Natural Environment Bill

Thank you, Madam Chair. I just note that, as you just did, Part 2 is “Foundations” and there are no schedules to this part. In fact, I think all the remaining schedules go with Part 4, so we’ll leave the back of the bill for now.

Anyway, I want to get on to the goals. We were talking when the Minister was in the chair before, rather than the member who’s in the chair now, a lot about the interaction between the purpose statement and the goals and an absence of hierarchy, and how this is a big, in my opinion and the opinion of almost all the experts who gave advice to the Environment Committee, hot mess—my words.

I think we need to have some discussion on that, but before I go into that I will refer the chair to my Amendment Paper 687, and this is a replacement of the goals with some different goals. But, actually, the replacements are very similar except that they go to clause 11(1)(f), which is “to provide for Māori interests through—”, and my goal harks back to section 6(e) of the Resource Management Act; and then in clause 11(1)(d)—rather than what was originally “no net loss in” but changed in AP 710 “to protect … biodiversity:”, I have “to protect and restore … ecological integrity,”

I also have made a change to the first paragraph, which is paragraph (a): “to enable the use and development of natural resources, including for the production of food and fibre (including aquaculture):”, and the change here is to insert “, within environmental limits”. That’s important because, as the bill was introduced, there was the term “within environmental limits” and then this got taken out at the Environment Committee by majority. That is a real problem, because we’ve had the Minister in the chair earlier today talk about how he is committed to pieces of legislation that do allow for and enable development within environmental limits.

So here is that phrase. It was in the bill as introduced—“enable the use and development … within environmental limits” and that has now been removed. One of my questions to the member in the chair, Simon Court, is: why has that been removed, and does that use and development of natural resources still have to be within environmental limits?

I note that in question time just now, Lan Pham was asking the Minister responsible for RMA Reform about limits, and he was saying that this is “a massive step forward on the RMA”—that’s the quote from him—to have limits. But where are they in the goals now that they’ve been removed? That’s one question, and that’s a huge issue. I’m sure other people will have other amendments on that issue, as well.

Would he consider having the wording from section 6(e) of the RMA in there rather than what is in clause 11(f) of this bill, and then I have another change—which I also had in the Planning Bill—in Amendment Paper 687, and that is to insert a new clause 11(3A) at the end, which says, “Where goals are in conflict, the purpose of this Act (as set out in section 4)”—which I would have changed—“must be used to reconcile the differences between the goals.” That is an attempt—an inelegant attempt—to try to have some sort of hierarchy here which would go to the purpose and then the goals, rather than having to rely on the Minister all the time, through national direction, to try to resolve any conflict between goals.

Those are a few questions on it. I won’t address the term “no net loss in significant indigenous biodiversity” in this contribution, but I would like to ask the member in the chair to answer that question about why we have got rid of “within environmental limits” if that’s the whole purpose of the scheme. Can we bring it back, and can we bring back section 6(e), and can we also have my idea of having some sort of hierarchy at subclause (3A)? Thank you, Madam Chair.

Thank you, Madam Chair. It’s really great to get on to this “Goals” clause, because it does have implications for the entirety of the bill. I think the direction, which is under it—because we’ve established that the “Purpose” clause is a clause with no purpose, it’s really important that the goals themselves have potentially some form of direction. I’m really interested in the Minister’s responses to one of my first Amendment Papers proposed for the goals in clause 11. Really, this is around—

CHAIRPERSON (Barbara Kuriger): Which number is the amendment?

Sorry, the Amendment Paper is Amendment Paper 670. The aspect that I’m interested in is what the member’s perspective is about whether the goals are, essentially, meaningless if the Minister only has to seek to achieve all of them and can prioritise them in any manner they see fit.

My Amendment Paper would delete the words “seek to achieve the following goals”. I accept that in the national direction, the Minister has this huge discretion, but what could possibly be the justification of doing that if, basically, there is no other direction elsewhere in the bill other than that simply being the Minister’s whim? If there was further direction about the actual achievement of the goals, could this be one way forward where there is actually some impetus on decision makers to actually achieve something?

I want to pick up as well on the first goal, which is paragraph (a), and I want to pick up on this specifically because it was hugely disappointing at the select committee—and sorry, just for people’s understanding, this is the clause around enabling the actual use and development of natural resources. What came in, not actually at the select committee level but on top of the select committee—came straight in as ministerial direction—was this reference to “the production of food and fibre (including aquaculture)”. That was, essentially, a shout-out to these industry lobby groups.

The reason why it was that is that officials made it really clear to us at the select committee—and some of the select committee members are here and will appreciate and remember this—that this is meaningless. They said that the goal already includes the use and development of food and fibre, including aquaculture, but they still wanted it established at the heart of this legislation just as a shout-out.

My question to the Minister is: what is his perspective on the heart of our resource management legislation having such inappropriate shout-outs to industry, and whether he would consider my other Amendment Paper, which is to reinstate “within environmental limits” within that clause, because that is the one that was removed and that’s the one that would actually set up our country and our economy to function.

Now, I’m really interested in that. I’ve got other amendments on these clauses, but I’ll leave it there for now.

I thank the member for her contribution. I know she has a great interest in the natural environment. The Natural Environment Bill is something that I know she wants to see improved. Now, her contention that the goals are meaningless—absolutely reject. The goals provide direction on the outcome sought under the Natural Environment Bill and support delivery of its purpose. It should be clear to all members of the committee. If I have to say it again, I’ll say it again, but that’s the purpose of the goals.

The member contended that in seeking to achieve the goals, instruments such as national policy direction are made on the whim of a Minister. Nothing could be further from the truth. There is an extensive process set out about the making of national instruments, including matters that the maker and decision maker must consider.

The member’s question around food and fibre: according to many New Zealanders, and it is the belief of this Government, that food and fibre production is nationally important.

The member had a further question around: would the Government be prepared to consider her Amendment Paper proposing to add back in the “within limits” phrase to the goal “enable the use and development of natural resources, including the production of food and fibre (including aquaculture)”? No, Lan Pham, we will not be prepared to consider that. As I explained to the member Rachel Brooking, in answer to your previous question, limit setting is one important feature of the system, but limit setting is not the only way that we protect the natural environment and allow for development and growing food and all of these other things to be done in a way that responds to community need, to our economic imperatives, and to the social outcomes that we seek to realise from being able to develop and use and enjoy our natural environment.

Thank you, Madam Chair, for the guidance.

The question that the member asked was in relation to the Resource Management Act, section 6E, I think you described it as, where there’s a hierarchy. There is no hierarchy in the goals. When looking at clause 11(1)(f), in the way that the legislation intends to provide for Māori interests, the member points out that it is different to the Resource Management Act. That is true, that is intentional. We’ve been highly specific about that and we are confident that the way that Māori interests have provided for is in the spirit of Crown and Māori relationship.

Now, it says quite specifically, “Māori participation in the development of national instruments, regional spatial plans, and natural environment plans”. It’s very important. The member answered her own question. Do we intend that that is particularised through national policy direction? The answer is yes.

The member asked another question: do we expect the courts to make things up that are not in the law? No, absolutely not. The Attorney-General was clear in the speech that he gave to the Auckland Law Society, that it’s Parliament’s job to be clear in its law making, clear in its intent—

💬 Arena Williams: That’s why there was a hierarchy.

—clear in its lawmaking, clear in its intent, which this legislation is, and the hierarchy or, potentially, if we had to rephrase it for the benefit of those listening or watching, I could, potentially, assume the member means resolving conflicts between outcomes and objectives.

So if the member thinks that every single potential conflict that we could possibly imagine could be resolved in legislation, that legislation would reach from the floor to the ceiling of this Chamber. We are not doing that for the member’s benefit, for Arena Williams’ benefit; we’re not doing it for anyone’s benefit. There certainly would be no benefit to New Zealand. So I urge the member to cast forward to when this legislation is implemented and when the national policy direction, that has the force of law and has gone through statutory consultation in the future and would provide for the conflict resolution that the member so desperately wishes to see in legislation.

I’ll come back to it: Parliament’s job is to make laws, make them clear; the courts’ job is to is to enforce the law. The Attorney-General was clear, I am clear, and that is our intention for this legislation.

Now, if members would bear with, I understand Minister Bishop wishes to return to the chair. If someone could go and grab the Minister, I would gladly vacate and let the members ask questions of the Minister.

