Public Works (Critical Infrastructure) Amendment Bill

We come first to the Public Works (Critical Infrastructure) Amendment Bill. We begin with a debate on Part 1. This is the debate on clauses 4 and 5, “Amendments relating to acquisition or taking of land for critical infrastructure projects”. The question is that Part 1 stand part.

Kia ora, good evening, Mr Chair and members of the committee. I’d like to start by making a few introductory remarks relevant to this part, and, actually, at the risk of testing the patience of the Chair at this early stage, more generally regarding the bill. Thanks to those who have provided input through the select committee process, as acknowledged at the second reading, in anticipation of a good discussion and debate tonight.

As colleagues will know, the purpose of the legislation is to ensure that the Public Works Act regime, which of course is crucial for acquiring land and managing land to support infrastructure projects—and, of course, it’s ownership interests, but also other interests, as well. We need that to support infrastructure projects for the benefit of the people of New Zealand as a whole, but respecting, of course, the private property rights of landowners from whom that land or that ownership or other interests in land is taken or held.

The finite group to which this legislation, as critical infrastructure, applies relates to approvals under Schedule 2 of the Fast-track Approvals Act—public works, obviously, within that regime—and also the roads of national significance as defined and as listed in the Government Policy Statement on land transport 2024. Often, there are costly delays in terms of acquiring land—you know, in the ownership sense, again, or some other interest in land relating to these projects—and colleagues around the House in their respective areas of New Zealand will know that. Of course, the cost properly relates to compensation for landowners—albeit that we could, and indeed will, be more generous in that space—but also the opportunity cost that a community suffers when they don’t have the ability to see that road or rail or other transport network built in a timely fashion, or the flood protection works or other mitigation of natural disaster-type infrastructure, and so on.

We aim for a faster and fairer regime—and those two concepts are not mutually exclusive in my mind—such that we have an accelerated process being proposed by this legislation that will aim to address the key areas to efficient delivery. Key mechanisms within the bill, and more particularly the part that we’re about to examine, are around early acquisition by agreement. Of course, there are existing mechanisms in the Public Works Act for that, and so this is building on those processes and, more particularly, making them faster, but increasing the compensation levels and also introducing, in terms of the process, a written submission as opposed to the right to object to the Environment Court, where, of course, much of the delay and uncertainty and cost is currently accrued.

I should be clear for the committee members: “protected Māori land”, as defined under the Public Works Act—which is detail that we may wish to explore tonight—cannot be acquired under the critical infrastructure process. For various reasons, we thought it proper to enable or continue the regime for protected Māori land, as defined, to continue to have recourse to the Environment Court, but to enable premium payments eligibility for such land if that is ultimately acquired for a critical infrastructure project using the standard Public Works Act process.

In summary, the changes outlined will enable the faster delivery of critical infrastructure that we need and deserve as Kiwis to support and grow our society and the economy. Finally, I give notice to the House that I intend to introduce an Amendment Paper that makes minor and technical changes, some literally in the realm of changing the grammar of singular to plural—or perhaps it’s the other way around—updating cross references, and nothing particularly substantive. But again, colleagues may wish to examine that Amendment Paper—or, indeed, any of their own—and I look forward to that debate and discussion tonight.

Mr Chairman, thank you very much. Labour will have some decent discussions and questions with the Minister as we go through this bill. We do support it, but it is a very important piece of legislation, because it goes to the heart of, I guess, a process that has been respected across New Zealand for a long, long time. Building the critical infrastructure the community needs, as the Minister said, is something that I think most parties and most Governments have always supported. But the balance between property rights and property responsibility, I guess you might say—public responsibility—is the balance that we’re always trying to keep here. At a time when the Government’s pushing through reforms to the Resource Management Act (RMA) with the focus on property rights, they’re also bringing into the House this piece of legislation which is actually stepping over private property rights—for good cause, we accept. The particular projects that the Minister mentions here are in the schedules, and they’re specific projects. So this bill doesn’t provide unlimited changes to the Public Works Act, but it does, in Part 1, as I say, relate to the acquisition or taking of land for critical infrastructure projects. They are listed.

The question I have of the Minister is: did he or did the Government consider actually expanding this out to be wider, to take into account necessary changes or these changes relating to future projects? If so, why was the decision made not to include them in the schedules here? I mean, it is a critical one, because I think there will be people—submitters were suspicious of what the Government was doing here, overriding their rights, not providing them with the ability to automatically review, to go to the Environment Court. As stated, what this does is take away the ability of landowners to go to the Environment Court. They can go and seek a review to the Minister.

The Minister for Land Information holds quite a critical role. While I do respect Land Information New Zealand as a Government agency and the processes that they have run, this is aimed to fast track or to speed up the process. In doing so—anyone who runs too fast will trip over from time to time. If this Government is focused on an obsession with property rights, because that’s what it sounds like in some pieces of legislation or changes, then how—and the Minister may be able to explain—have they reached the balance between enhancing property rights through the changes to the RMA and then being prepared to actually roll over them here? It is a fine balance. I think we have always, as a Labour Party, attempted to find that right balance, probably ensuring that the wider public objectives are first and foremost. Of course, property rights are to be respected, but ultimately, you know, we’re here for a short time.

So the questions to the Minister are really around those two questions, and maybe he’ll take a call and answer. I have plenty of other points to raise.

Thank you very much, Mr Chair. I’m grateful to the member Damien O’Connor for those thoughtful questions, and I know that as a former Minister for Land Information himself, he will understand some of the balance and the considerations that we are seeking to achieve. He has rightly referred to that balance of rights and responsibilities, and I’m grateful to him for mentioning his faith in the officials of the Land Information New Zealand network, regime, or agency, even.

I think he’s right to pose the question about whether changes could be more broadly applied. Obviously, we’ve got specific projects listed in new Schedule 2A, and the short answer is yes, in the sense that we know that reform to the Public Works Act more generally is needed. There is the work of an expert panel that we’ve convened—an independent panel, I hasten to add—to consider ways that we could make the Public Works Act more efficient in a targeted manner. It is not undertaking a full review of its provisions—for example, it is not looking at questions of disposal—but it is to think more generally about changes that could help in all manner of public works infrastructure. There is work under a separate piece of legislation that is also making its way through this House, or it will continue to do so, as opposed to the critical infrastructure - specific amendments that are being made by this legislation.

