Natural and Built Environment Bill

Members, we come now to the Natural and Built Environment Bill. When we were last considering the bill, we had finished debating Part 12. We come now to the debate on clauses 1 and 2, “Title” and “Commencement”. The question is that clauses 1 and 2 stand part.

Well, thank you, Madam Chair. For people who are watching at home, on television, or listening on their wirelesses, we are in the final stages of what is known as the committee of the whole House analysis of this very substantial Natural and Built Environment Bill. It runs to over 900 pages, and we spent quite a bit of time last week doing a clause by clause analysis. I have to say that I think it was a very useful discussion and debate.

But, as you have said, Madam Chair, we come now to what is a bit of a quirk of the parliamentary system, and that is that the first clauses of a bill are the last clauses to be debated in the committee of the whole House. So we come to clause 1, which relates to the title of the bill. Clause 1 says, “This Act is the Natural and Built Environment Act 2022.” So I am immediately compelled to ask the Minister for the Environment whether they are going to change that to 2023. So, if he might like to answer that question, that would be useful. Or is this, indeed, a piece of retrospective legislation that the bill is in place? I’m referring to Supplementary Order Paper 389, which I think is still the most current one that I have, page 32. So if the Minister can just clarify for us what year he intends the bill to take effect and why it’s listed as 2022 and not 2023. I’d appreciate his comments on that, please.

I’m just checking with officials, who are checking with the Parliamentary Counsel Office. But I think that was the date of the bill when it was being introduced, and that’s one of the drafting things that they just tidy up on the final print of the bill.

So is it the intention of the Minister for the Environment to introduce a Supplementary Order Paper to correct the error in terms of the year that the bill is set out for in clause 1?

The Parliamentary Counsel Office have confirmed that it isn’t a mistake; it’s the House style.

Thank you, Madam Chair. So coming back to the title, the “Act is the Natural and Built Environment Act”. I wonder if the Minister for the Environment could give us some background and insight as to the history of the naming of the bill. We’ve heard, at some length, why a lot of the bill was put in place as a result of the Randerson committee’s work, but there were a number, I think, of alternative names for the bill suggested at various stages of the development of this legislation, and I’m wondering if the Minister could give the committee of the whole House a little bit of a potted history as to how we’ve come to this title, what its genesis was, and what the rationale for it is, in terms of the wording of the bill.

It’s not a loaded name. It’s not like Operation Enduring Freedom or some of the loaded names to programmes that some other jurisdictions use. The custom in New Zealand is that legislative titles are generally descriptive of the content of the bill, soon to be Act. This, at different stages, was the “Natural and Built Environments”—plural—“Act”, but having regards to the definitions of “environment” as including both the natural and built environment, in the definitions clause, there was a drafting change at the Environment Committee to the singular.

Thank you, Madam Chair. The power of the select committee never ceases to amaze—that we could go from the plural to the singular!

I meant to say, in the first call that I took when I was giving a little bit of an introduction as to where we are at with this bill, that here in the National Party, on this side of the House, we oppose this legislation in its entirety. It is our intention, should we have the opportunity and privilege of leading a new Government in October later this year that we will repeal this legislation in its entirety before Christmas.

Hon Eugenie Sage: And replace with what?

Hon SCOTT SIMPSON: And then we will replace it with some reasonable and workable legislation that doesn’t have the same kind of hiccups and problems that this bill does.

I want to come back, Madam Chair, because I know you will want me to, to debating clause 1, which is the title of the bill. Now, at the Environment Committee, there was only one submission on the title, and the submission proposed that the title of the bill should be the “Natural and Built Environments Planning Act”. I’m keen to ask the Minister why that suggestion wasn’t taken up and what his objection to that suggestion from the submitter was.

The Environment Committee didn’t believe it was necessary, and neither do I.

