Natural and Built Environment Bill

Good morning, members. Welcome back to the discussion on Part 3 of the bill.

Thank you, Mr Chair. Well, it’s good to be back here in extended sitting hours at 9 o’clock in the morning. For those people who may be watching at home or listening on the radio, we are debating in the committee of the whole House Supplementary Order Paper 389 on the Natural and Built Environment Bill, in the name of the Minister for the Environment. We’re up to Part 3 of the legislation. It’s the area that involves environmental limits, the national planning framework and the various requirements for the framework, how the framework is to operate, what the purpose of the environmental limits are, the purpose of targets, for instance, and how environmental limits are to be set.

I want to, at the outset of this first call, just remind the committee of the whole House, and, indeed, as I say, anybody else that is listening or tuned in this morning, that the National Party opposes this legislation in its entirety. So when we go through the particular clauses of the bill—all nearly 900 pages of it—we are doing so knowing full well that if we have the opportunity and the privilege to lead a new Government in October this year, this legislation in its entirety will be repealed before Christmas.

CHAIRPERSON (Greg O’Connor): Bearing in mind, we are on Part 3, Mr Simpson.

Hon SCOTT SIMPSON: That’s a commitment we have made and that’s a commitment we will stick to. So when we debate clause by clause—

CHAIRPERSON (Greg O’Connor): Mr Simpson.

Hon SCOTT SIMPSON: Yes, Mr Chair.

CHAIRPERSON (Greg O’Connor): We are on Part 3. Let’s stick with it, please.

Hon SCOTT SIMPSON: Well, I thought, Mr Chair, it was worthwhile picking up on where we were at—

CHAIRPERSON (Greg O’Connor): Well, no, this is the whole idea. We are hearing this part by part. So let’s stick with the part, please.

Hon SCOTT SIMPSON: Sure, OK. So I want to particularly refer to Part 3 and clause 48, “Form of targets”. Clause 48(1) says that “A target is a directive made in the national planning framework or in a plan.” “A target—(a) must”—it says in clause 48(2)—“be able to be assessed; and (b) must be achieved by a specified time; and (c) may be expressed as a series of steps, each with a time limit, designed to achieve progressive improvement over time.”

Now, I’m keen to know from the Minister in the chair a bit more about exactly how it is going to be that the assessments are made as to time and what those steps will be. I know that there was quite a bit of discussion at select committee. There were a number of submitters who were interested in this area. We got a range of answers from officials at the time, none of which were, in my view, anyway, particularly compelling in terms of the detail about the actual form and shape of the targets. So if the Minister wouldn’t mind perhaps enlightening the committee of the whole House as to particularly how the form of targets will be assessed, what measures will be used, what methodology, what science, what technology, and who’s going to do it, that would be helpful. Thank you.

The purpose of mandatory targets is set out at clause 37B, which is to drive improvements where things are not in a satisfactory state. The time frames to meet those targets could be set out in national direction. For example, the National Policy Statement for Freshwater Management does, effectively, have limits and targets where water bodies are below those desired attributes or below the limit set for those desired attributes. And there’s a period that is expressed somewhat loosely as being a generation for councils to bring things back to a decent state, and then it’s up to regional councils how they progress towards that.

Thank you, Mr Chair. With a piece of legislation like this, there’s a lot of words in it. You’re more skilled than I am in terms of background on this sort of thing but I’m doing a bit of testing around what’s likely to get tested, and I’m looking at Subpart 10 in Part 3, where the framework rules prevail unless exceptions apply.

When you talk about when a plan rule is more stringent or when a plan rule is more lenient, there is quite a good description in there but I just have some concerns around some of those sentences being able to be debated in terms of a legal structure around whether it is in fact in some people’s eyes or in legal cases more stringent or more lenient than what might be prescribed in the legislation. So I’m just wondering if we could have a comment around how the Minister sees that particular piece of legislation being managed in a tested process. Thank you.

Thank you for the question. Clause 89 of Subpart 10 talks about how you can have rules. There are two sorts of rules that come through the national planning framework for existing national direction. One is rules that are permissive to help enable things, and an example of that is rules that allow telecommunication towers as a permitted activity. Now, a permissive rule like that sets a minimum level of permissibility but there are areas, and the Canterbury region is an example of this, where because it’s so flat, you need higher cellphone towers, because otherwise the signal can’t get through to people using their cellphones or working on farms who need to get an internet connection. So a rule and a plan for Canterbury can be more permissive than the background level of permission everywhere.

If on the other hand, it is a restrictive measure—so we say that the baseline for water quality is X, that’s not set at a level that would be appropriate for every water body. It’s a minimum. But there are some spring-fed creeks that are actually gin clear that we do want to have actually cleaner than that baseline. So, in that case, a regional council or a future planning committee can have a rule that is stricter than the minimum standard, and so that’s what clause 89(1)(a) and (b) do.

Thank you very much, Mr Chair. Last night, the Minister explained the national planning framework, and I want to go to clause 58, because urban trees have been a major point of public concern with this legislation. In the inquiry on the Natural and Built Environment Bill that the Environment Committee undertook, we got thousands of submissions seeking the protection of urban trees, and then the bill as introduced included a clause which was very limited and caused quite a lot of opposition amongst submitters because it was really restricting the rules to specifying single trees and groups of trees. And through the select committee process and taking account of those submissions, the select committee—and the Green Party—was very pleased that the committee agreed to include another matter which should be included in the national planning framework so that you get that national direction, and that is urban trees. And then, in the Minister’s Supplementary Order Paper (SOP), green spaces have been added to that, which we hope will also increase the direction on how green spaces are used for stormwater retention. We saw in the Auckland floods the value of wetlands and green spaces in reducing flooding.

Urban trees have got so many benefits, particularly as urban heat islands, for reducing the temperatures, providing shade, providing amenity, providing a place for children to play, harvesting rainwater, reducing those stormwater flows, and preventing erosion. So now we have the national planning framework providing direction on urban trees and green spaces, but there’s a Supplementary Order Paper in my name, SOP 393, and I just ask if the Minister can confirm that his Supplementary Order Paper dated 25 July, at 3.56 p.m., which makes a change to Schedule 6 and ensures—because there was a provision in Schedule 6, clause 30B(3), which meant that the transitional national planning framework would not include direction on urban trees.