Point of order. Thank you, Madam Chair. Earlier today, I raised a point of order asking if we would be told when amendments from the Minister would be tabled. It appears that one has been tabled—I might have missed it; I don’t want to accuse anyone of not telling us that it had been tabled. We were given a nod or some noise in the affirmative that we would be told when amendments were tabled. It looks like there was one tabled at 2.11 p.m. on 27 August, and it is a very simple one: it is to delete clause 37. But when you go to the amendment bill—I guess it’s going back to the version as reported back from the select committee—there is no clause 37 in his Amendment Paper. So the point of order is whether we can have clarity on what the—

CHAIRPERSON (Barbara Kuriger): We’ve accepted the point of order around when was it tabled in the House, and I understand it was 2.11—

💬 Hon Chris Bishop: We were in question time then.

CHAIRPERSON (Barbara Kuriger): Yes. But in terms of the remainder of the question, then we start getting into the question to the Minister.

Sure. OK, well, are there going to be any more tabled amendments?

💬 Hon Chris Bishop: No.

OK. That’s my point of order.

CHAIRPERSON (Barbara Kuriger): And no.

OK. Thank you.

CHAIRPERSON (Barbara Kuriger): The Hon Rachel Brooking—we’ll start your five minutes again—

💬 Hon Chris Bishop: There might be one.

CHAIRPERSON (Barbara Kuriger): Oh, there was just a response that said there might be one.

OK, going back to the point of order—and I don’t mind about the time, because I’m not going to take five minutes—if we could be told—

💬 Hon Chris Bishop: There may be one more.

OK, if we could be told—

CHAIRPERSON (Barbara Kuriger): There may be one, and I think the issue why the awareness wasn’t there with this one was that it was during question time today in the House, so we weren’t in committee. So as soon as we get it, we’ll let you know.

That’ll be great; thank you.

CHAIRPERSON (Barbara Kuriger): The Hon Rachel Brooking. I think we’ll start your five minutes again, because we’ve been clarifying a few things—there we go.

Thank you, Madam Chair. Going back to the goals, now that the Minister is in the chair—after I think being requested by the member to come back—I would be interested in what seems to be a difference of opinion between the Minister and the member, and that is that the Minister has been saying, throughout this, that he wants there to be development within environmental limits. He said at question time that it’s a massive step forward, from the Resource Management Act, that there are limits. But the member in the chair just said: “It’s not all about limits. It is but one tool.”, referring to limits. So if there is, in fact, a difference of opinion there, that would be useful to elucidate.

That’s one point. Now, going back to clause 11, “Goals”, I’ve already asked a question on it, but I have another published Amendment Paper, and that is 704, and it’s now changed again. My question relates to paragraph (d). So on page 44, paragraph (d), as it was reported back, refers to “no net loss in indigenous biodiversity”. I think my amendment was to get rid of the “net” there—“no loss in indigenous biodiversity”. But now it’s been changed by the Amendment Paper to protect “significant indigenous biodiversity”.

So it would be good for the Minister to comment on why that change has been made and what happens to the concept of net loss, when throughout much of the rest of the bill, there is talk of offsetting and compensation. How does that, then, link to the goals? Is it to do with protection or is it to do with something else? Do we, in fact, need no loss in indigenous biodiversity, and also its protection—do we need both of those terms? And then—

💬 Hon Chris Bishop: I’m happy to take a call.

OK, I’ll let the Minister go. I’ve got one more question on this.

I’m happy to take a call on this one, but I think it’s an important point and I’m pleased the member’s noticed it. We received quite a bit of feedback, both through the select committee process and also, subsequently, in engagement with stakeholders from the broader environmental non-governmental organisation movement, or ENGOs, as they are known. The “no net loss”—

💬 Hon Rachel Brooking: They’re great, aren’t they? Great resource.

—OK—concept was difficult and confusing. I mean, it sort of begs the question: if your goal is no net loss, are you therefore saying that things are fine at the moment, because clearly they are not? So if the goal is, like, literally just to keep things so we can’t have any net loss—if your starting point is pretty bad, which I think most people would say it is, then the goal of no net loss is a relatively unambitious target. But then other people thought it meant other things.

So, anyway, we just took all that on board and said, “Well, OK, let’s just be clear about this. It’s a goal to protect”—which is a stronger, more directive frame, but obviously the devil’s in the details with the national direction and standards that flow from that. That is how some of the concepts that the member mentioned around offsetting and things come into it. It may be that in particular parts of the country, you don’t want to lift biodiversity protections over time, and in other parts of the country you’re prepared to make the trade-offs. I mean, the short answer is it depends, but the net loss concept was causing complications and confusions, and it’s a bit odd to have a quantification concept in a goal as well. If you look at the rest of the goals, it’s to protect, safeguard, enable, provide for, support—there are more active verbs rather than just to have no net loss. It just sat a bit uncomfortably. That was the feedback and we agreed, so we made the change.

Just two supplementaries on that. My other question was around whether the “no net loss” concept does feed in to ideas of offsetting and compensation, and we can deal with that later, but if the Minister wants to comment on that, in a minute.

My second supplementary is: with this change, does it now need to be significant indigenous biodiversity, so the “no net loss” was just to indigenous biodiversity and there was no caveat or qualifier of “significant”? I take the point about what he just said in terms of verbs, and the like. Where does it fit with new paragraph (ca), which is to support and enable the enhancement of the natural environment? Does he see that the protection of insignificant indigenous biodiversity, or indigenous biodiversity that doesn’t reach that significance test—would that still be caught by (ca), which is “to support and enable the enhancement of the natural environment”?

Thank you, Madam Chair—absolutely, on this topic, and really keen to consolidate it in one, because it is a really important topic. Thank you to the Minister for his comments around accepting that the starting point, where we are at with biodiversity, is pretty bad—those were his words. Does he accept, though, that simply protecting only areas of significant indigenous biodiversity will, in itself, lead to a loss of biodiversity, particularly when we know that the bar for even identifying these areas of significant biodiversity is so much higher and has so much more cost and barriers for councils under the regulatory relief framework?

I don’t want to go to regulatory relief yet, because we’re going to get there more fulsomely, but what I am interested in is the Minister’s concept and understanding of that, in particular. He’s just said that significant biodiversity is important. The member Rachel Brooking talked about, well, what about that biodiversity that doesn’t meet that bar?

I have an Amendment Paper that would help with this so that we’re not only protecting significant areas but we’re protecting those areas of indigenous biodiversity generally. What I’m proposing, which I’d really appreciate the Minister’s feedback on, is in Amendment Paper 712, and this is the last bit of that. First, it’s about amending the goals to protect areas of significant indigenous vegetation and significant habitats of indigenous fauna along with the protection of wetlands.

Now, why it’s so important to specify these things is we know that depending on the region that you’re in in the country, the remaining biodiversity is somewhere between 1 percent and at best 10 percent. There are some regions who are managing to buck that trend, like Te Pātaka-o-Rākaihautū / Banks Peninsula. We know that due to an incredible effort at the community level with councils and iwi and the papatipu rūnanga there, they are actually changing the biodiversity trajectory and getting more towards 20 percent biodiversity.

Now, what is critical with this Amendment Paper is that it’s actually changing the definition of “significant indigenous vegetation” and also “significant habitat of indigenous fauna”. Given we know that any shred of biodiversity that we have remaining in this country is important—sorry, is the Minister clear where I’m—

💬 Hon Chris Bishop: Yeah. I thought you were amending the definition of Part 1, but you’re not.

Yeah. Thank you—thank you. I’m really interested in that, because what we’ve heard really clearly, even in the environmental non-governmental organisations responding to these last-minute Amendment Papers that have changed the settings with no net loss changing to significant indigenous biodiversity, they’re saying you can’t have one without the other. Now if you’re raising the bar to significant only being protected, if you don’t have that no net loss at least to hold the line, then we will be without the general vegetation clearance rules that, as I understand, are no longer available under these Acts. We’re in a real serious situation when it comes to biodiversity decline, so I’m really interested in the Minister responsible for RMA Reform’s thoughts on that.

Yeah. I mean, I understand where the member’s coming from, but the short point is I don’t think we need the definition in the goals, as the member essentially proposes. Some of the stuff that she was talking about I would regard as falling within clause 11(1)(d), “indigenous biodiversity”, but also 11(1)(ca) which is “support and enable the enhancement of the natural environment:”.

