ernest Rutherford said, Minister, “If you can’t explain physics to a barman, it’s not good physics.” But if you could explain the interconnectedness of all parts of the environment to the House this evening, maybe it is good policy after all.

Minister, I would like to get to the changes that this bill makes with regard to the Treaty of Waitangi obligations on all persons exercising functions and duties under the Act, which now requires, quite differently from the Resource Management Act, decision makers to give effect to the principles of the Treaty of Waitangi, whereas the RMA sought to have decision makers—those exercising powers—to have regard to the principles. That’s quite different, because, Minister, in a reply that you’ve kindly given to me in another portfolio area today, your transport portfolio, you outline what those principles are—they’re expressed by the courts and the Waitangi Tribunal.

The principle of partnership: well, I mean, anyone who’s been in business would appreciate how important it is to respect your partners in any business activity or undertaking in the community.

The principle of mutual benefit: well, every deal has some kind of trade-off in it, Minister. There is not always a mutual benefit. There’s not always an equivalent benefit. There’s not always a balancing of benefits. Somebody is doing something next door to your land. The person who’s receiving the effects of an activity, whether it’s a house being built or a quarry being developed or a cell tower going up—there’s no mutual benefits for somebody who doesn’t like the shading, doesn’t like the noise, doesn’t like the dust, and doesn’t like looking at a cellphone tower. Then, of course, is the principle of active protection.

So, Minister, would you please explain to us how on earth the interconnectedness of all parts of the environment is to be understood by decision makers? And how are decision makers—those exercising powers and duties—meant to give effect to the Treaty of Waitangi principles: partnership, mutual benefit, and the principle of active protection? Minister, if you could give us some examples, that would be a great start to the evening. Thank you.

The first point I will respond to is the question as to whether you go for an integrated management approach—which this Act continues—or whether you have separate environmental protection legislation and separate development legislation. We did consider that, as did the Randerson panel.

The first point I would make was that when the Resource Management Act was passed, it replaced the separate statute approach where you had the Town and Country Planning Act and you had the Water and Soil Conservation Act, and 27 other Acts. The Resource Management Act (RMA) repealed 28 Acts. Well, if the ACT Party want to go back to that separation of development from—

💬 Damien Smith: Two!

Oh, two! It’s going to be very simple under the ACT Party prescription. Very simple.

The second point I would make is if the Parliament wanted to have separate environmental protection and development statutes, it doesn’t resolve the underlying tension sometimes. What happens when a road is needed to go through a wetland—and it sometimes happens? Auckland has to expand their roads—there’s nowhere to expand them—into wetlands. So how does the separation of the development statute from the environmental protection avoid that contest? It can’t—it can’t.

That’s actually got to be resolved by principles as to how you resolve the tensions between those things. That’s what this Act does. It says, you know, “There are some things that are very special that you shouldn’t normally intrude into.” A wetland could be an example of that if it was a really important wetland, but it then says, “Occasionally you have to have an exception.” and it sets out principles as to when you can have an exception and therefore gives guidance to decision makers as to whether they should make an exception.

That assessment cannot be avoided whether you have both of those things together in the same statute or whether you have them in two separate statutes. You can’t plan for everything, and if the member wants shorter plans and shorter statutes, well, you can’t resolve those tensions. Those tensions exist, and you have to set out principles to resolve those tensions.

Now, the overall length of the statute is virtually identical to the RMA and the fast track, because fast track comes back into this and these two things—the fast track and the RMA legislation—are virtually the same. In fact, I asked officials to total that up for me. The RMA plus fast track is 992 pages. The Natural and Built Environment Act (NBEA) is 977.

💬 Hon Scott Simpson: Oh, that’s a huge saving.

Oh, I know. Well, I mean, it’s a puerile argument if we’re actually down to the number of pages. But if you are worried about the number of pages, have a look at the UK statute, that’s much longer; have a look at the Australian statute, that’s much longer. If that’s your test, this is better. I don’t think that is the right test. But if that is your test—which I think is very superficial—this is better.

In respect of the issue of current and future generations, we are trying to sustain the environment so that our children and grandchildren don’t inherit a despoiled planet. That is no different to what is in the RMA; that principle is already in there. The member—who’s a member of the ACT Party—was, for nine years, a member of the ACT-National Government. They didn’t repeal that part of the RMA that said we should be trying to protect environmental values for future generations rather than use them all up for this generation.

Now, that’s not to say that there are not some finite resources that ought to be used by the current generation. Of course there are. Quarries are a good example. We need quarries. Under the new legislation, those quarries will be better protected than they are under the old legislation, including from reverse sensitivity effects. Also, a regional spatial strategy under the Spatial Planning Act flowing through to an NBEA plan could say, “We need a quarry in this area. It’s ridiculous that we’re carting quarry for 300 kilometres when we could get it around the corner.” So those sorts of things are actually facilitated by this new legislation.

In respect of the member’s question about the interconnectedness of the environment, the environment, and I’ve previously covered this for earlier members’ questions, is defined in the legislation to include the natural environment, people, communities; and the built environment, including roads and farms and quarries and, you know, all of the things that we have in our lives as well as—it’s so broad that the environment includes all of those aspects, as it must do; as it must do. The natural environment is a subset of that.

But in terms of the interconnectedness of the environment, of course we are. We’re connected with the environment and the way in which we live our lives. I use roads every day. I live in a house. I drive in a car that has steel in it. The idea that you can have an environmental statue or that we would ever contemplate an environmental statute that didn’t cater for the needs of people—well, how ridiculous would that be? This statute doesn’t make that mistake.

Thank you, Madam Chair.

💬 Matt Doocey: Tell us about your car, Stewie!

Well, my car is made of steel as well.

💬 Hon Member: Oh, is it?

Well, it’s got rubber as well. A bit of plastic—glass, of course.

It is actually fantastic to see that the Minister has been woken up by the member from ACT, Simon Court, and got him quite active, actually, which is quite good.

Now, to the point about the number of pages, all I would like—I would like one more page at least, which had the principles of the Treaty of Waitangi in it, which they do not have. There’s no principles. The Minister gave an explanation before which actually made things worse, because he said, “Well, it all went along with what the Waitangi Tribunal—they agree with it.” Well, that’s hardly a ringing endorsement. And then the Randerson review—well, that was his own commissioned review. He’s getting his own team to judge him, really, and I think that’s not good enough.

He still hasn’t answered for us: what are the principles of the Treaty of Waitangi? He listed everything else; they’re all everywhere—no principles for the Treaty. How can we have bill that does not—that refers to some principles that are not included in the bill. So I’d like to see that. He talked about the Supreme Court and tikanga. Well, that was a 3:2 decision, so it was hardly a ringing endorsement either. I think we want more details on that, the Minister, and I think you have not answered the questions that I gave you earlier.