Is the intent, could he confirm, of his Supplementary Order Paper—which makes that change in Schedule 6, in clause 30B(3)—to ensure, like my Supplementary Order Paper 393, that the transitional national planning framework will indeed provide direction on the urban trees and green spaces? Because, being in Auckland recently, I walked around a suburb where I grew up, and two large pōhutukawa that I remember from my childhood and a huge camphor tree had just been completely felled. And there was probably no need for a consent for that because they weren’t in a special ecological area. That’s why we need protection for urban trees; that’s why this clause is so important. Could the Minister confirm that his Supplementary Order Paper, like mine, ensures that there will be direction on urban trees in the transitional national planning framework?

In respect to the Minister’s question about the amendment to Schedule 6 deleting (f), yes, that will come up in the schedules, but the member is correct that that is in the Supplementary Order Paper tabled at 3.56 p.m. and that clause 58(f) includes urban trees and green spaces. That is not to say that every tree can be protected. If a city is intensifying as its population grows, trees do get cut down in order to build houses and that’s unavoidable sometimes. But it does mean that if you have a loss of tree canopy on private land, you actually have to do better in respect of public land sometime and make sure that you have a good plan for the urban tree canopy and open green spaces.

Thank you, Mr Chair. I want to focus on clause 55, “Matters relevant to setting management units”, and in clause 55(1)(a) it says “sufficient to enable environmental limits and their mandatory targets to meet the purposes set out in section 37 and 47 respectively”, and in clause 55(1)(b), “are determined by reference to scientific knowledge and mātauranga Māori.”

I would like to say that if a particular iwi or hapū are in their area, is it their view of mātauranga Māori or is it a view of someone else? So it goes back to some areas we traversed a little yesterday about secret knowledge, and the view of a constitutional lawyer that these things are often untestable, but just saying “mātauranga Māori” doesn’t actually define whose view that could be based on. I think, as we go back to the principle in the law that the law should be able to be known by everyone—and I know the Minister is a legal professional as well as now a legislator. Is it his view that this can be known and meet that principle of being able to know the law? Because I seriously doubt that that could be the case.

So, therefore, in, say, a resource consent application in Marlborough, for example, it wouldn’t be that appropriate, you would think, to have a view from a cultural expert who doesn’t whakapapa back to that area, but that’s not defined here. As we heard in the Environment Committee last week, that isn’t good law, and so that actually offends the principle of being able to know the law, unless the Minister has got contrary evidence, which I’d really like to hear, because we don’t want to be in a position where we’ve already got a very complicated—and just even looking at the size of this bill says it all, really. There’s a lot in here. And if it’s not clear, given that it’s over 900 pages, you’d think that all these things would be nailed down, but to me, this is not nailed down, and so I’d really like the Minister’s view on that, please.

I’ve gone through some details on how this new system, overall, is faster, cheaper, and better than the status quo: 100 plans down to 16; instead of 10 years, to take a plan down to four; a lot more permitted activities; clearer delineation between what we are actually trying to protect, which is natural environment values, not nimbyism supported by matters of personal taste—within those limits, enabling development.

Now, in respect to the specific question that the member raises in respect of clause 55, the management unit is set by the Minister or a regional planning committee. They’ve got to listen to evidence, including Māori knowledge, as well as science. Some Māori knowledge meets the definition of science; some doesn’t. It’s also true of non-Māori knowledge.

In respect of the things that have to be taken into account to satisfy the Minister or the planning committee, they’re set out in subclause (2). It says there that you focus on the biophysical state of the natural environment, the pressures on the environment, and the losses or gains of health in the natural environment.

Then I would draw the committee’s attention to subclause (3), which is the most important subclause there: “the size and location of a management unit should be set to provide flexibility and to maximise opportunities for offsetting and other management approaches to be applied.” That was a concern of the Treasury. They said that if you set management units too narrowly, you actually do not have enough flexibility in the system. That interacts with the provision that says that not all outcomes that are prescribed by the legislation can be met in any one place. If you have too narrow a management unit, then, effectively, you can’t achieve that broader purpose of the Act.

Thank you, Mr Chair. I want to spend a minute or two just on Supplementary Order Paper 389, clauses 52 and 52A. Clause 52 is titled “Considerations relating to customary marine title area” and indicates that the responsible Minister must, amongst other things, “consider whether the limit or target would directly affect a customary marine title group and (if they agree that it would) consider that as a factor in favour of setting the limit or target regionally”. Now, that, on the face of it, appears to be understandable and potentially reasonable, but there looks, to me, to have been inserted in the Supplementary Order Paper a new clause 52A, which is titled “Protected customary rights may be exercised despite limit or target”. It goes on to read: “A protected customary right may be exercised or continue to be exercised under the Marine and Coastal Area (Takutai Moana) Act 2011 despite”—despite—“any environmental limit or target set in the national planning framework or a plan.”

So my question to the Minister is: why did he and his officials consider it necessary to strengthen clause 52 by the insertion of clause 52A, and what, essentially, is the effect and impact of carving out a protection that would provide for an exemption that was despite a limit or target having been set? It strikes me that that is contrary to the overall environmental good that the legislation seeks to put in place by carving out an exception that is so specifically described and proscribed in the statute. So if the Minister could give some insight into the reason for the specific inclusion of clause 52A, I would appreciate this opinion and view.

I did so last night, but I am happy to repeat it: that was inserted on the advice of officials because neither the Resource Management Act nor the Natural and Built Environment Act, when passed, cut across Takutai Moana rights, which are narrow—they are unextinguished customary rights of Māori that predate the Treaty, actually. They are a common-law right, not a Treaty-based right. They are generally very limited to things like collecting hāngī stones or the right to launch a waka. This House has been through many debates on those issues, and the provisions that have been protected there is the legislation that was passed by the last National-ACT Government, with the support of [Inaudible].

I move, That the question be now put.

