Fast-track Approvals Amendment Bill

Members, we start with Part 1. This is the debate on clauses 4 to 54, amendments to Parts 1 and 2 of the principal Act. The question is that Part 1 stand part.

Thank you, Madam Chair. Look, I want to start by acknowledging that the Minister has put Amendment Paper 473 on the Table this morning, and that rewrites the bill, in a way, in terms of it would be similar to, maybe, a revision-tracked (RT) version that would come out from the select committee.

However, the select committee didn’t have an RT version because of timing, and there are a number of amendments in my name, and also in Lan Pham’s name—there may be others, as well. I have gone through my version of the bill as introduced, and I’ve got different coloured markings all over it, including references to the Minister’s Amendment Paper. We might be going between those documents as we go through this committee stage; I’m basing most of what I’m doing off the version of the bill as it was introduced.

CHAIRPERSON (Maureen Pugh): And it would be helpful for members to highlight the clause they’re speaking to.

Yes, yes—no, I will do. I’m just starting by saying that we’re here under urgency, and this fast-track bill was at select committee, but not for long. We are on Part 1, and I’ve got a lot of questions and comments throughout the bill, and I would like to go through it fairly carefully.

💬 Sam Uffindell: Chop, chop.

Oh, I see the Government members are already in a hurry. That doesn’t surprise me.

The first question—I’m on page 5 of the bill as introduced, and I note that the Government has an amendment to clause 4, and it is the deletion of subclauses (4) and (5), which regards priority projects and the processing of that. My first question is whether the Minister can explain why they are being deleted—what the rationale is for that.

Then my second question, and bigger question, is around Government policy statements. In clause 4(7), there is a definition of Government policy statement (GPS): it means “a Government policy statement issued under section 10A”. Now, there are some amendments, one in my name—and I’m sure the Greens will talk to their amendment, as well, which is in new section 10A—but my amendment was to suggest that, at new section 10A, we specify that these Government policy statements are about grocery competition. That is because the Minister has said on multiple occasions that this bill is about supermarkets. We heard a very long—surprisingly long—contribution in the second reading from Ryan Hamilton that went through the ins and outs of an awful lot of supermarkets around the motu. The Minister may be interested to know that it included Pak ‘N Save in Hamilton, with a roundabout; apparently, if this bill has effect, then the Pak ‘N Save’s roundabout will no longer be the responsibility of the Pak ‘N Save, and so somebody else is going to have to pay for the traffic management. I’d be interested in the Minister’s thoughts on that and how it relates.

The question here is around the Government policy statement: if this bill is all about supermarkets and grocery competition, why is the Government policy statement so wide and why can it apply to a good number of issues? Further to that, if we jump ahead to clause 5—again, I’ve offered up an amendment to circumvent the policy statement related to grocery competition. There’s an amendment in the Minister’s name about enabling the Minister to consult any other person. Really, this does not provide any criteria that the Minister can consult other people as they think it’s appropriate. There’s no criteria here about how the GPS will be made, noting that it can be on a range of subjects outside of grocery competition. Would the Minister consider some more criteria in the development of the Government policy statement?

I note that in other legislation—in some health legislation—they do have criteria for the making of a GPS. I have provided an amendment taken off that legislation—but with some tweaks so it makes sense for resource management legislation—that would give some comfort to the Labour Party, who is concerned that, at the moment, the Government policy statement can be about anything. A Minister can have a whim and then, as a consequence, that Government policy statement does have to be published—and the Minister can talk to whoever the Minister wants to—but that’s it; that’s it in terms of process. Then the consequences of that Government policy statement is at new section 10A(6): it relates to the decision making on a substantive decision. That is a very important point.

I would like the Minister to—I think that’s four questions I’ve got here. One is if he can explain at clause 4 the deletions to subclauses (4) and (5), but that’s a little question. The bigger questions are: will he consider the changes in my name around limiting the Government policy statements to just groceries—because he said that this bill is about groceries, so make it just about groceries? If he will not do that, will he consider adding in some criteria about that Government policy statement—how it’s made, what the confines of the GPS are? And then, finally, if he can also comment on the role that the GPS has in decisions that are made and referred to in subsections (5) and (6) of that new section 10A.

In relation to the member’s first question around priority projects, it’s largely an administrative change that, essentially, means that the ability to classify something as a priority project is dealt with at the substantive stage rather than earlier, which is the appropriate juncture to deal with it. It’s largely an administrative change.

In relation to the Government policy statements (GPS), the member rightly highlights clause 5, which inserts new section 10A and inserts the ability to issue a Government policy statement. The member asked about the series of questions. The first GPS the Government intends to issue is, of course, the grocery competition. We’ve issued that already. We’ve publicised that. There may be others. The member asked why the Government is just not limiting it to grocery competition, and the answer is because there may be others. The ability for the Government to issue a Government policy statement, we think, will be a useful device in terms of signalling Government intention in relation to other areas. I’m not going to prejudge where Cabinet or the Government may get to in terms of other areas. Clearly, grocery competition is an area that the Government is interested in, but, for example, without prejudging anything, it may be that renewable energy generation is an area that the Government wishes to signal as a priority. I think many members would be interested in that.

In terms of how it works, it allows the Government to signal its position on what may be regional or national benefits in particular sectors. We’ve talked about grocery and retail competition, but I think the key point is this: it’s not determinative for particular projects. A GPS will be a factor for consideration by the Minister on referral applications and by an expert panel on substantive applications, alongside all the other information presented with an application and the comments. The underlying test in the Act is not changing, which requires panels to weigh up the regional and national benefits with adverse effects in making those decisions. That is not changing. It’s not determinative of outcomes. There’s been a bit of public commentary that it gives the Minister carte blanche to force things through. That’s not the reality. It’s not borne out by the facts and the law. It’s a signalling device, and there are legal requirements there around it to be a factor for consideration on referral applications.

Thank you. I would like to begin on clause 4, Part 1, and particularly clause 4(3), “In section 4(1)”—and this is regarding the definition of “complex freshwater fisheries activity”, which has had a change from the original Fast-track Approvals Act. The first of the changes in the original Act were under complex freshwater fisheries activity in section 4(1)(c)—this was on page 9 of the original Act—and they deemed that, to constitute that activity, works are “within 500 metres of the coast and occur during the whitebaiting season” and then, thirdly, they are “in an area known to be used for trout, salmon, or native fish spawning and occur during the spawning season”.

Now, the changes that they have now in the amendment bill—that, again, was introduced this morning and we’re just making our way through—in subclause (3)(ii), amending section 4(1), it now says, “that require disturbance of any duration during the whitebaiting season to a water body within 500 m of the coast; or (iii) that require disturbance of any duration during the relevant spawning season to a water body that is known for the spawning of trout, salmon, or native fish;”. Now, I’m interested specifically about this change. Why this change, particularly when it comes to just limiting it to whitebait species, and what is the intention with the disturbance aspect of it? Is it that there was not enough clarification in the earlier definition, or have there actually been instances or activities that have occurred that are now of concern to the Government and are why they are undertaking this change? I’d really like some clarity on that.

Then, further down—again, this is still clause 4—in subclause (7), it’s talking about the definition of the relevant portfolio Minister. It still retains the start of the definition about meaning “a Minister of the Crown who, under the authority”—etc., etc.—“is responsible for”, and then it says, in subclause (7), “(a) in relation to a proposed Government policy statement, a portfolio that is directly related to the subject of the proposed Government policy statement”. My question with this is: is the subject of that statement simply the sector in which it sits, or is it about the potential impacts of that Government policy statement? Why I’m asking that is because I’m particularly interested in the Minister for the Environment’s role within the Act, because what we’ve seen in the actual operations of the Act is that even though she has been legislated to be providing comment when it comes to applications, we know very clearly that she actually has not been undertaking that role and that legislative role.

I’m interested specifically in what the consideration has been about the Minister for the Environment’s role, specifically in the Government policy statements and whether she is considered to be a relevant portfolio Minister given that the entirety of the fast-track proposals that we have in the approvals process so far have, clearly, impacts on the environment. I would really like and appreciate some clarification on that.

Then, thirdly, just to move to where my colleague Rachel Brooking was in clause 5, where there is a number of very important questions to be answered on this—because, again, we have not had a very clear select committee process at all; it’s been very rushed, but we heard very clearly during that process particularly from the Parliamentary Commissioner for the Environment that he considered this provision of the Government policy statements offers no guardrails when it comes to environmental protection. He described it as an open-ended power to determine what national or regional benefits mean. Basically, there were many contributions to the Environment Committee that people considered this to be a return back down the track of the expansive ministerial power that the Government actually backtracked from when we went through the select committee process on the Fast-track Approvals Bill.

I’m really interested to hear the Minister responsible for RMA Reform’s take on why those concerns weren’t paid more attention to when the Government actually landed on where they are for this area.

Good questions. I thank the member for them. In relation to the first one around complex freshwater fisheries and whitebait, I’m advised by officials that clarification was requested by the Department of Conservation in relation to that. It’s, I suspect, a largely administrative clarification.

In relation to her second question, it was, I think, about the Minister for the Environment. As I think the member knows, the Minister for the Environment is not the responsible Minister for the purposes of the Fast-track Approvals Act. That’s not to say the Minister for the Environment is not a good person; it’s not to say the portfolio is not important. They both are, but they are not the responsible Minister. The Minister for Infrastructure is that person.

The issuing of the Government policy statement (GPS) is done by the Minister. Cleary, that’s a Government policy statement, so there’d be a Cabinet process; certainly the Government policy statement on grocery competition, for example, has been issued as a Government document by Cabinet. The proposal in clause 5 to insert new section 10A says that “the Minister must consult the relevant portfolio Ministers.”

For example, just to take the example I was using before, without prejudging where the Government might get to, if the Government issued a GPS on renewable generation, for example, the relevant portfolio Minister at that point would be the Minister for Energy. The proposal is that that is mandatorily required to take place, but they then also may consult any other person the Minister thinks appropriate.

In relation to the third point around the GPS, all I can do is repeat what I said before, which is I think there has been a degree of inaccurate commentary around the role of Government policy statements. The underlying test that the expert panels are required to give effect to through the Fast-track Approvals Act is not changing. This idea that it’s unlimited, unconstrained, Muldoonist power without any guard rails is not actually borne out by the law.

Thank you. Going back to the answers the Minister gave to my questions around clause 5, new section 10A, and the contribution the Minister has just made now. On that contribution, the Minister is saying the underlying tests do not change. Those underlying tests in the Fast-track Approvals Act are at section 81, and the ability to decline is at section 85, and what we and submitters are particularly concerned about is that when making a decision under section 85—and this is from our differing view in the select committee report—most applications can only be declined if the adverse impacts in relation to the application are “sufficiently significant to be out of proportion to the project’s regional national benefits”. The concern that we have is that, with the addition of a Government policy statement (GPS), with no criteria, that will have a relationship to this test that I just read out about the impacts being “sufficiently significant to be out of proportion”. I would very much appreciate the Minister being clear, in his answers, that he does not see the GPS as being able to be part of that weighting in section 85 in the ability to decline and that, maybe, the GPS is only part of a weighting in the section 81 decision. That would be of some comfort. But if he can go through that relationship between sections 81 and 85 of the principal Act, that would be very useful.