He’s also said that it was all in the Resource Management Act (RMA) anyway. Well, that’s why we’ve got the problems with it: nobody likes the RMA—except for the legal profession, perhaps, and even they don’t like it because they have clients that want to get stuff done.

Look, we don’t want certainty of outcome from these pieces of legislation; we want certainty of process. And, actually, what the problem is with the RMA is there is no certainty of the process. It’s a long-winded, overly bureaucratic exercise that could be carried out with much less bureaucracy than we have today. That’s one of the greatest sources of issues that come in around councils that I get in through my office every week. It’s about the RMA, it’s about the extra costs and the inefficiencies in it, and the waste, quite frankly. It is a waste, and, yet, we’ve got no improvement; in fact, this is going to make it so much worse than we have at the moment.

So I’m looking forward to—the Minister’s taking advice there, so I’m looking forward to having that list, and my pen is waiting, ready to note down those principles. Thank you, Minister.

There are two forms of Treaty clause—or two main groups of Treaty clauses across the statute book.

One lists the way in which the Treaty is to be given effect to—saying, essentially, “the way in which this legislation gives effect to the Treaty is by doing that, that, that, and that”, and it’s effectively code and a list. The other is to refer to general obligations to take into account or to give effect to the principles of the Treaty. When that latter form is used, and it is the most common form of the statute book, the practice is not to define it; it is to rely on the principles that have been developed by the court. Were we to move to another articulation of that—really, this just changes from “to take into account” to “to give effect to”. That’s the change of this, compared with the Resource Management Act. It doesn’t change the underlying principles, and it would be very, very—in my opinion—difficult to do so.

In respect of the member’s question about tikanga Māori, I believe I’ve already addressed that in the earlier answer. You know, it’s defined to mean “Māori customary law, customary values, and customary practices”, and I covered the Supreme Court jurisprudence.

I take the member’s point to it being a split division in the Supreme Court, but I don’t have a particular difficulty with the idea that customary law can include Māori customary law. In our common law jurisprudence in New Zealand, customary law from the English tradition was always possible to be part of the law, and customary law, whether it is Māori customary law or English customary law that we inherited, can always be modified by statute, and, in many ways, is by this litigation. But I can accept the principle that there is the possibility of residual law that is not overridden by the Resource Management Act or, in the future, by the Natural and Built Environment Bill that still has a place.

Thank you, Madam Chair. Look, an introductory comment and then a series of questions, obviously in Part 1. Look, the good people of Tāmaki already find the Resource Management Act (RMA) a huge mess, and I don’t think anyone in the committee here would disagree that the current RMA is a massive, massive mess. It could be best described as slowing everything down and I think of everyone from neighbours, friends, locals, constituents, developers across Tāmaki—they find the RMA majorly problematic.

The issue I have is that these 900-plus pages are going to make things much worse. In fact, from where the current RMA stifles things, this one is going to stop progress in its entirety. And one of the things that concerns me is how few New Zealanders know what the Government is doing in this space. As I say, this new Natural and Built Environment Bill, along with its secondary cousin, is going to basically stop development in New Zealand, and the primary reason for that is it is introducing enormous uncertainty into the system and, in particular, into the legal system. I understand, and the Minister can correct me on this, but even the Chief Justice has come out and indicated in a submission, I think, to the Environment Committee that this is going to grind the courts down because there are so many concepts in here that no one knows what they mean.

Let’s be really clear; I want to be very clear: new concepts, ideas, and principles are welcome, but when it comes to law, they need to be clearly spelt out. And yep, we can, if you want to take on, you know, the fancifulness of the American model and others to allow the courts to decide—well, that takes time and money. The Minister should know already, particularly in Auckland and certainly in my electorate, that it already takes too long to build things, let alone what this is going to do. So I can’t say it’s a pleasure to rise to speak on this, because trying to lift 900-plus pages is quite a work-out.

The purpose of the Act: the first purpose, Minister, is to uphold te Oranga o te Taiao. My translation of “Taiao” can be land or it can also be “world”. Why I’m asking that is: does this bill need to take in the concepts of the world? Does the world or do the people in the world get to have a say? So, obviously, we are all interconnected, but words are important. And he’s been stressing the importance of law and the word. So the purpose of this Act is to “uphold the health of the world”, is one interpretation. In other words, are events overseas going to affect what decisions are being made here in New Zealand? Then, ultimately, who gets to decide what is healthy or not? What are the qualifications?

This is the second set of questions for judges, because as I go through clause 3, particularly subclause 3, on what te Oranga o te Taiao means—the healthy environment, the relationships in the environment, and so forth, the interconnectedness—I’m wondering whether we need theologians and philosophers to be our judges. I say it somewhat tongue in cheek, because I’m both of them. But as I read these words, I’m thinking of concepts like Gaiaism, animism, pantheism, panentheism—for those who are interested in these things—vitalism. So many of the concepts that are already being articulated here are quite actually philosophical, and, to some of us, are quite theological. So at one level it’s a facetious question, Minister, but there’s a serious edge to it: are judges going to be required to be theologians to try and work through what are, effectively, spiritual concepts?

Then the next section is in clause 6 around decision-making processes. I know others have already raised the place of tikanga. Now, I want to be really clear and on the record: there is a place for tikanga. There are different customary approaches, but my question is: how is this going to operate in the process of law? The Minister rightly pointed out English common law and so forth, but it’s written down. It’s in black and white. It’s clearly defined. My experience dealing with tikanga is that it can be amazing, but tikanga is remarkably flexible when it’s wanted to be, and then it’s enormously rigid when it also suits. How are we going to navigate this as a country and where is it written?

I think even in my own electorate there are multiple iwi, let alone hapū, and yet your bill here says that we have to look not only to be responsible to each iwi, but to every hapū. Again, that’s not a problem—to want to engage them—it’s just how do we do this, Minister, in a way that’s going to be timely and helpful? Locals already know the difficulties there are to deal with iwi—and I want to stress again from a matter of process, not in terms of the respect and engagement, but it’s incredibly time-consuming. And the ultimate question is: where is this tikanga written down? Because I fear the Minister and perhaps even the Supreme Court are conflating the notions of law—that written law that we’re used to is the same as tikanga, and the two are not the same.

For a start, I do feel the Opposition are flailing a little bit here around this idea that we are imposing complexity on the system. This system is being reformed because of the complexity of the current system. Under the current system, do members know how long it normally takes to make a plan change? Ten years—10 years. I was speaking to someone from the hort sector the other day and I asked her what she was doing and she says, “What I’m always doing, I’m in a constant unending melee of plan changes.” It never finishes. Even within one region, it never ends. It goes on and on and on for 10 years, by which time they’re starting again. It’s ridiculous.

