Chauvel Charles: Environmental Protection Authority Bill — In Committee 
Chauvel Charles: Environmental Protection Authority Bill — In Committee 
[Volume:672;Page:18500] 
CHARLES CHAUVEL (Labour) 
: 
 First of all I thank Chris Auchinvole for taking a call. As I recall it is the first call he has taken in the debate on the Committee stage of the Environmental Protection Authority Bill. 
Phil Twyford 
: It was only 4 minutes. 
CHARLES CHAUVEL 
: Although it was a short call I think one or two points are worth mentioning. However I will say that it is shame that we did not hear from the chairman of the Local Government and Environment Committee in respect of Parts 1 and 2 because they are the primary parts of the bill. They deal with the purpose the objective the functions and all those matters that other members and I think the public would have liked to hear about from the person responsible for chairing the select committee. But we were denied that opportunity. 
Mr Auchinvole said he was mystified—and this was his last point—by some comments made by my colleague Ruth Dyson. I remind Mr Auchinvole and the Committee what Ruth Dyson was talking about. She was talking about the tabling of an amendment earlier in the Committee stage that related to a Treaty of Waitangi clause. That was the first time that that clause had been subjected to any sort of parliamentary scrutiny. The Minister in the chair the Minister for the Environment is looking through his copy of the bill. It is true that that clause relates to an earlier part but I know I will be indulged because I am responding to a matter dealt with in an earlier speech. 
Ruth Dyson’s point was that it was discourteous to the select committee and its chair for a substantive Treaty clause of that nature to appear for the first time in legislation after the select committee process had finished. That means that the public gets no opportunity to have any sort of input to have any say or to make any submissions on the point. 
Hon Dr Nick Smith 
: What about all your amendments? 
CHARLES CHAUVEL 
: The Minister just asked about my amendments. The difference I say to the Minister is that all my amendments were moved in response to public submissions. They were suggested by the public but his Government decided in its wisdom or its arrogance—members can take their pick—not to include those amendments. That is the difference. 
I will take a few moments to talk about a particular provision in Part 3 that I would like the Minister to do us the courtesy of speaking to. That provision relates to Subpart 2. Subpart 2 particularly clauses 25 through to 28—and in particular clause 27—would disestablish the Environmental Risk Management Authority. It also disestablishes Nga Kaihautu Tikanga Taiao—the Maori advisory committee to the Environmental Risk Management Authority. I see that one of the effects of Supplementary Order Paper 241 in the Minister’s name is to correct the spelling of “Taiao” in clause 28. I hope as I say given that the Minister has moved a Supplementary Order Paper that affects this part and given that it is an important part that we will actually hear from him on it. 
I ask the Minister what the effect of the disestablishment of Nga Kaihautu Tikanga Taiao is particularly as under clause 20 and those that precede it—19 18 and 17—a new Maori advisory committee is established for the Environmental Protection Authority itself. If the Minister is to address the Committee on this point I ask how these provisions fit with the amendment that stands in the name of Rahui Katene. The Committee has already discussed that amendment but it is entirely relevant to this part because this part abolishes the advisory committee to the Environmental Risk Management Authority. 
In particular how is the new Maori advisory committee and how is the Environmental Protection Authority to satisfy the new test that has been inserted into the law by the earlier amendment? The Environmental Protection Authority is required “to take appropriate account of” the particular Treaty clause in one of the contributing pieces of legislation to the Environmental Protection Authority—that is one of the environmental Acts under which the Environmental Protection Authority gains authority to act. As we have heard already there are different provisions in each of those Treaty clauses. The new obligation if we pass this bill in the form that we so far appear likely to pass it in is “to take appropriate account of” the Treaty of Waitangi. That is what the Environmental Protection Authority is obliged to do but it is to do so with regard to these different Treaty clauses. 
My concern is that the advisory committee that is being established to replace the existing body that advises the Environmental Risk Management Authority will be quite bewildered about how to do this. Why is that? The Resource Management Act the Hazardous Substances and New Organisms Act the Climate Change Response Act and the Conservation Act which is not legislation of direct relevance to the Environmental Protection Authority but which will obviously have an effect on the general manner in which it operates all have different types of Treaty clauses. There are other functions to be discharged by the Environmental Protection Authority under the Ozone Layer Protection Act and the Imports and Exports (Restrictions) Act where there are no requirements to have regard to Treaty clauses. 
I think what has happened is that people who are unfamiliar with the way in which a Crown entity works have looked at this legislation and thought: “Oh well. We’ll put a Treaty clause in and hope it works.” But it is not as if an individual staff member working in the new Environmental Protection Authority will have responsibility just for climate change just for hazardous substances and new organisms just for the Resource Management Act and projects deemed to be of national significance just for the ozone layer just for the Imports and Exports (Restrictions) Act or just for any of the new functions that might be added to the Environmental Protection Authority either by the Minister’s fiat or by legislation in the future. 
The reality is that policy analysts or others will have multiple responsibilities under all those bits of legislation. Initially they might start working just in one area but of course if the Environmental Protection Authority is to work they will have to take an integrated approach. Not only will they have to direct themselves properly on the law in respect of any individual provisions in the contributing pieces of legislation but also they will have to reconcile these Treaty clauses. Often as I have pointed out a Treaty clause will require one thing in one piece of the Environmental Protection Authority’s responsibility and a different thing in another and there will be no obligation in yet another. Finally there is this overall obligation “to take appropriate account of” Treaty provisions which has now been inserted by the amendment already approved by the Committee in respect of an earlier part. 
My concern in respect of this particular part is how these obligations are to be reconciled. There is to be a Maori advisory committee. Other committees with relevant responsibilities in the contributing organisations particularly in the Environmental Risk Management Authority are being abolished. A multiplicity of tests exists in other legislation and now a new overarching test in respect of Treaty obligations has been inserted by an amendment. But there is no overall requirement as to how to act in respect of Treaty matters in respect of the consultation of iwi or in respect of fulfilling the fundamental requirement of finding out what Maori think in respect of a particular proposal or function and then taking into account having regard to or having appropriate regard to—to use the three different tests that now already exist in respect of these functions—those considerations. 
That fundamental matter is raised by the subpart because of the obligations which I have referred to and because of the disestablishment of Nga Kaihautu Tikanga Taiao the apparent replacement of that body with the Maori advisory committee and these conflicting provisions which I have referred to in this contribution.