Thank you, Madam Chair. I actually wanted to ask the Minister a question around the commencement. So the commencement clause compared to the title clause is rather long because it’s a bit like an initiation process around how the bill gets introduced. But I just think for the purposes of the public, it’s worth knowing that, you know, the bill—a lot of it will come into force once the Government puts it through. But then it says, “One or more Orders in Council may be made under this section”—this is clause 2(4)—“appointing different dates for the commencement of different provisions and for different purposes”, and (5) “An Order in Council may bring different provisions of the Act into force on different dates for different districts or regions of local authorities; or any area of New Zealand specified in the order.” So I just thought it was worth actually having a conversation tonight in the House for those that are actually watching out there, that the Minister—because it is a rather long and protracted commencement, once it actually begins, it takes a while before it comes to fruition. Thank you.

The member is correct that some parts of the new Act come into force in parts of the country—in fact Parts 1 to 9 in large part come into effect on the date after the Royal assent is given. So Parliament gives it its third reading and then it goes to the Governor-General who gives the bill the Royal assent on behalf of the King. At that point, most of the legislation comes into effect, but there are some parts that are turned on region-by-region, and some parts that are turned off under the Resource Management Act (RMA) region-by-region. The reason for that is to avoid some of the transitional problems that we had with the bringing to effect of the RMA after the Town and Country Planning Act, where we had two systems operating side by side throughout the whole of the country for a long period of time. Here, the new system doesn’t turn on in full and the old system turn off in full in any region until after they’ve got their first plan in place. That’s been done on a region-by-region basis, probably three regions for a start, and the rest to follow. That’s the effect of the different timing of the eventual repeal of the RMA.

Thank you, Madam Chair. Minister, thank you for your always fulsome explanations of the policy and legislation that you’re proposing.

I just firstly want to come back to the definition of “environment” in the title. If we look at the definitions, “environment”, actually, is quite complicated, it’s quite convoluted. It includes “the natural environment”, “people and communities and the built environment that they create”; “the social, economic, and cultural conditions that affect the matters stated in paragraphs (a) and (b)”—that’s “natural environment”; “people and communities”, the stuff they build—“or that are affected by those matters”.

Minister, I put it to you that it is the most all-encompassing yet incredibly confusing definition of “environment” that will potentially—in fact, quite likely—lead to a whole lot of confusion in the way that plans are made, in the way that resource consent decisions are made, and in the way the judiciary interprets plans made under this bill—or Act, when it’s passed.

So Minister, would you care to explain, in terms of the title, the “Natural and Built Environment Bill”, how some of the conflicts between the natural environment—I assume that means flowing water and growing trees and the blowing wind and the hot sun that we might feel, although it’s been a rare thing in Auckland in July, I can confirm that. How are decision makers meant to reconcile “the natural environment” and their understanding of that, in terms of the title of the bill, with the things we want to build in the environment that might break the natural environment or somehow damage it in some way?

And how, if the word “environment” in the title encompasses so many aspects—in fact, all the aspects of life on earth: social, economic, and cultural conditions that affect the natural environment, people and communities, and the built environment that they create. How is a decision maker looking at the title of the bill, trying to understand how to make decisions about the environment, meant to interpret what the title means, Minister?

Those matters were discussed in the debate on Part 1 of the debate. The title doesn’t affect the definitions that are in Part 1. That debate has already been held.

Thank you, Madam Chair. I want to talk about the commencement dates as well. I just wonder, Minister, given that the National Party and our ACT colleagues don’t support the bill, why wasn’t it considered to have the commencement, instead of the first provisions, come into force on the day after Royal assent? To have that date be a week or two weeks or a month after the election when, effectively, you have a referendum on it. Given it’s so close to the election and the National Party has quite clearly said that we will repeal and replace this immediately, before Christmas, why won’t the Minister do that? Because, quite frankly, has there been any assessment of how much work is likely to be done prior to the election and all of that work being for nought, effectively, before Christmas? Actually, I would have thought, perhaps, 1 January might have been a good commencement date—something like that which would have been a practical approach to this legislation. Putting aside all partisan views, what is the best for New Zealand? And given that we have a referendum on the bill, and, ultimately, we all in this House have to accept what the results of the election are, whether we like it or not, why wouldn’t the Minister not put that into this bill? I know he’s put a lot of work into it, and I know that officials have done a lot of work.