Good morning, Mr Chair, and good morning Minister—and thank you, officials, for joining us in the Chamber again. I want to come now to Subpart 7, Resource consents”, because I feel we’re not going to get much further in questions to the Minister on the preceding clauses. Resource consents; Clause 75AAA, “How activities are categorised”. Now, this cuts to the chase of what the purpose of the resource management reforms are: how we define the way people use their land and the activities they propose that people do on that land. Are they to be “Permitted” activities, which is provided for in the Resource Management Act—very few of those. Are they to be “Anticipated” activities, which the bill describes as “Activities that require a resource consent which the authority may grant (with or without conditions) or decline in accordance with the relevant provisions of the national planning framework or plan (whichever applies) and the limited discretion conferred by those provisions.” May these activities be “Discretionary”—“Activities that require a resource consent, which the consent authority may grant (with or without conditions) or decline in accordance with the relevant provisions of the national planning framework or plan (whichever applies).” And, of course, there are “Prohibited” activities: “No person is entitled to apply for a resource consent for the activity, and no consent authority has power to grant a consent for the activity.”

So I would like to explore, Minister, with you—and potentially seeking advice from officials—as to how this might work in practice. Because what we understand with the problem statement identified by ACT and National and Labour over many years, is that the Resource Management Act made it too hard to get consents for things that we do every day that we know how to do well: whether they’re land developments that involve excavation, earthworks, land clearing, building things near watercourses that require diverting watercourses—potentially disturbing places like wetlands and having to reconstruct wetlands in order to manage our stormwater in an environmentally friendly way.

So, Minister, when we think about permitted activities, we come to clause 75AAB, “How to decide which activity category applies”. Now this is absolutely vital if we’re actually going to get “New Zealand Inc.” to go faster, if we’re going to make it easier for people to develop their land and to be able to propose an investment to a commercial board, for example. Imagine you want to build a distribution centre; a warehouse; if you want to stand up a manufacturing operation—you want to know that when you make that commercial proposal to your board, you can give some certainty about the time it will take to go through the regulatory planning process. ACT has identified that process as a barrier to building new road infrastructure, for example, which is why, on Sunday, we released a policy which actually sets out how we could build more roads using tolling. But one of the barriers to that is the lack of regulatory certainty for investors who wish to pay for New Zealanders to have better roads and are happy to do so and recover the cost over time—the regulatory uncertainty of seeking consents for that is a barrier that needs to be overcome.

So, Minister, clause 75AAB: How do we decide whether an activity is permitted, anticipated, discretionary, or prohibited? Because I note when it comes to prohibited activities, it wasn’t that long ago that the Minister and the Ministry for the Environment released a national policy statement for freshwater management—or was it a national environmental standard for freshwater? Forgive me: there’s so many policies, rules, regulations, and red tape when it comes to doing things in New Zealand with your land, particularly if you happen to be near a watercourse, which it turns out most of New Zealand is—which prohibited, either accidentally or on purpose, we weren’t quite sure—activities in a wetland. And the definition of that wetland, that calls activities like quarries and land development to be prohibited on that land, included, somehow—what was interpreted to be—three bulrushes in the middle of a paddock, because bulrushes are a species of reeds which indicate that the ground is damp most of the year round, and so that somehow got captured in the definition of wetlands. So Minister, what I’m interested in is, and with your permission Mr Chair, I’ll just continue to expand on the question—[Time expired]

I move, That the question be now put.

Thank you, Mr Chair. I too, actually, want to turn the Minister’s mind to the same section that Simon Court has been speaking about, but I also want to speak about clause 75AAD. I’m sure the Minister would have seen over the weekend that, once again, Canterbury has been inundated with a wet weather event and our rivers are absolutely choked and have once again flooded much of Canterbury. Rural land, farmland, rural towns, council roads, culverts, and bridges have all been damaged. We saw this obviously in 2021, and, again, we see it just two years later, though, I have to say, not to the same extent.

The Minister will be aware that regional councils have asked the Government for a contribution towards clearing out and managing rivers around the country. However, this has been declined. Most councils will tell you, particularly the Canterbury Regional Council, that they are unable to carry out this work, given the current planning and permitted regulatory environment.

So, with regard to clause 75AAD, and activities that may be permitted with or without requirements, could the Minister please explain how regional councils, and/or landowners, can interpret this legislation so that they are able to carry out flood mitigation work on rivers around the district so that infrastructure, human habitat, farmland that is currently being regularly flooded and causing millions of dollars’ worth of damage can actually be protected. And, notwithstanding subclause (2) in clause 20, I have quickly read through that.

Can the Minister please explain the overlay of the proposed rules, regulations, and, of course, the National Policy Statement for Freshwater Management with regard to statements like Te Mana o Te Wai, and how, under these rules and proposed new rules, our councils, our landowners, and our homeowners can carry out flood mitigation works to protect their valuable infrastructure?

Although the detail of consents is dealt with in Part 5 of the bill, not here, it is correct that national direction under the new system, as it can now under the Resource Management Act, could say all flood schemes are permitted activities. It could do. I don’t think it would be likely to, but it could do if a future Government wanted to. The rules relating to where you can put up flood banks and what work you can do on tree control are unchanged by the passage of this Act, but could be modified by a future Government in either a permissive or restrictive way in the future were that in the national interest.

Thank you, Mr Chair. Clause 82 relates to and deals with the national planning framework provisions for transitional provisions. It says that it “may include transitional provisions for any matter, including its effect on existing matters or proceedings.” Minister, could you explain how you see that as working in practice, please—in what situations may a transitional provision apply?

As is set out in the footnote to that particular clause, that’s the carry-over of section 45A of the Resource Management Act. What that could mean in practice is that national direction could say that it doesn’t apply to resource consents that have already been lodged.

Thank you, Mr Chair, and I apologise to the Minister and members if this matter has already been canvased. I want to ask the Minister about clause 51, which is about discretionary targets that may be set for any matter for which a mandatory target is required. Clause 51 outlines that discretionary targets can be set for a system outcome, a framework outcome, or a plan outcome. Now, this bill gives quite big powers to central government in relation to the setting of targets, and that was subject to quite a bit of debate in the select committee. I am not someone who thinks that central government doesn’t have a role; in fact, I think we need to strengthen the national direction provided through the system from the centre down in order to achieve a whole variety of different outcomes. But concerns have been expressed about the level of ministerial and central government control and direction. And so I wonder if the Minister could ventilate to the House how he expects the discretionary targets regime to be used in contradistinction to the mandatory targets regime: when would one be used and when would another be used?

With respect to the member, I think he’s misread the clause: “Discretionary targets may be set for any matter that is not a matter for … a mandatory target”. It’s that way; not the other way round, which is just how the member read it out. It may have just been a slip of the tongue.