He’s talked about how the underlying tests do not change. Is he referring to these tests in sections 81 and 85? Then he’s also said that in terms of going back to the GPS generally, they might be about all sorts of things that he can’t think of at the moment but that, because they have to go through a Cabinet process, that’s enough. I really want to challenge the Minister on that assumption because, apart from the Crown Minerals Act, which was passed by this Government recently, other instruments, such as national policy statements and a GPS made under the Pae Ora (Healthy Futures) Act 2022, have criteria not just about who you consult but some criteria, some guard rails, about what those GPSs are about and how they will influence the decisions made under this Act. I’m always asking for this Government to put sustainable management into the fast track. It could be that there is some criteria around sustainable management, for instance. It does not give me any comfort if the Minister says, “Well, we can go back to the purpose of the fast-track Act.”, because that purpose is simply to facilitate projects and that purpose is not to facilitate projects in accordance with sustainable management. That is where all of our concerns come from and why we say, over and over again, that fast track does not protect our environment.

I’m happy to work studiously on more amendments, although I do have one up already about what those guard rails could be, and I note, as well, that Lan Pham has an amendment saying that GPSs must follow the same process as set out in section 46A of the Resource Management Act (RMA) for a national policy statement. That would also do the trick.

The questions there are: can he please think more about criteria, some guard rails? Also, it would be useful if he could think of any other examples rather than supermarkets. He’s said renewable energy, but, surely, there are other national direction documents for renewable energy and significance in the RMA that would already make them part of the section 81 determination process. Can he say what he is referring to when he says that the underlying test does not change, and the relationship between sections 81 and 85 in the principal Act, and what role the GPS, any type of GPS, will have in that decision making?

Thank you, Madam Chair. I want to pick up where my colleague Rachel Brooking has just left off, because this is a really substantial part of the Act. What my concern is is that we heard really clearly about concerns from submitters about this being, essentially, executive overreach—that, quite aside from speeding up the process and making it more efficient and effective, it actually could open it up to risking robust decision-making, and especially if it’s not evidence based, then the risk of judicial review.

There were a number of suggestions, made by a number of submitters, that could have quite clearly resulted in processes that these Government policy statements were much more robust and much more informed by expertise or community. These were things like criteria around the Government policy statements actually undergoing some form of cost-benefit analysis, or at least consultation, and this is particularly when it comes to iwi, hapū, mana whenua, and the public. If there was some form of consultation that could strengthen the rationale for these Government policy statements, and perhaps somewhat avoid the clear risks that have been set out not only by the Parliamentary Commissioner for the Environment but a number of very influential legal minds—I think what I’m proposing, which I’d love Minister Bishop’s thoughts on, is very simple: it’s simply about section 46A of the Resource Management Act (RMA), where the same process that’s set out in there would actually apply to these.

Now, I’m obviously aware that the Government is getting rid of the RMA, and I’m absolutely not attached to that specific process. What I am encouraging, and would like the Minister’s consideration of, is, again, simply some semblance of safeguards and consultation that may give some opportunity for relevant expertise or community experience, and iwi and hapū, particularly when it comes to Treaty obligations, to have their voices heard, to actually inform these Government policy statements. I’d really appreciate a response to that. Thank you.

Thank you, Madam Chair. I am going to move on now to clause 6, “Section 11 amended (Consultation requirements for referral application)”. Both Lan Pham and I have different amendments to delete this. The change is that we’re moving from consultation to notification and we’re worried—well, I’m worried; I’ll speak for myself—that that is a reduction in the involvement of the iwi groups that are described later in that clause.

We did hear from iwi groups that already the time frames are very tight and any further tightening of them will just make it impossible to give any meaningful contribution. In the Minister’s Amendment Paper, there is some change to the language around the 20 days and where the 20 days happens. My questions to the Minister are simply if he can explain what the change in the Amendment Paper is and why it’s there, but also if he has given any consideration to the submissions that were made by iwi saying that 20 working days is not enough, and, further, what his rationale is for this change in the title from “consultation” to “and notification” and the difference between simply being notified of something rather than being consulted on it.

Thank you, Madam Chair. I think that’s a really important distinction, and before we get a response from the Minister, I would like to table and ask his consideration of my amendment to simply delete clause 6. We think this is a really inappropriate new consultation requirement, in that it actually reduces what one would think of as consultation literally to a one-way process. This could have really ill-thought-out impacts, particularly when it comes to a reduction or a disincentivising of applicants actually working proactively and productively with local authorities and with mana whenua to actually identify and resolve issues in advance of lodging an application.

We know, councils know, and we know from their submissions and experience that having some really basic stuff at the front end here can result in so much cost and time saving down the track. I think that because the bill, as we’ll get to in later parts, so inappropriately narrows that ability for appeal, this upfront consultation rather than simply one-way notification, would be a really valuable and wise track for the Government to actually go down to actually reduce that risk of appeals later down the track or potentially judicial review. I would really appreciate the Minister’s comments on that.

I’ll deal with a range of issues in relation to these questions. Change has been made in relation to moving from consultation to notification, and we think that’s a more objective test. Actually, in relation to Ms Pham’s comments around judicial review, it’s really clear that when someone’s been notified, there is a debate about what consultation requires, so we actually think this creates more clarity.

The Amendment Paper change is to clarify that an application can’t be lodged before the 20 - working day notification period ends. I understand there was a bit of debate at select committee about how people would just send them off and then lodge the next day. They can’t do that. Twenty working days is the minimum period applicants must allow. We think that’s appropriate.

In relation to the other questions that were raised—why not use a section 46A Resource Management Act process? Well, that’s quite a cumbersome process to issue what’s actually a relatively simple document. We’re not intending to take up the member’s suggested amendment around an national policy statement - style process. We think we’ve got the balance about right in the current form.

In relation to Ms Brooking’s questions, all I can do is repeat what I said quite a long time ago—or at least half an hour ago—which is that the underlying test is not changing. Clearly, the Government policy statement will be a factor that is weighted by the panels in saying yay or nay, but it is not a determinative factor, and my comments around that were in relation to some commentary that that is the case when, in fact, it’s not.

Thank you. Given the Minister’s answer then—he’s saying it is a factor, but not a determinative factor—he could be clearer in terms of section 85 and that balance that I was referring to in my earlier contribution. I won’t repeat it, but my interpretation of what he just said is that it is a factor, so, presumably, if it is a factor, it could change that proportionate decision-making test under section 85, which is the opposite of him saying that the underlying test doesn’t change. It either does change or it doesn’t change, and he’s not being clear about where that sits, and I think it would be useful for everybody if he did.

I also note that, while he is rejecting Lan Pham’s section 46A of the Resource Management Act (RMA) process, I do have an amendment as well that’s copied from the Pae Ora (Healthy Futures) Act 2022, and that is that in doing one, the Minister must be satisfied that the Government policy statement contributes to sustainable management, have regard to the relevant policy documents in the specified Acts that the fast track refers to, consult the Secretary for the Environment, and engage with organisations as the Minister sees as reasonable—I’m paraphrasing somewhat there. I would like a response to that as well.

I will move on to clause 9, and this is a very important clause. It amends section 17 of the principal Act, which is “Minister invites comments”. What we’re particularly interested in are the changes that are made here, because this is one place in the Act where there has been some discretion to invite comments from parties that are not local authorities and that are not adjoining landowners. What has happened—and this is relevant to the Minister’s amendment today—is that we have been worried that replacing subsection (3) with the new paragraph (b), which is included—it says, “Replace subsection (3) with: (3) A local authority—(a) must provide comments”, and there are some subparagraphs there, and “(b) may provide other comments, but only if those comments are relevant to the application and the decision on the application that the Minister is required to make under section 21.”

I see that there’s a small change that the Minister’s made—I’m sorry, I was getting ahead of myself with reference to his Amendment Paper; apologies for that. The issue here is that “Replace subsection (3)” is simply replaced with “section 17(3)”—so my check here is that that is just a typo being corrected, but also if the Minister can comment on why the local authority is being restricted at paragraph (b) to providing other comments only if they “are relevant to the application and the decision on the application that the Minister is required to make under section 21.”, and the new “(3A) Any comments made by the administering agency must be relevant”. I totally accept that any comments should be relevant, but is this change necessary because comments were not relevant—if the Minister can comment on that?

Then, also, I note that at subclause (4)—this is an important one, because it says, “In section 17(6), replace ‘20’ with ‘15’.”, and Lan Pham has an amendment to delete that subclause (4). I meant to, but I accidentally said clause 6. But that “ ‘20’ with ‘15’.”—we heard that that would be difficult for councils to decrease from 20 to 15, that being five working days in a week. I was wondering if the Minister has considered—and I don’t think there’s anything in his Amendment Paper about that time frame, and if he’s talked to local authorities about how that will work.

Thank you, Madam Chair. I have some questions on clause 7, still in Part 1, so this is page 7 of the bill. This is particularly around the amendment to section 13, which is actually to do with the referral application. Subclause (1) of clause 7 is about, in section 13, “after ‘environment’, insert ‘and the significance of those adverse effects’.”

Now, as I understand it, the intention of this change to this section is to strengthen the information that is given to the Minister so that they have more fulsome information to consider when they’re actually deciding the referral stage of the fast-track process. It’s clear, within the bill, that the Minister may decline an application for referral, even at that stage, if the project may have significant adverse effects. I understand the rationale—that this is trying to expand that.

Now, what my concern is, and what the concern of many submitters was on the fast-track amendment bill submissions process was that it shouldn’t be left to the applicant to actually decide the significance of those adverse effects. Is there a consideration about any additional scope where it could be more clearly spelt out—the obligations of the applicant to actually expand on their responsibilities?

Now, we’ve had some quite concerning submissions throughout the process, where submitters would talk about applicants who actually claimed things, whether that be in consultation or in assessment of environmental acts, that were actually proven to be untrue. So when the Government like to describe this as there still being some form of environmental safeguards, this could actually be one area that clarified the obligations of the applicant to provide a fulsome assessment of environmental impacts, ideally outside of their own companies or whatever consultants they may use. But that would actually help the Minister in their determination and, presumably, result in much better outcomes for the process. So I’m really interested to hear whether the Minister has any thoughts about that.

In relation to Rachel Brooking’s amendment around clause 9, I think it was, in relation to, “may provide comments only if those comments are relevant to the application”—this is really just a kind of clarificatory change to make sure that councils in particular are making sure that they provide comments that are genuinely relevant to the application. Some of the feedback coming through so far, as they’re stuck in Resource Management Act land, is such that we’ve got chapter and verse about everything, which is not relevant to the application. I don’t think a lot turns on that. It’s kind of clarificatory.

