Public Works (Critical Infrastructure) Amendment Bill

Members, we’ll come now to Part 2. This is the debate on clauses 6 to 11, “Related and consequential amendments”, and Schedules 1 and 2. The question is that Part 2 stand part.

Mr Chairman, thank you. Moving on to Part 2, as I said earlier on, I’ll speak about protected Māori land. It was and still is a critical part of the Transport and Infrastructure Committee’s consideration. This part relates to compensation in particular, and I guess one of the issues for the protected Māori land—it’s listed here, and I think it is important to reassure those owners of Māori land that they have not been forgotten. This is not a roll-through or roll-over of their rights, and, certainly, the Labour Party in Opposition fought strongly to ensure that was the case. Māori freehold land; Māori reserves; general land owned by Māori that was previously Māori freehold land; post-settlement governance entity land; iwi or hapū, if land was transferred to return to mana whenua; Māori reservations; Māori customary land—it’s all pretty much covered.

On the issue of compensation, maybe the Minister for Land Information can reassure Māori land owners, because sometimes the valuation of that land is difficult, while there are in Part 2, of course, specifications for the amount of compensation that should be paid under subsection (2)(c), “(a) equal 15% of the total land value of the land”. Maybe the Minister can assure Māori landowners that that would be of full market value, even though the land may not be available for sale because of its status. That is important.

Working through fair compensation—“(b) be $5,000 if 15% of the total land value is equal to or less than $5,000; … (c) be $150,000 if 15% of the total land value is equal to or more than $150,000.”—there could be situations, particularly in urban environments where we have Māoriowned land, where the compensation may be worth more than $150,000 if it’s 15 percent of the commercial value. I just need reassurance—I know the select committee did its very best to look at that and give reassurance, but I guess, from the Minister on behalf of the Crown, a reassurance to Māori land owners that they will be getting a fair deal and not squeezed, because there is a history of that, and I don’t think anyone, certainly not the select committee, wanted to perpetrate that again on Māori land owners. It’s an opportunity, and the Minister can talk—these are, for the most part, in Part 2, issues in or around the compensation. Maybe that is the critical one that I think there needs to be a reassurance from the Crown on.

Thank you, Mr Chair. Having provided that same assurance several times already this evening, I’m happy to provide it again, respecting that the question was, no doubt, asked in good faith. More particularly, protected Māori land, as defined under the Public Works Act, cannot be acquired under the critical infrastructure process. It is exactly that change that we are changing to the regime tonight. Protected Māori land, as defined and as we’ve set out a couple of times already this evening, cannot be acquired under the critical infrastructure regime; however, the owners of protected Māori land, on the other hand, will be eligible for premium payments if their land is acquired for critical infrastructure projects, using the standard process. In that sense, they get the best of both worlds. They get the ability to retain that right of recourse to the Environment Court but also those higher payments that are available to those owners of land that is not protected Māori land.

Again, respecting and acknowledging and, indeed, having mentioned upfront the historical injustices associated with the Crown’s use of the Public Works Act to deprive owners of Māori land of their rightful property, and not wishing to perpetuate that, and, in fact, improving on the position of Māori land holders not only relative to where they are now, such that they will get the premium payment, but also improving their position relative to owners of land that is not protected Māori land, in the sense that we are allowing to remain in place that recourse in the Environment Court.

Thank you, Mr Chair. That is a very helpful answer from the Minister for Land Information, and it helps me to clarify my questions. I have two for him to begin with, in this Part 2, about Māori land rights. Before I bring him into the detail of Schedule 2, the first is a general question about how the additional compensation provisions at new section 72F will work for Treaty settlement land, which is included, and those rights that arise under deeds between the Crown and iwi for compensation but are not necessarily crystallised at the time. In this schedule of projects, there are some of those. To give him an example, the Ngā Mana Whenua o Tāmaki Makaurau Collective Redress Act was a 2014 piece of legislation that recognised the collective redress system for the 19 iwi with interests in the Tāmaki-makau-rau area. This was after, essentially, a second go at that from the Government in that period, where rights had been recognised in a staged way but not all at the same time. To recognise that there were a number of iwi with overlapping interests in the area, there was designed, essentially, a carousel of commercial property opportunities in a way that the three groupings of collectives under that Act would share those commercial opportunities.

