Local Government (Water Services Preliminary Arrangements) Bill

Members, we now come to Part 5. This is the debate on clauses 100 to 103, “Amendments to Water Services Act 2021 and consequential amendments”, and Schedule 2. The question is that Part 5 stand part.

I know something about the National Policy Statement for Freshwater Management, and I can’t understand this provision. The National Policy Statement for Freshwater Management, essentially, says that, as a country, we should be setting some targets for our water bodies that are degraded that are science-based, and that we should then, over a long period of time, head towards achieving those targets.

Those targets are set by regional councils in consultation with their communities, having regard to various attributes that have to be taken into account—like turbidity, the E. coli concentrations, nutrient concentrations that if you get too much nutrient cause slime to grow in your rivers, and the like. I think the attributes are pretty much agreed across society. The rural communities were particularly concerned that we were going to have too tough a nutrient attribute, but we didn’t go for a specific dissolved or inorganic nitrogen attribute, and there was considerable flexibility left in the instrument for regional councils to determine how they should, over time, improve the quality of degraded waterways. I thought that we as a country agreed that we should—and being blessed as we are with such beautiful water resources—look after them pretty well.

Now, one of the overarching provisions in the National Policy Statement for Freshwater Management is that, at a high level, the way in which you should be managing your water is to first look after the water body; and then the next priority is to attend to human needs, like sewage discharge or water tanks for drinking—both of those are, obviously, human uses—and then, thirdly, commercial uses. Now, none of these are absolutes. No one has been pretending that we’re going to, all of a sudden, have absolutely pristine waterways, and it’s not a trade-off between cost and cleanliness, particularly where you have a degraded waterway. But I don’t understand. I would like the Minister of Local Government to explain to me why it is that there is the need for this change.

What is wrong in the National Policy Statement for Freshwater Management, particularly in relation to the hierarchy of obligations, which is referred to in clause 101 of this bill, which inserts a new section 138(3A), which says, “When making wastewater environmental performance standards under this section, Taumata Arowai must not have regard to the hierarchy of obligations in clause 1.3(5) of the National Policy Statement for Freshwater Management.”? I don’t understand the driver for that.

I don’t understand what the need is for that revocation of that principle, because my understanding, based on when I was the Minister, was that it wasn’t something that would prevent councils from getting resource consents for what they currently do or want to do in the future. Yes, over time, if they are polluting a waterway, we want them not to make it worse. But there is no regulation that says there wasn’t some flexibility as to how they improve things over time, or some unrealistic standard to which they were being—and I do remember that there were other parties at the time, the Māori Party, with respect, I thought were unrealistic; they thought things should be cleaned up to a drinkable standard, which I thought was an impossible ideal, as much, though, as we would love that. But the National Policy Statement for Freshwater Management didn’t do that. I would like the Minister to explain to us why it is that this provision is necessary.

Thank you, Madam Chair. I wanted to ask the Minister in the chair, the Hon Penny Simmonds, in relation to Part 5, what is the political intent? It’s a strange piece of drafting that says, “We’re going to empower the Governor-General to strike out the provisions in the National Policy Statement (NPS) for Freshwater Management. OK, we’re opening the door to getting rid of this and we’re going to replace it with a new NPS.”, but what’s the intent? The part is completely silent on that. I think that members of this House and the public are entitled to ask, “What is the intent?”, because the part doesn’t explain at all what the motivation is.

The reason I ask that is I have a very real interest in my electorate of Te Atatū in West Auckland. The waterway that runs right through the heart of urban West Auckland is Te Wai-o-Pareira / Henderson Creek. For decades and decades, it’s been a recreational playground: people fish in it, they swim in it, they boat in it, they row, they water ski. The real problem is that Te Atatū Peninsula, which the waterway runs alongside, is one of the very weak points of the waste-water system in Auckland—which sort of reminds us of the previous part. It has been under-invested in for decades, and every single time we have any significant rain event, waste water flows into the creek, and anybody who gets into that creek gets sick. You cannot fish there anymore; it’s a health hazard. The community feel bitterly upset about this.

Now, I would like to know: what is the intent of this part, and what will the effect be on an urban waterway like this that’s had decades and decades of degradation? Currently, our community relies on the knowledge that under the existing NPS, that waterway will be cleaned up, infrastructure investments will be made, pollution will be stopped and eliminated, and eventually that waterway will be returned to a swimmable state. Are we to put that hope aside? What is the intent of Part 5?

Thank you, Madam Chair. My question to the Minister is very direct towards te Taumata Arowai. We’ve seen throughout the debate in this bill the role that te Taumata Arowai plays in the ability to contribute towards the charter. Then all of a sudden, we have this provision here that to cast your eye over it for the first time seems to all of a sudden not value the role that te Taumata Arowai might be able to play in the way that we manage waste water, moving forward.