What happens under the new system? Well, the number of plans goes down from over 100 Resource Management Act (RMA) plans to 16—16. You can’t tell me that once we go through this transition that 16 plans are going to be harder to put together than 100. I’m also confident that if we do the first ones well, we’ll avoid the mistakes of the RMA, which has plans with unnecessary difference. There are some necessary differences, but at the moment there’s a lot of unnecessary difference—they’re all laid out differently, they have unnecessary differences within the same region. The recession plane might be 33 degrees or 35 degrees or 30—I’m sure the regions will be able to agree on 32.5 degrees or whatever the recession plane is at a boundary. So there’ll be a number of plans—

💬 Hon Member: How can they agree?

They don’t have to—they don’t have to. But I reckon common sense will prevail because, you know what? I trust local politicians to want good outcomes for their people. They are so frustrated with the system. Who would want to be a mayor or a councillor in a council where you can’t effect change through your planning instrument except over 10 years? Goodness me. Our processes around here are complex enough and long enough, but 10 years to change a—what does that go to under the new system? Four years. Four years from whoa to go, and you will have a regional plan. Four years. And that’s partly because we’re adopting the process that, in fairness, came from the National-ACT Party—Rodney Hide, for putting together the Auckland Plan. Because the Auckland Plan bringing together the plans of all of the separate—Mount Albert, you know, the central Auckland city, other Auckland—

💬 Hon Phil Twyford: Waitakere.

Waitakere—

💬 Hon Phil Twyford: Manukau.

Manukau—all of those district plans were put together into one plan and they did that through an independent hearings panel. It was chaired by an Environment Court judge, in that case, David Kirkpatrick, and they did it. They did it and it was efficient, and you’ve got a better plan in Auckland than you would other—it’s not perfect, it’s not perfect, but it’s better. So we go down from 100 plans to 16 plans, and instead of taking 10 years, they take four. Now, that’s efficiency. That is efficiency, and that’s what the country needs.

Now, in respect of the benefits to users, the cost-benefit analysis—the supplementary analysis report says that there’s a number of benefits. There’s going to be an increase in housing affordability of between $146 million and $834 million for the mid-range benefit per annum. It’s quite significant. It will flow through to housing costs. In respect of consenting processes, these become more efficient and the benefits to that are felt by the people who apply for resource consents or the people that buy services like roads and sewerage and footpaths and electricity and telecommunications and all of the other things that flow through to the price of a house. Those consenting cost savings are estimated for being between $210 million and $430 million—that’s just the mid-range; it’s not the top range, I’m being relatively conservative here. So between $200 million and $430 million per annum cost saving; that’s cost saving. It’s real cash. And in addition to that, the savings of time. If you’re a developer and you have to hold land for an extra two or three years while you sort these things out, those costs are astronomical, they’re much higher than the process costs.

So there will be more permitted activities, we have fewer plans, and there is a duty under this legislation for that to be the outcome. In terms of the issues in respect of the Treaty issues that the National Party went back to, again—you know, because these take into account provisions in the RMA that didn’t work, we have had all of these bespoke arrangements up and down the country through Treaty settlements, the most grunty of which were agreed by the National-ACT Government for the Waikato River Authority and the Hawke’s Bay Regional Planning Committee.

Thank you, Madam Chair. On Subpart 1, page 37, Minister, I’d like to ask you: you’ve made a change to clause 5(6AB) around the habitat of trout and salmon. We had a number of concerns around the fishermen on this clause. Can I ask you to perhaps explain to those fishermen—so the piece that’s been crossed out in your Supplementary Order Paper says “The habitat of trout and salmon is protected, so far as consistent with the protection of indigenous species.”, and in clause 5(6AB) that you’ve replaced it with “The habitat of trout and salmon are protected, as far as this is consistent with the protection of the habitat of indigenous freshwater species.” I just wanted to ask you a question, really, around the piece that says “as far as this is consistent with”, and wondering if you could speak to the fishermen about just allaying their concerns on that issue.

Thank you to the member for that question. Well, the Environment Committee said, “Look, this is not all about indigenous. We need to protect the habitat of trout and salmon.” It’s good; the existing Resource Management Act does that. One of the reasons why submitters wanted that is that a lot of the environmental advocacy that goes on up and down the country is actually by a fantastic membership-based organisation, Fish and Game Councils. They are regional organisations, they have a regional structure, they do have a head office in Wellington, but, actually, the head office is subservient to the regional bodies, not the other way round, although sometimes to them it doesn’t feel that way, I know.

They’ve got members up and down the country who are passionately interested in protecting their access to trout and salmon, and they’re a force for good. They try and protect the habitat of trout and salmon against degradation. So they came along and said, “Look, you know, we really find it harder to do our business if there’s not a reference into the statute saying that the protection of a habitat of trout and salmon is important.”, and so the select committee put that into the statute.

The Supplementary Order Paper (SOP) corrects the grammar. As it was at select committee, it said “The habitat of trout and salmon is protected.” Well, that was a rookie error by someone, but “The habitat of trout and salmon are protected”—you could have different habitat of salmon to the habitat of trout, therefore there is more than one habitat, therefore they “are protected” rather than “is protected”. So that’s the first change.

Then it said “so far as consistent with the protection of indigenous species”, and the words “this is” were missed out. So the words “as far as consistent” have been changed to “as far as this is consistent”. So the member can see, I think, that these are very technical changes. They do make the wording of it better, easier for people to understand, and that’s actually the nature of a lot of the amendments in the SOP.

Can I thank the officials for all of the enormous work they’ve done here. I do think that, for Parliament, I know there are people who say we’re rushing it, this legislation, after all of the multiple reports in the three years that we’ve taken to land it. We’ve landed it within three years, because that’s all you have within a parliamentary term. I’m of the view that we do need a four-year parliamentary term, and this is an example. But within that three-year term, we have put a lot of pressure on officials as well as civil society to land it, and so I’m very pleased with the effort that Government officials, Parliamentary Counsel Office and the like, have put in to make this legislation as good as it can be. And that is an example of how they’ve scrubbed up the legislation and improved it in minor ways since it came back from the select committee.

Thank you, Madam Chair. Oh look, the fascinating insight to the thinking of the Minister behind the bill. He’s demonstrated it is possible to balance the needs of indigenous creatures—the banded kōkopu, the giant kōkopu, who occupy the same habitat, potentially, as those colonising fish, trout, and salmon. So there is hope for “tangata trout” and “tangata kōkopu” in our future. That’s wonderful!

But it doesn’t resolve some of the other tensions, Minister. Because you mentioned in your reply to one of my earlier questions that we do need to resolve the issue of how to build a motorway across a wetland. Well, of course we do, but the technology is available to do that. Either we move the wetland, we divert the wetland, we build the bridge on piers over the wetland; many, many ways to resolve it.