There are properties all around Auckland where iwi share an interest, and if the Crown ever, say, sells or divests itself of that land, they are entitled to that, but not through an ordinary right of first refusal. Those rights are not that any given iwi has been granted a right of first refusal, so that’s not something that appears, say, on the title of that land, but it is something that exists where Government agencies with that land know that they are subject to that 2014 Act and so must deal with the carousel, which is a limited partnership called the Whenua Haumi Roroa o Tāmaki Makaurau Limited Partnership. I raise this point because where this new mandatory payments provision might apply, there are some projects here which that might apply to and probably do apply to. How will these new provisions for compensation interact with rights which haven’t crystallised and aren’t on the title of the land, but where iwi might reasonably expect themselves to have rights that are accrued under the 2014 Act which they can realise? How will those rights be compensated is the general question.

I think helpfully—I hope helpfully—I’ll give them an example that we can talk about. It’s the Carrington Residential Development site. I am genuinely interested in the Minister’s explanation of this. It’s not a road. The committee helpfully heard from the New Zealand Transport Agency on its expectations of how these projects will work, but obviously not builders of a large residential project at Carrington. The 139 Carrington Road site is about 40 hectares of land on what was Unitec land. That will be an amazing housing development for Auckland, but it already has iwi with interests in it who are building on it. We have this provision here where it’s a scheduled project where there are special powers to compensate Māori land owners. They are actively engaged with the Government to in fact build this critical infrastructure, so why is it there? Is it possible that these Māori land owners who are actively engaged in the building of what is considered critical infrastructure here are now subject to requirement provisions that are different? In what situation would the Minister be able to exercise those? I don’t think it’s his intention to exercise those, but why, then, is it included?

It’s not a road, and that is relevant, because we are creating some provisions here where the New Zealand Transport Agency, for the public good and for no profit whatsoever, would be acquiring land from private owners to build what is only valuable in a public sense. But Carrington is included here, where there are Māori land ownership rights that do accrue some private benefit, so we want some clarity on how that will work.

Thank you, Mr Chair, and thanks to the member for her question. Thanks to those who are more knowledgeable in the matter than I am who have provided some information, which is that the Carrington residential development—with which many Aucklanders are familiar, even if I don’t know the history and, indeed, the future intentions perhaps as well as that member, and certainly Mr Tama Potaka—at the former Unitec campus in Mount Albert has been facilitated by the Crown through the Ministry of Housing and Urban Development, or HUD, as it’s popularly known. It’s a long-term project being carried out over multiple stages, and HUD has indicated that there may be a need for new infrastructure in the future, presumably to support that development.

With the detailed design stages not having yet been completed, it’s possible that there will be public works required that qualify—and, indeed, are necessary and desirable—under this regime that would be included. So for that reason, it’s been included. More specifically than that, I don’t wish to comment on particular other projects that the member’s aware of historically, which she’s referred to. I will say in general terms, though, that as I’ve said previously, land held by a post-settlement governance entity and acquired under a Treaty settlement is not captured by this critical infrastructure element of the legislation, precisely because it’s considered protected Māori land under other legislation—so too land held by an iwi or hapū, if that land was transferred to return to mana whenua. In a general ballpark, as well, I’ll add that areas with protected customary rights are also not included for the amended process as to critical infrastructure. But, again, I am just emphasising that such owners of protected Māori land would, nevertheless, be eligible for premium payments.

Thank you, Mr Chair. I’ve got one question relating to that answer and exchange that’s just been had, then a separate question.

