Fitzsimons Jeanette: Resource Management and Electricity Legislation Amendment Bill — First Reading 
Fitzsimons Jeanette: Resource Management and Electricity Legislation Amendment Bill — First Reading 
[Volume:622;Page:17974] 
JEANETTE FITZSIMONS (Co-Leader—Green) 
: 
 This bill claims to be about improving the Resource Management Act but it is actually a fundamental change to the original purpose of the Act. The Minister says that the bill will improve the Act without compromising environmental outcomes or public participation but what we have is vastly increased ministerial powers to override the decisions of communities and local councils. The bill has six main objectives but not one of them even pretends to be about improving environmental quality or slowing environmental destruction. 
This is a bill that the National Party would be proud of. It has campaigned for years to make the Resource Management Act more developer-friendly and if National had introduced this bill a few years ago Labour would be expressing outrage alongside Green members. But there is now little difference between Labour and National on the question of public participation in planning or the protection of the natural environment. There have been numerous Resource Management Act amendments from both the larger parties in the House since the Act was passed in 1991 and none of them has been aimed at improving environmental outcomes. There have been numerous reviews of how the Act is working of compliance costs of timeliness and of how well it works for developers but never has there been a review of whether it works for the environment. The fact is that aided by numerous amendments and case law it often does not work for the environment. 
New Zealand’s primary piece of environmental legislation has increasingly become an Act for developers and this bill takes it further in that direction. It is legislation that is driven by Government panic that democracy may actually work and that communities may make decisions about how they want to live that do not accord with the Government’s plans. We know from the Growth and Innovation Advisory Board survey that most New Zealanders value their quality of life and the quality of their environment more highly than faster economic growth. But that is not the Government’s objective so it has given itself draconian ministerial powers to override local decision-making and ram through unpopular projects. 
All of this is supposed to be in the national interest but there is no definition of “national interest” in the bill. It seems that the national interest is whatever the Minister says it is. We do however have a definition of “infrastructure” which is appropriate because this is actually an infrastructure bill. The ministerial overrides are primarily to enable a smooth passage for infrastructure projects like motorways large dams hydro projects transmission lines and landfills. In each case where an unpopular giant project is proposed to be foisted on a local community there will be alternatives. Instead of motorways we could have better public transport and urban planning; instead of hydro projects we could have wind or energy efficiency; instead of landfills we could have better resource recovery; and instead of transmission lines we could have more local generation and fuel switching. But only the large expensive unsustainable option is to receive a free ride under this legislation—further entrenching the dominance that it already has. Further evidence for that is the addition of “promoting timely and effective provision of infrastructure” to the functions of regional councils. 
To disguise just how draconian this bill is the Government has had to resort to doublespeak. The first objective of the bill is supposed to give clear guidance to decision makers “on how to take national interest matters into account”. This so-called guidance takes a number of forms. When we turn to clauses 20 and 21 we find that guidance may involve forcing all councils to abandon environmental standards that they have set with their communities for air and water and replace them with lower standards set by Government. Environmental standards provided for since the Act was passed have been unused until recently when standards for dioxins and for air quality were developed. The Greens have always supported having standards and have frequently called for this part of the Act to be used. But the Act provides for standards to be a minimum below which councils may not go. Now they are to become a maximum level of environmental quality which may not be exceeded. 
We also find that environmental standards may be used to require a council to make a certain activity a permitted use with no conditions and no requirements for a resource consent. Standards can now relate to infrastructure rather than environmental quality. One can only wonder what unpopular activities this is designed for: food irradiation plants coal mines or transmission lines. Environmental standards are by this bill to become anti-environmental standards which is another example of doublespeak. Further guidance is to be available in the form of national policy statements. As first conceived in the Act these were robust statements of policy that would survive several changes of Government and guide local decision-making. To achieve this broad level of support they were developed by an independent board of inquiry with a consultative public process. But this was too democratic for successive Governments to use and they never did. So in 2003 it was streamlined to make it easier for Ministers. 
But we still have no national policy statements so now it is to become a creature of the Minister who can use any process he likes as long as there is an opportunity for public comment—not hearings—and as long as someone reports to him on the submissions. So the whole process could be undertaken by a junior staff member and the Minister. This will of course not have the robustness intended by the Act and local authorities will be bound by national policy statements that change with every Government. Consent hearings and applications for plan changes can now be snaffled up by the Minister and given to an appointed board at the request of applicants who think they might not get what they want from the local community. There will be no appeal except on points of law from the decisions of these ministerially appointed boards. 
There are also serious concerns about the changes to the way local decision-making will work. If an applicant fails to give relevant information about a project a council can no longer require that that information be provided. A developer can refuse to provide it and effectively dare the council to turn down the application for that reason. Theoretically the applicant will have to weigh up that risk—that his or her project might fail to get consent because not enough information was provided. In practice we know that will not happen. 
Councils will instead make decisions in ignorance not knowing what they do not know. The less information that is disclosed the less opportunity there is for objectors to contest it. It is a recipe for non-disclosure and for decisions based on poor quality information. The ministry tried it on in 1999 and it was thrown out by the select committee with the Minister’s agreement. Now it is trying it on again. 
The first consent hearing by the council or its appointees is to be made much more formal. We strongly support the training to be provided and required for councillors on hearing committees. We also support encouragement for those on the hearing committees to test evidence but that cannot replace cross-examination. The proposal is that with a stronger first hearing the Environment Court should not rehear any evidence that has been heard and no new evidence should be able to be presented except with the leave of the court. The only outcome I can foresee is that every Environment Court appeal will begin with several days of legal wrangling about whether certain pieces of evidence have been properly tested. It will not be an easy decision for the court as there are no transcripts of council hearings. With sufficiently sharp and well-paid lawyers it will be possible to establish that all evidence that is disputed must be heard again and cross-examined. The hearing will be made longer and more complex and tilted against community groups. 
Council hearings are stacked against community groups in several ways. They must have all their evidence and witness briefs in at the start—easy for a corporate with paid staff but an onerous task for unpaid community groups. They may not bring new evidence later. The council has new powers to strike out a submission if it finds it to be vexatious or frivolous and refuse to hear evidence if it finds it not to be relevant. Lawyers will spend a lot of time arguing at the new compulsory pre-hearing meetings that their opponents should not be heard at all. 
Finally to complement the foreshore and seabed legislation a local authority may after satisfying many subsections set up a joint management agreement with another body such as an iwi organisation for joint decision-making. But it may then act alone without the agreement of its partner and it may terminate the joint-management agreement unilaterally with 20 days’ notice. I personally cannot see iwi organisations flocking to take advantage of this generous provision to participate in managing natural resources in which they have a particular interest. 
The Greens will not vote for this legislation. There are some clauses we support but they are vastly outweighed by the matters I have mentioned. We will however listen hard to submissions. We will get involved strongly in the select committee process and work to improve the bill at that stage.