Natural and Built Environment Bill

We come now to Part 11. This is the debate on clauses 694 to 802, “Compliance, monitoring, and enforcement”, including Schedule 6. The question is that Part 11 stand part.

Madam Chair, thank you for clarifying, because I know the fact that Part 10 had disappeared—and those of us that sat on the Environment Committee will understand the reasons for that—but people who have been maybe following this debate assiduously at home or on the wireless will be wondering what happened to Part 10. Well, it has been amended, and that goes to show that the select committee actually did extraordinarily good work, I thought, on this and was capably chaired by the Hon Eugenie Sage throughout, but we spent an awful lot of time on this legislation.

Part 11 deals with compliance and enforcement, and it’s an area of the legislative flow plan—if I can put it that way—perhaps, that is at the heart of much of what happens in resource management law, planning, and what have you. It’s the bit that often causes individuals, property owners, and indeed councils, regional councils, and all sorts of people—businesses, entities—an enormous amount of time, effort, and energy in terms of complying with the fine detail of the legislation and then, indeed, the actual enforcement of it.

It’s been the subject of much criticism in terms of the existing Resource Management Act, and my opening question to the Minister is: in what ways does Part 11 make process better, cheaper, easier, more convenient for people wanting to get things done? How is it that Part 11, throughout any of the clauses that are listed, changes what is already existing, and what provisions can the Minister point to that are going to make this part of his proposed legislation better than what we already have?

Again, much of this is carried forward by the Resource Management Act, but the significant change, I would say to the committee, is the introduction of a civil remedies regime. Under a civil remedies regime, instead of suing someone through the criminal courts and trying to get a conviction for breaches of the law and perhaps an enforcement order that some environmental ill that is illegal be remedied, the new statute enables agreements to be reached between the errant party—if I could describe that in that ways; perhaps someone that’s caused some pollution over a period of time—to invest in things that will remedy the breach. The experience overseas has been that you can sometimes get to better outcomes through an agreement with the errant party promising to fix up their errant ways rather than prosecuting them through the courts.

So, yes, indeed, the opportunity to participate in a civil proceeding is, on the face of it, laudable—it, you know, makes a degree of sense, but it would make a whole lot more sense if our civil court system was working faster and quicker, and I don’t have any confidence that, actually, actions in civil litigation are going to provide any kind of more speedy, less costly, or more efficient outcomes. So the pathway, in principle, is effective and probably worth pursuing, but, again—like so many other things that happen with the current Government—it’s the practical application where people are let down, because the civil justice system is mired at the moment, and anyone that has had anything to do with a civil case will know how long it takes to get things through the civil jurisdictions.

I want to spend just a minute or two talking about some of the enforcement orders. I know that the Minister has already indicated that a lot of this is replicated from the existing Resource Management Act (RMA), but again I make the point that so much of what is wrong with the existing RMA is in the detail. So much of what is wrong with the RMA in its current form hasn’t yet been addressed by the nitty-gritty process detail that has been transferred into this piece of legislation from the existing legislation, and therefore many of the pitfalls are going to be exactly the same.

Clause 700, for instance, “Scope of enforcement order”: “An enforcement order is an order made under section 705 by the Environment Court that may do any 1 or more of the following”, and then there is quite a long list; it goes through to paragraph (j)—so all sorts of things in terms of an enforcement order. It’s this kind of detail that is a mystery to laypeople trying to work their way through a situation where they may have a matter that has been brought by a local council or a consenting agency or whatever and where an enforcement order has been put in place. Then, their ability to understand in a meaningful way what is being asked of them will almost certainly require professional assistance, and that professional assistance will come at a cost and it will mean that it’s not easy to use. So that’s just one clause, clause 700. As I said, it’s quite a long—I’m not going to waste the time of the committee of the whole House in going through it subclause by subclause, but it’s quite extensive.