On that Carrington housing development, I have two questions around that. One is that I think what the Minister was referring to was roads and other things that we would normally think of as infrastructure. Of course, housing is very important as well, and many people talk about it in a very valid way as infrastructure, but my recollection is—and, sorry, I haven’t looked at this for some time—that housing generally isn’t something that the Public Works Act applies to. I may be wrong, so please do correct me if I am. I’d just be interested in that point. There are two questions in that: could there ever be a housing project listed as a critical infrastructure project? Would it meet that local work or Government work test in the main part of the Public Works Act? Either way, is he just talking about Carrington in terms of roads and not the houses but the other bits? That’s one line of questions.

My next question is in relation to the amendments to the Resource Management Act. Clause 10A of the bill amends section 185. This is an interesting section, and I’m sure everyone will be really interested to hear that this was the section that I first made legal submissions to the High Court on—section 185—some decades ago. Section 185 is a really interesting section—I would say that, wouldn’t I? I’ll tell you why it’s interesting, and that is because when land is required and somebody like a road authority says, “We’re going to put a notice of requirement on this land, and one day in the future, we might build a road on it, and we might go through with the designation.”, of course, that can be seen as a blight on someone’s private property, and it may be that it never goes ahead. There’ll be lapse periods in terms of the time frames for those requirements and designations, but it may be that they don’t go ahead.

The property owner can say, “Look, this is a real pain having these lines drawn over my property, and it’s stopping me from being able to capitalise on my property, so what I want is I want my land to be taken, and I’m going to make you take that land.” What appears in this amendment is to add this critical infrastructure project into the ability for the landowner to make it be taken from them, and, of course, when it’s made to be taken, they get compensated for it. My question is: why is that amendment needed for critical infrastructure if the whole point of this bill that we’re looking at is to really speed it up? Isn’t it the idea that these projects that are specifically listed in the schedule that we are now allowed to talk about in Part 2 should happen quickly? I was wondering if he wanted to comment on that.

Then my other question regarding section 185 is just that new subsection (8)(a) refers to section 2 of the Public Works Act. We’ve seen in Part 1 that that’s amended to relate to the—it links to section 2 of the Public Works Act. The general interpretation section specifically links to the new interpretation that’s in this bill and in relation to which the requiring authority may use Part 2A of that Act to acquire the owner’s land. I presume that the link that I was talking about before in Part 1 was when this part applies and that it’s got to relate to either the Government work or the local work and can’t just be a critical infrastructure project. Is that link seen in new subsection (8)(b) there, or is it actually something else?

Thank you, Mr Chair. If I was slower on my feet, that might have been the end of the part! But I will answer at least the first part of the question, because that’s as far as I can get in terms of providing what I expect and hope will be a reasonable answer.

In relation to Carrington specifically, but also more generally, I understand that the principle at play is that if works are carried out by the State, then they’re capable of being defined as “public works”. That means that housing is potentially within the remit, along with pipes and utilities and, indeed, roads, as the member’s mentioned—categories of works that we might traditionally consider as infrastructure.

More particularly, the Ministry of Housing and Urban Development, as previously mentioned, can use the Public Works Act through the Housing Act to require land for State housing permits—section 5 of that Act, as I understand. I’ll pause in case the member’s got any interjection she wants to make.

Hon Rachel Brooking: Just a little question: can local government do houses as well, or is it just Government housing through the Act that you just referred to?

Hon CHRIS PENK: In the case of local government, it might be something that I will be able to clarify for the member, and if not on the spot, then perhaps at a future time.

The other questions asked by the member, I’m not in a position to answer definitively at this point, either.

Thank you, Mr Chair—just to round off these questions about the Carrington residential development. That is really helpful from the Minister. The reason I am asking this question is because we acknowledge—everyone does, in this House, I think—the history of Māori land takings. Part of that troubled history is the giving by iwi of land for a specific development of a purpose, for instance, a church or a school, and then that land not being used for a school or a church and it, in fact, being used for something else. That is where a lot of this historic mistrust really—you know, these are the hardest cases, where that has happened for Māori, in good faith, giving to the Crown and then not being returned that. So I want to ask about the Carrington residential development quite specifically. I think we are talking about some roads, although the Crown housing programme is a reason for public works taking.

