Resource Management (Freshwater and Other Matters) Amendment Bill

We come first to the Resource Management (Freshwater and Other Matters) Amendment Bill. We come now to Part 1. This is the debate on clauses 4 to 7, “Amendments to Resource Management Act 1991”—sorry, 4 to 27—and Schedule 1. The question is that Part 1 stand part. Could the members move away from the Table?

Thank you, Mr Chair. Thank you for clarifying just now that Part 1 is from clause 4 to clause 27. Now, why this is important—and this includes Schedule 1 as well in Part 1; Part 2 is Schedule 2 and some smaller clauses—is that we’ve had a number of Amendment Papers lodged this morning from the Minister the Hon Chris Bishop, and they are very significant changes and they will be in this Part 1 debate along with Schedule 1. I think it’s most important to start with this—with my contribution now—but I do want to then work through all of the clauses.

This bill does a number of things. Most of what it does is in relation to a whole number of resource management secondary legislation, so national policy statements and also regulations. That is why the bill works in its way. We just heard a different Minister in question time outline some of the different things that it does, and one of those things is to do with the national policy for freshwater management. We see that straight up at clause 4, “Interpretation”, but I don’t want to talk on that yet, because what I want to start my contribution about is the outrageous process that we have seen on this bill both this morning and, I guess, two weeks ago when the Primary Production Committee report came out.

This is quite a technical bill and, as I said, it changes secondary legislation and also changes how future secondary legislation is made. Those are the main amendments to the actual Act itself—the Resource Management Act—and they were what was consulted on in a shortened time frame and what most submitters submitted on. However, some submitters opened up the process and wanted to talk about discharge consents and an inability sometimes to get them because of some High Court action or some court action.

What Ministers must have done is speak to the Government members in the Primary Production Committee, which then recommended some changes to section 107 of the Resource Management Act. It’s very important to note—and I’ll talk about them more substantively later—that those changes to section 107 regarding discharge consents were not in the bill as it was introduced, and most people did not make submissions on them. Importantly, some organisations were allowed to make submissions on them and other organisations such as Forest & Bird—who have written to the Speaker to complain about this issue—were not allowed to submit on this issue that wasn’t in the bill when it was introduced, presumably because the chair thought it was out of scope. It is out of scope, yet somehow it’s in this bill as reported back today.

Then—that is not all—this morning we have two more amendments from the Government; from the Minister, Chris Bishop. One of them seems to be specifically directed at the Otago Regional Council that is planning to meet tomorrow to notify its freshwater plan. This amendment is to say, “No, no, Otago Regional Council”—democratically elected council that has been working on this for a long, long time—“you cannot notify that plan tomorrow.”

💬 Scott Willis: Shameless!

This is shameful and I know many members will have more to say on that. I’m just introducing, at the moment, these terrible changes.

Then we heard as well, in the question just before, about another amendment that is to do with farm plans and pausing those farm plans. We have not had time to go through what that means; we haven’t had submissions on the importance of the changes to section 107. It is a disgrace and I will leave it there for this contribution before going through the issues more systematically, but I invite the Minister to try and explain why this urgency is needed.

If I may, I would just like to pick up and extrapolate on the introductory comments from my colleague the Hon Rachel Brooking, to provide those who are watching this with some context. There is indeed scheduled to be a large public meeting in Otago, which would have been at the Otago Regional Council offices normally but has moved to a public venue that is much bigger—the Hutton Theatre—so that people can watch the vote take place on this amendment that my colleague referred to, just tabled today with no input on the Primary Production Committee.

There is a huge deal of public interest in the Otago region, and what we are contending is not only anti-democratic because submitters have not had an opportunity to look at the amendment and to submit on it, but the actions of the Government to intervene in a matter of local democracy with a locally elected council is a gross overreach. It is no surprise to me to see that in another council, the Wellington council, we have similarly seen perceptions or a kind of manufactured story of chaos that doesn’t meet any kind of threshold where there is an overreach by the executive.

For context, the councillors who were democratically elected have been looking at this issue not only this term but for many, many years, and have done extensive consultation on the freshwater plan to the tune of 18 million ratepayer dollars. There is a seven-to-five split in the council in favour of notifying, based on the public submissions and the democratic process that has been followed. I have said to the Minister publicly in the newspaper many times: I think that she needs to stay in her lane because the ramifications of overreaching every time there is a disagreement with a democratically elected local council are huge for our institutions of democracy.

Now, some more context is that earlier this month I submitted a number of Official Information Act requests and a number of the equivalent requests, Local Government Official Information and Meetings Act requests (LGOIMAs), to the Otago Regional Council. When it transpired that the councillors received these, some of those who may have been the subject of having to declare that they had direct communications into Government Ministers unilaterally then informed the Otago Daily Times and said: yes, they had actually written to the Minister to ask her to intervene.

My perception is that would not have been transparent had it not been for the actions that I took. My instinct all along has been that this Government would continue to apply pressure, continue to use tactics via the minority on the Otago Regional Council, and, if it didn’t get its way, would overreach—which is what we are seeing today. The tactics I refer to are special meetings being called and urgent resolutions to vote on the notification—by the minority group who don’t want to notify—knowing that they would lose the vote but trying to create some kind of drama that Government Ministers could then allude to as chaotic or as shambolic. In fact, there were Ministers of the Government quoted on the radio referring to the council as a rogue council.

I’m providing you this context, Mr Chair, because we have not had a chance to hear this in the Primary Production Committee. This amendment has just been dropped after the select committee process, and I think it’s really important for people who are watching the debate to understand the context and to understand that this specific amendment may have ramifications for other councils but is specifically engineered to take that vote away from the council tomorrow and to legislate over the council so that the Government can get its way.

Now, that is not transparent. It shows there has been an agenda. I believe that Ministers have been in cahoots with the minority group of councillors. I’m really looking forward to seeing, in the fullness of time, the results of my Official Information Act and LGOIMA requests based on evidence and information that I have from many sources around the region which would suggest that there is a very cozy and inappropriate relationship. I’m going to end my contribution there and seek a call for the Hon Rachel Brooking to continue, but I just thought that was really important.

CHAIRPERSON (Greg O’Connor): If the member wants to continue a call, then call.

Mr Chair.

CHAIRPERSON (Greg O’Connor): Ingrid Leary.

I would like to yield to the Hon David Parker, if I may.

I want to ask the Minister whether she continues to assert that the hierarchy—well, I’ll go back a step. Under the iteration of the National Policy Statement for Freshwater Management (NPSFM) that was promulgated by the National - Māori Party coalition, the term “Te Mana o te Wai” was introduced into the freshwater management regime; it wasn’t an investment of the last Labour Government. The subsequent iteration of that made it clear that there’s a hierarchy of obligations towards water bodies. First is the environmental health of the river, the second is human needs like extraction of water for human purposes, and the third was commercial uses.

At the Primary Production Committee, the assertion was made by Government members on the select committee that this was an absolute hierarchy and that you couldn’t lapse down into the second or third priorities until the first priority was met. In other words, if the requirements as to long-term water quality, for example, were not met for a water body, there was a suggestion that there was an absolute prohibition on, for example, a discharge right for a council. This was an example that had been used, in that if the water body was already degraded it would be impossible to get a renewal of a water right to have a municipal discharge which degraded the quality of the river.

Now, at the Primary Production Committee, Opposition members asked officials as to whether that was a misunderstanding of the NPSFM, because the understanding of Opposition members, including myself, was that the hierarchy provided for in the NPSFM is not absolute. In some ways it would make it a nonsense to have all of the long-term provisions in there saying that where things are degraded, they ought to be cleaned up over an undefined period—a generation or so—and it was up for regional councils to determine how quickly they got towards the attributes that are set out in the National Policy Statement for Freshwater Management.

The reason why I’m asking this question is this is what, as I understand it, lies behind the logic as to why this bill amends the resource management regime by saying that the National Policy Statement for Freshwater Management hierarchy is not to be used in respect of a decision as to whether someone can get a resource consent to discharge to water or to abstract water. Now, if that is based on the understanding that was displayed by the Government members—which, in my view, and I think officials confirmed this to the Primary Production Committee that there isn’t an absolute standard—it seems to me that this provision is misconceived, because there was no absolute hierarchy.

I would like the Minister to confirm her understanding that the NPSFM hierarchy that I have described—those three levels of what we’re trying to achieve for water bodies—did not set absolutes that removed council discretion on consents.

Thank you, Mr Chair. I thank the Hon David Parker for his question. My understanding is that there have been varied approaches by different councils to this matter, and that in some instances the hierarchy had been considered as an absolute. The changes are being brought in to clarify that the hierarchy does not need to be considered either by the applicant or the consenting authority.

