Climate Change Response (Tort Liability) Amendment Bill

Committee of the whole House

Thank you, Madam Chair. Of course, we all note that Part 2 is a more minor section of the bill compared to the more substantive part in Part 1, which we’ve discussed, but I do have two distinct questions around the operation of this part of the bill. This specifically relates to the Resource Management Act, and so I wanted to first ask a question of the Minister in the chair in relation to the operation of this part. I have looked at the Resource Management Act and seen the section to which clause 7 relates, in inserting a new section 23(4), and it appears to me to be just adding in that the content of the Resource Management Act would not impact on this particular bill. I wanted to ask if he could comment on the operation of that and say whether that is, in fact, correct.

The second question I have is in relation to the current bills before the House at the moment in relation to the repeal of the Resource Management Act. The Minister will be aware that his Government is progressing with two bills in order to repeal the Resource Management Act, which, in fact, I note that the current Government brought back in at the beginning of this term. So, once again at the end of a parliamentary term, we are looking at the repeal of that particular legislation which is the subject of Part 2.

That raises some practical questions in relation to this bill. I know that the Government’s purpose and intention for this bill, from what I can see on the Order Paper, is to pass this bill either today or shortly thereafter on the next sitting day, and depending on where we get to today—which, considering we don’t have that much more to go, may be later this afternoon. The intention, as I’m aware, in relation to the two bills which are replacing the Resource Management Act is also that they be passed before the election, meaning that almost as soon as this bill is passed, it may need to be amended because it makes a change to the Resource Management Act.

Now, I guess there is one of two options in relation to that, and it would be great if the Minister could clarify. Either these particular provisions, once the repeal of the Resource Management Act occurs, will sit ineffective, and so, essentially, what we’re discussing in Part 2 is something that may be force for a few weeks and it just sits there on the statute book—so that’s option one. Option two would be this. Will there be a late amendment to—and colleagues may be able to assist me with the names of the bills—is it the Planning Bill and the—

Arena Williams: The Natural Environment Bill.

CAMILLA BELICH: —Natural Environment Bill? Will there be a subsequent amendment at this late stage to both of those bills or one of those bills that will be brought to the House, considering that this bill is likely to be in place before those bills’ committee stage—which we haven’t got to yet, have we?

Arena Williams: No.

CAMILLA BELICH: That’s right, and so we’re at the second reading for them. I think that that’s a fair question because I think that that would perhaps be—you know, we don’t agree with this bill, but we also don’t want to have lots of inept provisions sitting on the statute book. Also, with the fact that it, essentially, could be put into the Resource Management Act repeal bills anyway, I think it’s a fair question as to how that’s going to be addressed by the Government in terms of just the late stage at which this bill has been brought to the House.

Committee of the whole House

Madam Chair, thank you. I’m reliably informed—to give the member Camilla Belich some guidance for her questions—that the amendment to the Resource Management Act (RMA) is included because the Resource Management Act is still in force. New section 23(4) in clause 7 avoids any doubt that the rest of section 23 of the RMA could operate to prevent a statutory bar from applying. To follow up on her second question, officials are aware of this, and they will work to determine whether any amendment to those two bills—i.e., the Natural Environment Bill and the Planning Bill—is needed.

Committee of the whole House

Just a quick question for the Minister around clause 7 of Part 2. I want to ask him, in new Part 8 of the Climate Change Response Act, the limitation on tort liability there is in some ways a lot more defined than what he has done in this amendment bill. Basically, the policy decision going on here with a large part of tort law in New Zealand is about, say, a neighbour who has, say, flooding on one property that affects the property of the other neighbour. The policy decision in the Climate Change Response Act reflects that there is no limitation to bringing tortious claims against a neighbour for flooding impacts.

However, the amendment is a bit broader than that—that if your neighbour has done something which is either negligent or a nuisance which has caused damage to your property which is related to climate change, the amendment is much blunter. So I’m asking him whether it’s the limitation that’s created by his—I understand that he’s said here very clearly that it doesn’t limit Part 8, but does it also then expand it? Because the Climate Change Response Act, if you read it alongside what the Minister has proposed here in his broader brush limitation, where it could apply to any flooding situation, that will, effectively, act as a bar against any tortious claim. My question is really, in simple language: how does this amendment interact with the Climate Change Response Act and does it expand the meaning in Part 8?