Chris Bishop: Is that what I said? Oh, sorry.

Hon DAVID PARKER: Yeah, but I’ll assume that that was just a slip of the tongue. All national direction currently under the Resource Management Act is discretionary, so there’s no mandatory national direction. What this does is respond to the issues which are of concern to New Zealanders and says, “Look, these are areas that really the system does need a bit of national direction on.” They are listed, and I agree with the member that that’s been one of the failures of the existing system: that we haven’t had that.

I move, That the question be now put.

The question is that the Minister’s tabled amendments to clauses 44 and 75AB of Supplementary Order Paper 389 be agreed to.

The question is that Simon Court’s amendments to Part 3 of Supplementary Order Paper 389 set out on Supplementary Order Paper 392 be agreed to.

The question is that the Minister’s amendments to Part 3 set out on Supplementary Order Paper 389 as amended be agreed to.

Members, we come now to Part 4. This is the debate on clauses 95 to 151, “Natural and built environment plans”, including Schedules 7, 8, 9, 11, and 12. The question is that Part 4 stand part.

Thank you, Mr Chair. I want to come to clause 95, “Natural and built environment plans”, and 95(2), “In the case of the Nelson and Tasman unitary authorities, there must be 1 plan that applies to both the region over which the Nelson City Council has control and the region over which the Tasman District Council has control (together the Nelson and Tasman unitary authorities).”—well, that’s what they are now. Just like Auckland is a unitary authority which includes the functions of the former Auckland Regional Council, and the district and city councils within the Auckland region. A unitary authority makes a lot of sense for some regions, just like the East Coast—Tairāwhiti, to manage the functions of the district council and the regional council when it comes to land use, planning, and environmental management, particularly around freshwater resources, for example.

But it’s remarkable how different this is to the provisions in another bill that Labour is trying to push through the House right now. The Water Services Entities Amendment Bill, which, when tabled in the House, when it came to select committee—the Governance and Administration Committee—actually provides for the Ngāi Tahu takiwā, which extends into Nelson and Tasman district to take the Seddon and Murchison water infrastructure assets and manage them separately under what is a quite different regional grouping. Even though Seddon and Murchison live within the Nelson and Tasman entity.

So, Minister, I’m interested as to how the Natural and Built Environment Bill, and natural and built environment plans made under this legislation, how it is that if you live in Seddon and Murchison right now, and if this legislation is passed—which it may still do, even though Labour is struggling to pass cars at the moment, let alone bills. It may well be, if you live in Seddon and Murchison, that you’ll be under a natural and built environment plan under this bill, but your water services will be managed from Christchurch under a separate water service entity because Seddon and Murchison fall under the Ngāi Tahu takiwā. So, Minister, would you explain why it is that these two separate bits of legislation treat Seddon and Murchison in the Nelson and Tasman district in a different way? Question one.

Second question, Minister: when it comes to clause 96, the “Purpose and scope of plans”—“A plan must—(a) give effect in the region to the national planning framework, as directed by that framework; and … (c) be consistent with the relevant regional spatial strategy”—which I’m sure we’ll get to next. Minister, when we think about those national instruments, national policy statements for fresh water, urban development, most recently indigenous biodiversity, which applies significant natural areas, planning overlays onto private property.

If these natural and built environment plans must give effect to these planning instruments, how is it that local communities, who might decide to use their land—say for farming, they want to use irrigation, they want to be able to develop land in a way that their community agrees is appropriate for the development they’re undertaking, whether it’s the wine-growing industry in Nelson Marlborough, or it’s dairy farming in Southland, or, who knows, solar farming in Northland. How is it that if there are national instruments—national policy instruments like for fresh water, indigenous biodiversity, how are they to be reconciled with the aspirations of a local community to develop in a way that they see as benefiting the people of their region when that’s at odds?

A natural and built environment plan will have to incorporate all of those instruments, whether it’s the freshwater rules, indigenous biodiversity requirements, which actually put limits on how people will use their private property if it happens to have a stand of bush or some wetland plants on it that a planner identifies as significant.

So, Minister, do you want to describe, firstly, how do you reconcile the natural and built environments plans with the water service entities approach, and would you tell us how are local communities supposed to get ahead with these plans on top of them?

In respect of the first question, this has never been about local government reorganisation. I don’t have a view on that; it’s not within the purview of this legislation. It is applying to existing district council and regional council boundaries as they currently are, to generally set around catchments in respect to the case of regional councils.

In terms of the point made in Nelson and Tasman, it’s interesting that the Nelson Mayor, the Hon Dr Nick Smith, a former Minister for the Environment in this place, favours this approach to having a regional plan in that area. I’ve heard him make the point that it’s silly that in respect of Richmond, which is, effectively, a suburb of Nelson City, but it is in the Tasman district, not the Nelson City boundary area—you’ve got different rules relating to subdivision and other issues that should really be similar between the two areas.

In respect of the question as to the scope of plans under clause 96 and how you work issues out such as the member raised, well of course those issues already rose. Of course you can farm on a dairy farm, but if you’re going to pollute the adjacent waterway to a degree that it’s no longer fit to swim in, the national planning framework cuts in and says, “Well, the regional council should do something about that.” It doesn’t say that you can’t have a dairy farm, but it means that you’ve got to do it carefully in relation to an adjacent waterway.

Thank you, Mr Chair. Picking up on the comment that the Minister just made, which is that this is not about local government reform, well, that’s true in one sense, but that’s not what many people think. Certainly, I sat through many of the submissions from local government representatives to the Environment Committee, and I think my colleagues Scott Simpson and Barbara Kuriger would agree that one of the recurrent themes from local government—Local Government New Zealand, the peak body, and a whole range of other councils—was that this is a surreptitious, stealthy way—those are my words, not theirs—of reorganising local government.

We’re now going to have these regional planning committee superimposed over the top of councils. Contemporaneously, or at least simultaneously, we have the Government’s plans around three waters, which Simon Court has just referred to. Interestingly, when the bills were introduced, it was three waters across the big four mega entities, and literally whilst the current bills we’re talking about were at the select committee that got changed to 10. We’ve had this quite absurd scenario in which Parliament has legislated for a bunch of different things and, barely before the bills were even signed into law, the Government has had to introduce more bills to Parliament to fix up the three waters reform process, and we’ve gone to 10.

