Natural and Built Environment Bill

Members, we come now to Part 2A. This is the debate on clauses 30A to 30ZZM. The question is that Part 2A stand part.

Well, they say patience is a virtue, so we have arrived eventually. As I indicated previously—and erroneously—under a previous part, I do want to spend a few minutes just teasing out clauses 30A through to about 30F, I think. These clauses relate specifically to the functions and powers of the Minister for the Environment.

Now, it goes without saying that for a piece of legislation of this length, breadth, and depth, that the role of Minister for the Environment is going to be very significant in terms of the day-to-day functional operation of this entire statute—not only the natural and built environment statute but also the spatial planning statute, and then eventually the adaptation piece, which we have yet to see. But in this Part 2A, we see that the Minister for the Environment is granted extraordinary powers to be involved at a very intimate and intricate level in almost every single decision-making process.

That is part of the framework of the legislation. Particularly, for instance, in clause 30B, where the “Minister for Environment may investigate and make recommendations in respect of local authorities and regional planning committees”, and then there is a series of specific instances cited in clause 30B. Clause 30C relates to the “Minister for Environment may appoint substitute for local authority”—again, extensive powers in that area. In clause 30D, the “Minister for Environment may direct preparation of plan change or variation”—again, an opportunity to be intimately involved in the process, the detail, and the work. Clause 30E: “Ministers may direct that review of a plan be undertaken”, so even when a plan has been made and established and set in place, the Minister may at his or her discretion instruct a review be undertaken. Clause 30F gives the Minister for the Environment the ability to “direct other action that may be taken”—again, some wide and extensive powers there.

So what I guess I’m getting at with the reference to all these particular clauses is that the particular Minister of the day is going to have enormous influence and power to intervene, in a way that may be helpful but similarly may be completely unhelpful. And what concerns me most of all is the potential for a Minister—any given Minister of any particular political flavour, colour, or hue—to bring to this legislation their own political and eco-political agenda in a way that means that they can influence unduly the process that this legislation seeks to put in place. So my question, really, to the Minister in the chair is what guarantees, what assurances, what commitments can she make on behalf of the current Government that these very extensive powers that have been assigned and delegated to the particular Minister for the Environment of the day are going to give certainty, are going to give confidence to New Zealanders who want to use this legislation? How are they going to know that, for instance, in some Government department, this current Government—I mean, we’ve had multiple Ministers in some ministries; three, four, five Ministers in some of those—

💬 Simeon Brown: Minister of Transport.

Minister of Transport’s a good one—how many Ministers of Transport have they had in a relatively short period of time? What would happen, what would be the practical implications of a merry-go-round of Ministers—a merry-go-round of Ministers of the sort that we’ve seen in other portfolios, if that applied to the Minister for the Environment—

💬 Simeon Brown: Resource management issue.

It is a resource management issue. My colleague Simeon Brown makes a very good point. So extensive, wide-ranging, and enormous power given to the Minister for the Environment. Some might say that we have a steady hand in that portfolio at the moment, but that’s not always necessarily going to be the case. I can think back to Marian Hobbs, I think, who at one stage was the Minister for the Environment in a previous Labour administration—I would not have wanted her, for instance, to have the ability to have the powers and influence that are going to be extended under this legislation.

I will make a brief reply to this issue, and then I think I will swap out of the chair. Yes, because we were just talking about the safe pair of hands—the Hon Scott Simpson was saying—that we have in our current Minister for the Environment, the Hon David Parker, who has just returned to the Chamber. And—

💬 Hon Scott Simpson: I don’t think it’s proper to mention the presence or otherwise of a Minister or a member.

I can say he’s in the Chamber? Apologies for that. So the question is around what are the protections, that a Minister won’t go rogue with these powers. Of course, some of these clauses do provide caveats, such as in clause 30E that the Hon Scott Simpson referred to, about the “Ministers made direct that review of a plan be undertaken”. To do that, under clause 30E(3), “The Minister must provide reasons why they are directing [that a review be undertaken] and make their reasons publicly available; and prepare a statement of expectations … and consult any relevant ministers or any other person”. Further to that, I’d say that of course the purpose of the Act will apply, and that is to, of course, uphold te Oranga o te Taiao.