In terms of his point around running fast and at the risk of tripping over, again I note that—well, if one is to run fast and not trip over, one needs good balance. There’s that point again, and I suppose in terms of the mechanisms that provide some comfort to a landowner that his, her, or their property rights will be respected, not only should there be, obviously, robust decision-making by the decision maker, of course—being the Minister for Land Information or the local government entity, as the case may be—backed by official advice, but if that decision maker were to be unreasonable, then by definition that would be potentially subject to judicial review in the High Court, as compared with the Environment Court. There is a measure of a separate branch of Government protection in terms of testing those rights, and recourse to the Land Valuation Tribunal will remain such that in a dispute over the deemed or determined value of the land, that would still be available to landowners.

Again, we’re seeking to strike a balance, and I suppose that the only other point in terms of the weight of decision making that would rest with the Minister for Land Information is that I do note, of course—as the member himself will know, having held that role—that one decides on matters of overseas investment for those seeking, as overseas persons, to invest in this country under the overseas investment regime. While that’s obviously a separate matter from this, it’s not without precedence, even in terms of that particular ministerial role, to be asked to make reasonably weighty decisions in terms of property rights and dealings with land in a way that we expect and hope in the case of both regimes will be, ultimately, to the benefit of New Zealand.

Thank you, Mr Chair. I am just interested in Amendment Paper 350, in the Minister’s name. At clause 5, there is a new insertion of 39AAH(1AA)(a)(v), and it’s about notices of requirements that were lodged under the Natural and Built Environment Act 2023—an Act I was just talking about in relation to a different bill.

Under that Act—the Natural and Built Environment Act—there was a fast-track process, and even though the Natural and Built Environment Act got repealed in December 2023, not all of it got repealed, and some of the fast-track provisions were not repealed and remained in existence. Then, in 2024, this Government introduced and passed its own Fast-track Approvals Act—quite different. But what this amendment is doing is referring to fast-track that was in the Natural and Built Environment Act and was, I think, rolled over; I presume that this is what it is. It was alive, the fast-track process, for some time—around a year, maybe. Maybe the Minister can comment.

But my question, really, is to try and work out how many projects will be included in this, by this amendment. How many projects did the Natural and Built Environment Act 2023’s fast-track provisions allow to roll on a bit longer than when the rest of the Act was appealed in 2023? How many projects actually had a designation, or altered designation—and if the Minister doesn’t know, is he able to find out—and what analysis has been done to work out how many of those projects will be included, and, therefore, included in this legislation?

Thank you very much, Mr Chair. I think the answer to that will be knowable—it’s not known by me now. I will undertake, if possible within the period of time within the committee of the whole House stage, to furnish the member with that. She’s more familiar than me with the Natural and Built Environment Act—indeed, before its creation in the form of legislation—so she will no doubt be intimately aware of the way in which that provided some manner of fast-track process, albeit with a lower case “f” and “t”, as opposed to the bill.

Hon Rachel Brooking: No, no, it was faster. No, it was faster; it just didn’t override the environment.

Hon CHRIS PENK: OK, well, the member can have her views and debating points on other legislation—

Hon Rachel Brooking: Oh, and I do—and I do.

Hon CHRIS PENK: And she does, but in another forum would be more appropriate—I know that the Chair is thinking. If it’s possible to know that answer—and we have excellent colleagues from Land Information New Zealand, including no less an authority than the commissioner for lands—then I will certainly share that with the member.

In fact, it might be right now that I’m able to say that the fast-track provisions remain in existence—those under the Natural and Built Environment Act, before, of course, the Fast-track Approvals Act, as the member knows. In terms of how many were applied for under that prior legislation, officials are aware of one project: Cambridge to Piarere. If there are any more than that, then no doubt we’ll hear in due course. But for now the answer is just that one.

Just to clarify: that was a roading project that you were referring to there, Minister?

Yes.

Thank you. My query, really—well, let’s begin with that. We do certainly have an infrastructure deficit, as the regulatory impact statement points to. I’m mindful that it’s been 63 years since we’ve had rail-enabled ferries until today, and this is clearly an infrastructure deficit that sits at this Government’s table.

But I note here that the options here are going to be limited to critical infrastructure projects. The query I really have is about what does the Government consider critical. When I look through the list, I can certainly see that there are some that I could consider critical. I think the Ashburton second urban bridge is certainly needed, given the flood risk we’ve had. We’ve been cut off before. But not all roading projects would be, arguably, critical in this, so I’m interested in the criteria that the Minister for Land Information is using to determine what critical infrastructure is. “Critical”, to my thinking, is more that lifeline infrastructure, and there are many, many projects that are listed here that clearly are not lifeline infrastructure.

Now, I think that what is also missing here is what is the carbon cost of those infrastructure projects, or is there any evaluation of what the carbon cost might be? If we had, for example, a Ministry of Green Works, that would be a requirement for critical infrastructure, for lifeline infrastructure, to measure the effectiveness and its carbon content as well.

A question I have for the Minister is: is there any ability and willingness to look at the carbon cost and whether we can tie down “critical” to a tighter definition? At the moment, it doesn’t seem as though many of the projects are as essential or critical as the bill tends to argue for.

Also, as the Minister will note in our differing view, we really have concerns about the rights of Māori and other landowners to appeal against a Government decision to take their land. If we could make a strong case why we needed infrastructure, whether it was lifeline infrastructure, and in what way it was critical, it might be more acceptable to override those concerns about taking land in a shorter time frame, but this truncated process doesn’t seem to hold water when we haven’t got a good definition of why it’s so important to make this change here and now.

So coming back, I guess, to my main points, if we can better define what critical infrastructure is, whether it is in fact lifeline infrastructure, and whether we are going to be able to look at its environmental and its climate impacts—whether those can be considerations that we have as well—I think that would be really, really helpful, if the Minister would like to respond. Thank you.

Thank you very much, Mr Chair, and I thank the member Scott Willis for his thoughtful questions. He’s critical, in the other sense of that phrase, of, I suppose, the way in which we’ve arrived at the definition of “critical”, potentially. But in any case, it is a certain matter that the projects listed in the schedule are those included in critical infrastructure. By way of definition, I suppose I can do no better than to point to those specifically and to say that the reason they have been included in the schedule is precisely because they are capable of approval under Schedule 2 of the Fast-track Approvals Act, or of being roads of national significance as defined in the Government policy statement.

