Resource Management (Restricted Coastal Activities) Amendment Bill

SANDRA GOUDIE (National—Coromandel) Link to this

I am delighted to be able to speak in support of the Resource Management (Restricted Coastal Activities) Amendment Bill, and I think that the Hon Nick Smith has done a sterling job in bringing it to the House. Certainly, it was well overdue, and I think that the Whangamata marina issue brought the matter into the forefront of the minds of the public throughout New Zealand, without a doubt. What did the court find, in regard to the Minister of Conservation, the Hon Chris Carter? The court found that the Minister had set about reconsidering the evidence and, accordingly, had made a procedural error. We all know that the marina proposal was not appealed further than the Environment Court, and that a lot of the people who had opposed that particular activity did not appeal against it to the Environment Court. They knew they could have another go at the Minister—and they did. The Minister fell for that, so made a procedural error.

How far can the Minister reconsider the findings of the Environment Court? The Minister, in making his decision, stated: “I have also considered the evidence presented to the Court, the Court transcripts that were available and the comments that the applicant has provided to me”. The High Court found that under section 119 of the Resource Management Act, the Minister has the discretion to differ from the recommendation of the Environment Court, provided he or she takes into account the recommendation and gives reasons for the final decision. But, overall, the Minister’s discretion under section 119 is relatively confined, and it was specifically found that it was not the function of the Minister to hear witnesses and test the quality of the evidence and submissions marshalled in support of the relevant criteria. That is what the hearing committee and the Environment Court do. If the Minister requires further clarification of the factual aspects of the matter, he or she should request a report from the Environment Court or hearing committee.

But did Chris Carter, the Minister, do that? No, he did not. He went to Whangamata, organised some meetings, had about half an hour with the people in support of the Whangamata marina proposal, and then spent about half a day with the rest. He went down and looked at the issue around seafood—kai moana. But even then the tide was only half out, and assumptions were made about what that meant. The Minister was not in a position to be impartial about the issue when he was being persuaded by a number of people—who did not go through the process—that he should oppose the Environment Court decision.

Another question was raised about whether the Minister was permitted to reconsider the evidence, and whether he did that fairly. The court found that despite its earlier conclusion on the first argument, the Minister had the power to reconsider the evidence, and that the best procedure for the Minister would have been to review the transcripts in the presence of counsel from both parties who were present at the hearing. Also, it found that the Minister should have used most of the available statutory period of 20 working days to review the evidence, and that the fact that the Minister left that critical task until the weekend before the decision was released was unfair. Accordingly, the court found that the decision was in breach of natural justice, and that the Minister had made yet another error of law. So we have two counts of errors already; it is pretty amazing.

It is no wonder that Nick Smith is putting forward the Resource Management (Restricted Coastal Activities) Amendment Bill, because it is high time for the Minister’s discretion in that regard to be removed. That is what this bill is all about. That is what the Whangamata marina case has highlighted. There we had the Minister fail on two counts of law; that has been found to be the case. Was it proper and fair for the Minister to state that he had “disregarded the comments made to me”—his words—at meetings at Whangamata? That was when, on 30 January 2006, he had the several meetings that I talked about. He met with people who were for and against the proposal, but the time he spent with the people who were for the proposal was totally outweighed by the time spent with those who were opposed to it. Those same people—those opposed to it—had not gone through the proper process. They were lobbying the Minister vigorously. So how could one say that the Minister was not unduly influenced by that?

Members may recall that under new section 119 in clause 4 of this bill, the Minister is statutorily prohibited from considering new evidence and must go back to the Environment Court. That is what this bill is all about. It is a very small bill of only six clauses, but it is vitally important.

JO GOODHEW (National—Aoraki) Link to this

I rise to support my colleague the Hon Dr Nick Smith in this Resource Management (Restricted Coastal Activities) Amendment Bill. This bill is about redeeming the Resource Management Act consent process before it is irrevocably damaged. It amends provisions of the Resource Management Act 1991 in relation to coastal activities and seeks to make the Environment Court the last stop for an inquiry for restricted coastal activity.