CHAIRPERSON (Greg O’Connor): Simon Court.

I’m still here.

CHAIRPERSON (Greg O’Connor): You are still here. I’ve noticed that. Simon Court.

Thank you, Mr Chair. I’m interested if the Minister could just give an explanation of how she sees the powers being used, particularly clause 30C, “Minister for Environment may appoint substitute for local authority”. Now, the Minister of Local Government already has the power to appoint commissioners to investigate, see whether local authorities are fulfilling their obligations under the Local Government Act. But this also allows another Minister—another Cabinet Minister—to appoint a substitute for a local authority. So how is this power to be exercised and balanced against, potentially, the obligations of a local council to perform its functions, duties under the Local Government Act, versus what’s described here? What could they possibly do which would trigger a Minister to appoint a substitute?

I mean, it could be Auckland Council. Maybe they decided not to follow the Government’s process for changing their plan to allow for three units of three storeys everywhere, like that Resource Management (Enabling Housing Supply and Other Matters) Act that was passed by National and Labour unanimously last year—it was only with the objection of ACT to that bill. Maybe Auckland Council, in the future, doesn’t want to adopt the National Planning Framework and all of the instruments that come with it because they feel they’ve already done their unitary plan. They spent four or five years consulting on the unitary plan. What Auckland Council said when they came to the Environment Committee was, “Please don’t force us to do a whole other planning exercise. Please don’t force us to get involved in these regional planning committees and have iwi co-governance appointees and have to go through the whole process again—it cost us tens of millions of dollars.”

Auckland Unitary Plan was consulted on. A lot of people were able to make objections. They had an independent hearings panel. The hearings panel recommended that the draft plan be amended, and then it was sent to Auckland Council’s elected members—the full council—to be voted on. While some people continued to take appeals about particular matters, the Auckland Unitary Plan was done at that point, and it enabled infrastructure operators, if they had the budget to, to then work out where to plan transport, pipes, where to upgrade the waste-water network, for example.

So I can imagine that if a Minister for Environment who was unhappy with a council that had failed to follow the planning directions set out in this bill—because they might say, “Hey, we’ve just spent half a decade doing this and we’ve only had it operating for six or seven years. Minister, would you leave us alone to get on with planning and building our city?” I could see how a Minister who had invested so much in this piece of legislation might actually want to direct them to do it his way.

So to the Minister in the chair, what is the criteria where a Minister for Environment may appoint a substitute for a local authority? And how does that compare to the criteria that a Minister for Local Government might use?

Thank you, Mr Chair. Well, of course, that distinction is that it has to relate to this Act. And as for the other points, I think the member answered his own question.

Yes, fresh from those ambiguities we heard in Part 1 and the brown-washing of Māori terms through this legislation, I come to Part 2A, Subpart 5 of the proposed legislation, clauses 30ZE to 30ZT, “National Māori Entity”, which I have read through and become quite enamoured with, but actually am disturbed by the criteria and a few other things of this.

This Subpart 5 is a real departure from clause 4, to give effect to the principles of Te Tiriti o Waitangi, because what it actually does is sets up a pan-tribal entity that is not representative of iwi and hapū—and they might get some suggestions from iwi and hapū. But that pan-tribal entity, Government-appointed, has a real ability to cut against and operate against the kawa, the tikanga, and the mana that the proposed legislation intends to protect, because it’s a pan-tribal entity that has its own views.

So I’m quite disappointed by the criteria in clause 30ZM(3), when we have a purpose of the legislation, back in clause 3, talking about te Oranga o te Taiao and the health and wellbeing of the natural environment, but I see no mention of health in any of these paragraphs (a) through to (f) of 30ZM(3). So I start wondering whether or not the actual appointment criteria—and there’s also no mention of development expertise in here, given that it’s a decision-making framework that we’re trying to establish—for appointing persons recommended by the nominating committee to the Minister does not link back into the purpose and the health and wellbeing and those Māori terms that we referred to—kawa, tikanga, mātauranga Māori, mana—I don’t know if it’s atua, tipuna, whenua, wāhine, or moana—there’s an inconsistency there.