Of course, reasonable minds can differ on the criticality or the essential nature of such projects. I note, in the case of a couple that affect my own electorate—the Northwest Rapid Transit, for example, which is going to be about public transport infrastructure to serve the growing north-west Auckland. You know, we in north-west Auckland certainly regard that as quite critical and essential. I should actually note, for the sake of propriety, that any matters in here that would relate to my own electorate for which I’ve been advocating would not be handled by me particularly as the decision maker, notwithstanding that it would be, all things being equal, the Minister for Land Information. I would simply recuse myself, and, indeed, I have indicated that I won’t be a decision maker for reasons of, effectively, having a conflict of interest.

Just to return to the Hon Rachel Brooking’s question, particularly about the heritage of the Cambridge to Piarere project, I note that as listed it states that it’s to develop roading and associated infrastructure “from the southern end of the Waikato Expressway at Cambridge to the intersection of State Highway 1 and State Highway 29 at Piarere”, which, to the member’s point, I suppose some might regard as critical and some might not. In any case, they are included for the reasons that I’ve set out previously.

As to whether the carbon costs or other sustainability considerations have been taken into account, the answer is: not in this legislation. But by virtue of having been included under those other regimes, it’s possible to have a view on the economic and also social and also environmental benefits and costs associated with those under those separate regimes.

In terms of Māori land owners, as I’ve stated, protected Māori land is defined as separate from the regime in the sense that such landowners will have recourse to the Environment Court still, for historical reasons—acknowledging that previous versions of the Public Works Act and previous administrations have used that as a mechanism for confiscation of land, and also acknowledging the complexities of some of the ways in which those lands are held. The definition of those is knowable from section 11 of the Infrastructure Funding and Financing Act 2020. I won’t set them all out here today, unless members wish me to read them, but suffice to say there’s a pretty broad swathe of types of land that are included as protected Māori land and therefore outside this regime, except for the purpose of eligibility of premium payments.

Just for the awareness of the committee, Part 1 and Schedule 2 are two separate debates, but they are linked—acknowledging that the Minister and questioners so far have noticed that link, but just for other members as well. So if you are talking about Schedule 2, it has to be in relationship to how it relates to Part 1.

Tēnā koe e te Tiamana. Just bringing the Minister to his Amendment Paper 350, the insertion in clause 5 of the new section 39AAH(1AA)(a)(v). Thank you for that explanation about the project here being State Highway 1, Cambridge to Piarere. That’s helpful, because we do find ourselves now in need of an explanation, then, about why this is a listed project. It is one of the projects which is set out in Schedule 2. Given that it is in Schedule 2, we then find ourselves scratching our heads about why you would need this new special provision in (v) to empower a project which has already been consented.

It seems here that what has happened is there will be projects which between August 2024 and December 2024, when it was “live”, as the Hon Rachel Brooking has described the legislation—you know, it was in force and then was repealed, and then there were provisions which, because of the transitional and savings provisions of the repeal, continued to be in force. Are there projects which in that period were consented under the old regime and are trying to be saved by this (v)?

The reason why we are asking is because we want to understand if there aren’t projects there, as I think the Minister has said, then what is the providence of this, and is it because there might have been projects that have been missed and we don’t know about which the Minister might then want to use these special provisions for? That’s relevant because, you know, to the average person on the street, we are considering a regime here where if you were the subject of a public works notice, say, in my electorate around the Puhinui train station, and you are a very aggrieved landowner there and are working with your local MP—hardworking local MP; you have lots of public meetings about this issue—then you are not eligible for this process. But if you are one of these people who is now newly eligible for this new regime, you are eligible for a somewhat more generous process.

It does make a big difference to people. That’s why I’m asking. If it’s not needed, then why is (v) there? And if it is needed, then there are some other projects that are not set out in Schedule 2, which we are talking about here—or is it that it’s just unclear and this is a sort of belts and braces approach? That would be helpful if we could set that out.

I also have some questions about the Māori land issues here. It’s really important to Labour’s support for this bill that we have robust protections around Māori land. The committee was well served in hearing from the New Zealand Transport Agency that they did not require any land defined as protected Māori land for the first three projects. That was a helpful discussion to be able to have. It’s also helpfully set out in the regulatory impact statement that Crown Law was able to meet with Land Information New Zealand officials to work through any Māori land issues there and did not flag up, in the beginning, any issues for the implementation of this new provision that would affect Māori land.

We just want to square off with the Minister whether anything in his new Amendment Paper would affect Māori land, whether it’s been through the same process with Crown Law, and also whether he considered any amendments working through the committee process. Obviously, a huge number of submitters to that process raised issues with fairness for Māori land owners, and for not only a deep mistrust in the State from a historical perspective but now there are real concerns there that I think we will acknowledge in this House that owners of Māori land still have around State-sanctioned takings of Māori land. This is still something that affects whānau Māori, and it is not a historical injustice; this something that they deal with now.

So we want to be clear that if we are engaged in changing the way that Māori land will be taken for these projects, in fact Māori land owners are in a better position, because this is what we think on this side of the House—that these provisions will empower Māori land owners to be able to be involved with the Crown at the beginning of these projects and to have, sort of, an insight into what is developed there, and that is really important to our continued support.

Thank you, Mr Chair, and I thank the member for her questions. In relation to the Puhinui train station and other projects that have obtained consent but don’t apply for the regime, the member describes the general problem, of course, of when you introduce legislation that you’re confident will improve or be a more appropriate system, and the question is, then, always to what extent do those part-way through being processed under the previous regime get the benefit, or not, of the new regime. The answer is: those projects that are listed, including the one under the NBE—excuse the shorthand: the Natural and Built Environment Act—are included and those that are not, are not.

I suppose, at least in the case of the likes of Puhinui train station and its associated land acquisitions, with which the members are more familiar than me, they will be affected under the regime that existed already and was known to exist. They’re not any worse off, in the sense that we are now improving the system which will improve lives, we think, for others in relation to other projects.

As for whether Māori land is affected by the Amendment Paper in my name, the short answer is no. But is the member correct to note that the historical injustice associated with the Public Works Act acquisitions are something to which we should take note and be mindful? The answer, of course, is yes. I acknowledge that point deliberately, upfront, because of course there is that historical uncertainty—or injustice, in fact.

