Resource Management (Natural and Built Environment and Spatial Planning Repeal and Interim Fast-track Consenting) Bill

We come now to the debate on clauses 1 and 2. This is the debate on the title and commencement.

Thank you for the opportunity to comment on this part, Mr Chair. It has been a lively debate and I want to take this opportunity to thank the Minister for his discursive approach to it—

Chlöe Swarbrick: Discursive!

—and in answering questions. I love a discursive approach, Chlöe. I encourage you to take a call, Chlöe Swarbrick.

Clause 1 has an amendment in my name that has been tabled. I hope the Minister will give it some consideration. The amendment is to change the name of the bill from the Resource Management (Natural and Built Environment and Spatial Planning Repeal and Interim Fast-track Consenting) Bill to the “Resource Management Return to the 2022 Position Bill.” This is a serious amendment; it is not a silly name. What I am trying to highlight here, for the record, is that how we name this Act is important, and to give some of indication to the decision makers who rely upon the statutes to make decisions about what resource management regime they’re following, because the difference between the 1991 Resource Management Act and our current position in law is significant. We’ve traversed that well in the committee but what I’m wanting from the Minister is an indication of whether he will accept my amendment to the name or—

💬 Hon Chris Bishop: Just read it out again.

—I can read it out again for him in a second—whether he will consider this name change or make it clear to the committee in an answer to my question what time period he is seeking for decision makers, under these Acts, to use because it’s certainly not 1991. We’ve had conversations in this committee about what we are returning to here. The law has moved on and it would be useful for the Minister to give us an indication on that.

There is a second clause amendment in this part with an amendment in my name. It would amend clause 5 of Schedule 1, coming into force on the day that is 18 months after the rest of this Act, but allow clauses 6 and 7 of Schedule 1 to come into force on a day that is nine months after the rest of the Act. So the change there is that the Minister’s repeal bill would come into effect mostly with that nine-month period; this is allowing the operative part—the clause 5 part—to repeal the whole Act at a later date.

I think what I’m really getting to here and what I’d like the Minister to consider in my amendment is whether there is any reason, given that he has some interest in allowing select committees to inquire into which parts of the three Acts that are being amended by this bill—you know, those parts that it is worth building bipartisan support for and keeping on the statute book and whether there is any reason why there shouldn’t be a time extension of the operative parts of those Acts, to remain in effect while we make that consideration. I’ve heard the Minister say that he wants to return to the old system now, but it would be useful, I think, for the House and the way that we make law in this House to be able to consider what should be kept, in a select committee setting, while those parts remain in force.

So my questions are really about the period of time, and there were some good contributions by my colleague the Hon Rachel Brooking about the difference between the 1991 regime and the 2023 regime that we find ourselves in, and that includes not only the law as it stands on the statute book but also those changes that have been made by the courts since then. There were also some contributions that the Hon Peeni Henare made, particularly about those changes that the courts have made in the way that we would consider the hierarchy of values when we take those into account around things like kaitiakitanga and the role of iwi and hapū in things like consenting decisions. So it would be really useful for the Minister to consider my two amendments. I hope he will give me one amendment. I’ve been trying for three hours now.

Thank you, Madam Chair. I’ve been pondering the member’s suggestion. It has a certain logic to it, but just because the Act is the 1991 Act doesn’t mean that people think the law is as it was in 1991. As the member knows, the Resource Management Act has been amended probably hundreds of times in the last 30 years, which might speak to fundamental design problems in the first place—

💬 Hon Rachel Brooking: That’s right; that’s why we fixed it.

Well, we’re on a very narrow part of the debate now; you’re not going to get me back on that but good try, and there are many other Acts that have been amended hundreds of times. So I think we’ll stick with the wording as it is, but not a bad idea.

In relation to the second question, I don’t think we need to alter the commencement provisions to do a process of working out what we want, the additional things we want to keep from the Natural and Built Environment Act. We’ll work through that in due course. I’m attracted to the idea proposed by the member previously about getting a select committee to do a bit of the heavy lifting on that. If the member wants to be—I don’t know, is the member part of the Environment Committee?

💬 Arena Williams: Draft me in; you’re on the Business Committee.