Thank you, Mr Chair. If I understand the process so far that you’ve outlined and described, I’m going to be seeking clarifying comments from the Minister about these last-minute amendments that the Government has just put on the Table, but then that we will be stepping through the clauses of the bill in separation to that.

I really want to start by asking the Minister: why has the Government introduced these two last-minute Amendment Papers? They have a material impact not only on the democratic processes in local government, at the council level but also what is currently rolling out around the country when it comes to freshwater farm plans in their various ways that councils are actually rolling those out. Why I want to ask that fundamental question is that I’ve heard from the Minister previously that the intention of Government with these reforms is not necessarily freshwater improvement. The Minister made comments at the last scrutiny hearing at the Environment Committee that the goal with these freshwater reforms is actually to have, as she described it, workable standards that are not overly complicated, and that was with no mention of actual freshwater improvement. I’m really interested to hear from the Minister about how these amendments actually sit in with that.

Then, more directly, were these amendments introduced at this last minute to directly override the expected decision of Otago Regional Council, who are set to decide to notify their land and water regional plan tomorrow? Now, this is absolutely critical to understanding this in terms of their confidence in this Government that it is not just stepping in to override the democratically elected councillors, to override the wishes of community.

I would really like to hear the Minister’s statements on this, and I’d also like to hear how these Amendment Papers will actually impact councils—for example, where they already have a regional policy statement in place that upholds the National Policy Statement for Freshwater Management (NPSFM) and Te Mana o Te Wai. Now, there are these in existence. What does it mean when the Government is saying that these types of amendments and this bill will provide certainty to landowners, to consent applicants, to consent holders, when actually there are already aspects of the NPSFM, of Te Mana o Te Wai, that are throughout existing plans and policies; and how does that actually provide certainty? I am really keen to hear from the Minister about those. Thank you, Mr Chair.

Thank you, Mr Chair, and I thank the member for her questions. With regard to the freshwater farm plans, as the member probably knows, there is an amount of work that is going on within Government in terms of improving the system to finalise the freshwater farm plans, including ensuring that it is risk based and therefore able to react to both the risks in specific catchments and to the type of farming that is being undertaken.

The reason for pausing this is to ensure that that work can be undertaken and that those who might otherwise be required to come up with their farm plans are not doing it against the changes—or are doing it with the current legislation rather than what’s going to be changed. It’s to avoid duplication and to enable farmers to be working with the correct information.

With regard to the restriction on the notification of regional policy statements and plans, this is to ensure that that risk of duplication and additional costs to ratepayers does not occur while the National Policy Statement for Freshwater Management is being developed. We are very mindful of the impact both in time and in cost to ratepayers and to the primary sector, and that is the reason for these amendments.

Thank you, Mr Chair. Sticking with Amendment Paper 127, which is the one about farm plans, can the Minister explain what she means by “risk based” and what her understanding is of the regulations? I know that’s not a word that this Government likes, but what are the environmental protections to stop pollution that will be in place whilst this pause on the farm plan happens? Those are important questions because, obviously, nobody has had a lot of time to go through this Amendment Paper that has not been in front of the Primary Production Committee. So that’s two questions on the farm plans.

We also heard the Minister answer, too, the Hon David Parker’s question around Te Mana o te Wai not requiring everything to always be declined because something might go wrong with the health of the water, when it’s applied to consents, and the Minister responded, “Well, there are cases on this.” I would like to know what cases the Minister is referring to, and what the outcomes of those cases were. My understanding is that the cases that some submitters referred to are ones where a consent would have been declined regardless of Te Mana o te Wai. That was because of the adverse effects they were having on the environment, regardless of the hierarchy in that test of Te Mana o te Wai.

Now, I’m going to come back to Amendment Paper 128, because I want to try and work through this bill in a methodical way. Other people might do so differently, but that is up to them. So we start at Part 1, on page 3, and there is a lot about section 32 evaluation reports being amended. And there are many sections here which relate to the making of national instruments. Those things are national policy statements (NPS) and national environmental standards, which can have very consequential effects for people using the environment, such as farmers. What the Government is doing with this suite of amendments is really enabling the Minister to do whatever they like, to have very little consultation and very little evaluation and analysis.

I would like the Minister to explain how it is that the environment will be considered—or not just considered but protection for the environment will be implemented and must be implemented by these new national environmental standards and national policy statements. Why I say that—my worry—is that Ministers will simply be able to make these national instruments, in favour of any sort of development they like. We did have a process like this in the past—now, it was under the Resource Management Act, which, of course, Labour amended to try and fix how these national instruments were met—with the plantation forestry rules. The NPS for plantation forestry was clearly driven by industry, and it caused a lot of detrimental environmental effects and also economic effects. It is not in the interests of our environment, of our nation, to have standards and regulations made that are just there for industry.

My final question on these national policy statements and national environmental standards is why the Government saw fit to get rid of the ability to have a board of inquiry process when developing these national policy directions. Now, I acknowledge that the board of inquiry process has rarely been used for these national instruments—it has been used for the New Zealand Coastal Policy Statement—but it seems to be a good option, when there’s a tricky piece of environmental regulation to be done, for a Minister to put that to a number of very qualified people, in a board of inquiry, and with that board of inquiry process enable the draft regulations or national policy statement to be thoroughly examined.

That goes to my wider point of how, with really loosening up how section 32 works and reducing all the consultation requirements—what comfort can the Minister give to people reading the Hansard in the future and to us in the Chamber today, this afternoon, that this process will be used in a rigorous way and it will protect the environment rather than just allowing development?

Thank you, Mr Chair. I thank the member the Hon Rachel Brooking for bringing the attention of the committee to the streamlining and simplifying of the process to prepare and amend national direction. I thank, also, the Primary Production Committee, who made considerable input into this in terms of setting the 20-working-days requirement for consultation, and other amendments which they contributed to around the transparency of the Minister making this decision and making the information public. The board of inquiry process, as the member has already noted, hadn’t been used since, I think, 2010 and therefore has been taken from the process to simplify it as one process that will be undertaken.

Thank you, Mr Chair. I do have a number of questions, which I think we will have time to go over through this bit of scrutiny—this tiny bit of scrutiny we’ve got on a very, very sad day for democracy.

To begin, I would like to know more—and as has been sketched out by my colleague Rachel Brooking—about new section 46A, “Process for preparing national environmental standards and national policy statements”, inserted by clause 11. I am interested in understanding what that process is and how the process is aiming to establish this. I was particularly mindful of the process for the National Policy Statement for Renewable Electricity Generation, which set up a board of inquiry in 2010 that came back with the recommendations for a national policy statement, which also had recommendations for national environmental standards, and at that point they had to be implemented. The tricky thing there was that, of course, this happens through different Governments, and we didn’t see the full implementation of those national environmental standards. Although we got a national policy statement, we didn’t get national environmental standards.

I’m really interested in understanding what the process is going to be and how the Minister imagines this will run; how the Minister intends to make this work, because what we are seeing is a real mess, quite frankly. We’re seeing a throwing out of localism and something that looks very chaotic and disruptive and actually will create incredible uncertainty for environmental outcomes for our rural communities, for our businesses as well. I’d be really keen to have some clarification from the Minister on what that is going to look like, if there is a process, and how the public and iwi will feed into that, how we are going to hear. Today, for example, I’ve been fielding queries, concerns from iwi, from our local Otago Regional Council, from community members about this last-minute amendment that the Government’s put in. I’ve been fielding queries from a very, very concerned community that feels as though this Government not only has cut Otago adrift; it has disavowed the localism, the local decision making.

I would like to hear from the Minister about how people are going to be able to participate, how people will engage, and what that will mean, because I’ve heard that the Minister wants to work alongside councils, but at the moment this looks like an overriding of councils. It looks like a rejection of what councils have been working on for so, so long. How is the Minister going to consider local input, engage with iwi, ensure that local concerns are respected? How is the Minister going to do this through the process for preparing national environmental standards and the new national policy statement?

I think, just to come back to the point, if the Minister thinks that standards that have been developed locally are stronger than the National Policy Statement on Freshwater Management, why then would a council need to go back and change a plan that has already been developed? It would be crazy for them to do that, unless it was going to be forced by some Government that wanted a council to be more permissive and allow polluting practices to happen. Why on earth would anyone be concerned by a plan that can deliver outcomes for better fresh water, for rivers that would be swimmable, for places that we can fish and we can drink from? Why would the Government be concerned about that?

So, for the Minister, I would just like the Minister to come back to me to explain how this process is going to involve our local communities, iwi, and ensure that we have better fresh water rather than polluted, toxic waterways.