But if you don’t have a series of criteria that identify the special place in the first place, then you’re still going to be stuck in litigation between the applicants who want to build the infrastructure, the regulators who have to make a decision about whether they should be allowed to even apply for a consent, and, of course, all of those activists who will insist that nothing should ever be done to damage the three bulrushes in a paddock which currently passes as definition of a wetland under the National Policy Statement for Freshwater Management. So Minister, we don’t understand how these tensions are going to be resolved. It’s not clear from this bill or from the Supplementary Order Papers.

Minister, you mentioned that plans take 10 years to resolve. Well, I thought I should check that, because that’s not what we heard in the evidence that was given to the Environment Committee. If you just look at what the New Zealand Planning Institute suggests for a complex, complete plan change: six years. For a private plan change, between one and three years—depending if it’s complex. So people might ask, “Why would you need a private plan change if council does all the planning?”

Well, it’s because sometimes an individual might want to use their land in a way that a council planner doesn’t agree with. They might say, “I’ve got a novel use for my land. Instead of a farm or a paddock, instead of growing, I don’t know, some bulrushes or some cows, I might want to build a distribution centre and I might want to connect my distribution centre or warehouse to the closest motorway so I can deliver goods to my customers in a timely way.” So that is why private plan changes—and also for housing developments and so on—are required.

It’s because central government and local government—even though we’d like to trust our councils and their planning functions, whether it’s under the Resource Management Act or some other kind of Act—don’t have all the answers; they don’t know. That’s why ACT proposes something quite different, which is a resource management reform focused on property rights.

So rather than having to ask for permission—to beg for the ability to get consents—or to hope, fingers crossed, that the thing I want to do is some kind of permitted activity, ACT would say, “Look, you should be able to use your land for however you wish, and the only people you should have to satisfy about mitigating the effects of your development are your neighbours, whether it’s noise or traffic or dust or whatever it is, if it’s a temporary effect or a long-term effect of a big extractive activity like quarrying, and of course if you’re making discharges to the receiving environment—in other words, if it’s something washing off your property or leaving your property in a pipe that’s going to the receiving environment—then of course you must pay attention to the effect on the commons and mitigate those to the bare minimum.”

But Minister, I also just want to come back to what you described as the Waitangi Tribunal insisting on a 50:50 partnership on the regional planning bodies—but you stated that had been rejected by Cabinet, and instead this bill proposes for regional planning that there would only be two iwi Māori representatives required out of a potential six. But Minister, isn’t it correct that a judge might decide—because that’s the minimum required—that, in fact, on appeal, if iwi Māori feel they weren’t represented on a planning tribunal, that, in fact, they could require a planning tribunal to have 50:50 iwi representation along with any local government representative? [Time expired]

CHAIRPERSON (Hon Jenny Salesa): Order!

Madam Chair?

CHAIRPERSON (Hon Jenny Salesa): I call on Simon Court.

Well, I’ll let the Minister answer.

Thank you, Madam Chair. Firstly, the member says, “Well, we need to identify the places of national importance so that there’s certainty in the system.” I agree with that, and I agree that we also need to make sure that we’re not having the bar so low for what’s of importance that we gum the system up by calling everything important. And there have been instances in New Zealand where landscapes, for example, have been identified all to be of natural importance around something. The example that’s most often used is around Queenstown, where the planning code in respect of significant landscapes essentially makes it very, very complicated to bring a new transmission line into Queenstown, even though you need it. So I agree that the system needs to identify those places.

The statute covers that off by making reference to this having to be done—and in clause 3A(h), it says, “the attributes of places of national importance and highly vulnerable bio‐diversity areas must be recognised … (see subpart 5 of Part 6)”. And then if you go to the index, you’ll see that that takes you to clause 427C on page 291 of the bill that says that they must be identified. So, you know, that will flow through.

In respect of the property rights argument, I would make two points. The private property right to the use of land has never enabled you to do anything on your land. In a residential area, you can’t put in a freezing works, you can’t build a tannery—and I don’t understand the member to be in favour of that—so you’ve got to have planning rules that actually say what you can do on the land. You can’t be so simple as to say, “Oh look, just because the property rights owner owns the fee simple, then that fee simple right includes the right to build anything on the land.” That has never been the law in New Zealand—under the Town and Country Planning Act, under the Resource Management Act, or under this. So the idea that you can just rely upon nuisance or the rights of neighbours is just incorrect, because we have codes in New Zealand which say: well, this area is basically for residential and allied services, this area here is mainly commercial. In respect of modern ways of living in commercial as opposed to industrial, we often merge the two together and have retail and businesses and things in some residential—in the same area. But it has always been the right of the planning system to control those issues. In respect—

💬 Simon Court: Well that’s all that we’re supposed to do.

I would also make the point that I find the ACT Party’s protestations on these issues simplistic, given that they’ve been so opposed to the intensification work that we’ve done in New Zealand to bring down the effect of cost of land prices. [Interruption] Well, I see Chris Bishop with a smile on his face there laconically saying, “Well, you might be right there, Minister.” Because it’s hard to reconcile the ACT Party voting against some of the intensification provisions that we as a Government brought forward in order to make housing more affordable by enabling more, and that more enabling planning provision to enable well-serviced landmarks—so there’s plenty of opportunities to build a house or an apartment, whatever it is, to bring down land prices; it’s implemented through the system.

Final point on the member’s question about “Can we have a takeover of Māori on regional planning committees?” It was dressed up in slightly different language, but that was, effectively, the question. Now, the answer is no, because in order to, in part, avoid all of the complications that we have through all of these bespoke Treaty settlements continuing to proliferate throughout the country, we’ve said, “Look, there should be some Māori participation on the regional planning committee.” We did think, “Well, should that be one? Should it be half and half?” We didn’t think it should be half and half. We thought that one could be a bit lonely so we actually came up with the number two, but it will be up to the region to decide. And if the region can’t decide, it’s set by the Local Government Commission. It’s not set by the courts; it’s set by the Local Government Commission. I can’t conceive of a situation where they would say that, you know, councils don’t have the majority voice.

So the member’s quite right to say that the smallest of these regional planning committees is likely to be in the Southland region where there are four councils, including the regional council. If you have two Māori participants on that regional planning committee, there will be two Māori participants and four council representatives. The councillors might say, “We want two each.” Invercargill might say, “Most of the people live here; we need two.” The regional council might convince people down there that they need a couple of voices for the regional council. That’s for the region to set out. We don’t need to predetermine—

CHAIRPERSON (Hon Jenny Salesa): Order! I call on Tama Potaka.

Kia ora tātou. I’d like to echo the concerns of my knowledgeable, erudite colleagues sitting on this side of the Chamber, especially our infrastructure sentinel here, young Chris Bishop.