In terms of the point that she’s made around—well, in fact, in the form of Amendment Paper 350, her proposal is that we qualify the ability for this regime to apply where a notice of requirement is lodged under the Natural and Built Environment Act 2023 “only when that project is well supported by the community it will serve and affect”. I think, as the member I’m sure will know, with her own legal background, that is not nearly certain enough to be able to determine whether a project would be eligible or not.

Thank you, Mr Chairman, and I’m sure that people who have tuned in on this debate tonight might not have any idea of what we’re talking about here, and, just to give it a bit of context, it is the process of taking land from people around the country for infrastructural projects. The list, as I’ve referred to before, is in new Schedule 2A, and the process is really important. The Government has made some amendments that we’re supporting, and the Minister for Land Information may be able to answer some questions.

The first one is around the payment—the compensation, if you like, or call it what you like—and how the Government arrived at that figure. The Transport and Infrastructure Committee did have a look at this, there were submissions on it, and some adjustments were made on the basis of whether the landowner initiated the negotiation or whether it was the Crown, and that made, potentially, a difference between 5 percent and 15 percent for compensation payments. Without, at this stage—because I haven’t referred to Māori protected land, and that’s in Part 2, and I’ll ask some questions of the Minister there. But on this one, what was the rationale for that, because some people did have views that this might add to the value of land unnecessarily and that there might be some gaming by people who might land bank, and they were just making sure that the taxpayer wasn’t extorted or, I guess, held to ransom—and, indeed, this bill is about speeding up a process where there have been occasions where landowners have held out and have held up critical infrastructure developments. So it is around the intent just to oil the process, I guess, and the Government came out with 5 percent or 15 percent.

The other questions I have are around the time frames. Again, the objective of the bill was to speed things up alongside the fast-track process, and the Government’s proposal for this was that within 10 days, the officials or the people in the system would have to respond. The select committee had a look at that and said that, actually, it was a bit unreasonable, and so it extended that out to 20 days. I guess that at every step of the way, the question that I have of the Minister is whether he or the officials think that that has then undermined the fast-track objective of the bill. The select committee thought that it was reasonable to have that 20-day period, and then with an obligation, of course, to explain why that, and I think that maybe the Minister can take a call on that.

They’re reasonable questions. The Transport and Infrastructure Committee has had a thorough look at them, and we’ve tried to make the adjustments to make it work, but does this undermine the objective of the initial proposal, which was to move this quite quickly? Maybe the Minister could give us an update on that.

Thank you very much. I think those are very reasonable questions that enable us to tie out the idea that we seek balance in these matters. The member himself has acknowledged that. I think, as a matter of fairness to the taxpayer—or rather thinking about the opportunity cost for overpaying for land in a way that would mean that we can’t use such funds to fund other infrastructure or other land acquisition for the same project, for that matter. I think it’s a fair question, but the calculation of the Crown, through the Government of the day, but also as advised helpfully by various officials and users of the Public Works Act at the moment, is that we’ve struck a balance whereby we would provide incentive for people to agree at a relatively early stage of the process, thereby avoiding further cost for the Crown or the local government entity, for that matter, and of course for the landowner himself, herself, or themselves. In striking that balance, we’ve set the values of 5 percent and 15 percent for those purposes of incentive and recognition. We think that strikes an appropriate balance.

We would hope that people wouldn’t landbank in anticipation of enjoying greater rights under that regime. I suppose that is theoretically possible at least. They would have to be very far-sighted to do that, but, again, I acknowledge at least a technical possibility of that.

In terms of the balance around the time frames, I thought that the suggestion of the select committee to extend the period within which an objection can be made was a reasonable one—a helpful one, indeed. So the change from 10 working days to 20 working days is acknowledged and accepted.

Kia orana, Mr Chair, thank you. I want to thank the Minister for his responses there. The Minister was in the House when I made a contribution on the second reading of this and indicated that we did have a couple of issues that we would look to have the Minister respond to in committee stage. Before we move to that, there are two areas that the Minister has commented on that I’d like to ask him for some clarity on.

The first is around his reference to projects that are in Schedule 2, and I don’t want to refer to them at this point in time, specifically, but he talked about if there was a project that he, as a local member, would have some form of advocacy around—that, effectively, he as Minister would be removing himself from that decision-making process. Now, that, to be fair, is not something that the select committee thought about. There’s nothing in here that indicates that. I’m assuming that the good Minister wants to follow conflicts of interest and take an ethical approach. But my question to him is: what does that look like? Where does the line sit? Is this something that aligns itself with the Cabinet Manual, or can he just talk us through his response a little bit more specifically around that? When we look at Schedule 2, there are a number of largely transport-related pieces of critical infrastructure, and it is highly likely that any Minister for Land Information is likely to be captured in some way or another by one of those projects. That’s the first thing.

Second thing is: the Minister referred to the opportunity that exists for a person who has an issue with a process to, effectively, take up the judicial review process. Now, this is something that the Transport and Infrastructure Committee did hear about and did make some commentary on. The issue, of course, with any judicial proceedings, about judicial review is that they can be very, very expensive—very expensive—and the focus upon which one of those opportunities might arise is generally very narrow, rather than broad.

My question to the Minister—and that is a limiting factor, as part of this legislation: is he comfortable with that process? It’s really the only avenue for many people, particularly given that the right to an appeal to the Environment Court would no longer exist. I guess, is it because the nature of the scale of these projects is generally quite significant, and significantly large, and therefore the cost imposts that might follow from that is something that’s not to be considered, or the like?

The other issue I wanted to pick up on is just in Part 1—it’s clause 5, “New Part 2A inserted”. One of the changes, actually, the committee made was changing the title of the new Part 2A from compulsory “taking” to compulsory “acquisition”—I just think it sounds softer, really. But anyhow, when we look at new section 39AAH, there is a new subsection (1)(d) that has been inserted by the select committee. That’s about, basically, the fulsomeness of information, giving information about—well, once a decision has been taken, making sure that an applicant or a submitter is actually given the fullness of the information.

My question to the Minister is: there are a number of changes through this bill made by the select committee around time frames, reasons, how the notice is to be delivered—all of those sort of aspects. Is he comfortable with the sort of tone of those changes? Has he reflected on this sort of just general tenor of the bill as originally drafted, and has that prompted him to think about some other changes that might be necessary, or not, as a result?