Committee of the whole House

Thank you, Madam Chair. I think, just following on from the previous speaker, Arena Williams, this is quite important, because what we’re seeing in this particular part of the RMA—the Resource Management Act—is around certain limitations and exemptions. I just want to check, by this bill and particularly this part around the Resource Management Act not limiting any sort of considerations under this bill, it raises the questions of how then would anything that has the potential to cause harm—let’s say, if you’re looking at what we considered before in terms of meaning of “emissions-related climate change effect”—come into conflict with the core purpose under section 5 of the Resource Management Act.

Would that mean that you get your situation, particularly when it comes to civil litigation, where anything anyone—in the examples that Arena Williams just mentioned in terms of even something as simple as neighbour disputes, or even when it comes to consent for certain building projects—could claim is related to anything that we see here, the emission-related climate change effect that we previously considered, then it cannot be considered under the court of law? Particularly when you’re looking at the Resource Management Act, because of the fact that there’s this incredible carve-out which is incredibly broad.

In a lot of the examples that have been suggested, we just really want to know: what are the limitations? What is the scope for someone to be able to use this bill now as a potential form of exemption and defence in civil litigation, particularly when it comes to any form of nuisance or negligence with relating to the Resource Management Act? Presumably what Camilla Belich also mentioned before that there will presumably be some sort of update in either the Natural Environment Bill or the Planning Bill that also considers similar exemption clauses. So it would be really good to hear some of the scope that we’re looking at here when it comes to the carve-out.

Committee of the whole House

Thank you, Madam Chair. No, to answer the member’s questions, clause 7 does not expand Part 8. The bar is on emissions-related climate change harm. Clause 7—I’m reliantly informed—simply, for the avoidance of doubt, does not impact other types of claims.

Committee of the whole House

Just a really quick question, following on from my earlier question. The Minister said that officials would take advice on whether an amendment needs to be made. It kind of beggars belief that this hasn’t been considered earlier. So can the Minister not give us more accurate information on whether we’re being asked to support a law that will be in place indefinitely or whether this will be repealed by that bill. Surely there has been planning done by the various highly skilled officials on this bill to create either an amendment that will be tabled in the House or that this will simply be left in place. This is by design that these two bills have come to the House at the same time. It would be good and, I think, right, if there is any more information, for the Minister to be able to give a more specific answer, rather than “This will be looked at as appropriate.”

Committee of the whole House

Thank you, Madam Chair. So just following on from the Minister’s helpful answer: I think that’s right, but just testing with him. So the more blunt formulation of the tortious bar in his amendments doesn’t apply, I think he said—and correct me if I’m wrong, Minister—to other sorts of claims. To give him an example of this: so if my neighbour drives their truck through the pipes on their property and causes those pipes to be busted and to not take water away from their property in the usual way to the council’s pipes but floods on to my property, under the Climate Change Response Act, there’s no tortious bar, but under his amendment, there might be. He’s saying that I can still bring a claim under the normal negligence tort, which I think he’s right about. So that clarifies.

So does Mr Smith still have a claim in relation to the harm that is caused by neighbouring properties? Say if Fonterra was to have a Fonterra farm that was next to his farm, would the neighbouring farm still be something that he could have an actionable harm against? I guess the question is really, has he made a policy decision where, in his amendment, the problem that he’s trying to solve is proof, whereby Mr Smith might not be able to prove that climate change generally is caused by Fonterra, but if he can prove that flooding is caused by his neighbour, Fonterra, then a tortious claim is still open to him on those second grounds?

Committee of the whole House

I think I’d point the member back to the legislative statement that was read by the Hon Paul Goldsmith. The bar will not affect traditional tort liability that has already been established under common law, such as nuisance claims in respect of odours or residue, for example, on neighbouring property.

Committee of the whole House

I move, That debate on this question now close.

A party vote was called for on the question, That debate on this question now close.

Ayes 67

New Zealand National 48; ACT New Zealand 11; New Zealand First 8.

Noes 55

New Zealand Labour 34; Green Party of Aotearoa New Zealand 15; Te Pāti Māori 4; Ferris; Kapa-Kingi.