The performance—the debacle—that played out over the Whangamata marina has threatened the integrity of the process of the Resource Management Act. The outcry from New Zealanders was warranted. The disgust of New Zealanders was warranted. Fourteen years is a long time; not even New Zealand courts sentence someone to hard labour for as long as that. But the supporters of the Whangamata marina project spent that amount of time challenging this. It was too long, and then for nought. This is the sorry tale of how it went: first, the Thames-Coromandel District Council approved it; second, Environment Waikato approved it; and, third, the Department of Conservation signed an agreement, and approved it. Then followed an appeal to the Environment Court and 28 days of scrutiny. Then the decision came. That decision was to proceed. And then the Minister used his veto. One might think that this was the Minister’s first opportunity to make his views known, but that would be completely wrong.

Let me describe what the Minister can do prior to using his current power of veto. He has lots of chances. The Minister of Conservation writes and approves the national Coastal Policy Statement. Then he approves every regional coastal policy statement. Then he appoints a member to the hearings committee that hears the consents. He has the right to submit; he has the right to appeal. The Minister has plenty of opportunities to make his views known. There were five opportunities for his impact. Why does the Minister need more? In 1991 National put the power of ministerial veto into law, but there was a difference back then. There were no national Coastal Policy Statement or regional coastal policy statements back then. Therefore, it was reasonable to supply a safeguard in the form of a ministerial veto.

I remind the House of the Whangamata marina and the injustice served up there by the Minister. He used his power of veto in an unscrupulous way. The judge in the High Court found that the Minister broke the law—not once, not twice, but three times—and there was no small cost associated with that. One thousand members of the Whangamata Marina Society would say that the cost was huge in terms of 14 years of their lives and $1.5 million for a consent that was undone, unlawfully. The beauty of this bill is that it would not only restore integrity and confidence in the process but also reduce the delay and the costs.

We are talking about the Resource Management Act tonight—about that lengthy process that holds up so much progress in New Zealand; that lengthy process that could be made better with this bill. We are not talking about the hasty plans that this Labour Government has—or should I say that Trevor Mallard, the Minister for the Rugby World Cup has, all for his maimai or his “Clark park”—to circumvent the Resource Management Act through hasty legislation. We are not talking about that; we are simply talking about removing something that is now quite unnecessary: the ministerial veto. That ministerial veto has been abused, because we know that the people of Whangamata marina have spent 14 years going through a process that should have seen some resolution. Instead, they are seeing all their work, their $1.5 million dollars worth of effort, undone. These people must now surely wonder what on earth they can do to make things move forward in their part of New Zealand.

BARBARA STEWART (NZ First) Link to this

On behalf of New Zealand First, I rise to speak to the Resource Management (Restricted Coastal Activities) Amendment Bill. New Zealand First will be supporting this bill to the select committee, so that the public can have their input into this legislation. That, of course, is a very valuable part of the process.

This issue has been discussed extensively in the media. It has also been discussed extensively by the people of Whangamata, and I know that people have contacted Peter Brown from New Zealand First, and Winston Peters, regarding this issue. We have received emails and many letters asking us to ensure that this issue is looked at again—hence our support for referral to the select committee.

New Zealand First also considered drafting a bill on this very important issue, called the “Whangamata Marina Bill”. I believe that it went into the ballot at one point in time.

Residents over in the Whangamata area spent $1.3 million on taking this case through the Environment Court, and thus far have not achieved anything. That is very, very sad.

It was interesting, too, that the High Court decision actually supported the Environment Court. So we believe that further clarification of this matter is definitely required. The people of Whangamata do need some clarity. They do need to work through this particular issue. We believe that the select committee is the most important place for that to occur, so we support the bill.

METIRIA TUREI (Green) Link to this

The Green Party does not support the Resource Management (Restricted Coastal Activities) Amendment Bill. The bill is a response to the Minister of Conservation’s decision to decline an application for the development of a marina at Whangamata. The application was to use 4 hectares of the coastal marine zone to construct and operate the marina, and to cover a salt marsh for development as a parking area. We, along with thousands of hapū, coastal communities, and city dwellers, are increasingly opposed to the fierce drive in this country to privatise our coastlines and marine areas. The Whangamata debate is a typical example of that drive to privatise, and we are very pleased that the development has not proceeded.