I too want to talk again about Amendment Paper 128, which I contend is beyond the scope of this bill, because rather than changing what’s in these planning instruments, it actually says they can’t be promulgated, which is a big change from the bill that’s been introduced.

I want to explain to the Minister in the chair, the Hon Penny Simmonds, in case she doesn’t know this history, as to how it is that Otago’s got themselves into the pickle that they are in. In 2018, there was a decision from the Environment Court on the minimum flow for the Tarras river. It actually didn’t please the environmental groups. The farming communities, who wanted a lower minimum flow, prevailed, and I respect that outcome. Indeed, even in respect of the other rivers in Otago that still don’t have a minimum flow, I’ve never expressed a view as to what the minimum flow should be, because I don’t know what it should be—I just know that there should be one.

In any event, in that 2019 decision of the Environment Court, Judge Jackson said that the Otago Regional Council plan was in breach of the Resource Management Act (RMA) because it, essentially, said the flow for our rivers should be what’s left in them after everything’s sucked out of them under mining privileges.

You have to understand what mining privileges are. The Otago region, and a little bit in South Canterbury, is different from the rest of the country because there were very old rights to abstract water that were granted originally to people who were sluicing for gold. They had a right to extract large amounts of water—larger amounts of water than they actually did extract, but they had the right to extract large amounts of water. Those were open-ended rights. They weren’t under the Water and Soil Conservation Act; they were mining privileges. They were converted to deemed permits under the Resource Management Act when it was passed in 1991 and it came into effect in 1992.

Now, because these deemed permits trumped a minimum flow and they weren’t subject to either the Water and Soil Conservation Act or the Resource Management Act provisions, there was a transitional period allowed for those water users and the councils to work out what should happen with them. The period that was allocated for the conclusion of that transition was an incredibly long 30 years. I get boraxed from the other side when I say this, but I know that the farmers in that area were aware of this, because I was a young lawyer—a lot younger than I am now—in 1992. I went to woolshed meetings of Mr Ian Rutherford near Ōtūrehua on the shoulder of James Kempster Guthrie—Jim Guthrie—one of the best water lawyers ever to have been in practice in New Zealand. Sadly, he died quite young a few years ago, but he explained to the farmers what the transition was for deemed permits into the Resource Management Act regime and explained that there was a transition—a long transitional period—to take place.

Now, unfortunately, the regional council in the subsequent decades didn’t do their job. It is wrong to say that the farmers in the area didn’t know of the law: firstly, they did—I know they did. Secondly, any who recently bought those farms since the Resource Management Act came into effect would’ve been advised by their lawyers as to the limits of their deemed permits, which were those old mining privileges. If they weren’t properly advised, all of those farmers will have paid too much for their farms and would have a right of action against their lawyers, and, of course, there hasn’t been any litigation because the lawyers in Central Otago already well understood the law and it was explained to the purchasers of those farms.

Thirty years later, the transition had virtually not been started by the Otago Regional Council, and, indeed, at the end of that 30-year period, they tried to, effectively, extend the effect of those mining privileges by another 30 years by granting RMA abstraction rights for 30 years, even though they didn’t have a minimum flow on their river. At that point, the Government intervened and Judge Skelton, retired Environment Court judge—one of the best Environment Court judges ever, in my opinion; very moderate man and a former commissioner in Environment Canterbury that had been put in that position by the National administration, so he’s no lackey of any political party. He went down and he said, “Look, we need to work these things through. We ought not to be giving permits for a 30-year period; we’ll limit them to six years—how about that?” The council agreed that they would just give six-year rollovers, easily—not a hard process; an easy rollover for six years.

Now, in the meantime, because their plan has been so inadequate, they’ve been preparing a plan in light of the advice from Judge Jackson—not what the Labour Government had done; in the light of Judge Jackson. In the meantime, the regional council was meeting its statutory duty to prepare a plan that did comply with the Resource Management Act, and they’ve been at that for years—they’ve been at that for years. I don’t know what it says—I haven’t read it—but they’re in a position now that they want to promulgate it, because their old plan since way back when has not been working.

The sad thing is, during that period between the start of the RMA and now, the position has got worse because the actual amount of water that has been taken under those mining privileges has increased, sometimes tenfold, because at the start of this period, 30 years ago, it was neither economic nor was the technology really there to lift water up from some of these quite deep rivers relative to the banks of the rivers. While theoretically there was a right to take water for these mining privileges, in practice it didn’t happen, except that during the last 30 years a lot more of it has been taken. These properties have increasingly been subdivided into smaller units, the farming practices have changed—there’s a lot more dairying, even in these desert-like regions of Central Otago—they’ve got a lot more reliance on water, and they’ve actually increased the takes from those mining privileges which became deemed permits in practice in the intervening period.

After this long period, more than 30 years after the RMA was passed, the regional council’s now got to the point where it’s got a plan that it wants to promulgate, and that’s why this provision, that is now, I think, outside the scope of the bill, but we’ll no doubt get advice from the clerk of the committee here, because nothing else in the bill until now has talked about delaying the implementation of the National Policy Statement on Freshwater Management (NPSFM)—all it said was that it can’t be applied to consents. Now they’re, effectively, through this amendment, through this new clause 21A, saying that no one can promulgate a new freshwater planning instrument until the earlier of the new NPSFM that the Government says they one day might promulgate—who knows if they ever will, we don’t know that, that’s the future; they might not have a political majority to do so within their coalition—or 31 December 2025, whichever is the sooner. So, against that background, how can the Minister pretend to be the Minister for the Environment when the Minister is frustrating the promulgation of a plan?

Now, the promulgation’s not the end of it. What happens after promulgation is the council has to have hearings, and generally in contentious matters like this they often go on appeal to the Environment Court—another step—as happened with the Lindis River, and it all turned out OK for the farmers. Why is it that the Minister thinks that after that history, which I have recounted there, after all of those decades of delay and millions of dollars being spent by the council—now, what have they been spending money on recently? One of the criticisms that was made by parties to that litigation was that no one knew what the natural flows of these rivers were, because so many abstractions into water races and other things had been taken out that no one knew what the natural flow was, therefore they didn’t know what some minimum flow should be related to those natural flows. They’ve done all that work—the National Institute of Water and Atmospheric Research did it—they’ve worked through some very, very difficult issues and they’re ready to promulgate a plan.

Why do you, Minister, after that history, think that it is responsible—if this is within scope, and I don’t think it is, but if it is within scope, why, Minister, do you think it is responsible for you to sit there and say, having spent those tens of millions of dollars and worked up these difficult issues, gone through them all, at last got to the point where they can promulgate something where there can be a discussion in front of a hearings panel, you come in on the day before their vote—sorry, not you, Mr—

CHAIRPERSON (Greg O’Connor): Third person, please.

Sorry, the Minister comes in the day before the vote and tries to pass legislation saying “thou shalt not even publish a plan.”?

Thank you, Mr Chair. The member essentially answered his question himself that the restricting of the notification of freshwater planning instruments is until either a new National Policy Statement for Freshwater Management takes effect or 31 December 2025, whichever is sooner—despite the member somehow insinuating that this could go on for ever—or an exemption is granted.

Thank you, Mr Chair. I have a question for the Minister in the chair, the Hon Penny Simmonds, around clause 10, which amends section 44 of the Resource Management Act (RMA), which is around the restrictions of power to make national environmental standards. I want to specifically, at this stage, focus on subclause (3) of clause 10. I want to focus on subclause (3) first because I would like to sort of indicate to you, Mr Chair, that I would like to take another call around other sections, particularly around replacement subsections (3)(a) and (4).

I would like some clarification from the Minister around this subclause (3) in terms of the replacement that is being done on the power to the Minister when it comes to making changes to the national environmental standards. Now, the current RMA is very limited and very specific. In fact, of replacement section 44(3), inserted by clause 10, only paragraph (f) is in the existing legislation, which is “to make changes that are no more than minor in effect, to correct errors, or to make similar technical alterations.” However, under this bill, we have now introduced five additional ways that the Minister is able to make an amendment without public scrutiny or without any further advice or requirements from, for example, local government.

Just breaking down some of these sorts of areas in terms of aligning with New Zealand standards—to give an example to the committee, Minister—what sort of examples, when this was constructed, did the Minister have in mind, or what is the ministerial intent, when it comes to constructing some of these? If the Minister wouldn’t mind giving an example of each. And why did the Minister feel that this should be something that is included? My argument is that this is incredibly broad and covers a number of scenarios, particularly when we’re looking at, let’s say, replacement subsection 3(b), inserted by subclause 10(3), around New Zealand’s obligation under international conventions, protocols, or agreements.