Thank you very much. Taking the member’s very thoughtful points in reverse order: I’m very comfortable with the tenor and, indeed, the substance of the suggestions made by the select committee. As I’ve acknowledged previously, I think those were really helpful and I’ve acknowledged particularly in terms of that time frame for notices of objection. That seems to me a worthwhile change that has been suggested and will be accepted in the sense that I’m not proposing that the committee of the whole House stage reverse that in the form of an Amendment Paper. I thank the select committee again for its diligent work in that space.

The work seemed to me thorough, such that we don’t need to consider further amendments in that similar vein. But, of course, over time it might be the case that suggestions are made in terms of the way that the regime operates in the real world so that changes might suggest themselves either to this regime or to the Public Works Act more generally, in which case I hope that the Government of the day and the relevant Minister at the time would take those very seriously indeed.

As for conflicts of interest—and the reason I raise that proactively is it seems to me some combination of the right thing to do from an ethical, legal, and constitutional point of view. Yes, the Cabinet Manual has things to say about Ministers making decisions in which they are conflicted. I suppose, to add a further limb, I would say from a political perspective, actually, it protects me as a local MP to be able to advocate strongly on behalf of my constituents and for the community in terms of those particular projects that affect the rural north of Auckland. This is not my opportunity to give an advertorial for how worthwhile those projects are, so I’ll resume my seat.

Thank you, Mr Chair. Mine’s quite a general question. Noting our exchange before—and the Minister noted my dislike of this Government’s Fasttrack Approvals Act—I’m interested in the interaction between that terrible piece of law and this piece of law. I say that because right at the start in the select committee’s report back, it’s about “[speeding] up the process for acquisition of private land for certain public works”. We know that those works are listed in new Schedule 2A of the bill that we’re not on yet. But then it says that “The list of projects is based on the public works listed in Schedule 2 of the Fast-track Approvals Act 2024 and the Roads of National Significance identified in the Government Policy Statement on land transport 2024.”

I can understand the sort of policy rationale then of when deciding what’s critical infrastructure, we’ll look at what’s already in these different documents and decide from there what we’re going to put on our list and call critical infrastructure. But I’m wondering if there’s more to it than that, if the bill is actually referring specifically to that Fast-track Approvals Act, and if there could be more projects—and I’m cautious; I don’t want to be talking about Schedule 2 when we’re not there yet. But just how that critical infrastructure is defined in relation to fast track—is it just a general policy position, or is it legislated for somewhere in the bill that I haven’t come across yet that says that critical infrastructure has to be—I can’t see it in the definition—something that’s listed in the Fast-track Approvals Act or the roads of national significance or the Government policy statement? Is there a link to that definition somewhere, or is it just that—was the problem: “Oh, we’re going to have these bits of infrastructure come through and we all know that a real block to a big piece of infrastructure can be the taking of that land, so that’s why you want to speed things up.”, or is there actually a closer link to that one piece of legislation and other Government plans?

Thank you, Mr Chair, and I thank the member for her further question. She describes very well the way that we’ve established the eligibility for critical infrastructure to be so, and then she asks if there’s anything more to that. There isn’t. Thank you for the question, however.

I suppose I should make a general point, which is that critical infrastructure, I suppose, could be considered a tautology. Infrastructure, by its nature, is important, even critical. Some infrastructure might be considered more critical than others in an Orwellian sense, so where one draws the line—reasonable minds can differ as to where it should be drawn, but it’s drawn in the way that is described, I think, pretty clearly in the bill, including, particularly, its schedule.

To return to a point on which I was remiss in not having addressed from our colleague and friend Mr Tangi Utikere, he rightly points out that judicial review processes, like all litigation processes, are expensive. But I would make the obvious point that that also applies, equally, if not more so, to Environment Court processes, which is part of the expense and costs that we’re seeking to avoid with this amended method of raising an objection under this legislation.

Thank you, Mr Chair, for allowing me to take my first call on this legislation. Before I begin my substantive questioning to the Minister, I would like the House to indulge me when I wish all the members here a happy Buwan ng Wika—that’s the National Language Month for the Philippines. I’ve just returned from an excellent event that was sponsored by MP Paulo Garcia, and that was hosted by the Dames of Rizal and—what was that other group, Paulo? The Hiyas group. It was a great event. Fantastic. Thank you for hosting it, Paulo.

I’ll turn now to the substance of my contribution, which is the Public Works (Critical Infrastructure) Amendment Bill—

CHAIRPERSON (Greg O’Connor): Very decent of you, Mr Hernandez—very decent.

FRANCISCO HERNANDEZ: Thank you for your indulgence, Mr Chair, and members across the Chamber. My question is around the clause 25A(4)(a)—that’s my first question—and it’s around whether the Minister has a definition of “reasonable”. What is the threshold in which a Minister or the local authority might consider when a request might be reasonable? Is there established case law around this? Is there a definition around it? Are there similar precedents that the Minister can draw upon to illuminate what the definition for “reasonable” might be?

I have some questions, skipping ahead, around clause 39AAK, under “Compensation payable under this Part”—around (3)(a) and (b); (4)(a), (b), (c)—around the sort of compensation thresholds. I’m just wondering where those figures were derived from. I guess under (3)(a), it was “equal 5 percent of the total land value; or (b) $92,000 if 5 percent of the total land value is equal to or more than $92,000”. Under (4), it’s “(a) equal 15 percent of the total land value; or (b) be $5,000 if the 15 percent of the total land value is equal to or less than $5,000; or (c) be $150,000 if 15 percent of the total land value is equal to or more than $150,000”.

What are these thresholds derived from? Is it that from the parent legislation, or is that something that arose as a result of the consultation? Thank you for the opportunity to wish the members a happy National Language Month, and I’m looking forward to my answers.

Tēnā koe e te Heamana. To the Minister for Land Information, I want to bring his attention to page 4 of the original bill—new section 39AAD, inserted by clause 5, which is the exemption for protected Māori land in Part 1. I think it would be helpful at this point if we were able to also reference some of the projects in Schedule 2 as they apply to that section. I need to ask him about how there are parts that are protected Māori land within the meaning of the Public Works Act (PWA), but there are also other sorts of land that have Māori rights and interests associated with them that are exempt from the PWA that are still within scope for the projects that are listed in Schedule 2A, and I’d like him to step us through those.