We were disappointed in the Environment Court’s decision to grant the proposal, and we fully supported the Minister of Conservation’s decision to exercise his statutory role in favour of the environment. His decision meant that the area had been kept safe for everyone to use as a food basket and as a national treasure. We support the mana whenua of the area, who have been consistently opposed to the development because it would destroy a highly valued pātaka kai. It is very rare for hapū and iwi considerations to be taken seriously by Ministers, and we are very pleased that this Minister did so. The consistent opposition by the mana whenua demonstrates, in our view, that iwi concerns about the protection of the environment from inappropriate development provide a solid basis for the protection of the environment for everyone. By recognising and respecting the kaitiakitanga of the mana whenua there, strong local communities can be built from this common ground.

In our view, the decision of the High Court was very disappointing, but it is worth noting that, as a judicial review case, the court did not find any evidence of bias, predetermination, or irrationality in the Minister’s decision. The judicial review was upheld on three procedural matters, and it is fair to say that we are also very disappointed that those procedural mistakes were made in such an important matter. We do expect better of the Minister.

What has been quite fascinating—and not in a good way—is the very intense backlash by those who want to privatise public space. That is what this application was really all about—turning usable, accessible public space into privately owned space. I have heard proponents of the marina say that it will remain a public area because people will be able to walk along the marina, fish off the walkways, and look at all the lovely boats. If we applied a land analogy to that approach, we would say that it is like turning a community park, with a community garden and space for families, sport, and picnics, into a large concrete car-park and then say that it is still a public space because people can have the enormous privilege of walking through the enormous concrete car-park and looking at all the Bentleys as they go by.

Yet we face this kind of hysterical response from those who want to privatise these public spaces. I think Nick Smith has been leading some of that hysteria—the backlash against the protection of public access to the foreshore and seabed. In the foreshore and seabed debate, National used the rights of access and the notion of the New Zealand way of life, with picnics and swimming, as reasons to keep hapū and iwi from having any tikanga interests in the coastal areas. National’s Nick Smith was especially vocal about those public rights. He said that the beach was the core to being a New Zealander. He said that it was our right to grab the picnic bag or the barbecue and go to the beach. Yet on the Whangamata issue he staunchly defends the private rights of some to acquire public property and to restrict public access.

I know that Nick Smith will now argue that the bill is about the integrity of the court process, but he simply would not have put this bill in the ballot if the Environment Court had declined the application and the Minister had overturned that decision. Of course, he could have got rid of the ministerial discretion provision when he was Minister. The fact is that we can have a process for the growth and development of our economy that does not steal from the public and that does not destroy our environmental values. We must stop the private capture of public space.

HONE HARAWIRA (Māori Party—Te Tai Tokerau) Link to this

Kia ora, Mr Assistant Speaker. Kia ora tātou i te Whare. The Resource Management (Restricted Coastal Activities) Amendment Bill is just a little bit mischievous. It is an attempt to remove the powers of the Minister of Conservation. It is not specifically about Whangamata, although it does assume that the Minister’s decision to halt development of the Whangamata marina brings the resource consent process into disrepute. So it is appropriate that we consider the background to that decision in order to ensure that the House is properly informed on the setting for the bill.

I ask the House to recall that the Hauraki Māori Trust Board, Te Kupenga o Ngāti Hako, Ngāti Whanaunga, Te Rūnanga a Iwi o Ngāti Tamaterā, and the Whangamata Māori Committee have been fighting for years to preserve the environment in and around Whangamata, and, indeed, the cultural heritage of that whole area. As part of that fight they also oppose the marina development, for a number of reasons.

Firstly, the marina would destroy traditional fishing grounds, due to significant and ongoing dredging of the channel where the kai moana grounds are. The harbours and estuaries are essential breeding, nursery, and feeding grounds—a natural ecosystem for kai moana such as pātiki, matamata, and kūaka. Secondly, the proposed car-park would destroy one of the few remaining wetlands in the area, a saltmarsh that is home to important birdlife. Thirdly, destruction of the coastal environment would seriously impact on the very identity of the local people, both Māori and Pākehā, for whom the local kai moana beds have provided sustenance for many generations. Finally, keeping the foreshore and seabed in its current state would guarantee access to the public of New Zealand—access that a marina would destroy—and that is a commitment that the Māori Party is proud to uphold in its bill to repeal the Foreshore and Seabed Act that so divided our nation.