In relation to Miss Pham’s suggestions around section 19, on adverse effects, this is actually something I would have thought she would support. It’s to make sure that the Minister has fuller information at the referral stage around information on adverse effects. Clearly, there’s an obligation through the actual panel decision-making for all of those things to be, you know, published—well, furnished, to the panel. But this is just a measure to make sure the Minister on referral has access to some of that information earlier on in the process.

Thank you, Madam Chair. I wanted to move on to clause 9 and particularly pick up on an area that we had very compelling submissions on, particularly from councils, but it was actually the New Zealand Law Society who talked about the unworkability, particularly of clause 9(2). So this is about where the local authority must provide comments advising on any applications that have been lodged, any in relation to the proposed proposal, and may provide comments but only if those comments are relevant to the application and the decision on the application that the Minister is required to make under section 21.

Now, what was concerning about this was—and this is throughout the bill, in numerous instances which we will be able to pick up on, but particularly this: we heard that local authorities are really concerned about the workability of these proposed changes, and my amendment proposes to delete clause 9(2) mainly because that will delete the actual limiting of the scope of local authorities’ comments on the applications. Because what we heard is that when they first get these applications and make an assessment, even under the current framework they have so little time to actually comprehensively get a snapshot of what the application actually means for them and their community. And they considered it to be unworkable in that they have to so soon be providing these comments when they haven’t had the opportunity to more fulsomely assess the application and actually understand its implications.

We know that decision makers are already constrained to specific considerations regardless of the comments made by local authorities or mana whenua under the bill. But these provisions, as they are now, would also limit that ability for local authorities to incorporate the views of mana whenua into their comments. So we don’t like the fact that that limits that. We think that local authorities should have more discretion, and I’m interested as to whether the Minister has given consideration to that, given the very clear risks that the rest of this bill are opening in terms of risk to the processes.

Thank you, Madam Chair. A couple of questions around timings as well, so moving past clause 9 and into 10 and through into 14. Clause 10 is “Section 18 amended (Report on Treaty settlements and other obligations)”. The primary Act at the moment says, “(3) In preparing the report required by this section, the responsible agency must—(a) consult relevant departments; and (b) provide a draft of the report”. So what this bill does is get rid of that “and provide a draft of the report”. I note that Amendment Paper 473, in the name of the Minister responsible for RMA Reform, has some changes to this section 18, and I was wondering if he can tell us what those changes are doing, and why it is that—not in his Amendment Paper—in the bill as introduced, that requirement for providing a report has gone.

Then, related to that, is clause 14, “Section 29 amended (Pre-lodgement requirements for listed project)”, and there are some amendments about 20 working days in his Amendment Paper, around clause 14. So if he could explain why those are in there, that would be useful as well.

So those are two timing questions, but the—

💬 Hon Chris Bishop: Sorry, what was the second one?

At clause 14. In the Minister’s Amendment Paper, there are, I think, given my—I’ve got different coloured pens on my copy here, sorry. I’ve copied them over in black pen; black for the Government, Mr Minister?

💬 Sam Uffindell: Is that because we get the books in the black?

No, it’s because of the influence of New Zealand First that I’ve used the black pen; red pen for Labour, obviously.

The question is around the Minister’s amendments in terms of the 20 working days in clause 14. Also, going back to clause 10, the amendments that the Minister’s making, and why a draft report is not prepared in amended section 18.

Then, my last question on this little set of clauses is in relation to clause 13—this is not a timing question, despite it being called “(Timing of decision to decline referral application)”. Clause 13, amending section 25(1), deletes “on the application” in each place. I am wondering, Madam Chair—and to the Minister—if this is in fact a rats and mice provision.

I’m just looking at clause 10 as well. Again, looking at clause 10 and the Minister responsible for RMA Reform’s original clause 10; both of them amend section 18 of the Fast-track Approvals Act. So it’s about preparing a report on Treaty settlements and, very roughly, “the responsible agency [has to] consult relevant departments.” Those relevant departments, says the Minister’s Amendment Paper, “must provide [the] report to the Minister not later than 20 days after the date for providing comments”. So it’s giving the responsible agency 20 working days to get their comments back or get the report back to the Minister.

In terms of consulting relevant departments, though, I can’t see where there is an obligation—although I suppose it might be somewhere, because I’m not especially familiar with this—on the relevant departments to get their comments back so that the responsible agency can prepare its report. So—it’s taken me a while to work this out—the responsible agency has to prepare a report which has to go to the Minister. It says to the agencies it’s consulting that it requests comments from relevant agencies, and then goes back to the Minister not later than 20 days after the date of getting those comments. That’s fine; it seems reasonable to give time for the relevant agencies to comment and then for the responsible agency to prepare the report.

But what I’m looking for is, given that this is supposed to be fast track, some obligation on the relevant agencies to give their comments to the responsible agency within a certain time frame as well. So I can just sort of see a situation where the relevant agencies, whatever they are, through no particular fault of their own, maybe don’t get something done. I can see it running into problems, you know; they don’t get comments back in a timely fashion. Of course, that undermines the whole purpose of the fast track. The place where that might obviously happen is over the Christmas break when, despite all the allegations in the paper, people do take time off but not 10 weeks, but they do take time off. So there’s a little bit just there. So I want to know how we make sure that those relevant agencies actually reply in a timely manner as well.

In relation to that, firstly, the Christmas break doesn’t count as working days; it’s the summer closedown period, so that deals with that issue. The changes here are actually relatively straightforward. There’s an update to reflect that the Minister for Māori Crown Relations and the Minister for Māori Development are now invited to comment under section 17, which is in clause 9. The 20-working-day time frame is for the Ministry for the Environment to provide the section 18 report to the Minister. After the closure of comments, I don’t think there’s any requirement to really dive down into time frames around reports flying around between the Public Service. The point is that the Minister needs the report, and the Amendment Paper creates a 20-working-day time frame for that. I think it’s all relatively straightforward, and I think it’s a good change.

Thank you, Madam Chair. Moving forward, then—thank you to the Minister for the answers to those questions. At clause 18, there’s “Section 35 amended (Director-General of Conservation’s report on land exchange)”, and what I’m interested in is subclause (2), and that replaces “sections 53(3), 54, and 55” with “sections 54 and 55”. What that means is that section 53(3) is removed, and 53(3) is the “Panel invites comments on substantive application” and they “may be invited from any other person the panel considers appropriate.” We are going to get to that section later, but I think it does get amended in the Minister’s Amendment Paper, so just asking officials to consider whether or not—and apologies if it’s in the Amendment Paper and I’ve missed it—that subclause (2) should also be deleted, so it still refers to 53(3), which is that change coming up later that I’m very keen to talk about, so 53(3) doesn’t happen. That’s one small question.

Then moving on to clause 19, inserting new section 37A: this is about “Listed projects proceeding in stages”. I just note that the Minister, in his Amendment Paper, has changed “a written request” to an application and then also said that an application must not be made unless any relevant fees or levies have been paid.”—I think that will be reflected later on, when we get to the regulation-setting clauses. So I’m really just inviting comment from the Minister that his changes are as simple as what I’ve explained there, but could he also comment on clause 18.

Clause 18 says that certain parties must be invited to comment on land exchange applications. The change enables the Director-General of Conservation to invite comments from other persons on a proposed land exchange as appropriate, to be used at the Director-General of Conservation’s discretion. So I think that’s pretty sensible.

Clause 19 is the change around listed projects, as the member says. I’m advised that the Amendment Paper has minor wording changes and the inclusion of a requirement for fees to be paid, which aligns with other similar clauses to bring it into line.

I think maybe the Minister misunderstood me. So if we look back at clause 18(2), what is happening there is that the reference to section 53(3) is being deleted. That is because the bill as introduced deleted section 53(3) but his Amendment Paper now undoes that deletion, I think, so should this subclause (2) now also be deleted?

💬 Hon Chris Bishop: I’ll check.

It’s a checking question?

💬 Hon Chris Bishop: Yeah.

Kia ora, Madam Chair—thank you. I’m keen to make a contribution and seek to understand further from the Minister in terms of the way in which this bill honours Treaty settlements to date for iwi Māori. I remember the strong submissions from Waikato-Tainui and Ngāi Tahu, who reiterated that they believe—and they can see within the legislation—they are not being seen, or heard, or honoured in the way this legislation is going to impact on their settlement.

CHAIRPERSON (Maureen Pugh): Can I just ask the member—sorry to interrupt. What clause?

HŪHANA LYNDON: Clause 10, “Section 18 amended (Report on Treaty settlements and other obligations)”. I want to just canvass with the Minister, knowing that there are some significant changes being made in terms of both iwi Māori input in council and time frames, but, actually, it’s more around Treaty settlements and how the obligations and the signed settlements of those who are settled—how will the commitments made be honoured, and how will their views as rūnanga and trust boards of post-settlement governance entities be considered in the deliberations of panels?

Further, regarding Bridget Bell from the Manawatū, who shared that in the Manawatū district, it’s different again. There are 10 hapū who are unsettled, and they don’t have the legal protections that Treaty settlements offer. So you’ve got the settled, and we’ve heard strongly from groups like Ngāi Tahu, Waikato-Tainui, Ngāti Toa Rangatira—a whole range of them with those concerns for the protection of their settlements and those obligations—but then we hear from those iwi Māori, like the hapū of Manawatū, who are unsettled and therefore they don’t have the legal protections that accompany Treaty settlements.

The original bill failed to provide the meaningful safeguards for these groups, let alone what this amendment bill could potentially do, which is to continue to expose unsettled hapū and iwi in the space where consents are being considered—and that’s if they even get in the door to offer comment and contribution. It’s unpacking both Treaty settlements and their obligations, but then also the unsettled, and how do hapū and iwi engage in this new system being proposed?

On that, I find it interesting to be taking lectures on this from the member who abused that process as part of it. But, anyway, I’ll leave all that aside—and she knows what I’m talking about. Both the Minister and the expert panel have to comply with section 7 obligations in relation to Treaty settlements and customary rights. It’s been quite interesting, actually, the number of projects that are coming through from iwi seeking to use fast track. One of the first projects that was actually consented—in fact, I’m visiting it tomorrow—is the Maitahi housing development in Nelson. This sort of rhetoric that it’s an abuse of iwi rights and things like that is, frankly, the opposite of the truth. They are as equally frustrated by the strictures of the Resource Management Act as everybody else is, which is partly why we’re changing it. There are participation rights, which I think have been well canvassed, and invitations to comment in the section 18 report that we’ve just been talking about with Ms Brooking. I think those concerns are well catered for.

Thank you, Madam Chair. I will run through, though other people might have things to say about other clauses. I note that there are a number of changes in the Minister’s Amendment Paper to the section around the fact that the Minister may determine that the project is a priority. So it might be useful for him to comment on what those changes are doing.

I move now to clause 24, “New section 45A inserted (EPA may provide substantive application to panel convener)”. This is a new section inserted and it has that word “may” in it. But now the Minister’s amendment is changing the word to “must”. Obviously, this is an important difference—between “may” and “must”—which I won’t relitigate in the committee. But my question is: why was it not “must” to start with? Is there some change of thinking that we should know about? The Minister looks interested in answering this question—thank you.