We’ve got that going on at the same time that this is happening, and to make matters worse—another layer—we’ve got the future of local government reform—

CHAIRPERSON (Greg O’Connor): Just let’s stick with Part 4. You are contextualising, but let’s just move towards Part 4.

CHRIS BISHOP: It’s very material, Mr Chair, because it goes to the point that Simon Court made but also the Minister’s response, in relation to how this is not around reorganising local government. I just put it to the Minister that all of these reforms are disconnected from each other, and that’s actually what the select committee heard right the way through. I’ll just give you an example: we had the Mayor of Selwyn, who said what I just said. Plus, you’ve got Kāinga Ora, which has its own regions. It’s a mess—it’s a mess.

So I put it to the Minister: can we be confident that the 15 bodies established here are actually going to be the final group of bodies that we end up with? It does seem to many people—including, I think, many people on this side of the Chamber—that we have a very discombobulating reform process here. Actually, there’s an argument that it would be better to do all of it at the same time rather than in bits and bobs and create enormous problems along the way.

There are mixed views within local government on this. As I’ve already quoted you, the former Minister for the Environment says this is a good idea in respect of the region that he’s in and is the mayor of part of. There are many other mayors and councillors in different parts of the country also supportive. The local government steering group have been supportive. They’ve put additional protections relating to statements of community expectation, which we’ve already covered.

But it’s not just the councils that support it; I quote from the submission from the Property Council: “The Property Council has long championed the need for resource reform and supports the action taken by the Government to reduce the number of plans from 100 to 15 and introduce regional spatial strategies which seek to plan for 30-plus years. We commend the Government and officials for producing the Natural and Built Environment Bill and the Spatial Planning Bill.” The numbers changed from 15 to 16, but you can see that there are development interests as well that support the move down to 15 plans. There is no hidden agenda here in respect of local government reform.

Thank you, Mr Chair. Minister, I want to come now to Subpart 2, if we’re on that—I assume we are—which is the “Content of plans” and what plans must include. It’s great to see that plans will have a strategic content and strategic outcomes and policies to identify the issues that are important to each region and that they will deal with matters necessary to ensure consistency with the relevant spatial strategy.

Now, I’m a big fan of spatial plans—which we’ll get to in the following bill—because they identify where people should live, where hazards might be, and where it’s not appropriate to build infrastructure or homes, for example. One of the challenges of this planning process, though—and it was actually raised by representatives from Taituarā, or representatives of Local Government Professionals, at the select committee hearing on this bill—is that in order for the planning function to be carried out according to the intent of this legislation, it will require the planners in local councils and regional councils to be sent over to a new regional planning committee.

Local councils will continue to have to pay the salaries of planners, technical support staff, people who specialise in geospatial information systems—people who have all the technical competencies required to carry out those planning investigations and planning coordination—who are actually putting together the documents and the maps that underpin regional or district plans, which will now be natural and built environment plans.

When you look at the responsibilities of regional councils and territorial authorities to contribute to these plans, what they said was, “Once you’ve co-opted all of our staff and required us to pay for them, but we don’t get anything for it—you’re not compensating us for the loss of these staff—you don’t recognise that we’re still processing consents and planning applications under the existing Resource Management Act”—or whatever the transitional provisions are—“while you’re taking our staff. Why don’t you just set up a local office of the Ministry for the Environment in, say, Ngātea”—or, I don’t know—

Hon Scott Simpson: A good town.

SIMON COURT: —that’s right, Ngātea in the Hon Scott Simpson’s electorate, or maybe in Te Atatū or Henderson in West Auckland, where I live, or anywhere in the country that’s going to have to put these plans together, because it’s going to require a significant amount of staffing and resources that the legislation proposes, I assume, to take from regional councils and territorial authorities, or what we’d call district council.

Then, Minister, not only is it this enormous resource drag on the sector, which doesn’t appear to be funded in any way—it’s another one of these unfunded obligations that central government imposes on local government—but it also creates this problem. There are all of the conflicts between resource allocation, whether it’s fresh water, soils for highly productive food production, soils of land for housing, or whether it’s asking, “Should we be allowed to develop a quarry on our land, because that aggregate is needed for construction and infrastructure and homes?” or, “Is the traffic going to cause a problem for our neighbours, with truck movements, hours of operation, dust and noise?”—all of those other matters that need to be resolved between neighbours, between private property owners, and between private property owners and those who have responsibility for administering the commons on behalf of all people.

Well, currently, regional councils administer the allocation of fresh water and issue consents for discharges into fresh water, but all of these conflicts are apparently going to be resolved in these natural and built environment plans. So, Minister, two questions: how are local councils and regional councils meant to deal with this massive drag on their resource that establishing these plans will cause, and how are planners remote from their supervisors, their elected members in councils, supposed to reconcile all of these conflicts between land use and resource allocation in a separate room from those entities, those councils, that are meant to administer all of these rules—Minister.

Only the ACT Party seems to think that by reducing from over 100 plans to 16, the system will be less efficient—it’s just wrong.

Simon Court: Well, who said that?

Hon DAVID PARKER: Well, that seems to be the implication—that you don’t want to have the system changed that comes down from 100 plans to 16. I’ve read out the likes of the Property Council. They think it’s going to be more efficient. The cost-benefit analysis done independently of me says that for every dollar spent in the system, $4.50 will be saved by system users.

There’s enormous amounts of money going to be saved. One of the reasons is that there’ll be a lot more permitted activities, which seems to be what the member is worried about. That is achieved in part through the procedural principles set out in clause 6A, which we’ve already passed, but which says that you’ve got to reduce reliance on resource consenting processes. Now, plans will be put together by a regional planning committee, with the staff drawn from the local planning committees, who will be putting together 16 plans across the country instead of over 100 individually. This will be more efficient and is going to save the country hundreds of millions of dollars every year.

Just before I go on, just to the member Simon Court, I note that the member, when he sat down, asked about three questions across the floor. The intention of the committee stage is that we have a question and answer to actually advance things, rather than making—so I’ll invite the member, and the member is entitled to stand for as long as he likes to speak. However, I will invite him to consider the way of doing business which may be more productive and give him the answers which he requires, and save him from calling the questions across the Chamber once he sits down.