The purpose of the Act, te Oranga o te Taiao—I would call it the description rather than the definition that’s been attached to it—is very, very curious; curious. The phrase, for someone who’s been brought up in tikanga and kawa and mātauranga Māori for the last 47 years—47½ actually—and a lawyer managing a Resource Management Act (RMA) team, te Oranga o te Taiao is a completely new phrase to me. It makes me very curious—never heard of it before. What I have heard of is mauri and Te Mana o te Wai and other concepts like kaitiakitanga, which have all given rise to an evolving jurisprudence within the courts and some workability and some commonality, some universality, across different RMA practitioners and lawyers. Those interpretations have been built over decades, but now we’ve been launched with something called te Oranga o te Taiao, which, once you take it to its extremes, means that none of us is here any more. We’re on a spaceship to Mars! Te Oranga o te Taiao, at its extreme, means that there are no people on the planet.

The introduction of this phrase to legislation, whilst it may have been well meaning, creates a lot of amorphous and unusual and uncertain circumstances. In fact, it gives me the impression of putting a pounamu on a white horse. The depth and the breadth of that phrase is something that I don’t think has been very well manicured in this proposed legislation. And, to that end, I think we need to get some context and guidance of what te Oranga o te Taiao means in terms of the health and wellbeing models that are very well known in te ao Māori and how those have informed, if at all, the meaning of te Oranga o te Taiao. Can I start with the Atua Matua model of Dr Ihirangi Heke, or the Tapa Whā model? Taha hinengaro taha wairua taha whānau taha tinana [The intellectual aspect, the spiritual aspect, the family aspect, and the physical/body aspect] of Sir Mason Durie? Or was it the Te Wheke model of Rangimārie Rose Pere, or the cultural health index?

💬 Shanan Halbert: All the models.

Or was it all of the models? Then it’s none of the models. Te Oranga o te Taiao must have been informed by something or some sort of kaupapa Māori model that helps us better locate ourselves in this discussion, and it certainly would help the judiciary to locate themselves in any interpretation of this phrase. What is the context or what is the guidance we get from Māori health models? That’s number one.

Number two is that the hierarchy or the weighting across the various subclauses, (a) through (e), is, again, very uncertain, particularly when they lean heavily into the protection dynamic of our planning system rather than a more balanced and fair and objective protection and development twin objectives, which is what I understood the planning legislation sought to achieve. So, again, the hierarchy or the weighting across each of those subclauses is something that we would like to get a little bit more colour around, because, at the moment, it looks very short-sighted and possibly myopic to say that it’s 20 percent for each of them.

Finally, further on in Part 1—we’re only up to clause 3—there is a mention of kawa within clause 5 and clause 6, and I would like to know, given that it is not defined in this legislation, what the Minister’s interpretation or definition of kawa actually is, because I do not know what it is, looking through the 1,270 pages of this document. Kia ora tātou.

I’ve already, on a number of occasions—at great length, actually—gone through the whole of the definition of te Oranga o te Taiao, which is a phrase which is defined in the ways in which I have previously explained, and I won’t go into that again. I explained the history of it—te Mana o te Taiao. I explained how it had come through the Randerson panel. I explained how the select committee inquiry had come out with te Oranga o te Taiao on the basis of submissions, and I explained to the House how that had been tightened up in the latest select committee consideration of the bill that went out for public submissions. So I am not going to repeat that.

I will, in respect of system outcomes, because there is some concern, obviously, from members of the Opposition that this is going to tie up the system and we’re not going to be able to do anything. Well, the outcomes—

💬 Tama Potaka: The Chief Justice is concerned too.

No, actually, the Chief Justice’s principal concern was that the way in which the Environment Court was constituted was subject to the Treaty clause. Interestingly, the Environment Court, which is constituted under the Resource Management Act, is actually constituted subject to the Treaty clause. No one thought of that at the time—or, if they did, I’m not aware that they did—and no one thought of the effect that changing the Treaty clause would have in emphasising the giving effect to the principles of the Treaty applying to all decision makers, including the Environment Court, constituted under the Natural and Built Environment Act. The Chief Justice was correct that that wasn’t the intention of the legislation, and the select committee corrected that so as to make it clear that, although the Environment Court, when it is considering decisions made by people under the new Act, has to give effect to the principles of the Treaty, the court itself is not constituted pursuant to those principles; it just has to apply the law, which includes those principles. That was the main point of the Chief Justice’s submission, and I’m very glad she made it, because otherwise that mistake could have been made, because no one, officials and I myself and others, had thought of it.

In respect of the outcomes, returning to what Simon Court was referring to earlier, system outcomes include, at clause 5(7), that there be “well-functioning urban and rural areas”—which includes the “use and development of land for a variety of activities, including for housing, business use, and primary production … development capacity, in relation to housing and business land, being available well ahead of expected demand”—it’s a current problem that we have in the system that we’re fixing through this legislation—and that we have “adaptable and resilient urban forms”. I’m sure that if there are other points that members want to reinforce with me, I can take a later call.

Thank you, Madam Chair. I want to come back to the Treaty clause, clause 4. The Minister has made reference on several occasions to the wording, which is one of the most significant changes to the existing legislative framework, versus this new methodology.

So under the existing Resource Management Act, the Treaty clause there says—I don’t have the exact wording in front of me, but essentially—that people exercising powers and performing functions under that piece of legislation must have regard to the Treaty. The new clause 4 says that “All persons exercising powers and performing functions and duties under this Act must give effect to the principles of te Tiriti”. So that is a very significant difference.

Now, the Minister has alluded to the fact that there is similar wording in the Conservation Act, but the primary difference between the Conservation Act, and, of course, this piece of legislation is that the Conservation Act refers to and is essentially responsible for the conservation estate, rather than this piece of legislation, which gives much broader powers and purview to private property, to developments of any sort, and, indeed, to the entire footprint of the nation.

So notwithstanding the matters that the Minister has already raised, I’m interested to know, potentially after the dinner break maybe when he comes back into the chair, if he could give us some insight as to why this is such a significant change. It was made for—I would assume what he thinks is—good reason, good effect. But it was the subject of a lot of discussion at select committee, an enormous amount of submitters’ time and energy, and, again, it goes to creating what is, effectively, further legal uncertainty in this area.

So I’m keen to know from the Minister: what was the rationale—and it may be simply that, “Oh, well it was part of the Randerson report.” Well, we’ve heard that on several occasions in the debate this afternoon in the committee of the whole House that “it was just Randerson.” I’m not sure that just because it was in the Randerson report that is nearly sufficient enough. Randerson and his committee are not Moses and carving tablets and bringing them down from upon high, but that seems to be the way that much of it has been interpreted—

💬 Simon Court: Sacrilege!

