Natural and Built Environment Bill

Members, we come now to Part 3. This is the debate on clauses 32 to 94, which is the “National planning framework”, including Schedule 6. The question is that Part 3 stand part.

I thought the committee might be interested to understand why clause 35 is in the bill. Clause 35 records that “Te Ture Whaimana is intended by Parliament to be the primary direction-setting document for the Waikato and Waipā Rivers and activities within their catchments”, and you’ll see that there’s reference at subclause (3) to the Waikato-Tainui Raupatu Claims (Waikato River) Settlement Act 2010, the Ngati Tuwharetoa, Raukawa, and Te Arawa River Iwi Waikato River Act 2010, and the Nga Wai o Maniapoto (Waipa River) Act 2012. Now, all of those are Treaty settlements. All of those Treaty settlements were agreed by the last National-ACT Government, and they include promises to Māori in respect of the national direction under the Resource Management Act (RMA), where the national direction under the RMA is not allowed to be inconsistent with Te Ture Whaimana, which is a schedule to those agreements and which sets out the aspirations for the Waikato and Waipā rivers. So what that provision does is it carries forward the primacy of that.

The principle that’s been adopted by the Government in respect of all Treaty settlement obligations is that we are neither writing them up nor writing them down. We’re just transitioning them into the new system, like for like, updated for the new processes under the new Act. I mention that because it’s of considerable importance to those iwi that have those provisions in their Treaty settlements. There are other provisions in the schedules to the Act, which we’ll come to later, that have more general promises by the Crown to uphold Treaty settlements.

Thank you, Madam Chair. I appreciate the Minister providing that background information. It was useful. Part 3, “National planning framework”, sets out the requirements for such a framework, and clause 33 sets out the purpose, which it says it is to achieve by “(a) providing direction on the integrated management of the environment in relation to—(i) matters of national significance; and (ii) matters for which national consistency is desirable; and (iii) matters for which consistency is desirable in some, but not all, parts of New Zealand; and (b) providing direction on the resolution of conflicts about environmental matters, including those between or among system outcomes; and (c) setting environmental limits and targets.”

So my question at the outset in this part to the Minister is: could he provide the committee of the whole House a layman’s guide to the national planning framework and the kind of insight and oversight as to why this framework is going to be put in place, what it hopes to achieve, and why it’s there. I’m asking him that question because, again, I think that this is a piece of the whole legislation that needs to be understood by laypeople, not just those who are practising resource management or who are planning professionals or, indeed, are specialists in the area but from people who are just interested New Zealanders wanting to get things done. Can the Minister just explain, perhaps giving us what is essentially an elevator pitch to the national planning framework please?

Thank you, Madam Chair, and I thank the member for the question. This is actually an important part of the new system, as national direction has been an important part of the Resource Management Act (RMA). One of the criticisms of the Resource Management Act is there has been too much uncertainty left for regional and district planning because of the absence of national direction. Therefore, there has not been enough guidance given to councils about what should be done in their planning instruments—a common criticism by local government, by central government, and by civil society, whether they’re development or environmental interests, depending on the issue.

Now, this Government has already filled in some holes in the existing national direction. Existing national direction has a number of instruments under the RMA: national policy statements, national environmental standards, and regulations under section 360 and various subsections of the RMA. All of those are combined into the national planning framework, so they’re consolidated into a document which will have various chapters. Those chapters will include the existing national direction that we have around air quality for controlling the small particles that give people asthma, for example, if you have too much coal burnt in an area. They will include the transitioned and, essentially, like for like—the National Policy Statement for Freshwater Management and the national environment standards that we have for various things.