I think of the complexities of Tāmaki-makau-rau, of Auckland, and the need and the challenge and the struggle to continually find a Māori voice in all of the planning that relates to Tāmaki-makau-rau, to Auckland. Now, I was going to raise the matter of the Independent Māori Statutory Board and whether or not, actually, through some of the provisions in earlier parts—it says “Auckland Council”, so I’d like to make the assumption that that includes the Independent Māori Statutory Board, which is a very well-connected, well-represented group for the Auckland view towards what we might do with respect to Watercare to waste-water management and everything else that relates to those hapū, those tribes, and those who consider themselves to have customary rights proven through settlement to the many waterways in Tāmaki-makau-rau.

It then comes back to the question that my colleague the Hon David Parker has asked, which is: why are we doing this? What it would seem to be doing is (1) unnecessary in the first instance; but (2) making very clear that te Taumata Arowai, while respected throughout much of the other work to do with water management and right across this country—te Taumata Arowai, a fantastic group, well represented, good smarts on that group; not Tāmaki-makau-rau - or Auckland-specific, however—is all of a sudden not relevant with respect to Part 5.

That’s a very direct question about the role and purpose of te Taumata Arowai. Is it being diminished simply through this particular part, through this particular clause? If that is the case, then why have we wasted time throughout this entire bill talking about te Taumata Arowai when it’s clear that the skill set and what they offer with respect to water management in this country is really important and te Taumata Arowai work hard there? But that in turn raises the question about being Auckland-specific, which is about Tāmaki-makau-rau and about the water management in Auckland as a wider grouping, which is why I raise the question about the Independent Māori Statutory Board and whether or not they will continue to find a voice in all of the planning that’s done around water wider across Tāmaki-makau-rau—a very direct question.

Madam Chair, thank you very much. I’ll address some of the points that have been made, and I acknowledge the comments from the Hon David Parker about the length of time that the aspirations that we all have for improvement in our waterways—but acknowledging that it is going to take some time to occur.

The hierarchy of obligations is something that we were very clear about in our campaigning. We saw the hierarchy being an obstacle to economically viable solutions for both councils and for industries, and there needed to be a balancing of the obligations rather than the hierarchy of obligations that was there.

We know the impact that, for example, reconsenting from being able to have treated waste water go into waterways and then having it go on to land is significant. I know that the Minister of Local Government has frequently referred to the Palmerston North situation, where their consenting has been looked at. In their 2021 long-term plan, it was going to be $390 million, and it has escalated to over $650 million in 2024 due to that requirement to discharge to land.

Just last week, I was speaking with the Mayor of Invercargill, and they are going through this very issue with Bluff waste-water treatment. The cost increase, again, was significant. To change from having treated water discharged into water and having to look to discharge it on to land was going to increase the costs severalfold.

So it’s really the regulations that are going to be possible for the councils, and to achieve, over time, those improvements without causing the economic harm that would have been caused by leaving that hierarchy in place.

Thank you, Madam Chair—I appreciate it. I have an amendment to propose to clause 101(3A), which currently says—and others have spoken to it somewhat—“When making wastewater environmental performance standards under this section, Taumata Arowai must not have regard to the hierarchy of obligations”. Now, the amendment proposes to remove that section.

Can I just reflect, I just did a document search on the entire legislation for the word “safe”. And the number of times the word “safe” appears in the entire document is zero. You’d think that safe would be a useful word to associate with drinking water. I searched “safety”, and that word appears twice in the entire document, only in a clause about legal action in the Watercare section. It seems very pointed, following from your answer to the last question, Minister, that this legislation makes a real point of removing references to water safety, and makes sure that in consideration of that, the authority responsible for water safety, Taumata Arowai, is told that it must not have regard to the hierarchy of obligations. What is the view of this in terms of the Public Health Communication Centre—the public health experts—on the removal of the hierarchy from the consideration of wastewater management? “The hierarchy of obligations is an essential addition across policies relating to water as it gives sufficient legal weight to the protection of people’s drinking water sources.” This is the Public Health Communication Centre’s submission on this legislation.

Now, it should be logical to us that management processing reticulation of sewage is one of the most fundamental developments in urban infrastructure to benefit human health. Imagine cities some time ago when there was no sewage reticulation system. Imagine what the state of health was. Well, you don’t have to imagine; you can look it up—there’s plenty of history about it.

💬 Hon David Parker: Typhoid and cholera.

Pardon me?

💬 Hon David Parker: Typhoid and cholera.

