Natural and Built Environment Bill

Members, we come now to Part 6. This is the debate on clauses 378 to 427Y, “Management of particular resources and areas”, including Schedules 3 and 5. The question is that Part 6 stand part.

Thank you, Madam Chair. Well, this is another part of the proposed legislation that has quite a lot of meat and detail in it. Subpart 1 relates to water conservation orders, and there’s quite a bit of detail in there. Much of it is carried over from existing legislation.

But when we come to clause 402, the requirement for farms to have a certified freshwater farm plan if it meets land threshold use, there are a range of matters there. It has to be 20 or more hectares, 5 or more hectares of the land is under horticulture, 20 or more hectares of the farm is under pastoral land use, a prescribed area of the farm under agricultural use prescribed in regulations made under section 411, or 20 or more hectares of the farm is under a combination of any two or more of the land uses described above.

So this requirement to have, essentially, freshwater farm plans is one of the issues that is foremost in the minds of many farmers up and down the countryside. Farming is an area that has been the focus of an awful lot of red tape, rules, and regulations under this current Government, and the requirement for freshwater farm plans is just another piece of red tape that farmers have to comply with under this.

Now, I don’t think that there are any farmers that would say they want worse fresh water in their catchment area, that they want the water quality to be worse, but it’s a question of balance. Much of this part, particularly in relation to freshwater farm plans, goes into the detail of what the plan must include. So clause 404, “Contents of freshwater farm plan (1) A freshwater farm plan must (a) identify any”—any—“adverse effects of activities carried out on the farm on freshwater and freshwater ecosystems”. And further, it must “specify requirements that (i) are appropriate for the purpose of avoiding, [minimising, or] remedying … adverse effects of those activities on freshwater and freshwater ecosystems; and (ii) are clear and measurable; and (c) demonstrate how any freshwater farm plan outcomes prescribed in the regulations are to be achieved; and (d) comply with any other requirements in the regulations [made under clause 411].”

So therein lies the rub, that those thresholds, in terms of identifying any adverse effects of activities carried out on the farm on fresh water; it’s actually a very high threshold. It’s arguable that just about any human activity and just about any farming activity will have an effect. It’s debateable whether that effect will be adverse and what the impact of the adverse effect will be in terms of quantum and what the cost and mitigating impacts will be, should that adverse effect have to be nullified, removed, or remediated.

So my question to the Minister in relation to freshwater farm plans is: is he confident that he has the settings right in terms of a sector that is already under intense regulatory control but has seen a massive increase in requirements for compliance in a whole range of areas, of which this is just another? What assurance can he give farmers that that the work, effort, and time associated with complying with freshwater farm plans is going to be commensurate with the environmental outcomes? I’m keen to know how the farm plans are going to be monitored. So if the Minister could address issues relating specifically to the freshwater farm plans, I’d appreciate his discussion on those matters, please.

Thank you, Madam Chair. In the process that the country has gone through to try and arrest the decline in our freshwater bodies, particularly our rivers and streams, the agricultural sector and councils came to central government and said, “Look, you can overregulate this space. Rules-based regulation through national policy statements and national environment standards can get too specific and unwieldy.” They said, “We would prefer a farm planning regime.”, which is why the amendments made to the Resource Management Act (RMA) to enable a freshwater farm plan regime are to, effectively, in the future be a substitute for some of the rules that you’d otherwise need in district plans or national direction. So that was inserted into the RMA about three years ago now, and this is largely a carry-over of it. It has, actually, broad support from regional councils and many agricultural bodies. The agricultural bodies like Fonterra, some of the industry, good organisations that work in the horticultural sector, and Beef + Lamb, for example, wanted to ensure that the existing freshwater farm plan components that they have in their plans—already required of their suppliers, in the case of Fonterra—could be transitioned into the new system, and they are being.

The only real change here in the Supplementary Order Paper is shown on page 278, to the clause that the member identified, clause 402, at new subclause (1)(a). That’s actually as a consequence of a request that Federated Farmers made of me. The arable sector came to me and said, “Look, the example where this is already working really well is in Canterbury.”, and this is largely modelled on what’s happening in Canterbury, where freshwater farm plans are already in place. He said that in Canterbury they started with the larger farms and then moved to the smaller ones, and that if they had started with all farms at once, they would have suffered a backlash against the system, and they would have also lacked capacity in the service sector to service the needs of all of the farmers.

So they recommended that further discretion be allowed in the system to change the land area thresholds pursuant to which you need to have a freshwater farm plan. So what that does is, effectively, allow regulations to be made by the Government to change those thresholds if a regional council, for example, comes to us and says, “Look, this is just going a bit fast. We actually want to start with the bigger ones first, like they did in Canterbury.” So this is actually a provision that has the support of Federated Farmers. Not a lot of this legislation does, but that particular provision is supported.

Thank you, Madam Chair, and appreciate the Minister’s elucidation of those points because that’s very helpful. I’m keen to know whether the Minister sees whether a potential could develop over a period of time, where, because we have such a vast number of farms in the country, a range of different catchment areas, a range of different topographies, geology, farming practices, and such forth, it could develop that some kind of formulaic template emerges as a methodology for complying with the provisions of this part that would make it easier for farmers to comply with the requirements, but also more administratively efficient for the regional councils in terms of the records that they must keep in terms of clause 408. So I’m interested to know what the Minister thinks may develop in terms of process around these freshwater farm plans.

Another fair point. Yes, we don’t want this, on the one hand, to be so rigid that you drive everyone to a monopoly provider of services; we also don’t want to be so rigid as to impose the same rules unnecessarily everywhere, even though they are not apposite to some areas. So the purpose of farm plans is to be flexible enough to deal with the issues faced by each farmer. For example, if you’ve got a steep hill country and the problem of sediment eroding off steep faces that should be retired from heavy grazing pressure, that might be different to another area where the issues are nutrient flows from flat country intensive farming practices.

So the system has to be flexible enough to allow for both of those possibilities. But the member’s also right that you also want a degree of standardisation, so it’s not everything’s been done again, and I think the regulations allow for both of those things to be accommodated.