In addition, there’s going to be some new national direction in the first version of the national planning framework. Some of it is more grunty than other pieces. The most grunty bit of new national direction will be the section of the national planning framework where the drafting is being led by the Infrastructure Commission to make easier the consenting of infrastructure. One of the purposes of the bill—and we discussed this under the discussion on Part 1 of the bill—is to enable development once you’re protecting those natural environmental values, and one of the ways you do that and drive cost out of the system is to make it possible to have more permitted activities. In order to have more permitted activities, you can’t have as many bespoke conditions for things like sediment control or noise when you’re building a road or a new building, and in order to move away from notified applications, or, indeed, controlled activities that aren’t necessarily notified but none the less require a bespoke application and bespoke consent conditions to be set by the consent authority, is to enable the creation of standards around those sorts of issues that can, effectively, be adopted by someone that needs permission to do something.

So the new national direction that’s coming from the Infrastructure Commission, which will be a new chapter in the national planning framework, will be facilitative of the infrastructure that we need in our cities and our towns and, indeed, in rural areas, and it’ll drive cost out of the system. That’s one of the ways in which the very considerable cost savings that are achieved in the new system compared with the old system are achieved.

Thank you very much. That was a useful elevator pitch. I’m not sure, though, that an ordinary citizen going about their day-to-day life and work would necessarily still be any more informed as to the purpose of the planning framework. But still, none the less, it was a useful exposition.

Clauses 37A, 37B, and 37C propose, firstly, minimum acceptable limits, then clause 37B proposes the purpose of mandatory targets, and then clause 37C proposes the purpose of discretionary targets. I’m interested to hear from the Minister about the rationale and practical application of those three clauses and what they might mean in real terms for someone, for instance, who wants to—I don’t know—build some apartments in an urban environment or maybe a house in a rural environment, and what those practical applications are in terms of the limits, the targets, and the standards.

The areas for which there must be environmental limits are set out at clause 38(1), and that’s air, indigenous biodiversity, coastal water, estuaries, freshwater, and soil. The rest are discretionary.

In respect of what that might mean for someone building a house, well, probably not a lot, unless you were building a house next to or in an estuary. If you were building a house next to an estuary and you were likely to have a disturbance to the land that would cause a lot of sediment to flow into the estuary, you might breach a limit. But other than that, I would have thought it’s unlikely to have much effect on someone building a house.

Thank you, Madam Chair. I’m just continuing that discussion on environmental limits, which are an important part of the bill and which the select committee did quite a lot of work on to strengthen them because of the concerns of submitters that it was locking in existing degradation. The bill requires minimum acceptable limits to be set if ecological integrity is unacceptably degraded, and that environmental limit can be set in the national planning framework (NPF). I’m interested, Minister, in what work the Ministry for the Environment (MFE) has done to date around management units, because the limits need to be identified in the management unit where the environmental limits might be set.

We’ve seen recent coverage of the major air quality problems because of the industrial area in Mount Maunganui, and dust is quite a significant issue there. We have national environmental standards for air quality which deal with the bigger particles—PM10—but not, as I understand it, the smaller particles—the PM2.5—which are more dangerous because they can get into the lungs.

So in terms of those environmental domains that the Minister highlighted from clause 38, which of those is the ministry going to prioritise in terms of setting environmental limits, recognising that a lot of those existing national policy direction and national environmental standards are going to come across—except when they’re being reviewed—into the transitional NPF? So what work has MFE been doing on identifying management units, what is the time frame for getting those identified, and what out of those environmental domains is the ministry going to prioritise for setting new limits?

The Minister mentioned sediment. Sediment is a major issue in the Hauraki Gulf. We continue to get a lot of sediment run-off from earthworks. Is the impact on coastal water and estuaries of sediment going to be one of those areas where there might be some strengthened limits?

The management unit for the National Policy Statement for Freshwater Management (NPSFM) is being protected so it’s not re-litigated. So that management unit carries on into the first version of plans.

In respect of the rules relating to the existing limits that we have in other national direction like air quality, we’re not proposing to change that in the first version of the national planning framework (NPF); we’re just transitioning everything in as is. But there is work under way to the ministry to update that air standard in the future. In respect of estuaries, again, the first version of the NPF will just carry forward the NPSFM, and it won’t change that.