I do not like saying that it was surprising that the Minister came down on the side of the tangata whenua, but we are surprised—and grateful, I might add—because a Minister of the Crown backing Māori on a foreshore and seabed deal is about as rare as some of the wildlife that is likely to be saved by his decision. Be that as it may, the Minister’s decision dovetailed nicely with the call from the Hauraki people that their rights to kaitiakitanga and their rights to their kai moana beds were being threatened by the development plans. Then guess what happens? To nobody’s surprise at all, the pro-development brigade sends somebody rushing into Parliament to repeal section 119 of the Resource Management Act, which gives the Minister of Conservation the final word on coastal permits. The Resource Management Act is a flawed document that could do with improvement, but its intentions are good and its focus on protecting and managing the nation’s resources is clear. The problem of the Act lies in how it is interpreted and how it is used. On the other hand, this bill is simply an amendment to aid development.

The Resource Management Act has clear responsibilities for the consultation of iwi on resource applications, discharge consents, and wāhi tapu in ways that will enhance our coastline and respect traditional beliefs. The Act also has the capacity to protect the environment, ensure Māori involvement in decision making, and guarantee the public voice. Enhancing those roles for the benefit of all New Zealanders is what this House should be addressing, rather than focusing on one bit that upsets developers.

If this bill were to go through—if, indeed, the Minister’s decision is not upheld—Labour would effectively be in a situation of denying public access to the foreshore and seabed, destroying the environment, and privatising resources. These are all the things Labour said it would not do with its “Stealing the Foreshore and Seabed Act”. Funnily enough, National, which opposed privatising public lands during the foreshore and seabed debate, will be similarly compromised. I would laugh if this were not so tragic.

The 1991 Resource Management Act requires that the principles of the Treaty of Waitangi be taken into account in managing the natural and physical resources of Aotearoa. This bill will simply add to the alienation of Māori from those resources over which they still have a say. The Māori Party is not opposed to development, but we will oppose this bill because it is simply a reaction to a battle lost. In its place we propose to ensure the protection of Treaty rights, property rights, and genuine access for all New Zealanders to the foreshore and seabed through our own Foreshore and Seabed Act (Repeal) Bill. Kia ora tātou.

GORDON COPELAND (United Future) Link to this

Firstly, I offer my congratulations to Nick Smith on his bill being drawn from the ballot. Secondly, I say that in 2005, during the elections, United Future went to the nation with a policy, and I quote, to: “remove the powers of the Minister of Conservation to block any development or activity that has received a resource consent.” So we are not johnny-come-latelys to this issue; we actually had formed a view prior to the Whangamata marina decision that it was time for this veto power to go. It has outlived its usefulness. The Resource Management Act has been with us for about 15 years. When it was enacted there was no Environment Court. We now have an Environment Court; we now have a proven, rehearsed, and well-oiled machine in terms of granting resource consents. From United Future’s point of view it is, therefore, time for the Minister’s power of veto to go.

Members can imagine our shock and horror, in the light of that policy, when we actually witnessed the Minister of Conservation veto the Whangamata marina decision. I ask members to think about the issue for a moment. The Whangamata Marina Society had spent 13 years following due process. It had gone through the Resource Management Act process all the way through to the Environment Court. It had spent $1.3 million—not of somebody else’s but of its own money—to get to that point. Quite frankly, the veto by the Minister of Conservation following that process and overturning the recommendation of the Environment Court is simply an abuse of process. It is fundamentally unfair and unjust. In our view compensation should be paid to the Whangamata Marina Society for the great loss they have suffered over this matter. Fortunately, the matter might be revisited now that the court wisely has said to the Minister that he got it wrong and must go away and do it again.

That veto decision by the Minister sets a very bad precedent indeed for the whole Resource Management Act process. Why would anybody spend a lot of money taking a project through the whole Resource Management Act process if, at the end of the process, the Minister can just come along and say: “Sorry, it’s not going to happen.”? Why would those who are opposed to various projects bother to go to the Environment Court? Some groups did not bother to go to the Environment Court on this particular situation, and said: “No, no, we’ll just bypass that; we’ll go to the Minister. We’ll get our political ducks lined up and we’ll rely on him to overturn it.” It is really a very unfortunate precedent that has long-term negative effects for the whole Resource Management Act process.