Thank you, Madam Chair. I accept what the Minister is saying about the flexibility in and around it being that one size doesn’t fit all and so we need to have some flexibility, but just on this Part 6, “Management of particular resources and areas”, around water, it’s been drawn to my attention lately around particularly not just irrigation—and when people talk about irrigation or water storage, they often talk a lot about that being for dairy cows. I think we can assure the population that environmentally, that may have been a thing of the past, but it’s not going to be the thing of the future, because it will be for, I guess, resilience to do with climate change. It will be for some small hydro production, it will be for perhaps some horticulture, or it will be for leisure—there’s a whole range of things that water can be used for.

But the thing that’s being brought to my attention around spatial planning is that if we don’t get this right in our use of the water that we use, particularly for small mini-hydro plants that may service agricultural rural areas, those people in those areas might end up paying a lot of money for their electricity if it’s going into a local grid, rather than if it’s going into the grid and supplying the network. Therefore, the city dwellers may be better off than the rural dwellers when it comes to people spinning off small hydro schemes, and I guess—let’s face it—we’re past the days of Think Big, where we were going to have massive hydro schemes, and, hopefully, that includes Lake Onslow, so that we won’t have that, either. But there will be a lot of ability to put some small schemes in place; it just seems like the playing field isn’t even. So when we’re talking about water allocation, it’d be really good to put some thought into how that might become fair and equitable.

I will, given that Project Onslow has been raised a lot of times, just respond to some of the criticisms there. Now, Onslow needs to be conceived of as a mechanism to cover dry your risk and provide a hedge against intermittency for new renewables in a way that encourages market competition in the provision of new generation in New Zealand. Those who believe in the project, including the Parliamentary Commissioner for the Environment and some very experienced people who have been involved in the electricity system for a long, long time—like Dr Keith Turner, the former head of Meridian and the former head of Electricorp Generation way back when, and currently head of Transpower—think that that is the greatest benefit. It will enable competition in renewable generation investments by international capital as well as New Zealand capital, because they will not be as reliant upon the tight four or five main generators at the moment to whom they have to look for a hedge against intermittency, and in a dry year, that’s, effectively, Huntly, which drives up the prices of electricity.

Anyway, I respond to that just to defend Onslow against some of the incorrect criticisms of it that are made here, even though it’s not directly affected by this part of the bill. But it’s been raised by others.

In respect of the issue of water storage: yes, there is a need for more water storage in New Zealand, on the dry East Coast, particularly. In the prior part of the legislation in respect of consents, there was reference through to the limitation on the length of new consents that can be given for the abstraction of water, and that’s because now that most water has been allocated, or over-allocated, in many catchments on the “first in, first served” basis, if you enable new consents to be given for 35 years or the renewal of all existing consents for 35 years, you’ve, effectively, put off the more efficient and reasonable allocation of water resources in New Zealand for up to 35 years, which would frustrate the purpose of the Act, which is for more fair as well as economically efficient and environmentally proper outcomes.

There were some exceptions made for large hydro projects. We’ve now made it clear that all existing hydro has the benefit of those exceptions to that limitation on the term of those consents. So you can get a 35-year renewal, but we haven’t applied that to all new water storage projects, although we have created a pathway for those sorts of projects to be given a longer-term consent in order for them to be banked.

Thank you, Madam Chair. Minister, I just want to come to the matter of water conservation orders. Now, water conservation orders are already allowed under the existing Resource Management Act and they have been applied to a number of rivers—particularly the lower sections of rivers—where if water is abstracted for primary production in the upper parts of the catchment, or from, say, drawing on groundwater from bores, then there may not be sufficient water at certain times of the year and in certain climatic conditions to allow sufficient water to be in the river so that habitats are sustained so that recreation activities can be sustained, whether it’s jet boating, fly fishing, kayaking, or swimming.

But one of the problems with water conservation orders, as we’ve seen recently in Hawke’s Bay—and forgive me, I’m going to struggle to pronounce the name of the river—I think it’s Ngaruroro River, which has had a water conservation order applied to it. But one of the things that was proposed by some of the organisations representing farmers and growers, representing food processors was that, look, they can’t turn off their processors; they can’t tell their growers to stop growing the crop; they can’t tell the apples and the pears to stop growing. They need the water. When they make an investment in planting—and, of course, apple orchards, in particular, were absolutely smashed by Cyclone Gabrielle and other storm events recently—when they make a commitment to replant or to re-sow a crop, whether it be lettuces or tomatoes or corn, squash, whatever the vegetables are, they need to know they have access to water.

A water conservation order that only looks at the water in the river and says, “That’s all you can take, less what’s left for recreation and the environment.”, in the case of the order around the Ngaruroro River, ignores the fact there are options to build water storage higher up in the catchment to collect some of those enormous volumes of water which have come down the river during floods and storms, particularly in the last six months—enormous volumes of water.

So Minister, one of the concerns that the ACT Party has is that there is insufficient pathway to build water storage. That’s why ACT says, “If we want to adapt to climate change; if we want to leave water in the rivers for the fish, for trout and salmon, and for the banded kōkopu or the giant kōkopu”—or whatever those native fish are—“the eels, tuna; and we want to have water for production, then we should be allowing building water storage, water transfer between property owners, and irrigation as of right.” In other words, as long as you can demonstrate that you meet a code of practice and that your activities do not take away from the environment, then you should be able to build water storage as of right.

Sometimes, water storage developments require cooperation between regional councils, between central government, as well as between private sector funders like the Ruataniwha dam proposal in Hawke’s Bay. Yet, that was declined after Department of Conservation had to agree with some objectors from Forest & Bird that a piece of the land they wanted to swap—so it could be used for water storage—that they weren’t allowed to swap it.

So there was all kinds of things that stop us from actually developing water storage that underpins a better natural environment—that supports regional economic development—that is not addressed by this bill. So Minister, would you be able to provide the committee some assurance; people listening at home; and, of course, all of those growers and manufacturers and food producers who want to know that they can build water storage that can continue to operate in the regions, support our economy? They’re the backbone of our economy.