In this situation, this was land that fit into the Crown housing programme, but because of accommodations that were made between the Ministry of Housing and Urban Development and these iwi that would have otherwise had rights and interests to build houses, that they were included in that process from the very beginning—that’s an important part of Government proactively working with Māori to recognise their rights, even when they have not crystallised legally.

Now we have a situation where we have landowners who are iwi; they are engaged in the project of building the houses that we need. These are critical infrastructure projects. Could we now be in a situation where these provisions are used to, again, remove that land that these iwi have entered into, in good faith, to build these houses? You would recognise that in a sort of development like this, there will need to be roads, there will need to be public facilities; those have all well and truly been agreed. But is there now a way for the Minister to use these provisions for land which is current being developed by these iwi in this project, because it is schedulised here? If that’s not the intention, why is it schedulised like this? Help us to understand how the rights and interests of Māori, who are landowners here, who are landowners because of rights that have arisen from a Treaty settlement in 2014, will be affected by this.

Thank you. To answer as helpfully as I can, the opening comment that I made when we commenced this committee of the whole House stage acknowledged that there are thorny issues around disposals of land under the Public Works Act. It was outside the scope of the review that we asked the panel to undertake, and it’s outside the scope of this legislation, so we don’t make any changes in that regard. But I do want to acknowledge for the sake of the public record that it’s an area of further reform that a future Government might consider, whether in relation to the critical infrastructure regime or more generally regarding the Public Works Act.

Thank you very much, Mr Chair. I’ve just lodged eight amendments. They’ve been tabled, and they’re specifically amendments to Schedule 2. I wanted to focus my contribution on those projects, but more broadly, how the projects have come to be included in “Critical infrastructure projects”, new Schedule 2A, inserted by Schedule 2, on page 29.

In the broad comments that the Minister made in relation to my colleague Scott Willis’ question about the impact on carbon emissions and greenhouse gas emissions, the Minister said that in this regime, these projects haven’t been subjected to that kind of test or consideration or modelling but that they would have been included in fast-track or the Government Policy Statement on land transport—that, in those other processes, they would have been considered. However, that is not the case when it comes to the Government Policy Statement on transport. A number of highways have simply been stipulated because the National Party campaigned on them. They’ve been subject to no analysis, as far as I’m aware, but we all know that they’re going to involve a lot of carbon emissions to build, and they’re certainly not going to reduce carbon emissions.

We have a dire need to reduce transport emissions in this country. They’re about 40 percent of our carbon emissions. Our transport system is almost entirely dependent on private cars and trucks, and until we start investing in the alternatives to roads, we won’t have any choice but to use cars and trucks. For most New Zealanders, we’re nowhere near having a high penetration of low-emissions vehicles. It’s going to cost a fortune for us to replace the current vehicle fleet with low-emissions vehicles. I just put it to the Minister that there is actually no way that the highways listed in Schedule 2 have been the focus of any sort of analysis about whether they’re going to help us reduce greenhouse gas emissions, and I would say we have very good reason to believe that they won’t.

A further point that I would make to the Minister—and the reason why I have tabled these amendments—is that if we’re going to acquire land for public purposes and we’re going to take away people’s land and we’re making this faster and harder for people to object to, it really needs to meet the test of being for the public good. The Government has introduced a new process that the Infrastructure Commission is going through called the Infrastructure Priorities Programme. Now, I admit that’s in its early days, but I would suggest that if we were going to be using this sort of process for critical infrastructure, that should be infrastructure that has been subject to the Infrastructure Priorities Programme, contains analysis, and has received the tick of approval. The Government just recently announced its National Infrastructure Plan. That’s in a draft format, but the Infrastructure Commission makes it very clear in their draft plan that we haven’t been very good at choosing which projects to build. If we’re rushing ahead to try and acquire land quickly and we’re acquiring land compulsorily, I think people would want those projects to be genuinely contributing to the betterment of the country, and that does mean that they’re good projects, not just projects that some party has campaigned on once.