This fundamentally comes down to the fact that Aotearoa New Zealand has a dualist system, in which case anything that we do sign internationally must first be put into domestic legislation before becoming law or becoming a part, under Aotearoa New Zealand. Would that mean, Minister, that when we’re looking at the international convention protocol agreement—which is signed without public consultations, and potentially without even going through the Foreign Affairs, Defence and Trade Committee—the Minister is able to, based on that signing of something overseas, make these sweeping changes to the national environmental standards?

Now, the other elements over here—for example, when it comes to extending the time frame, which is understandable, or to remove provisions in a national environmental standard—I would like some advice from the Minister on an example of how then the Minister determines when something is no longer required. Would there be a report being produced? Would there be a certain benchmark that must be achieved?

So, for all of these, particularly when it comes to replacement paragraphs (a) to (e), I’d just really like some clarifications around why the Minister has decided to include these elements when the existing section 44(3) of the Resource Management Act is incredibly minute and specific and limited in scope, and broaden it out to all of these. I think, particularly, I would like the Minister to answer in terms of the process when we are looking at when Aotearoa New Zealand signs any sort of international agreement, covenant, or protocols, and how the Minister would then, without any other form of consultation, be able to make these sort of sweeping changes to the national environmental standards.

Thank you, Mr Chair. I would note that we have traversed some of this earlier, but, for the member’s benefit, I complimented the Primary Production Committee on the improvement that they made around the national direction changes in terms of strengthening the transparency of the reasons why the Minister might take that approach, the need for the 20-day consultation period, and also in terms of the information that the Minister—sorry, I’m just looking quickly here for it—will have to publish, in terms of the reasons why the decision was made.

Mr Chair, thank you for the opportunity to take this call on the Amendment Paper. I would first of all like to congratulate the Minister. There is a massive sigh of relief going around rural Otago today for this measure.

I would like to just pick up on some of the comments made by the Hon David Parker and get your clarity on this, because I think you reference he did actually answer some of his own questions. For my clarity, the example of the Manuherikia River and the minimum flow, would that be one of the reasons why you would be bringing this measure here today?

For those that don’t know, and probably it’s maybe an Otago-centric thing, for the river as it is now, there is a minimum flow, whether that’s in statute or the council expects it to be at 900 litres per second—is it the measure? The farmers actually voluntarily keep it at 1,100 and the implication is that, if this land and water plan is notified, it could be at a much, much higher level, which would place the economics and viability of farming in the Manuherikia Valley at absolute peril, putting in jeopardy the banking covenants and just throwing all sorts of—

💬 Hon David Parker: But isn’t that why you have hearings?

—uncertainty around this. If the former Minister says, “Isn’t that why we have hearings?”, well, that is exactly what would happen here, of course. If the plan gets notified, it sets off a whole chain of events that ends up in the Environment Court, which will be a very, very expensive process, only for presumably the Minister, who has well-signalled her intention to repeal and replace the National Policy Statement for Freshwater Management (NPSFM)—the council will then have to go back into another process.

Can the Minister confirm that what she is trying to do here is cut off that chain of events, to seek what she has instructed councils fairly carefully—or guided councils probably is a better word—to pause their planning process till the central government has worked through its NPSFM and the various Resource Management Act reforms that we’re doing in this space? Of course, this very one that we’re amending today is part of that whole process. To me, that would be what the Minister is trying to do. The member opposite, in raising the issue of the Manuherikia, actually gave your—

💬 Hon David Parker: I didn’t.

Well, I’m raising it for you, Mr Parker. He’s actually giving an example of why this measure is absolutely required to give some certainty and stop what would actually be some chaos out there in terms of farmers in that region not knowing exactly where they stood, facing a very expensive process, only probably—and almost certainly—for the council to have to go back through the process again and just the massive uncertainty and complexity that that would bring. Thank you.

Thank you, Mr Chair. The member is absolutely correct: the Government is reviewing and replacing the National Policy Statement for Freshwater Management (NPSFM), for those who perhaps haven’t picked that up, and the time frame for that is an 18- to 24-month period. The Government has previously signalled to enable councils to have sufficient time to incorporate the replacement NPSFM the extended deadline to December 2027. Although most councils have picked up on that, some have not.

Absolutely to avoid the inefficiencies and the duplication of work, as councils might have to have had to amend their plans almost immediately once a new NPSFM is gazetted, we have now brought in this restricting of notification to avoid that duplication, to avoid that cost. Ratepayers quite sensibly do not want to have to be paying out again for amendments once the NPSFM comes into being. They would prefer that their councils waited so that they could incorporate that at the time.

Thank you, Mr Chair. Right, as you know, I’m working through the clauses, but I would remind the Minister that there’s a number of questions I asked that have not been answered yet. A couple were on the farm plans. What does “risk based” mean, and what regulations will remain to protect our environment from pollution?

CHAIRPERSON (Greg O’Connor): Can I invite the member to actually ask questions and ask the Minister to try and get the system of question and answer which was always intended for the committee stage? I know it takes two to tango, but perhaps you could try it, and from the Chair, I’ll ensure that she does get the call, rather than having to go through a stack of questions.

OK, thank you very much for that, Mr Chair. These questions related to farm plans and the Minister’s comments on how they’re coming in the future but they’re not here yet; they’re going to be risk based. Then my second question was: whilst we wait for these paused farm plans, what is there to protect the environment from pollution in the meantime? Then I had a further question on Te Mana o te Wai and the cases that the Minister was referring to.

Thank you, Mr Chair. I don’t recall that I referred to cases. I said there was variability in how the councils had been interpreting the absoluteness or otherwise of the hierarchy. I don’t recall that, at any stage, I referred specifically to any cases. In terms of the freshwater farm plans in the short period between the pause and when the farm plan system has been improved, regional councils—many of the councils themselves—have localised regulations, and a number of the farming practices have changed considerably in that time. There are catchment groups across the country, so there is considerable work that has been going on that will continue to go on, and I would be very certain that farmers would not see this as a period where they can somehow go rogue. They are certainly very involved in the process of wanting to contribute to making sure farm plans are effective, and, therefore, the work will continue.

That doesn’t answer my question, though, which was—the answer appears to be “Well, there are catchment groups now.”, and my question was: what regulation remains?

I think I did answer it. I said about the regional councils.

OK, so I heard the Minister say that some regional councils have been allowed to do their own plans—unlike, of course, the Otago Regional Council, which I will get to in a minute. In terms of the answer on Te Mana o te Wai, well, I’m not sure if the Minister said the word “cases” or not. What evidence has the Minister got? What analysis has the Minister got that Te Mana o te Wai was being used in resource consenting decisions and that aspect alone was blocking the granting of those decisions, not other additional matters, just the fact of the Te Mana o te Wai hierarchy? I presume, then, that there is no evidence.

My final question on my wrap-up questions was whether or not the Minister could give any comfort around national direction, actually, protecting the environment rather than just being a development jolly for the Government. No answer to that one either. Thank you, Mr Chair. Thank you for that.

It is very serious that the Minister refuses to give us any comfort around the fact that national directions will be about the protection of the environment and the stopping of pollution, because we’ve seen from a National-led Government in the past that these directions have been used for the betterment of industry—forestry industry in particular—and we’ve seen again and again these types of regulations coming out from this Government that do nothing to protect our environment, which, of course, is what the purpose of the Resource Management Act is.

Now, moving on, then, for me—I’m not stopping anybody else. I move now to clause 21, which is about the National Policy Statement for Indigenous Biodiversity. The change here is that there’s a stopping of the identification of these areas—that is, areas where there is indigenous biodiversity. I would like the Minister to tell the committee if she has asked for it—is there any evidence on what the effect of pausing this identification of new significant natural areas will be? Of course, the committee heard from submitters that any delay could result in the loss of taonga species due to unmanaged clearing of native vegetation and delayed action for pest control, so we’re worried about what the effects of a pause would be.

I also want to know from the Minister: why is it that the identification of those areas has to stop? Surely that is work that could be ongoing, and you could separate out the controls around what happens to those areas once they are identified? That’s another separate question. I’ll see if the Minister wants to answer.

Thank you, Mr Chair. The reason I didn’t immediately answer the member’s question about the national direction was the manner in which the question was asked. It assumed that there was no intent by this Government to protect the environment. There absolutely is. This Government has a suite of national direction instruments that are being worked on over the next few months with the intention of that very much being part of our second phase of the work that we are doing to reform the Resource Management Act.

There is considerable work being done by this Government. This Government has always said that our work is to ensure that there are improvements over time to, particularly, fresh water. What we have ensured is that the improvements we want to see over time are workable and are going to be in conjunction with the ratepayers and the users of water. The changes that will occur will occur in a way where there is consultation undertaken, and we will ensure that they are workable to improve fresh water.

