Natural and Built Environment Bill

Members, we come now to Part 5, the debate on clauses 152AAA to 303, “Resource consenting and proposals of national significance”, including Schedules 10 and 10A. The question is that Part 5 stand part.

Thank you, Madam Chair. It’s good to get back into the Chamber after a brief interlude, but I want to—

💬 Simon Court: Welcome back, Stuart.

—focus—oh, thank you very much. I want to focus on clause 157, “Consent authority may permit activity by waiving compliance with certain requirements, conditions, or permissions”. So in clause 157(1), it says “An activity is a permitted activity if (a) the activity would be a permitted activity except for a marginal or temporary non-compliance with requirements, conditions, and permissions specified in this Act, the national planning framework, or a plan; and (b) any adverse environmental effects of the activity are no different in character, intensity, or scale than they would be in the absence of the marginal or temporary non-compliance referred to in paragraph (a)”.

So what is “temporary”? That’s not defined, as far as I can see. If we’re talking about geological time, you know, our time on earth is less than a second. If we’re talking about, you know, of course, the time for an insect, well, a second is half a lifetime almost. So we need to know what that marginal or temporary non-compliance is. We understand what non-compliance is, but we want to know what the temporary or marginal means in this context, because it’s quite important for many activities, actually. Water takes, for example, only have a marginal effect on a river, or, indeed, an aquifer. It’s only a marginal effect. That’s probably been the biggest issue with allocating resources on a first come, first served basis, where one straw has very little impact on the camel’s back, but the last one causes a problem, and then you’ve got to go back and assess how that matter can be mitigated.

💬 Hon Scott Simpson: A bit like the Labour Cabinet.

The straws are falling, though. They’re not going on the back; they’re falling. Yes.

So it is important that we know what marginal and temporary non-compliance is. So I’m hoping that that is referred to somewhere else within the Act, and I’m sure the Minister’s looking it up, so I look forward to his answer. Thank you.

I’m advised by officials that this is a carry-over of section 87BB in the Resource Management Act, and it covers the situation where there is some temporary event that, if it were long term, would require a consent. But this provision allows the council to exercise their discretion and actually treat it as a part of the permitted activity.

Well, that’s helpful, but the council’s discretion still doesn’t actually define what “temporary” is. Is that one year, one week, 10 years, or 10 weeks? I know that 10 years is ridiculous, but there’s nothing to define that as far as your explanation that you gave. It didn’t enlighten us on that. So if you could be a bit more specific about that. Why isn’t it actually in the legislation to more tightly define what marginal or temporary is?

It relies upon a factual assessment by the council, as it does under the current legislation. To set that in a specific way would be rigid and could either be too onerous in respect of some less consequential entities and not onerous enough in respect of some more contentious activities, so the issue is left to a factual assessment by the councils to do practically as it is under section 87BB in the existing Resource Management Act.

Thank you, Madam Chair. Part 5 is quite an important part because, amongst other things, it sets in place what is the fast-track consenting process—that’s in clause 152AAA(1), but it then goes on to refer to Schedule 10A, and 10A is quite a long schedule: Part 2 of Schedule 10A describes in significant detail the fast-track consenting process, and I’ve got to say that if there is one part of this proposed legislation that we think is a good idea, then it’s this. But my concern is that, notwithstanding the provision for a fast-tracked consenting process, if members of the public were to take a look at the Schedule 10A, it still looks like a really complicated process with lots of hoops to jump through, lots of things to take into account, and an awful lot of rules that surround that process. So my question to the Minister is: how can he be sure that this concept of a fast-track consenting process that is set out in Part 2 of Schedule 10A is going to be as effective as he might hope it would be, and given the rules and red tape and prescriptive nature of Schedule 10A, how can he be sure that “fast” actually means fast; that the process of consenting can be quick and efficient, not too costly, and available when is necessary?