Then, 701 goes through an equally long process, the compliance with an enforcement order: “An enforcement order is made against a person, and that enforcement order is served on that person, and that person must”, and then there’s a whole range of things that they have to do. Then, there’s clause 702, the application of an enforcement order—again, detailed, long, with a lot of reference back to other clauses. For those that, for instance, have not had the benefit of a law degree or legal training, much of this is going to be very difficult for them to follow, so again, Minister, I wondered if you could give us some insight as to why, for instance—just something relatively pertinent to the whole process—[Bell rung]

CHAIRPERSON (Greg O’Connor): Order! The member—

Mr Chair—sorry, I had neglected to see that the Chair had changed, so my apologies, Mr Chair.

CHAIRPERSON (Greg O’Connor): It’s good to see your concentration is so—

Well, this is a weighty matter, Mr Chair. It’s a matter that does require concentration, and it’s required the concentration of a number of us for many, many months—many, many months. Some of us have spent a lot of time on it. But I come back to my point, and it’s about—if the purpose of the Government’s whole rationale for these significant changes is to make improvements, then where do we see it in something as basic to the whole thing as enforcement orders? I don’t see that in any of the words that are in front of me in this part of the bill, Part 11, because it’s just a straight copy of what we have now. I would have hoped that there was an opportunity for some streamlining, some using, for instance, of just language that was more easily understood. It’s heavy, black-letter law that is going to require a lot of understanding by the people who are impacted by it.

So, general comments, I know, Mr Chair, but I think pertinent to the whole Part 11 of the bill.

The member asked for some practical examples. The first point I would make is that it’s actually generally not “Mr Smith” or “Mrs Brown”, or any other individual, who takes enforcement action for breaches of the Resource Management Act or the new statute—it’s generally councils or the Environmental Protection Authority, and they need powers to do what is practical. I agree with the member there.

The clause that the member referred to, clause 700(1)(j), makes reference to “monetary benefit orders” and “adverse publicity orders”. These are both new instruments. I’m not sure if the member is aware—he may well be—that this matter could have come up when he was the Prime Minister, but it certainly came up on my plate after we came into office.

There was a very irresponsible company called Sustainable Solvents, who had an operation near the Whangārei oil refinery, actually. So-called “Sustainable Solvents” had a permission to bring on limited amounts of solvents collected from a range of places—like people that make paint or other people that are involved in chemicals—to process them and then take them off-site. They took the money, they stored the solvents in metal barrels, and they accumulated enormous quantities—far more than they were allowed to. They left it there so long, these highly flammable, highly toxic substances started to rot through the metal barrels that they were contained in, and then they scarpered and ran away from their insolvent company.

The cost to taxpayers and the local councils up there, of remedying that particular atrocious behaviour, was worth more than $1 million, and—as history will record—there was actually no effective remedy against the people that caused the problem. There will be under the new regime, and two of the mechanisms for that are monetary benefits and adverse publicity orders.

Monetary benefit orders, which are referred to in clause 700, are detailed at clause 718, and they allow the Environment Court to make an order to pay an amount that the court thinks is fair, on the balance of the probabilities, representing the monetary benefits acquired by the person as a result of the commission of an offence. So in that case, if a director of that company had pocketed the money that they’d collected for the theoretically safe disposal of those chemicals and then then did the scarper, leaving the council and central government with a million-dollar bill, and if they had made a million-dollar profit on the way through, theoretically the counsel could come along and say, “You should have to pay $1 million.” Now, that would be an extreme example, but sadly, there are other examples of that, like New Zealand.

Now, in that sort of situation, I suspect an adverse publicity order wouldn’t matter very much—but it does to the big corporates. Some of the big corporates that have got themselves in a bind do react to the possibility of an adverse publicity order. One of the things that happens overseas, particularly in respect of large corporates, is that the courts can say, “There should be publicity that this particular corporate did things that were wrong.” That’s what adverse publicity orders do.

Thank you, Mr Chair. Thank you, Minister. You were saying earlier about coming together, basically, and working the differences out between polluters and non-polluters, but I was just wondering—I might be completely blind—is there a time frame to be able to work it out before they go to the next stat? Because, as you know, many people work faster than others. Is there any sort of time frame to make sure that when two parties are working together to come to a solution, there will be some form of time frame before you go to the next stat where you may have to go to court?