Thank you, Mr Chair. I’m really glad that my colleague across the Chamber the Hon Rachel Brooking has brought up clause 21, because I’ve got some additional questions on that. Just for context about why this is so important, we know—and the Ministry for the Environment, particularly, is being really clear about the fact—that our ecosystems on which we depend are being degraded on multiple fronts. This isn’t just kind of the idea about how biodiversity is nice to have and this is just a bit of tinkering we’re doing. The biodiversity crisis in terms of species decline, habitat decline, ecosystem decline, taonga species—which has been mentioned—matters and we want to see, and the Government needs to be taking, action to actually address these things.

Now, I actually have an amendment up that proposes that clause 21 is deleted, and I want to refer to that. It’s about clause 21, which is “New section 78 inserted (Time-limited modifications to NPSIB 2023)”. This proposes to actually delete clause 21, which is on page 9 and line 17 of the bill. Why this is so important is that this clause directly impacts the effective and consistent identification, and therefore eventually steps to protect that biodiversity, and I wanted to step through and ask the Minister the rationale behind this clause specifically—first, to examine what the clause will actually do. It will essentially stop provisions for three years. It stops the provisions being a consistent approach to identifying significant indigenous vegetation and fauna.

This was one of the key issues. Biodiversity identification of these significant natural areas has actually been in place since the Resource Management Act (RMA) came in in 1991. One of the key barriers to why we’ve been unable to actually make gains in the biodiversity space is that there hasn’t been a consistent approach, so the fact that this is actually stopping the provisions that enable that consistent approach is simply nonsensical if this Government was actually serious about addressing our ongoing biodiversity decline. It stops territorial authorities in conducting assessments to actually identify these areas of significant indigenous vegetation and habitats of fauna.

I think what I’m really interested in hearing from the Minister is: why the stopping of the actual identification? We know the information itself would actually get us further in understanding our challenges, in understanding the actions and initiatives and incentives that landowners would need to be able to put in place effective biodiversity actions. It also stops the provision that councils must give effect to the National Policy Statement for Indigenous Biodiversity 2023 (NPSIB) as soon as practicable, so they now would have until 2027. Now, is it right to interpret—and I’m concerned about this, Minister, so I’d love to hear your comments about this—that this is a delay tactic by the Government to actually stop protecting these significant areas of indigenous vegetation and fauna?

What I’m also interested in within this is that the NPSIB itself has a whole range of responsibilities which council has. This is everything from working with tangata whenua to the identification and protection of indigenous biodiversity to preparing a biodiversity strategy and monitoring these species. What impact does the removal of these provisions, if my amendment is not adopted by the Government, which I hope it is—what impact will it have on the rest of council’s roles and responsibilities in implementing the National Policy Statement for Indigenous Biodiversity?

Thank you, Mr Chair. The significant natural areas (SNAs)—this should not be a surprise to the member. It’s in line with the Government’s 100-day action plan to begin to cease implementation of new SNAs and to seek advice on operation of the areas, so it was well signalled that this would be work we would undertake.

Contrary to what the member said, the suspension does not undermine or otherwise change requirements set out in the RMA—I believe section 6—with respect to the maintenance or protection of indigenous biodiversity. Any area of significant biodiversity identified during the suspension period, though, will not have the SNA provisions applied to it.

We have heard concerns that there are less significant areas that are being captured by the SNAs placing undue restrictions on how that land is used, so we are implementing the pause so that we can review the operation of the SNAs.

Now, members, obviously, there’s a very broad topic and there’s still plenty to go, but a lot of contextual stuff now has been said, so we’ll be starting to look for some specificity in the questions.

Thank you, Mr Chair. My question for the Minister is whether the Minister can confirm this—a number of members on the other side have asked for specific examples of where the hierarchy of obligations has prevented the issuing of consents.

Now, I was wearing another hat at the time, but my understanding was that this was a major problem in Environment Canterbury, and there was a huge backlog of consents. There was a decision made by Environment Canterbury, or their opinion was that under Te Mana o te Wai, they were unable to grant new consents or renew consents where the river was overallocated. This would have had the effect of, basically, people who had been in business for many years, farming in these catchments—they would have, effectively, been unable to get a consent. It would have placed huge barriers on their ability to continue with their businesses and with their loans. It would have put everything at risk, and it created a huge degree of uncertainty in that region. I don’t know whether the Minister or officials have any further thoughts on that one.

The other point is the question around why we are delaying the farm plans. The Minister gave a number of good examples, but I’d also suggest that another reason for the delay is to ensure that we do not duplicate a whole range of existing farm plans and force farmers, where they already have industry farm planning tools, to do another one. We’re looking to ensure that for farmers—to quote The Lord of the Rings—we only have one plan to rule them all. Thank you.

Thank you, Mr Chairman. I have tabled an amendment to clause 23A of the bill, but before I talk to that, I want to put to the Minister a complaint that we’ve received from a very senior lawyer—a King’s Counsel—who said that the Primary Production Committee undertook to her, while she was acting on behalf of Forest & Bird, that the amendment that’s now in clause 23A to amend section 107 would not be made in this bill.

She’s written complaints to the Government, and I wanted to ask the Minister whether she is aware that the chair of the Primary Production Committee has said that “We’re not contemplating that. Therefore, you don’t need to submit upon it.”, and, therefore, they didn’t. If that is the case—and I understand that to be the case—I have never ever seen that in my history in this Parliament, where an undertaking was made to a submitter that “You don’t need to cover that point, because we’re not covering that in this bill.”, only for the Government to, effectively, dishonour the undertaking that was made by a chair of a select committee to a submitter.

Now, I know that all of the other complaints that we’ve made about the appalling process around environmental legislation fall on deaf ears with this Government, so I’m going to make the assumption—notwithstanding the breach of that undertaking—that it has been recorded by Sally Gepp KC in correspondence that I think most, or a lot of, members have seen.

I just want to respond to something that the Hon Andrew Hoggard has said. I actually agree with Andrew Hoggard that there needs to be a period of adjustment so that things can improve gradually over time. I’m not sure if he’s heard me here, but the Hon Andrew Hoggard made the comment that there was a decision in South Canterbury which would have prevented farmers continuing to farm. My understanding is that he is referring to a report that was prepared by one of the groups there—it might have been a Ngāi Tahu - related group—who said that they should not be granting a consent. I actually disagreed with that report from Ngāi Tahu and I don’t think that that’s the decision that was taken by the regional council, and it is, in the end, their decision to take after they have received submissions from various parties. I agree with the Hon Andrew Hoggard that you have to adjust.

With the national objectives framework, the biggest risk to the farming community actually was in South Canterbury, and it was that we would have a maximum for dissolved inorganic nitrogen which couldn’t be met in South Canterbury. Because we didn’t want to inflict that upon the economy—because the Resource Management Act is about more than just the environment; it is about fair economic outcomes—we thought that that was too tough to go there, and so we didn’t. In the attributes that have to be managed for in fresh water, we didn’t have a maximum standard for dissolved inorganic nitrogen in the national direction. Councils could still have one, if they wanted, but we weren’t imposing it by way of regulation.

Now, my amendment to clause 23A(2A)—this is the amendment that sort of reinstates the ability of councils to have some flexibility to allow a renewal or a new consent if it imposes conditions and there are already adverse effects and the conditions are going to improve things. At the moment, the amendment in clause 23A to insert new section 107(2A) says that the consent authority has to be “satisfied that those conditions will contribute to a reduction of the effects described in subsection (1)(g) over the duration of the permit.”, and those are the adverse environmental effects that are already being suffered. I think that that’s too loose.

With respect, I think that it should be a meaningful reduction, otherwise you could have an insignificant reduction in adverse environmental effects, and it would, effectively, be given the tick-off through the amendment that’s being made through clause 23A of the bill. My amendment inserts the word “meaningful” before the word “reduction” so that the consent authority would have to be satisfied that those conditions will contribute to a meaningful reduction of the effects described. Otherwise, Minister, what can continue is where we have got undue levels of pollution ruining waterways, it could effectively be ticked off for ever. I ask the Minister to indicate whether she will support my amendment to insert the word “meaningful” before the word “reduction” in new section 107(2A)(c).

I actually want to bring the Minister back to an earlier line of questioning from the Hon Rachel Brooking. In the regulatory impact statement are the options for pausing the implementation of the freshwater farm plan. This is quite a specific question really. Is analysis done on the safeguards to environmental and human health? In that analysis comparing the status quo with the pausing of the freshwater farm plans, the existing time frames, if they remain, will allow councils to continue freshwater improvements as planned—which is self-evident, obviously. The status quo will be an ability to improve freshwater conditions as planned.