The key is not so much the precise words in the goals; the key is the national direction that flows from that, and the key is that the goals are the hook for the national direction. You can’t do anything that’s not in the goals, but it’s very clear that the stuff the member was talking about would fall within both of those goals.

Yeah. The goals are very important. I hear your point, Madam Chair.

CHAIRPERSON (Barbara Kuriger): I know they’re important, but we’ve spent substantial time.

I still think we don’t have exact clarity, and I think Arena Williams’ question is important as well. The previous member in the seat, Simon Court, articulated that there was no intention to have a hierarchy in the goals. If the objective is to avoid trade-offs, which is a problem of the sort of death by a thousand cuts issue that we have with the environment—we’re constantly trading off economic activity for environmental protection—then I put it to the Minister responsible for RMA Reform that having at least a first hierarchy weighting given to clause 11(1)(b) is necessary. Lan Pham’s Amendment Paper 711 directly addresses this. It makes sure that the logic of the life-supporting capacity of air, water, soil, and ecosystems is the first goal or the most important priority in the hierarchy.

If that is not done, then I think, Minister, we risk the sort of hubris that there can be some sort of lasting human thriving without us first safeguarding the life-supporting capacity. We all agree we want human society to thrive, but it cannot reasonably do that without supporting a life-supporting capacity.

First of all, just the clarity as to why there is no hierarchy, and would the Minister consider making what is currently (b) something that needs to be achieved as the priority in the goals? That gives logic to the intention of the legislation, given it’s the Natural Environment Bill.

I have a second amendment, which specifically makes sure that in paragraph (d), to protect and enhance—

CHAIRPERSON (Barbara Kuriger): What’s the number of the amendment?

Sorry, 724. It’s another excellent one from Lan Pham—724, that (d), replacing clause 11(1)(d), becomes “to protect and enhance indigenous biodiversity”, including urban trees and urban biodiversity, to make sure that they are captured. The Minister laughs; he laughs so much that we love urban trees, but he’ll know all about it when they start disappearing even more. I wonder if he would consider that. But the greater overarching principle is the problem of a thousand cuts and that we need to protect the principle of life-supporting capacity as the priority.

Yeah. I mean, I sort of feel like we’ve covered this a lot, including in the last bill and now this bill. There is no hierarchy, OK? That’s a deliberate policy choice, and we’ve sort of canvassed as to why that is. The member started his contribution by saying, “Oh, there seems to be a desire to avoid trade-offs.” The opposite is the case. That’s the point: all of this stuff involves trade-offs and there are trade-offs about the goals. This also deals with Arena Williams’ point, which is that that’s the whole point—that you may, as a decision maker, decide that one goal or one part of national direction that gives effect to the goals is more important in some areas than others at a particular time, and it integrates into the Planning Bill, as well.

The point is to confront those trade-offs at planning level—spatial planning and land-use planning level—and have those debates and discussions as communities. At the moment, a lot of those difficult trade-offs between—and there are trade-offs in all this stuff, right? I mean, we’ve talked about it in question time, we talked about it in the Planning Bill; there are trade-offs on all these things. If there weren’t trade-offs, we would just write a planning and environmental statute and we wouldn’t have the air-quality issues and we wouldn’t have nitrates in the water and all the rest of it. Everything would just be like “kumbaya” and happy days. There are trade-offs. I think we can all agree on that.

The point is not to avoid the trade-offs, because they exist. The point is, where in the system do you confront those trade-offs? The point of the system we’ve designed, which is reflected in the goals and the national policy direction and the funnel architecture—which is in this part of the bill, as well—is to do it at the spatial planning level. It’s just a statement of reality that you don’t have to do all at the same place and at the same time. And as Arena Williams says, I mean, it may be, for example, that in some parts of the country the natural hazard risks are so vast that you say “Well, you can’t build here and you can’t build infrastructure and you can’t build housing” and all the rest of it. That is not—that is not—achieving competitive land markets in that particular area, but it is prioritising the natural hazard goal.

To take the example from Steve Abel that maybe Lan Pham was keen on, it may be that there are real areas of significant indigenous biodiversity that are very special, or there may be a site of significance to Māori that is particularly significant to the local mana whenua—an old pā site or a mahinga kai food-gathering site or an old battleground site, for example, where there’s burial grounds and ancestrally important taonga. We might say, “Well, nothing’s going to happen there. That’s protected.” Well, that is giving effect to one of the Māori interests obligations, but it is also trading that off with development rights. That’s the point. You know, trade-offs are everywhere in the planning system. Every day you see them, and members can think of their own examples. That’s the point, is that you don’t have to—and if you boil it down to a granular level, clearly you can’t—achieve every goal all at the same time in the same place. So that’s what it means.

💬 Arena Williams: What’s the time bit mean?

What’s that?

💬 Arena Williams: What does the time bit mean? Like, are you meant to have—

CHAIRPERSON (Barbara Kuriger): Stand up when you’re asking the Minister. I haven’t granted you another question, but you should just—

I can’t believe I’m saying this, but it’s just, like, a question of temporal reality. Time goes by—I mean, we’re really sort of Through the Looking-Glass in a nomenclature sense, but it’s just a statement of fact.

💬 Steve Abel: Madam Chair, is it possible to have a brief supplementary?

CHAIRPERSON (Barbara Kuriger): I promised the Hon Rachel Brooking one small question on the goals. We’ve had comprehensive answers on clause 11. After this question, we’re moving on to clause 12 and beyond.

Yes—oh, I’m disappointed the Minister’s leaving the chair, because I did want to ask him a question about trade-offs.

💬 Arena Williams: It’s a temporal reality.

It is. Oh, I was hoping for the Minister.

CHAIRPERSON (Barbara Kuriger): We’ve got a very capable Parliamentary Under-Secretary here.

It’s nothing to do with the capability or not, it’s to do with the particular focus on trade-offs—and views on limits, where I think the two differ. I will go to my point about goals and save up my question for later. And that is—I’m interested in soil, Madam Chair, and I know that you are, too.

CHAIRPERSON (Barbara Kuriger): I’m not in this debate.

I know—I know, but you can’t help but be interested in soil, because it’s so important. I think everybody here agrees on the importance of soil, and particularly related to the food production element, as well.

We have production of food in clause 11(1)(a) and we have life-supporting capacity of soil in (b). My question is a simple one, and that is: with the demise of the national direction on productive soils, where in the system does preserving productive soils fit? I’m happy to be told that it’s in the Planning Bill; of course, the two overlap a lot. But here, we have the soil goals—two of them, if you take “production of food”, which, to me, reads soil; and soil being specified in paragraph (b). So that is my question, as to where it sits.

The other question that I would like to ask both the Minister and the Parliamentary Under-Secretary is about trade-offs—the Minister did quite a long contribution there. On trade-offs, I totally agree with the Minister that a whole lot of the resource management system is about trade-offs. However, if you’re then saying we’re going to introduce limits, isn’t that something different to the trade-offs? That’s a simple question.

Just on the subject of soils, that’s covered in goal (1)(a) in clause 11: “to enable the use and development of natural resources, including for the production of food and fibre”. This concept of highly productive soils is currently covered by a national instrument under the Resource Management Act.

It’s quite clear that New Zealand does need to recognise and provide for growing, particularly for growing vegetables. There are some places in New Zealand which have incredibly good soils for growing, and so it’s important—as the Minister was describing—in terms of the key instruments seeking to achieve this Act and seeking to achieve the following goals. Providing for growing on highly productive soils will surely be one of the matters that planners and decision makers turn their minds to as they look at their regions, particularly when it comes to spatial plans and regulatory plans—identify places that are suitable for growing, are suitable for building houses, are suitable for building infrastructure, and, as Minister Bishop pointed out just a short while ago, where they are not suitable for certain activities or certain operations because of risks such as natural hazards.

I’ll just come back to the member the Hon Rachel Brooking’s question around the use of the term “despite”. It’s been clarified that that term is in there because, sometimes, national standards will apply without necessarily having a rule and a plan. The intention is that national standards that cover common activities, where the effects are commonly understood and can be managed in a consistent way, will not necessarily require rules and a plan. That is the reason for including the word “despite”.