Thank you, Mr Chair. I want to—

Simon Court: Point of order, Mr Chair. Apologies, Mr Scott Simpson. I’ll just seek clarification from the Chair: there were three questions I asked, the Minister has not answered them—

CHAIRPERSON (Greg O’Connor): No, that’s not a point of order, the member can sit down. I’m just making an observation to the member, he can choose to take heed of it or not. He can continue the way he does, that’s his prerogative; however, I’m just indicating to him the way that the committee stage has been intended to be conducted to be most conducive to ensuring that the members get the information they need. It is entirely in the member’s hands how he continues. The Hon Scott Simpson, time will start again.

Hon SCOTT SIMPSON: Thank you very much, Mr Chair. I want to pick up on some of the comments from the Minister, from Mr Court, and particularly from my colleague Chris Bishop, because Part 4 on page 148 at clause 95 has the relatively benign first subclause that says, “There must at all times be a natural and built environment plan (a plan) for each region”. That, on the face of it, sounds perfectly reasonable. As the Minister has said, the plan of the legislation is to have far fewer plans, full stop, across the nation, and that would almost inevitably result in less planning from districts, for instance, like mine in the Thames-Coromandel area.

But the risk, I suspect, is that the devil will be in the detail. So Part 4 then goes on through the next more than 20—nearly 30—clauses to describe the rules, the processes, the exceptions, all the matters relating to things like aquaculture activity, protection of customary marine titles, charges for coastal occupation, environmental contributions. There are a myriad of rules and, in fact, most of the clauses that follow clause 95 relate to rules for the planning committees.

Then there is Schedule 7. Schedule 7 goes into even more detail about the preparation, change, and review of the natural and built environment plans. It is a mind-numbingly complicated and detailed schedule. Therein, I think, lies the challenge for the Minister, because notwithstanding what he said about this not being an additional layer of “local government by stealth” being inserted into the whole local government environment, that’s not the perception out there in the real world. Out there in the real world, there is real concern about the way these committees are going to be formed, what their role will be, what influence and what power they will wield over the lives and property rights of citizens.

There can be no doubt that these committees are going to be extremely powerful. The scope and breadth of the material and considerations that they will be tasked with making decisions upon are truly mind-boggling. This goes to the root cause of criticism from a number of submitters about property rights, about access to democracy, about democratic accountability, and about regional representation.

So my question to the Minister is relating to how does he see the evolution of these committees going from what I’m sure he thinks is a laudable, principled approach to morphing into hugely powerful, expensive, administratively cumbersome red-tape bureaucracies in their own right. I’m very concerned that the potential here is that the intent that the Minister seeks to achieve from the creation of these regional planning committees and the work and breadth that they are required to do will actually, over a period of time, become self-fulfilling bureaucracies in their own way. They will employ staff, they will have chief executives, they will have secretariats, they’ll have legal advisers, they’ll have consultants, and the opportunity for endless extra cost on and burdens on ratepayers will be, in my view, very large.

The second point I want to make relates to regional representation, and I’ll use an example from my own electorate in the Coromandel. Now, we’re told that there are going to be 16 of these committees, and my part of the world, the Coromandel, is always usually aligned with the Waikato region, although parts of it fall into the Bay of Plenty Regional Council area as well. We already feel, in the Coromandel, that our decisions and life impacts are already too Hamilton-centric by way of these things. We already feel—notwithstanding the good people of Hamilton—that often decisions that are made in Hamilton bear very little real relevance to what occurs on the Coromandel. We’ve seen instances of that most recently as a result of weather events that have occurred this year, where we get regional decisions made in Hamilton or even Tauranga, Bay of Plenty, that have a direct impact on the peninsula that bear little or no relevance to the physical situation that people of the Coromandel Peninsula find themselves in.

So my questions to the Minister relate to how can he be sure that there will be adequate and proper regional representation; how can he be sure that these committees are not going to morph into bureaucratic monsters of their own making that have little or no democratic accountability; and how is he going to make sure that the vast array of rules, regulations, and materials that must be taken into account are actually going to be achieved and fulfilled?

In the same way as the Auckland Unitary Plan involved the bringing together of the plans of all of the prior cities including Auckland Central, Waitakere, Manukau, and the North Shore and other cities in Auckland, which was, essentially, left within the control of local government to do with an independent hearings panel hearing public submissions—that’s what will happen in the new process.

Simon Court asked the question as to why we didn’t just put this in the charge of the Ministry for the Environment. Well, that would be central government taking over local government processes. We’re not doing that. We’re still leaving it to local government, and I believe it will work. The key is that the first plans need to be well supported with some support from central government, not taking over the process but providing some monetary support for those that go first so that the ones that go first do it well and create good precedents for those that follow.

Thank you, Madam Chair. Minister, I’d just like to ask you a question around clause 102, “What the plans must include”. We know there’s identifying the issues of importance to the region and national planning frameworks.

In the select committee, we talked a lot about vegetables, and fruit also came into the conversation. I’m trying to tie together the purpose of the bill, te Oranga o te Taiao, which we were told and explained how it leads to the wellbeing of the people. The discussions we had, for the Minister’s reference, was that if we’re going to put a planning regime in place where the land and the people are all going to be healthy, we’re going to have to identify what we’re going to be able to do with vegetables. We accept that there are environmental limits around agriculture and horticulture. I remember saying in committee one day that “you can’t compare the vast amount of dairy farming country to the small about of vegetable-growing land that sits around the country.”

We’re all a bit concerned, in the committee, that we weren’t going to have the ability to provide our people with cost-effective vegetables with the amount of, I guess, regulation and red tape and limits that we put on our vegetable growers for a very small area of New Zealand—and so I’m thinking that some things may have to give in respect of others. So I’m trying to tie the purpose around the health of the environment and the people down to how this will work in reality in these communities, because vegetables have been identified by the committee as something that’s critically important to the wellbeing of New Zealanders.

I agree with the member. The Government, of course, in the National Policy Statement for Freshwater Management gave some exceptions to that regime for vegetable growing. So that’s evidence that this Government agrees with that principle. That is given effect to—higher in the planning hierarchy through clause 58(g), which says “The national planning framework must … [enable a] supply of fresh fruit and vegetables.” So we’ve already covered that part in an earlier part of the debate.