The time frames under the freshwater farm plan pause will mean that there’s a delay in when the system is fully implemented. It points out that there is a risk to fresh water in the short term, compared to the status quo, of potentially resulting in negative impacts on the health of waterways and people. My question to the Minister is quite specific: what are the negative impacts on the health of waterways and people that is risked by pausing the farm plans? What are the negative impacts to not just the health of waterways but also to the health of people, Minister?

I have already covered that area—about the very brief pause between when the farm plans work has been done to improve that system and the fact that there are other local provisions. There is work that’s been done already with farmers, with catchment groups, so the period will be relatively short and the work that is being undertaken will continue on. In fact, many of the groups are actively involved in assuring that the farm plans address the sort of issues that you brought up.

Thank you, Madam Chair. Just going back to remind the Minister of a couple of questions she hasn’t answered—then I will move on—one was about the indigenous biodiversity national policy statement (NPS) and why stopping the identification—she’s answered the implementation question that it was in the 100-day plan, and it’s had impacts that the Government feels are unreasonable on private property owners. But why stop the identification? That’s one question remaining.

The Minister the Hon Andrew Hoggard made a contribution and said, with Te Mana o te Wai—he gave some examples that he had heard about, presumably when he was the president of Federated Farmers; he said, “with another hat”—about when Te Mana o te Wai impacted on consents directly. Now, what I want to ask the Minister is: if that is true, if that is the case—I’m not saying it’s not the case; I’ve asked the Minister again for what advice she’s received on that issue—isn’t the best thing to do to implement plans so that, when somebody is applying for a resource consent, they don’t need to go to Te Mana o te Wai? How the resource management system works is that, if a plan has a rule and applies, you don’t need to go up the chain to the national instrument—if that national instrument has already been implemented. I would very much be interested in the Minister’s answer to that issue.

I now want to move on, though, to Amendment Paper 128, and this is the one about what feels to me, being the member for Dunedin, to be a specific attack on the Otago Regional Council, who was going to have its meeting tomorrow to notify its freshwater planning instrument. What this Amendment Paper does is say, “No, no, no, despite the Resource Management Act at the moment saying that you have to act as quickly as you can”—and Otago Regional Council continuing, then, on their work to be legal—“we’re going to change the law to say, ‘No, you can’t do that until either there’s the new policy statement”—and we’ve heard that’s going to take about 18 months—“or 31 December 2025.’ ”, which is quite some time from now.

Now, the Minister has said that we should all know that a new National Policy Statement for Freshwater Management (NPSFM) is coming. To that, I want to ask the Minister what she is so scared about in the Otago Regional Council’s plan—that hasn’t yet been notified; I haven’t seen it, I don’t know what’s in it—that will be against her new National Policy Statement for Freshwater Management which, obviously, we haven’t seen. All I can work out—what would seem to be a reasonable presumption or assumption—is that the Minister’s planned new NPSFM will allow for more pollution than what she considers the Otago Regional Council’s plan would. Now, if that is not the case, it is very important that it is in the Hansard. If the Minister wants to answer—and I’d like to come back to this.

Thank you, Madam Chair. I’ll refer again to questions by both the Hon David Parker and the Hon Rachel Brooking about why we’re taking the hierarchy of obligations away from the consenting process. I need to make it very clear that the Government wants to address concerns that it has about the way it has been applied by some councils. I mentioned that right at the start; that it’s been variable in how it has been applied. In some councils, it has been specifically that the applicants are being asked to demonstrate how their proposed activities adhere to the hierarchy of obligations and the impact this may have on consent decisions. It’s the variable way in which it has been applied and the fact that it has been applied as an absolute in some instances.

In terms of the restricting of the notification of freshwater plans—and, again, I’m repeating—this is to avoid inefficiencies. It’s to avoid duplication of work and costs to ratepayers, in terms of having to amend plans once the new National Policy Statement for Freshwater Management (NPSFM) is gazetted. It is a relatively short period until that work will occur—18 to 24 months—and therefore we gave that very clear signal when we provided sufficient time for councils to incorporate the replacement NPSFM by extending the deadline to December 2027. We are now making it abundantly clear that they should avoid those inefficiencies and duplication.

I want to ask the Minister to consider what’s the likely reaction to this reaction by the incoming Government, because the last Government took six years to work through these issues as to water quality, because they are difficult and we made a few mistakes—yeah, we did. I know the prior National Government tried to land fencing regulations, and we’ll come to that in a second part. They’re quite complex. Similarly, we tried to better deal with a matter we discussed last week, which was intensive winter grazing, but these regulations were improving and becoming more practical.

Now, what’s happening here is the Government’s effectively saying, “Look, the outcomes-based framework that sits at the heart of the National Policy Statement for Freshwater Management is not going to be given the time to work.” Minister, are you aware that as a consequence of fiddling around with an outcomes-based framework, you effectively drive councils and those in the community that are worried about degrading water quality to input controls? Because input controls are really simple. They’re really fast to implement, and that’s what is coming next if the continuation in the degradation of water is allowed to continue, because an outcomes-based regime is not allowed to be given the time to work. The time to work, under the existing legislation, is a generation, a generation to clean things up, because it does—and the standards aren’t some sort of political whim. They were set by freshwater scientists, and these were moderate people. These weren’t radical activists. These were long-experienced people who had a reasonable view as to what was necessary.

I’m asking the Minister: what would she say to the people who say that we should move to input controls? Input controls work, but they’re economically less efficient. Now, the Greens have been calling for years for input controls. I remember Jeanette Fitzsimons saying that we should have a limit on the number of cows in overly enriched catchments. The Government says they want simple regulation; they don’t want complex regulation and regulatory burden. Well, for the Minister, I tell you what: input controls are really simple. What would she say to that?

Thank you, Madam Chair. Thank you, Minister, for joining us this afternoon. I hope with your leave, Minister, we could actually talk about the slope maps and the changes to slope map rules.

💬 Hon David Parker: It’s in the next Part.

Is it the next Part, just for clarity?

💬 Hon David Parker: Yes.

Oh, well, we’ll come to that.

Thank you, Madam Chair. Also, thank you, Minister, before, for pointing out the new edition of new section 44(3)(a) in clause 10. Now, I do understand where the Minister is coming from in that this is something that the Primary Production Committee has discussed and, then, that (3)(a) was added as an insertion. However, the Minister hasn’t really answered my question in terms of addressing the concerns that I have around the scope of new section 43(3) of clause 10 in the first place.

Now, the reason I wanted to raise this part in particular—like I said previously—was to do with the fact that this part is so vastly different from the existing legislation. Also, despite the fact that (3)(a) and particularly (3)(b) have been included around accountability and transparency from a reporting perspective, when a decision is made and how it’s reported is different from why or how the decision was made in the first place. To give an example to the Minister, let’s look at (3)(b) in terms of implementation of New Zealand’s obligations. When we are looking at any form of free-trade agreement (FTA), which, understandably, is considered an international agreement, and there are certain conditions in there, would the Minister then be able to bypass the process of section 46A in order to implement, or make changes to, the national environment standards on the basis of what is in an FTA?

Now, the reason I mentioned this specifically is because of the fact that—again, one of the situations we have in Aotearoa is the fact that the Government itself, without having any scrutiny or any proper form of scrutiny from the legislature, is able to make those kinds of international agreements. We’ve done it in a way to ensure that it is not binding in the New Zealand context. It’s only binding in the New Zealand context if it’s introduced in a domestic legislation. However, what we’re seeing here is the fact that the Minister, in fact, is able to make it binding by making adjustment or making changes in the form of secondary legislation to something on the basis of an international agreement. This is a significant deviation from some of the processes that we have come to when it comes to international agreements, protocols, and obligations. That is something that is of concern.

Minister, I also understand that potentially you could say that (3)(a) was introduced where the recommendation can consider what is more appropriate to follow the full process, and that is true, but what we have seen post - select committee adding this in is that there is no guidance or clarification of how a Minister is able to make that appropriate decision on whether 46A, under clause 11, should be followed.

Now, the other element that I wanted to check with the Minister, to get the Minister’s clarification on, is around (3)(e), which is about removed provisions in a national environment standard that is no longer required as a consequence of changes to the legislation. We have seen, as an indication, that the Government is intending on removing a lot of Te Tiriti clauses from a number of primary legislations. In this particular case, with the removal of Te Tiriti clauses from primary legislation, that is, in fact, a change to legislation. Does that mean that technically speaking—now, again, the Minister has the responsibility to determine the balance of whether 46A is needed, but the Minister, in fact, has the responsibility, or is able, to make those changes to national environment standards and remove any consideration to Te Tiriti o Waitangi, provided that that particular provision was removed in legislation. That is also something that I think is really concerning that requires the Minister’s clarification.