I’ve answered the question that the member raised about the “polluter pays” principle; I think I’ve addressed that fulsomely in my previous answer. I do want to come to the member’s question around the use of the term “pragmatic”, in clause 13(1)(e). The member’s contention is it’s not a well-understood term. I can refer the member to the Merriam-Webster dictionary. Pragmatic means “dealing with the problems that exist in a specific situation in a reasonable and logical way instead of depending on ideas and theories”.

💬 Arena Williams: That’s not an answer.

It means to take a practical approach, as opposed to an idealistic approach to solving problems.

CHAIRPERSON (Barbara Kuriger): Just to point out that when the member, or a Minister, answers a question, those asking the questions do not need to like the answer, and saying that’s not an answer—it was an answer; it might just not be an answer that the members like. Lan Pham.

Madam Chair, thank you for that. I just want to pick up specifically on where the Minister was at, because I absolutely support my colleague Rachel Brooking’s concern about clause 13(1)(e). With procedural principles generally, we heard that, yes, it is standard to have a set of procedural principles, and it makes sense to. What we also heard is that they’re generally much shorter, and by lengthening them, and putting in subjective language, it will actually add complexity and potential for legal challenge, particularly in the council space. This is for any person performing functions, powers, or duties under this Act.

I’m really interested to hear from the member particularly about that council aspect, because I think due consideration has to be given to this. The member will know that there are certain individuals that like to attach themselves to council processes, and sometimes their concerns and problems are absolutely valid; and then there’s another kind, who are really out to tie up legal challenge and bureaucracy because they can: they have the money, the resources, but there isn’t much validity. This long list of procedural principles, which we heard from a number of submitters, and also the Parliamentary Commissioner for the Environment (PCE), could be greatly tightened if they actually wanted to reduce this risk—what is the member’s response to that? I understand that he, in particular, is very allergic to unnecessary bureaucracy, and this seemed like a classic case of where it could be streamlined.

Yeah, I’ve got some on clause 15. On this issue of “pragmatic”: the member in the chair has given a definition, and my only question to him is: does he agree with me that it is subjective? That’s one question. The second question is: he just inferred that this wording in clause 13 had come from the expert group. Now, we are looking at Amendment Paper 701—you can’t see the track changes from the select committee report, but the select committee report is on the Table, and I’ve just checked it, because it was my recollection that this came through the select committee process. It wasn’t in the bill as introduced, and my contention is it is subjective.

Anyway, going to clause 15, and I’ve got an amendment on clause 15(1)(a) as well, which I will go to. Clause 15 is “Considering adverse effects of activities”: “A person … who is considering the effects of an activity—(a) must consider how—(i) adverse effects are to be avoided, minimised mitigated, or remedied”, which is subparagraph (i). At subparagraph (ii), there’s “adverse effects are to be offset or compensated”. Now, in between these two subparagraphs, (i) and (ii), there is an “or”. I would like the member in the chair to say why that’s not an “and”, because at the moment it could be that the consideration is just about offsetting, and not also “avoidance, mitigation, remedy”. Why is there an “or” there, and not an “and”? That’s at clause 15(1)(a), between subparagraphs (i) and (ii).

It would be useful for the member in the chair to talk us through clause 15(1)(b), which is that they “must not consider a less than minor adverse effect except where their cumulative effect results in a minor or more than minor adverse effect”. “Minor adverse effects”: this is a common parlance of resource management. That’s not an issue, but it’s how you bring in the cumulative effect. How will you know that there might be a cumulative effect that would result in a more than minor adverse effect? How do you know that the “except” applies? Clause 15(1)(b) says, don’t consider minor adverse effects, except—

CHAIRPERSON (Barbara Kuriger): There’s so much noise to our right, we can’t hear the speaker.

Oh, I’m happy to start again!

CHAIRPERSON (Barbara Kuriger): No, we don’t need you to start again, but we do need this side to be quiet.

The question there is—[Interruption] Oh my goodness!

CHAIRPERSON (Barbara Kuriger): Or go outside!

My question about the cumulative is: how do we know when the “except” applies? How do we know that there won’t be something cumulative going on? When will the “except” apply? So, two questions here. One is: can the “or” be an “and”, and when does the “except” apply? But I’ll keep going. Clause 15(5) states, “In this section, a less than minor adverse effect means an adverse effect that is objectively acceptable and reasonable in the receiving environment with any change being slight or barely noticeable in the receiving environment.” How does that definition relate to the cumulative effect, which results in a “minor or more than minor” adverse effect? A “minor” or “more than minor” is different from a “less then minor adverse effect”, which is defined.

So if the member can talk us through how this is going to work, and, in particular, in relation to those cumulative effects, because we know the cumulative effects are a major resource management difficulty. How you deal with them is a big headache for everybody who’s ever been in this space, but it is nevertheless very important because it is the cumulative effects that can end up doing so much damage.

Then, I do also have an amendment on clause 15A, which is “Considering climate change effects” before we move to Subpart 2, but I think I’ll come back to that one because I’ve got an Amendment Paper on it too. So my questions are about: is it subjective? Can we change the “or” between subparagraphs (i) and (ii) to an “and”? When does the exception in clause 15(1)(b) apply?

Thank you. All good questions. The member did start off with a question around: is the definition of “pragmatic” subjective? Look, I quoted a definition from The Merriam-Webster Dictionary. There might be slight variations on that, but the point is we want decision makers to be supported, and when they find a solution that works, that manages environmental effects to acceptable level, that their decision can be defended.

Then, I just want to clarify procedural principles. When I described it as being derived from the expert advisory group’s advice, that was a concept that the expert advisory group proposed to Ministers. We sought advice from officials and it’s been incorporated into the legislation. I understand there’s been some changes since introduction. We’ve added some additional detail around conditions and technology—for example, using appropriate technology, including digital tools and systems, because we’re absolutely focused that the new planning system and the new natural environment system are supported by data, by digital tools, and when users come to the system, that they can easily access information, they can get rapid responses, and that we can have a much better understanding about the environment that we’re operating in, which will help when it comes to making decisions—those difficult trade-offs that are sometimes necessary about where infrastructure goes or where activities go, and their impacts on the environment. So just clarifying procedural principles: the original concept came from the expert advisory group. It’s been taken up by Ministers and developed as we’ve gone through the legislative process.

I want to come to Rachel Brooking’s questions on clause 15, which is “Considering adverse effects of activities”. In clause 15(1)(a), the member’s question was: between subparagraph (i) and (ii), rather than “or”, why didn’t we use “and”? Well, we want to be absolutely clear that there is no hierarchy in the way effects are managed in the new system. In an application for a development or activity, if an applicant proposes to avoid an effect or to remedy an effect after the fact, where that’s acceptable, they can do so. But if they propose instead that the effects are better to be offset or compensated for, particularly offset in another location, then that should be considered on the same level, without prejudice, by decision makers.

I’ll give the member an example. There are many places around New Zealand where we want to carry out, say, extractive activities like a quarry, which involve long-term operations, extensive excavation, and modifying the site by moving large amounts of overburden soil, often stockpiling it for many years at a time, and then progressively extracting quarry rock, which is absolutely vital for construction and industry and roads. During that time frame, rather than carrying out, say, an extensive replanting exercise to achieve one of the other goals for example, it might be much more appropriate to identify somewhere where, by investing—say, an indigenous biodiversity enhancement in another valley somewhere—you can get much more impact from that investment, either through offsetting or compensating on another location, than having to manage all the effects on one site, which actually might be better. It might be much more efficient, and make a lot more sense just to do the quarrying here and to invest in indigenous biodiversity or in building constructed wetlands to replace natural assets that might be disrupted from a quarrying activity.

So we want it to be absolutely clear that offset compensation and avoiding, remedying, or mitigating effects where practicable are all to be seen in the same basket of opportunities for applicants and decision makers. I’m sure there’s many members who will be able to think of places where they might have thought, “Why on earth are they planting zealandia along the side of the motorway when there is a valley up the road which could benefit much more greatly.”—

CHAIRPERSON (Maureen Pugh): The member’s time has expired.

Madam Chair?

CHAIRPERSON (Maureen Pugh): Simon Court.

—where they could they could benefit much more greatly by investing in the planting of that restoration somewhere next to an existing forest park or next to somewhere that has already had some of that investment.