Minister, how will Part 6 and managing resources in areas, particularly water, sustain regional economy, primary production, and New Zealand’s prosperity?

In respect of the issues relating to Ruataniwha, they are outside the scope of not only this Part; but they are outside the scope of this bill. As the member has rightly indicated, those matters were determined under the Conservation Act, not under the Resource Management Act nor its successor. So I won’t comment further upon that.

In respect of conservation orders, some conservation orders actually go from the headwaters to the sea—the Mataura River’s an example of one of those. Others are mainly in the headwaters, like the Wakatipu conservation order covers all of the rivers coming into Lake Wakatipu and the Kawarau River from the outflow from Lake Wakatipu down to the head of the Lake Dunstan at the Clyde Dam, but no further down. So that’s an example of where in the headwaters.

In respect of the Ngaruroro River and the Clive River—I have the same pronunciation inadequacies as the member does, to which I apologise to the committee—that was, in the end, not approved by the body to whom the application was sought in respect of the areas that did go through the lands that the member was concerned about, and was confined to the outer reaches of the river. So it’s actually an example of the system working towards the objectives that the member says he supports, rather than against.

In respect of water storage issues, I dealt with that with the answering the question from Barbara Kuriger.

Thank you, Madam Chair. I just want to talk about the areas of highly vulnerable biodiversity, and I just have a question because it talks about—there’s a criteria on page 299, clause 427P. Where does that—can I ask the Minister where does that leave the review into stewardship land, given that there’s a huge range of biodiversity classes on conservation land? There’s obviously a review going into it, will this particular piece of legislation define it more clearly? And if you could just explain to me what happens next from here?

I addressed this to some extent under the first discussion we had on the first part of the bill, but the member’s quite right that this is further articulated in this part of the legislation. The scheme of the Act is to try and properly protect what is truly important, but not have that—and then really protect it with very, very limited exceptions as to some, for example, essential infrastructure that’s got no other place to go. But other than that, very, you know, very rare exception to the protection of highly valuable biodiversity areas. They are protected against development pressures, but in order for them to be of that status, they really do have to be nationally outstanding. It can’t be low.

Now, I know there are members in this House, and there is an amendment in the name of the Hon Eugenie Sage that wants to extend that to regionally significant areas of biodiversity. Within the view of the Government, yes, regionally significant, highly biodiverse areas can be protected by councils if they want to through their plans, and they go through a planning process and that’s a decision they take locally. But in respect of the highly protected areas where the scheme of the Act protects it, as opposed to rules in a plan, we think that should be limited to the nationally important, and that’s what this does.

Thank very much, Madam Chair. Minister, I just want to go back to freshwater farm plans. And my question is around the requirement for farm operators to prepare a freshwater farm plan, then submit the plan to a certifier for certification, and then arrange for the freshwater farm plan to be audited. So it’s quite a few steps involved there, and I think the Minister would accept that most farmers won’t have the ability to do this themselves and they’ll have to hire consultants to do the work. Certainly to prepare the freshwater farm plan, which some say could cost up to $10,000, and then obviously the next steps in terms of certifying and auditing it.

My question then goes to: what happens if there is a major adverse weather event which affects the relevant freshwater farm plan, and looking at clause 403(2), it says that “A farm operator must keep the certified freshwater farm plan fit for purpose by amending the plan as necessary to reflect any changes in the farm; and amending the plan as necessary to comply with this subpart and regulations.” So let’s take, for example, the events that have happened this year on the East Coast—Tairāwhiti, Gisborne, Hawke’s Bay—which would have a pretty significant impact on the operations of a farm and therefore would need quite significant changes to the operation of that farm. How is a farmer realistically going to update their farm plan, then get it certified, then get it audited and comply with the requirements here? And I know it’s not just unique to these guys—Tairāwhiti, Gisborne, Hawke’s Bay area; back in the beginning of 2020, a major adverse weather event happened in Southland, in which, again, the same scenario would have been faced by farmers.

The first point I would make is that if you’re going to have farm plans as a substitute for regulation, they do need to have a degree of rigour about them. And there’s general agreement, I think, across the system that if it’s going to be a substitute for regulation, it actually has to be something that in practice people can be held to account for whether they do what they promised to do in order to limit their adverse effects on the environment. This is modelled on the Canterbury system and it’s working there.

In respect to the member’s question about what happens if events change, well, we’ve actually had the real example, as the member astutely points out, in respect of the Hawke’s Bay region. And the Government response to that has been to write, at the recuse of the regional council, and say “Taihoa, you’ve got a few more years to take care of it because you’re actually addressing other issues in response to the emergency.” So these things are practical and there are mechanisms to make sure that those sorts of events can be catered for, as evidenced by the fact that just in recent months that very occurrence has been dealt with.

Thank you, Madam Chair. I want to continue on this theme of freshwater farm plans. I’m pleased to hear from the Minister that there’s going to be a degree of pragmatism applied for unprecedented weather events and things of that nature. That’s good to know.

I particularly want to refer to clause 405, the requirement for the certification of a freshwater farm plan, and that the farm plan needs to be certified under clause 408 by a regional council. Councils must keep records of individual farms and their plans, and then, in clause 409, they must appoint certifiers and auditors. Now, that’s fine as well, but in clause 409A, there appears to be what is, effectively, an opportunity for regional councils to contract out that audit service. Clause 409A(1) says, “A regional council may give approval to an industry organisation that applies to the council to provide certification and audit services under this subpart if the council is satisfied that the organisation meets the standards issued under subsection (2).” I guess my concern is that some critics might see this as actually the fox in the hen house. The potential for sector groups to, effectively, do the auditing, in some eyes would potentially be seen as a conflict of interest and that they may have a range of motivations that might go to undermine the potential for the quality and scrutiny that they are taking up in their role as certifiers and auditors.

So, Minister, maybe you could give us some assurance about the kind of organisation that might be eligible. The clause says that it should be an approved industry organisation. I’m interested to know how “industry organisation” is defined, and could an industry organisation be a non-farming industry organisation? Could it potentially be, for instance, an environmental NGO or another entity or organisation that has interests in environmental matters and particular interests in the quality of freshwater and the impacts of farming and agriculture on freshwater that, potentially, could also be seen as a potential conflict situation? So, if the Minister could tease that out for me, I would appreciate it.