Madam Chair, thank you for allowing me to take this call on the Natural and Built Environment Bill. One of the items that we talked about last night was the reconciliation of iwi and hapū with the plethora—full of waka groups in the Māori political space. The Minister referred to the Federation of Māori Authorities and incorporations and trusts and other things.

I just was mindful of clause 107, which are matters to which regional planning committees must have particular regard to any statement prepared by an iwi authority or groups that represent hapū in a region. I wonder how that can be reconciled, on one hand, through the National Māori Entity provisions the Minister talked about, including a whole bunch of other groups that aren’t iwi and hapū, groups that don’t have the ancestral responsibilities of upholding the kawa and tikanga, unlike iwi members, and making sure that those groups have participation representation; but, on the other hand, with clause 107(1)(d), actually we don’t have any care or concern for those groups at all.

So, on one hand, we’ve got iwi and hapū at the apex of the consideration—these would be clause 5, clause 6, clause 4, and then the National Māori Entity, which seems to account for every man and his Māori—and then, on the other side, comes clause 107(1)(d). Actually, those people—federation Māori authorities, incorporations and trusts—that hold the ownership interests in these lands are again shunted and invisibilised.

The other item that I thought I’d draw attention to is the various materials and provisions around customary marine titles and customary rights. We won’t forget that mass confiscation that took place with the foreshore and seabed legislation many years ago, but what we can say is that right now the assertion of the customary marine rights, or customary marine titles, has not necessarily been sealed through an award. So these provisions around customary marine titles, marine rights, are actually very premature to the assertion of those rights and the actual sealing or award of those rights through the Māori Land Court process.

The last thing I heard, in my former occupation, when I came here, was that some of those customary marine title, marine rights, applications would not be heard until 2045. I would like to know how we can reconcile that, from the Minister. Thank you very much. Kia ora.

In respect of the first point, under clause 107(1), iwi management plans or statements prepared by iwi authorities or groups that express their view is how te Oranga o te Taiao can be upheld. They, effectively, have to be in writing. This will actually improve the efficiency of the system. It is an outlet. It is one of the matters that needs to be taken into account. Iwi management plans are currently prepared and have some weight under the existing system as well.

In respect of the issue about a marine and coastal area, takutai moana Act rights, I covered that in relation to the last part. The principle is the same here and that is that those rights prevail. Those rights already exist, even if they sometimes have not already been elucidated.

Thank you, Madam Chair. Last night, the Minister referred to the fact that the bill significantly improves the provisions around notification providing clearer direction. If I could just ask the Minister, in terms of the Supplementary Order Paper (SOP) in his name, it makes a number of changes around how plans deal with notification of activities. In the bill, as recommended by the Environment Committee, there were criteria in clause 108E on pages 153 and 154 about what the regional planning committee must take into account when deciding whether certain activities should be non-notified—i.e., the public doesn’t get an opportunity to make submissions.

In the Minister’s SOP, those provisions appear to have gone, and clauses 108E and 108F have been significantly changed. So I just wonder if the Minister could provide some comment on that and whether it reduces the scope for notification by removing those criteria for non-notification, or whether this is simply improving and clarifying these provisions.

I’m advised by officials that the provisions have just been moved; they haven’t been deleted, so they’re still in the Act.

Dr Tracey McLellan: Madam Chair. Madam Chair.

No, not yet, but I am mindful of—I’m listening for new material.

Thank you, Madam Chair. This is a just a note, an observation. There was a comment made two minutes ago that those customary rights exist, but unless they are in a marine space, unless they are recognised and the subject of a declaration by the Māori Land Court, I find it very irreconcilable if those rights can actually be accounted for by way of the legislation and the decision makers’ actions in making decisions under the legislation.

If it is expected that decision makers have to be aware that those customary rights exist and build them into their decision-making processes even though they have not been declared through the Maori Land Court or through the High Court by way of another judicial pathway, then how can a decision maker under this legislation actually take account of those or implement those?

I find that very inconsistent, and I’d like to know from the Minister how a decision maker can implement or take account of a right that hasn’t been declared through the judicial process. Otherwise, we get into a very difficult space, à la the Nelson Tenths litigation, where there has been an assertion of rights but people do not want to recognise them.

That’s not what I said. What I said was that for a customary right to be found to exist under takutai moana legislation, it must be found by the court to exist. It’s not creating new rights; it’s actually recognising rights that the courts find have not been extinguished and therefore will be recognised and carried forward. At the point they are elucidated, the system protects them. But the member is quite right—you can’t know what you don’t know, and this legislation doesn’t say anything to the contrary.

Thank you, Madam Chair. Minister, I want to come to Subpart 3, “Rules in plans”. That’s on page 160, clause 117, “Purpose and effect of rules”: “(1) The purpose of including rules in a plan is to enable a local authority—(a) to carry out its functions under [this] Act;”. So as the member, Chris Bishop, rightly pointed out before, this legislation is intimately related to the functions of local authorities and “(b) to provide for … directions given by … [the] national planning framework; and (c) … [for] policies specified in the plan to be achieved.”

Now, Minister, if we can come to clause 117(6), the plan has to identify activities as permitted, anticipated, discretionary, or prohibited. And what we saw, Minister, with the National Policy Statement for Freshwater Management that was originally proposed—or was it the National Environmental Standards for Freshwater management? It’s all very confusing, all of this red tape and regulation, particularly as it applies to farmers and particularly as it applies to resource developers and those organisations wanting to stand up quarries to provide building materials for construction.

If a national policy statement or some kind of national direction prohibits an activity on certain land, whether it’s by applying a significant natural area overlay based on an aerial photographs of somebody’s back paddock, which someone somewhere sees might have some kind of significant indigenous biodiversity on it, or whether it’s three bulrushes in a paddock, which was the issue that tripped up so many organisations and property owners looking to develop quarries or develop land for housing when the freshwater rules were first put out because three bulrushes in a paddock pretty much amounted to a wetland. So, Minister, how are communities, businesses, and property owners meant to get ahead in their area, in their district, if a national instrument that’s then incorporated in a natural and built environment plan actually prohibits something that they need to do for the economic benefit of their community?