Thank you, that’s a very good and practical question, and, yes, there are. As with any other area of law enforcement, there is general a period—except in the most serious of crimes, like murder, for which there is no limitation period. For things that relate to the environment, there is generally a limitation period which stops you bringing a prosecution after a period of time. Now, that sort of cuts both ways, because if you have too short a limitation period, you can both make it too hard to bring people to account, but you also frustrate the ability of people to do the right thing in advance of and in substitution for more penal enforcement proceedings.

So the bill tries to address that by extending the limitation period from two to six years, which is the normal limitation period that applies at civil law. If I have a contract with you and I breach it, you have six years to sue me. If I act negligently and cause you harm, the statute of limitations says that you have six years to bring your case against me. And now, in environmental cases, councils will have six years to bring prosecutions against those who have erred. And, of course, during that sixyear period, work can be done to ameliorate those things in a way that might avoid a prosecution.

Thank you, Mr Chair. Just on that one, Minister, the per- and poly-fluoroalkyl substances pollution, for example, happened quite some time ago. So does that apply—that statute of limitations, as it were, apply to that? Also, the example that the Minister himself gave earlier about barrels rotting away with the chemicals inside them, which could take, let’s say they’re buried or stored somewhere, and they rust through or corrode away, you know, over a period of 6.5 years—is the polluter then still able to be captured under that circumstance?

I should clarify an earlier answer, in response to the member, I conflated two issues: criminal penalties and civil penalties. Civil penalties, the limitation period is six years. The criminal limitation period is extended from 12 months to two years. So the criminal limitation period is two years, not six years. The civil one is six.

In respect to the question about per- and poly-fluoroalkyl substances (PFAS). The PFAS challenge is an interesting one because those chemicals, when originally used, were legally used. People didn’t understand properly that the long-term effect of PFAS and PFOS. I won’t even try and pronounce the long name—polyfluoride—very long name.

💬 Hon Member: Oh, give it a go!

Ha, ha! No. They were used most commonly in foam to put out chemical fires. We’ve had some problems around that in the country, although not nearly as bad as the problems Australia have, partly because we don’t have as big a defence force, and therefore not using as many of these foams in, you know, trials, putting out—firefighting practice. So I would think that in most cases, no, there wouldn’t be a remedy for those historic incidences in the use of that.

Having said that, we have found that since the banning of PFAS, some people have continued to use it illegally. Not often, but if there was a case where they had, after it became illegal, disposed of it and put it in, for example, a dump where it was causing problems, and that was found out to have occurred, then I would have thought that would be in breach of both the existing law and the new law. As to how that would interact with limitation periods that I’ve described, well, we’d have to look at the facts of the case.

Thank you, Mr Chair. I’ve just got a question on clause 732(1) on page 573, where it says, “An NBE regulator may require a person undertaking a particular activity to provide a financial assurance.” My question around that is that one of the three really big things that came up when we were taking submissions on this was the term of consent and the 10-year consenting—and I know it’s a topic that’s come up several times before. One of the points that was always made was that if the consenting process was too short, then the project may be viable on a longer term, but you wouldn’t get the bank to be able to fund it on a shorter term. So I just want to test the Minister for the Environment’s understanding, I guess, on how this clause, with any shortened consenting, may affect people’s ability to get financial assurance.

Look, I don’t think that this would impact upon that; I think that’s an unrelated issue which has been partially addressed by amendments that have been made. But this relates to the term of bonds. These are, effectively, financial guarantees that have been provided by someone when they’re going to do something that’s risky for the environment. Again, we’ve had real examples where bonds haven’t been taken, and taxpayers have been left with bills, sometimes of $100 million, in respect—and this is a recent occurrence—of the remediation of some of the former oilfields in the Taranaki basin where the corporate has left a mess behind, that the company has been insolvent, and we’ve been left with no one to pay the bill and it’s fallen to taxpayers.

Thank you, Mr Chair. Can I just say that I’m very much appreciating the Minister for the Environment’s willingness to engage on the detail of this stuff. It’s really helpful and it’s an indication of, I think, a good committee of the whole House process, and he’s been very patient and very generous with his explanations

But I want to come back to this clause 718. Before the Minister’s earlier explanation, I, for one, hadn’t actually fully understood, I think, the potential impact of that change. So I want to just think for a minute, and if the Minister can maybe give us an interpretation. How would this clause, 718, the “Monetary benefit orders”, help in a case, for instance, like that that occurred at Mataura after the aluminium smelter sent toxic aluminium waste to a third party, and then the third party shipped it to the Mataura—well, the storage place close to the Mataura River, which occasionally floods. This toxic waste had the potential for causing great damage if it got wet.