One is the marine and coastal area. I’d like to give him an example here. In the Airport to Botany Bus Rapid Transit, there is a bridge between the South Auckland airport connection and the Auckland Airport that is the subject of litigation over the years—a number of negotiations between Auckland Airport and iwi there with customary title in that area. That is not a usual piece of land that could be acquired for public works. Orrs Road is the end of the project in Schedule 2A, so it actually excludes that bridge, but there is Māori land in that area. It’s a really significant area. Ihumātao is there. It is the stonefields that have been preserved for a long time because of the way that the airport green belt works and because of the significant tapu areas in that region.

There will be a lot of people who are interested and concerned about how we treat those significant land areas under this part. They are exempt from this, but it seems like they are included in Schedule 2A, so I want him to step us through how those pieces of land will be treated.

It would also help when we’re thinking about how the Amendment Papers then apply, if that Crown Law advice that has been provided to Land Information New Zealand (LINZ) around whether the original bill impacted on Māori land rights—and Crown Law concluded that it did not. It did not have significant implications for Te Tiriti o Waitangi for LINZ. Could he just give us an assurance that there aren’t other pieces of land which are impacted by any of the amendments where Crown Law has raised concerns, or have they been able to raise concerns? Have we been through that process, which was helpful in the regulatory impact statement in the beginning?

Thank you, Mr Chair. I’ll try and do justice to the seriousness of the subject that underpins the questions and the comments made by the member.

I suppose just to take a step back briefly, it’s unusual now—and I’ll quantify that in a moment—for Māori freehold land to be acquired under the Public Works Act. I understand that where acquisition of whenua Māori is required, current practice is for the Crown, through its agencies, to acquire that by agreement with landowners wherever possible, and use compulsory acquisition only as the last resort, such that Māori freehold land has not been compulsorily acquired in any case in the last 10 years. I know that Land Information New Zealand’s practices are quite explicit about that. So there is a sound basis as well as, you know, a positive intent in that regard.

In terms of specific projects, I don’t wish to get myself into trouble by speaking directly to any that the member has raised, although I know she rightly takes an interest in those. I would say, perhaps on a non-exhaustive basis, if I can give a few examples of the type of land that’s explicitly excluded from the critical infrastructure regime that we’re legislating to amend the Public Works Act tonight, but also acknowledge the point she’s made with a couple of examples of land acquisitions that are not available under the Public Works Act in general.

The first category, that which is not included as part of the critical infrastructure regime as defined in section 11 of the Infrastructure Funding and Financing Act 2020: Māori freehold land, Māori reserves, general land owned by Māori that was previously Māori freehold land, and land held by a post-settlement governance entity and acquired under a Treaty settlement.

Moving now to a couple of examples where other legislation means that the Māori land in question isn’t subject to the Public Works Act regime in the first instance, these include Māori reservations and Māori customary land.

Thank you, Mr Chair. I want to go to page 19 of the Transport and Infrastructure Committee report back, and that is what will be new section 39AAN, “Adjustment to critical infrastructure project descriptions”. What it looks like this new section will do is enable the schedule, that’s not in this part but we will keep half-referring to because it’s critical, obviously. That schedule can be amended by an Order in Council, but there are some criteria in new subsection (2) that limit the scope of that amendment, so it’s got to be a small amendment—I don’t have questions on the wording of that at the moment, but what I’m interested in is new subsection (3), and that says, “To avoid doubt, no new items may be inserted into [this critical] Schedule … by an order made under this section.”

My question is if there is some other clause that I haven’t found in the bill yet that enables the change of that schedule, Schedule 2A, the critical infrastructure list, or is it just that it’s in the primary legislation, so any change to the schedule that’s not one of these minor ones amending the project description or amending the location description—that anything else has to be through amendments in primary legislation, or is there a mechanism somewhere to do it by regulation to amend the schedule?

Thank you, Mr Chair. I think my question follows on from my colleague the Hon Rachel Brooking’s question, because it is coming back to the definition of “critical infrastructure project”, which the Minister for Land Information has argued is possibly a tautology in that every bit of infrastructure has some use value. But having use value is different from being critical. I know that we’re still on Part 1, however the definition that we go to is in new Schedule 2A, inserted by Schedule 2, and the challenge I have here is that when I look at what’s in Schedule 2A, that sort of looks like fast-track projects. So critical infrastructure—

Hon Rachel Brooking: Can’t see any coalmines in it, though.

SCOTT WILLIS: —yeah—could well be called something else, and I’m interested in what else might go in there, because it’s certainly true that the Minister is in a Government that has three parts to it. Certainly, parts of the Government are very keen on fossil fuel infrastructure and have argued that we need more fossil fuels, and they’ve also argued that that’s critical.

In that sense, it relates to the question I was asking earlier about the carbon cost of infrastructure build. Is it likely that once this bill has passed, we might see in the definition that “critical infrastructure” could be defined as oil and gas pipelines, or it could be defined as fossil fuel infrastructure, which will increase our carbon emissions? Is that something that we’re opening the door to through this legislation, because I’m not sure I see that that’s closed off here, and I think it’s very, very clear that what we’re calling critical infrastructure projects at the moment is simply another way of saying “fast-track projects”. So maybe the title is completely wrong, and maybe it’s the “Public Works (Fast Track) Amendment Bill”, in that sense—which I’m sure we’ll come back to.

But my question is really coming back to an earlier question, in part, but also in relation to what loopholes or what doorways are open to the more carbon-intensive and the more polluting projects that could be covered by this term “critical infrastructure projects”. If the Minister could respond, I’d really appreciate that. Thank you.

Thank you, Mr Chair. I’m happy to assure both members who have recently contributed that there is no method of further inclusion or amendment other than that described by Ms Brooking.

Thank you very much, Mr Chair. I’ll just go to the removal of the ability for landowners to go to the Environment Court. That is probably at the heart of the changes that have been made here. That was an assumption always in place, that landowners, having received notice of the land to be taken under the Public Works Act, would then have the right to go to the Environment Court.

So the question of the Minister for Land Information is: did the Government consider, perhaps, increasing the resources of the Environment Court and actually fast tracking the Environment Court process? That might have been a better alternative than what we’re doing here. I don’t know what the relative resourcing requirements would have been, but this piece of legislation puts in place some reasonably substantive compensation payments that are potentially paid to landowners. If you had boosted, collectively, over the next 10 years, that amount of compensation into the Environment Court and sped up the process with some of the time limits in this piece of legislation, maybe we would have ended up with a higher-trust, more consistent approach. Maybe the Minister can just answer that question.