Lastly, with (3A)(a), considering it was introduced by the Primary Production Committee, has the Minister taken any advice from officials concerning the secondary legislation that if a Minister did not appropriately judge whether they will continue to use the section 46A process or make their own determination under (3), would that trigger either a judicial review or, potentially, something before the Regulations Review Committee?

Kia ora, Madam Chair. It’s been interesting over the last hour or so to listen to this debate, although it feels quite one-sided. I guess, as I come to my question—well, firstly, it’s really about the Minister feeling comfortable and explaining, herself, that she feels comfortable around allowing these two rather significant Amendment Papers to be dropped today, and if she can explain how she feels comfortable with Amendment Papers 127 and 128 being tabled by her colleague, the Hon Chris Bishop. The honourable member is the Minister for the Environment and their job is to protect the environment, whether it be fresh water, whether it be our soils, whether it be other parts of our environment, so my first question really is her explaining why she’s comfortable with this—if, as the Minister for the Environment, she can feel comfortable.

My second part I’ll get to is on the Amendment Paper, in new clause 40B, but it really is around the narrative that we keep hearing. It was when we had the second reading last week, members of the Minister’s own party made it really clear about getting Wellington out of farming. It’s an unusual statement.

💬 Mark Cameron: What a good idea.

Well, it’s an ironic statement really, because if we used that for “get Wellington out of driving”, that wouldn’t be so good, I don’t think. Whether we talk about getting Wellington out of housing consents, I think we’d understand leaky homes in the situation, or do we get Wellington out of crime? What would that look like? I think it’s a false statement around getting Wellington out of farming, because the irony is that then they prescribe over the top of—as we’ve heard—regional councils like Otago.

Then, if we look at the Amendment Paper—and I want a really clear explanation because I don’t feel like we’ve had it yet this afternoon. If we look at Amendment Paper 128, on page 2, it’s about clause 40B, which is around the “schedule and the amendments to section 80A made by section 21A of the amendment Act apply on and from 22 October 2024 as if they were in force on and from that date.” I’d like to ask the Minister: why that date? I’d like to ask the Minister what is at stake for her as the Minister for the Environment if that date was to be moved or changed? Why does it need to be today? Why couldn’t it even be 22 November, 22 December, or further afield? I would like real clarity from the Minister on why that date is so significant and what it would mean if it was changed.

Going back to the original question I asked, which was really around how she feels comfortable, as the Minister for the Environment, to allow these two significant changes to be made today without any engagement with the public of Aotearoa?

Thank you, Madam Chair. I’ll answer the questions from the Green Party member, Dr Lawrence Xu-Nan. The bill clarifies and expands the circumstances where minor updates to national direction can be made without a consultation and submission process, but before making a decision, the Minister is required to consider the appropriateness of using the full section 46A process. After making the minor update, the Minister has to be transparent about publishing the reasons for the update. In terms of judicial review, there is always a judicial review opportunity for decisions that are made within the Resource Management Act.

In terms of the member who has just taken his seat, Glen Bennett, I don’t think it’s of any interest to members of this committee or the wider community whether I am comfortable or not. There are amendments that have been tabled, and they are here for us to debate.

Thank you, Madam Chair. I note, Madam Chair, that the previous Chair encouraged me to ask questions and get a response from the Minister, so that is why I sat down before the end of my time before, but it has taken some time to get the call again, so I presume that you are taking a different approach?

No, I’m happy to take that approach. I just hadn’t had it indicated to me in the last call. If you indicate to me that there are more questions, we can roll with that process.

💬 Hon RACHEL BROOKING: OK, thank you very much for that clarification, Madam Chair.

I was on the Amendment Paper 128, and there was a response from the Minister in the chair, the Hon Penny Simmonds, that why we have this Amendment Paper is for efficiency. In response to that, I put it to the Minister that it is not efficient to stop a process that has been in train for so long unless—well, in particular, once plans are in place, then there is no requirement to rely on a hierarchy of Te Mana o te Wai in terms of consenting because you just go to whatever the plan rule is; that’s one reason. The second reason why the efficiency argument makes no sense to me is that it assumes that there will be major changes in the Minister’s new, yet to be seen National Policy Statement for Freshwater Management (NPSFM). There can’t not be a huge change coming, for her argument to be that is inefficient. I can see the Minister is looking at her papers, so I will continue.

We heard from my colleague Glen Bennett just then about new clause 40A, inserted by Schedule 1, in this Amendment Paper, and that is the retrospective application of clause 40B, which is the one that says you can’t do anything until the end of 2025. This is remarkable—we have had this Amendment Paper drop today with a retrospective clause. Of course, the Government knows that this bill can’t get Royal assent today—this is retrospectively referring to today, 22 October 2024. And we know—well, we assume—that why this date is chosen, which is what my colleague was just talking about, is because we know that the Otago Regional Council is meeting tomorrow on 23 October 2024 to notify their plan. This has been well signalled. We ask the Minister to confirm that this retrospective application of clause 40B is specifically to stop the Otago Regional Council from meeting tomorrow on 23 October 2024.

I also ask the Minister how she can justify the use of a retrospective clause. Does she understand, and does this Government understand, what a big constitutional issue it is when retrospective, any retrospectively—I can’t even say the word, it’s such an appalling concept. Does she understand, and does this Government understand, what a big constitutional issue it is when any retrospectivity is used? The justification of efficiency just makes no sense unless—unless—her next version of the NPSFM is going to allow more pollution.

Now, I will continue on with this Amendment Paper because, at 40B, we have some ability for the Minister to say, “Well, actually, some freshwater planning instruments can go ahead if it’s relating to a range of factors”, and that’s flood protection, natural hazards, progressing housing development, and some other issues are there as well. I can’t see anything on this list about pollution or the environment, and I wonder why that is and if the Minister would consider adding something about pollution or the environment. I also wonder if this clause—and if the Minister has any advice on what incentives it will make to regional councils to break up their plans into component parts that match the subparagraphs in this Amendment Paper. [Time expired] Madam Chair?

CHAIRPERSON (Barbara Kuriger): The Hon Rachel Brooking.

💬 Hon RACHEL BROOKING: Thank you. My concern, just looking at this today, this afternoon, is that this might incentivise councils to say, “Well, actually, we’re just going to do part of a plan that is just about flood protection, but we’re not necessarily going to integrate that with important work on housing.” Of course, all planning is integrated—we know that it’s not a great idea to build housing in a flood plain. I’m interested to know if the Minister has had any advice or has considered what this exemptions clause in 40B will do. I want to know how it can be that a retrospective application under clause 40A can be, unless her new environment National Policy Statement for Freshwater Management is just going to enable more pollution. Thank you, Madam Chair.

Thank you, Madam Chair. I would remind the member that, while retrospective legislation is not the norm, it has been used before. In fact, the Labour Party will remember their own Sir Michael Cullen, who brought in taxation law that was retrospective. The next version of the National Policy Statement for Freshwater Management (NPSFM) is going to occur over the next 18 to 24 months. There will be a considerable consultation period, and so I will not predetermine—and I think it’s unfortunate that the member is trying to predetermine—what might be in the next NPSFM. We will go through that in a fulsome process. The exemptions pathway is just that—there may well be a need to have exemptions, and therefore there is a pathway there that councils can seek to go down.

I’d like to take the Minister to clause 10(4), which inserts a new section 44(3), which describes the circumstances when a Minister, without going through a more fulsome process, can make a change to a national environment standard, is my understanding. In particular, I want to draw the attention to the one-sided nature of paragraph (d).

This went to the Primary Production Committee saying that “(3) The Minister need not follow the process referred to in section 46A if the Minister is recommending the making of an amendment for 1 of the following reasons:”, and then it lists the reasons (a) to (f). Paragraph (a) is “to align with a New Zealand Standard”—seems pretty sensible. Paragraph (b) is to implement international convention protocols—OK. Paragraph (c) is to give effect to a provision in an emission reduction plan—agreed with that. Paragraph (e) to remove provisions with the national environmental standard that are no longer required and they’re becoming redundant—seems fair enough. Paragraph (f) to make changes that are no more than minor or to correct errors—I agree with that.

Then we come to paragraph (d). It went to the Primary Production Committee saying, “to change the time frame for implementation of any part of a national environmental standard”—quite a wide power; a lot different to all of the other ways that you can change it. Now, not only is it a very wide power, it seems to me to be giving a workaround to the ability to have a decent process around change to national direction. It’s actually now only “to extend the time frame”—so, once again, one-sided. You can extend the time frame but you can’t reduce it. Not only can you extend it but you can extend it for any part of a national environment standard.