The ability, then, for the principal polluter to then, essentially, subcontract out responsibility for the waste to an entity that may subsequently become insolvent or unable to meet demands and the bad stuff is still there—what is, then, the nexus and causal responsibility of the original polluter, notwithstanding that they had legally attempted to contract out of their responsibility for the ultimate safe disposal of that waste? Does this clause cover that situation where there is a chain of commercial transactions, each one potentially negating further and diluting further the legal responsibility of each entity as that progresses through the commercial chain? Does this clause meet that kind of situation?

Look, I actually don’t think it would in that—I was also involved in that particular instance. It might apply if the storer of the material had taken money from the smelter to store and dispose of it properly, and then took the money and didn’t do the job. Then, you might get an order against the company or the person that was the contractor that didn’t do what they were meant to do, but I don’t think you’d get a monetary order under the smelter in respect of that.

There might be other remedies against the smelter for not properly taking care of their materials, but that would be dependent upon the facts. In actual fact, what caused the smelter to take responsibility for that was what, in America, they call the “bully pulpit”, because we publicised through this Parliament the poor behaviour of Rio Tinto in that case, and it was reported in The Guardian and came to the attention of the audit committee of Rio Tinto, and then they paid attention and started to take responsibility for the problem.

CHAIRPERSON (Greg O’Connor): Honourable Stuart Smith—sorry, the Hon Scott Simpson.

Thank you. Same initials—it’s all right. It’s not the first time.

CHAIRPERSON (Greg O’Connor): You’re not even sitting together this time!

Ha, ha! Mr Chair, your good humour is appreciated as well. But I think it’s worth teasing out this point, because these are practical, real situations that occur in New Zealand, sometimes at the hand of large international corporates. I think the Minister makes a useful point, but surely shouldn’t it be that there should be some kind of legislative regulatory control or ability to put into effect responsibility for the primary polluter having responsibility for the toxic waste that they may generate, rather than just relying on a bully pulpit response from our Parliament?

Notwithstanding that the bully pulpit may be effective, but wouldn’t it be better to somehow try and create a legal framework, and maybe, within this art of the bill, could have been an opportunity to have attempted to do that. If this part of the bill can’t do that, is there another part of the bill that could or should, and was that kind of prospect considered by officials or the Minister in his consideration of this Part of the bill?

When I said Rio Tinto before, I should have said the New Zealand aluminium company, of which the majority shareholder is Rio Tinto. Look, I’m not going to go much further into that instance because it is very complex, because some of the things that happened way back when down there were actually permitted activities and were legal. So you’ve got to be careful to distinguish between what happened when and what was the legal status of things when it happened.

The Hon Scott Simpson. This is short, sharp questions to the Minister and back.

The short, sharp question is, notwithstanding historic cases, why couldn’t we have put into this legislation something that would prevent future cases?

Well, the “polluter pays” principle is enshrined in this legislation, and so you would expect that if in the future someone sought a resource consent—and you would need it for something as complex as a large smelter—the conditions of that resource consent would apply the “polluter pays” principle and require them to take financial responsibility for the hazardous substances produced as a consequence of their industrial process.

Oh, well thank you, Mr Chair. I wouldn’t mind if you used “the Hon” bit. That would be fine.

💬 Hon Scott Simpson: Soon!

Ha, ha! Soon. Clause 716A, “Water shortage direction”, Minister—particularly “(2) A direction may relate to any specified water, to water in any specified area, or to water in any specified water body.”, and “(3) A direction may not last for more than 14 days”. I don’t see anything in here that requires that direction to be hierarchical. So you could foresee, Minister, a situation where those with different water-take consents—for example, some with a primary consent so that they can go to A-class water. Depending on what the class situation is on those consents, you would not expect they would have to go off at the same time as, say, a B or C class water-take, and there doesn’t seem to be any direction at all for a hierarchical approach to be taken. Am I understanding that correctly?