As I say, the natural justice issues there are critical, and whatever the Minister, I guess, upholds in this piece of legislation will be tested under the Resource Management Act and the reforms that we hear are coming.

There are some safeguards for private property retained from the Public Works Act into this piece of legislation, but all decisions are subject to judicial reviews. That’s why I, thankfully, have some very focused legal minds here on my side of this debate who are scrutinising this, because it will indeed be through judicial review that we’ll end up with, I guess, some jurisprudence and some precedence that will give us a guideline, because this legislation will be reviewed after three years—it’s written in here. That’s a safeguard, and, hopefully, it will have moved down a positive path.

Maybe just the question of the Minister as to whether the resourcing issues have been considered and whether, actually, an enhanced Environment Court process would have been better than what we’ve ended up with, which, effectively, puts any review in the hands of the Minister, who has an interest in driving these projects forward. I’m not saying—and he’s pointed out himself that conflict of interest issues will be addressed and acknowledged, but none the less, a Government in charge, or Minister as part of Cabinet, will be inclined to drive these things forward, in spite of a review that may have been sought from a landowner, that may be justified and could very well be worthy of a reverse decision. Maybe the Minister can take a call.

Thank you, Mr Chair. The member the Hon Damien O’Connor says that I may have interest as a member of the Cabinet; I thank him for the promotion. I’m also not a member of the judiciary—whether being a member of the judiciary would represent a promotion or a demotion, we can all have a view.

The issues of our court system, the Government’s taking measures, in other ways, to address. The judiciary might wish to join them in that endeavour, but it wouldn’t be appropriate for me to speculate further on that. Resourcing issues are, therefore, outside of my scope constitutionally but also in terms of this debate. But suffice to say that if the Environment Court and other processes were not so slow and uncertain, then it might be that we don’t feel the need for changes to the legislation to ensure a faster and fairer regime. Nevertheless, that’s the situation that confronts us, and in particular instances—that I’m not going to mention in the House now, precisely because they remain in front of New Zealand courts of law—it’s clearly the case that we need a much more expeditious, as well as fair, process for determining these matters and being able to move on as landowners and as communities requiring the benefit of the infrastructure.

I move, That debate on this question now close.

Look, I’m detecting an eagerness to get on to some of the issues in Part 2 here; however, the Hon Julie Anne Genter.

Thank you, Mr Chair. This is my first call in this part, and while the Minister, I think, has been really excellent in addressing the many questions that my colleagues have raised, and many of them have raised questions that I, myself, wanted to raise, I do have a couple of additional questions.

I did want to take this opportunity to put on the record the Green Party’s concerns, overall, with the process—the fact that the process was sped up during the select committee, that the select committee was asked to report back faster, so there was a shortened time for consideration at the select committee, and that’s one reason I think we should take a little more time in here. Even though there wasn’t a later report-back date, we were asked to have the submissions open for just a short period of time and report back faster. That was one of the reasons why the Greens didn’t feel we could change our vote to support.

Of course, the other major substantive reason is because if there were to be projects that were taking land for public good, for public infrastructure that’s critically important, it would have to be absolutely clear that those projects were taking us to net zero emissions or, better yet, gross zero emissions. There’s an urgent, urgent need to respond to climate change, and it doesn’t make sense for the Government to be speeding up projects for which we have no sense that they’re actually going to reduce carbon emissions. They might actually make it worse.

I’ll speak to the specifics of the projects. I do have some amendments coming to Part 2. But in Part 1, I wanted to come back to clause 39AAD, “Exception for protected Māori land”. Now, I take on board the comments that the Minister has made that it’s been over a decade since protected Māori land has been compulsorily acquired; however, during the submissions at the select committee, we heard a submission from Patricia Grace, who was successful in challenging NZTA taking her land for the Kāpiti Expressway in 2013-14. Her contention was that had this bill been in place, she would not have been able to take it to the Environment Court. I believe that’s because her land would not have met the definition of protected Māori land at that point. So I just wanted to seek that clarity from the Minister if that had been considered or if the definition of “protected Māori land” actually would apply to ancestral lands like that. It is quite a tight, narrow definition.

We’re concerned, personally, that clause 39AAD doesn’t provide enough protection for Māori land that isn’t already in the definition of “protected Māori land” of a reserve. A reserve has subsequently been made on that land, but her contention was that had this bill been in place, and had that project been in Schedule 2, that she would not have been able to protest the Government taking it, and she would not have been successful in securing that land in a reserve.

I had another question to the Minister, which, of course, because of the time of the night, I’ve just lost my slight train of thought—sorry about that. I think, ultimately, the submissions that we will make—the proposed Amendment Papers we’ll put forward—primarily apply to Part 2. But I do hope that the Minister can make some comment on protected Māori land and, in addition, to the concerns raised by my colleague Arena Williams.

Thank you, Mr Chair, and thank you to the member Julie Anne Genter for her questions. I’m happy to make comment and, indeed, repeat my comment regarding protected Māori land to the extent that it does include, as I stated earlier, Māori reserves. Also, I’ve pointed out that Māori reservations are prohibited, as in excluded from the Public Works Act regime in the first place, such that they don’t then become a relevant question as to inclusion or not within the critical infrastructure regime.

I appreciate that reserves and reservations are different, but they’re temptingly close in terms of how they’re written at least, so I felt moved to provide one example of each of those types. I’ve previously explained different bases on which protected Māori land—or Māori land in general that might be said to be protected in that other, more broad sense of the phrase—won’t be subject to this regime.

I’m not familiar with the case of Ms Grace to be able to comment on that, and I’d probably be foolish to do so, not least of all because it’s a hypothetical matter in the past, obviously deeply important to her and perhaps others. I respect that, of course, but I would point out that the fact of a property being included within the scope of this regime doesn’t mean that a compulsory acquisition would necessarily be allowed anyway. Admittedly, it would be for the decision maker, be it the Minister or the local government entity, as the case may be, to make that decision. But I reiterate that that decision would have to be reasonable, otherwise the recourse to the court would still be available—albeit under judicial review—under the inherent jurisdiction of the High Court as compared with the Environment Court, as currently is the case.

I move, That debate on this question now close.

Rachel Brooking—but I’m looking for some pretty new material.