Hon Scott Simpson: He sees it as his legacy, that’s why.

STUART SMITH: Well, yes, but it might be like the Titanic was a legacy as well. So I’d like to hear the Minister’s response to that.

Born to rule members of the National Party think they should be able to change what Parliament decides even before they win an election, and they’re not going to win it.

Well, thank you for the concession that the Minister, the Hon David Parker, has predicted the outcome of the election already! That’s reassuring for those of us on this side of the House.

I want to pick up on the points that my colleague Stuart Smith was making about the progress of this legislation, the timing of it, and the timing for implementation. I want to spend just a minute or so going back in history. The Minister will well recall the process by which the existing Resource Management Act (RMA) came into effect. Those of us of a certain age remember the 1990 general election—Labour lost that election. Sir Geoffrey Palmer had done quite a lot of work on a resource management planning statute: it had got to a first reading, it had been to select committee, it had had a second reading, but the election of 1990 intervened. At that point, a new Government—Jim Bolger’s Government—came into office and one Simon Upton was appointed as the new National Party environment Minister. Now, my understanding and recollection of the history is that what happened then was that that bill—that had not actually passed before the election, and this is the point that Stuart Smith was making, I think—had, effectively, become a referendum. It was part of the election campaign. It was debated hotly throughout that election period. And, although I was far too young to be actively involved in that campaign, there were many, many other people—probably who still sit in this Chamber—who were.

So my question to the Minister about commencement is: why has he not thought it a wise and useful process to actually leave the final passing of this legislation, which he seems so determined to pass before Parliament rises on 31 August, and adopt a process that wasn’t dissimilar to that that occurred with the passing of the original, principal Act that this bill seeks to replace? Was that something that he considered, in terms of timing? Was that process of trying to achieve what was, ultimately, a cross-party, bipartisan approach—because that legislation was ultimately passed, and the Minister probably remembers the detail better than I do. But my recollection was that the RMA actually passed with the support of both National and Labour after the 1990 election and the change of Government. So I’m interested to know whether the Minister considered that kind of option in terms of his commencement options. And, if he did, why did he reject that option as a potential pathway for trying to achieve a more bipartisan, consensus approach?

There have been many years of complaint about the Resource Management Act. The last Government said that they wanted to get rid of it. We’ve got on and replaced it. Those who call for delay, I might describe as very negative, wet, and whiny.

Thank you, Mr Chair. Minister, in one of your comments this evening, you’ve referred to the issues with implementing the Resource Management Act. So when it comes to the commencement date of this bill, which you’ve pointed to mostly be on the day that the bill achieves Royal assent, you also mentioned that one of the purposes of the commencement date and the provisions applying from that date are to avoid the transitional confusions that occurred with the Resource Management Act operating at the same time as the Town and Country Planning Act.

But, Minister, isn’t it correct that once this bill becomes law and the national planning framework is then developed, essentially, under the direction of a future Minister, that decision makers still operating under the Resource Management Act or looking at consents that were applied for before this bill becomes law will have to have at least one eye on the horizon about how our national planning framework and instruments such as the national policy statement for freshwater, indigenous biodiversity—goodness me—the national policy statement for urban development, all these other instruments that might be carried over. But also, what else might be in a national planning framework, Minister?

So won’t it actually continue to cause confusion for decision makers about resource consents, about plan changes, and so on if this bill is passed and all of the conflicts that this bill is designed, apparently, to resolve between the things we build, between the effects on the environment of building and operating infrastructure between the need to potentially disturb wetlands to do earthworks housing and so on—aren’t all those conflicts unresolved until the national planning framework is developed and implemented? And doesn’t that create a phenomenal amount of uncertainty for decision makers until it is resolved?

So while the commencement date of the bill might be the date after it receives Royal assent, all of the problems that the Randerson panel, which identified the problems, and this bill, intended to solve—those conflicts between the natural environment, the built environment, how you allocate natural resources, how you address and minimise effects on the environment through development—remain unresolved, Minister, and just create more confusion.