Thank you, Madam Chair. I’m just carrying on sort of a discussion on clause 38, “Environmental limits”, because I think the chair of the select committee raises some good questions. Particularly, I’m interested in what happens where there are conflicts between limits, and I’m thinking that maybe there could be situations where there’s a conflict between coastal water and estuaries, for instance. How are those conflicts or potential conflicts going to be managed?

Secondly, I’m keen to know from the Minister, with reference to clause 38(2), which states, “Environmental limits may be set for any other aspect of the natural environment in accordance with the purpose of environmental limits.”—I’m interested to know what the Minister imagines could be included under clause 38(2): what they might be, how they might be determined, who decides, and what the process is for inclusion of any other aspect of the natural environment in accordance with the purposes of the environmental limits. Thank you.

In respect of conflicts between or tensions between different national directions, the national planning framework can provide direction on the resolution of conflicts about environmental matters, including those between or among system outcomes, and that’s provided for in that clause 33(b). In respect of other environmental limits, I’ll take advice from the ministry before I respond to that.

Just in relation to clause 35 in Part 3, “Te Ture Whaimana”—which are remarkable sets of legislation to do with the Waikato and Waipā rivers—has there been any consideration given to the Te Papakura o Taranaki arrangements that are about to be settled with the various iwi of Taranaki and any future arrangements that may be curated in the Treaty settlement - scape in the event that other iwi or other organisations are set to have their settlement arrangements at an elevation higher than the national planning framework? Or is that going to be something that in the event there is an ongoing Labour-led Government, they will not permit?

There are general propositions that are set out in other parts of the bill and not this part of the bill, under which the Crown promises to uphold all Treaty settlements.

Madam Chair, thank you. I just want to explore with the Minister the implications of clause 40, which is the form of environmental limits, and, in particular, where it says that “An environmental limit must be expressed as relating to the ecological integrity of an aspect of the natural environment”—so, for example, in clause 40(2)(b), “the amount of harm or stress to the natural environment that may be permitted in a management unit.”

Minister, I’m really interested as to how that may be determined, because if I’m thinking about, say, the conditions in a period of warm, dry weather, or a warmer dry cycle like, say, El Nino, it might affect the East Coast of the North Island, as opposed to the La Nina weather pattern, which has been much, much wetter. How would it be possible to set an environmental limit that would allow for natural variation in climate conditions, for example, when we’re looking at water abstraction from rivers or aquifers for production, or we may be looking at other matters, like, for example, carrying out soil-disturbing activities or earthworks, which create a risk, if they’re not well managed, of allowing soil to discharge to waterways, or of allowing erosion, generating sediment.

So, Minister, I’m interested as to how the form of environmental limit will be set with respect to the amount of harm or stress to the natural environment that may be permitted in a management unit, thinking about climate change, weather patterns, and the specific example around earthworks and the amount of disturbance that might be allowed. Is that envisaged as part of setting this limit?

Minister, I also want to just ask you to comment on clause 40C, “Lack of scientific certainty no reason to delay or not set limits”. Now, that seems like a remarkable clause to include in a bill which purports to be about managing natural and built environments. I mean, how is it possible? On what basis could a limit be set on, potentially, the condition of a waterway or the condition of a wetland or air quality if you don’t have the data and if you don’t know whether you are making a decision?

If you can’t quantify the costs and benefits when you’re making a decision, that may have quite significant impacts for businesses that are manufacturing, for organisations that depend on being able to take water from groundwater, from surface water, or from impoundments for their own use. How on earth in the 21st century—in 2023—are we making decisions about setting limits in the absence of scientific certainty, Minister?

Dealing with the earlier question about clause 38(2), I’m advised that for an example of what an area that you could have environmental limits would be, an example could be non-indigenous biodiversity—no plans to do that at the moment, but you could do that in the future.