I will just go to section 45A, where it says—and there are some changes here that his Amendment Paper 473 makes—“The EPA must, within 5 working days after a substantive application is lodged, provide the application to the panel convener.” So what analysis or conversations has he had about the five working days being the appropriate amount of time?

In relation to the member’s question, the Amendment Paper requires the Environmental Protection Authority to provide a substantive application to the panel convener within five working days of receiving it, rather than this being optional. I’m advised that this is in response to a submission from the panel convenors themselves, around that.

💬 Hon Rachel Brooking: Priority projects?

Well, priority projects—I mean, I sort of dealt with that earlier when I said that the changes to give the ability for the Minister to issue a priority—or to say something is a priority project at the substantive application phase rather than earlier, because it’s only once you get to the substantive bit—like, it’s the appropriate juncture to make that determination rather than earlier, and, frankly, we probably should have picked that up in the original bill. But, you know, that’s part of the reason why we’ve got an amendment bill going through—just a bit of finessing and fine-tuning. You know, this is another example of it. Nothing’s perfect first go. So, you know, we’re an iterative Government.

Kia ora. I’m wanting to revisit what the Minster raised earlier, considering, particularly, those who are in the system and are respondents. The resource and funding available to hapū and iwi in the pipeline to responders is quite a small figure, and with the turnaround being changed within the legislation and with the truncation of the process to replace the sum “20 working days” with, I think, “15”, I’m wanting to understand whether there will be further support for hapū and iwi, settled or unsettled, to be able to respond in this much faster process. From my understanding, it’s like $10,000 for a group to engage consultants, legal advisers, technicians, and all of that to put forward responses, and there might be some $2,000 earlier when it’s first notified. That’s a small amount, particularly when the pool of technicians to support these matters might also be stretched as the fast track starts to amp up further.

Settled iwi, and, also, unsettled hapū and iwi, might be impacted significantly by the pace and by the demand in their tribal rohe, and, then, there’s a small amount of pūtea offered to them. How do we support those who are invited for comment to gear up so that the system can then support them better to be able to respond at pace?

The member makes a good point. I’m advised that there is the ability for groups that the member’s referring to who comment to get a contribution through the cost recovery regulations, as per the Act. I’m also advised that there’s intention to review those cost recovery regulations next year to see whether or not they’ve been set at the appropriate amount. So that’s a next year thing. But my understanding is the process is working pretty well to date. People will always want more, but it’s cost recovery; it’s not a free for all.

A small question now from me. I have moved on to clause 26 of the bill. The small question relates to section 47 and 47A of the principal Act; there’s a reference in both replacement section 47 and then down in replacement section 47A(1)(b) to consent authorities. I’m wondering why this is a reference to consent authorities and not regional councils, because there’s a change earlier in the bill—I think that is at clause 15, to section 30—that consent authorities be replaced with regional councils.

These new sections 47 and 47A relate to competing applications or existing resource consents for the same activity. So I presume—and I’m happy for an explanation to tell me my presumption’s wrong, but I’m presuming that these will be applications that are about water resources or maybe airsheds for them to be competing.

So that is why my question is about whether the consent authority should be swapped out with the regional council or if it is in fact meant to be consent authority. Could the Minister explain to us if there are other sorts of competing applications that don’t relate to the types of consents that a regional council gives.

Again, I’ll just refer back to clause 15—I’ll go to it now—where there is a replacement where it says that “each consent authority that has jurisdiction over an area” is replaced with “each regional council that is the consent authority for an area”, and then other replacements of “consent authority” with “regional council”. So it’s just a consistency. The first question is: is this a consistency issue? If it’s not a consistency issue, can the Minister explain the rationale for consent authorities that aren’t regional councils having competing applications? That would be helpful. Thank you.

Moving on, still on clause 26, and this is section 47B, “Minister gives notice that the panel be set up”, there is a lot of “may’ in this—the Minister “may notify the EPA in writing that a panel may be set up for a substantive application” and again there seems to be a lack of criteria so it would be useful if the Minister could give us some examples of how this would be used. Is this a new discretion for the Minister or is it a rewriting somehow that I haven’t picked up? Could the Minister explain what’s happening there? Also, I note that in his Amendment Paper, at what will be section 47B(2)(b), (b) is deleted, and that is “provide the application to the panel convener, if the EPA has not already done so”. Is that just a consequential change to what we were discussing earlier or is it something else?

💬 Hon Chris Bishop: Which section?

I’m on 47B(2)(b).

I’m advised that “consent authority”, the reference in replacement section 47A, inserted by clause 26, is not wrong; it arguably could be more correct to suggest “regional council”, as the member puts it.

💬 Hon Rachel Brooking: I’ve got an amendment.

Have you got an amendment?

💬 Hon Rachel Brooking: Tabled, yeah.

You’ve got one. Oh, well, I’ll have a good look at it. There may be arguments for that, so I’ll have a good look at that.

The reference is not wrong, because they are relevant consent authorities because we’re dealing with regional consents here. So it’s not wrong, but your amendment is probably more right, put it that way.

💬 Hon Rachel Brooking: Good to hear.

Hang on, hang on—hold fire. It’s good to see you hear, though. Sorry, I shouldn’t have said that. In relation to replacement section 47B(2)(b), inserted by clause 26, I think it is, essentially—I’ll come back to you on that, but I think it is unnecessary, hence the deletion.

Tēnā rā koe, otirā tēnā rā koe e te Minita.

[Thank you; indeed, thank you, Minister.]

My questions are just basically supplementing off Hūhana Lyndon’s—specifically on clause 10, “Section 18 amended, (Report on Treaty settlements and other obligations)”, in Part 1—and just getting into more detail around my electorate, Hauraki-Waikato. I’ve got two, maybe three questions within this pātai.

First of all, Waikato-Tainui’s response to the Fast-track Approvals Amendment Bill—and, I guess, the context behind this is our 1995 settlement, our 2008 river settlement, and then the 2010 Te Ture Whaimana. My first question is around our response and our submission on the Fast-track Approvals Amendment Bill, in section 23: “The absence of concrete provisions to uphold Tiriti settlements in the bill is a fundamental defect. It displaces established arrangements [and] legal commitments binding the Crown and WaikatoTainui, and risks inconsistency with Te Ture Whaimana.” My first question is around how the Minister sees Te Ture Whaimana being upheld. I know that, in my electorate, we’ve gone through many different councils and mayors across the electorate, and through their understanding of Te Ture Whaimana being upheld within a settled electorate like Hauraki-Waikato. That’s the first one—Te Ture Whaimana.

The second one is a local issue on the ground where, yes, like Hūhana said, there are settled iwi and non-settled iwi. Within our electorate, while we’ve got the Waikato-Tainui settlement, we also have hapū. Last time we ran this process in the first stages of the Fast-track Approvals Amendment Bill—maybe the beginning of this year—I had on the Hansard asking one of the Ministers “Will you consult with hapū and iwi?” Hapū are the subtribes and the mana whenua who reside in these areas, as well as post-settlement governance entities (PSGEs). That’s a genuine question I’m wanting to know from the Minister, because that can be quite a challenging task even for us—making sure that there’s communications going from subtribes and tribes. It’s really important.

Some of the projects on this are the Rotowaro Bathurst mining area. The Rotowaro mining area is my hapū area of Ngāti Mahuta and our Lake Waahi. If that mine expands, that—I don’t know the English word for it, but tērā para ka whai atu ki tō mātou [that waste that will follow on to our]—

💬 Hon Peeni Henare: Waste.

That waste will go into our close lake of Lake Waahi next to our marae, and that can be very dangerous because a lot of our local tamariki go there for waka ama training. That’s a huge issue, and we haven’t, as of yet, had any consultation between iwi and hapū—and my office is willing to do that mediation part. However, I’m just wanting to see from the Minister if he intends on doing that with any of these projects. That’s the first one—Rotowaro.

The next one is Taharoa Ironsands Ltd. I don’t want to get too much into the detail about it. However, whānau who reside there—Ngāti Mahuta ki te Hauāuru—are having conflicting issues with papa kāinga next to the mining that is in Taharoa. Basically, I’m wanting to know what the communication streams are that are happening between hapū and iwi. If those aren’t happening, I’m more than happy to follow those up and make sure that that communication line is happening, because that is, essentially, what my role is as the MP of that area.

CHAIRPERSON (Maureen Pugh): Before I take the Minister’s call, individual projects are Part 2 of this bill, so—

Oh, ka pai. The only reason I brought that up is because that is in relation to our Treaty settlements within my electorate.

CHAIRPERSON (Maureen Pugh): I understand that, but getting into detailed discussions about individual projects is better in Part 2.

Well, Madam Chair, I’m not going to comment on individual projects. That would be, obviously, inappropriate. I won’t go there, and I won’t in Part 2 either, because there may be things I have to consider in relation to them and I don’t want to prejudge those applications. That will be the legally sound thing to do. All I can say to the member is that a core commitment of this Government is to uphold Treaty settlements and the existing settlements that are in law. The fast-track Act does not cut across those, and there’s a variety of provisions in the Act to give effect to that. That’s in relation to Te Ture Whaimana as well.

I’m looking at clause 26 and, in particular, I’m looking at new section 47C in there, and that’s “Delegation of decision by Minister”. The Minister can delegate her or his powers and duties under section 47A and 47B to the Environmental Protection Authority (EPA). Then there’s a set of rules about how that delegation is revocable and so on. If the Minister’s looking, it’s on page 17 of his Amendment Paper.

So section 47A is about deciding if there are competing applications or existing resource consent for the same activity, and then there’ll be a set of decisions under there. Section 47B is about setting up a panel for a substantive application and getting all these sorts of things set up. You can see that’s kind of a tricky situation for the Minister to be in, or for the EPA to be in, if there are competing applications sitting in there—and delegating those decisions to the EPA becomes tricky, as well.

I guess what I’m worried about is that, in some senses, deciding between competing applications is a pretty political thing to do. It’s something for which people really do have to make some judgment calls and, obviously, where political decisions are being made like that—and Ministers have to make them—it’s just wondering where accountability sits in that case. I’ve got another point on this, I’m sorry, Minister; you might want to take them both at once. So there’s that accountability issue: if it’s been delegated to the EPA, then where does that accountability sit? I know, ideally, the Minister takes responsibility—that’s how our system is supposed to function, but, in actual fact, oftentimes it doesn’t. I can just see a danger there around the inherently political nature of those decisions.

But then—and just something for the Minister’s amusement, I hope; hard to think of, really, when we’re sitting in a committee stage and doing this. But I just want to direct his attention to new section 47C(5): that if something has been delegated to the EPA, then it can comply with it without having to notify itself of complying. I just have this vision in my mind of this Spider-Man, the duplicate Spider-Man [Hon Chris Bishop makes Spider-Man pointing actions]—yeah, exactly so! I just wondered if the Minister had that in mind too.

It’s the meme—it’s the Spider-Man meme.