The national planning framework, how it’s put together, how it relates to the Resource Management Act, and those transitional provisions were debated as part of Part 3.

Thank you, Mr Chair. This is not an ordinary commencement clause. Usually, in a bill, the commencement clause says something like “The Act will come into force on the day after Royal assent.”, or something similar to that. This is a very complicated and multifaceted commencement clause. Yes, clause 2(1) says “The following provisions come into force on the day after Royal assent”, but it then goes through to categorise and sectionalise whole groups of clauses and parts of this bill. I’m not going to go through each of those, but let me just advise people who are listening or watching tonight that clause 2(1) goes through from paragraphs (a) through to (l). So there are lots of moving parts and different time tables for this.

I want to refer specifically to clause 2(2C), where it says, “Section 803 and Schedule 13 come into force on the earlier of (a) a date appointed by the Governor-General by Order in Council made on the recommendation of the Minister for the Environment” and then (b) says “2 years after the date on which this Act receives the Royal assent.” So this is a subclause that gives the Minister of the day quite a bit of discretion about timetabling. But then it goes on in clause 2(3) to say “The rest of this Act (except for provisions commenced under subsection (6)) comes into force on a date appointed by the Governor-General by Order in Council”—again—“made on the recommendation of the Minister for the Environment.”

So I’m wondering whether the Minister can give us some indication as to what his thinking is about the timetabling that will be made by Order in Council, triggered by his recommendation, in those two subclauses. If he could give us some insight into that, I think it would be helpful not only to the committee of the whole House but also to people watching. Ultimately, it will give some indication and a degree of clarity, I think, to people who are going to have to work with this legislation, albeit for a very short period of time.

Clause 803 relates to the coming into force of Schedule 13, which relates to the powers of the Environment Court that are reconstituted in a very similar way to the current constitution under the Resource Management Act (RMA), but under the new Act, because the RMA eventually disappears, and therefore if they were constituted in the future, under the RMA, that would lapse. So that’s provided by that subclause that the member referred to, to be two years after this bill receives Royal assent or an earlier date if things are moving ahead faster, if that occurs through Order in Council.

Thank you, Mr Chair, and thank you, Minister, for that clarification, that is useful. One of the criticisms of this entire piece of legislation is that it has the potential to create uncertainty, judicial uncertainty that’s going to require judicial interpretation, and uncertainty about time frames, and uncertainty for people who have to implement it, and uncertainty for people who are trying to get developments done or to use the legislation to achieve the goals and objectives and desires that they seek to bring about.

So clause 2(5) in Supplementary Order Paper 389, I think, relates to a potential for even greater uncertainty. I want to just read out what subclause (5) says. It says, “An Order in Council may bring different provisions of this Act into force on different dates for—(a) different districts or regions of local authorities; or (b) any area of New Zealand specified in the order.” It’s my contention that that lack of certainty and clarity about which parts of the country, which districts, which regions are going to have the legislation come into force as opposed to other parts of the country where the legislation’s going to be in force already, that that is only going to add to the confusion. Now, I think that the Minister will probably point to the history of the implementation of the existing Resource Management Act (RMA), which was done by one king-hit, and there were undoubtedly issues and problems with that.

But to have a commencement clause, as clause 2(5) indicates, that creates a very clear distinction that some parts of the country are going to have this bill in force on different dates to other parts of the country—different regions, different districts, different local authorities—my contention is that that’s only going to add a high level of uncertainty, confusion, and potentially cost to a developer, for instance, that may want to do a building development in one part of the country where the new provisions of this legislation have come into effect and are in force and are in play, and might want to build another development in another part of the country that is still operating under the old RMA.

So if the Minister could give us some idea about how he sees that timetabling—I know that, for instance, already, I think that there are two regions that have been singled out for, essentially, being the guinea pigs for commencement of the legislation—that would be helpful to have some insight about why they were chosen, what the purpose was, and about the staged and staggered implementation of this legislation. Thank you.

