Fitzsimons Jeanette: Resource Management (Simplifying and Streamlining) Amendment Bill — Procedure Second Reading In Committee Third Reading 
Fitzsimons Jeanette: Resource Management (Simplifying and Streamlining) Amendment Bill — Procedure Second Reading In Committee Third Reading 
[Volume:657;Page:6160] 
JEANETTE FITZSIMONS (Green) 
: 
 The whole process around the Resource Management (Simplifying and Streamlining) Amendment Bill has been rushed and slipshod. It came to the House later than the Minister promised and he was in a big hurry to get it through. The Local Government and Environment Committee sat for a lot of hours to deal with it and the Green Party is the only opposition here. The Labour Party and every other party in the House except the Green Party is supporting this bill. I think that people who are listening need to know that that is the case. 
The first evidence that this bill was rushed and slipshod was the interim report of the expert panel from which the select committee asked for assistance to determine whether the drafting in fact reflected the policy intention. The panel advised us—actually in quite strong language—that the bill as it stood then would not simplify and streamline the Resource Management Act but would complicate and confuse it which is what we in the Green Party have been saying since the beginning. The bill adds many pages to the Resource Management Act and that is hardly simplifying and streamlining. It puts a lot of words in where there used to be few. It does not clarify; it confuses. 
The Greens asked the expert panel to work with officials and they did under great time pressure and they substantially changed and improved the drafting of the bill. However there was not time to do it properly. What do we have now? We have the 44-page Supplementary Order Paper 39 which amends clauses from the beginning of the bill all the way through to the end and among other things completely replaces new Part 6AA inserted by clause 91. New Part 6AA was in the bill as it was amended by the select committee and then under the advice of officials who have presumably cleared it with the Minister in the Committee the Government has completely rewritten and replaced Part 6AA in the Supplementary Order Paper. In the reported-back version of the bill we can see that the whole of Part 6AA is underlined as new but now we have another replacement of Part 6AA. In the space of a couple of weeks they decided they needed to do it differently again. The meaning of those changes is not possible to determine overnight. I do not know. I have looked at the two texts side by side and they seem to bear little resemblance to each other. We have to take the Minister’s word that there is no substantive policy change there. 
This reminds me of a series of speeches made last year by the then Opposition spokesman on climate change who relentlessly attacked the previous Minister for climate change on the basis that he had introduced a Supplementary Order Paper to the legislation that set up the emissions trading scheme that was extremely long and made a lot of technical corrections. When we compare the two we will find that proportionally this Supplementary Order Paper is larger in relation to the bill it amends than the one that the previous Opposition spokesman on the environment attacked the previous Government for. So I am looking forward to an explanation from Nick Smith as to why now that he is a Minister it is OK to bring in a Supplementary Order Paper— 
Hon David Parker 
: Under urgency. 
JEANETTE FITZSIMONS 
: —under urgency that is so large in relation to the original bill when that was not OK last year for a bill that was opening new ground and dealing with new technicalities. Parliament has dealt with the Resource Management Act lots of times. The courts are familiar with it councils are familiar with it and Parliament is familiar with it. There should be much less reason to have to change it all at the last minute than there was last year. 
I want to speak now about the question of notification. Notification is how one gives effect to the fundamental premise of the Act—that people have a right to be involved in discussing the changes that others want to make to the environment where they live. There have always been two grounds for a notification. One is the effect on the environment where everybody has some right to have a say because we are talking here about the natural environment the resources we and future generations depend on and the other is the right to have a say on something that may affect one’s property rights as a near neighbour. The Resource Management Act has always had two tests for notification. 
This bill changes the wording yet again. The rules on notification have been rewritten so many times that I sat in the Local Government and Environment Committee saying that it was impossible to know just what these changes would mean in practice. The one thing they will mean is that all the case law will be chucked out and the courts will have to start again and define all the various terminology because the tests have changed. 
I had just reached the conclusion that apart from destroying existing case law and requiring it to be rebuilt there was not a lot of change of meaning in the bill as we reported it back. But hang on now the Minister has announced a Supplementary Order Paper that raises the hurdle higher for notification so that fewer applications will get notified. The bill as reported back said that a council must notify an application only if the application may have adverse effects on the environment that are more than minor. The Minister has now changed those words to “will have or is likely to have” so a council now cannot notify an application unless it is pretty sure that the adverse effects will be serious. If the adverse effects are unknown but could well occur the council is not allowed to notify; therefore it does not get any evidence from anybody else in the community as to what those adverse effects might be. So the bill will shut out key information that if it is not brought to the Environment Court never goes in front of the judge and never gets considered in the decision making. We have already had a lift in the threshold from “less than minor” to “more than minor”; now we have “may” becomes “will” and “likely to”. So if a council has any doubts at all about the seriousness of the effects it must not notify. 
The Minister came to the select committee and met with us. I appreciated that because Ministers often do not do that with select committees and their bills. He told us that under the changes to notification he did not expect fewer applications to be notified. What he was trying to do was to cut the paperwork for the council. However yesterday he told a briefing of other parties that he did expect fewer public notifications under this changed wording. Obviously the Minister has had another turn against the rights of the public in the 2 weeks since the select committee reported back. The other thing that the notification provisions do is put councils beyond the reach of judicial review of their notification decisions by making it clear that they have absolute discretion as to how they interpret terms like “minor” and “very likely”. In the past there have been some appalling council decisions on notification. People have come home and found huge holes in the section next door that they did not know were going to be dug multi-storey buildings going up and huge areas of trees removed. I fought hard in previous years to get an amendment accepted that would give effect to what the Environment Court itself has said which is that challenges to bad notification decisions should be heard by the Environment Court not by the High Court. The High Court can consider only matters of law. It has no expertise on the facts. The Environment Court is a court of expertise on the facts; it could deal with them very quickly. We got that into section 115 of the 2005 amendment Act but with a provision that it would not come into force until it was brought into force by Order in Council. Successive Governments have refused to bring it into force; I suspect that was always the intention anyway. This Government tried to delete the clause with this bill but we got that changed. It is still not in force so one can still challenge notification decisions only by going to the High Court which is hugely expensive. No ordinary person can afford judicial review and therefore it will not happen. 
So we should expect more cases where the bulldozers move in before the neighbours have any inkling the development is happening and where the bush is felled and the coastline is altered without people’s input because the council could not be sure that the adverse effects would be more than minor. When that happens expect to have no recourse to legal challenge to those council decisions. I want to end with an example. A 15-house subdivision in Waitakere was not notified although it directly bordered 17 neighbouring properties. One neighbouring resident was not aware of the consent until she came home and saw 2000 square metres of exotic and native trees and bush being cleared from the site right next door. The consent stated that there was no need for notification as all effects were deemed to be internal to the site despite a new road earthworks bush clearance loss of shelter privacy and birdlife and destruction of an ecologically significant stream on a neighbouring property. We are going to see a lot more of cases like that as with every amendment that goes through the House notification is tightened. 
Less than 5 percent of applications are notified now. I would like the Minister to say whether he thinks that should go to less than 4 percent or less than 3 percent or just where the ultimate destination is; or are we heading for the kind of State where developers can do what they like and the public be damned?