Well, you know, there’s 123 MPs; I don’t know what every committee MPs are on. I’m still getting to know the new members. There’s not so many on the Opposition benches but there’s quite a few on the cross benches from the Greens.

💬 Hon Kieran McAnulty: So no interest; hasn’t got to know his colleagues.

Oh no, there’s 123. I hesitate to make this point but I wonder if you know the name of every MP in the Parliament?

💬 Hon Kieran McAnulty: I do.

Oh, righty-o, OK. It’s big talk for a Wednesday morning. Anyway, so good ideas but I think I’ve answered the questions.

Thank you very much, Madam Chair, and I appreciate the invitation from the Minister to name every member—I can do that. I won’t, because that wouldn’t be relevant—and nice try, that was a good little trap you set for me there, Minister, but I’m not going to fall for it.

I’ve a genuine question about the commencement here, it’s not going to take long. I do want the Minister to answer it because I think the Chamber deserves to know. As you know, as it says, clauses 5 to 7 in Schedule 1 come into force on the day that is nine months after the rest of the Act. Is nine months enough? That’s what I want to know. Is nine months enough to do all the things that the Minister has said they want to do, which is the justification for having these delays. They’re going to get things in place, they’re going to tidy things up, they’re going to line it up—plus the amendments, get things ready, and they’ve given themselves nine months.

If he can come back and say, “Yes, nine months is enough and this is why”, fair enough; good as gold. But I think it’s worth considering an amendment to this, a genuine one, if the Minister can’t come back and explain why nine months, the reason being that nine months isn’t long when it comes into force after Royal assent—presumably that’s going to be pretty quick, then the public sector is going to be off for six weeks, pretty much, and fair enough too, the way things have been going. It’s certainly going to be on a slowdown. But the point is that nine months seems like an unusual period of time and if we are to consider amending that, an explanation is due to the committee.

If we do amend that, it would be nice to have enough time to actually get it in. I note that before the last closure, the Minister said “Yes, we will consider your amendment”, and I said “I’ll just have to go and print it”, and he said “OK”, then it got closed. So that was an unusual and disappointing outcome, particularly when the Minister and I get on well, we work together constructively—we were about to, didn’t get the opportunity, and we have the opportunity now. So just a quick explanation please: why nine months? And is that long enough?

Tēnā koe, Madam Chair, and thank you very much. To the nine months, I see that the commencement date is nine months after the rest of this Act comes into force. The question I have for the Minister is pretty simple and I raised a little bit of it earlier. We were talking about report backs and the time that the Minister will take to enable the Ngā Hapū o Ngāti Porou Act. You’ll see in the bill that it says here, “use the Crown’s best endeavours to promote the enactment of the Bill not later than 18 months after the commencement of this clause.”

So by my Mōtatau maths, and I got 54 in School C. maths so please just—it’s a pass but bear with me here. The 18 months plus the nine months—27 months, leading into another election. My very simple question to the Minister is: does that mean that Ngā Hapū o Ngāti Porou are in limbo for 27 months with respect to their piece of legislation? As well as ngā Mana Whakahono, and if I recall correctly there is three months to report back to those iwi who look towards making an attempt to be recognised as an iwi authority. So just a very simple question on the nine months plus the 18 months: is the Minister suggesting to Ngā Hapū o Ngāti Porou that they’ll need to wait 27 months in order to get any progress on their particular legislation?

I’m not allowed to refer to a member who’s not here, but he isn’t. Mr McAnulty asked about clause—

💬 Camilla Belich: He’s here now.

Oh, he’s here. Welcome back.

💬 Hon Kieran McAnulty: You’re not supposed to say I wasn’t here.

I know, I know, I know. I just said that, but I got away with it. It’s all in the spirit of good faith. In relation to clause 2, subclause (2)—sorry it’s clause 1, actually. Clauses 5 to 7 are there basically to allow the 100-day fast track, so to allow the Government’s own fast-track legislation to be progressed, which is part of our 100-day commitments. The provision is to give comfort to particularly post-settlement governance entities in the unlikely event that it takes longer. I think the member was proposing a longer window. If the member wants to put a reasonable piece of time on the table beyond nine months, we would be prepared to consider that. If it would make everyone feel better about life, I think it would be a reasonable and constructive way forward.