Now, I heard yesterday, from a contractor, that in the Wellington region there is no suitable place for contractors to dump clean fill. That is, soil material that comes from a construction project, and in winter it’s more than likely that it’s saturated material. You can’t recycle it and take it somewhere and use it for another development; you’ve just got to get rid of it. In construction, we call it “cut to waste”, and that material is defined as engineering-unsuitable. Well, it certainly was in Transit New Zealand’s definitions when I studied highway engineering. But in the Wellington region, there are no clean-fill sites, so contractors are hauling to Marton to tip at a landfill there. That’s because even though clean fills aren’t prohibited in the Wellington region, it’s become very, very difficult to consent things under the current regional council because of the freshwater rules and the prohibition on disturbing these things called wetlands, which, you know, was corrected by the Ministry for the Environment (MFE) with three bulrushes in a paddock.

Minister, how are communities, how are businesses, how are infrastructure operators supposed to actually get on with building and building in a cost-effective way when activities that might be prohibited mean that you can’t even apply for a consent for it. We know that happened in Auckland. There was a clean-fill operator north of Auckland, in the East Coast Bays, that sought to extend their clean-fill operation for a period of additional years and additional hectares on their existing site, and when those freshwater rules prohibiting disturbing any wetlands came in, they were told, “You can’t do it.” They were told by the Auckland Council, “Don’t apply, because it’s prohibited now and we can’t even accept your application across the counter.” That was clearly wrong because MFE came back and changed that, to modify that rule to allow for some developments—extremely limited developments—where they might impact a wetland, even though the wetland, in that property owner’s case, was a constructed wetland by a former landowner. Of course, we know that every time you build a new road, a new motorway, there are wetlands built all along the corridor.

Minister, how are we supposed to get ahead when if an activity is defined as prohibited at a national level, but it turns out we need to do it at a local level, we won’t be able to do it?

I agree that there is a level of discretion required in respect of those activities. The member will be aware that I was responsible for the regulation intended to protect wetlands from desecration because we’ve already lost more than 90 percent of our wetlands, even including those in national parks. We introduced strict rules to stop the balance of 10 percent being lost because, in the prior 10 years, a 20th of the remaining 10 percent had been lost. We went a bit far and therefore we did have to modify the rule to make it permissible for quarries and landfills.

So the member is right that care is necessary around those issues. How does the new system guard against those sorts of mistakes being made again? In part, through the spatial planning legislation requiring spatial plans to identify where infrastructure is likely to be needed. It could be partly achieved through that, and in part through the pro-infrastructure provisions of the national planning framework, and in part through the provisions of the Act that give a leg up to necessary infrastructure.

Thank you, Madam Chair. Minister, I want to come now to clause 118, “Rules about discharges”. Now, there are already existing provisions in the Resource Management Act around discharges. For those listening on 882 AM or watching on Parliament TV, what we’re talking about is when a business or undertaking, whether it be a manufacturing operation, say, turning tomatoes from the tomato orchard into canned goods, or whether it’s a business that is manufacturing, say, concrete products from cement and aggregate—a discharge from that activity, to land or into water, is already regulated and already requires consents.

The last thing we want in New Zealand is for businesses or people using their land to use it in a way that pollutes the natural environment, the commons—the common resource that our Government and that our local authorities should be protecting for all of our benefits. Discharges to land, private land, and to waterways actually have an impact on people downstream.

But, Minister, I’m interested in some of the text here, and particularly on page 161, clause 118(2). It talks about none of these effects should arise when a plan includes provision for discharges. We must accept that every business or undertaking that makes something has some kind of output that either comes out the factory gate as a finished good or that goes out of a pipe or into a pond to treat any contaminants that come out at the back end of the process. That’s normal manufacturing process in New Zealand. But if we look at clause 118(2)(b), “a conspicuous change in the colour or visual clarity:”, then the requirement is that none of these effects are likely to arise—and that’s really interesting.

I want to give an example, Minister. Maybe if we can contrast what happens naturally with what happens as a result of human activity, and how is it that a council or a planner is supposed to evaluate which one is OK and which one is isn’t?

Now, if you travel through the Waikato, which I regularly do, you will see the great Waipā River. The Waipā River drains a catchment of highly erodible soils, which means that the Waipā River naturally has a much higher sediment load than the Waikato River, which it discharges to. What that means is where you see the Waikato River and the Waipā River meet—I think that’s at Ngāruawāhia nearby—you see a very turbid, sediment-laden water body entering the Waikato River and mixing, and downstream of that the natural colour is significantly changed. There is a “conspicuous change in colour” and a “conspicuous change in visual clarity” of the Waikato River downstream of where the Waipā River enters it.

Minister, again we saw, during the floods and storms of earlier this year, in January and February 2023, enormous volumes of sediment eroded from all types of land uses, whether it was forestry or farming, or, of course, if you drive up the Napier-Taupo Highway, you will see, even in areas of what looked like untouched indigenous forest, very large slips—very, very large slips—because the underlying geology of those soils and of those rock types is very unstable. Enormous quantities of sediment being discharged to waterways and then to the coastal area. Of course, it reached all the way up to the continental shelf, where those sediments build up as a layer—a thick, thick, thick layer—that in the future, maybe tens or hundreds of millions of years from now, will be hard rock and uplifted.

So, Minister, I want to know how a plan is supposed to account for rules about discharges, where many of the things that they propose to regulate are already happening at a much greater scale in the natural environment. If all of these things are decided in a plan, and you can’t bring your evidence to court and say, “Hey, actually, our discharge is not too different from a natural discharge.”, how on earth are businesses supposed to get ahead and prove they can operate?

As I think the member well knows, that’s not what this rule is about. It’s about discharges to water, not the mixing of existing waters, which, as the member records, is a common occurrence, whether it’s the rivers he talks about or the Clutha River or the Kawarau River down south. This is about contaminants being discharged by human activity or practices, and after a reasonable mixing zone, is there conspicuous oil or grease, and is there a conspicuous change in colour caused by those discharges?

I move, That the question be now put.

The question is that the question be now put.

Tama Potaka: Madam Chair!

CHAIRPERSON (Hon Jacqui Dean): The member will not interrupt the Chair when I am ruling. Tama Potaka will stand, withdraw, and apologise.

Tama Potaka: I withdraw and apologise.

CHAIRPERSON (Hon Jacqui Dean): I’ll put it again: the question is that the question be now put.

The question is that the Minister’s amendments to Part 4 set out on Supplementary Order Paper 389 be agreed to.