I want to address the member Rachel Brooking’s questions about cumulative effects. How would we know when cumulative effects in clause 15(1)(b) are to be considered? Well, I answered a similar question during the debate on the previous Planning Bill in this committee stage. The answer I gave was that when monitoring and enforcement data tells us that there may be an issue with communicative effects building up, and when planners and decision makers are looking at an activity, trying to decide whether that additional effect is going to potentially lead to an effect greater than is permitted, they will have monitoring and enforcement data. I’ll give an example there. You look at councils that have issued consents from multiple small water-takes, lots of bores in the region. They have lots and lots of information about the impacts of all of those small water-takes cumulatively on groundwater, and potentially on the natural environment. So there are some examples that I’ve given. Thank you, Madam Chair.

I thank the member in the chair, Simon Court, for his fulsome answer. That was a very useful answer, as well, to the questions around clause 11, too, and how places and times are meant to work together. I want to quickly take him through some questions about the procedural principles. The thrust of it is that there’s no requirement here for the information that’s thought to be the best available information. So I want to just test out some of what that means for the new system and in the context of the Natural Environment Bill. It’s a bit different to the planning context where the information is standard form. We’re now talking about environmental consents, which will rely on expert advice. I also want to flag that there are a couple of questions on clause 15A—one from me, one from my colleague the Hon Julie Anne Genter.

CHAIRPERSON (Maureen Pugh): I do remind the member that the previous person in the chair did give notice to move on to Subpart 2.

Yes, that’s why I’ll make it very, very quick.

💬 Lan Pham: Point of order, Madam Chair. I just want to clarify that at that point, we hadn’t even been on clauses 15 or 15A, and we haven’t had any calls over here about both of those very significant sections. I just want to flag that for the chair—there are very important things there.

CHAIRPERSON (Maureen Pugh): I’m just reminding members of the previous advice given to the committee.

Thank you, Madam Chair. I’m just asking—as quick as I can—who bears the uncertainty of the requirement that it doesn’t have to be the best available information? In the situation where you’ve got environmental information and you know that the discharge is going to affect the aquifer and the effect on the aquifer is going to have a significant impact, over time, on a mahinga kai, but the council knows that it will cost $5,000 to get a report on that, is it available to them to know that it is an unknown but to move on?—that’s the question.

Then, about clause 15A, my question on this is that it’s not an instrument here; it’s a person. So if that person is proven to have considered, say, greenhouse gas emissions, that would seem to invalidate the decision. The problem here is that that’s not written information, that’s not a series of emails; that’s what’s in the head. Did we mean that in the formulation of a person? Because a person considering the effects of climate change is quite different to including it in an instrument.

If I could just quickly respond to member Arena Williams’s questions around “Procedural principles”, clause 13(1)(d), “sufficient and necessary” means exactly what it says. There will be cases where, as the member raised the issue of the impacts of, say, a groundwater take on a nearby river where you have an active hydrogeological connection between the water take, the underground water, and the surface water, then, no doubt, a decision maker will need to be satisfied that they have sufficient and necessary information about the impact, say, of an increased water take or a new water take on the likely flows, and, therefore, the life-supporting capacity of the water. Hopefully that satisfies the member.

The member also had a question around clause 15A, “Considering climate change effects”. What’s the difference between a person exercising or performing a function, power, or a duty, or an instrument? Well, we’re talking about considering adverse effects of activities, and unless the member’s proposing that we outsource the whole thing to artificial intelligence, humans are still going to be involved in considering effects.

Thank you, Madam Chair. I want to pick up specifically on clause 32, where my colleague Rachel Brooking was. This is a really significant part of the bill, in terms of a change which has huge implications. That’s particularly around permitted activities. I really would like to understand from the member in the chair, Simon Court, because we did have quite significant changes to this clause as part of the select committee process, and it was really disappointing to see where the committee actually got to on this.

I particularly want to understand the permitted activity thresholds, and the first one is in clause 32(2)(a), which classifies where a decision maker should actually consider these permitted activities. The first is whether the activity is acceptable, anticipated, or achieves the desired level of use, development, or protection. I think that’s pretty uncontroversial. The part that I’m really interested in is the second part, which is the aspect where the adverse activity, or, sorry, the adverse effects of the activity—it’s been a long day—are understood and can be managed.

Now, as to the words “can be managed”, I’m interested to hear from the member and his officials: is that specifically about them possibly being managed, or is it that to qualify as a permitted activity, they are being managed or they must be managed? This is really significant when it comes to so much more of our consenting framework under these bills being permitted. I think it’s a really important aspect that I’d like to clarify.

The other aspect which I’d really like to hear the member’s comments on is this. When the bills were first introduced, there was another aspect to the permitted activity rules, and that was one where it was “where there is sufficient allocation for any anticipated cumulative effect without breaching an environmental limit”. This was absolutely key to permitted activities not being entirely opened up to cumulative effects that do breach and impact environmental limits. If you want to summarise one massive problem and issue that is yet to be adequately addressed, it is that one.

When we had submissions, Federated Farmers, in particular, singled in on this, saying that they wanted this gone, and it disappeared. I would like to hear from the member why, when there is such change in the system, why was this bottom line around actually ensuring that we don’t fall into the same mess that we have been in for the last few decades—why did this have to be removed? Thank you.

Thank you very much, Madam Chair. I had a question about the Amendment Paper 710. In Part 2, Subpart 3, clause 29 is deleted. Clause 29 had definitions of “Objectives, policies, rules, and methods”. Now, the definition of “rule” or meaning of “rule” has moved to clause 31. It seems like there’s no clause 29 now; it just goes 28, 30. “Objective” is not defined in the definitions, in this particular use it means. “Policy” and “method” were in the definitions but have been deleted, but clause 30 still refers to “Application of objectives, policies, rules, and methods”. I was just wondering if the member in the chair, Simon Court, could help us understand these drafting decisions, and if this specific meaning of “objectives”, “policies”, and “methods” is elsewhere in the new Amendment Paper. I can’t find it.

The member the Hon Rachel Brooking raises a valid point. I understand that the Minister Chris Bishop, in his time in the chair, explained that—

💬 Hon Rachel Brooking: No, he didn’t.

Well, in that case, I shall take the opportunity to explain that when the bill was reported back, it had a number 37 and, what I understand, what officials have explained to me is that in preparing this legislation for tabling, the number was removed but the clauses haven’t been removed—but the number has been removed; there was no content associated with it. OK? Thank you.

Got it. Thank you, Madam Chair. So it’s not really “delete clause 37”; it’s delete the number 37. That’s my great drafting coming through!

OK. I’m going to move to clause 39, and that is—which would have come after 37 and 38, but that’s also disappeared—yeah, what’s happened to 38? Clause 38 was not in it as reported back, either. Maybe there’s never been a 38. Who knows? I know, of course, the numbers will be corrected before we get to third reading, so I’m not being rude about the numbers.

But new clause 39 is “Permitted activity rules that require registration”, and this “requiring registration” is all in track, and there are some changes. So just if the member in the chair, Simon Court, can explain what’s happening here.

Yes, it is. Thank you, Madam Chair. Just to round that out—thank you to the member for clarifying for air; completely aware of that—specifically, I’m interested in atmosphere. This is the subject of two of my amendments. I don’t believe they have numbers, but they were tabled at 11.53 on Wednesday. They are both proposing to change clause 50 and insert “atmosphere” into “Where ecosystem health limits must be set”, and the same when it comes to human health limits in clause 50A(3)—so both of those aspects. The reason why I, specifically, am interested in atmosphere as opposed to air is because of that protective layer, and because it is so necessary to everything else that happens on the planet.

Algae are important—they are one of the original creatures that lived on Earth—but algae in the wrong place, and too many of them, is bad.

💬 Arena Williams: So say that.

We do not want to be so specific in the legislation about which algae are good and which algae are bad, but we certainly have provided for a definition of “ecosystem”, including biological life, which includes microbes, invertebrates, plants, fish, amphibians, reptiles, birds, mammals, and fungi. The member’s question was whether we should include eels specifically. I understand that eels are amphibians.

I’m going to grant the member some slack, because I don’t usually take heckled questions, but I would eat pretty much any of that stuff. I don’t think defining them as “edible” or “not edible” is helpful. They’re all edible. So if we could just move on from definitions to the member’s next question about a subsequent part.