I think Mr Court might agree with me on that. But it’s an area where there is a lot of public concern; a lot of submitters made reference to this particular clause. The impact and potential for significant change is enormous, and then when we asked officials to define the principles, we were told by officials that, actually, there is no formal definition of the principles; that they are merely evolving—evolving. “The principles of the Treaty are evolving.” That provides very little confidence or certainty to anybody wishing to rely on this piece of legislation. Thank you, Madam Chair.

Members, the time has come for me to leave the chair. I will resume the chair at 7.30 p.m. after the dinner break. Ka kite anō.

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

In response to comments made by the Hon Scott Simpson just before the dinner break, and now actually just after the dinner break—sorry, about the football result—but on to what you were talking about before the dinner break, which was the Treaty clause and the change. I wanted to note, of course the Resource Management Act (RMA) has a Treaty clause at the moment in section 8, and that test is to take into account—and it still talks about the principles, which is the same language as clause 4, which has this higher test, and that higher test is “must give effect to”. The Hon Scott Simpson was asking before the dinner break about where this had come from. He made some interesting comments around the Randerson report in the committee. Of course, where it has come from is a long gestation or the long being—not even the gestation—of the Resource Management and the feeling from many people who have to use the RMA that it wasn’t strong enough in this clause and that it wasn’t strong enough for Māori. That has been a sentiment that has come through in submissions and in various consultation documents for a long time. So it’s a fairly simple answer.

Just to pick up the point around, well, what Scott Simpson had raised earlier: does the Minister appreciate, and regardless—well, sorry. First and foremost, of course there are people who want stronger Treaty provisions, and that’s perfectly understandable. But does the Minister understand it is an enormous step legally if not morally to move from “consideration” to “effect”—like, from “take account”, sorry, to “to effect”? This is an enormous change. This is not just a simple change of nomenclature in terms of particular principles—any principles for that matter. I’m sure a human rights lawyer would understand, as I look to my left, that to say “to take into consideration” or “to take thought of” human rights and principles is one thing. To “give effect to”—that’s an enormous, enormous change.

The second is that the Minister, earlier in the day, had been talking about how we’d moved from 100 plans to 16 and how the rewrite of this Part 1, in particular—but the whole 900-plus pages is going to make an enormous impact. And I suppose the question to the Minister in the chair is: does she really believe that the change of font and format in the presentation of a law is somehow going to outweigh or, rather, make things so efficient and outweigh the enormous effects of 900-plus pages of, effectively, new concepts untested in law? To put it another way: does she really think that all these enormous changes, as I say, untested judicially—that the Chief Justice has warned the select committee of just the enormous workloads going to be created—does she think, as Minister Parker indicated, that simply changing the font and format and reducing the number of plans is going to outweigh that judicial uncertainty?

To the first point, am I aware of the difference between “give effect to” and “take into account”? Yes. And to the second point that it’s 900 pages of brand-new concepts that are going to be tested by the courts, absolutely not. Some of the concepts in here are different, and there will, of course, be some litigation around those, but a lot of the framework of the bill is similar to what the Resource Management Act is. There are some fundamental changes, but a lot of it—you still have resource consents, you still have plan-making, and a lot of the provisions of the bill are to set out very clearly what they are. In terms of the re-order of the Act, that’s to make it easier for the users.

Thank you, and, again, hopefully, it’s a short retort. Look, I appreciate, I say to the Minister, that my earlier comment of 900 pages—it’s not all completely new—was a slightly facetious comment at one level. However, does she also appreciate the very fact that Part 1, clause 3, inserts a whole lot of new concepts that by the nature of our legal system sit on top of everything else? In other words, even existing elements from the current Resource Management Act (RMA), which is brought into this proposed new bill—these are now all going to be governed by the preceding or the initial clauses such as clause 3.

The first purpose is “to uphold te Oranga o te Taiao.” Now, that’s going to cover everything that follows. In other words, I say to the Minister, I appreciate, again, that it’s a debating point, of course. But it doesn’t matter how much existing RMA reform comes into this new tome—one that would make Thomas Aquinas weep—the very new purposes that are put at the very front of the bill, including that one around te Oranga o te Taiao, are going to affect how it is implemented. That in itself, I’m sure, is undebatable. It is a completely new concept in law.

It’s not a new concept in itself, but in law, and, as I pointed out in an earlier contribution, even the word “taiao” can be interpreted between the word “land”, which makes it much more domestic, and the word “world”. So is this legislation meaning to take the health of the world into effect? Is Greta Thunberg going to turn up tomorrow and opine on what our RMA should be? Again, it’s—

💬 Hon Scott Simpson: She’s been arrested.

She’s been arrested—that’s true. But, again, I’m being slightly facetious to illustrate the point, but it is unclear, and until it’s tested in law—so, again, the fundamental point is an appreciation of these new concepts put at the front of the bill will govern everything that follows, including any existing legislation brought across.

Mr Chair, thank you. I understand that there has been a lot of discussion about clause 3, “Purpose of this Act”, this evening already, and, of course, “to uphold te Oranga o te Taiao.” I would just restate—I think Minister Parker said this before—that there was a lot of discussion and submissions on this point. I don’t disagree that putting “te Oranga o te Taiao” here in the purpose is significant. It is a change from the Resource Management Act, and no doubt the courts will have something to say about that.

But I’m very pleased with the response that we see here in the amended bill, which both defines “te Oranga o te Taiao”, and new clause 3A sets out the means for achieving the purpose of the Act. I think they will both be very helpful mechanisms to be clear about what it is that we are wanting this bill to achieve, which is to protect the health of the natural environment and to enable the use and development of that environment.

I just advise members that a different member asking the same question does not constitute new material. I’ve been watching from my office and this debate has been going for some time, so we will be looking for new material in the very near future.

Thank you, Mr Chair, and welcome, Associate Minister for the Environment Minister Rachel Brooking, who is, in fact, one of the architects of this bill from her previous life on the Randerson panel as a resource management law expert. So we couldn’t ask for a more competent and experienced Minister in the chair tonight than the Hon Rachel Brooking, which actually creates a bit of a dilemma for me because, as I’ve mentioned to the Minister before, when I was a civil engineer trying to get consents for projects so we could deliver bridges and roads and build landfills, the Minister may well have been one of those resource management lawyers that I would have asked for advice from and, in fact, have asked to help get a resource consent under the Resource Management Act.

So I’m interested in the Minister’s interpretation about clause 4, “Tiriti o Waitangi”, and the difference between the Resource Management Act’s “have regard to” the Treaty and the Natural and Built Environment Bill’s “give effect to” the principles of the Treaty of Waitangi. So that’s any decision maker—“All persons exercising powers and performing functions and duties”.