In respect of the question about environmental limits, if it were related to human health, you’d get advice from the Ministry of Health, and that’s set out at clause 40(3A). In respect of other environmental limits, it will be developed by central government agencies if it is an environmental limit for national direction, and then there’s a process through which that is tested by a board of inquiry process.

In respect of clause 40C, that’s not intended to mean that you don’t need any scientific basis; that’s just saying that the fact that your science isn’t perfect shouldn’t stop you acting. For example, you might have uncertainties as to what’s an exact population, but you might need to protect what’s left before you know the exact numbers.

Thank you, Madam Chair. Look, that’s a fascinating explanation of clause 40C and how it might be interpreted or applied, Minister. I guess one of the problems with that is, as an organisation or an individual or a landowner affected by a limit set under clause 40C, how would you be able to establish whether, in fact, the effects on your property, on your business, on your undertakings, or on your person were acceptable compared to the harm that the limit is intending to prevent, because usually, when we go to court, we have some understanding of the rule of law and how it might apply.

So if a Government organisation or a council is going to set a limit or a parcel regulation or a by-law based on certain facts or evidence, that should be contestable—it always is—yet if what the Minister is saying is that we might just decide to limit something, even though we don’t have all the facts and the evidence, but we’ve heard that a population might be at risk, so we’re going to set a limit—well, imagine that that applied to, say, the Archey’s frog in the Coromandel. Now, the Archey’s frog is a tiny little frog. In fact, I say to the Hon Eugenie Sage that you might have even seen one in the flesh. I understand that it’s about as big as your thumbnail.

There is some concern amongst people who are passionate about the environment in Coromandel in the North Island that the population of Archey’s frog may be quite small. In fact, it may be almost on the verge of extinction or at least an endangered species, and yet there’s a mining company called OceanaGold, which proposes to carry out some activity in the Coromandel and they have undertaken surveys of the Archey’s frog population to provide some evidence about the population. What they’ve found from setting out some transects and from staking out some test and evaluation areas is that, potentially, the number of Archey’s frogs is tens or a hundred times more than was originally estimated in those areas.

So, Minister, if there was a case where a Government department or one of the people or entities that has power to set these limits was to set a limit, say, about a frog—they had heard anecdotally or from a lobby group or an activist group or a local environmental group that they were concerned about it—and yet there were actually businesses who wanted to undertake activities that employ hundreds and hundreds of people; potentially generate hundreds of millions of dollars in export earnings for New Zealand; and pay a royalty to the Crown for the minerals that they that they earn, their business and their opportunity could be extinguished on the whim of a decision maker who decides in the absence of scientific certainty that they will set a limit on, say, how much land can be disturbed or how many trees can be cleared in order to protect a nominal population of frogs.

I’m sure the member for Coromandel, the Hon Scott Simpson, who’s also very passionate about the frogs, as is the Hon Eugenie Sage, a former Minister of Conservation—I’m sure that if they were to stand up and say, “We’re worried about the frogs.”, a future Minister for the Environment might just say, “Well, we’re just going to stop whatever’s happening there.” Imagine how difficult that would be to contest if you were involved in resource development, if you had hundreds and hundreds of people’s employment at risk, and if you’d also proposed foreign direct investment in the order of hundreds of millions of dollars to drill a tunnel under private land to access the gold reserve under Department of Conservation - managed land so that you could get the resource out without even harming a frog—but somebody could still set a limit about how much soil or land you’re allowed to clear, in order to protect the frogs in the absence of any evidence.

Minister, would you care to explain how this might work in practice, how this could be contestable, and what opportunities there are for those affected by such a limit to challenge this?

The clause doesn’t say that the decision maker is entitled to ignore relevant evidence. In that sort of situation, I would have thought that if a limit was set ignoring that evidence, the decision maker would be at risk of that decision being struck down to judicial review. So that’s not what the clause says.