A question from me. I am intrigued by what the member in the chair, Simon Court, counts as food, and I won’t think about it any more!

I made a contribution earlier about clause 50 and my Amendment Paper 699, making the freshwater limits those that already exist in the National Policy Statement for Freshwater Management (NPSFM), and the member in the chair said something about how he doesn’t want to go back to the Resource Management Act (RMA) and he wants to go through the processes that we’re going to be talking about for the setting of the limits. As we are nearing the dinner break, it might be useful for the member in the chair to do two things: one is to give an overview of the things that have changed since the select committee reported back that are found in this amendment, as a preview for us going into those different clauses. I think that would be useful. Another would be if the Minister could comment on how he sees different limits working for fresh water versus coastal water, versus land and soil, versus indigenous biodiversity, and versus air.

It seems to me that we are already familiar with limit setting for fresh water and air—we’ve had different instruments that have done that, and people can see numbers on a page and see it as a limit—but indigenous biodiversity is quite different, and land and soil can be different too. In terms of whether it’s a human health standard to do with contamination of soil, that’s clearly a number, and we can deal with that as a limit, but where does the member see the limits going on things that are not limits that we’ve seen any version of in the RMA before? Then, where we have seen limits in the RMA before—he might say they’re not limits, but something that looks like numbers that are a limit where you can’t get a consent; if there’s a number and you’re already meeting the number, you can’t get a consent if you go above the number.

To talk in speed limits—and this is a bad metaphor, probably—we’re used to speed limits: if it’s 100 km/h, you can’t go 120 km/h. Those sorts of numerical limits are quite easy to consider. Where does the member see the freshwater limits going, departing from the NPSFM? That’s part of the question. And where does the member in the chair see those other limits going that might be more descriptive—and going back to Lan Pham’s contribution about her proposed amendments, I think it would be a useful set-up for the rest of the discussion on limits. Also, going back to my original question, if the member could take us through the changes that have been made, at a high level, so we know where they are actual substantive changes and where they’re not.

Thank you, Mr Chair. I want to start off with where the member in the chair, Simon Court, left off before the dinner break. I’d like to thank him from the bottom of my heart for his beautiful display of his love for the natural environment and the importance of seagrass. It was great.

My question does relate to the member in the chair’s explanations of what some different sorts of limits might be. I do thank him for discussing the difference between those numerical limits that we are used to, such as for fresh water and air, and then these different—what he was describing as—limits for, say, indigenous biodiversity. The example given was the corridors surrounding braided rivers in Canterbury and how they don’t seem to have much biodiversity around them, and how that would be a good thing to have; and that we could also do better in our coastal environments with the seagrass and other things.

So my question is quite a simple question, given his explanation of what could be in these limits. I agree with everything that the member was saying in terms of how these are outcomes that I would also like to see, but they just seem to me—some of them; not the water or the air—to be more like targets or outcomes or something that is not yet achieved. Like, great, we want to get there; I in no way want to stop anybody from trying to achieve the things that the member in the chair was talking about. But when I think of limits, the limit is that if we’ve met the limit, then computer says no or the police car is coming to chase you or—you know, that is what the limit is, rather than how can we approve everything.

I was just wondering if he could comment on that difference between—he was talking about air pollution and you’re in a factory and you need your PM10 to be below a certain level; you can measure that. The member was talking about the importance of being able to measure these things, which I also agree with. That is clearly in limit. If you go above a certain PM10 limit, then you might stop what you’re doing. Whereas if you are saying, “We need more biodiversity along the braided river corridors in Canterbury.”, then that’s not going to stop you from doing something. I’m just trying to work out how he sees that sort of limit—the corridor around the braided river—applying to a planning framework and a framework whereby, as the Minister has described it, the development is enabled within those limits, and if, in fact, they should still be called limits or they should be called something else. I don’t disagree with the ideas, I’m just trying to work it through.

I appreciate the member’s suggestions, but what I refer the member to in clause 49A, “Considerations relevant to developing human health limits”, is there is a very thorough set of criteria that the Minister must be satisfied by. While I appreciate that the member might consider that technocrats might be able to work through the same process, the difference between outsourcing it to technocrats and having a Minister responsible is that the Minister in a Government is responsible. From a democratic point of view, it’s preferable to hold a Minister in Government to account for a process than it is to technocrats. There may be a difference of opinion across political parties, about whether democratic accountability for decision making sits best with elected members and a democratically elected and formed Government, or whether a bureaucracy should be making a decision.

To the member Lan Pham, I’ll just cover some of the matters. Clause 49A(1): “[When preparing a human health limit], the Minister must—(a) be satisfied that the proposed human health limit will, as a minimum, prevent significant or irreversible harm to people and communities;”. That is a very high threshold. It carries significant responsibility for the decision maker. Clause 49A(1)(b): “consider the relevant health guidelines;”. Once those criteria are met, that is essentially a gateway test.

Clause 49A(2): “the Minister may then decide the level at which the proposed human health limit is set”. With reference to clause 49A(3), firstly: “the proposed human health limit is set at an acceptable level above the minimum requirements by having regard to—(a) the relevant health guidelines”—so we can expect that they are evidence-based—“(b) the existing capacity of the natural environment to withstand or recover from pressure and disturbances”; and I’ll refer the member to section 57(1). There’s “(c) the impact of the proposed limit in accordance with section 56;”. These are interrelated, and there’s a lot of detail about the matters that the Minister has to take into account.

Most importantly, clause 49A(3)(d): “a cost benefit analysis of the proposed human health limit.” While we all expect that “significant or irreversible harm to people and communities” is avoided as the purpose of developing the human health limit, there is a cost to adopting limits that are far more risk-averse, far more conservative, than are needed to achieve that outcome of preventing “significant or irreversible harm to people and communities”.

I just want to refer the member to a recent event where decisions were made around projected risks to human health in New Zealand, during the COVID era, where decisions were made that it turns out were not risk-based, and had extraordinary cost, and for which the benefits were not realised. In many cases, the costs were concealed.

Now, here is a process that a Minister, a democratically accountable elected member, in a Government, will be held to account for, that actually tests all of these matters. I would propose that this framework is more robust than any other process in New Zealand’s law, for establishing a human health limit.

CHAIRPERSON (Greg O'Connor): I will just make a comment, that we’ve run for three hours now on this particular part. The fact that the member is giving fulsome answers shows evidence that we are still addressing new material. I will be asking members to start prioritising as we move through here. Arena Williams.

Thank you, Mr Chair. I’m at page 72/73, at clause 50A and clause 50B. I’ll ask them all in one go. Firstly, I want to ask the member in the chair about clause 50B. This is a genuine question. How does this clause interact with the regulatory relief provisions, because it seems to impose a positive requirement on councils to be satisfied that the proposed limit protects “life-supporting capacity of the natural environment”. There seems to be a positive requirement that they set a limit which might impose costs on those people that the member has outlined. But then, I guess the only protection that they have is if they don’t invoke a limit at all. Is that right, and therefore, does it create this disincentive to applying any limits whatsoever?

To move through my other questions: on the issue of regional councils setting the freshwater limit; the ecosystem definition seems to have restricted this to where there is biodiversity at any given time, not necessarily increasing that, and being agnostic as to what sort of biodiversity it is, and what health it has. The member in the chair misunderstood my question when I was asking him about whether the eels would be edible. The question that he seems to pose, in the definition of ecosystem, and in the application of clause 50, is if there are 50 eels at one stage, and then in the future there are another 50 eels, then that is the system working. The question is: is there a requirement for these limits to improve the health of the eels? In the context of Māori rights and interests in a lake like Lake Forsyth Te Roto o Wairewa, Māori have an interest in that area, being a mahinga kai area. Those eels being of sufficient health—it’s not in the human health limits, but it’s also now not in the ecosystem limits. I just want to him to explain how a council was meant to take that into account, because obviously they do. Plan Change 6 of Environment Canterbury’s plan allows for bespoke rules for setting the limits around Lake Forsyth.

