Chauvel Charles: Environmental Protection Authority Bill — In Committee 
Chauvel Charles: Environmental Protection Authority Bill — In Committee 
[Volume:672;Page:18457] 
CHARLES CHAUVEL (Labour) 
: 
 This is the part of the legislation that deals with the actual set up of the Environmental Protection Authority its membership its board provisions its objectives and its relationship with the Minister. It includes clause 7 which sets out that the authority is to be a Crown entity. It also includes clause 11 which sets out the authority’s objectives and clause 12 which sets out the authority’s functions. I mention those three clauses in particular because there are amendments lodged in my name that would amend each of those clauses. I would like to speak to the issues that each of those amendments raises. 
We have already heard in the debate on Part 1 that the Environmental Protection Authority is not a comprehensive environmental regulator that the Committee is debating the creation of. The Minister said that it is proposed to give the authority further functions at a later date. That will occur we are told both by additional legislation and by ministerial direction. We have already said that it would have been much better if rather than having this piecemeal adding-in approach from time to time the Minister had brought comprehensive legislation to the House. That is not what has happened and as a result the law is left in a confusing and unsatisfactory state. This is something that the submitters to the Local Government and Environment Committee pointed out time and time again. 
There were many other logical functions that ought to have been carried out by the Environmental Protection Authority and a couple were added in by the select committee. There were the ozone layer protection functions and the import and export functions that were formerly carried out by the Ministry of Economic Development. But so much more could be done by the Environmental Protection Authority. The Waste Minimisation Act could have been brought within the ambit of the authority. That would be a natural and sensible thing to have done. The authority could be the body that would urge the Minister to get on with creating the product stewardship schemes which members on this side of the Chamber would so love to see under that Act so that this country could have at last decent recycling waste minimisation and reuse policies put in place. There are many more additional functions under the Resource Management Act that could and should be carried out by the Environmental Protection Authority. We have already talked about the coastal and marine management issue and the exclusive economic zone issue. 
Like my colleague Brendon Burns I take the Minister at his word. I know that he is somebody who wants to see the right thing done in this area but I am concerned that it has not been done. I am concerned that the delay in bringing those functions into the Environmental Protection Authority while there is all the extra activity going on in our coastal and marine areas around minerals exploitation will lead to a loss of public confidence in the new environmental protection agency from the outset because that body does not have any authority to deal with those issues. As we heard from Sue Kedgley in the debate on the earlier part that is a real problem. 
When people hear the expression “Environmental Protection Authority” they think that is a body that will be protecting the environment— 
Hon Dr Nick Smith 
: It is. 
CHARLES CHAUVEL 
: There are so few functions I say to the Minister that inhere to that authority from the outset that it cannot be said that that is what we are creating today. 
We have already talked about the manner in which the Environmental Protection Authority is intended to function. The Minister has taken functions away from other entities like the Environmental Risk Management Authority. He has taken the hazardous substances and new organisms function away and he is putting it into the Environmental Protection Authority. Likewise the Climate Change Response Act responsibilities will come from the Ministry for the Environment and elsewhere and they will go into the Environmental Protection Authority. What we will have is environmental law by hotchpotch. The Minister will be creating under this regime a necessity as I said earlier to read with the Environmental Protection Authority legislation the particular piece or pieces of other environmental legislation that are in question. 
The other problem is there is this provision in the legislation that will allow the Minister to direct the Environmental Protection Authority to carry out additional functions from time to time. The assurance we have had from the Minister and from his officials is that these will be only minor ancillary functions. No substantive new functions that require legislative amendment will go to the authority as a result of ministerial direction. It is: “Trust me. We’ll do it the right way”. I see the Minister smiling because he knows that the problem is there is just no bright line in our law between a substantive and an ancillary function. I expect that when the Minister takes a call he will point to some provisions in the legislation that touch on this matter but it really is not satisfactory that new functions should go to the Environmental Protection Authority simply by political judgment and ministerial fiat. It should be the legislation that founds the authority that gives it decent and comprehensive functions from the outset. 
There is an amendment tabled on this matter. It would add in a couple of functions for the authority from the outset. It would remedy the failure to deal with coastal and marine management as well as environmental management of the exclusive economic zone by putting those functions directly into the functions of the Environmental Protection Authority right from the outset. I do not pretend that that is a substantive answer. I accept that further legislation would be required in order to accomplish that fully. But the Minister has told us that he has a report. This is an urgent matter: the drilling is happening. The exploratory licences are being granted. The public do not want to wait for a proper regulator and a proper body that is designed to be in charge of public consultation on these issues. They want to see that happening now. There is no reason with the constitution of the Environmental Protection Authority by the legislation that this House is now accomplishing why we cannot do that. There is a separate amendment that would add the administration of the Waste Minimisation Act into the functions of the authority and I commend those two amendments to the Committee. 
The next point that concerns me in respect of this part is the actual function or responsibility of the Environmental Protection Authority. As I said before when people hear the expression “Environmental Protection Authority” the immediate thing that springs to mind is a body with comprehensive and independent regulatory powers over the environment. The problem here is that this body does not even have an express responsibility to protect the environment. Nowhere in the statute will that requirement be found. That is why I have put forward an amendment that will insert in clause 11 an express objective for the authority which will be to protect maintain and enhance New Zealand’s environment. It is a crying shame that the Minister did not think that that overarching objective ought to have been in the bill from the start. The failure in my view to do that speaks volumes about the commitment of this administration to the fundamental importance of protecting and maintaining the integrity of the environment. I say to the Minister that we must have something of that nature in this legislation. A strong objective must be put in from the start; otherwise his work will be in large part for nothing because of the public confidence issue that I referred to earlier. 
The final amendment I have put forward that is relevant to this part relates to the independence of the Environmental Protection Authority. There are three types of Crown entity under the Crown Entities Act: Crown agents which have to give effect to Government policy when directed under the relevant legislation by the responsible Minister; autonomous Crown entities which have to have regard to Government policy; and independent Crown entities which cannot be directed by the responsible Minister unless there is an express power. 
The problem we have here is that it is quite obvious that the legislation sets up the Environmental Protection Authority as something other than an autonomous Crown entity. In fact in respect of some of the powers in the Act such as the hazardous substances and new organisms powers it involves taking authority closer to rather than away from the Crown.