One of the things I’m most confused about is the East West Link being included in this, because my understanding of the East West Link is that that project already had resource consent and already had a lot of land acquired—hundreds of millions of dollars’ worth of land in Auckland—so I’m not sure why it needs to be included here. Is it the case that it doesn’t, or was it just put on the list because it is a project that was specified in the Government Policy Statement on land transport and/or on the fast-track projects list? Is it the case that these projects have been listed because the Crown believes they have a good reason to acquire additional land to put them in place, or is it just because they’re on other lists and in other bills? Does that make sense? I’m pretty sure the East West Link already had resource consent and had already acquired land under the old public works process, and unless they’re substantially changing the designation and changing the project, bringing it back, I don’t see why there would need to be additional land acquired.

The other projects in my tabled amendments—and Mr Chair, if you’d indulge me, I’d like to continue to take another call so I can speak to these.

CHAIRPERSON (Greg O’Connor): The Hon Julie Anne Genter.

Hon JULIE ANNE GENTER: Thank you very much, Mr Chair. First, I’ve tabled some amendments. It’s just eight amendments. It’s not very much. They’re not exactly in the order I want them to be, but they don’t have numbers, so it doesn’t matter: Hamilton Southern Links, Hawke’s Bay Expressway, Mill Road, East West Link, Takitimu North Link—Stage 2, Warkworth to Te Hana, State Highway 1 Cambridge to Piarere Long Term Improvements Project, and Petone to Granada and the Cross Valley Link. I particularly want to make note of Warkworth to Te Hana. That’s eight different tabled amendments—one for each of these projects—and it’s because these projects in particular I don’t think can be considered critical infrastructure, because they clearly are not going to take us down the pathway of increasing efficiency of our transport system and reducing greenhouse gas emissions.

For Warkworth to Te Hana, I have submitted an amendment to remove that from this schedule. I have not suggested that the alternative to the Brynderwyns Hills be removed. I think this is an important point, because often when people are talking about why we need a four-lane road up North, it’s because the Brynderwyns get closed a lot. If that is the case and that is truly the critical link that we need to fix, that should be the first bit off the block to fix. We should be focusing on the alternative to the Brynderwyns now, not Warkworth to Te Hana. Warkworth to Te Hana is not the essential problem with that link. It’s the alternative to the Brynderwyns. I’m just asking the committee to try and consider how we actually fulfil the very intelligent strategy laid out in the Infrastructure Commission’s National Infrastructure Plan to prioritise our infrastructure, make better use of the infrastructure we have, and try to get the outcomes we actually want.

If the main weak point of State Highway 1 between Auckland and Whangārei, and indeed the rest of the Northland, is the Brynderwyns, logically an alternative to the Brynderwyns should be the highest priority for State Highway 1 north of Auckland. I haven’t proposed removing that one, but I am going to propose removing Warkworth to Te Hana, because I just don’t see in any way how that can be considered critical infrastructure. It’s going to cost a fortune. It’s going to deliver very low benefits—like, no benefits, really, that we couldn’t do in a more efficient way by adding some passing lanes and upgrading the existing road and investing in rapid transit and intercity rapid transit, and possibly coastal shipping, to make it easier to connect goods that might be coming into Northport and then moving them down around the country on the blue highway rather than clogging up our roads, which are always going to be extremely vulnerable to storms and other problems. Of course, at no point in the near future is moving goods by road between Northport and Auckland going to be low emission. We are very, very far away from having that infrastructure unless they were to electrify the rail line and upgrade it massively, which is not on this list of critical infrastructure, sadly, although the fourth main is.

The other one—and I know that I heard one of the Ministers opposite complain that I had Hamilton Southern Links on here. Hamilton Southern Links, in Schedule 2, says “Develop 1 or more roads and associated infrastructure to support Hamilton’s planned southern growth, including by—improving existing roads”. The reality is that if you widen roads within an urban area, you will get more traffic. We know this from 70 years of data. You can’t add roading capacity in an urban area and not have it be filled up with cars within five to 10 years, at which point all your supposed benefits of spending all that money are gone. In the interim, we have not spent the money upgrading the infrastructure that would actually make it possible for people to move and for goods to move around our urban areas without having to rely on private vehicles. It’s totally counterproductive, and it’s not going to help productivity and economic growth as much as the Government wishes it would. That’s not what’s proposed here. This is urban highway expansion, and urban highway expansion has never solved congestion, it doesn’t improve productivity, and it actually is counterproductive. That’s just reality. Like, that’s just reality.