No, I don’t think so. With respect, I’m informed that that is a carry-over from the Resource Management Act (RMA) section. So if the local council, in the way they deal with water shortages, is to put some people off first, that will continue to apply. I know that, as a matter of fact, it depends sometimes on the nature of the water consents. Sometimes if they’re old pre-RMA deemed permits, they prevail over RMA water permits.

I would also note one other important change in this part of the bill: until now, as a matter of general legal proposition, you can’t insure against criminal penalties. So I can’t get an insurance company to pay my traffic fines or cover me if I do something in breach of the criminal code. That is a matter of public policy; you can’t take insurance against that. Until now, you’ve been able to insure against Environment Court fines, and some people have—and they’ve deliberately paid an insurance premium rather than the fine—so that is made illegal by this part of the bill.

Thank you, Mr Chair. I’m just looking through this and I was just reading through the abatement notices, and I came across the cancellation of abatement notices. Now, I’m assuming that they’d only be cancelled once the person or company has achieved what they have had that notice on, before they’re cancelled, because it doesn’t actually say that here. I might be misreading it, but it doesn’t actually say that they have achieved what’s in the notice that has been put on them. Would that be correct—that they would have to go through whatever the notices had, to be able to get that notice of abatement removed, before the cancellation occurred?

I would say that’s normally the case, but I could also contemplate the possibility that an abatement notice is given to a company, rather than a real person, and the company might go into liquidation and have no ability to do anything in terms of the abatement notice. I can imagine, in that circumstance, even though the abatement notice hadn’t been adhered to, eventually it might be cancelled.

I move, That the question be now put.

Thank you, Mr Chair. I want to turn to Subpart 4 of Part 11, in particular reference to “emergency works”. Across the nation this year, we’ve had some horrific weather, with awful impacts on land, property, and people’s lives; my area in the beautiful Coromandel has been particularly harshly hit. So Subpart 4 provides a range of emergency works provisions where there are exclusions for work to be done when circumstances such as a civil emergency is declared, work that can be done without a consent during a period of time, consents for emergency work, power to take preventive action or remedial action—that’s quite an extensive area there.

But I want to particularly refer to clause 755(3): “The person who authorised the activity must, within 60 working days of the notification under subsection (2), apply in writing for the appropriate consent authority for any necessary resource consents required in respect of the activity”. So it provides an opportunity for work to be done, and then a retrospective consenting process to occur. There are times when some of the emergency work that needs to be done, for instance, a clear road on the Thames coast, somewhere between Thames and Coromandel where you have a steep hillside; a narrow winding road, and then the foreshore immediately adjacent. In years gone by, in a less enlightened time, road repair workers would simply bulldoze their way through the slip and literally push it into the tide, and that’s what they’d do—no consent required, nothing of that nature. What’s now required is that that slip be cleared, that the waste be trucked to a consented waste deposit area, and my concern is that sometimes that is simply not practical.

I’m interested to know from the Minister whether consideration was given to maybe providing a more flexible arrangement that would allow for an activity that may be—under normal circumstances; under normal weather events; under what we would consider a “business as usual” operating situation—not acceptable, but in an emergency situation is entirely acceptable; entirely practical, and yes, may not meet best practice, but will actually mean that people’s lives and their ability to communicate, to travel, and to just go about the day-to-day business that they need to do—particularly in an emergency situation—could be better applied for.

I also want to ask the Minister specifically about a situation that a colleague of mine, Nicola Grigg, has raised on a number of occasions, where farmers in her neck of the woods—in her Selwyn electorate—have a situation where there is a flooding area, where braided rivers or streams can actually be clogged and full of debris, and then the farmer has a time-limited ability to clear that away, but the time limit is actually relatively short—I can’t remember it, and I can’t at the moment see it at my fingertips. But I’m interested to know whether there was consideration by the Minister or his officials to making these rules a little less formulaic, a little more practical, and a little more userfriendly under the difficult and challenging situations that exist when we have a civil defence emergency having been put in place.

More good news for the member—

💬 Hon Scott Simpson: Thank you! It’s getting better.