Motion agreed to.

A party vote was called for on the question, That Part 2 be agreed to.

Ayes 67

New Zealand National 48; ACT New Zealand 11; New Zealand First 8.

Noes 55

New Zealand Labour 34; Green Party of Aotearoa New Zealand 15; Te Pāti Māori 4; Ferris; Kapa-Kingi.

Part 2 agreed to.

CHAIRPERSON (Maureen Pugh): The question is that Celia Wade-Brown’s tabled amendment to the Schedule replacing clause 52 be agreed to.

A party vote was called for on the question, That the amendment be agreed to.

Ayes 55

New Zealand Labour 34; Green Party of Aotearoa New Zealand 15; Te Pāti Māori 4; Ferris; Kapa-Kingi.

Noes 67

New Zealand National 48; ACT New Zealand 11; New Zealand First 8.

Amendment not agreed to.

CHAIRPERSON (Maureen Pugh): The question is that Scott Willis’ tabled amendment to the Schedule replacing clause 52(c) be agreed to.

A party vote was called for on the question, That the amendment be agreed to.

Ayes 55

New Zealand Labour 34; Green Party of Aotearoa New Zealand 15; Te Pāti Māori 4; Ferris; Kapa-Kingi.

Noes 67

New Zealand National 48; ACT New Zealand 11; New Zealand First 8.

Amendment not agreed to.

CHAIRPERSON (Maureen Pugh): The question is that Dr Lawrence Xu-Nan’s tabled amendment to the Schedule replacing clause 52(d) be agreed to.

A party vote was called for on the question, That the amendment be agreed to.

Ayes 55

New Zealand Labour 34; Green Party of Aotearoa New Zealand 15; Te Pāti Māori 4; Ferris; Kapa-Kingi.

Noes 67

New Zealand National 48; ACT New Zealand 11; New Zealand First 8.

Amendment not agreed to.

CHAIRPERSON (Maureen Pugh): The question is that Mariameno Kapa-Kingi’s tabled amendment to the Schedule deleting clause 53 be agreed to.

A party vote was called for on the question, That the amendment be agreed to.

Ayes 55

New Zealand Labour 34; Green Party of Aotearoa New Zealand 15; Te Pāti Māori 4; Ferris; Kapa-Kingi.

Noes 67

New Zealand National 48; ACT New Zealand 11; New Zealand First 8.

Amendment not agreed to.

CHAIRPERSON (Maureen Pugh): Celia Wade-Brown’s tabled amendment to the Schedule deleting clause 53 is out of order as being the same in substance as a previous amendment.

Mariameno Kapa-Kingi’s tabled amendment to the Schedule replacing clause 54 is out of order as being contrary to the principles and objects of the bill.

The question is that Francisco Hernandez’s tabled amendment to the Schedule replacing clause 54, allowing compensation at the clearing price of New Zealand Units be agreed to.

A party vote was called for on the question, That the amendment be agreed to.

Ayes 55

New Zealand Labour 34; Green Party of Aotearoa New Zealand 15; Te Pāti Māori 4; Ferris; Kapa-Kingi.

Noes 67

New Zealand National 48; ACT New Zealand 11; New Zealand First 8.

Amendment not agreed to.

CHAIRPERSON (Maureen Pugh): The question is that Francisco Hernandez’s tabled amendment to the Schedule replacing clause 54, allowing compensation at the social cost of carbon be agreed to.

A party vote was called for on the question, That the amendment be agreed to.

Ayes 55

New Zealand Labour 34; Green Party of Aotearoa New Zealand 15; Te Pāti Māori 4; Ferris; Kapa-Kingi.

Noes 67

New Zealand National 48; ACT New Zealand 11; New Zealand First 8.

Amendment not agreed to.

A party vote was called for on the question, That the Schedule be agreed to.

Ayes 67

New Zealand National 48; ACT New Zealand 11; New Zealand First 8.

Noes 55

New Zealand Labour 34; Green Party of Aotearoa New Zealand 15; Te Pāti Māori 4; Ferris; Kapa-Kingi.

Schedule agreed to.

Committee of the whole House

Clauses 1 and 2

CHAIRPERSON (Maureen Pugh): Members, we come now to clauses 1 and 2, “Title” and “Commencement”.