Because the public can rely upon the record of the Labour Party as being the infrastructure party that have not just funded infrastructure. We’ve consented infrastructure up and down the country in a way that the prior Government could never achieve, including, through the passage through this Parliament, the fast-track legislation in response to COVID—which this is based on—through which we have proven that fast track has, on average, taken 15 months out of the consenting process, sped up consents, and saved money. Now, how do you do that? You actually do need to have some parameters around when you can and can’t use it, and if you do use it, how you deal with the matter. Essentially, those matters are normally dealt with on the papers, therefore you have to prescribe what papers have to be presented to the panel that takes the consent decision and who has a right of input to make sure that you are changing the process rather than the underlying environmental test, because fast track, under this Government, has not changed the environmental test—it’s just made their process more efficient. That carries on into the new system.

At the moment, fast track under the COVID legislation has expired. Interesting to hear from ACT and National parties saying that they’re going to repeal this legislation, because fast track goes with it, too. The only additional suggestions I’ve had in respect of fast track from the National Party are to put everything through fast track; that would make it slow track because the system would gum up, and additionally, fast track is not appropriate for every proposal—there are some things that are so contentious that actually public rights of input, including at public hearings through normal processes, should be preserved. There are other process tracks for those sorts of things, including direct referral to the Environment Court or to the Environmental Protection Agency, where public hearings are held.

The Minister makes a great point: wouldn’t it be great if we could fast track every consent application? But, of course, it is important to balance the rights of neighbours and communities affected by, say, traffic movements, dust, and noise from a development, or overlooking—if someone wants to build three storeys of three units one metre from your boundary, the ACT Party thinks that it is helpful to have a process to engage with your neighbours. That’s why ACT has actually proposed an alternative, in our solutions for building New Zealand and conserving nature, which would provide for just that. But, Minister, I just want to ask you a few questions about the fast track and how it will work—the proposals of national significance.

A couple of years ago, Port of Tauranga applied for their wharf extension to go into the fast-track process, and a decision was taken to decline their application to participate in the fast-track process even though their wharf extension was not out into the harbour but actually alongside an existing peninsular of land that they already occupied. Port of Tauranga made the point that they will be very soon constrained in the number of containers they can process. They are currently New Zealand’s largest export port, particularly supporting the fruit-growing, dairy, and sheep and beef sectors, and all of the high-tech manufacturing that goes on in the Bay of Plenty and the Waikato region—and Auckland to a certain extent; that exports through Port of Tauranga. But their application to enter the fast-track process was declined, Minister.

I know you’re aware of this, because in the decision making—and I think you replied to a written question that I put to you in relation to this, and I’ll just have to paraphrase because it was some time ago—the consideration was to exclude them even though the environmental effects could be acceptable, given that, essentially, they’re just building a concrete dock alongside their existing land, as opposed to out into the harbour, to allow for the largest containerships that will soon be coming, with 10,000 twenty-foot equivalent unit vessels, double the size of the containerships currently coming to New Zealand. They need the capacity. But there is a marae across the harbour, which looks at the port and which in previous years has been surrounded by industrial activities, including fertiliser manufacturing, hydrocarbons, petrochemicals—manufacturing of all kinds—and that marae now sits almost isolated, surrounded by industrial activities with major roads going around it, with their view of the port and its activities as their primary outlook.

I understand, from looking into it, Minister, that that marae has felt that their interests haven’t been addressed, or past wrongs haven’t been addressed through the Treaty settlement process, and that they feel they have to object to Port of Tauranga’s proposal because they don’t see any other way of getting redress for the way that their marae and the papa kāinga housing on that marae has been impacted by industrial activities next door and, of course, the port, which is a vital piece of infrastructure in operation. So, while the people who live in the papa kāinga housing in the marae and the hapū who are responsible for it have a genuine issue with the quality of the environment that they are forced to endure and all of the development that’s gone on around them, that doesn’t change the fact it’s happened and that the port needs to expand. So, by rejecting Port of Tauranga from the COVID-19 fast-track application process, that actually indicated that some of these primary hurdles to infrastructure development, namely the veto of a group of people who might have a legitimate concern but which can’t possibly be addressed through this resource management process, will still continue to have a right of veto over major infrastructure projects.

Minister, would you care to explain to the committee and to people listening how that might be resolved through this process?