💬 Hon Kieran McAnulty: Point of order, Madam Chair. Could I seek the Chair’s assurance that I will have enough time to actually submit this amendment, given that the last time we had an agreement with the Minister that I could submit an amendment, it was then closed and that opportunity was lost.

Speaking to the point of order—

💬 Hon Kieran McAnulty: Not sure you’re supposed to—

CHAIRPERSON (Maureen Pugh): Hon Chris Bishop, speaking to the point of order.

💬 Hon Kieran McAnulty: From the chair? Are you supposed to? Someone else could—don’t know if you can.

CHAIRPERSON (Maureen Pugh): Yes, I believe he can.

It’s fine—yes.

Madam Chair, thank you for the opportunity. I have five questions for the Minister about the Royal assent. The first question is about the nature of Royal assent. For the committee’s benefit, Royal assent is granted by usually the Governor-General, and so my questions are around the legal risks which this legislation creates at every point of decision making and in exercise of the Crown’s powers, and that includes the point about Royal assent. This is separate from the point about the commencement date and particularly about the date of Royal assent.

So my first question to the Minister is: what legal risk should the people giving Royal assent consider when making the decision to grant this bill Royal assent? And the second question: what rights are extinguished upon Royal assent? This is in the context of this bill having a relatively unusual provision, which is to exclude compensation for the effect of the repeals. That is a big part of the Act, which I was not able to traverse with the Minister in Part 1 of this debate, but it is still relevant to the Royal assent given that it creates a legal risk that that body takes on when giving Royal assent.

My third question about that, which I’ll ask now, as the Minister is considering his thoughts: has the Government ever extinguished legal rights of this nature, in urgency, without an impact assessment, as a consequential amendment? The reason why the committee was not able to traverse this point about the extinguishment of legal rights and the unusual provision that excludes any remedy because of these repeals is because it was part of a schedule and we were unable to get to that part in the committee of the whole House. It was also not included in the impact assessment for reasons we have already traversed. But it is something that is wholly new to this committee’s discussion of this bill. So I’d like an answer from the Minister, and then I have two more questions on it.

Thank you, Madam Chair. I’m trying my best to understand what the member is saying, but I’m struggling a touch. I’d like her to take another call to maybe—

💬 Arena Williams: Absolutely.

Well, just hang on a minute. I’ll make a couple of remarks. In answer to the question around whether the Government has ever extinguished legal rights in this way through a consequential amendment, the short answer is I don’t know. But the more broad point is that we’re not extinguishing legal rights. The bill is at some pains to preserve existing legal rights that people have. It upholds Treaty settlements as well. It’s a core commitment of the Government, on behalf of the Crown, which is very important.

We had an extensive back and forth last night about Mana Whakahono ā Rohe agreements, and also we had some engagement this morning with former Minister Henare about Takutai Moana and customary rights and customary title. It would be a brave Parliament and Government that decided to unpick that hard-fought-for piece of legislation, which, of course, codified in some respects common law rights around customary title, which go back, as the member knows from her days at law school, many, many, many decades.

I’m time-filling somewhat while we wait for Mr McAnulty to scurry around, around the amendments, but I didn’t quite get the first question from the member in the last call. So maybe she can come back on that one.

Thank you, Madam Chair. The first question was about the context of this—if the Minister could tell the committee what legal risk those people giving Royal assent to this amendment bill should be considering when they are making that decision. It’s a question, really, about what part they play in our constitutional arrangements when exercising Government power to enact legislation which would potentially extinguish the rights of parties to proceedings which are on foot or might be entered into.

I’m really glad that the Minister has drawn the committee’s attention to clause 11 of Schedule 1, which is the Mana Whakahono ā Rohe agreements. The reason I’m talking about that is that it is an example I presented the committee with last night where rights are extinguished. So there exists now an agreement between Poutini Ngāi Tahu, who have applied as a hapū for a Mana Whakahono ā Rohe agreement with those councils that are active within their region, which is the West Coast. They are different from those iwi authority agreements which exist under the old regime. Clause 11 does try to fit the Mana Whakahono ā Rohe agreement back into the old system, but where there are new rights which exist—those examples where hapū or, in this case, a rūnaka that is subordinate to an iwi organisation has entered into a regional agreement with their regional council—there are different rights which exist under those agreements than there are under the old system.