So, Minister, could you please explain for the committee and for the people at home—relying on your previous experience and your familiarity with the Randerson report and the legislation that’s come out of it—what is the practical difference between “having regard to” as a decision maker or when exercising powers and performing functions and duties, and “giving effect to” Te Tiriti, and particularly with respect to an answer that Minister Parker provided before, where he referred to, which is in terms of the Conservation Act, the following principles of the Treaty of Waitangi as expressed by the courts and the Waitangi Tribunal: the principle of partnership, the principle of mutual benefit, and the principle of active protection? If the Minister could explain how those principles apply in giving effect to the Treaty under this legislation as opposed to having regard to the Treaty under the Resource Management Act—thank you, Minister.

This clause 4 is one of the very pivotal clauses in this massive statute, and it’s the reason that on this side of the House we want to give it the attention that I think it deserves, because this is a very significant change in policy direction from the existing legislative environment. The term “must give effect to” is a very significant change from the existing Resource Management Act, which says “take account of”. Now, in the King Salmon case, the court decided that—and I quote—“In the view of the Courts and the Waitangi Tribunal, the Treaty principles are not set”, but in the King Salmon case, the court actually said that “ ‘give effect to’ simply means ‘implement’ ”.

Now, if that is the decision of the court in King Salmon, the question I have for the Minister is why wouldn’t that term “implement” be used—the Act must implement the principles of the Treaty? Why was that word not used, rather than the words “give effect to”?

Then, further, it’s been the decision of the Waitangi Tribunal, but when considering issues relating to the principles of the Treaty, they’ve said that “In the view of the Courts and the Waitangi Tribunal, Treaty principles are not set in stone. They are constantly evolving as the Treaty is applied to particular issues and new situations.” Then we were advised in the select committee by officials that there are usually multiple ways of applying a principle and that different contexts will require different approaches. So it’s that uncertainty that is at the crux of our concern about this particular clause and the provision in it.

What I think New Zealanders want is a degree of certainty about the legislative environment, they want to know what the words mean, and they want to understand what the impacts of those words will be on their development, on their business, on their neighbourhood, on their home—all those sorts of things. So a couple of questions to the Minister: why not use the word “implement” in clause 4, instead of “give effect to”, as has been defined in King Salmon, and then how can certainty be given when the principles, we are told, both by the Waitangi Tribunal and courts and by our advisers on the committee, are evolving and will apply differently in different circumstances?

Thank you, Mr Chair. Just in the vein of the discussions that have been flowing through the vessels of both Mr Court and Mr Simpson, two issues in relation to clause 4, the first one being that the way that it’s worded says, “give effect to the principles of te Tiriti o Waitangi.” I just wanted to get some clarity whether or not there is the same interpretation given to that as section 4 of the Conservation Act, which refers to the Treaty of Waitangi, or if there’s something different—if we’re incorporating the contra proferentem rule or something of that nature—so we have some clarity around that. That would be very helpful.

The second thing is that section 4 of the Conservation Act, which this nearly mirrors, was subject to the significant Supreme Court decision and coupled with a relationship agreement, with a specific example in the Hauraki Gulf and Motutapu Island and the Ngāi Tai v Department of Conservation case. What emanated from that decision and that set of relationships was actually quite a very compromised manner in which the parties tried to do things, but, essentially, could not get things done together—the conservation department and the tribe involved in that particular decision. The concern that I have is that, again, we’ve created something in writing but there’s no real legislative guidance as to how that would be implemented. So two questions. Thank you.

I’m answering those three questions sort of together, in terms of from Simon Court, the Hon Scott Simpson, and the last speaker there, Tama Potaka. Some of the questions, I think both from Simon Court and Scott Simpson, were around, you know, what does this change mean in clause 4? Of course, it is a strengthening, and that was a very deliberate decision, and there’s also other mechanisms in the bill to help strengthen what was in the Resource Management Act (RMA). So the other changes go to the people who will be sitting on the regional planning committees, the strengthening of the Mana Whakahono ā Rohe, and, of course, the creation of the National Māori Entity as a monitoring device.

So those different measures support the strengthening of the Treaty clause. And the way the RMA clause is written—for many years, there were no cases whereby a decision was made that something could or couldn’t happen because of the Treaty principles or, in fact, the stronger words in the RMA at section 6(e) or section 7(a), kaitiakitanga. So those are all differences.

The Hon Scott Simpson asked why not use the word “implement”. Of course, as the last speaker just said, the Conservation Act does use these words, “give effect to”, and that is a known phrase. I acknowledge the Ngāi Tai decision and what that means in terms of the Conservation Act. But it is also the point that we want it to be stronger, and this is a stronger clause.

In terms of the definition, Te Titiri is defined, and it refers back to section 2 of the Treaty of Waitangi Act 1975. So it’s certainly not meant to be any change there in the substantive meaning of what the Treaty is; it’s just to reflect the language that is currently more commonplace.

I move, That the question be now put.

Thank you very much, Mr Chair. I want to turn now to another significant clause in Part 1, which relates to clause 5 “System outcomes”. It’s in this clause where the whole hierarchy of outcomes is defined.

Now, at the Environment Committee, we heard, again, a lot of submissions on the prioritisation of outcomes, whether there should be a hierarchy of outcomes, and, if so, what should be the determining factors as to that hierarchy, and which of those outcomes should have precedence over another where there was conflict.

So my questions to the Minister in the chair relate to all of clause 5. It’s quite extensive in its provision. It runs quite clearly through a range of issues that are to be considered in terms of system outcomes. But what we still don’t have is the kind of clarity, I think, that people will be looking for in terms of what the issues that are going to be given higher degree of precedence when making decisions as opposed to those that won’t be.

So, Minister, if you could enlighten the committee of the whole House as to the Government’s thinking on clause 5, why clause 5 has been adopted in the manner that it has, and why the hierarchy of system outcomes as set out in clause 5 has been established and what the principle and rationale behind that is or was, please.

I move, That the question be now put.

Thank you, Mr Chair. I welcome Rachel Brooking to the chair, the Minister. It’s great to get her opinion on a few things. Particularly, I would like to turn to clause 5(9), “In order to promote the well-being of both present and future generations, highly productive land is protected—(a) for use in land-based primary production; and (b) from inappropriate subdivision, use, and development.”

What is “inappropriate”, in that sense? Somebody’s appropriate subdivision on a piece of land is someone else’s inappropriate subdivision on that land. How is that actually defined? I think I’d be really interested to hear that.

I’d also go to clause 6A, “Procedural principles”, while I’m on my feet. Under clause 6A(1), “All persons exercising powers and performing functions and duties under this Act must take all practical steps—(a) to use timely, efficient, consistent, and cost-effective processes that are proportionate to the functions, powers, and duties being exercised [and] performed; and (b) to promote collaboration between or among local authorities, communities, and Māori on their common resource management issues.”