Thank you, Mr Chair. This is just a quick call, and, again, quite a high-level one. I’m going back to when this part applies, at page 4 of the bill as reported back from the Transport and Infrastructure Committee—and that is new section 39AAC in clause 5, “When this Part applies”—and that is that it’s either when that critical infrastructure project is “a Government work”, at subsection (1), or, at subsection (2), it’s “a local work”. Those terms “local work” and “Government work” are both defined in the Public Works Act and have been for some time, and so I just wanted to clarify with the Minister for Land Information that even if something is listed in a schedule that we’re not talking about yet as being critical infrastructure—

CHAIRPERSON (Greg O’Connor): But we’ll get there, won’t we, Ms Brooking?

Hon RACHEL BROOKING: —I know; I do want to get there, I promise—

CHAIRPERSON (Greg O’Connor): I can feel an eagerness to be there.

Hon RACHEL BROOKING: —it’s also got to be a Government work or a local work. My question is whether it is possible to have something defined as critical infrastructure that isn’t a Government work or a local piece of work, as we all know—all of us have worked with the Public Works Act for years and years, and with those definitions. Is this an additional test at new section 39AAC that you have to have both listed in the schedule, and a Government work or a local work—so, whatever the project is, it has to be both? Is it that there’s no way—and this is a really important point—that projects that are on that fast-track list that are private projects which are going to advantage private people and are not to do with public infrastructure can ever be part of the process that we’re debating today?

Thank you, Mr Chair. It’s possibly helpful to note for the record that it’s only public works in that sense or Government work, to use the phrase that the member has used, that would qualify for this regime—so not private or non-Government works, therefore.

In terms of the point made by the Hon Julie Anne Genter, which I was remiss in not acknowledging before, I do want to thank and acknowledge the select committee for moving quickly in terms of its consideration. I do point out, for the sake of balance and fullness, that the three-year review mechanism that we’ve included, I think will be helpful in ensuring that we will have a good sense of how the regime performs in the real world, as well as the scrutiny that we’ve applied to it so far tonight, and, no doubt, through the rest of the legislative process.

Thank you, Mr Chair. I acknowledge the thanks there from the Minister about the select committee reporting back. It reported back much earlier than it was actually required to under the instruction of the House.

Andy Foster: It was very good.

TANGI UTIKERE: Yes, it was very good, Mr Foster. I see Mr Foster’s in the Chamber—the chair of the select committee. I’m sure he will attest to some of the thinking that the committee turned its mind to, particularly around trying to, I think, insert I guess what could be described as some failsafe provisions, particularly around notification—I’m talking about for submitters, applicants, and the like.

One of those is actually in what is a completely new section that’s been inserted on recommendation of the select committee, which is new section 25A, inserted by clause 5. This is about the time frame, but, in particular, a new process around extending time frames. Believe it or not, the select committee actually spent a little bit of time thinking about things like, well, what does it mean to have a decision in writing; what does writing mean; does it need to be via post; does it need to be via email—all of those sorts of things. A lot of what is proposed in new section 25A is in that sort of vein and meant to, I think, fall in favour of the person who is either objecting or submitting, but also that the Minister or the local council would be required to, effectively, give reasons and also have a bit of a time frame as well.

I want to, effectively, sort of compare that with what is something not touched yet. That is the new section 39AAO, inserted by clause 5. This is under the heading of “Other matters”, towards the end of Part 1. The select committee had suggested a change to insert an entire new way in which notice may actually be served or given. This goes back to the point around trying to ensure that it was user-friendly and I think trying to, actually, Minister, strike that balance that you referred to around some element of haste but also protecting the rights of folk to get the information that they need. So my question for the Minister: is he comfortable with what I’ve termed fail-safe provisions in the legislation that’s been added by the select committee?

The other is just over the page here, and it relates to subsections (2) and (3) of new section 39AAP, inserted by clause 5. This is about the requirement to undertake a review that the Minister has referred to and that it needs to be three years after the date of this part’s commencement. One of the interesting things is that we’re starting to see this, I guess, too, as kind of like a catch-all. Who’s going to actually be part of this review process? We haven’t heard from the Minister around that yet. The Minister, there is a requirement that he, she, or they may be required to sort of consult with people that they would consider as appropriate. Well, who are those individuals? Would it be depending on a huge number of judicial review opportunities that may have been exercised or not? Are we talking about the specific projects that have actually either been partially completed or fully completed—the projects that are listed Schedule 2—or not? I think it would be quite helpful. It’s great that there is a review clause in here, but is the Minister comfortable that the catch-all is just going to sit there, or how would that kind of be described in his own thinking?

Likewise, the final point is we’ve been very careful as a committee to think about the number of days or working days and all those sorts of things. Yet, in subsection (3), one thing we didn’t actually provide a recommendation on is the requirement as to when that report of the review needs to be presented to the House. I mean, it says there “as soon as practicable” after completion. Now, a lot of the other “as soon as practicable” in previous sections kind of are driven by other projects and other sort of systems at play, but this may not. I’d be interested in the Minister’s thoughts, in particular around what might drive those two components of subsections (2) and (3).

Thank you, sir, and thank you to the member for his further thoughtful questions. I am comfortable that the mechanics of notices and requests being in writing in the way that is specified and helpfully laid out now by the select committee are appropriate, and I thank the members of the Transport and Infrastructure Committee for their work, including the chair, Mr Andy Foster.

In terms of the review, I think it’s impossible to know, in three years from now, when that review takes place, what people might be appropriate to conduct it. I think it would depend on the experience of the operation and the regime in the meantime. Obviously, I won’t suggest particular names, although I take the opportunity to place on record, again, my thanks for the panel that reviewed the existing legislation and made very thoughtful suggestions, and, of course, the good folk at Land Information New Zealand and others who advised on what such a regime might look like.

In terms of the time period within which the then Minister may be required to report back, I think I’d be creating a rod for my own back or perhaps someone else’s back if I were to be more specific than to use the framing there. But it would be my hope and expectation that the Minister at that time would do so with an appropriate sense of haste—there’s that word again—given the importance and the public policy considerations inherent in ensuring we’ve got a fast and fair regime.

I move, That debate on this question now close.

Noting that Mr Utikere finished on the very last clause of the part, I’ll take a closure motion.

The question is that Arena Williams’ tabled amendment to Amendment Paper 350, amending new section 39AAH(1AA)(a)(v) to provide that notice of intention to take land must not be given unless a project is well supported by the community be agreed to.

The question is that the Minister’s amendments to Part 1, set out on Amendment Paper 350 be agreed to

The question is that Part 1, as amended, stand part.