What I wanted to ask the Minister for the Environment is: what commitments can the Minister give that we don’t have a Māori entity set up—it’s actually a Government entity that’s got a Māori stamp on it—to cut against the kawa and the mana and the tikanga of various iwi and hapū? At the moment, this Māori entity sounds like a group of resource management sycophants with no development expertise. Kia ora.

Ah, the vexed issue of Māori politics coming out from the National Party. This issue is—there are different views within Māoridom, and Māoridom are not at one in respect of who should speak for Māori in these issues. There are some people who say that the post - Treaty settlement entities are the only people who should speak with iwi in an area. There are some people who say that it should be iwi organisations who speak for Māori within an area. There are some people who say that in some areas it’s not iwi; it’s hapū—subgroups of iwi. Then there are other groupings like the Māori Council, the Federation of Māori Authorities, who say that there are other Māori groupings, including Māori land - owning groupings and fractioning out Māori trusts and the like who own land assets, and other organisations who have a statutory basis like the Māori Council who should have voice.

On the issue of how you put together regional planning committees, that issue went to the Waitangi Tribunal because there were some who said that the way in which we were putting those regional planning committees together was wrong. The Waitangi Tribunal said that, although they would have liked 50-50 co-governance, they thought the Government was entitled to land it where we were. They further said that the primary group that you should be dealing with generally is iwi or hapū, but they also said that there are occasions when there are representative groupings of Māori, other than iwi and hapū, who should be listened to. So how do you resolve that? Well, to a certain extent, you’ve got to trust Māori to resolve it, and the legislation, effectively, creates mechanisms to allow that to happen, mechanisms to help Māori resolve those disagreements where they have disagreements locally, and time lines by which if those matters are not resolved by Māori, the system launches forward anyway, because the system does have to proceed.

In terms of the National Māori Entity, the support for that, essentially, divides along lines of people who say that it’s only iwi, hapū who should have a voice, and people who say, “No, Federation of Māori Authorities, Māori land ownership trusts, and the likes of the Māori Council, on occasion, should have a voice.” So faced with that choice, the Government, having heard the submissions from both of those viewpoints at the Environment Committee decided we would keep the Māori entity, in part because I can foresee a possibility that, if there are inefficiencies that develop in the way in which Māori are coalescing around how they participate in the new legislation, it might be helpful to have someone like the National Māori Entity both helping the Crown but also help Māori sort those issues out locally. Now, I say that with trepidation because the iwi hapū construct will jump down my throat, and say, “No, we never want to be told what to do.” But I also know that iwi hapū is not the only perspective to be taken into account here, and that’s why this institution has survived. I think it will help, not hinder.

So to carry on that conversation from a different perspective, if we look at clause 30Q(3) on page 95, “In preparing [the] statement of community outcomes, the territorial authority is subject to the general obligations on decision making”, but over the page it said it “need not ensure that the statement complies with the national planning framework or any regulation other than planning document under this Act or the Spatial Planning Act 2022.”

So my question really is kind of on the same topic because I think I mentioned in the second reading that there were a lot of issues around local voice and how they got transferred on the way up. So I am just a bit concerned about this clause in that the community might actually organise something that doesn’t fit with other parts of this piece of legislation and it creates some tension between everybody.

Thank you to Barbara Kuriger for that question—very good question. The Environment Committee has altered the legislation to make it clearer that statements of community outcome can come up; it can well up from councils who tell the regional planning committee what they think the plan should provide for in terms of the outcomes that they want.

It’s not intended that there is an obligation on the district council, for example, putting forward their statement of community expectations that they have to go through it in absolutely fine detail and, effectively, write the plan for the regional planning committee. That would be a duplication of effort.

