Wildlife (Authorisations) Amendment Bill

Good morning, members. The committee is resumed. We are on the Wildlife (Authorisations) Amendment Bill. When we suspended last night, we had concluded the debate on Part 1. We come now to Part 2. This is the debate on clauses 5 and 6—“Amendments about transitional, savings, and related provisions”—and the Schedule. The question is that Part 2 stand part.

Thank you. I appear to be very eager this morning.

CHAIRPERSON (Maureen Pugh): Very keen!

Hon RACHEL BROOKING: Thank you. As you’ve just said, Part 2 relates to two clauses—as Part 1 was just one clause—and we also have the Schedule included. These provisions are transitional, and it’s important that we note that, through the Schedule, there is retrospective effect to this legislation. We know that there has been no regulatory impact statement on this legislation, and so it would be useful for the Minister to comment on the need for it to be retrospective and what advice he’s had on the implications of that retrospectivity, given that it is retrospective and it’s unusual for legislation to be retrospective. I say that as if it’s the constitutional norm, but this is the second piece of legislation that’s going through this House under urgency. We’re still in the Chamber on 6 May. I don’t even know what the real date is in the real world, but we’re here on 6 May, and this is the second bill under all-stages urgency that has a retrospective element to it.

I wanted to say in the previous bill, and I’ll say it for this one as well, that it would be great if the Minister could justify that retrospectivity but also if the Minister would consider some sort of review provisions for this piece of legislation that is going through under all-stages urgency. It could be—and we can come to this in the commencement debates—that the bill doesn’t commence until some sort of review is undertaken, or it might be that the bill goes to something like the Regulations Review Committee, for instance, for a review post-enactment and that there is a trigger for the bill coming back to the House if that Regulations Review Committee—or another review body—thought that there was a need to do that.

Why that is important is because there has been no select committee process on this bill and there has been no opportunity for members of this House who are not part of the executive, but who are part of the Parliament, to ask advisers questions. We’ve heard a number of times in the second reading speeches and first reading speeches that Parliament is sovereign. Indeed, Parliament is sovereign, but at the moment, when we have all this legislation avoiding that select committee process and no opportunity for members on the Opposition side to do their job and ask advisers questions about what the executive is putting in front of them, the executive becomes sovereign. That is what we have at the moment. The executive is pushing through these things.

We had a debate in real life yesterday on Part 1 about some phrases in the Act, and I promise to the rest of the House that my concern was a real interpretation concern. I think what will happen is that this bill will come back to the House, because it just doesn’t make sense to me. That is why I’m asking if the Minister can commit to some amendment that he can make now, in committee stage, that there will be a review of these provisions so that they can be appropriately considered by people who have a little bit more time—they’re not staying up till midnight and then going to select committees at 8 a.m.—and who can actually pursue these questions. That would be a very sensible thing to happen. Please, Minister, will you consider that? I’m helpful to table amendments. I’m sorry; I would—I would—

Grant McCallum: Wake up!

Hon RACHEL BROOKING: Wake up! I’m very happy to table amendments if the Minister indicates that that would be helpful. I’m sure we can do that now, but I would be interested in both the justification from the Minister for it being retrospective and any comments on review provisions and, potentially, amendments to make sure that there is actually a review.

Thank you, Madam Chair. I do want to just begin by emphasising the need, as Rachel Brooking has pointed out, for a review period. What we see is Schedule 1AA refers to, potentially, a large number of projects—perhaps some that are active authorisations; some that are under way—and it is important, given the retrospectivity of this, that there is a review period.

The second point that I want to make—a question for the Minister—is about the number of those projects. Now, we’ve seen, as I’ve mentioned previously in this debate, that there is no regulatory impact statement. There is no proactively released Cabinet paper. We don’t have a huge amount of detail that, previously or in other situations, were this not being passed through all stages under urgency, we would have had access to. I have seen some media reporting that basically says that, in the past 12 months, the Department of Conservation (DOC) has granted 85 similar permits to project applicants and that, in total, 315 applications are under way where a section 53 permit or authority could be granted. My question would be around whether the Minister can confirm those figures and also around whether new Schedule 1AA in Part 2 would then apply to all of those—the 85 plus the 315—that are in train as well.

The third point that I want to make is that, in lieu of a select committee process, all we have—previously, we would have submitters, many of whom have done a fair bit of work in this space in terms of reviewing the Wildlife Act and making suggestions on what should be changed within the Act. We would have ordinarily heard from them through a select committee process. We, of course, haven’t, given that we are sitting in urgency, and so all we have to go on are some of the press releases that have been put out on this particular piece of legislation. There is one from the Environmental Law Initiative—of course, the lawyers who judicially reviewed the decision have said that, basically, it increases the burden on those who are, I guess, pushing those projects through—the 85 and the 315, if, in fact, those numbers are correct. I would be keen for the Minister’s view, given what’s in Schedule 1AA, on whether he agrees that it actually does increase the administrative burden both for DOC but also in terms of the legal tests that, now, those projects have to be put against.

There was also another comment, and I can’t find it in front of me at the moment, around the fact that, potentially, what DOC should have done—again, it’s just been two months since the High Court ruling. That is a point that has been made before: there hasn’t been a huge amount of time. Had this been either delayed a little bit or had there been a slightly lengthier process or some select committee process, there potentially could have been time for DOC to then go through the cases on a case by case basis. We are here because the High Court ruled that in that particular case, the Mt Messenger Bypass case, the authority that was given under section 53 didn’t actually meet the purpose of the Wildlife Act as it was written back in 1953. Therefore, this carte blanche approach to now changing the law to change, ostensibly, the purpose of this Act so that the permits that were given retrospectively will now be legal does not necessarily mean that those who are shepherding those projects through have taken reasonable steps to protect biodiversity.

There is an argument put forward that what DOC should be doing is looking at those 85 cases, where there is legal uncertainty, and trying to work out whether reasonable steps have been taken to protect biodiversity in each of those cases. I would really like to know what the Minister’s view on that is but also what advice he received on that point. Is that something that DOC could actually have done? Was there consideration around the time period that it would have taken for DOC to be able to go through all of those cases on a case by case basis?

Thank you, Madam Chair, and good morning to all. Wakey, wakey. It’s a beautiful day. All right, in response to some of the questions that were made, I’ll just start off with the numbers. I think the member opposite mentioned about 85 that were issued in the year leading up to the court decision. I don’t know the exact number for the 12 months or the seven months leading up to the decision, but under the proposed provisions, all those that were decided and issued—all those authorisations—up to the date of the court decision will be validated.

The numbers I mentioned last night are about right. There are around 500 existing authorities that could be impacted by the decision. Of course, there are a number of permit holders with significant concerns around whether or not they are acting lawfully. That’s not just those in the development or, let’s call it, the economic space, but it’s also those in the environmental space, pest control, and other things. For us, it’s absolutely critical that we restore the universal understanding of the arrangements around the issuance of permits and authorisations for Department of Conversation (DOC) purposes but also the exercise of the permits and authorisations by those who are permit holders.