The Minister told the committee last night that clause 11 is worded in such a way as to preserve those existing arrangements and that there are no new arrangements. But, actually, we should have amended that clause last night, because that’s not what clause 11 says. So I want the Minister to tell us how, in Part 1, when those people giving Royal assent to this bill, they should consider examples like Poutini Ngāi Tahu, who have rights under the new regime that will be extinguished moving back to the old regime, given that they have a role in preserving those rights or at least helping this Parliament to be very, very clear when it is extinguishing the right of parties to proceedings now.

My fourth and fifth questions are: who will be giving Royal assent, given that there are special rules to consider when the Governor-General is overseas? We’re in a period of summer holidays because the Government is sitting in urgency, and we are using the House’s time in this way. There are special rules around who may give Royal assent and if it’s not the Governor-General, it will be a senior officer of the court. That puts a senior officer of the court—say a Supreme Court Justice—in a really difficult position when they’re extinguishing the rights of parties in this way.

The last question is: does the Minister know about those arrangements? When will that Royal assent be given? What are his intentions around this?

Well, Madam Chair, we’re into the realm of legal fantasy now. Maybe it was just a good filibuster attempt, but not a great one. The Royal assent is the Royal assent process. The member knows that Parliament passes a piece of legislation. It makes its way to Her Excellency the Governor-General, who signs it. And if the Governor-General refused to sign something by Parliament, I suspect we would have bigger issues to deal with as a country. But so far in the long constitutional history of New Zealand that hasn’t happened—at least while we’ve had responsible government. So that is what will happen, and it doesn’t place the Supreme Court Justice or the administrator of the Government, or the Chief Justice acting as the Governor-General, in a position. The Parliament passes a law and the Governor-General signs it. That’s the law, and it’s pretty simple.

In relation to her more substantive point about the extinguishment, I’m advised that there are no parties that have proceedings under the relevant bits of the legislation she’s talking about. There’s no extinguishment of legal rights, because there are no—she’s talked about parties to proceedings having their rights extinguished. There are no parties to proceedings. No applications have been made. If one was to be made, clause 11 is pretty clear: it just goes back to the Resource Management Act 1991 provisions as if the hapū was an iwi authority under that Act, and then things can proceed from there. It’s pretty simple, and we’re now straying well away from the commencement. I’m hoping Mr McAnulty has got his amendment under way and we’re good to go.

I think it might be helpful in this discussion if we go to clauses 5, 6, and 7 of Schedule 1, because these are the only three clauses in the bill that have a different commencement date to the day after Royal assent. So I would ask the Minister if he would like to take us through clauses 5, 6, and 7 and give the rationale for why they are different from the rest of the bill and why it is that nine months is the necessary time frame. Just looking at the Minister; he’s not going to answer.

I will also go, then, to my amendment to the title clause as well, and that is to, in clause 1, replace Resource Management (Natural and Built Environment and Spatial Planning Repeal and Interim Fast-track Consenting) Bill with “Resource Management (Retrograde for the Environment and Efficiency) Bill.”

Thank you very much, Madam Chair, and thank you to the Minister for allowing me the opportunity to propose an alternative time. I do understand that my colleague the Hon Peeni Henare may have something to say about this amendment also, but we are proposing that the commencement of nine months is changed to 18 months. The reason is it would make sense, we think, for there to be some consistency, given that under clause 5(2)(b) it mentions 18 months: “use the Crown’s best endeavours to promote the enactment of the Bill not later than 18 months after the commencement of this clause.” We think that it would make sense to have some level of consistency there.

I take on board the Minister’s point that it is the Government’s intention to fulfil their 100-day plan. But as the last couple of days have shown, things can move slower than expected in Parliament, and what if the Government doesn’t meet that deadline? They have unnecessarily cut themselves short. So we think that it would make sense to give the Government a little bit more time. Not everything’s going to go through Parliament under urgency. And, hey, look, if the Government gets it done within nine months, so what? All good. But at least they’ve built themselves a little bit of a buffer. In the spirit of trying to be constructive at a committee of the whole House stage, hopefully the Minister would consider that amendment.

In the spirit of Christmas, the Government will accept that amendment proposed by Mr McAnulty. He has some—

💬 Hon Kieran McAnulty: Is that it? Where’s the other presents?