Thank you, Madam Chair. I’ve followed the contribution of my colleague Simon Court with great interest, particularly his references to Archey’s frogs, which are prevalent in debatable numbers in the Coromandel. Some say they are endangered and some say they are in a larger number. But while he was talking, I particularly was thinking of Thames-Coromandel district councillor Robyn Sinclair, who often refers to the skull of a duck being an issue that she is most often conscious of.

But I want to come back to the actual legislation. There is a provision under clause 40B(3) which relates to the determination of a time frame for the responsible Minister or regional planning committee to “consider any relevant matter,”. Now, in the original bill, that clause went on to say “including any cultural, social, wellbeing, or economic considerations.” Under the Minister’s Supplementary Order Paper 389, the words “cultural, social, wellbeing, or economic” appear to have been dropped and simply replaced with the wrap-all word “well-being”.

What I’m keen to know from the Minister is why that change has been made, and particularly why the word “economic” has been dropped when determining time frames. I would have thought that that was a factor that should have been included—and, yes, wellbeing may well include that. But I think the clause actually had far better meaning and was more useful when the longer form matters, including cultural, social, wellbeing, or economic considerations, were included. So if the Minister could advise why that truncation has been included and why particularly the word “economic” has been dropped from clause 40B(3), please?

It’s because on page 65 of the bill, “well-being” is defined to mean “the social, economic, environmental, and cultural well-being of people and communities, and includes their health and safety”. So it’s, effectively, just a technical correction.

Thank you, Madam Chair. Minister, I want to come to clause 52A, “Protected customary rights may be exercised despite a limit or target”. The ACT Party absolutely supports the right of iwi Māori and hapū to exercise their protected customary rights, particularly those that have been recognised through Treaty settlements and where they have a role in managing the natural environment or in making decisions about natural resources, because that has been agreed by Parliament as a solution to past historical wrongs, grievances, loss of land, and loss of access to resources.

But this is really interesting, because this says that those rights may be exercised despite a limit or a target—I mean, when you’re trying to imagine how this piece of legislation might work in practice, which many, many people are, many organisations are wondering “How on earth are we meant to operate under this new legislation after it may be passed in this term of Government?” Thinking about when it comes to the marine and coastal area, what are those resources that might be covered by a limit or target, Minister, and how is a decision maker supposed to balance the needs of all of those people or organisations who might have themselves a right to access those resources which are covered under the Marine and Coastal Area (Takutai Moana) Act? How are they supposed to have their rights for access protected, for example, where, potentially, they have a wharf or a port or a jetty or a boat ramp or some other feature in the coastal marine area which is impacted by the provisions of the Takutai Moana Act?

So what the ACT Party is interested in is how would a decision maker be expected to balance where limits and targets are set that might unintentionally but excessively impact one group of resource users over another, whose customary rights are protected?

Isn’t it the case that all humans exist on this planet Earth? Even in this bill, at clause 13, we discussed previously, in fact, with the Minister in the chair at the time, the Hon Rachel Brooking, that all people have an obligation to protect the health of the environment. So how is it that when protecting the environment and expecting to uphold te Oranga o te Taiao, there’s one group of people whose customary rights are protected, and another group of people who, when a limit is set, have to bear the weight of all the imposition of that limit? Minister, would you describe how that is supposed to work in practice?

I can confirm that all humans exist on this planet Earth. There is the occasional space cadet, but they generally come back after a short period of time.

In respect of the issue of customary rights under the Marine and Coastal Area (Takutai Moana) Act 2011, there is a narrow set of unexpired customary rights and interests under that Act that are a pre-existing property right. They’re not a resource consent; they are a communal property right. They’re generally very narrow. For things like an area where you’re entitled to launch a waka or collect tangi stones, these are pretty narrow, and those are not affected by either the Resource Management Act or the new Act.

I move, That the question be now put.