I acknowledge the concerns about retrospectivity that have been shared by members opposite. There is a low risk of unintended consequences, because everyone who was applying for these authorisations and permits—and also DOC, on the other side, who was authorising these permits and authorisations—had a very shared understanding of the basis on which they were being undertaken and, of course, landing on the conditions that apply to the exercise of the authorisations in the permits.

There was mention of a potential increased admin burden at DOC, and, of course, my concern as the Minister of Conservation is that, now, we’ve got quite a number of applications that are awaiting a DOC decision but DOC is unable to make this decision out of a concern that, actually, that may not be done lawfully, because when the decision was made, of course, it changed the understanding and changed the status quo. DOC wants to be in a space where it can continue to authorise these authorisations and permit these authorisations, issue them, and get on with things.

The comments around the monitoring and whether or not DOC has gone through every single authorisation and made sure that, to the nth degree, conditions are being upheld—that’s an operational matter. I’m confident that DOC is undertaking its role accordingly within its operations and, actually, it’s beyond the scope of the very targeted and narrow changes that have been proposed by way of this bill to restore not only the universal understanding of this permit process but also the ability for us to get on with economic and environmental initiatives.

There was a concern that I think a number of members opposite have raised in relation to retrospectivity. When the announcement was made from Cabinet, by myself, that we would look to ensure that those permit holders had their permits and authorisations validated, we wanted to give absolute certainty to those permit holders today so that they can continue to have the confidence to build the roads that we need to get to far-flung places like New Plymouth—I can see the member for [Interruption]—and other activities like the TBfree programme. Happy to hear further comments.

Thank you, Madam Chair. It seems, on appearance, like this is a small part of this bill, but there is so much in here that I will really appreciate the opportunity to ask about, particularly because it has been so rushed through and there are some real concerns around every aspect, particularly of new Schedule 1AA, inserted by clause 6.

I want to start, firstly, with Schedule 1AA, “Transitional, savings, and related provisions”, in Part 1, clause 1, with the “Validation of certain authorities”. The Minister of Conservation has just been saying in his comments right now that the intention here is to provide absolute certainty that it’s this kind of sweep of this legislation going through and that’s what will fix things.

Now, what my colleagues across the side of the House and I have been trying to say is that it’s actually creating the opposite of that, particularly because the burden of proof and the responsibility for the validation of these authorities is now resting with the Department of Conservation (DOC) and the director-general (DG). The reason that that is is because—and this talks about it as well—it talks about the validation of certain authorities. For the DG to be in the position where they can offer that validation, they actually need to know, right? These 300 or 80—it’d be great to get some numbers and clarity about how many authorisations we’re actually talking about here. DOC need to assess these. They need to have some knowledge and understanding of that.

The Minister also just talked earlier about fixing the administrative burden. We were asking about the administrative burden, and then he said, “The operational stuff is for DOC.” This is operational. To actually know and understand what has been going on with these authorisations and what’s been going on with the projects requires operational knowledge and presumably some form of assessment or surveying or something, some kind of methodology, to enable an actual evaluation of what’s taken place and what authorisations would actually be appropriate.

Now, this was something that we didn’t get answers to in the previous part when we were asking about what resources and what methodologies and assessments are actually envisaged to contribute to this process to ensure that DOC is acting in a way that is informed and that it is then acting in a way that provides the so-called certainty. Now, again, we don’t believe that clauses like this are providing that certainty at all. Really, if DOC is put in this burdensome situation where they’re having to assess these things, that is actually a burden that is unnecessary, given that there are already sections in the Wildlife Act that provide for these incidental aspects of killing.

What I’m also interested in—and I’d love to hear the Minister provide us some advice and assurance around this—is the level of consultation that will take place as part of this. Presumably the activity holders or the companies would be involved, but what about other people who were involved in those projects and particularly in the consultative part of those projects? Are they also going to be involved? This might be experts or iwi and hapū. How will that work? We’re not hearing the real realities of what this means for DOC and how they’re actually going to manage it. Thank you.

I’ll say for the 14th time that there might be up to 500 permits that are implicated by this matter. There’s no burden on the Department of Conservation (DOC) because, under the proposed legislation, those section 53 authorisations that have been issued prior to the court decision are validated. There is a real uncertainty right now that they may be invalid—hence why DOC has, effectively, downed tools until such time as we make these changes. DOC has got enough on its plate trying to look after 30 percent of the entire land of this country and some marine space, and they are absolutely enthusiastic—as you can see—to get on and see this change made.

In terms of the review provisions, there was a question earlier on about whether or not we could include review provisions. Well, in the disclosure statement, we have stated that the Ministry for Regulation and DOC have committed to undertake a post-implementation review within two years of enactment.

Finally, the department, Te Papa Atawhai, has taken on legislative actions to improve the processing of applications, with better guidance for decision making in line with the law. I’ve seen for myself a lot of that hard, diligent, and professional work being undertaken by the officials at DOC to process concessions in a timely manner, and I look forward to further reform in due course that will help enable that much more.

Thank you, Madam Chair. I have two points for the Minister. Before I begin, I want to pick up on a comment that the Hon Rachel Brooking made about the importance of retrospective legislation having full scrutiny in committee stages when we are under all stages of urgency. We’re in a long period of urgency where the Government is rushing through legislation. It is really important that we understand the retrospective impact of this law, which is a direct retrospective impact. There are some circumstances in which we would give it a lighter touch because the retrospective impact is not direct, it doesn’t impact directly on someone’s rights, and it doesn’t directly impact on a decision that has been made.

In this case, there are 500 permits—as the Minister keeps saying, as if that will help us conclude our efforts to investigate this—that are directly impacted by this and 85 directly by the case law moving through the courts. This is something actively being considered by the judiciary. It is something we need to consider at this level very carefully before we impinge on any of the rights accrued before this legislative change was made. We should not be analysing it, as the Minister has suggested, as if this legislative change has already occurred. The relevant rights and duties for us to consider are the relevant rights and duties that existed before this legislative change and what the legal situation was then and how it was well understood at the time.

Building on the starting point that no legislation should generally have retrospective effect, there are two tests for direct retrospective effect. One is that it applies to an event or action that has already taken place. This is the case here. The second one—and this is something we wish to explore with the Minister—is that it prevents a person from relying on the rights that existed at the time of the conduct. This is something that I will put to the Minister now: how many of the permits that are impacted by this, Minister, are relying on a situation that was in the law as it was prior to this proposal? How many of those permits will be directly impacted and changed, and what is the scope of the change? Help this committee to understand what sort of work was being carried out unlawfully and whether the work that was being carried out unlawfully was because of an error or because of a decision of the court that was unexpected. Those are the two things we really have to grapple with when we decide about how this Parliament makes the decision about how clauses 1, 2, and 3 should apply under Part 1 in new Schedule 1AA.