Exactly: typhoid and cholera. So why, in regard to the managing of wastewater, would that vital hierarchy of human safety not be a worthwhile consideration? That’s a very important question to be answered, and I don’t think it has been answered. “Sufficient legal weight for the protection of drinking water has not previously existed in policy and because of this (and other system failures) NZ communities experience contaminated drinking water sources. Removing the hierarchy of obligations from Taumata Arowai’s work (as proposed by the Bill) means deprioritising the safety and quality of people’s drinking water and potentially increasing the risk of illness from polluted drinking water.”

This amendment would allow Taumata Arowai to have regard—that’s all it has to do, have regard; remove the term “must not” from the legislation. How can that be anything but good for public health, for the health of our society, the health of our communities, and the health of our water? It must be a good thing. If, Minister, you are taking the advice of public health experts, surely this amendment would be one you would support. Thank you.

Thank you, Madam Chair, for this opportunity to speak. I’m actually going to take the opposite angle to the previous questions about what is in clause 101 and this amendment of section 138. And then I’m also interested in talking on the “King Henry VIII” clause as well.

We’ve heard from people, and we’ve had an answer from the Minister about the hierarchy that you find in the National Policy Statement for Freshwater Management. I’ll make some comments about that in a minute, but my main point is: why was this inserted into this bill when Taumata Arowai, section 138, doesn’t mention the Resource Management Act or any of the instruments under the Resource Management Act? We know that the national policy statement is a regulation made under the Resource Management Act. Taumata Arowai doesn’t talk about the Resource Management Act at all or its instruments. Is this a proactive—I’m assuming, and this is what the question is to the Minister—action to stop any future changes to the Taumata Arowai Act to have regard to the National Policy Statement for Freshwater Management? I fundamentally don’t understand why it’s been included in this bill, given the framework of Taumata Arowai in the legislation that’s been amended, the section 138. That makes no sense to me. I’d really like an answer to that.

Then, of course, we have the Minister’s response just before, talking about the hierarchy that is in the national policy statement—and I acknowledge that the Minister in the chair is the Minister for the Environment—and saying, to paraphrase her answer somewhat, that councils need to be able to discharge to water. I think that is the fundamental tenet of what the Government is trying to do here. They’re trying to say it’s very expensive if you discharge to land. And, normally, that is what iwis’ preference is—a discharge to land. It is also the thing that has much more environmental benefits. Normally—I’m talking in generalities here. If you discharge to land, it can be more expensive, particularly if you have old treatment stations that are just used to doing a bit of filtering and then discharging into the rivers—this is for waste water, obviously. We want to change all the laws to make sure that councils can continue to discharge into rivers—if that’s what the Government means, then they can just say that. Surely, a better provision here would be “Wastewater environmental performance standards”: “Councils do not have to discharge to land.” If that is the nub, the crux, of the problem that the Government is interested in, why are they not saying that?

Again, we keep hearing that this National Policy Statement for Freshwater Management is the cause of all problems and that nobody can get consents. And, of course, sometimes I’ve been lucky to sit on another select committee about a different bill where we’ve heard many people say that, in fact, it hasn’t been stopping consents, the way the hierarchy operates, because, of course, it all needs to be in the plans. The big issue, the big inefficiency issue, that’s happening with water in this country at the moment is that councils are being told to delay those plans—to not have the plans that can then permit activity so that people don’t need resource consent. A lot of that is being done with a great disregard for the processes of this House and the processes of making regulations as well. You cannot make regulations by press releases, and we’ve seen that happen around these national policy statements made under the Resource Management Act, both with freshwater in relation to the Otago Regional Council and also with what Minister Hoggard was trying to do with biodiversity.

Then we come to clause 102, which is the new section 138A, and this is to repeal provisions relating to the National Policy Statement for Freshwater Management at some later point. And this is a “King Henry VIII” clause. So we know, and I’m sure other people will want to speak to this as well, that “King Henry VIII” clauses are unusual. [Bell rung] Madam Chair, may I continue?

CHAIRPERSON (Barbara Kuriger): Yeah. Can we come to the questions?

Thank you, Madam Chair. Yeah, well, the question is: why on earth do we need a “King Henry VIII” clause about a National Policy Statement for Freshwater Management that doesn’t even apply to the Taumata Arowai Act? The question is: why do we have clause 101 here at all? It’s completely unnecessary. Even if you put aside all of the politics and the disagreement about the national policy statement for freshwater, it doesn’t need to be in here. But then, given it is in here, the justification for using the “King Henry VIII” clause needs to be strong, and it just seems to be incredibly weak. I’m asking the Minister what the justification is for using a “King Henry VIII” clause in this situation when it appears entirely unnecessary.

Thank you, Madam Chair. I have two areas of questions for the Minister which I don’t believe have been covered. I’m going to start with the second part first, really, as in chronological order.