Accordingly, we’re not going to impose upon them the duty to dot every “i” and cross every “t” when it comes to the national planning framework. We’re going to say what they want and the level of detail that they want to come out of the plan to meet the expectations of their community, as expressed by the elected councillors in that district. So if we were to go—and it’s a fair question to ask: why don’t they have to meet the details of the national planning framework? But that’s the answer. It’s not expected to necessarily be that detailed.

Oh, thank you, Mr Chair. I want to turn to clause 30I “Delegation of functions by Ministers”, and it says, (1), “A Minister of the Crown may, generally or particularly, delegate to the chief executive of that Minister’s department any of the Minister’s powers, functions, or duties under this Act.”, and, (2), “A delegation made under this section must comply with clause 5 of Schedule 6 of the Public Service Act 2020.” Then it goes to (3), “However, the following functions or duties must not be delegated”—and I won’t go through those. Then, (4) says that the “chief executive may, in accordance with clauses 2 and 3 of Schedule 6 of the Public Service Act 2020, subdelegate any function, power, or duty delegated to them by a Minister under clause 5 of that schedule.” So my question is: why is that power there? If it is thought or deemed appropriate for the chief executive to carry those powers, why isn’t that expressly put in the legislation in the first place, and why, then, when the chief executive has got that, do they have the power to then subdelegate that further down? Because you could in theory have the lowest ranking person in that Government department be the person with the responsibility. And I don’t know that this House—

💬 Hon Scott Simpson: Effectively, Ministerial responsibilities.

Well, yes, you know, it doesn’t seem to be that responsible, quite frankly. And there may be a very good reason, and I’m dying to hear it—and I just see the Minister for the Environment’s storing up his energy, ready to spring to his feet the moment I start to even slowly move to take my seat again. But I’m looking forward to the answer, thank you.

Thank you, Madam Chair. We’re making good progress. Well, I’m going to be at about page 94 of the 971 pages; so we’re about 10 percent into it. So we’re making good progress.

I want to ask the Minister about clause 30P—matters for which regional councils have responsibility. There’s a pretty good and, I think, reasonably self-explanatory list relating to the use of land, coastal marine areas, and so forth. But I am particularly interested in 30P(b)(vii), where there has been the inclusion there of responsibility for the emission of noise and mitigating their effects, to include the emission of noise and light and mitigating their effect. I’m interested to know from the Minister what the rationale was for including light. Was does light mean? Who measures that? Who decides?

I come from an area of the country where a portion of my electorate around the Kūaotunu peninsular wants to institute a dark-sky reserve. I’m wondering whether this provision is one that means the Waikato Regional Council will be able to assist in using this clause to help facilitate a dark-sky reserve at the Kūaotunu peninsular. But, in more general terms, if the Minister could cast some light on the reason for the inclusion of light, please.

Could the member assist me by just referring again to the clause number?

💬 Hon Scott Simpson: It’s page 94, clause 30P(b)(vii).

While the Minister is seeking enlightenment, I would just like to come back to a previous question, which I asked the previous Minister that was in the chair, the Hon Rachel Brooking, around—Minister, while you’re looking for that beam of light, under what conditions would the Minister for the Environment appoint a substitute for a local authority, and how is that different or how does that interact with the conditions under which a Minister of Local Government would, say, appoint a commissioner?

I call on the Minister the Hon Dr David—David Parker. I promoted him to doctor!

I’m a mere bachelor! Clause 30P(b)(vii), the emission of noise and light and their effects—that’s actually in relation to the coastal marine area, in conjunction with the Minister of Conservation. So I think that’s limited to the coastal marine area, rather than land more generally. Officials are nodding that—I’ve that wrong? It’s all land, OK.

Well, it’s an example of it. I can tell you an example of a recent letter than I’ve had from a member of the public concerned about flicker from the effect of windmills causing light to flicker like a strobe effect. But beyond that, I’ll take advice from officials and get back to the member. In respect of the question that the member Simon Court has repeated, I repeat the answer of the Hon Rachel Brooking that the Local Government Act sets out the conditions upon which a person can be put into a sister council or to replace them and, under the Resource Management Act, that function sits with the Minister for the Environment under the Resource Management Act, or, in this case, under its replacement Act, the Natural and Built Environment Act. Those are separate functions and separate decision-making criteria.