The next point I wish to make is that we haven’t heard, from the Minister, who the beneficiaries of this change will be and who those who will lose out in this circumstance are. Are there groups that have brought claims or are in negotiations with the Department of Conservation (DOC) who do not agree with the way that the permits have been applied and whose rights would be extinguished by this decision? Simply put: are there people out there who are upset by this change? Are their rights being extinguished? Parliament needs to consider, every time we make retrospective legislation like this, who the losers are. Is it their livelihoods that are on the line?

Andy Foster: No.

ARENA WILLIAMS: Are their rights—

Andy Foster: No.

ARENA WILLIAMS: How will they be impacted? What is the effect for the community? We haven’t had any discussion of that, Mr Andy Foster, in this committee stage. We would welcome a call from New Zealand First about the people who are impacted because of these bills.

We’ve heard from the Minister that it may be roads and it may be infrastructure that are being built here which are beneficial to the community. That is great. That is something that Parliament should take into account about who benefits and what the cost of the retrospectivity is. When you extinguish rights for some people for the benefit of others, you should understand the benefits, but you should also understand who is affected. It’s not just the kiwis. It’s not just the lizards. It’s the people who care. It’s the people who have brought these claims that are then impacted by these kinds of decisions.

I also want to ask the Minister: is this validating matters that are generally understood to be lawful but are, in fact, unlawful because of an error? That error question is—well, what is the error? Was there an error when Parliament passed the initial legislation? I know we’re going back some way, Minister, but when Parliament last considered this, was it generally understood that it would be the case that DOC would ever have these sorts of powers that are now being fixed up here? Is this a fix? We need to understand whether the intention here has been broken.

If I can just finish my second point for the Minister. I want to ask the Minister about his review provisions, which he has helpfully outlined. They are different from those proposed by this side of the House, and I want to make that clear. What is being proposed here is that it is appropriate for retrospective legislation, especially with direct impact, to have a review by Parliament, either by one of its select committees, its Regulations Review Committee, or another body, as determined by the House, through primary legislation. What he has proposed is that there will be a review provision by not only his ministry but also the Ministry for Regulation.

I want him to explain to us, firstly, what the role of the Ministry for Regulation is in that review, given that it has no legislative framework yet for us to understand what its review role will be. Secondly, if the ministry is to review this legislation and the impact of its retrospectivity, how will that be public? How will the people whose rights are impacted know what that review is? How will they feed into that? Will there be consultation with them? Who will be consulted? To give a power of review that is, essentially, a review of the primary legislation through the primary legislation with no mandatory considerations, no design for that review—we need to understand, at this point now, how that review will be conducted. Will the people who care be at the table?

These are simple questions, but it is very clearly the role of Parliament to make sure that these rules, which apply to people and take away peoples’ rights—we can do that, but we need to understand what those rights are and that they will be treated carefully, with respect, in the next period for review. Minister, what is the role of the Ministry for Regulation? What legislation will guide the Ministry for Regulation when considering the effect of the retrospectivity here?

Thank you, Madam Chair. I turn to the Schedule, specifically Part 1, clauses 1 and 2. The Minister has helpfully laid out some of the context around this, which is about the 500 permits that need to be validated. I also think that the crux of the situation is that the court has determined that what the Department of Conservation (DOC) is currently doing is, in effect, illegal, and I can appreciate that the Minister would like to rectify that. Out of the permits available—and the Minister has helpfully given us an answer, and previously the Minister has mentioned that this has been going on for many years—what was the earliest instance of a permit being granted?

Considering DOC has been giving these grants under section 71 and there’s no information available to this committee about how DOC reviews these permits or how DOC ensures that these permits are up to date with the most recent legislation or the latest iteration of any relevant legislation as well as the duration of some of these permits, are some of these authorities enduring as in they will go on for 20 years or for another 50 years to come?

Without that kind of information, I want to know whether, when this bill comes into effect, including the retrospectivity, there is a requirement for DOC to ensure that all of these authorities that are now being given, essentially, legal effect under this bill will be compliant with the relevant legislation as it is or with the relevant legislation at the time that they were granted. I feel that in terms of Schedule 1 and the retrospectivity, it just says that they are, essentially, all, in effect, legal, but it doesn’t mention—and we have no understanding of it—whether the legality at the time of grant is now consistent with the Wildlife Act as we see it now. We don’t have the earliest instance. That is my main question around this for the time being. Thank you.

Thank you, Madam Chair. One thing I would like to truth test, Minister, is the whole proposition that this legislation is based on, which is that it’s responding to a legal uncertainty that is somehow a perilous threat to these activities that are supposedly authorised. The Minister of Conservation seems to be suggesting that, in the past two months, this whole swathe of projects have been on hold and that nothing has been going on. I just want to clarify if that is what the Minister is saying, that there are perhaps 500 projects that have been doing nothing—or, I presume, a bunch of those are. As my colleague just asked, when was the first unlawful authority issued? How far back are we going? Last night, the Minister talked about it being 20 years ago. Are many of these authorities, which are going to be now validated by this legislation, projects that are long finished or complete, or are we talking about only active projects? Is the Minister suggesting that all of those projects are on hold?

One of the reasons I want to ask that is because the argument for this being so rushed through the House and not scrutinised is that there’s some sort of temporal threat to these things going about their business as they are authorised. In that regard, who would be the prosecuting agency for a breach of the Wildlife Act? Given that this court has deemed that these authorities are unlawful—

Hon Tama Potaka: DOC?

STEVE ABEL: —who is the prosecuting agency? Yes, you’ve just answered the question correctly. I heard you. It’s the Department of Conservation, isn’t it? No?

Grant McCallum: Getting repetitive.

STEVE ABEL: Excuse me—point of order. I’ve been accused of being repetitive. I’m asking this question for the first time.

CHAIRPERSON (Maureen Pugh): That’s not a point of order.

STEVE ABEL: That is the first time I’ve asked who the prosecuting agency is, and I saw the Minister ask the official that very question because they didn’t know the answer.

CHAIRPERSON (Maureen Pugh): It’s not a point of order.

STEVE ABEL: OK. Well, Madam Chair, I would appreciate if the other side could pay some attention. These are serious questions. If the prosecuting agency is the Department of Conservation, then is the Minister suggesting that the Department of Conservation is about to go and prosecute all of these operators with whom they have, no doubt, worked closely to evaluate what the ecological questions are and what the species are that need to be protected? It doesn’t seem plausible. I’d like the Minister to clarify that.

In the interim two months since this court finding, how many court cases have been brought for breaches of the law now that it’s been deemed unlawful? I wonder if the Minister has any answers on that. One of the messages that the Environmental Law Initiative made pretty clear in their communication with Newsroom was that they did not believe it was likely that there would be any cases brought, because the legislation—the Wildlife Act section 68AB—already has a defence of reasonable efforts. Those are those are my core questions.