I’m happy to, Madam Chair. As clause 409A sets out, the council may approve an industry organisation to carry out that role; “(2) The Minister [can], by notice in the Gazette, issue standards by which industry organisations must be assessed”; “(3) [The] Standards (can) … (a) set out the kind of organisation eligible”; and they can “(b) include content and processes”. There’s an example given at clause 409A(3)(b): “by requiring the industry to run training programmes and ensuring that conflicts are appropriately managed.” I agree with the member’s point that conflicts do need to be appropriately managed. I’ve never heard the term “industry organisation” to be applied to environmental NGOs. I don’t think that’s the intention. But there have been some industry organisations, like the horticulture sector, that have run their own industry assurance programmes. The viticulture sector has some as well. So we don’t want to—oh, actually, I should go back a step. Farmers don’t want to have a parade of lots of people doing similar things. They want it to be done once and be done well so that they can rely on it. Councils want the same thing because they want to be able to rely on it, and that’s why the system has been designed the way in which it has been.

Thank you, Madam Chair. Dealing with “Places of national importance” and clause 427A “Interpretation”, as the Minister for the Environment noted, there’s a Supplementary Order Paper (SOP) in my name, 394. What that seeks to do is put the Natural and Built Environment Bill (NBE) on a similar—to put outstanding landscapes and natural features on a similar footing in this bill to the Resource Management Act (RMA), where there has been a lot of work done by district councils and regional councils to identify and assess areas of outstanding natural landscape and natural features, and to have those included in plans.

So when the Minister noted that it’s optional that outstanding natural features and landscapes at that regional and local scale be identified, is it his expectation that the work that has been done to date by councils throughout the country will be used and put into natural built environment plans even though the much narrower definition in clause 427A means that these regionally and locally outstanding natural features and landscapes aren’t recognised as being of national importance, which under the RMA they are because there is no qualification that they just have to be outstanding at a national level. It is a fact that outstanding natural features and landscapes are a matter of national importance under the RMA.

The Green Party’s concern is that the change in the NBE bill really undermines the recognition of landscape values. It is often these are issues that are quite important in getting people to think about how we do land management in a way which respects natural systems, the soils, the features, and ensures that the landscape values of places like the Queenstown Lakes are protected from inappropriate development, such as houses and subdivisions that are very obvious and undermine that naturalness characteristic. So what happens to all of the existing information, can that be incorporated?

Then, I also have another question about clause 427Q, which is about the protection of high value biodiversity areas. The Minister’s SOP 389 makes, on page 299, some changes to clause 427Q around fishing, and it seems to me there are double negatives in there. But the protection for high value biodiversity areas is not as qualified in relation to fishing. Is there the risk that the provisions in the SOP will actually undermine the intent of the Motiti case? The Motiti case enabled councils, through their regional coastal plans, to protect areas against the effects of fishing, and that built on previous case law in Golden Bay. But, in the Minister’s SOP and the changes to 427Q, that appears to really, really narrow the ability of plans to protect against the effects of fishing by only being able to do that if these high value biodiversity areas are very clearly identified.

I thank the member Eugenie Sage for her contribution. In respect of the highly vulnerable biodiversity areas and places of national importance, we are wanting to make that a rarefied group of high standard places of national importance, not regional importance. Once that is accorded to those sorts of places, then the protections are very, very high and they’re not easy to knock over. There are some very limited exceptions, but they are very limited.

In respect of other matters, we are actually leaving that to the local region, and the same high level of protection doesn’t automatically apply. That doesn’t mean to say there is no level of protection. And the member’s right that the landscapes around Queenstown are important, and that subdivisions that are in the wrong place can undermine landscape values in a way that the people of the area ought to be worried about. That is preserved—you know, that can still be done, but you won’t be able to, I don’t think, in space like Queenstown, say that all of the landscapes are of that critical importance. And why that’s important, in the example that’s been given to me by officials, including by Transpower New Zealand officials, is that they find it very hard to get any new transmission line approved into Queenstown because everything is categorised as being of importance from a landscape point of view, when, in actual fact, they need a new transmission line into Queenstown because the population is growing.

In respect of the other issue that the member raised around the marine space and fishing, what the amendment is intended to do is—we don’t override the Motiti case. The Motiti case is actually preserved, and there is a planning function there, which is actually starting to work out quite well in New Zealand now. There’s been some recent experience around the Bay of Islands. And I’m glad that we didn’t overreact against the Motiti case, because it’s working its way through the system quite wisely. But what we didn’t want was for there to be an onus on the fishing industry to prove whether or not there are areas of high biodiversity value before they can fish, because the scheme of the bill as drafted created the risk that it would be for the fishing industry to prove that there weren’t areas of high biological value before they could fish, whereas we think that, actually, it should be the other way around. Before you can stop people fishing where they’re ordinarily fishing, there should be an onus on someone else to prove that that’s an area where there ought not to be fishing, otherwise the regulation of the fishing industry would have become impractical.

I was very, very enthused by the Green member’s comments around 427C, “Places of national importance”: “must identify every place that is a natural landscape or a natural feature (including geoheritage) that is [outstanding] on a national scale”, because, in some instances, the ability of iwi and hapū to assert whether or not a natural feature of a wāhi tūpuna or a wāhi tapu is at the level of “outstanding”, rather than just “a place over there” have been severely compromised. The access issue, for example, on a place like Rangipo Waiu, where the New Zealand Defence Force currently owns some land, has compromised various iwi throughout that middle reach of the North Island to access, look at, and assert that a place is outstanding. So the kawa and tikanga exercise, which is referred to in earlier clauses 3 through to 6, has been so disturbed that the ability of those iwi to assert that that natural feature or that natural landscape is outstanding is severely modified. So I’m trying to understand how a situation like that can be accommodated in the current proposed legislation.

I don’t know the detail of that particular case that’s referred to in respect of what sounds like it’s land owned by Defence Force in the Central North Island. But the Crown, in general, in respect of land that it needs to control access to, has similar rights to private landowners to exclude people from it. I don’t think that’s changed through this legislation.