The first point I would make is that if people were worried about uncertainty, they would be worried about an Opposition, who, if elected, promise to repeal this, then repeal the Resource Management Act, but haven’t specified how they will fix it; whereas this fixes the system and allows the country to move forward.

In respect of clause 2(5), that matter was well considered by the Environment Committee, and the select committee agreed that the system should turn on region by region, rather than every region at once. The reference at subclause (5)(b) is included in order to cover parts of New Zealand that aren’t actually covered by district or regional council. There’s the occasional offshore island that’s, effectively, managed by either the Department of Conservation or the Department of Internal Affairs.

Thank you, Mr Chair. Minister, just further to the Hon Scott Simpson’s question about the progressive time frames for implementation. Now, we have heard from local government representatives that they’re very, very concerned about how they should prepare for the commencement of this legislation. Should they in fact prepare to lose staff who might be co-opted onto a planning entity? Because what the legislation provides for is for those planning entities to hoover up staff from local government, from regional councils and district councils—and that might include planners; it could include legal advisors, geographic information system and other technicians.

People who work for councils now, and those councils are entirely dependent on them for their business as usual activities, such as processing resource consents, comparing applications with existing plans, or gathering information and uploading it onto planning documents. Minister, local government entities and their representatives—Taituarā and Local Government New Zealand—they raised this point that on the day of commencement, they are not sure what resources they will need to provide, what costs they’ll need to allow for, whether those costs will be recoverable, Minister, or whether this creates yet another central government - imposed unfunded obligation on local government.

So Minister, could you please give the House some assurance that those local government organisations—which still need to process resource consents against existing planning documents, potentially for years—that their human resources, that the people who work in those local government organisations, will have some certainty about their futures and that those organisations will have some certainty about whether their resources will be poached, whether they’ll face excessive costs?

But just to your point, Minister, if you’re concerned about the fate of this bill and what might come next, I can assure you that ACT’s solutions for building New Zealand and conserving nature provide some comfort to many, many people in New Zealand, including businesses who are worried about their private property rights being eroded by this legislation that is tabled here tonight, Minister.

CHAIRPERSON (Greg O’Connor): Mr Court, are you inviting me to rule on relevance?

SIMON COURT: Oh, Mr Chair, absolutely not.

CHAIRPERSON (Greg O’Connor): It sounded like it.

SIMON COURT: So Minister, my question is, what are local government supposed to do? What are they supposed to know on a given day about their resources; their costs? How are they supposed to plan for this? Could you give me some assurance, please, Minister.

Those matters were debated as matters of substance arising from other parts of the bill, but as the member well knows, the bringing together of plans within a region through a regional plan is actually modelled on the legislative model that was applied to bringing the Auckland councils together in Manukau, Auckland centre city, Waitakere, and North Shore. That was of course overseen by the Hon Rodney Hide as the then ACT member and Minister.

Thank you, Mr Chair. It is after 9 o’clock and we’re just getting into our work—just getting into our work. I would like to begin, though, by acknowledging the work that the officials put into this. I mean, it must be a substantial part of their lives tied up in this bill. It’s only a pity that, should we get the opportunity to after the election, it’ll be gone by lunchtime, but, yeah.

Hon Eugenie Sage: And replaced with what?

STUART SMITH: And repealed, yeah. I’m sure that all members will be looking forward to that debate when it comes around, should we have the privilege of doing that.

But I would like to focus on the commencement clause 2(6), “An Order in Council may be made under this subsection on the recommendation of the Minister for the Environment and the Minister for Māori Crown Relations: Te Arawhiti and, in the case of the Gisborne region, also on the recommendation of the Minister for Treaty of Waitangi Negotiations, that brings into force on 1 or more dates provisions to enable the regional planning committee composition process set out in Part 1 of Schedule 8 to be initiated for any region or regions.” Quite a complicated little piece there, and I’d really like the Minister in the chair, David Parker, to explain why we have to have all of those people lining up to get this enacted. It goes over the page, into (7), but I think the Minister—well, I’d like to hear it from him how this is going to work, because it sounds quite complicated to me, sounds like it’s going to cause a lot of angst and, I suspect, delay. How are we going to get all those people lined up to actually agree to bring this into force, and then what happens practically on the ground to get these things up and running? So, looking forward to hearing the Minister’s answer to that.