One thing I want to quickly clarify before my five minutes are up is: clause 1(2) of new Schedule 1AA, inserted by clause 6, “Validation of certain authorities”—the wording there—says, “An authority to which this clause applies is validated to the extent that the authority would have been valid had new sections 53A and 53B(5) been in force when the authority was granted or purportedly granted.” Can you just double clarify what that clause exactly means, Minister? Thank you.

Thank you for this additional opportunity to be involved in “truth, dare, or command”.

The review will be led by the Department of Conservation (DOC). The Ministry of Regulation will administer the process for this review as it’s linked to the regulatory impact requirements set out in the Cabinet Office circular. What I’ll also add is that last night, in the wee hours, I mentioned that we will accelerate, with acuity, the review of the Wildlife Act. As we recall, the previous Government was very intent on talking the talk, but we will walk our talk.

It’s premature to fully articulate the terms of reference for the review that will be undertaken between the Ministry of Regulation and Te Papa Atawhai - DOC, but there will be a post-implementation review and a full-on comprehensive review. I can’t wait to get into fifth gear for that matter.

In relation to the fuzzy math of the other side, I note, for the fifteenth time, there are around 500 potentially implicated permits. Right now, one of the reasons why we’re so intent on progressing this urgent legislation through the House is that there are about 300 permits awaiting consideration by the Department of Conservation. Now, whilst some members of the House might not think that’s important and think that we can wait weeks or months or years for another review and committee, we’re actually very intent on making sure that important programmes—environmental, economic, and others—get kicked off and started. That’s one of the reasons why we’re so committed to ensuring that this set of amendments is made to the Wildlife Act, so that these programmes that often align with the renewable infrastructure aspirations of all those in the House—

Hon Rachel Brooking: And coal mines?

Hon TAMA POTAKA: —are accelerated. And, if required, mahi in the mineral space, which I’m sure matua Minita Jones will be happy with.

Over the past two months—in response to a question from my Green colleague—DOC has stopped issuing these permits. The tools are down. That hasn’t necessarily resulted in an increase of orange cones throughout the country, but it has meant that a lot of folks that want to do good things for the motu have been unable to do that because they haven’t been issued with a permit. Now, when permits are issued, of course, there is a bit of consultation that’s undertaken in good faith prior to the permits being issued. Often that consultation will be with local, on the ground, tangata whenua during the permit processing.

There was a question around when the first unlawful authority was issued. I’m not going to answer that question. What’s more important is that we are going to validate all section 53 authorities that were issued prior to the court decision so people can operate with the right signals, with the right incentives, and with certainty, just like my marriage.

Andy Foster: In the way they thought they were going to do it.

Hon TAMA POTAKA: Yes, that’s right, ditto. Now, on that question around the prosecuting agency, I think we’ve received the answer to that. In relation to the retrospectivity of this, as we’ve mentioned many times, the High Court decision introduced quite a degree of uncertainty. This sort of targeted and narrow solution, with a very short, tight, succinct group of amendments, will respond to the various issues that were raised through the Mt Messenger court decision. It provides that certainty that people can operate in line with these section 53 authorities, which, until this time, have been a universal understanding. We’ll restore the status quo, and, as such, it was a justifiable amendment at this time.

I move, That debate on this question now close.

I’m not going to take the question, but I do think we need to be looking for new material. This has become quite repetitive.

Thank you, Madam Chair. I’ve got three points I want to make. One of them is in response to what the Minister has just said about review clauses—that, within two years of the enactment of this bill, there will be a review and that he wants to walk the talk and review the whole Act. Great. It’s great news that he’s going to get on with that work, but the issue is that this bill is being passed in all-stages urgency, so an immediate review is required.

Helpfully, when I was last speaking, my colleague Arena Williams drafted an amendment to do that immediate review of these words to see if they work. It doesn’t have to be a policy review, just the working of the mechanisms—not a big policy one. It is to insert a new clause 2(5): “This clause does not apply to an authority referred to in clause 2(1) of this part unless the Minister initiates a review, within one month of Royal assent of this Act, of this retrospective provision, to be conducted by Parliament before 5 March 2027.” We could change the dates on that, but that is the sort of mechanism that we’re talking about. There needs to be an immediate review, because this has not had submissions. I have been very unsatisfied with the answers that we’ve been getting from the Minister. That’s one point.

My second point is about the role of section 71. We heard from the Minister—this goes to clause 2 in the Schedule, on page 5, “Lawfulness of certain section 53 authorities when section 71 applicable”—in the Part 1 debate that if section 71 is applicable, you don’t go to section 53. We also heard, in that debate, that section 71 is horribly written and that it only applies to some different pieces of legislation, many of which are now repealed. One of those pieces of legislation relates to roads. If the Minister can engage on this relationship between sections 71 and 53, when the court case was about the road—where section 71 applies, how should it, in the future, interact if somebody gets a section 53 authority?

I note that this, too, is trying to clarify that it doesn’t matter if you got a section 53 authority when you should have got a section 71. That’s OK—it’s lawful. What happens in the future, given that section 71 is such a mess and people, probably, don’t understand when they should be using section 71 as opposed to section 53? I think it would be very useful if you say, for the Hansard, how that relationship between those two clauses is, in your view, supposed to work. Then I think it would also be useful if we go on to clause 4 of this schedule that’s being inserted, on the back page of the bill.

There’s specific mention of the case that we’ve all been talking about tonight. Again, it would be good for the Minister to confirm my interpretation of that. Is that the case, Environmental Law Initiative v The Director-General of the Department of Conservation and others [2025]—well, the Environmental Law Initiative wouldn’t want to appeal it, because they won, but, if the director-general or anybody else who has appeal rights around their case—they are not impacted by these changes, and that is the point of clause 4. That is different to any other proceedings that might already be in train about this. Then, if the Minister has had any advice and if there are any other actions in train at the moment about the Wildlife Act, that would be useful to know as well.

I appreciate the creative suggestions around an immediate review. We will not be undertaking that. It’s a suboptimal and underwhelming idea, and it would just create more uncertainty, but thank you for that interesting and creative idea.

In relation to the Mt Messenger case and the Environmental Law Initiative, the finding, actually was that a section 71 authorisation was valid in that instance. We are concerned about the additional—potentially up to 500—permits that are held by permitholders. One comment was made this morning, and last night, about the rights of people who may be affected. Yeah, the rights and expectations of the people who hold the permits are what we are really concerned about. We are really concerned about their provisions and their authorisations, and any suggestion that there are other people out there who are not involved in the rights and permits that may be affected—the people who those permitholders employ, and the people who are driving on the roads, and the people who are running cows throughout the country and who may be impacted if this decision has an influence on the TBfree programme. All of a sudden, they’ve got issues with their bovine populations and their bovine herds, maybe even in the hemp hurds.