In respect of whether there are regionally, rather than nationally, significant issues touched upon by the member, but also just following up on one of the questions asked by the Hon Eugenie Sage, I’m advised that the work is already done by councils in respect of their identification of regionally significant landscapes is something that can flow through to the considerations of the regional planning committee when they put together a regional plan.

Thank you, Madam Chair. Minister, I just want to come back to the freshwater conservation orders and the implications of that, and also address the issue of nutrients on water quality and ecosystems. New Zealanders mostly agree that there are some places around New Zealand where freshwater resources have been over allocated or where discharges from certain types of land use are negatively affecting the environment in a way which we all agree is not an appropriate way to treat our common resources. But Minister, what we’ve seen through this legislation, through the National Policy Statement for Freshwater Management—is a top-down approach; a centralised approach, making rules: whether it’s a nitrogen limit or banning development in wetlands which actually don’t reflect the needs of communities, especially where communities might have a differing view on how resources should be allocated, particularly freshwater.

What we have seen are special rights allocated to iwi Māori, based on spiritual values, which they are perfectly entitled to hold—Māori culture is a taonga—but that which now require decision makers around water to have regard to Te Mana o Te Wai, which puts the health of the water, the spiritual concept mauri, first, above the needs of drinking water allocation and above the needs of water for economic and social development, which of course is water used to grow things and make things, Minister. Many people in the primary sector have been suspicious of this Minister, this Government, and the Ministry for Environment, which he is responsible for, in the way they have gone about lawmaking. In most recent times, there has been a suggestion—and we understand was tabled at Cabinet—that there could be a fertiliser tax on nitrogen potentially to help save us from climate change—

CHAIRPERSON (Hon Jenny Salesa): Order! The member will come back to this particular bill; refer to the clauses that you’re asking questions on.

Subpart 3, clause 412, “Purpose”: “The purpose … is … better monitoring of actions taken to improve freshwater quality and freshwater ecosystems.” Of course, better monitoring aligns with recommendations from the Parliamentary Commissioner for the Environment to collect better data, to monitor and to make that available—absolutely important, ACT would agree with that. However, in clause 413, “Meaning of nitrogenous fertiliser”, it spells out what nitrogen-based fertiliser is, and then goes on to say that under the regulations of clauses 414 and 415, the Government is entitled to collect information about fertiliser used on land, “the date and place of purchase”, “the names of the seller … and the purchaser”. I mean, this will be a surprise to farmers, this will be a surprise to organisations that rely on producing things on the land—the Government now wants them to supply records of their inputs; of their production inputs; of their economic inputs. Because, of course, farmers are competing; they’re not all sharing the best knowledge. They want to do better than some of their neighbours—you know, that’s the nature of our economy. They might not want to give this information to the Government about the amount, the type, and volume of fertiliser purchased. What the Government and what the public should be interested in is what are the impacts on receiving waters on our common resources of land use—whether that’s using fertiliser or whatever.

So farmers and others will be suspicious that this Government has not given up its intention to impose a fertiliser tax, because it’s quite clear in this legislation that they want to collect all of the information about fertiliser inputs and other inputs to land. Well, what would ACT do? We would say rather than trying to micro-manage this stuff from head office, Minister; rather than try to make rules around who should be allowed to apply how much fertiliser to their land, ACT would say we need to adopt a market-based system. Because where a local council identifies a limit on water quality—the state of the environment that a community agrees is acceptable—then above that limit, nutrients should be able to be traded, because some farmers; some producers will have better ways of mitigating nutrient loss from farms, using better fertiliser, technology and monitoring and application systems—whereas others would prefer to do things in a different way. But if nutrients and water quality are allocated in a market-based system where people could compete for water quality attributes, Minister, wouldn’t that be fairer?

I do find the ironies in these contributions worthy of comment occasionally, because the only two times New Zealand has ever adopted a cap-and-trade scheme for nutrients inputs were around the Taupō catchment—who did that? The last Labour Government—and the Rotorua catchment. Who did that? The last Labour Government. This very bill encourages more of that, and the last part: I won’t go into that because we’ve already been past that, but it actually enables those market-based mechanisms for exactly the reasons that the member indicated. So I look forward to his stirring speeches in support of those provisions in subsequent contributions.

💬 Simon Court: What about the fertiliser tax, Minister?

In respect of the fertiliser issues, they’re a carry-over of the existing Resource Management Act, which enables that information to be gathered if regulations are made to that effect. What are the standards for water quality—again, I agree with the member that we’ve actually moved past the point of debate in New Zealand that we were going to have wadeable rivers. We actually want contact recreation to be safe for people that use our rivers, where they’re in a kayak or having a swim; effectively, swimmability is the standard for New Zealand rivers and streams in both rural and urban areas, and in some of those urban areas particularly—but also in some rural areas, we’ve got some ways to go to get back to there. But we’re actually agreed, as a country, that that’s what we should be heading for, and that’s what the current regulation and the subsidiary instruments provides for.

Thank you, Madam Chair. Just following on around the effect of certain nutrients on quality and ecosystems of freshwater, and noting that in the current environment it’s very hard to actually grow stuff in New Zealand because there are limits on that. You know, we do have a cost of living crisis and we do have a, what, 20-odd percent increase in the cost of vegetables over the past 12 months. This isn’t going to make it any easier. In fact, it’s going to make it more difficult to grow stuff.

I just wanted to raise with the Minister the reality that in some places of New Zealand we take—there’s a line that goes through around the Bombay Hills where you switch over into the Waikato Regional Council, and the regulations they have around the nutrient usage is quite severe. What you’re actually doing there is prohibiting growing in some of the most fertile areas in New Zealand where we have a cost of living crisis, where fruit and vegetables are more expensive than they’ve been, and where New Zealanders—what they actually need are lower prices, and they need more fresh vegetables on their plate.