That’s pretty good. When was the last time the Government accepted an Opposition amendment on the floor of the House? [Interruption] Well, yours should have been worded better. But I’m struggling to recall the last—

💬 Hon Chris Penk: I remember one.

Oh, one. That’s frustrating.

💬 Hon Chris Penk: It was a drafting thing, raised by me.

Oh, OK. As I say, I remember sitting over where the Labour members are sitting and putting up very, very sensible substantive amendments, including some quite minor ones—minor but important—and the Labour Minister sitting here. So, anyway, it’s all good. We’re not going to support the amendment around the name—nice try—and we’re not going to support Arena Williams’ amendment around the date, although I think that was a better effort. The bill is going to be called what it’s going to be called, but we’ll go with the 18 months, if that makes sense. Thank you.

Thank you, Madam Chair. It’s not like the Chamber to fall silent, so I thought I’d take the opportunity to thank the Minister for his consideration of the 18 months, and it was to my point around iwi and, in particular, the Ngā Hapū o Ngāti Porou being in limbo. So bringing it into alignment here, I think, is actually quite a smart move.

I will also, though, pick up on the point made by the Minister in the chair—how Cabinet makes a decision, the House passes a bill, and then the Governor-General signs it into law. Well, an Order in Council is just a little bit more complex than that. An Order in Council isn’t simply a, “Let’s just sign the paper and done deal.” For members across the Chamber, having sat in an Executive Council with the former Governor-General, it was quite a daunting task to sit there and explain your legislation to somebody who’d served on the High Court and served as a Justice, to make sure that it was quite clear to them, because if the rationale wasn’t clear, then they weren’t obliged to sign it.

So it’s really just a point of clarification for the Minister in the chair. But I come back to the point around the accepting of the amendment. There are going to be questions about whether or not any of the amendments that the Minister might bring back in between now and that 18 months might continue to impact the time. So we are looking for a reassurance here and for any amendments that will come forward, we will be looking towards making sure we stick to that 18 months.

From the feedback and the emails and the messages I’ve had from iwi around the country as they watch this bill progress through the House, there are two words that became obviously clear, in all of the correspondence from them, and they were “Lawyer up”. Because what I’m suspecting is that the Government can receive—and will be receiving—significant claims, legal action from iwi right across the country. And I think the 18 months will actually serve them well while they look towards how they might be able to deep dive into this particular repeal bill to make sure that they can cover off all of the bases to know that their rights are protected in this repeal bill.

That’s going to be really important from Ngā Mana Whakahono, also to Ngā Hapū o Ngāti Porou, to those who have current arrangements, and I’m heartened by the Minister in the chair’s comments about protecting Te Tiriti o Waitangi settlements, making sure that we continue to honour those as we have done in this House. But I suspect that the 18 months will be a good opportunity to allow iwi to come on board and make sure that they can protect their interests through the right legal mechanisms.

That’s a thank you to the Minister for accepting the 18 months, and we look forward to his return to make sure that we do get these things right, which is how this process should have been done in the first place anyway. If we had gone through the select committee, we wouldn’t have to have pushed out the time; we wouldn’t have to be using words like “lawyer up” in this House. But I know that iwi and hapū are already looking towards doing that to make sure that their rights are protected moving forward.

I move, That debate on this question now close.

The question is that Arena Williams’ tabled amendment to clause 1 be agreed to.

The Hon Rachel Brooking’s tabled amendment to clause 1 is out of order as being not an objective description of the bill.

The question is that Arena Williams’ tabled amendment to clause 2 be agreed to.

Amendment not agreed to.

The question is that Rachel Brooking’s tabled amendment to clause 2 be agreed to.

The question is that the Hon Kieran McAnulty’s tabled amendment to clause 2 be agreed to.

Amendment agreed to.

The question is that clause 2 as amended be agreed to.

Clause 2 as amended agreed to.

Bill to be reported with amendment.

House resumed.

Madam Speaker, the committee has considered the Resource Management (Natural and Built Environment and Spatial Planning Repeal and Interim Fast-track Consenting) Bill and reports it with amendment. I move, That the report be adopted.

Motion agreed to.

Report adopted.

The bill is set down for third reading immediately.

Third Reading