Section 53 is the focus of this targeted, narrow set of amendments that have been proposed, at this moment in this time, to give certainty to many, many permitholders and, indeed, New Zealanders. It’s not section 71, and we won’t be playing “Mickey Rabbit” on an immediate review. Kia ora.

Thank you, Madam Chair. We have some trouble here in this committee stage now. The Minister of Conservation said, “I’m not going to answer”, on a question about how far the retrospectivity goes back in time and what the nature of the retrospectivity is. The problem is that this committee is being asked to make a decision that could affect the rights and interests of people going back 30 or 50 years, without any understanding of what is being asked of it.

My first question to the Minister is: does Cabinet know how far the retrospectivity—which is being proposed in urgency here today, with no ability for the Parliament to review it—goes back? Does Cabinet know what the nature of the retrospectivity is and whose rights are being extinguished?

Madam Chair, this is not a repetitive point. If the Minister doesn’t answer, Parliament needs to be clear that it is being asked to make retrospective, directly retrospective, legislation about a matter that it does not understand and has not been provided with answers on. This is a serious point, and the gravity of it cannot be stressed enough. We deserve the chance to interrogate what is going on here. The reason why lawyers and some sort of appointed board at the Ministry of Regulation do not make these decisions, and why Parliament does, is because parliamentarians are charged with the duty of understanding how these things affect their communities.

I’ll give you an example, Minister. When I worked in Ngāti Whātua o Kaipara, in a role that you yourself have held in iwi organisations, I was responsible for the overseeing of a permit granted by the Department of Conservation that affected the mokomoko—the lizards—in the Woodhill Forest. In that situation, we granted the permits, for a road built in that forest, where it was agreed with the iwi prior to the building of the road that the lizards in the area would be removed by the iwi. This made job schemes for the young men who were employed in the work. They were hunters. They were people who did forestry work in the forest, and, for a long time, they stayed together at the marae and were overseen by a kaumātua as they removed these lizards. Not only did they remove the lizards, but they also learnt about the history and the stories. There is a lizard on the pou of that marae. These are important parts of history and the things that bring these people together. They are local people who share local stories about this wildlife. In that situation, one day, work was being carried out when bulldozers came and removed the trees in an area where this work had not been conducted. That was devastating for the young men working on this project for a such a long time, who had dedicated their time and energy to it.

The reason I am asking the Minister whose rights are being extinguished by this is because people care very deeply about it. Young men who are working out there in forests right now will have problems with the way that it has proceeded over many years. Things go wrong in these situations. Permits are issued wrongly. People take the wrong actions under permits that are granted. They should have the ability for a court, a tribunal, or an MP who represents their interests, to raise these issues, instead of a Minister who comes to this Chamber and says, “I’m not going to answer. I’m not going to tell Parliament what I am extinguishing.” This is something that should be interrogated by this committee. To shut down a debate on this, like the Minister is trying to do, and to say, “I’m not going to answer on the specific examples. I’m not going to make this real.”, makes a mockery of this entire process. Why don’t we let lawyers decide every time we make retrospective decisions? You know why we don’t? Because the real people who are affected by this are represented by us. This is a Minister who has taken an arrogant approach to changing their rights and taking away their ability to have any say in the processes, which affects their jobs, their livelihoods, their families, and their communities. That is a shame.

We should continue to investigate this legislative impact very carefully because this is the only opportunity we have, not only as Parliament but as the New Zealanders who are affected by this. It maybe 10 years back, it may be 20 years back, or it may be 50 years back, so, Minister, tell us how retrospective this is and who is losing.

I appreciate the energy and the passion that all members have for sustaining the environment and mahi out there. That’s one of the challenges out there. Right now, there are hundreds of applications waiting to be authorised by the Department of Conservation, and until they’re authorised, there’s actually not as many jobs in the community. That’s one of the challenges that we have as we try to get this economy moving again.

It’s very plain, as set out in the relevant amendments, that the authorisations that were issued under section 53 before the court decision was validated are valid. There is a real sense of uncertainty and a lack of assurance and confidence amongst many permitholders, and, indeed, there is a lack of certainty for the agency that is responsible for issuing the permits around their ability to issue permits in the manner that was universally understood prior to the court decision. We are very focused on ensuring this targeted set of narrow amendments is enabled so that those very young men that the member just mentioned and just referred to are able to continue doing the important mahi that they are doing in order to look after te taiao, amongst other things.

Thank you, Madam Chair. I still have many questions, and I’m just going to get straight to them. I’ll just make them really clear so that we can, hopefully, elicit some clear responses. The Minister has been saying, even stating, in his last response that this intention is to validate what has happened in the past and what may happen in the future. Now, what we’re still unclear about, and what I’d really appreciate an answer on is: is the intention with this bill that the director-general will validate these without knowing? Is the Minister saying that it will just be validations no matter what? Presumably, there is some form of assessment. What is that assessment? What is the methodology? Will they be validated no matter what?

What if, in opening this huge can of worms and bureaucracy, the Department of Conservation identifies within this process—and it becomes clear, on the odd occasion, with these hundreds and hundreds of authorisations—that, actually, some of these activities have caused something unlawful? They may have actually caused damage that is concerning. Are authorities and the people and companies who have undertaken these activities going to be exempt, no matter what, from prosecution? What is going on with this process in terms of actual assessment of the actual activities and the impact on the environment? Then, what is the assessment that flows through that process into the validation or not? Then, will those authorities actually be exempt, regardless of what actually took place and the impact on the environment? Those are some very clear questions that we are yet to get an answer on. Please elucidate, Minister.

It’s starting to get to sausage roll time, people. How far back do the previous authorisations go? The earliest active authority that I’m advised of started in 2003. Monitoring of these authorisations actually takes place on a regular basis, and the validation of a permit, as mentioned, before a court decision was made—those permits will be validated. It doesn’t mean that the conditions have changed. The conditions are still within the permit and the authorisation. Department of Conservation (DOC) rangers and others go out to monitor these on a regular basis. Sometimes iwi members do as well. A member in the Labour team just mentioned that before.

The validation of these permits, as proposed by way of the bill, does not mean the permit holders can go and do whatever they like. They have a set of conditions that they have to actually fulfil and deliver on, and they are monitored typically by rangers out in the Department of Conservation - Te Papa Atawhai districts concerned. That might involve site checks and reporting, but it depends on the conditions on the permit. In the Mt Messenger example, that was a couple of times a month with the Mt Messenger Alliance crew, who were constructing the roads. DOC staff members sit on ecological review panels reviewing aspects of the consents and ensuring those relevant outcomes have been met. We’re very adamant, again, that people need confidence, and that’s what we’re here to provide.

As I said before, I am looking for new material.

Hon Kieran McAnulty: It’s new material. I certainly have it, I promise.

CHAIRPERSON (Maureen Pugh): I’m not hearing a great deal of that. I will give the call to the Hon Kieran McAnulty.

I’m actually seeking a point of order, Madam Chair.