So I just want to follow up on this question of light, because I do think it’s quite an interesting one and accept that this is a clause that relates to the coastal marine area. But, of course, in an electorate like mine, the electoral boundaries are about 500 kilometres of coast. So this potential for being able to control the emission of light and mitigating the effect of light from the coastal marine area potentially upon coastal land, or an area of coastal land, is quite significant and of interest to me and my constituents.

💬 Simon Watts: Is that where the sun rises?

Simon Watts wants to know if it’s where the sun rises. Well—

💬 Simon Watts: The beautiful Coromandel.

The beautiful Coromandel hasn’t seen much sun lately. That’s been part of the problem. We haven’t seen much sun. But I am interested to just tease that out a bit, because the example that the Minister gave about a windmill—is that maybe in relation to an offshore windmill? Would it be, for instance, there’s a lighthouse on Cuvier Island? Some people might decide that the light from the lighthouse is causing some grief.

But I’m interested to know, because it’s been an addition. The original subclause, 644(b)(vii), didn’t have the “and light” in, but “light” has been now included. So I’m still keen for the Minister to give us a little more “light” on the situation.

I call on the Minister, the Hon Dr David Parker.

Again? I’m advised by officials that the power is necessary for both territorial authorities in respect of land—that’s covered by clause 30R(b). In respect of the coastal marine area, those functions are exercised by the Minister of Conservation. So it’s just consistency across both of those domains.

I just wanted to follow up the professorial comments regarding the vexed issue of Māori politics but in relation to Subpart 5 and the interaction that that has with clause 5(10) and clause 6(2), because the comment that was made is that there was an accommodation for iwi, corporations, trusts, and every other man and his Māori through the National Māori Entity and the establishment of that. That’s already drawn the ire of the Māori Freshwater Forum leaders. But the understanding when you interpret between clause 30 and the National Māori Entity, and you revert back to clauses 3, 4, 5, and 6(2)—my understanding from the materials was there was a commitment to uphold the kawa and mana and tikanga of iwi and hapū. But, now, we’re told, actually, the National Māori Entity is more about accommodating every man and his Māori. So I’d like to get a commitment from the Minister for the Environment that, actually, we are focused on the kawa and mana of iwi and hapū, as espoused in those early clauses in Part 1, rather than some pan-tribal notion of what kawa and tikanga happen to be.

I believe I addressed that in my earlier comments.

Well, thank you, Madam Chair. Minister for the Environment, in 30T, “Minister of Conservation has certain powers of local authority”, “(1) The Minister of Conservation—(a) has, in respect of the coastal marine areas of the Kermadec Islands, the Snares Islands, the Bounty Islands, the Antipodes Islands, the Auckland Islands, Campbell Island, and the islands adjacent to Campbell Island, the functions, powers, and duties that a regional council would have under this Act if those coastal marine areas were within the region of that regional council”. Firstly, is that the case under the current legislation? Secondly, would this have any impact on a Kermadec sanctuary when the Government brings that bill to the House? Yeah, that’d be great.

Yes, it is the case. It’s found at section 31A of the Resource Management Act—it’s a carry-over. There is no regional council that covers those areas, therefore the regional council functions that affect those uninhabited islands fall to the Department of Conservation. And in respect of the Kermadecs, were there to be a marine reserve in the areas around the Kermadecs, I don’t think that would affect the outcome of that.

I move, That the question be now put.

Thank you, Madam Chair. Minister, I just want to come back to the functions of regional planning committees—clause 30N—and the power for the regional planning committee to set any environmental limit and interim limit for a region that the national planning framework requires the plan to prescribe.