Now, I don’t understand that last bit, “Māori”. It’s not local Māori; it’s Māori. Is it the local iwi or the local hapū? Because if we go back to clause 4, we have to take account of the Treaty or Te Tiriti. The Treaty was signed by chiefs of hapū, so surely it would be a hapū that would need to be referenced in this bill, but it’s not; it’s Māori. That could be just someone who identifies as Māori. How is that defined? I don’t understand that. Local communities, or if the words “local Māori” might have been there, that might make sense. But to have just “Māori” I don’t think is helpful. Is that just a drafting error or is “local authorities” meant to be “local authorities, local communities, and local Māori on their common resource management issues”?

So it’d be really helpful if we could get some enlightenment on that, because it’s a really important piece of legislation and to get all these terms all mixed up, I think, is really quite unhelpful.

💬 Hon Scott Simpson: No consistency.

No—no consistency at all. So I look forward to hearing some enlightenment on that point.

Thank you, Mr Chair. Firstly, I just want to open by offering a perspective on the way that I understand Māori have been treated by local government, by central government, when it comes to developments around infrastructure, whether it’s waste-water treatment plants being built in front of a marae in the Manukau Harbour in Auckland or Governments taking Māori-owned land under the Public Works Act as an easier option than negotiating with other private landowners.

We heard at the Environment Committee a number of concerns raised by representatives of iwi, hapū, and other Māori-based organisations about that concern and how they wanted to make sure that they were not treated unfairly when it came to resource management decisions, decisions about land use, planning, and so on in the future, and that their rights be protected in any legislation that reformed the Resource Management Act. The ACT Party would absolutely support their private property rights and their right to be able to negotiate fairly with the Crown or local government or any other public entity that seeks to acquire land in order to deliver infrastructure. So we can understand there’s some really powerful historical motivations that probably feel quite visceral and current to iwi, hapū, in particular, and individual marae who have suffered from that kind of treatment at the hands of Government in the past.

But what I don’t understand, and what the ACT Party cannot comprehend, is how those wrongs have then been translated into what appear to be general principles for decision makers to give effect to the Treaty of Waitangi, and then to take account of a concept known as mātauranga Māori, which, if you look at te reo Māori dictionary, simply describes it as “knowledge”. If you look at other places where mātauranga Māori is defined, it’s defined as “traditional Māori knowledge”. In other places it also includes tikanga, kawa, and kaitiakitanga. So what does it actually mean, this term “mātauranga Māori”?

When I asked the select committee, firstly, to seek advice from officials—can we please have some advice about what a definition might mean, what this term might refer to?—that was declined by the committee, by the majority. Then when I proposed to include a definition of it in the bill, that was also declined by the majority of the committee. Of course, that’s parliamentary democracy. That’s what we do. So because the term hasn’t been defined in the bill, and because it creates an uncertainty about what the effect is, requiring decision makers in terms of clause 5(10), how are we to treat this?

Minister, the ACT Party has proposed, in a Supplementary Order Paper, that we could remove some of the confusion this causes by simply removing references in the bill to “mātauranga Māori”. Because in the absence of a definition, and with so many explanations for it crowding out what could be a sensible definition like simply the word “knowledge”, ACT believes we should remove it entirely.

But I also want to acknowledge that there is a place for indigenous knowledge about plants, about natural systems. I mean, imagine, for example, if we had an oral history available to us to describe what it was like, the events of that night that an enormous tsunami hit the East Coast of the North Island in about 1400 AD and engulfed the communities, those double-hulled waka sailing craft builders and all of those other people with that traditional knowledge of celestial navigation who came to New Zealand from the Pacific Islands. Imagine if we had an oral tradition that we could compare against the geological record of where that tsunami reached in the hills near Te Puke, so we could better understand what it was that happened that day and maybe inform us about where we should and shouldn’t be building communities presently. If that’s what mātauranga Māori means, then it would be very helpful to have a definition of that type in the bill.

But I want to give you an example about how confusing it is, so I hope the Chair will extend to me the privilege of an additional few minutes, because I’ve done some research—

Order! The member’s time is complete.

Thank you, Mr Chair. Trying to answer a number of those questions. If we go back to the Hon Scott Simpson about the system outcomes in clause 5, there are a large number of them, but I would, again, refer back to new clause 3A, “Means for achieving purpose of Act”. So the system outcomes are to be provided for at the national level through the national planning framework, the NPF, and at the regional level and plans. Of course, then we also have new clause 5A, “Providing for outcomes”, and some useful clauses at clause 6 as well, that say things like decision making “not to prefer a use because it is either new or existing use when considering how the outcomes are to be best achieved”.

So those outcomes will not always be in agreement with each other. Where they are in agreement with each other, then both should be achieved. If there does have to be some sort of hierarchy, then that needs to be provided for, consistent with the purpose of the Act, which provides some, and then in the NPF and in the plans.

There were some other comments there about the use of the word “inappropriate”. That’s a term that’s come from the Resource Management Act. Also about the use of the terms “hapū” and “iwi” versus “Māori”—you will find that it is purposefully used throughout the bill where it refers to “iwi” and “hapū”. I’m not sure if Scott Simpson is saying that a Government bill should not refer to iwi at all and only to hapū, because that is who the Treaty was signed with, which he said—

💬 Hon Scott Simpson: It was Stuart Smith.

—and that that would—oh, did I say Scott Simpson? Sorry, I meant Stuart Smith. I was looking at Stuart Smith. My apologies. I know that you’re very different.

So, as I was saying, “Māori” is used for the more general roles which aren’t linked to that ancestral land, say, in clause 6(2) versus clause 6A(1)(b), which Stuart Smith referred to.

In terms of mātauranga, I think it’s not that difficult, really, when we look at the clause that the member was referring to, for that to be taken into account. I don’t think it’s something that will cause problems in interpreting it. And the member talked about how his definitions include knowledge, but it might be wider, and he was starting to tell some stories. Both of those things are good, and they were interesting stories, Mr Court.

Simon Court was also talking about private property rights, and, I have to say, I’m a little bit confused on this issue, because, of course, many iwi and hapū and whānau don’t have the private property land rights any more, for historical reasons, and that’s some of the reason why we now have these Treaty clauses in our legislation: to right those wrongs.

I move, That the question be now put.

The question is that the Minister’s tabled amendments to clauses 3A, 5, and 7 on Supplementary Order Paper 389 be agreed to.

The question is that Simon Court’s amendments to Part 1 of Supplementary Order Paper 389, set out on Supplementary Order Paper 392, be agreed to.

The question is that the Minister’s amendments to Part 1 set out on Supplementary Order Paper 389 as amended be agreed to.

The question is that Simon Court’s amendment to the definition of “infrastructure” in clause 7(1) set out on Supplementary Order Paper 386 be agreed to.