CHAIRPERSON (Maureen Pugh): Oh, sorry, a point of order.

Hon KIERAN McANULTY: That’s all right. It’s quite timely, after saying that. I’m really after some clarity here. I don’t think I can remember a time when a Minister has stood up in committee stage—

CHAIRPERSON (Maureen Pugh): What’s the point of order?

Hon KIERAN McANULTY: This is the point of order. I don’t remember a time when a Minister in a committee of the whole House stage has stood up and flat out refused: “I will not answer a question.” That has been raised by my colleague Arena Williams. The Minister has responded after a subsequent question and has not addressed that again. Now, you’ve said to the committee that you’re looking for new material. The issue is that when questions are being asked—and quite serious ones—and the Minister’s response is “I will not answer that”, what option have we got if we’re not getting answers? It’s one thing for a Minister to ignore our questions—

CHAIRPERSON (Maureen Pugh): I understand—I understand the question.

Hon KIERAN McANULTY: Actually, my point of order is yet to come, Madam Chair—

CHAIRPERSON (Maureen Pugh): Well, can you get to it, please?

Hon KIERAN McANULTY: The point is that the committee, I think, is at the point where it needs reassurance from you as Chair that you are taking into account that the Minister is refusing to answer questions, in your consideration of the closure motion.

I’ll refer the member to several rulings that Mr Speaker has made, especially during question time, where the answer may not satisfy the questioner. It’s not my role to instruct the Minister in any particular way to answer questions. That will be judged by the general public.

Hon Kieran McAnulty: Point of order?

CHAIRPERSON (Maureen Pugh): I’m not going to get into a debate about it.

Hon Kieran McAnulty: It’s not a debate, Madam Chair. Point of order?

CHAIRPERSON (Maureen Pugh): A point of order, Kieran McAnulty.

This is not question time. This is the committee of the whole House, and the requirements of you as presiding officer are completely different to that of the Speaker during question time. The question was very specific. Presiding officers during committee stages have criteria that need to be met in order for a closure motion to be considered. I asked you to reassure the committee that the Minister’s flat-out refusal to answer questions is being taken into your consideration of the closure motion. It wasn’t anything to do with Speakers’ rulings during question time.

The short answer is yes.

Thank you, Madam Chair. I want to thank the Minister for finally giving us a date, which is that the earliest instance is 2003. Now, since 2003, based on the New Zealand Legislation website, we have seen that the Wildlife Act has been amended no less than 22 times, at a minimum—the New Zealand Legislation website only goes back to 2007, according to what I can find. I’d just like to get reassurance from the Minister, then, that this means that every time there is an amendment, we look at whether those authorisations that have been granted, or any new authorisations being granted, are in line with the updated legislation. That’s my first question.

My second question is to do with clause 2 in new Schedule 1AA, which is to be inserted by clause 6. This is about the lawfulness of the authorities that have been granted under section 71. I think that there is one thing, that hasn’t really been touched on, that stood out to me while I was going through the High Court ruling. I want to point the Minister specifically to paragraph 116 of the High Court ruling, where the judge said, “I observe that I do not see any basis under s 71 for a retrospective consent to be granted. That section expressly requires the ‘prior consent’ of the Minister of Conservation and the Minister charged with the administration of the second Act in question.” This then meant that under section 71, the Department of Conservation (DOC) not only has granted authorities prior to something taking place but also retrospectively after wildlife has been killed.

Now, this is really, really interesting. My understanding of the legislation you have put forward is that DOC is still required to proactively, and prior, grant an authority but that DOC still cannot retrospectively grant an authority. However, the carte blanche nature of this Schedule—particularly clause 2, which says that everything that was granted under section 71 would be validated regardless of whether they are proactive or retrospective in nature—means that this clause actually goes against Part 1 of this bill. Can I just confirm whether that is the correct reading? Again, Part 1 of this bill specifically does state—well, my understanding is that it does state it, because it didn’t say, “Once this animal is killed,”. It talks about the killing of an animal which is prospective. What that would mean is that DOC still does not have the power to give authorities retrospectively, but the validation of those authorities under clause 2 in Part 1 of the Schedule allows for those authorities that have been granted retrospectively, which then would go against the legislation. Am I reading that correctly?

Those are my two questions. The first one is whether, with the update of the Wildlife Act, the authorisations are still in line with each iteration of updating the Wildlife Act, and the second question is whether that would create an inconsistency between Schedule 1AA and Part 1 of this bill, because the validation of any authority that has been granted retrospectively, which goes against this bill but also against the High Court’s ruling, is not going to create inconsistencies.

Just in respect of those two questions, permitholders who hold a permit with conditions need to stick to those conditions. Now, sometimes the law changes, there’s amendments, and they have to follow the law that’s over and above their conditions. They might have conditions that are negated by legal changes along the way, amendments—OK, you’ve got to follow the amendments to the legislation.

The second thing is that there were additional comments about section 71—the proposed amendments are not about section 71; they’re about section 53. That’s what they’re about. The Mt Messenger case and the decision, basically, came to the view that section 53 was not a legitimate basis for that road to be undertaken and for the activity around wildlife control to be managed, but section 71 was a legitimate basis. This set of amendments is about section 53 and making sure, to your final question, that those authorisations that were issued under section 53, before the court decision, are validated.

In the future, here is the understanding—which is Part 1—through which we can be absolutely certain that the universal understanding that everyone had before the court decision is reinforced and we can rebalance and restart this matter.

Thank you very much, Madam Chair. I have a further question for the Minister, given that he has not answered the question about how far the retrospectivity extends. I want to ask him why Schedule 1AA does not include a date frame. He must know, surely, even if he’s not going to tell this committee how far back the retrospectivity, which he is asking us to pass in urgency, goes. He must know. Even if Cabinet doesn’t know, he must. Why has he not introduced that time frame in the legislation?

One of the key principles of the legislative drafting guidelines is that if there is retrospectivity in legislation, if that retrospectivity in legislation is direct, and if that retrospective and direct legislation impacts on the accrued rights and duties of people, it’s a really bad one with retrospectivity. If you’re going to do that, be specific about it. “Say it with your full chest” is the way it’s expressed in parliamentary procedure. Where is the authority given by Parliament to extinguish these rights?

I see that National members on the other side of the Chamber are exercised by this point. They know that retrospectivity in this way is sloppy procedure and sloppy legislative drafting. We’re not even sure who is affected by this. It is outrageous, but that is the standard applied by these National Ministers. Just insert a date range, Minister. Would you accept a date range from me in an amendment, based on the date range proposed by Lawrence Xu-Nan, of 2003? Would that at least give this Parliament some semblance of care about the standards that should be applied to retrospective legislation, Minister?

I won’t reach into Hansard so I can read out what I said. I’ll just say it. I’m advised that the active authorities that are in play at the moment are from 2003 onwards. This goes up to the date of the court decision. That’s what we’re dealing with. There may be some—but I’m not advised of that—that are before that, but we’re dealing with active authorities from 2003 up to the time of the court decision. Please, Mr Chair, I do not want to have to repeat that answer for a third time.