There are various bespoke Treaty settlement arrangements that apply to how resource management plans are put together around the country. Those were adopted by Governments led by National-ACT or by Labour over the years, and some of them are different. The legislation allows those arrangements to be transitioned into the new system, and subclauses (6) and (7) allow that to happen. Members will note that subclause 7(c), which applies to both of those subclauses that I’ve referred to, says that in any event, even if those processes haven’t been completed, after two years have elapsed, those provisions come into force two years after the Act has received Royal assent.

I move, That the question be now put.

Thank you, Mr Chair. Just a quick one. In clause 2(7)(c), as the Minister said, if two years have elapsed since the date on which the Act received the Royal assent, it would come into force anyway. Why not just have that part of the clause? Why have all these complicated other variances where it could come in at different dates along the way in different regions? Why not just have it all in two years after the date of Royal assent? It would be a lot simpler, those people in the region would have certainty, they’re not left hanging waiting for whether the Minister for the Environment, the Minister for Māori Crown Relations, or in the case of the Gisborne region, also the recommendation of the Ministry of the Treaty of Waitangi negotiations. Wouldn’t it be better just to have a date cast in stone at the beginning? I think that would be a far simpler thing, so why is that Minister?

No, we didn’t think that, and neither did the select committee. The reason for that is there are actually very—there are a lot of Treaty settlements that are actually very, very simple and they have statutory acknowledgements which are very easy to transition into the new system, and that won’t take anything like two years.

Thank you, Mr Chair. Throughout the debate on this mammoth bill, we’ve been conscious that it is but one part of a three-legged trifecta in terms of legislation. We are soon to start—probably tomorrow morning—the debate on committee of the whole House for the Spatial Planning Bill: that’s sort of the sister piece of legislation that goes with this Natural and Built Environment Bill.

But in the commencement clause—clause 2—of this bill, there is no mention of the third leg of the legislative framework that the Minister has in place, which relates to adaptation. Now, throughout the entire process of select committee on both this bill and the Spatial Planning Bill, we’ve been kind of blindfolded—trying to find our way through this—because we haven’t had access to the third leg of the trifecta, which is the adaptation piece.

So I’m keen to know from the Minister why there is no reference in the commencement clause of this bill relating to the potential impacts, and presumably the intended benefits, that are supposed to come from that adaptation climate piece; why there’s no mention in this commencement clause of that; and is it still his intention—as I understand he has publicly stated on a number of occasions and I think the climate Minister has made the same promise—that that adaptation piece of legislation will be introduced to the House before the House rises for the election on 31 August?

Of course the commencement clause relates to the commencement of this bill, not other bills. The commencement date for the Spatial Planning Bill is in the Spatial Planning Bill, and there’s no reference to any other bills in the commencement of this bill because this is just the commencement clause for this bill.

Thank you, Mr Chair. Just to the Minister on clause 2(7)(b), which is quite a touching part to my heart, being involved in Mana Whakahono ā Rohe and joint management agreements up and down Waikato and Tāmaki-makau-rau: what are the expectations of iwi to change the Mana Whakahono ā Rohe and/or joint management agreements, and has there been any consideration given to resourcing iwi in order to do this?

The intention is that those agreements be transitioned from the old Act to the new.

I move, That the question be now put.

No one is seeking the call, so I’ll go to the question.

The question is that the Minister’s tabled amendment to clause 2 on Supplementary Order Paper 389 be agreed to.

Amendment to the amendments agreed to.

The question is that the Minister’s amendments to clause 2 set out on Supplementary Order Paper 389 as amended be agreed to.

Amendments as amended agreed to.

Clause 2 as amended agreed to.

Bill to be reported with amendment.