So the reality of what this is going to do is make that more challenging. We have situations—you drive north of here a couple of hundred kilometres, and people are actually growing there without consent because this Government is overburdening them with fresh water rules which make it impossible to grow. What we would like to see is a situation where we can move from doing what you’re doing on your land—so there’s a pyramid aspect at the moment, and you can’t move up that scheme. So you can’t actually get up to growing vegetables and into the horticulture space because there are far too many regulations in that area.

Is the Minister aware of that? Is the Minister aware that these regulations are going to make it harder to grow? Is the Minister aware that these regulations are going to make it more expensive for New Zealanders to eat fresh fruit and vegetables? Thank you.

I do find it frustrating when members don’t pay attention to earlier contributions in the debate, including in response to questions from their own members who know better than the member who just showed his ignorance. There are specific provisions in this bill that elevate vegetable growth. That also reflects what we as a Government have done to actually improve allowances for the likes of nutrient pollution coming from the growth of vegetables compared with other sectors—

💬 Simeon Brown: Nothing in this bill but carrots.

What’s that?

💬 Simeon Brown: What’s the bill do for carrots?

What does the bill do for carrots—that’s the level of debate that we have from Simeon Brown. It’s quite good to put that on the record. What it does is the provisions in this bill say that the interests of vegetable growing are very important to the health of New Zealanders and ought to be elevated. They are in this, as we have done in respect of fresh water management matters, where we have given exemptions to both Pukekohe and Horowhenua areas where the environmental limits could not be reasonably met without kerbing vegetable production. We thought that was wrong for the health of New Zealanders and the price of vegetables, and so we gave them exemptions. That is carried forward in this legislation, and if the member doesn’t know that, it’s not my fault.

Thank you very much, Madam Chair. This is proving to be quite a good and lively discussion that we’re having here under extended sitting. I want to come back to Subpart 4, “Places of national importance”—or what we came, in the Environment Committee, to affectionately refer to as “PONIs”. We spent quite a lot of time talking about the PONIs—places of national importance—and a section of the debate was around the use of the term “trivial” or “more than a trivial impact” or “more than a trivial, adverse effect”. I notice in the Minister’s Supplementary Order Paper that the word “trivial”, in multiple places—and I’m particularly referring to clause 427C(4)(b). There’s another reference in 427F. There’s another reference in 427H, where the term “trivial” has been replaced by the word “minimal”.

I’m interested to know what the rationale for that change is and whether the Minister has received advice from officials that removing the word “trivial” and replacing it with “minimal” has some impact that maybe wasn’t originally made clear at the select committee, and whether or not the impact of that change will improve—I guess the fact that the Minister has made the change is an indication that he feels it must improve and be a better terminology than the use of the word “trivial”. So, if the Minister could enlighten us as to why that change was made, because it was a matter that was discussed at some considerable length in select committee. There were a number of submitters that made mention of the point, and our concern at select committee was that it was very hard to define “trivial”—that “trivial” has different meanings to different people. But, to replace it with the word “minimal”, I’m not 100 percent sure that that necessarily helps advance certainty in any degree. So if the Minister can give us some insight on that?

Actually, the member Scott Simpson has had his way on this one, if he did express that at select committee, because how it used to work was that “trivial”, which was the term that was used, was defined in the definitions signal, on page 64 of the bill, to mean “adverse effects that are no more than minimal”. So they’ve cut the definition out and they just moved straight from “trivial” to “minimal”, and it is actually—

💬 Hon Scott Simpson: They’ve cut out the middleman!

They’ve cut out the middle definition, yeah. And, in terms of consistency with language in other statutes, it’s probably more consistent and, therefore, leads to less uncertainty in a new statute.

Just in light of those comments about highly vulnerable biodiversity areas (HVBAs), there was a little bit of uncertainty around the interface between clause 427P(2) and the related determination of an HVBA, which “must have regard to mātauranga Māori”. In the context of clauses 3 through 6 in the affiliations with kawa, tikanga, mana, and the vibe, and then the ability to make a determination that this is an HVBA, a piece of land, a piece of land that happened to be Māori land, the interface with clause 427S, which now says, if you refer to 427R, the Minister can make a provision that, even though you’ve gone through that process of kawa, tikanga, mātauranga Māori, and everything else, and it is the characteristics of an HVBA—it is that—but the Minister can still make, effectively, a determination that that land is exempted from the HVBA provisions. So I’m just trying to understand from the Minister if that is what is intended.

The ability to have exemptions to highly valuable biodiversity areas is race and colour neutral.

I move, That the question be now put.

Thank you very much, Madam Chair. Minister, I want to just go to water conservation orders and ask you some questions around that. But I’m just going put it in context and ask you about the minimum flow levels, as it relates to this, of the Manuherikia River, which I know the Minister will be well familiar with. The Manuherikia River, as the Minister probably knows, was once a “massive lake that covered all of Central Otago. It was fringed with gum trees and ringed by salty mudflats. Fossil records show the lake was home to crocodiles and flightless, burrowing bats; the surrounding river delta [was] a feeding ground for ancient wading birds related to flamingos and Squawkzilla, the largest known parrot to ever exist.” Fast forward a few tens of millions of years to today, and the Manuherikia River starts high in the snow-capped Hawkdun and St Bathans Ranges, flowing down to the Falls Dam, finished in 1935—about 92 years ago by my calculation—and then carries on about 85 kilometres down to Alexandra where it joins the Clutha, the country’s largest river.

Unlike most other rivers, the Manuherikia starts by collecting the snowmelt from the Hawkdun and St Bathans Ranges and then it carries on, and it doesn’t really get much other water. Most rivers collect more water as they go, as they collect water coming into catchments. However, the area where the Manuherikia River flows through in Central Otago is very, very dry. In fact, they call it in some places “the Middle East”—in fact, it’s the driest place in the country. So it creates a bit of a unique conundrum where it actually needs to collect most of its water at the top, which is why the Falls Dam was constructed back in 1935. I’ve spoken to some old-timers who said that pre the construction of that, there were times when the river ran dry completely, so that dam forms a very important function.