I know there are not many people here who’ve extensively studied transport economics, but if you are interested in the topic, and every member here should be—[Time expired]

I thank the member for her comments. I’m aware of the commentary around induced demand. I think relitigating that at length is not going to be helpful to the committee’s consideration of the critical infrastructure elements of the Public Works Act. I would point out that the Marsden Point Rail Link, the North-West Rapid Transit—which is an express busway, separated. It’s a road, unfortunately for the member, but it’s going to be a dedicated busway, so we think it will be helpful in terms of projects of which the member may or may not approve. There’s an active mode corridor in terms of Papakura to Pukekohe route protection; Pukekohe to Drury rail station—again, of which the member may approve; four tracking Westfield to Pukekohe to widen the existing rail corridor; implementation of the Ōtākaro Avon River corridor regeneration plan, which is about stop banks and pumping stations; lower North Island integrated rail mobility; and the upgrade of and existing rail work.

There are plenty of projects on which members all across the Chamber can agree. They may disagree on others. For example, Warkworth to Te Hana and getting around the problems in the Brynderwyns quite literally are two problems that we can resolve at once, and the Government is determined to do so. The fact that members may or may not agree with the Government’s policy statement in relation to transport isn’t a reason to say that we shouldn’t have a faster and fairer process for the acquisition of land or other property rights in relation to the Public Works Act regime, and that is the subject of the legislation. That is what we’re debating in this Chamber tonight, and that has been the subject of the discussion in terms of Part 2 and, indeed, these same general points that we’ve already made throughout this evening.

Thank you, Mr Chair. I want to turn to a part that has not been covered in Schedule 1. It’s clause 7(6)(b) of new Part 2 inserted into Schedule 1AA of the Act. This is about the ability for someone to object to the Environment Court. This is the part that that particular provision falls within. One of the things that the select committee did hear a lot about was the real concerns that, effectively, stripping away the right of appeal to the Environment Court would present in terms of natural justice. I’m interested in the Minister’s response around that, because it was a real concern and one that we have referred to in the Labour Party during, particularly, the second reading contributions. It’s one that I hope the Minister has had a chance to think about.

There is Schedule 2, which identifies a list of different projects all around the country. Now, there’s one project that I’ve been advocating for on behalf of the community that I represent here in Parliament, Palmerston North, and it is listed, as the Minister has said, as the Lower North Island Rail Integrated Mobility project. Now, that’s well known as the Capital Connection when it comes to the Palmy route—a great service. I caught it to Parliament here early this morning, and we are still waiting for that. It must happen. This is something that the Labour Government did initiate the funding for, but it can’t be delayed, and the community can’t wait any longer for that. My question to the Minister is: what’s really important is that in those three columns in the schedule, the second and the third one, the project description and the approximate geographical location, is sort of used as an identifier, and there are a number of changes that have been initiated there, but how important and how realistic is it that those projects are specifically defined as they are?

For example, over a three-year period, there may be some change initiated with a few of these projects, actually. In some regards, that might not affect the actual project description as such, but in some circumstances there may be a direct effect in terms of either geographical location or the specific project description. Is it that these projects are specifically locked in as is, as they are at the moment? Where is the flexibility to deal with any particular change that might eventuate during the process of completing these projects, and does there need to be a provision or, again, is this captured somewhere else?

Rather than letting the Minister truncate his answer and deprive us of his eloquence, the time has come for me to leave the Chair. The committee will resume at 9 a.m. tomorrow. Have a good evening.

Sitting suspended from 9.58 p.m. to 9 a.m. (Wednesday)