This decision, therefore, cannot be allowed to create a precedent. The right thing to do, the just thing to do, the fair thing to do, and sensible thing to do is to remove the Minister’s veto powers. United Future do not believe in Muldoon-style vetoes, Fidel Castro-style vetoes, or Stalinist-style vetoes. After all, people such as the judges of the Environment Court have heard all the evidence, weighed and evaluated the evidence, and made a decision based on that evidence. This is evidence that the Minister has not been personally privy to and has not personally heard. He has not gone through hours and hours of weighing up the various points of view, the pros and the cons. We, therefore, think it is a most unsatisfactory part of New Zealand law that we still have these Draconian veto powers resided in a person, where the assumption, basically, is that he is all-wise, all-knowing, and that he alone has the ability to make a decision of this sort.

Frankly, this is not the New Zealand way. The New Zealand way is to follow due process to let everybody have their say and for a decision to be made by those people who have heard the evidence, can weigh up the various merits of each individual argument, and can make a decision. That decision should stick, and there should be no question of the Minister coming along in the future and saying: “I don’t like it—go get lost.” Accordingly, United Future supports the first reading of this bill and, I suspect, its passage all the way through the House.

Hon Dr NICK SMITH (National—Nelson) Link to this

I have just come from the Engineering Excellence Awards, where the Prime Minister and a number of Ministers of the Crown are talking about the engineering infrastructure that New Zealand needs. The words on the lips of every one of the engineers there are about the problems associated with the Resource Management Act. I have just had a conversation with a very senior engineer from Beca Carter, who pointed out to me that it generally takes six times as long to get a resource consent for an infrastructure project as it takes to build it. That is why members of the National Party say that we must reform the Resource Management Act, so that we can get timely decisions on the way that we manage our environment and resources.

I thank members from United Future and from the New Zealand First Party for their thoughtful contributions to this debate. They have made a clear point about how they have been offended as New Zealanders by what has happened to the people of Whangamata.

I challenge the members of the Māori Party. The Māori Party was formed out of a gut-wrenching debate amongst Māori, when Parliament overrode the courts in respect of the foreshore and seabed. I ask why it is then, that on that principle—which has some soundness—Māori Party members say on this bill that they support the decisions of the court only sometimes, when those decisions are in their favour, and that they are not prepared to back the independence of the judiciary in respect of the Environment Court’s decision on Whangamata. I say to Māori Party members that their logic is lost. By not supporting this legislation, they water down the very principle on which they came to Parliament.

But the ultimate double standard has been shown by Labour. Right now, as we speak, Labour is proposing to completely overrule the resource management process for a 60,000-seat stadium on the waterfront of Auckland. I ask Labour members what is different about a stadium in Auckland as compared with a marina at Whangamata. The poor people of Whangamata have been through a resource consent process that has taken 14 years. Twenty days of evidence were heard in the Environment Court. This Government says it is OK for the Minister of Conservation to break the law not just once but—according to the High Court—three times in the decision over the Whangamata marina. I say to Government members that it is a complete double standard to give speeches on this bill that defend the resource management process, and then to say that it does not apply to them when they want to build a stadium. That is not good enough. The public will reject the Government and throw its members out when they adopt that sort of principle of one rule for everybody else but a different rule for themselves.

I put forward the argument that there is no need for a ministerial veto to be in the Resource Management Act. The Minister of Conservation approves the New Zealand Coastal Policy Statement and regional coastal policy statements. He has the capacity to appoint the person who hears a resource consent application, as occurred with regard to Whangamata. He also has the capacity to appeal a decision. He does not need to have the veto power and, as the High Court rightly concluded, the power is so narrow it is worthless. It only adds to the delays and frustration of the resource management process.

I thank members for their contributions to this debate. This is a testing time. The debate about the Minister of Conservation’s power of veto has been so polluted by Chris Carter’s irresponsible decision that even if that power does not go through the passage of this bill, it will go eventually. This bill is good law. It goes to the heart of the sorts of changes we need to make to the Resource Management Act in order to make it fair and for the process to have integrity. I encourage this House to send this bill to a select committee, so that not only the people of Whangamata but all New Zealanders may be able to have some integrity restored to the resource management process.

Hon Dr NICK SMITH (National—Nelson) Link to this

I raise a point of order, Mr Speaker. This is a very unusual situation. It is the first time in my time that the House has voted on a bill 60 all. I point out to the House that it is the bill’s first reading. I would thus seek the leave of the House for the bill to be referred through to the select committee so at least the public may have the opportunity—in the select committee—to consider a bill that clearly has the House very evenly divided.