I note, when I look at clause 378 in terms of water conservation orders, that a water conservation order can provide for a whole lot of things: “the preservation, as far as possible in its natural state, of a water body that is considered to be outstanding”, “as a habitat for terrestrial or aquatic organisms”, “as a fishery”, “for its wild, scenic, or other natural characteristics”, “for its scientific and ecological values”, “for recreational, historical, cultural, or spiritual purposes”, and “the protection of characteristics that a water body has, or contributes to, and that are considered to be of outstanding significance in accordance with tikanga Māori.”

What I don’t see any mention of there, Minister, is its economic value for the community. I note that the Central Otago District Council had an independent analysis made of this previously and noted that if there were to be a minimum flow level of about 3,000 litres per second—I think it is—that would be equivalent to reducing the income from farming across Central Otago by some 50 percent compared to the status quo. That would be a very significant matter for that region, and I’m curious as to why this consideration has not been put in there as something that must be considered, or should be considered, as part of a water conservation order.

I actually claim some expertise in water conservation orders. I’ve done a lot of the water conservation orders that there are in New Zealand, including on all of the tributaries of the Wakatipu, including the Mataura River and including the Ahuriri and a number of other catchments around New Zealand. So I know a lot about them. There is no water conservation application in respect to the Manuherikia. I also know a lot about that river, and, indeed, when I’m in a position in a place where Māori mention their whakapapa and the rivers that they most closely identify with, I actually choose two rivers: the Waikouaiti River and the Manuherikia River, which I camp next to most years.

I also know the history of its mismanagement as a water body, that is a shame on the reputation of the Resource Management Act (RMA) that goes back for 30 years. And I can attest to that, because the year that the RMA came into effect—around 1992—I went to a meeting in a woolshed close by the river at Mr Rutherford’s house with the late Jim Guthrie. We were explained how there was a 30-year transition for what used to be called “mining privileges”, which became “deemed permits” under the RMA, which were meant to transition into RMA water consents and, therefore, enable an effective minimum flow on the Manuherikia River, whatever that flow ought to be. And I don’t actually have a strong view as to what the minimum flow ought to be on that river. I’m actually more interested in water quality outcomes. Sadly, after 30 years of transition started in 1992, the regional council dropped the ball down there and didn’t transition in the deemed water permits, and therefore actual water abstraction during a period when environmental outcomes that should have been getting better got worse, because the actual amount of water being sucked out of the river actually increased each year and farmers became more dependent on unsustainable levels of utilisation sucked out of the main stem of that river. I know a lot about that, as you can hear, but this bill doesn’t affect it.

Thank you, Madam Chair. Just a quick question about contaminated land, Minister. There’s a clause in here, clause 427, that talks about going back to the recovering the costs from the polluter or, if not, the EPA may recover the costs from the local authority. This may or may not be a tie-in with the current Resource Management Act and it’s just a gap in my knowledge. Is there a time limit on that? Because we all know of some very contaminated—or very historically contaminated—sites. Can you just please explain that?

There’s not. The sad reality in respect of most of the badly contaminated sites in New Zealand is they’re known as what is called “orphan sites”. That is that the owner of those sites, when they were running an old sawmill or chemical production factory, they’ve long since gone into liquidation or scarpered, and there’s no one left to pay the bill of the remediation. So it falls on central and local governments to foot the bill, and there’s a limited amount of money for that. So it’s not possible to put a deadline on the rehabilitation of all contaminated land because they’re under budgets to achieve it.

I move, That the question be now put.

Thank you, Madam Chair. Just further to the questions of contaminated land, and I’d just like to acknowledge the efforts of the Minister in assisting with the negotiation of the removal of hazardous materials from Mataura back to Tīwai-Bluff aluminium smelter, because that is an example of where it is necessary for a Government to show leadership where we have an orphan site or an organisation that thought they could do the right thing with harmful materials but has not been able to succeed. But, Minister, I just want to ask for your consideration. Isn’t the issue of contaminated land primarily a matter for private property owners, unless the contamination is actually affecting a waterway which is a common asset or the ability of a neighbour to enjoy their land?

Because, Minister, in my experience, working in the contaminated land sector, the hazards associated with past industrial and commercial activity, whether they’ve been manufacturing steel components or concrete, building houses, or even painting houses that once had lead paint on them and where the preparation for repainting involves stripping and sanding and you end up with lead in the soil—that contamination is typically not a risk to anybody unless the soil is disturbed and people are exposed to contaminants by breathing in dusts, for example, such as asbestos or lead. So, Minister, if land contamination is primarily a risk to the landowner, then shouldn’t it be simply something for the landowner to manage? Because contamination, if it’s significant, will reduce the value of that land. For example, I’m aware of land developments where the price has been discounted when it comes to transacting the land because the land developer will need to spend a significant amount of money on cleaning up contamination before they can change the land use, say, from commercial or industrial to residential.

So there’s a lot of information here, Minister, on subpart 4 about classification of contaminated land and, of course, the polluter pays principle which ACT absolutely agrees with, Minister. But the landowner’s obligations are to identify to regional council when land is contaminated and to provide information about whether that contamination exceeds an environmental limit and so on. But it doesn’t say what’s to happen next, because, of course, one of the problems we have now is that simply collecting information about natural and physical hazards is never enough. Someone will always have to act on it. And, Minister, it’s not clear what that action might be from a regional council. So if you could clarify that, also your interpretation or, I guess, give us a bit of context and background on the relative issues between the private property owner having the contamination versus the public risk, if the land is not being disturbed and the contaminants are not being released.

Minister, I also want you to just give us your interpretation of how significant contaminated land sites, in clause 422, might work under this legislation, because it’s not just orphan sites that are significant contaminated land sites. New Zealand also has hundreds of closed landfills, sites where we willingly, knowingly, intentionally placed harmful substances, general refuse, municipal waste collected from households, agricultural waste and chemicals, all kinds of manufacturing wastes in communities around New Zealand in areas that are subject to erosion from coastal processes or river processes, on sites which may well be now surrounded or even have had residential developments built over them, Minister. There’s significant contaminated land sites like closed landfills.