This is a third question for him: his system now doesn’t allow councils to be able to set their own methodology. But in the case of something like Lake Forsyth Te Roto o Wairewa, it is a shallow lake, one that is particularly phosphorus enriched, which is subject to occasional scion of bacterial blooms. The issue here is that it is unlike the lakes around it and is also not comparable to other deeper lakes in the North Island. When he speaks about braided rivers, that is a consequence of the lake now being in the state that it is, that those braided rivers are getting shallower, and the sediment run-off into the lake is affecting its health and the biodiversity within it. Wouldn’t it be reasonable, in that case, for a regional council to set its own methodology. I understand that he is trying to design a system which has one national role for the methodology, but there will always be these outlier cases where it doesn’t make sense to follow the national methodology. There doesn’t seem to be any way out for a council who have a generally unique ecosystem that is not being contemplated the national level.

The member Lan Pham raises a really good point, so I just want to clarify the intent of the legislation, but before I do, I want to reflect on the member’s concern that limits set under this new framework will not be enduring.

Let’s be clear: none of the attempts to establish national bottom lines for water quality, whether it’s nitrogen or any other matter, has been enduring. Despite 35 years of the Resource Management Act, national policy statements for freshwater, national environmental standards, none of them has endured. It’s because setting an aspirational limit that covers the whole country, or even a region, in the absence of confronting the trade-offs—who lives in the community, who benefits from a certain limit, who pays the cost, what opportunities are forgone in terms of economic growth and change, in terms of social development, in terms of social mobility—by selecting a limit that is so constraining that the activities that are reasonably expected to occur there—remember New Zealand is still largely unoccupied. We have developed large parts of it for primary production and forestry and our towns and cities, but it’s still relatively unoccupied and undeveloped. To establish environmental limits that severely constrain people’s social mobility and ability to provide for their families and to assume that that is the only thing that matters has not worked. It has not endured.

I do appreciate the member’s concern that we provide for environmental limits that are enduring, that continue to have social licence, but in order to do that, the intention of this legislation, the intention of the Government, the clear intention of Minister Bishop and I, is that we confront those matters at the time the limits are set, not choose an aspirational limit and then look the other way and wonder why there’s so much noise, there’s so much grit, the environment continues to degrade in places because it’s impossible to implement the tools that we have to implement. Very specific limits, particularly around fresh water—we simply don’t have that level of specificity in the way that we have inputs into the natural environment and responses. Now, we might know, for example, how long it takes for a drop of water to land on a mountain top, say, above Pupu Springs—forgive me; that’s the term I’ve always known it as—in Tākaka. We know roughly how long it takes for a drop of water to land on top of the hills—Minister Potaka might be able to help with my pronunciation.

💬 Hon Tama Potaka: Waikoropupū.

I’m struggling. We know how long it takes, roughly, for a drop of water to land on top of the mountain and end up in those springs? It’s about eight years. But there are very few places in New Zealand where we have that level of detail, and it’s very, very difficult and expensive to get.

It’s important, when we’re setting limits, that we aspire but that we confront the costs of what setting certain levels of limits might mean to the community that we operate in, to our local economy, to our social aspirations and social mobility, and that we make the call then, because, if we provide communities with that opportunity to have that conversation and to make those trade-offs, it is far more likely—and, in fact, that is our intention—that environmental limits are enduring and that communities will then be able to plan a pathway to achieving them. If they are aspirational or if they are more close to the status quo, there is a realistic and practical pathway to achieving them. I absolutely get the member’s concern, but I am confident, this Government is confident, Minister Bishop is confident, that what we have set out here—the methodology—is the best way for achieving enduring limits and durable and achievable aspirations for our environment.

Does the member in the chair, Simon Court, accept that taking into account social and economic considerations in environmental limits compromises the environmental limit as a concept?

Thank you, Mr Chair. To the member in the chair, Simon Court, I was speaking very specifically about biophysical ecosystem health and human health limits that are measurable. I wasn’t talking about aspiration. I was talking about pure ecosystem health function when it comes to human health and ecosystem health. But I take the member’s comments about desiring that there are pragmatic steps along the way. His own words just before were that we need to take hold of this and make sure it’s not something that’s kicked down the road.

Now, when we’re talking about the limits themselves, whatever they are, why, then, are we crippling ourselves when it comes to actual progress and time frames? My amendment, which doesn’t have a number on it but was tabled—one of the amendments tabled on Wednesday, 26 August under my name—simply, within these clauses, changes the interim limits from 10 years to five, which is what was in the original bills until they were pushed out by the majority of Government members on the select committee and the Government. The reason why that is so important is because then we would actually get somewhere.

The example that I want to give is directly related to later in the bill, where the Government has again dropped these last-minute amendments that squash Plan Change 1 and Plan Change 2 in the Waikato and Manawatū. Within that very material, it says the bills will be in place for the Waikato in 2033.

Now, what that means is that the first interim limit that comes into this system will be in place for 2043. That has got to be, to the member, an absolute failure of this system, and would he please consider a system that actually functions in a direction and a drive for some form of environmental or human health improvement.

Thank you, Mr Chair. I do appreciate the member’s definitely not new-found but wholesome appreciation of the markets. For the member’s benefit, that section was taken out at committee stage. It’s not in this Amendment Paper as tabled. What we do intend is that between consent holders, who have allocation, the exchange or provision of freshwater, in particular, between consent holders is enabled. We’ll be doing more work on that. You’ll see through the national policy direction the illustrative documents out for non-statutory consultation right now; there is discussion around irrigation and other matters; and we anticipate that standards will provide more detail around how that is provided for.

Currently, under the Resource Management Act, if a water-permit holder wants to share their water with a neighbour who might have a need for it with a permit holder who doesn’t have the need for it at the moment, potentially while they’re standing up a new business or developing their investment proposals, the way it’s been treated by some councils is it’s essentially treated as a new consent application. It makes it very, very difficult to make the most of the water that’s already allocated. What we have heard is that in many parts of New Zealand, water appears to be fully allocated on paper, even though when councils are looking at their groundwater bores, for example, they’re saying it doesn’t appear to have been used in the way that the paper allocation would suggest. So we want to make sure there’s provision in the system for the allocation that’s available to be utilised, and that will be further detailed out in subsequent national policy direction and standards.

Just coming back to the member’s question around limits, our ecological health limits. Are they required? Yes, a health limit or an ecological health limit will be required for each domain in each regional area.

It’s not clear. It is just not clear. There is so much that happens in the higgledy-piggledy Minister-setting methodologies and then in all of these economic decisions that it’s absolutely unclear. This is inefficient legislation and we should go back to my Amendment Paper 699 and just make the National Policy Statement for Freshwater Management the freshwater limit.

Now I’m going to move to clause 72, which is the “Content of national policy direction”. I have Amendment Paper 744, and this is that the national policy direction must be consistent with the purpose of this bill—which of course I would have made a proper purpose—and it must also be consistent with integrated management. As I’m sure the member in the chair knows, I think that integrated management is very sensible because we don’t all live in little silos that somehow separate us from air and water and soil and biodiversity etc.

Yes, thank you. Moving forward, Mr Chair, I really want to touch on this new clause 61A—

💬 Simon Court: Well, that’s going backwards.

—because it is a new section, and the removal of the caps was in the last-minute Amendment Paper from the Government, OK? This is absolutely critical to any progress on environmental limits under this Act.

I do want to respond to the member’s sort of insisting that I keep coming back to this and I keep coming back to this. This is the environmental limits section of this new resource management system that is entirely novel, some of the changes of which have just been dropped on us literally in the last minutes because Amendment Papers are still coming through. This is why it’s important that we’re able to scrutinise this, and I really appreciate the Chair moving us through.

What I want to understand, firstly, is why, when the Government and us, at the select committee process, were so—it was so emphasised to us that this new way that the Government was going to go about these reforms was through these action plans and the caps, and that was how we were going to achieve things. Then, suddenly, the primary tool, being the cap on the resource use, disappeared as a tool at the last minute. This was not agreed by the Environment Committee; this is direct lobbying of Ministers that has come in and removed this.

I would like to hear the Minister’s response as to whether removing the cap on resource use, like, for example, a maximum amount of nitrogen in a catchment per year—which has been demonstrated, particularly in Taupō, to be a tool to actually achieve some form of environmental outcome. Now, I don’t even know if the science is clear as to whether that is improving. I do think from the little I know about it that it may be holding the line. Now, if that’s the aspiration, then using caps as a tool is absolutely critical. Why has the Government removed this, above and beyond the select committee process that we went through where these were agreed? Not all of us agreed. We thought this was a baseline, and yet the Government had sought to remove them.