Minister, I just want to ask you: how is it fair and reasonable that an unelected, only appointed planning committee, which includes not just, potentially, appointees from local council—and not necessarily elected members; they could be officials, they could be technocrats, plus a minimum of two iwi Māori. How is it fair and reasonable that an unelected planning committee should be allowed to set environmental limits that affect productive use of land in regions, particularly where primary production, where farming, is the main activity, or even in urban environments, where manufacturing, for example, and using water, for example, in an urban environment, or even having stormwater discharging off large commercial industrial sites, has an effect on receiving waters, receiving environments? Those are currently consented. Those consents are issued by local councils, and those local councils which set rules for their region are democratically elected—at least, their governing body is.

So how is it fair and reasonable that regional planning committees will be setting environmental limits and that the people who live in those regions which depend on being able to use their environment and who could potentially agree on what effect on a common resource they’re prepared to accept won’t be able to do that? That power will be taken out of their hands.

Thank you, Madam Chair. The scheme of this system is that you go down from over 100 plans to 16, and they are put together regionally. Once you take that decision to put them together regionally—and we think there are good reasons to do that, relating to the quality of the plans and the way in which you can approach planning regionally in respect of the issues that are identified through a spatial strategy, flowing through to Natural and Built Environment Act plans; it makes good sense to do it regionally.

Once you do it regionally, you don’t have any choice but to put it together through a body that is formed from the constituent organisations, and we’ve been through the fact that the formation of those committees, which we’ve spoken to in the discussion on the earlier part, is left to the local councils, working with local Māori interests. If they can’t agree, the decision is taken by the Local Government Commission. Every council has a right to appoint at least one person to that committee, and beyond that it’s up to the locals to sort out. There’s a minimum of two Māori representatives, and if they can’t agree, the Local Government Commission does it.

Now, there were some differing viewpoints around that at local government. The local government steering group that we put together, who we’ve worked with extensively, who provided very good input, was concerned to make sure that that didn’t mean there was a loss of democratic input, which is why the statements of community expectation are provided for and strengthened in the bill.

Thank you, Madam Chair. I just want to go to clause 30ZB and ask the Minister if a local authority or regional planning committee receives a request for joint management, if there’s something that they see goes across border—must firstly “notify the Minister”, in subclause (1)(a), and then “(b) satisfy itself that each possible party to the proposed … agreement” does certain things—given the geography of our country and the 16 regional planning committees that the Minister talked about before, how often does the Minister envisage having a Minister having requests, in terms of people or organisations and groups wanting to cross borders? I’m just questioning whether it’s seen that it may become an onerous task or maybe an occasional happening.

Thank you very much, Madam Chair. It’s a pleasure to make a contribution in regards to this bill. I’m interested in particular around clause 30P, “Matters for which regional councils responsible”. In regards to that clause, in particular, 30P(b)(iv), which is the aspects around discharges of water into water, which is relevant in the context in terms of how this clause, which is in regards to matters for which local authorities are responsible. I’m interested in the Minister’s contribution in regards to how this interacts with the legislation which actually has quite a lot of similarities to this, the three waters legislation, and the Water Services Entities Act in particular. But I’m interested in regards to how that clause interacts with that other aspect of legislation, in regards to this saying that these are matters for which regional councils are responsible for, but obviously the water services entities now have responsibility for particular aspects around the discharge of water into water.

Further to that, subclause 30P(e)(i)(B), which relates to maintaining and enhancing the quality of water in the water body, again has a significant overlay in regards to the water services entities roles. I guess the question there is around what the alignment is between these two aspects of the legislation that have to be considered, in terms of the fact that the water services entities actually will be taking responsibility for that, which are not regional councils. And where’s the demarcation line in regards to those accountabilities and responsibilities lie—in regards to that?

The enhancing of water quality in the water body will no doubt become part of the responsibility of Taumata Arowai, which is the water quality regulator, as well. Again, not the role of regional councils. No doubt, you know, through the process that consideration would have been made, but I’m interested around some clarity in that regard. Thank you.

In respect of the question around joint management agreements, it’s similar to the provisions found in the Resource Management Act at sections 36B and 36E, so it’s a carry-over of that—or similar to it.