💬 Hon Dr Deborah Russell: Yeah, it’s the meme—it’s the meme.

Chris Hipkins answered a blimmin question about it one day—forgot about that—the Spider-Man meme.

💬 Hon Dr Deborah Russell: See, I knew I could amuse the Minister!

Yeah, there you go. It’s good times, you know. It’s not even that late in the day.

I mean, the member’s right; it’s an interesting turn of phrase. The law produces odd terminology. The status quo is that decisions around competing applications are delegated to the Environmental Protection Authority (EPA), but this is just an administrative mechanical machinery of legislation. I mean, there’s a vast swathe of legislation where the Minister makes a decision, including the fast-track Act, or many other pieces of legislation. But in reality, the decision is not made by the Minister; it’s delegated under authority to the Secretary for the Environment or secretary of the relevant Government department, etc., etc. So, in practice, at the moment, those decisions are made by the EPA.

Thank you, Madam Chair. I just want to check with the Minister—and apologies if this question has been asked—whether he could just nod to say that “You know what? We’ve covered this.” More broadly, as we’re going through this, noting Amendment Paper 473, I just want to check, from a process perspective, what the process is for the Minister to introduce additional amendments that were not a part of the recommendations of the select committee. If the Minister could just nod his head to say, “You know what? We’ve covered that point.”, that is all good, because, I think, broadly, that is setting the tone of this quite substantial Amendment Paper that the Minister introduced at the last minute. If you want to answer that, I have further questions.

As I said during the second reading debate, because there was no revision-tracked version, we’ve picked up some of the amendments suggested by the select committee and put it all into an Amendment Paper, which is on the floor. The best way is to say that the Amendment Paper is, essentially, the bill, and it’s sort of tidy to look at it in that context.

💬 Hon Rachel Brooking: No.

But it—what was that?

💬 Hon Rachel Brooking: No, all my notes are on the other one.

Oh, OK. Well, not all of us have the old colour-coded things out, Ms Brooking. The Amendment Paper picks up some of the suggested amendments from the select committee, some of which we—the Government—have agreed to, and some of which we haven’t, and we’ll just go forward from there.

Thank you, Madam Chair. I totally understand where the Minister is coming from, but I also want to point to the fact that there are a number of amendments the Minister has made, in Amendment Paper 473, that weren’t a part of the recommendation by the Environment Committee. Those are the ones I really want to get some guidance on from the Minister, on the rationale or the process to determine some of these.

To give an example to the Minister, the one I’m drawing to is clause 20, “Section 38 amended (Minister may determine that project is priority)”, which, according to the departmental report, isn’t something that was recommended. But over here, rather than repealing section 38, it is replaced by a different section: “(Minister may determine that project is priority)”. So I’m using that as an example of what was the Minister’s rationale behind that.

I’m just focusing on this particular clause, clause 20(1) in the Amendment Paper. Obviously, this is the first time we are seeing it, and we’re seeing it in other parts that I’m sure that others have discussed. I’m curious to know, from the Minister’s perspective, how the Minister is expected to determine that the project is a priority, especially when you have section 38(1)(b) that says “on the Minister’s own initiative”. The Minister before mentioned that they’re not likely going to be asking questions on specific projects later on in Part 2, just because the Minister may need to make those kinds of decisions.

In lieu of anything in this Amendment Paper, just on that reading, what does “the Minister’s own initiative” entail, what is the process for the Minister to determine that, and what are some of the checks and balances available to the Minister when it comes to making those decisions on priority projects?

We’ve covered this issue a couple of times now. The change is to make clear that the priority projects are dealt with at the substantive stage rather than earlier because that’s when the appropriate juncture is. We’ve covered that a couple of times now.

In relation to the wider point around priority projects, this is really, I think, quite a pragmatic thing, regardless of your views about fast track. It’s really a pragmatic view that there may be a project that applicants or the Government want expedited, even ahead of other projects. That hasn’t proven to be an issue so far, because the fast track is actually working pretty well.

There’s a steady stream of projects applying, either referred or substantive, and they’re working their way through the conga line of the Environmental Protection Agency (EPA) and the Ministry for the Environment and consultation. There’s a steady stream of projects, all of which are publicly available, by the way. They’re on the EPA website. It’s quite a sophisticated back end in which you can see all of that stuff. It hasn’t proven to be an issue so far, because there’s been no issue with the timely setting up of panels, but it’s possible to imagine a scenario in the future. Potentially, it’s a bit of a backstop. It’s possible to imagine a scenario in which there’s not the capacity in the system to cope with a project that everyone wants to have happen, either the Minister or the applicant. The applicant can apply; the Minister doesn’t have to agree. The member asked: what does “on the Minister’s own initiative” mean? Well, it literally means on the Minister’s own initiative.

💬 Hon Judith Collins: Using your brain.

Yeah, using your brain, as Judith Collins says. If there are no fetters on that and there is discretion around that, then they can do that.

Clause 20, which amends section 38, says that it has to be “with the written agreement of that authorised person.”, which I think is appropriate; and then subclause (2) of clause 20 is in relation to whether or not “there is risk that a panel may not be set up within a period that reflects the urgency of the project;”, which is precisely what I was just talking about. I think it’s a pretty pragmatic section, and, so far, it hasn’t been used, but it may be in the future.

I move, That debate on this question now close.

We’re not quite at the end of Part 1 yet, but looking to make some significant progress. Can I just point out to members that we are referring back to some clauses that have been debated two or three times. So we are looking for new material.

Thank you, Madam Chair. Listen, I’m going to refer to a clause that’s been touched on but in a very specific detail.

CHAIRPERSON (Maureen Pugh): After what I just said?

Yes, I did hear that, but I’ve been waiting for some time to make a specific question about this clause. It’s around the land exchange requirement. I understand the director-general has to be notified on land exchange—

CHAIRPERSON (Maureen Pugh): What clause are you referring to, please?

I’m referring to clauses 16 to 18, and there’s a very specific submission from Tureiti Keith requiring that applicants for land exchange should be required to consult with relevant iwi, hapū, and Treaty settlements. Now, this is not the broader question around Treaty and hapū-iwi engagement that my colleagues Hūhana Lyndon and Hana-Rawhiti Maipi-Clarke have made. This is very specifically around land exchange, which is a significant component of some potential applications.

Further, there was the question from Tureiti Keith that that be a requirement of the lodgement. My question for the Minister is: why was it determined that that not be a requirement? It seems that it would potentially speed up processes if there was the requirement that where there’s a land exchange, the local iwi and hapū are consulted. On top of that, the Royal Forest and Bird Society of New Zealand requested clarification as to how land exchanges will apply to council reserves as this was not reflected in the amendment bill.

Thirdly, in regards to that very specific question of land exchanges, Fish & Game also suggested that they should be pre-consulted on land exchange so that they can be involved in articulating what the habitat is of Fish & Game birds prior to land exchange applications under section 33, so that the impacts on game bird hunting and angling and recreational impacts can be identified. So my question is very specifically: would the Minister consider those things, or why has the Minister ruled those things out?

Currently, the Department of Conservation are supposedly responsible for administering that part of the process, and the director-general has the power to invite others to participate, but there is no requirement that he or she invites iwi and hapū. I wonder if the Minister can expand or express the logic around that. Thank you.

Well, there’s no requirement, but there’s the ability to, and so there’s just nothing more to it than that, really. I mean, there’s an argument that you could layer layers and layers of mandatory consultation and all the rest of it, but I think we’ve tried to strike the right balance. As an argument, you could include Fish & Game, and as an argument, you could include everyone else. We haven’t done that. It’s meant to be an expeditious process. Reasonable people can disagree about some of these facts, but I think we’ve got the balance about right.

Thank you, Madam Chair. I wish to ask the Minister a question about clause 54, which inserts new section 117A. That is the provision that allows the Governor-General, by Order in Council, to be able to amend the project description of a listed project or the description of the approximate geographical location of a listed project. I want to draw the Minister’s attention to submissions, particularly one off the top of my head by BusinessNZ, that has raised this as an issue. It is basically a “Henry VIII” clause that allows the Governor-General, by Order in Council, to amend something by Order in Council that is quite substantive. It “confers on the executive”—is what they’ve said—“the power to amend primary legislation without returning to Parliament”. They have raised, through their submission, a number of issues there and have pointed out that this raises a constitutional risk. They’ve also said, quite clearly, and I would completely agree, that “Parliament is the proper forum” for substantive changes to be made and that altering the scope of statutory regimes that affects the rights, the obligations, the distribution, or the allocation of public resources is just too big for it to be done through what this clause allows this legislation to do, basically.

It goes on to say, in new section 117A, that the Minister shouldn’t be making this recommendation unless they’re “satisfied that the scope of the listed project will not be substantially different”. However, the scope of what is actually allowed through new section 117A, inserted by clause 54, is pretty wide and it is substantive change. I would agree with the suggestion by BusinessNZ that this particular clause be limited to technical corrections and allowing the Governor-General to make changes, for example, to something that’s a factual error rather than something that’s quite as substantive as this clause allows it to be.

So I would like the Minister to clarify why it is quite as broad as it is in clause 54 and whether there was any consideration that was made to limit this clause to what has been suggested around technical corrections, because that is more in line with what we would support as well.

I thank the member Priyanca Radhakrishnan for her question, which is a good one. I mean, the member is right that this is not ideal in the sense that it is technically a “Henry VIII” clause, but I would argue it’s at the lower end of the scale because I think it is relatively narrowly constrained in the way that the member talks about.

It does allow the Governor-General, by Order in Council, which is, essentially, Cabinet—“made on the recommendation”—to amend the “project description of a listed project” and “the description of the approximate geographical location”. But the Minister can’t do that “unless the Minister is satisfied that the scope of the listed project will not be substantially different as a result of the amendment, taking into account—(a) the … regional or national benefits of the project; and … the location, scale, and nature of the works involved”. There’s an argument that it could be more narrowly constrained, but I think it is relatively narrow, and the Minister can’t add to the Schedule 2 list.

The member said that Parliament should do this. Well, the proposal is that Parliament does that. There’s a range of clarificatory project descriptions and things like that in Part 2, which we’ll come to at some point. It would be fair to say—how do I put this politely? Some of the project descriptions could have been better put by applicants. It would also be fair to say that there has been a relatively pernickety approach taken—I’m just trying to keep—

💬 Hon Rachel Brooking: “Pernickety”—how do you spell that?

Well, I’m just trying to uphold comity because I see the Attorney-General is present in the Chamber. There has been—how shall I put this?—an interesting approach taken by some people, some bodies, in relation to project descriptions, and so for the absolute avoidance of doubt, we are updating a variety of project descriptions. Somewhat embarrassingly for me, the New Zealand Transport Agency has had to have a number of projects updated—for example, the Hope Bypass, which doesn’t actually go near Hope, but that’s neither here nor there, and then there’s a range of other projects.