I want the Minister to explain how she could interpret that clause as being anything other than allowing the Minister to make an extension to the time frame for any part of it. For example, next time there’s a complaint made by the National Party as to some regulatory provision in any of these national environmental standards, the Minister could rely upon the new section 44(3)(d) to extend the time frame for implementation of any part of a national environment standard. And how can that loose amount of wiggle room that is allowed to a Minister to effectively render ineffective what could be the most substantial part of national direction—why should this Parliament agree to the Minister having that power?

Thank you, Madam Chair. I would like to ask a few questions in relation to Amendment Paper 128, because I think we want to really understand what the rationale behind these changes is. What we can see here is a last-minute amendment that really looks like it’s giving the middle finger to localism and to Otago.

I don’t think we can expect Otago residents, Otago councillors, and iwi to understand why this has been done at this time, unless the Minister can give a full account of why today this amendment has been dropped in here. I’m also interested in understanding why the Minister thinks the costs will increase because of duplication, because if standards that the local community, farmers, and iwi arrive at are more strict than legislated, then is that really an issue? Or is it simply localism at work?

What we’ve heard from one of the Otago regional councillors is that this amendment has made a nonsense of the idea that Otago has local decision-making independence—that’s Councillor Alexa Forbes. What would the Minister say to Councillor Alexa Forbes? Does this action by central government—by Wellington—over all the actions of our local council, of iwi, and of our community, give anyone any sense that we can divine and direct our own future in the deep South, or does it show an arrogant override of everything that we worked for in the deep South?

As has been canvassed, there will be a meeting tomorrow. It was to notify the planning instrument—

💬 Hon David Parker: They still can.

We can—and I urge the Otago Regional Council to hold that meeting tomorrow. We have seen Otago get out about the cuts to our hospital. We’ve seen 35,000 people on the streets. The Hutton Theatre only has 230 seats, so I’m hoping—and I will be putting the request out that they do hold that meeting tomorrow because local decision-making is critically important. It’s important for our environment. This is so important.

Another question that I have for the Minister relates to something that my colleague Lawrence Xu-Nan alerted us to earlier. What assessment has the Minister done on her actions in this bill—what assessment has she done on the impacts to the free-trade agreement with the EU? What impacts is this likely to have on our free-trade agreement and for our farming community—for their access to the EU to sell products? What impacts is this going to have?

I can tell the Minister, I was at an EU event last night and this action was discussed. This was an informal meeting—an event I was at—but I would be very surprised if there are not substantial consequences for our farming communities because of this Government’s actions. I think we can do better, but I would like the Minister to explain what assessments have been done to look at the trade implications of not just this last-minute amendment but the whole work that we’ve seen from this Minister. I have a number of other questions, but I’d like a response, please.

Thank you, Madam Chair. I’ll just repeat the information that I have given previously that this restricting notification of the freshwater plans is in line with the extension of time that we gave councils to have until the end of December 2027 to notify and that the new National Policy Statement for Freshwater Management (NPSFM) will be undertaken over the next 18 to 24 months. The member somehow is conflating this restriction as an end to localism. The restriction is in place until either a new NPSFM takes effect or 31 December next year—whichever is the sooner. It is a relatively short period of time. It is to ensure that there is not duplication of effort, time, and money so that the council can take into consideration the new NPSFM.

I move, That debate on this question now close.

I’m going to take a call from Lan Pham, but we’ve been on this part for almost the best part of two hours now. When I came into the Chair, I had been listening and the previous Chair had said we need a get a bit narrower and more specific. I’m really expecting specific and new. Lan Pham, please.

Thank you, Madam Chair. I really appreciate that, particularly because we are really trying to step through this bill bit by bit, and I appreciate that you’re saying that you want us to get straight to the point. I have two amendments on the Table with regard to Part 1 that I would like to speak to, Madam Chair, and I hope you will allow me to do that.

The first is with regards to deleting clause 23. Now, this is in Part 1 on page 11 of the bill and it’s titled “Section 104 amended (Consideration of applications)”. I’m really interested to hear from the Minister some advice on this, because this is the clause meaning that consent authorities will not have to have regard to the hierarchy of obligations in Te Mana o te Wai.

Now, why I’m really interested in this clause is that, for example, we know that—and, again, taking Otago Regional Council as an example, they have regard and clauses in their regional policy statement that actually uphold the National Policy Statement for Freshwater Management and actually upholds Te Mana o te Wai. I’m interested to hear from the Minister how this will be struck out when it’s actually in higher order planning instruments, and what effect that will have on the precise consent decisions that are made that come up application by application, and decisions actually have to be made on these applications.

Within that, I haven’t yet heard from the Minister what the Government’s intentions are with clauses like this that are throughout the bill. Is freshwater improvement an actual goal of this Government? I’m yet to hear it. I think it would be of great comfort to those who are watching, to those who are interested in these freshwater reforms, if that intention is actually part of this Government’s approach with the reforms and how it directly relates to these consent decisions.

I wanted to also touch on another amendment, which is to do with clause 23A, and this is on page 12 of the bill. This is the clause that actually removes the restrictions on discharge permits, and this is about the case that the Environmental Law Initiative took with regards to Ashburton Lyndhurst Irrigation Scheme. It was interesting hearing my Government Minister colleague assert that councils were declining consents as a result of this High Court case.

Now, what I want to talk about and draw attention to and hear the Minister’s thoughts on is the fact that in Canterbury—where this case took place and this High Court decision was made—there’s been assertions made that the council are declining consents. The Environmental Law Initiative have directly examined the consents coming out and being granted by Environment Canterbury and I want to quote them here. They’re saying, “Reviewing these, we have found nothing to suggest that the law has been made unworkable across a wide range of discharges, or even that any consents have been declined because of the High Court decision.”—

💬 Hon David Parker: Really? That’s not what we heard from others.

—that’s not what we’ve heard from others, but that’s what the Environmental Law Initiative found—“In fact, we have found that ECan has continued to issue discharge consents across Canterbury including for a town stormwater network, stormwater from housing and industry, septic systems, spraying agrichemicals within and adjacent to … waterways in the Canterbury Region, and [for] farming activities.”

What this is telling us is that the rationale for this clause change that will massively impact fresh water not only in Canterbury but across the country—the rationale is not there. No one has the automatic right to discharge contaminants to water. While councils may expressly allow discharges, their powers to do so are not unlimited. What’s really concerning about this clause, and this proposed clause in the bill, is that it’s essentially accepting the degraded state of our waterways, especially in our most degraded areas. It’s saying just because they are degraded and that we’ve already declined them to a level where they are breaching—whether it be human health standards; whether it be nitrates or phosphorus or sediment—that people can continue to pollute without limits.

Now, I don’t think anyone in the country would be welcoming of that change, and that is not something that has been signalled. It is not something that came up at the Primary Production Committee that was entertained by the chair to actually be a substantive issue that they would then make recommendations of. I was there at the hearings when the chair very clearly said that changes in this clause were out of scope for this bill. Yet we’re seeing them here, we’ve got the amendments with the Otago Regional Council and stopping regional councils from actually undertaking their democratic right. It is not OK, and I’d really like to hear the Minister’s explanation for these things.

I’m sorry the member did not hear before when I made it very explicit that this Government wants to see improvements in fresh water over time and that our Resource Management Act work will be towards that. In terms of the clarifications around the consenting discharges, again, there are matters there that were creating uncertainty that some discharges in degraded catchments while providing for improvement over time might be turned down. Again, it is about providing certainty that where there is an ability to manage the discharge and the improvements, that that should be able to be consented.

I move, That debate on this question now close.

The question is that debate on this question now close.

Point of order, Madam Chair. Now is the time when I invite the Chair to rule on the issue as to scope that I raised in respect of the amendment.

OK, so I have a Speaker’s ruling here, Speaker’s ruling 131/4, that advises me that the Amendment Papers posted by the Minister responsible for RMA Reform are in order. Amendment Paper 128 is clearly relevant to the bill’s subject matter. Whether or not a matter is new policy is not a concern for the Chair as long as it’s not inconsistent with the bill’s principles and objectives. The Minister’s amendments do not reach that high threshold. Thank you.

The question is that the Minister’s amendments to Part 1 set out on Amendment Papers 127 and 128 be agreed to.

The question is that Lan Pham’s tabled amendment to delete clause 21 be agreed to.

The question is that Steve Abel’s tabled amendment to delete clause 22 be agreed to.

The question is that Lan Pham’s tabled amendment to delete clause 23 be agreed to.

The question is that Lan Pham’s tabled amendment to delete clause 23A be agreed to.

The tabled amendment to delete clause 23A in the name of the Hon Rachel Brooking is out of order as being the same in substance as an amendment previously not agreed to.

The question is that the Hon David Parker’s tabled amendment to clause 23A be agreed to.