Ha, ha! The only time you have to apply for a resource consent is if there is a long-term adverse effect from what is done in the emergency, so you can respond during the emergency and do whatever’s required under the emergency management legislation, but if there’s an ongoing adverse effect, you do effectively have to apply to either regularise it and let that adverse effect apply forever, or get some other way to deal with it. In 2020, we changed that period during which, if there is a long-term effect, the period that you’ve got to apply for your resource consent was doubled from 30 working days to 60 working days, because this was a real problem—60 working days is 12 weeks, which is, you know, three months, really—

💬 Hon Scott Simpson: It’s about the same length as an Official Information Act request.

Ha, ha! So—

💬 Stuart Smith: They always ask for more time.

Ha, ha! That’s right, you always ask. So yeah, I think that’s the answer to that. Whether you do need a resource consent: some of these things are permitted activities, for example, a lot of plans throughout the country allow a lot of remedial roadworks—not all remedial roadworks—or works to the railway line and things; that’s a permitted activity, you don’t even need a resource consent.

I move, That the question be now put.

Thank you, Mr Chair. Wise choice. Clause 807, “Mode of service of summons on master or owner of [a] ship”. It goes on in (1) to say that “if it is delivered personally to [an] agent of the ship on behalf of the defendant or is brought to the notice of the agent if the agent refuses to accept it on behalf of the defendant; or if it is sent to the agent of the ship by [a] registered letter addressed to”—etc. But it may not have an agent, and what defines a “ship”? Because, does that include—people live on boats and I don’t know where the line is drawn between “boat” and “ship”, but it doesn’t seem to be—

CHAIRPERSON (Greg O’Connor): I think the member’s getting ahead of himself. Think this is Part 12 you’re looking at, are you not?

No, I’m not. Oh, am I? Oh hell, I am too. Sorry. In my enthusiasm, I turned too many pages.

CHAIRPERSON (Greg O’Connor): Well, we could get there as soon as he would like.

Thank you, Mr Chair. It’s about excess noise—clause 714. Coming from Christchurch, we’ve had a little bit of a problem where we’ve got existing events, places, pubs and now we’ve got a whole lot of new rebuilds occurring. A lot of these people are realising that they’ve built their new homes, or have ended up buying an apartment, close to the excess noise.

I know this is back to councils on that, but the thing is that these people have built these houses near these bars or excess noise, or new subdivisions closer to the airport, but then they come back and they’re complaining about the noise that these places have. The thing is it’s really hard, because we want to build more houses, but it doesn’t help if these are built in areas where these people are going to see that there’s excess noise, and how this could be circumvented before we end up having all these complaints coming through to the council, saying, “Oh, look, you allowed X, Y, Z, to be built here, but we already had these places built 10 or 20 years ago.”

It’s been a huge issue, especially downtown, because we want to revitalise that Christchurch downtown, but people are not prepared to put up with this noise. To me, this here, it’s not combatting to say, “Yeah, you’ve got excess noise”, but what happens if you buy something—what’s the recourse of them saying, “It’s your onus. It’s on your onus. You bought that property, that bar or event place is just there, even though it’s a new build.” So that’s about the excess noise, because it’s happening a lot.

Fair points that the member Toni Severin raises. It can’t all be planned for in advance, because circumstances change over time, but I do agree, as does the statute at clause 714(1). It says: if the noise is excessive, it has to be unreasonable. What is unreasonable depends upon the circumstances. Obviously, the noise that you would expect at night in the middle of an industrial suburb would be different to in the middle of a residential A zone. Similarly, the noise that you have to put up with if you’re living in a rural area that has a lot of cherries being grown includes bird guns, and you can’t shut down bird guns just because you move in next door and subdivide the land.

Having said that, if the whole area eventually turns into residential, what used to be acceptable—you know, the standards change. It is a thing that worries the likes of airports. Airports, if there are subdivisions too close to them, suffer what are called reverse sensitivity effects. Those sorts of things are required to be taken into account under the statute so as to protect the operation of infrastructure like airports.

The question is that the Minister’s amendments to Part 11 set out on Supplementary Order Paper 389 be agreed to.