Thank you, Mr Chair. Thank you, Minister, for that answer—

Hon Rachel Brooking: Really?

STEVE ABEL: To some extent. I was trying to give him some credit. It’s hard because, for clarity, we haven’t had the thoroughness of answers that we should rightly expect in this process of prosecuting such a significant piece of rushed legislation on the primary means by which wildlife is protected in this country, and legislation that, basically, issues licences to kill.

Now, I want to specifically talk to clause 3 in Part 1 of new Schedule 1AA: “Savings relating to commenced proceedings: Clauses 1 and 2 do not affect any proceedings commenced or in progress before 28 March 2025, or any rights of appeal.” Another question of how many, if any, active prosecutions or appeals will be affected by this clause—does the Minister have an answer for that? Does the Cabinet know? How many will be affected by that clause 3, which states clauses 1 and 2 do not affect any proceedings?

Clause 4: “Effect of clauses 1 and 2 relating to High Court judgment: (1) Clauses 1 and 2 do not—(a) apply to the authority—(i) that the Director-General granted or purportedly granted to the New Zealand Transport Agency under section 53 on 22 December 2021; and”—I won’t read the rest of it out; you don’t need to hear that. My question is regarding clause 4(1)(a)(i) and (ii): why is this one case treated differently? The implication is that the outcome of this case challenges the Government’s legal position. Can the Minister clarify why there’s a clause that specifically relates to the Environmental Law Initiative v The Director-General of the Department of Conservation and others. Finally, on that same—

Hon Rachel Brooking: Minister, answer my question on that point.

STEVE ABEL: You asked already—yes, I know.

Hon Rachel Brooking: But it’s not been answered.

STEVE ABEL: It hasn’t been answered. I was trying to ask it in a way that maybe the Minister would realise that he needed to answer it. Part 1—

Hon Shane Jones: Repetition.

STEVE ABEL: The Minister needs to answer questions, and we have a right to ask questions to be answered. If the Minister is going to continue to take the position that he was called to point of order on by Kieran McAnulty, where he’s refusing to answer questions, then we should keep asking them and say, “Why will you not answer this question?” It’s an explicit clause in this legislation—

CHAIRPERSON (Teanau Tuiono): If I can ask members to direct their conversation my way and not to each other across the Chamber. I would just also note that what we’re looking for is the Minister addressing questions. I understand that members might not appreciate or support the answers given, but having Ministers address questions is important.

STEVE ABEL: Thank you, Mr Chair—the Minister has not addressed that question, to be clear. Part 1 of new Schedule 1AA, clause 4(2): “However, clauses 1 and 2 are to be treated as applying to that authority for the purposes of any proceedings for an offence against section 53(7)”—I won’t read all the numbers to you; I’ll spare you that—“that are commenced on or after 28 March 2025.” In terms of clause 4(2), the intention of the clause is unclear, Minister. Can the Minister elaborate on the intended effect of this, because so much of this legislation is unclear? That’s my question.

Thank you, Mr Chair. Look, I want to go back to the point about section 71. The Minister tells us, “Section 71 is not relevant.”—yes, it might be a mess; the whole Act is a mess—“We’re just fixing 53.” Fine, I’m not disputing that, and I’m not making a political point about section 71. What I want to know is how they interact, because we have here, in clause 2 of new Schedule 1AA, a specific clause on the interaction.

Now, section 71 is a miscellaneous, strange provision, and it only applies to things that are in Schedule 9. The Minister, in the Part 1 debate—I think I heard, and he can correct me if I’m wrong—said, “If section 71 applies to the type of project you’re doing”—so a road; we know that section 71 applies to roads—“If you are doing a road, then you must use section 71, and section 71 requires the signoff of two Ministers. That is an arduous task, so I would presume that most people would not want to go to the section 71 route if the section 53 route is available, because the section 53 route is by the director-general or a delegated person. The question here is about what the Minister said in Part 1. If you have to use section 71 and if section 71 is applicable, then you can’t use section 53. That question has not been answered.

I think the interpretation that the Minister said in the first reading is relevant to this clause 2, because it says, at subclause (2), “An authority to which this clause applies is not unlawful merely because the person to whom the authority was granted … required consent under section 71”. I presume this transitional piece in the Schedule is to make lawful anything that was granted under section 53 but should have been granted under section 71. That’s for the retrospective nature of these consents—fine—but can the Minister confirm that? He keeps talking about section 71 and saying it’s not relevant. Section 71 is relevant, otherwise we wouldn’t have this clause about section 71.

What happens, then, with future applications for a road? We know the relevant legislation for a big road, a national road, is in Schedule 9. What happens in the future? I know I’m slightly wavering off these transitional provisions, but it goes to the wider point that the Minister has said about section 71: with a new application that is for something that section 71 provides for—e.g., a road—does that application have to go through section 71, or can it avoid section 71 and go through section 53? If that is the case—logic would say it is the case—then we need clause 2 to rectify past mistakes where people thought they got a permission under section 53 but, because of the court case, those were invalidated, not just because section 53 consents can’t be given but because they should have got one under section 71.

See, it’s not a political question I’m asking. I’m just asking for clarity so that—on the Hansard—people who are making roads can know what sort of permission they are needing to get. Is it from the Minister of Conservation and the Minister of Transport? Or is it a simpler process by the director-general?

There are a couple of questions that have been asked. We’ll start with the immediately previous speaker, Rachel Brooking. For clarity about interaction between section 71 and section 53, in the future, all applications that should be considered under section 71 will be considered and granted if suitable under that section. However, as I said previously, some permits that should be granted under section 71 have mistakenly been granted under section 53. These will be validated by way of the amendments so that people can rely on the permit that they hold.

Why is new clause 4(1) in Schedule 1AA, inserted by clause 6, calling out the relevant litigation? Our aim is not to affect the existing judgment in that case or to rewrite the words but to acknowledge the decision of the High Court, noting that the permit in that regard under section 71 was validated.

Finally, in relation to cases, I’ll note that to ensure appropriate safeguards are in place and to avoid affecting jurisdiction of the court or tribunal in line with section 53 of the legislation, the bill will apply from enactment of the provisions relating to the Wildlife (Authorisations) Amendment Act 2025—assuming it’s passed—and will not affect any proceedings commenced, or in progress, before 28 March 2025, the date of the relevant announcement by Cabinet, or any rights of appeal. As at the finalisation date of the materials herein, the Department of Conservation is not aware of any proceedings challenging additional authorities. The risk of additional proceedings being filed ahead of enactment is considered low. As soon as this bill is enacted, it will lower the risk of additional litigation during this period, and we can get in, get on, and get this country back on track.