I think that it is absolutely critical to any form of credibility of the system that action plans are able to set caps and they are actually translated into catchment groups or whatever way it can work. I’ve got an Amendment Paper to that end, which is amending clause 64—and again, I’m sorry, Mr Chair, I don’t have a number on that. It’s still part of the amendments that I submitted on Wednesday at 11.53. This is amending clause 4. What I want to understand from the member, as well, is: without the action plans being able to put caps on resource use, what exactly does he perceive and his Government perceive to be the driver of any improvement—like what is the constraint? Is he expecting that, for example, catchment groups, councils, or a group of landowners are going to voluntarily come together and make solutions that will impact the way that they are farming currently? What is the driver? I would love to hear it.

In answer to the member’s question, we’ve amended the legislation and deleted reference to caps as they were causing confusion and they had no regulatory effect in the system. Instead, how to manage resources prior or at risk of limits being at risk of breach will be left as a matter for councils.

Whilst the member in the chair looks for his old notepaper, I’ll go to a different clause. I’m at clause 77, which has been amended a wee bit, but I do have a published Amendment Paper, and it is Amendment Paper 700. It was for what was clause 77(3)(c), and the changes that have been made in this Amendment Paper are similar in terms of “National standards—(c) may”—and I emphasise the word “may” because my published Amendment Paper 700 changes the “may” to “must”—“include directions relating to—(i) the allocation of natural resources; and (ii) environmental limits.”

The point I’m trying to get at here is that we “must” have these environmental limits in the national standards, rather than “may”. I am particularly perturbed after the discussion we’ve had this evening that whilst the member in the chair tells me that it is compulsory to have those environmental limits, they might be akin to nothing.

Thank you, Mr Chair. I’m just noting down those clauses so that I can read them because it’s actually really confusing when you get an Amendment Paper that is the entire bill, and, for no apparent reason, it’s just reshuffled everything. It is taking us quite a long time to work through it, but, fortunately, time is one of the things that we do have.

I’m interested in clause 77, which is about national standards, and which deals, in subclause (1), with adverse effects. It’s just interesting to me that, as I understand it, in this bill we’ve got no particular hierarchy, and so no statutory hierarchy, if you like, baked in. But here it appears that the national standards—so that’s at a national level from the Minister, I’m assuming—can dictate how and in what order adverse effects are to be avoided, mitigated, remedied, offset, or compensated, and it strikes me that that seems to be an ability of the Minister, through national standards, to prioritise. This is not an expert area of mine, by any stretch, but it strikes me that you could say, “OK, we’ve got a consenting of dairy farms in Canterbury and we want to prioritise economic growth over nitrate seepage into the water supply, and so let’s make sure with regard to the adverse effects that the mitigation for what’s going on is mitigated in an order that prioritises economic growth over water quality.”

It goes on and talks about national standards setting “when it is practicable”, which seems a really strange thing for a national standard to do, because practicability is very much about the facts on the ground, if you like. It’s about the particular activity that’s going on. If it’s riparian planting, fencing, or whatever, it’s about the particular property and activity, and then you’ve got when it’s appropriate for adverse effects to be offset or compensated.

So I’m just curious as to what’s intended by this ability at a national standard level to, essentially, order adverse effects in terms of which ones we will take steps in respect of, and then the ability of a Minister to say, essentially, that “There are some adverse effects which it’s not practical to mitigate, so don’t worry about those, and other adverse effects can be offset.”, by perhaps planting some native bush a couple of valleys over. So I’m just curious, particularly, as to how that clause 77(1) is intended to work.

Thank you. That’s helpful, member in the chair, Mr Court, but it still seemed peculiar to me, so I’m going to ask another question. It was really helpful that you gave the quarry example. If you’ve got a national standard as to how the order in which effects are—

CHAIRPERSON (Teanau Tuiono): Can I ask for the chit chat on that side of the House to come down a level just so that people can focus.

They were heckling because I was making a good point. If you take a quarry, you might have effects such as dust, noise, and runoff. Now, those three things to have a national standard that says, OK, let’s do dust first, then noise, then runoff seems really odd, because if you’ve got a quarry that’s close to residents, then dust and noise is going to be really important and runoff might not; but if you’ve got a quarry that's next to an important waterway, then runoff is going to be the most important thing and you should address that first. That should be your priority.

The quarry example is a good one. I’m glad that you gave an example because it strikes me that, for any consent or any activity, you’re going to actually want to have an order of priorities which suits the environment in which it sits.

I certainly do thank the member for that question and seeking further clarification, and he’s absolutely nailed it. An activity that might have significant impacts on people through dust, noise, traffic, for example, like a quarry, if it’s in a remote location, then those impacts on people are going to be unlikely, and probably easier to manage. If it’s a quarry in an area that’s subject to urban intensification, it’s going to be much more difficult to manage, so the purpose of national standards is to be clear as to how and in what order adverse effects are to be avoided, mitigated, remedied, offset, and compensated. Where is appropriate for those adverse effects to be offset or compensated and in what circumstances which specific effects are managed under the Natural Environment Act as it will become and the Planning Act as it will become? Because, if we think about trying to provide certainty for people who seek to invest to expand something like a quarry, knowing in advance what the national rules are that are intended to apply to manage known effects or reasonably anticipated effects is really important. If it’s a quarry or a mine, say, in a very sensitive environment, it would make sense that some effects should be avoided or mitigated, whereas, if it’s an at least sensitive environment, potentially they could be remedied ora combination of.

Look, the member and I can’t possibly hope to explore all scenarios where national standards might be applied. Even if we let this committee of the whole House stage go all the way through to Saturday night, we wouldn't have enough time. But I can assure the member that, as the Minister and I have turned our minds to how national standards will be applied, we are thinking about the very matters the member raised, and we anticipate national standards will be able to address them in an efficient way.

Thank you, Mr Chair. I am going to move on a little bit further, noting that my colleagues may still have questions. But I think one of the things that the under-secretary has mentioned a couple of times that I thought was really interesting, and this is specifically with regard to the Minister’s Amendment Paper 710—I want to pinpoint a particular clause where we see some of these repetitions: clause 85, new subclause (3A), and we see it again in subclause (3C)(a). Now, the under-secretary previously has mentioned this term “practicable” a couple of times. Now, this is interesting, because in most cases when we’re looking at “practicable”, it means that the limit itself doesn’t need to necessarily be met if other circumstances prevent that from being met. So we see the term “practicable” in health and safety laws all the time: whether it’s “reasonably practicable”. But what isn’t clear here, let’s say in the context of national policy direction, is what are some of the limitations or expectations when setting the national policy direction on what is practicable when that isn’t being met.

We saw this sort of phrasing previously in clause 71(1)(b) in terms of “resolution of conflict as far as is practicable.” So my first question to the under-secretary is: in this case, what are some of the circumstances that will make a proposed national policy direction impracticable? When we are looking at clause 86, “Considerations for national standards”, it does state that national standards, at least for the Minister, need to be satisfied and be compliant to the same equivalent or to the same effect as the redress arrangement under the original Resource Management Act. So does that mean that that level of practicability wiggle room that you see with the national policy direction doesn’t necessarily apply to the national standard, and the national standard is a little bit more strict in terms of that wiggle room? So I want to check with the under-secretary on that question.

We’ve been told that thinking of resourcing and support for iwi-Māori participation, because we’re providing scope for them within the legislation to participate—but the resourcing of the system and the support to iwi Māori to participate in the system is out of scope.

I guess that comes to questions, in terms of: how do we implement the legislation to give effect and be really meaningful and purposeful? As we’ve heard, there’s 20 working days for consultation; it’s been diligently thought through in terms of the process, whereby iwi Māori, whether they’re Ngā Hapū o Ngāti Porou or a post-settlement governance entity or other groupings with marine customary title, as those hapū claimants that have got the titles and stuff—it just makes it really difficult, coming from Tai Tokerau and knowing that, as iwi Māori, there’s a certain level of fatigue that Māori groups do go through in terms of the churn of consultation. But also, again—and I’m just labouring the point—that resourcing of the system to support iwi-Māori engagement and provide capacity and capability appears to be a gap. So I’m just making a statement. Kia ora.