I have a question for the Minister around the intersection of the changes that are proposed in Schedule 2, Part 1—which I understand of Part 5, which we are debating—in relation to the changes to the Civil Defence Emergency Management Act. I’m particularly interested in this as Labour’s spokesperson on emergency management, and, obviously, the incredible importance that water infrastructure and fresh water have in our managing of emergencies—so that’s in Schedule 2, Part 1. Then, additionally, in Part 2, there are changes to the National Civil Defence Emergency Management Plan Order 2015. There are substantially more changes in relation to that particular plan, and I wanted to get from the Minister a bit of a reason as to why this formed a part of this particular bill, and what changes citizens of New Zealand would see as a result of that conclusion.

The second question I had was around clause 102, which inserts new section 138A—which I believe people have touched on, but I have a question in relation to that. That’s in relation to the technical workings of this particular provision, and my question for the Minister is: is this a “Henry VIII” clause; if so, what is the justification for using a clause of this nature in this bill? When usually it’s good practice—and I believe the Minister and I both sat on a Regulations Review Committee at various times in the last Parliament together. If she could reflect on the use of that particular instrument and why—I assume that it’s only in there because it’s absolutely necessary if it is, in fact, one of those clauses—we have to use this particular instrument when it’s not usually desirable from a legislative drafting perspective. Those are my two sets of questions in relation to emergency management and that particular piece of legislative draft.

Thank you, Madam Chair. I’ll go back to some of the questions that have been lining up here. If I can go back to Steve Abel’s questions about “safe”—and I think it’s really important that he understands that there is certainly no intent to take any provision away regarding the safety of drinking water—Taumata Arowai will continue to regulate drinking water, including its safety, and it will also continue to have powers to set waste-water standards by taking into account public health. Removing the hierarchy will actually give more flexibility to them in this area. I think it is really important for us to be very clear that Taumata Arowai will continue to make waste-water standards under the Water Services Act. In terms of “safe” not occurring in it, the legislation isn’t replacing the legislation that sets out drinking-water standards.

I think there was a question from the Hon Rachel Brooking on the section in the Water Services Act relating to waste-water standards—why the changes are required—that don’t mention the national policy statement. The Water Services Act requires Taumata Arowai to give effect to Te Mana o te Wai as part of all its functions. The definition of Te Mana o te Wai in section 14 links directly to the national policy statement.

💬 Hon David Parker: Madam Chair?

💬 Dr Lawrence Xu-Nan: Madam Chair?

I’m going to call the Hon David Parker, and I’m just going to ask for questions now, because I feel like we are starting to get quite repetitive on some of these things. I’ll come back to you, Mr Xu-Nan.

Thank you, Madam Chair. We’ve heard from the Minister in the chair, the Hon Penny Simmonds, that the Government doesn’t want Taumata Arowai to have to apply the hierarchy in the National Policy Statement for Freshwater Management, which is not absolute but, essentially, says: health of the river, human uses, and other commercial uses third in hierarchy. The Government doesn’t want that to apply to Taumata Arowai.

Am I correct, Minister, that, at the same time, the Government has another piece of legislation which says that that should not apply to people who are seeking resource consents under the Resource Management Act—i.e., if one of these water services entities, whether it’s Watercare or another council, applies for a resource consent to discharge to water? Am I correct, Minister, that in other legislation you’re also removing the effect of the National Policy Statement for Freshwater Management, including the Te Mana o te Wai hierarchy of obligations for consents? If I’m right, you’re not just stripping this requirement out from Taumata Arowai, you’re actually, effectively, saying that the councils that are considering applications by water services entities don’t have to apply it either.

Thank you, Madam Chair. I will be quite quick. Thank you so much to the Minister in the chair before for a number of the clarifications that she has provided. I think we are still waiting on her clarification around the use of the “Henry VIII” clause in this case, particularly around clause 102, because this has raised a number of concerns from the New Zealand Law Society, as well as our own Regulations Review Committee. But I wanted to ask the Minister, in addition to that, has the Minister considered a sunset clause to this? This is one of the things that usually is a way to curb some of the power that can be granted with a “Henry VIII” clause, having a sunset clause or a particular duration. That’s my first question to the Minister.

My second question, which is also really discrete, is to do with clause 103, particularly in relation to Schedule 2. Now, in terms of Schedule 2, there is only one area I wanted to get some clarification from the Minister on, and that is the amendments to the Ombudsmen Act 1975, where it talks about “Crown monitor appointed under section 60”. I wanted to know from the Minister: in this case, why was only the Crown monitor appointed under clause 60 of the Local Government (Water Services Preliminary Arrangements) Act mentioned, but not the Crown facilitator appointed under clause 21, nor the Crown water services specialist appointed under clause 24? Thank you.

I move, That debate on this question now close.

The question is that Lan Pham’s amendments to Part 5 set out on Amendment Paper 71 be agreed to.