So, just for the absolute avoidance of doubt, we’ve updated those project descriptions, and this is a kind of catch-all where there will be, potentially, others. There was a High Court ruling in relation to the Stella Passage development, which I think took everyone a bit by surprise, frankly, and that’s OK—that’s OK. That’s the role of the court. But it was a bit of a—

💬 Hon Rachel Brooking: Was it pernickety or interesting?

Well, it was pernickety—I said “pernickety”.

💬 Hon Judith Collins: It’s a very nice word.

It is a very nice word. It was a surprising ruling and a surprising judgment. But the way our constitutional system works is that the courts rule and Parliament can change the law, and so that’s what we are doing.

The member has raised a really good point. I was pretty frustrated by the process, to be honest. I’ve taken quite a bit of time to make sure that we’ve got the project descriptions right, but for the avoidance of doubt if we haven’t, there’s the ability to update them. But there are some quite narrow guard rails around it.

Tēnā koe, Madam Chair. Tēnā koutou e te Whare. My first question was about—and this is the first time I’ve spoken in this debate—clause 42, because it looks like the Minister’s Amendment Paper, which was put forward relatively recently, makes some changes to clause 42.

During the select committee process, the majority of submissions—and there were 93 submissions—specifically commented on clause 42 of the bill. Sixty-five of them were expressly opposed to the proposal, and they were concerned that the nature of modification in the bill for clause 42 could allow expansion of the scope. Now, we did—and I did want to speak to our amendment—put forward the Green Party amendment that would delete clause 42, but I was wondering if the Minister could comment on the changes in the Amendment Paper, because it looks like clause 42 has been amended to say, basically, that the modification can only be a “reduction in scope”.

I’m curious about the definition of “reduction of scope”—because, I mean, it could theoretically put forward something that actually does mean that the project is going to have a greater impact on the environment—on the natural environment—but they’re able to claim that it’s a “reduction of scope”. I’m wondering about those changes that are in the Amendment Paper and whether reducing the scope is clearly defined anywhere and that it’s clear that the reduction in scope can’t increase emissions, for example, or increase harmful impacts on the natural environment. So that is my question to the Minister.

The member’s right. It’s picking up on the select committee submissions. They can only be reduced in scope. They can’t go up; they can only go down.

Thank you, Madam Chair. I’m just wanting to address clauses 24, 25, 26, 28, and 43, in relation to requiring specific process steps to happen concurrently. So that is a change, and there were 88 submissions considered on this part of the bill enabling process steps to now happen concurrently.

The majority of submissions opposed these amendments and expressed that running multiple statutory steps in a parallel process could compress the already short time frames and reduce the ability of the panels and agencies to undertake the necessary preparatory work and increase the likelihood of administration or technical errors. I’d like to draw attention to a comment made from an independent panel convener for the fast track, who said to the select committee, “The proposed time frames are simply unworkable. Many process steps depend on outcomes of earlier steps and forcing these to occur concurrently will compromise the quality and increase the risk of error.”

I draw the Minister’s attention to the submission of Patuharakeke Te Iwi, who are in southern Whangārei, who are being impacted by some five fast-track processes in the southern Whangārei rohe: Brynderwyns, the road realignment, the railway spur to Marsden Point, the dry dock, and also McCallum Bros sand mining. They came through and they said in their submission that they strongly object to the restrictions and the reductions in time, the 15 days for the invited persons to comment. But then with the concurrent multiple applications that they have in their district as it is—they have to cope with these five applications—having the concurrent approach that is being proposed is completely unworkable for them. They don’t have capacity and capability. How on earth are tangata whenua, let alone councils, to respond in such an environment?

I’m really keen to understand the intentions and how the resource is going to be supporting both the panels and those invited to comment when you’re going to be having to juggle many things within one project—so that’s the concurrent stuff that’s going to happen. Is the process going to be fuelled and resourced and have the adequate staffing to support the panels to not make the administrative and technical errors? Also how do we in hapū, iwi land, or in council try and respond as well, knowing that like in an area of southern Whangārei, we’ve got five current fast-track projects listed? Kia ora.

The concurrent changes that the member refers to throughout the various different sections are an efficiency thing. It’s consulted on with the panel conveners and there’s a lot of things that can happen contemporaneously or concurrently, as the member raises. In terms of resources, it’s a cost-recovery regime, as I think the member knows. As I was saying to, I think, one of her colleagues earlier, there’s the ability for contributions to comments and participation in the process by iwi and hapū. So that’s all I have to say, really.

Thank you, Madam Chair. Just confirming, related to the timing issues that there’s just been some discussion about, clause 29 amends section 50, “Panel convener sets up panel”. There was this provision in the bill as introduced that “(2) The panel convener must set up the panel within 15 working days ”. But I think that the Minister’s Amendment Paper has deleted that subsection (2). So if we could have some confirmation—yes, he’s nodding. I’ve got other questions.

Just in relation to that—yes. That didn’t go down well with people, so we’ve backtracked on that one. The feedback was voluminously negative. We’re a listening Government, so that has been deleted.

Thank you, Madam Chair. Good news, there, thank you for that clarification—or it’s not even clarification, is it? It’s confirmation—it’s a confirmation.

CHAIRPERSON (Barbara Kuriger): It was an answer.

It was an answer, that’s right. Thank you for the answer, Madam Chair! It’s great.

Now, maybe I will get a similar answer to this question. I want to move on now, although I invite the Minister to comment on—he’s made a number of changes, in his Amendment Paper (AP) 473, to new section 52A, inserted by clause 30. So clause 30 of the current bill is deleted, and then there’s a lot in the AP. I haven’t gone through a detailed reading of it and cross-checked it all, but if he can—[Minister rises to take call] Oh, he’s going to do that as well. And then I’ve got another question for him.

This is a good way to operate.

I mean, it’s all pretty straightforward. So, look, we’re keen to get people to crack on with the work, so new section 52A says the panel must, no later than five working days after the appointment of all panel members, commence work on a substantive application. The panel has to tell the Environmental Protection Agency on what date is commences work. The reason for that is that we have had some panels established, which everyone got very excited about, and then there was not the requisite progress.

💬 Hon Rachel Brooking: So, then, any time frame?

Not later than five working days, they have to commence work on a substantive application. They’ve got to get on with it. The whole point of this is to crack into it. It’s what’s in the name. It’s in the name. So there you go.

The Hon Rachel Brooking, working in the spirit of how this committee is supposed to work—question, answer, question, answer. It’s working quite well.

Thank you—[Interruption] Barrage. So, then, on to—I need to turn the page. I was getting to clause 33, which is an important one that many, many people submitted on, and this relates to “Section 53 amended (Panel invites comments on substantive application)”. The bill as introduced had a limit on subsection (3) of section 53. Subsection (3) of section 53 enables the panel to consult with whoever they thought was appropriate, but what the amendment in the bill as introduced said was, “Well, they can still get there, but first they have to go through the local authorities to see if the local authorities are going to comment on that matter or not.” We heard a lot about how this would be unworkable and how it would be the end of many participation rights in this process.

But I note that in the Minister’s Amendment Paper, subclause (2), which was “Replace section 53(3)”, has been deleted. So that means—and I’d like confirmation of this, as well—that we revert to section 53(3) of the Act, which does allow the discretion for the panel to invite comments from whoever they think is appropriate.

💬 Hon Chris Bishop: Yes.

Yes—he said yes. OK, thank you. That is a good change.

That’s good to know, because we did talk about that a lot in our differing view, as well. Given that there’s a few other changes in the sections in clauses 34, 35, and 46, with some deletions, it would be useful for the Minister to say if there’s anything substantive in them, but I’ll run right through to clause 40—no, he’s shaking his head. Nothing substantive, it’s all tidy-ups; rats and mice? OK.

Now we get to clause 40, “Section 66 amended (Return of substantive application)”. There’s a lot of sixes in this clause. There was a minor change, but now, by way of the Minister’s Amendment Paper, there’s a change in section 66, subsection (6)—66(6); I don’t see that very often—to “replace ‘50’ with ‘100’ ”. If the Minister could tell us what the “50” and “100” relate to, that would be useful, as well.

I’ll end my questions here. I note that we’ve already covered, to some extent, clause 42 with new section 68A—that was the question that the Hon Julie Anne Genter was just asking, about the reduction of scope.

💬 Hon Chris Bishop: That’s the suspension of applications. You can suspend it for up to 100 working days.

So under section 66, subsection (6), something can be suspended for up to 100 days, I’m hearing from the Minister.

💬 Hon Chris Bishop: Correct.

Thank you, Minister. Moving on to clause 42, about the “reduction of scope”: we’ve already discussed the change of wording, and I think that is a good one. I do just want to go to the criteria. At (3), the reduced project still has to have “significant regional or national benefits”, even though it’s reduced. I guess, because it is reduced—I do have a tabled amendment up that says, at 68B(1), at the end of it, “and does not increase adverse environmental effects”, but because this has to be a reduction, there’s no need for that criteria? The Minister is nodding—thank you.

Now, if I move forward, then, to section 79. This is clause 44 I’m on to now.

CHAIRPERSON (Barbara Kuriger): The Hon Rachel Brooking, I’m giving you another call. The member is operating in the spirit of efficiency, so she has another call.

Are you telling me I’m doing the Government members a favour? That doesn’t sound very good.

CHAIRPERSON (Barbara Kuriger): No, I’m telling you that you’re operating in the spirit of the committee stage, which is a question-and-answer session.

💬 Hon Chris Bishop: Parliament at its best.

CHAIRPERSON (Barbara Kuriger): Absolutely. I’m enjoying it.

Thank you, Madam Chair. Moving on to clause 44, “Section 79 amended”: this is the “Timing of panel decisions”. It is a clause that I’ve got a tabled amendment on to delete, and so does Lan Pham; hers got in earlier, but we’re both there. Why we have this deletion is because the time frame for the panel decisions as the bill was introduced does not exceed 60 working days, but I note that—and we heard a lot from the panel conveners—that 60 working days was totally unworkable, and that it would stop some people from agreeing to be chairs of the panels because they would not be able to, in good conscience, say that they could make a robust decision for complex projects—not the simple projects; just the complex ones—in that time frame.

I note that the Minister’s Amendment Paper has changed that 60 working days to 90 working days, and 90 working days is better than 60 working days. I presume that most of the approvals that have been through so far have actually been under 60 days, but the really complex ones have been under 100 days. Does the Minister want to comment on why that 90 days was chosen?

Well, the member makes the point herself: it’s just in response to the feedback that the 60 working days is unworkable, so fair enough, we’ve gone to 90 and there’s the ability to extend beyond that as well, of course, with agreement.

The Hon Rachel Brooking still has time on the clock.

Oh, thank you, Madam Chair. Is the Minister aware of analysis about whether that 90 days will always be enough in complex circumstances? I realise he’s just said that it can be extended, but I think it can only be extended if the applicant agrees to the extension—

💬 Hon Chris Bishop: Yes.

—and so the question is: is there analysis over that 90 days?