In respect of the question that Simon Watts has just asked around clause 30P of the bill—soon to be section 30P of the Act—discharges of sewage, for example, or stormwater are required to have a Resource Management Act consent now; in the future, they will require a Natural and Built Environment Act consent for that discharge. So there’s no change to that.

In respect of the interface with the regulator, the regulator can set minimum standards for the drinking water that comes out of a tap, and they will, but the permit to extract the water from a river, for example, that might then be treated to a standard that comes out of a tap has always been dealt with under the Resource Management Act and will continue to be dealt with under the replacement legislation.

Thank you, Madam Chair. Another water question. Subpart 7, which is at the end of Part 2A, deals with the establishment and role of the Freshwater Working Group—clause 30ZZI, page 117 of the bill and following. That group has got to be established and has got to report back, under the bill, to the Minister not later than 31 October 2024. The Government established the Kāhui Wai Māori group to work on fresh water in 2018 to initiate a wider conversation with Māori. How does the Freshwater Working Group differ from Kāhui Wai Māori, or will it build on the work of Kāhui Wai Māori group, and has the Minister and the Government done any work to actually establish the Freshwater Working Group already? There’s been a lot of work that’s been done before the bill passes, in terms of the National Planning Framework, and I just wondered, in terms of the quite compressed time frame to have that conversation on freshwater allocation with iwi and hapū at the regional and local level, what work has been done already to get that group established, going, and how it relates to Kāhui Wai Māori?

Kāhui Wai Māori was largely dealing with water quality issues that were landed during the last Parliament, through the changes to the National Policy Statement on Freshwater Management, the new national environmental standard, and some regulations that were passed at the same time, as well as some amendments to the Resource Management Act, which changed the process for the creation of water plans. So that group is, if you like, functus officio—doesn’t do anything now; it’s finished its job, largely.

This grouping here, again, there are viewpoints of some within Māoridom that this should be only freshwater iwi and hapū. It seems to me that that’s a pretty narrow view of the interests that have to be considered. I think, if you were coming up with a fair allocation methodology for water, you would have to consider the interests of the likes of Māori land owner groups. There hasn’t been much preparatory work gone into the creation of this group; although, I intend in the next little while to write to people and say, “Look, can you start forming this advisory group.” It is a working group. It doesn’t have determinative powers but it does set up a process that obliges the Government to actually deal with these long outstanding issues and try and bring them some time to a conclusion. It has a number of stages in the process, and, in the end, subject to there being no national direction to the contrary—and by that time, a future Government of whatever persuasion might have some further national direction on the issue—but in the absence of that additional national direction, the decision would be left to the regional planning committee or a subcommittee of that regional planning committee to make the final determination as to what the plan would change.

What the effect of this is to actually knock over “first in, first served” as being, essentially, the way in which water is allocated. That was good historically. I know people are critical of “first in, first served”. When water was ample and there was more than enough to go around, who did you serve it up to but the person who asked, and which order did you serve it up? You gave it to the person who asked first, because there’s no competition for the water. That’s “first in, first served”; it just no longer works and has economically inefficient outcomes to the detriment of the New Zealand economy, as well as unfair outcomes to the detriment of people who haven’t got those historic water entitlements and perhaps didn’t have the ability to use water, because they lacked a capital base to develop their land. We need to work those issues through in the future as a country. This isn’t the end of that process, but it does create a process that will come to an end.

Thank you very much, Madam Chair. Minister, I want to ask you about Mana Whakahono ā Rohe—beginning on page 109. My question really goes to the potential scenario of different hapū and iwi with overlapping areas of interest. Let’s say in a scenario, one hapū or iwi might wish to set up a Mana Whakahono ā Rohe. That might go through a period of time—some months maybe—and I note that participating authorities must conclude a Mana Whakahono ā Rohe not later than 12 months after the date in which the invitation was received or within any other period agreed by all the participating authorities.