Thank you very much, Madam Chair. I want to focus in on clause 44, on exemptions. Clause 44, “Exemptions from environmental limits or minimum acceptable limits may be directed”, provides for: “(1) The responsible Minister may, on request, direct in the national planning framework an exemption from—(a) an environmental limit relating to ecological integrity; or (b) a minimum acceptable target that has been achieved.” Now, my question to the Minister, primarily, around exemptions is: what will be the parameters of the granting of an exemption, and, as Minister, what are the sorts of things that he will be looking for in a practical sense that might embolden him to—if he is requested—agree to an exemption on the basis of the other parts of clause 44?

It strikes me that there is a reasonable likelihood that there will be requests for exemptions. It’s obviously a clause that has been put into the legislation for practical reasons, but I’m keen to know what the sweet point will be for the granting of an exemption once one has been requested, what sorts of things will he as Minister, for instance, take into account, and what assurances can he give that a future Minister might respond in the same manner or style that he might consider appropriate?

It strikes me that as we’ve discussed in the previous parts in the bill, the Minister has very wide powers under this legislation, and this is another area where a framework has been put in place, a set of time frames and other limits have been put in place, and there are some targets and there are some mandatory minimums and so forth, and yet here is an immediate out where, if the request is made, the Minister can create an exemption. So, Minister, if you could please just explain a little bit about how you see clause 44 working and what the considerations might be, and that will include, perhaps, a discussion about clauses 45 and 46 as well. Thank you.

The member is correct that the essential features of an exemption are set out in clause 45. An exemption from a minimum limit must be designed with the least possible loss of ecological integrity, and there are areas where an exemption can’t be granted. When it is, the Schedule 6 process for changing national direction must be followed.

Thank you, Madam Chair. Minister, I want to come to clause 58, “National planning framework must provide direction on certain matters”. Now, you’ve mentioned earlier that there are provisions under this part of the bill which, essentially, translate the concerns of the Infrastructure Commission into a set of provisions which enable infrastructure to be built in a quicker way and delivered in a more efficient way. I think, Minister, if I’m not misquoting you, you might have stated at one point that this bill will enable infrastructure to be delivered quicker, faster, and cheaper, or something along those lines. Well, the Infrastructure Commission has pointed out that under the current consenting system, it is costing $1.3 billion just to consent infrastructure in New Zealand every year. That’s without building it or even putting up the silt fence or establishing the temporary sediment control pond.

So, Minister, I’m interested in what clause 58, on the national planning framework—what direction would enable infrastructure and development corridors to be provided for? What direction would enable renewable electricity generation and its transmission to be provided for?

Minister, I want to ask you that in the context of the amendment that ACT proposed to clause 7—actually, I’m just going to grab it here—of the bill, which—in fact, that’s the wrong bill. We’ve got so many bills here—we’ve got so many bills here, Minister.

Basically, if I was to paraphrase it, the amendment that ACT proposed to clause 7 would allow for connection to the grid for smaller renewable generation to the local transmission network or the grid without having to go through all of the consenting frameworks. So, Minister, given that the national planning framework must provide direction on certain matters, could you just enlighten us as to how that might work when it comes to enabling infrastructure and development corridors and enabling renewable electricity generation and its transmission, so that the members here and those watching at home can watch Parliament suspend tonight at least having felt that we’ve achieved something.

I can confirm that the existing national direction in respect of transmission and renewable generation will be transitioned into the national planning framework, as will the updated form of the national policy statement on renewable generation, which is currently being consulted upon. In addition to that, there are provisions relating to the encouragement of renewable electricity.

In respect of the member’s point as to electricity connected to local lines distribution rather than to the national grid, there is a Minister’s amendment to similar effect. We agree with the member on that point.

Members, the time has come for me to leave the Chair. This sitting is suspended and we will resume the committee stage at 9 a.m. tomorrow morning. Pō mārie.

Sitting suspended from 10 p.m. to 9 a.m. (Wednesday)