Well, I mean, that’s true. But it would be a pretty stupid applicant who didn’t agree to an extension if the panel convenors came in and said, “Now listen, this is pretty spicy, and we think it’s going to take us time to work through the issues. We’re going to need another month or something.” If I was an applicant I’d say yes, because if I didn’t, I’d be running the risk of my project being turned down. So I suspect in reality that these things will resolve themselves. But I think there’s also some merit in having a time frame. Sixty days was clearly not appropriate, so we’ve gone for 90. Reasonable people can disagree around the exact length, but I think that’s about right.

CHAIRPERSON (Barbara Kuriger): The Hon Rachel Brooking still has time.

Thank you—maybe Government members want to listen to the Chair of the committee of the whole House. Thank you, Minister, for that answer. Moving on now to clause 45, section 81 amended, “Decisions on approvals sought in substantive application”, I have a tabled amendment to delete this, because it does refer to “[they] must consider a relevant Government policy statement:” at new section 81(2)(aab). I think I have here in black pen—it’s my very technical analysis of the bill—that the Government Amendment Paper is deleting (aab), so that would mean they don’t have to consider a Government policy statement.

Then I have another question at new section 81(2)(aaa), which is that, for an unlisted project, they must “consider the Minister’s reasons for accepting the referral application”, and I’m wondering if the Minister can provide for us any context about what “consider” means and what the weighting is that he expects for “considering”?

CHAIRPERSON (Barbara Kuriger): You can continue and he’ll come back with the answers.

I will continue on—OK. I will continue on into clause 48. I note that I’m jumping over clause 46, which is about conditions relating to infrastructure, and I think other members will have questions on that particular clause. I know there’s an amendment from the Greens on that one, and also on clause 48, which is what I will move to.

Clause 48. “ New section 93A inserted (Directions to EPA) is a really important clause that we got a lot of feedback on as well, and I note that there have been some tweaks to this in the Minister’s Amendment Paper, but I don’t think they go nearly far enough. What submitters were really interested in here is that a Minister can meddle in giving directions to the Environmental Protection Authority (EPA)—they “may give a general direction to the EPA”. There are now some constraints relating to the—well, there were already constraints relating to the Crown Entities Act, but also a statutorily independent function.

I would be interested in the Minister’s comment on how the EPA will be protected from undue ministerial interference when we have had, on the day that this bill was introduced, the chief executive officer of the EPA resign and another Minister make some derogatory comments about him and how the culture of the EPA was all wrong. We asked the chief executive questions last week, in Scrutiny Week, about this issue, and he was very much clear that it is not the EPA that makes decisions; the EPA is following the fast track and has an administrative role.

And the chief executive of the Environmental Protection Agency (EPA) is right about that: they are, essentially, the administrative agency. I think a little bit too much is being read into clause 48, which is the directions to the EPA. It doesn’t interfere with their statutory functions. That would obviously be inappropriate. It’s really just to, you know—almost like it allows the Minister to write a letter of expectation to say, “We expect you to operate in accordance with the law and expeditiously and, you know, make sure that you’re providing good quality service to applicants.”

In relation to clause 45, I’m advised that the (aab) is there, but it’s a consequential amendment based around the other changes to the Government policy statement provisions that I think we’ve well canvassed.

Thank you, Madam Chair. Still going through, then, I’ll move on to clause 50, “Section 99 amended (Appeal against decisions only on question of law)”. I’m interested in how this relates to the earlier change that the Minister responsible for RMA Reform confirmed at clause 33, around section 53 and section 53(3) of the primary legislation now not being changed. I want to know how this appeal provision works given that that change we’ve already discussed has happened.

I welcome the new Minister in the chair, the Hon James Meager. So the Minister knows, I’m at clause 50, section 99. I have an amendment and Lan Pham has an amendment to delete clause 50.

But I want to know what now are the appeal rights of those people who have been able to make a comment under section 53(3), which is retained, in relation to this appeal section. The bill as it was introduced would have meant that these discretionary groups under section 53(3) would not have been able to have made an appeal—and there are transitional provisions that we will come to about this ability. So the question is: is clause 50 needed now that section 53(3) is reinstated? Madam Chair? I’ll keep going?

CHAIRPERSON (Barbara Kuriger): Keep asking the questions. We’ve got a replacement Minister, so we’re just working through.

Give him some time. Thank you for that.

Moving on now to clause 53, and this is related to an amendment to section 108: “Regulations may set fees, charges, and contributions”. I see that the Minister’s Amendment Paper 473 has made some changes so that rather than just excluding certain categories of costs, the regulations can now include certain categories of costs. I think that is an improvement. But my worry about this regulation setting is that it could be strengthened by being in accordance with section 10 of the primary legislation—that is the principles section that is in section 10—and the principle of full cost recovery.

The way that the Government has talked about this fast-track process for some time has been that one of the benefits of it is that if the applicant—if the developer—really wants to go ahead and do something, they are paying for this special process that they are getting through the fast track. My concern is that these regulation settings—where they set upper limits and they set criteria and they exclude certain criteria—means that that is a backwards step on that principle of full cost recovery.

We heard it again in Scrutiny Week—but I think in some of our submissions as well—and we understand that there has been tension with some applicants saying that people—and when I say people, I mean agencies—are doing too much. Local government agencies are treating the application as if it was an application made under the Resource Management Act, which is more extensive than an application made under the fast track, and, because of that, that is leading to additional costs.

Part of the answer is all of the rest of this bill that we’ve already talked about, which is to really confirm exactly what is required and when it is required. So I don’t understand why we need this additional step of regulations that cut what it is that the applicant will be paying for. I do have an amendment on this, and I would love the Minister to take it up, because it is really bringing back this idea of full cost recovery, which is something that I’ve heard the Government talk about a lot.

Thank you, Madam Chair. I’ll address the question around appeal rights. This is in relation to section 99, inserted by clause 50. The Government considers that when an invitation is made, that is discretionary—so an invitation to comment doesn’t automatically mean that parties should also have a right to appeal—but that judicial review is retained. It would be a significant policy shift to remove the right for judicial review. The bill does also include savings provisions to preserve appeal rights for those that have already been invited to comment.

I’m just going to give the Hon Rachel Brooking one more call because there’s a couple of other pieces that you’ve alluded to that you were going to ask some questions on.

Yes. Well, I haven’t had an answer then on the regulations. That was quite a long contribution I gave there, and I would like the Minister to answer that. Look, my final point before yielding to other members—not yielding specifically—

CHAIRPERSON (Barbara Kuriger): The Minister’s just asked if you could just repeat the question on the regulations.

Yes. The question was about clause 53, amending section 108. This is that regulations can be set. My point was that the Government has talked about this whole process, the whole fast track, as being cost recovery so it’s not a burden on taxpayers or ratepayers; if somebody wants to do a big project, then they can pay for it. My concern is that this regulation-making power is undermining the cost recovery principle. I have put up a tabled amendment that would import a cost recovery principle into this regulation-making power. Apologies for repetition, but the Minister asked.

I was noting before that there has been some tension around what councils in particular, I think, have been charging for and seeking cost recovery for, because under the Resource Management Act (RMA) they’re used to doing a bigger piece of work—the Minister in the chair referred to this earlier; Minister Bishop referred to this earlier. We have all these other provisions of this Act that set more constraints and give more clarity on exactly what it is that those local councils have to do so they won’t be overdoing that work, because the point is that in the RMA, you produce more; in the fast track you don’t produce as much. You might have issues with—that’s the legislation. Why is it that we need regulation to set upper limits if this is all about cost recovery and those other issues about councils may be doing too much have now been constrained by the earlier provisions that constrain them to only relevant issues under the Act. That was my question about regulations.

Just before you stand up, I’ve just got a very small comment to make on the “Henry VIII” clause, and that’s simply that I have an amendment to delete that and I think that would be a very good thing to do.

CHAIRPERSON (Barbara Kuriger): Do you have other questions while you’ve still got some time on the clock?

No.

CHAIRPERSON (Barbara Kuriger): Nope, you’re all good.

Thank you, Madam Chair. Just to clarify, the purpose of the regulation-making power there is that the advice is that the current powers are actually insufficient to provide the clarity needed to—well, councils and applicants have been asking for clarity about what is and what isn’t out of the scope of “full cost recovery”. Up until now, I’m advised, the current powers were insufficient to provide that clarity. The intention is still to provide full cost recovery, but this gives the ability to do that. I’m advised that before this change was made, that ability was not there.

I’m going to take a call from Lawrence Xu-Nan, just bearing in mind that a lot of ground has been covered on this part, so I’m looking for new questions on new parts that we haven’t covered.

Thank you, Madam Chair. In addition to your direction, Madam Chair, I also have a number of amendments on some of the sections that haven’t really got the full consideration from the Minister, as well, so if I can also speak to some of my amendments on those sections.

CHAIRPERSON (Barbara Kuriger): Yes, as long as you do it really quickly. I wouldn’t like to suppose that the Minister hasn’t given them consideration, because he has likely seen them.

Cool. Thank you, Madam Chair. I want to start with continuing on from some of the conversations we’ve had in terms of clause 44. Now, one of the things that has been asked by officials is the requirement to extend 90 days. My amendment over here, if the Minister wouldn’t mind considering, is an extension of the 90 days to 120 days, noting that it is a substantial amount of work—and potentially paperwork—for the panel to consider some of the decisions that are required when it comes to an approval process.

I want to check with the Minister in terms of the interactions between clauses 44 and 45, because I don’t think we’ve actually touched on clause 45, and noting that the Minister has made a number of changes in Amendment Paper 473 that are not a recommendation in a departmental report or something that we’ve seen from a public perspective, I wanted to check with the Minister if clause 45 is something that the Minister wouldn’t mind elaborating on: why we’re seeing a deletion of subclause (2)—and also a replacement of subclause (4).

Also, moving on, I note that the previous speaker, the Hon Rachel Brooking, has travelled to, in some ways, the end of Part 1—but noting that the Greens haven’t actually had a chance to contribute to some of the later sections to this. We’d like, really, just to get a few thoughts and clarities from the Minister.

The next one we’re looking at is clause 48, when it comes to new section 93A. I do have a tabled amendment on this, and the reason I proposed this particular amendment is—unless the Minister is able to clarify that the wording that’s being used under clause 48, new section 93A(5) is the same as the recommendation as we’ve found in the departmental report. The reason that I put my amendment in there—which is in clause 48, new section 93A(5)(b), after “may not give directions”, insert “including directions to a Crown entity under section 113 of the Crown Entities Act 2004”. Now, noting that, in new section 93A(5)(b), it does say that “any matter in respect of which this Act provides that Ministers of the Crown may not give directions.”, what I’m not entirely clear on is whether that then also includes or encompasses a Crown entity under section 113 of the Crown Entities Act.

Now, in the departmental report, the recommendation is, for added assurance that the general direction cannot undermine the Environmental Protection Agency’s (EPA) independence, a reference should be made explicitly to section 113 of the Crown Entities Act 2004. I just want to check with the Minister if new section 93A(5)(b) naturally captures that; if not, would the Minister consider my amendment, which is the recommendation from the department?