Thank you, Mr Chair. I really want to pick up on the Minister claiming that these activities will be validated. There are a number of questions that have been asked that have not been addressed in any way. The questions about these validations are: how will they be validated? What is the process? What do they need to meet to actually ensure that they are assessing these before the validation? What kind of assessment will take place? What is the methodology? These are questions that have not been addressed in any way, shape, or form. What does it mean for the actual legal status and standing of these activities that have taken place? Is it that, across the board, they will be validated no matter what? What if there are instances that are picked up where there may have been something unlawful or some unfortunate situation that actually does need some form of prosecution, enforcement order, or something like that? What does this bill envisage the process will actually be with the director-general? These are questions we don’t have answers to, and what is absolutely clear is that we need them. For example, if I just take the Mt Messenger example because it’s the one that’s most prominent with this bill, do the changes outlined in Schedule 1AA, when it comes to clause 4 and the effects of clauses 1 and 2 relating to the High Court judgment, give Waka Kotahi immunity from prosecution from any Wildlife Act offences committed at Mt Messenger?

Now, these are really clear questions. They have not been addressed. I don’t see how, without a select committee process and with this literally being the start and finish of this bill, we can proceed without these questions. I’m really looking forward to the Minister addressing them. Thank you.

This reminds me of a Supergroove song that goes something like this: “Sitting inside my head, laughing at what I said.”

For the fifth time, I will repeat: those permits that—

Hon Willie Jackson: Don’t sing it!

Hon TAMA POTAKA: I might get a contract off their production company!

Those permits that were issued before the court decision are deemed valid. That’s what it is. The Department of Conservation (DOC) has already gone through all of these permits. It’s consulted with the right people. It’s issued conditions, as part of these permits, and they were operating validly until such time some serious uncertainty was created by the Mt Messenger case. If you have the chance to read that and correlate it with the materials on new Schedule 1AA, page 6, we’ll leave that judgment by itself because, actually, there is a section 71 authorisation that was considered in order by the court. The bill deems authorities granted in the past to be valid, as those permitholders had fairly assumed that to be the case. All authorities are issued on the basis of what is required as reasonable steps to protect wildlife. DOC will not be reassessing these decisions. Active permits will be monitored in line with the specific conditions in the permit, as they have done for many, many years. Kia ora tātou.

Thank you. I will just acknowledge that the Minister has addressed the question. Some members might not like that particular answer, but it has been addressed. We are getting into repetitive behaviour. I just want to note that, on this tracking sheet, we are tracking, exactly, all the questions being asked. I do want brand new material. We might make the Minister sing Supergroove songs!

Mr Chair, thank you. This is going back to the Minister of Conservation’s earlier answer. I do want to acknowledge the Supergroove quote, and that may be the most sensible thing I’ve heard the Minister say during this debate—more of it is welcome, particularly in New Zealand Music Month.

This is a very quick contribution from me. I’m back on this interaction with section 71. I appreciate the Minister did actually answer some of my question on that interaction. I would just like him to say for the Hansard—my question was coming, and there were some heckles when he was answering—that if section 71 applies to a road and there needs to be an approval under the Wildlife Act for a road where section 71 applies, that application can only use section 71, and it can’t use section 53. That’s the question. Can they use section 53 or not use section 53 if section 71 is applicable?

I don’t know very many Supergroove quotes that I can say in interim, but I “Can’t get enough” of the answers from the Minister! They had a great concert in Dunedin on Easter Sunday.

The answer is yes. For roads, the channel is section 71 as mentioned in the Schedule. However, that provision in Schedule 1AA, Part 1, clause 2(2), applies for those permits that are old. They’re not new permits.

Hon Rachel Brooking: But they can’t use section 53.

Hon TAMA POTAKA: No, the pathway today is section 71, but with the comprehensive review of the Wildlife Act, it may be a different number.

Thank you, Mr Chair. I am hoping to get the Minister’s view on the review period. There is an amendment in my name, supported by the Hon Rachel Brooking, introducing a review by Parliament. He said that he doesn’t support that full review, but can we seek to understand the role of the Ministry for Regulation in the review that he has given this committee some perspective on? Particularly, will that ministry be responsible for reviewing what is the primary legislation here, which grants the retrospective powers, or will it be responsible for reviewing the application of those decisions and, effectively, the decisions and guidelines or secondary legislation that is issued underneath it?

I ask because this committee does not have any view yet but anticipates a piece of legislation that will set out how that may work, but we don’t have that now. I’m asking the Minister to give us some clarity on what the scope of that review will be. I’m not asking for terms of reference. I’m not asking for all of the questions that it will ask to determine whether that retrospectivity has worked well. I’m asking him really whether that review is about the retrospectivity at all. We on this side of the Chamber have asked him to review the retrospectivity and whether that was necessary. He has said that he will be launching a review, but that review might not have anything to do with the fact that past rights that have been accrued are being extinguished by this. What I’m trying to understand is whether there is any way for the House to interrogate the effect of that in the coming months and years.

My next question for him is about the role of the Department of Conservation (DOC) in the review. Will that be alongside the ministry? Is it his view that the two ministries will work together? How will they share that? This is a new and novel thing for the committee to consider, so I think it’s fair enough for him to give a view on which part of the review DOC will be responsible for and which part of the review this new Ministry for Regulation will be responsible for.

I think we’ve just got to make sure that we’re talking about the same reviews. One is a comprehensive review of the Wildlife Act, which has been discussed by previous Governments. It’s timely given—as some mentioned, I think—that there might only be one member of the committee that was born before the Wildlife Act was enacted. That has to be accelerated at pace because we’ve spent many years talking about it. I do want to get through the conservation reform matter, which many of the members are aware of, and there’ll be some adjacency with the Wildlife Act matter in reviewing that comprehensively.

The post-implementation review is to commence immediately, but it will take some time to determine the effectiveness of the changes that are being channelled by way of this set of amendments. A report will be prepared within two years—sooner, if possible. The Department of Conservation will be responsible for the post-implementation review, as they are for the Wildlife Act review, and there’ll be a number of agencies that will be consulted and engaged along the way.

Brand new material. Supergroove lyrics are appreciated—Steve Abel.

It is new material, Mr Chair, that hasn’t been answered. It’s a very specific question. I’ll get it out in one minute—it hasn’t been addressed. I’m looking at Part 1, clause 4, in Schedule 1AA. Why is this case treated differently, Minister? Why is the Environmental Law Initiative case being treated differently, and do these changes give Waka Kotahi immunity from prosecution for any Wildlife Act offences committed at Mt Messenger? This wasn’t addressed, I believe. According to our tracker, it hasn’t been addressed.

I move, That debate on this question now close.

The question is, That the Minister’s tabled amendments to the Schedule, new Schedule 1AA, be agreed to.

The question is, That Arena Williams’ tabled amendment to the Schedule deleting clause 2(2) of Schedule 1AA be agreed to.

The question is, That Arena Williams’ tabled amendment to the Schedule inserting new clause 2(5) into Schedule 1AA be agreed to.