Yes, I’m happy to. For a start, I would say there are some things that shouldn’t be able to go through fast track. People with an understanding of the history of New Zealand would, I think, understand that raising Lake Manapōuri, as happened historically, shouldn’t go through fast track, nor should the high dam at Clyde—nor, in my opinion, should other hydro projects go through fast track. And that’s why the fast-track system here actually says you can—

💬 Stuart Smith: Lake Onslow!

No, Lake Onslow shouldn’t be able to go through fast track either. It should be able to go through a direct referral to the Environment Court through some other process, but—

💬 Chris Bishop: You legislated for it!

No—no. The legislation says there are some things that shouldn’t be able to access the fast track, because people have got a right to a say. And we don’t actually need a lot more hydro, so we shouldn’t be putting that through under a fast-track process. All other infrastructure can apply to go through fast track, including renewable electricity for geothermal, wind, and solar, and including port structures such as the member Simon Court mentioned. There is still a right of a decision maker to say some of these things ought not to go through the fast track. I’ve been the decision maker in respect of that under the COVID response fast track, but similar provisions are carried forward under the new fast-track provision in this legislation.

How have I exercised those discretions? Well, that’s been a matter for me as Minister, as it will be a future Minister, but one of the things I’ve done is protect the reputation of the fast track by not using it unwisely. And that does rely upon a degree of political judgment as to when events ought to go through with a public hearing. I’ve only done that on a few occasions. The Tauranga port was one of them. The Mount Crawford developments were another here, where there were gondola and commercial developments proposed for a peninsular that I thought people should have a right of participation in in the normal manner. It doesn’t happen all that often; it does happen some times. How else do you remedy these issues for the longer term through the country, or in the medium term through the country? You do it through the Spatial Planning Act. The Spatial Planning Act could say, “Look, when traffic volumes and freight volumes increase in New Zealand, we need to expand the port capacity in Tauranga.” That could be foreshadowed in a regional spatial strategy and could actually flow through to a district and regional plan as actually a permitted activity.

So, in the future, that port extension could well actually become a permitted activity. It may not do, but it might do—it might do. It might be a trigger. Those are issues for the future; they can be worked through through local communities, because there would be people at that marae who would no doubt, in respect of the plan change, come along and says, “We don’t think it should be a permitted activity.” They’d have the right to do that, and that would be for the regional planning committee to decide.

Madam Chair, I was indicating interest but I thought you were going to call my colleague, but I’ll just make a brief contribution. The first point is to say—well, we welcome the Minister’s reassurance that Lake Onslow is not going to go through the fast track. [Interruption] Well, the Minister’s saying we can’t. I think the key point is it will never get consented, Minister. There’s not a person in the country who thinks Lake Onslow is consentable, other than, maybe, Megan Woods, I think. No, the Minister doesn’t think it’s contestable. Oh, David Parker is saying he thinks it’s consentable. Having railed against the Clyde Dam and having spent—and I’ve heard the Minister waxing lyrical on many occasions about the injustice of the empowering Act and the constitutional outrage and the environmental effects and all the rest of, with some degree of justification, and having spent a fair degree of his political career raging against that, he’s now saying to the House, alongside Megan Woods, that Lake Onslow, the biggest white elephant boondoggle ever known in New Zealand political history, is consentable. I think that’s fanciful. The reality is the project will never happen. It will never happen. It is never going to get built, and if it does happen, it will have to be direct-legislated by Parliament. Anyway, that’s not really the point.

The point I wanted to make—

💬 Dr Tracey McLellan: Yeah, find a point.

Yeah, well, it’s important. You are going to spend 30 billion bucks apparently, so let’s maybe have a few minutes’ discussion around it.

The point I wanted to make was in relation to the national significance pathway. Has the Government considered giving the power to call in matters that are part of national proposal or referring the matters to a court of inquiry—the Environment Court? Has the Government considered making the Minister for Infrastructure the relevant Minister for proposals? I think people are worried that the Minister for the Environment is conflicted, and, look, this is a debate that could go both ways. But I just want to know from the Minister what advice or consideration the Government gave to making the Minister for Infrastructure or, potentially, in some cases, the Minister of Transport, actually, the relevant Minister for that decision-making.