Moving on, I do want to check—and I’m really glad that the previous speaker picked up on clause 53 around regulation-setting fees. I wanted to check if there’s any consideration, at any point, where the cost recovered extends beyond what is considered the definition of a “fee” and potentially wading into tax territory—as in, is the cost recoverability going to be used for things outside of the expectations of section 104 of the principal Act? And that’s also substantially different from the conversation that we’ve had previously.

Finally, I just want to check with the Minister on clause 54, and I do have an amendment to this. Noting that Minister Bishop mentioned that this a “Henry VIII” clause, but I think that there is a bit of downplaying of what the “Henry VIII” clause would potentially entail—Madam Chair, I am almost done. This is my last point.

CHAIRPERSON (Barbara Kuriger): OK. Last point—last point.

Last point—and just to say that I have an amendment to amend new section 117A(3), inserted by clause 54, because I do worry, in terms of the scope of what is going to be done, although it says that there is going to be no new projects added to the list—but I think it is prudent to consider how ancillary activities or additional works may be added into that as part of Order in Council, noting that the Minister did say that this potentially could be a concern.

The other question I have for the Minister is that, in general, when you look at something like an Order in Council—and particularly when the Minister himself acknowledged that this is a “Henry VIII” clause, there is usually some sort of checks and balance, in terms of a review or a recommendation of what the Minister is going to be able to produce, like a report. We’ve seen that in the immigration fiscal sustainability paper as well, where the Minister is going to actively release some of the changes, etc. I’m just checking that that is captured within new section 117A(1); if not, just checking if the Minister would consider my tabled amendment.

Thank you, Madam Chair. There was a bit of a potpourri of questions there from Dr Xu-Nan, so I’ll do my best to take them in order. So from the top, the question was asked about whether we would support an amendment to the time frame in clause 44 of Amendment Paper 473, from 90 to 120 days. I think Minister Bishop covered that off earlier in the debate by saying that it’s arguably the way—it’s finely balanced, but the extension from 60 to 90 days was seen as a pretty reasonable extension to go to, and I’d just note that, I think, that apart from one application, all applications to date have been processed in less than 90 days. So I think it’s a reasonable limit to go to.

The next question was around why add, in clause 45 of the Amendment Paper, the reference to section 42(1)(aa) as well as “or (b)”. That’s because that is a new section which is being included in Amendment Paper, and it needs to be referred to alongside paragraph (b) as well, so that’s why it’s in there.

The question around does clause 48 reflect the Crown Entities Act, yes clause 48 is amended in the Amendment Paper to reflect section 113 of the Crown Entities Act

Then I think I’ll just try and cover off that last question around what review mechanisms or oversight is in place for what you’ve described as “Henry VIII” clauses. Because they are done by Order in Council, they are subject to both judicial review oversight by a regulations review panel and all the principles around proper lawmaking. So any Order in Council would have to be within scope of the power envisioned by the regulation-making power, but it would have to be with consistent rights of natural justice. All of those are considerations that the Regulations Review Committee would take into account, but judicial review would take them into account as well, and so there is oversight for those kinds of changes.

I move, That debate on this question now close. [Interruption]

I’m seeking a vote. The question is that debate on this question now close.

The question is that Dr Lawrence Xu-Nan’s tabled amendment to Amendment Paper 473 amending clause 5, new section 10A(3), to insert paragraph (c) requiring consultation with “relevant iwi authorities, hapū, and Treaty settlement entities”, be agreed to.

The question is that Dr Lawrence Xu-Nan’s tabled amendment to Amendment Paper 473 amending clause 5, new section 10A(3), to insert paragraph (c) requiring consultation with “relevant local authorities”, be agreed to.

The question is that Dr Lawrence Xu-Nan’s tabled amendment to Amendment Paper 473 amending clause 5, new section 10A(3), to insert paragraph (c) requiring consultation with “relevant environmental organisations”, be agreed to.

The question is that Dr Lawrence Xu-Nan’s tabled amendment to Amendment Paper 473 amending clause 5, new section 10A(3), to insert paragraph (c) requiring consultation with “the Parliamentary Commissioner for the Environment”, be agreed to.

The question is that Dr Lawrence Xu-Nan’s tabled amendment to Amendment Paper 473 amending clause 6, section 11, to allow “30 working days”, be agreed to.

The question is that Dr Lawrence Xu-Nan’s tabled amendment to Amendment Paper 473 amending clause 44, section 79(2)(b)(ii), to provide a “120 working days” time frame, be agreed to.

The question is that Dr Lawrence Xu-Nan’s tabled amendment to Amendment Paper 473 amending clause 48, new section 93A(5)(b), to include “directions to a Crown entity”, be agreed to.

The question is that Dr Lawrence Xu-Nan’s tabled amendment to Amendment Paper 473 amending clause 54, new section 117A(3), to include “ancillary activities and additional works”, be agreed to.

The question is that the Minister’s amendments to Part 1 set out on Amendment Paper 473 be agreed to.

The Hon Rachel Brooking’s tabled amendment to the definition of “relevant portfolio Minister” in clause 4(7) is out of order as not being in a correct form of legislation.

The Hon Rachel Brooking’s tabled amendment to clause 5, new section 10A, to delete subsections (2) and (3), is out of order as being inconsistent with a previous decision of the committee.

The question is that the Hon Rachel Brooking’s remaining tabled amendments to clause 5, new section 10A, be agreed to.

The question is that Lan Pham’s tabled amendment to clause 5, new section 10A, to insert new subsection (7), be agreed to.

The question is that Mariameno Kapa-Kingi’s tabled amendment to clause 5, new section 10A, to insert new subsection (7), be agreed to.

Lan Pham’s tabled amendment to delete clause 6 is out of order as being inconsistent with a previous decision of the committee.

Mariameno Kapa-Kingi’s tabled amendment to clause 6, to replace the section 11 heading and text, is out of order as being inconsistent with a previous decision of the committee.

The question is that Mariameno Kapa-Kingi’s tabled amendment to clause 6, section 11(1)(a), to insert new subparagraph (iii), be agreed to.

Mariameno Kapa-Kingi’s tabled amendment to clause 6, to replace section 11(3), is out of order as being inconsistent with a previous decision of the committee.

The Hon Rachel Brooking’s tabled amendments to clause 7 and 14 are out of order as being inconsistent with a previous decision of the committee.

The question is that the Hon Rachel Brooking’s remaining tabled amendments to clause 6 and 23 be agreed to.

Lan Pham’s tabled amendments to delete clauses 9(2) and 14 are out of order as being inconsistent with a previous decision of the committee.

The question is that Lan Pham’s remaining tabled amendment to delete clause 18(3) be agreed to.

The Hon Rachel Brooking’s tabled amendment to delete clause 9(2) is out of order as being inconsistent with a previous decision of the committee.

The Hon Rachel Brooking’s tabled amendment to delete clause 9(6) is out of order as not being in the correct form of legislation.

The question is that the Hon Rachel Brooking’s remaining tabled amendments to delete clause 18(2) be agreed to.

The question is that Lan Pham’s tabled amendment to delete clause 9(4) be agreed to.

The question is that Mariameno Kapa-Kingi’s tabled amendment to clause 9, section 17(6), be agreed to.

The question is that the Hon Rachel Brooking’s tabled amendment to clause 10, section 18(3), be agreed to.

Mariameno Kapa-Kingi’s tabled amendment to clause 10, to delete the replacement of section 18(3) and (4), is out of order as being inconsistent with a previous decision of the committee.

The question is that Lan Pham’s tabled amendments to clause 12 be agreed to.

Mariameno Kapa-Kingi’s tabled amendment to clause 19, to replace section 37A(2), is out of order as not being in the correct form of legislation.

Lan Pham’s tabled amendment to delete clause 21 is out of order as being inconsistent with a previous decision of the committee.

The question is that Lan Pham’s tabled amendment to clause 25, section 46, to insert new subsection (2D), be agreed to.

The question is that the Hon Rachel Brooking’s tabled amendments to clause 26 be agreed to.

Can I say that both Labour and National caucuses should know that we don’t have debates across the Chamber while we’re voting. Thank you.

The Hon Rachel Brooking’s tabled amendment to clause 29, new section 50, is out of order as being inconsistent with a previous decision of the committee.

Lan Pham’s tabled amendment to delete clause 33(2) is out of order as being inconsistent with a previous decision of the committee.

The Hon Rachel Brooking’s tabled amendment to delete clause 33(2) is out of order as being inconsistent with a previous decision of the committee.

Mariameno Kapa-Kingi’s tabled amendment to delete clause 34(4) is out of order as being inconsistent with a previous decision of the committee.

Lan Pham’s tabled amendment to delete clause 42 is out of order as being inconsistent with a previous decision of the committee.

The question is that Mariameno Kapa-Kingi’s tabled amendment to clause 42, new section 68A, to insert new subsection (3A), be agreed to.

The Hon Rachel Brooking’s tabled amendment to clause 42, new section 68B(1), is out of order as being inconsistent with a previous decision of the committee.

Lan Pham’s tabled amendment to delete clause 44(1) is out of order as being inconsistent with a previous decision of the committee.

The Hon Rachel Brooking’s tabled amendment to delete clause 44(1) is out of order as being inconsistent with a previous decision of the committee.

Mariameno Kapa-Kingi’s tabled amendment to clause 44, to replace section 79(2)(b), is out of order as being inconsistent with a previous decision of the committee.

The question is that the Hon Rachel Brooking’s tabled amendment to delete clause 45(1) be agreed to.

Lan Pham’s tabled amendment to delete clause 46 is out of order as being inconsistent with a previous decision of the committee.

Mariameno Kapa-Kingi’s tabled amendment to delete clause 46 is out of order as being inconsistent with a previous decision of the committee.

The question is that Mariameno Kapa-Kingi’s tabled amendment to clause 46, to insert new section 84A, be agreed to.

Lan Pham’s tabled amendment to delete clause 48 is out of order as being inconsistent with a previous decision of the committee.

The Hon Rachel Brooking’s tabled amendment to clause 48, to delete new section 93A, is out of order as being inconsistent with a previous decision of the committee.

Mariameno Kapa-Kingi’s tabled amendment to delete clause 48 is out of order as being inconsistent with a previous decision of the committee.

The question is that Mariameno Kapa-Kingi’s tabled amendment to clause 48, new section 93A, to insert new subsection (5), be agreed to.

The question is that Lan Pham’s tabled amendment to delete clause 50 be agreed to.

The Hon Rachel Brooking’s tabled amendment to delete clause 50 is out of order as being the same in substance as a previous amendment.

The Hon Rachel Brooking’s tabled amendments to clause 53 are out of order as being inconsistent with a previous decision of the committee.

Lan Pham’s tabled amendment to delete clause 54 is out of order as being inconsistent with a previous decision of the committee.

The Hon Rachel Brooking’s tabled amendment to clause 54, to delete new section 117AA, is out of order as being inconsistent with a previous decision of the committee.

Mariameno Kapa-Kingi’s tabled amendment to delete clause 54 is out of order as being inconsistent with a previous decision of the committee.