Minister, when it comes to paying for it and time frames, if you could give us some clarity about once these sites are identified, whether there is an opportunity to clean them up, who should pay. And, Minister, given you also have the responsibility for the waste levy under the Ministry for the Environment’s overall programme of work, would you be able to indicate whether the waste levy collected from disposing waste at landfills now, which is heading up towards $60 a tonne or more, could be applied as a fund to provide funding and financing for cleaning up of the significant contaminated land sites. Minister.

Thank you, Chair. Look, the member understands these issues are complicated. I understand that he understands the complication. I agree with his general proposition that you’re more worried about contaminated land if the contamination is going to flow from that land into a water body or into the air or into an adjacent piece of land. But some of these provisions also note that if the land use changes, you’ve got to be pretty careful it’s contaminated. It might be OK to run a lead acid battery manufacturing plant on a piece of land that’s industrial, but if it’s become contaminated and you were to convert that into a residential subdivision, then, of course, the lead poisoning that could occur to people living in the housing that is built on that subdivided land could be significant, and there’s a public policy interest against that happening, and so that’s why provisions like clause 421 provide duties on territorial authorities when considering consent applications to subdivide contaminated land.

In respect of the issue as to the waste levy, yes, we’re actually giving consideration to that. I think where that will end is in that in respect of municipal sites where, really, central government probably had responsibility for the original site. I’m certainly open to the idea that the Waste Minimisation Fund should be able to be accessed to help remediate those sites. I think that’s a practical and sensible thing to do.

In respect of private sites that are owned by private bodies who have polluted their land, I’m not sure that the public purse should be going to that.

Thank you, Mr Chair. I just wanted to ask here around significant biodiverse areas and the considerations relevant to the Minister under clauses 427D and 427E. I note that before specifying criteria that the Minister must seek—in the national planning framework, the responsible Minister must seek written advice from the environmental limits and targets review panel, on (a), “whether, in the opinion of the panel, the criteria proposed by the responsible Minister are scientifically robust; and (b) any other matter the responsible Minister considers relevant”. But when I look under 427E, I note that in the criteria there is nothing there to address the issue that the Minister noted before, which I think was quite right. Which is, for example, in Queenstown, there are potentially real barriers to building new transmission lines, which the area may very well need in the not too distant future because of the electricity demands and growth that that requires. So there’s potentially an issue here in that the Minister must set criteria but can’t take—my question is: can the Minister take into account other really important considerations, like, for example, the need for a transmission line to be built for an area like Queenstown which needs more electricity, and that may cross areas of significant biodiversity values?

The bill—higher up in the scheme of the bill gives priority to the provision of renewable electricity. It also gives provision to a higher recognition to infrastructure provision more generally, not just renewable electricity. Both of those pathways would help, as would the regional spatial strategies required under the Spatial Planning Bill, that we are yet to consider. But in addition to all of that, even if there was a highly nationally important biodiversity area identified, actually the only exception really that you can get to that is for critical infrastructure that’s got nowhere else to go. So even if the whole of Queenstown was to be—surroundings of it were to be in that high category, and I don’t think they ever would be, even if they were, even then, the bill allows an exception for that critical infrastructure that can’t be put anywhere else. But in the event that would happen, the damage that the pylons would do to that area would have to be offset by some environmental measure elsewhere.

The question is that the Minister’s tabled amendments to clauses 427G and 427X on Supplementary Order Paper 389 be agreed to.

Point of order, Mr Chair. I’m just wanting to check that there has been the proper order of the Supplementary Order Paper put here. I’ve got this Supplementary Order Paper in hand, which is an amendment to Supplementary Order Paper 389. It is on the Table. I’m just checking with the Clerks as to whether that amendment to the Supplementary Order Paper 389 ought to have been put before Supplementary Order Paper 389 was put. Here’s the document there.

We’ll just take the time to make sure we’ve got that right, Minister in the chair.

Mr Chair, can I assist the committee here. I’m speaking to the point of order that I’ve raised. I think the Supplementary Order Paper should have been put first, and I’m not sure what the proper way through is. The simplest way for me is just to seek leave of the committee rather than have an argument about it. If necessary, this is a matter that I would need to push, but I suspect there is an easy way through here, which is to—I’m not sure whether that vote had been completely recorded. Perhaps we could have an indication—

💬 Matt Doocey: Just speaking to that point of order, Mr Chair.

CHAIRPERSON (Greg O’Connor): Just hold on one second.

💬 Matt Doocey: Just while you’re working through the proceedings, I think it would be helpful from the Minister for the committee just to hear why he thinks the order should go in the order he is suggesting and the issues that he’s trying to overcome.

He has spoken before. But elaborate on your thoughts on the point of order.

If it assists, I believe that the process of the committee is meant to put amendments to amendments before the amendment is heard, if they’re from the Minister. That does not appear to have occurred here. I’m not blaming the Clerks, but that’s what has happened here, and I would suggest the proper thing is to put that Supplementary Order Paper that then amends that wider Supplementary Order Paper in the manner that accords with the Standing Orders.

Speaking to that point of order, surely if the proceedings aren’t in order, that probably makes the last vote void—you can’t be amending an amendment that hasn’t been amended.

OK. I hear both sides. If you can just allow me to take advice now. I think we have a way through. Just to clarify: I’m advised that the tabled amendment was actually voted on through the wording of the amendment. So, actually, if the member is concerned that it hadn’t been, I’m reassured that isn’t the case. Thank you for the committee taking the time to clarify that. We are now in the position we were in before. We’ll now go on to the second amendment, which is that of Simon Court. Just before we go, everyone understands?

So, if my understanding is correct, you’re now saying that we’ve already voted on that Supplementary Order Paper of 10.20 a.m., on clause 164, and that tabled amendment was put before the Supplementary Order Paper 389 was put, and therefore they have both been voted upon and we come to the member Simon Court’s amendments.

That is the advice I’ve received. The question is that Simon Court’s amendment to Part 6 of Supplementary Order Paper 389 set out on Supplementary Order Paper 392 be agreed to.

The question is that the Hon Eugenie Sage’s amendments to clause 427A of Supplementary Order Paper 389 set out on Supplementary Order Paper 394 be agreed to.

The question is that the Minister’s amendments to Part 6 set out on Supplementary Order Paper 389, as amended, be agreed to.