My question is: what happens if that goes through a number of months, then, say, another hapū or iwi with an overlapping area of interest decides to set up their own one, and then, if we proceed through this, they cannot come to an agreement? I note clause 30ZZD, “Resolution of disputes in course of negotiations” in which participating authorities choose a binding or non-binding process involving an arbitrator or mediator and that they can’t resolve it, then they may individually or jointly seek the assistance of the Minister. I’m curious why there is no timing on when the Minister needs to make a decision on whether to appoint and meet the costs of a Crown facilitator and direct the participating authority to use a specified dispute resolution process for that purpose.

But in addition to that, I note that clause 30ZZE specifically talks about what happens when the disputing parties have an overlapping area of interest and do not wish to work collectively on developing a Mana Whakahono ā Rohe arrangement. I note that the parties to the dispute must attend a hui facilitated by an independent person appointed by the Māori Land Court and if a dispute remains unresolved, then the Chief Judge of the Māori Land Court must make a final determination of the matter. And I note under clause 30ZZF that timing has been given there and that once proceedings commence they must be commenced not later than two months after the date of the hui referred to above.

So my question is: how long could this entire process take and why is there not any legislative requirement for timing specified in respect of the Minister’s decision to require that a Crown facilitator be appointed and for parties to the dispute to attend a hui? It looks, by my reading of this, that it could take a very, very long time before matters are resolved potentially going through the mechanisms that are specified in this piece of legislation.

Thank you, Madam Chair. The member will see that underneath the end of all of these clauses there’s a reference to “1991 No 69 s 58P”, looking at, for example, clause 30ZZ to which the member referred. That’s the reference to the same provision in the Resource Management Act. Those provisions were introduced by the prior National-ACT Government, with the support of the Māori Party, in order to try and actually create some practical mechanisms to make relationships between councils and Māori work better, and they’re carried on into the new legislation. There are sometimes time frames. For example, clause 30ZZA sets out the time frame for settling Mana Whakahono ā Rohe agreements and it says that “If an invitation is initiated under section 30ZY(1), the participating authorities must conclude a Mana Whakahono ā Rohe (a) not later than 12 months after the date … [when] the invitation is received; or (b) within any other period agreed by … the participating authorities.” So there are mechanisms to bring these things to a head.

I think one of the great improvements in this legislation over the current legislation actually relates to who you should have to notify in respect of a notified consent. That’s considered in a later part of the legislation, but, essentially, currently there is a non-codified list maintained by Te Puni Kōkiri. One of the frustrations that councils write to me about, and applicants, at times is they use the list in good faith and then someone else pops up and says, “I should have been on the list. You didn’t consult with me, therefore you’re in breach of your duties.”, and they get sued and sometimes injuncted. In those other parts of the Act, we’re making that list a code that can be relied upon by people at the date they use it so that they have certainty that if they use that list, then they have dealt with the right people. That doesn’t mean to say that the list can’t be updated for the future. It can be, but the decision as to who they consulted on the date they accessed the list can’t be second-guessed.

I move, That the question be now put.

Thank you very much, Madam Chair. Minister, thank you for your answer before. I just want to clarify that point you made around clause 30ZZA and the “Time frame for settling Mana Whakahono ā Rohe”, which must be “not later than 12 months after the date on which the invitation is received”. What happens if, prior to that 12 months, a dispute does arise between parties, say, with an overlapping area of interest—say, two or more hapū or iwi—and then this mediation process has to happen?

What happens to that provision, that it must be “not later than 12 months”? Will that Mana Whakahono ā Rohe still have to be concluded not later than 12 months notwithstanding the dispute that hasn’t been resolved, or will that dispute have to be resolved and therefore they have the section 30ZZA specification of “not later than 12 months” become void to some degree?

Clause 30ZZD says that if a dispute arises amongst the participating authorities in the course of negotiating one of those agreements, they “may undertake a binding process to resolve the dispute; but if they do not agree on a binding process, [they] must undertake a non-binding process of dispute resolution.”

I move, That the question be now put.

The question is that Simon Court’s amendments to Part 2A 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 2A set out on Supplementary Order Paper 389 be agreed to.