Although it hasn’t been reconsidered recently in respect of the Natural and Built Environment Bill, we did actually consider who should be the relevant Minister when the original COVID powers fast-tracked legislation was passed—the COVID response fast track. We also considered whether it should be Cabinet, and in the end, Cabinet thought that you need to give it to a Minister who will do it efficiently, and the Minister for the Environment supported by the Environmental Protection Authority (EPA), and the Ministry for the Environment, I think, has done that efficiently. If you gave it across to another ministry you’d have multiple ministries having responsibilities for these things, to administer it. Actually, it’s worked well with the Ministry for the Environment and the EPA and in future the EPA doing this.

The process already requires other Ministers’ opinions to be sought as to whether it should go fast track, so those opinions aren’t brought to bear and are outed and the record is also clear in the Cabinet paper that, as associated at least under the current process with an Order in Council, those matters are clear from the public record and so there’s political accountability. So I would recommend against having more than one department or agency responsible for fast track, although, obviously, more than one Minister or ministry has an interest in decisions made pursuant to that pathway.

Thank you, Madam Chair. It is indeed good news that Lake Onslow won’t go ahead. Mr Parker, the Minister, said it wouldn’t go through fast-track, anyway. Well, it seems that he hasn’t been talking to the Minister of Conservation, because when I asked through written questions about why the permits for the groundwork to be done on it, which had to be received from the Department of Conservation, were done in what was world record time—world record time for those consents to go through—and when I asked further why that was, it was because it was seen as national significance, this project. I asked how that was assessed, but all I got was a fair bit of duck-shoving around and no answer. So, clearly, one part of the Government doesn’t share the same view as the Minister.

💬 Hon Scott Simpson: The left hand doesn’t know what the left hand’s doing.

That’s correct. But I want to go on to clause 158A, “Specified prohibited activities”. It says the following activities are prohibited activities: “(a) prospecting, exploring, or mining for Crown owned minerals in the internal waters of the Coromandel Peninsula;”—fair enough; “(b) mining of which the main purpose is to mine mercury.” That’s fair enough as well. But then under subclause (2): “Subsection (1)(a) does not apply to prospecting, exploring, or mining activities set out in section 61(1A) of the Crown Minerals Act 1991.”. That particular section 61 is access arrangements in respect of Crown land and land in common marine and coastal areas, and (1A) is in initial access arrangement in relation to tier 2 permits. Now, tier 2 permits, I’m sure you’d be interested to know, is in section 2B of the Crown Minerals Act. In this Act, tier 2 means a permit that is not a tier 1 permit. If you look at the tier 1 permit, it’s all laid out in the parts above.

There seems to be a sort of a circular argument here. You can’t have a tier 1 permit—a tier 2 permit is just on a tier 1 permit. There’s no real definition of that. So that seems to be somewhat circular. Can the Minister enlighten us on that please?

Yes, I can. It’s a straight carryover of section 87B of the Resource Management Act, which sets out some areas where around the Coromandel prospecting and mining is not allowed.

Well, it’s a carryover from an Act that doesn’t work very well, into a bill that’s going to be even worse. That’s not really an explanation as to why it is there. Just because it was there before doesn’t mean it was the right thing. It seems circular. It says a tier 2 permit is anything that is not in tier 1. So what is that?

It is not circular. It does work, as evidenced by the fact that the prior Government didn’t change that provision in the nine years they were in Government.

I move, That the question be now put.

The question is that the Minister’s tabled amendments to clauses 164, 223, and 276 of Supplementary Order Paper 389 be agreed to.

The question is that the Minister’s amendments to Part 5 set out on Supplementary Order Paper 389 as amended be agreed to.

Simon Court’s amendment to clause 276(3)(b)(vi) set out on Supplementary Order Paper 387 is out of order as being inconsistent with a previous decision of the committee.

The question is that Simon Court’s amendment to clause 276(3)(c) set out on Supplementary Order Paper 388 be agreed to.