Potaka TamaTAMA POTAKA (National—Hamilton West): Ngā mihi o te wā o Puanga me Matariki e hau nei ki runga i a tātou.[Greetings of the times of Puanga and Matariki as they set upon us.]It gives me great pleasure to speak to this Natural and Built Environment Bill on the second reading. I want to acknowledge also the mercurial Hon David Parker and the erudite Hon Eugenie Sage for leading this extraordinary effort to compose and bring this not insignificant companion bill to the House. It's been very entertaining actually listening to the link between Puanga and Matariki and the nationwide embracing of that to say that the nation will now embrace this bill which has a far more significant impact on our communities than a public holiday.National supports reform of the Resource Management Act (RMA) but respectfully opposes this bill. I would commence with some minor insights from my short but entertaining legal training and practice which I undertook over various years and various institutions and law firms. I say this because what I don't want to see if this bill passes is an abyss of six-minute units around how to present and argue and lobby for various parts of this bill and to get decisions made.But where do I start? Back to basics. Our Westminster system is based on a number of foundational principles: separation of powers judicial independence parliamentary democracy with a constitutional monarch as the head of State protocols like privilege and collective responsibility at Cabinet and a distinct electoral system—which I hope one day may change to enable elections to take part in the warmer months of the year.The rule of law is a fundamental pillar of our legal system and it stands as a pou tokomanawa—or centre pillar—supporting the rich pou of this fine House. That rule of law is something that we have to consider and measure ourselves every day against particularly with the passing of quite complex and in our view uncertain legislation. This rule of law implores legal certainty. It does so in the common law jurisdictions; it does so in the civil law jurisdictions. It states that laws and decisions must be definite and clear. Once we start shaking that pillar we threaten the stability of this House its constitutional foundations and the social arrangements of our great country New Zealand.In my humble opinion practice and training as a lawyer this bill if proposed passed as law will shake the pillar of legal certainty required for such an important piece of legislation. It will threaten the very stability of this House and the constitutional and social arrangements that we have in this country. It drives our legislation into an abyss of six-minute units. I'll say why; I'll give you some reasons why.DEPUTY SPEAKER: Mr Potaka just reminding you that this is a second reading and one of the purposes of second reading is referring at some stage to what happened at select committee.TAMA POTAKA: Yes I'll go to that right now.DEPUTY SPEAKER: So you will be heading in that direction?TAMA POTAKA: Yes I will be.DEPUTY SPEAKER: Not a first reading speech? Thank you.TAMA POTAKA: Yes I will be. And that direction starts with the Chief Justice's comments at that select committee where the Chief Justice said and raised—yes the judicial comment of the highest judicial officer in this land—that the length and complexity of this bill would further disrupt the courts. It was a public warning proffered by the Chief Justice in light of the extensive expected litigation that would emerge from the proposed wording therein.Federated Farmers too that doyen association of resource users reflect a genuine objection with the bill's comments. The reform packaging has been riddled with new and amorphous terms" including the need for a national planning framework" set out in the bill to "'uphold' 'the interconnectedness of all parts of the environment' and to not compromise 'the well-being of future generations.'"The Green Party itself has remarked in the papers that "the large number of outcomes and the lack of priority for environmental outcomes together with the decision-making principles risk a return to a subjective 'overall broad judgment' approach." Again decisions being made on how we feel rather than firm criteria with a touch of discretion.The Parliamentary Commissioner for the Environment said that this proposed legislation would generate a field day of opportunities with such sweeping and all-inclusive language. Even the Environmental Defence Society has resiled from the bill effectively saying that it is word soup—word soup.When you read through the proposed purpose of the Act it gives us a moment to demonstrate how the bill innately infuses legal uncertainty. "The purpose of the Act is to uphold te Oranga o te Taiao." which includes enabling the use and development of environments "in a way that promotes the well-being of both present and future generations." Te Oranga o te Taiao—and it sets it out—"the health of the natural environment; the relationship between the health of the natural environment's capacity to sustain life; the interconnectedness of all parts of the environment; and the relationship between the iwi hapū and te Taiao based on whakapapa." I thought I was going to read the Mabo constitution and vibe as paragraph (f).The wording makes it very hard for people to make a firm predictable consistent decision across resource management and that is very disconcerting. For example when you dig down and interrogate the wording proposed—when we refer to the wellbeing of both past and future generations how do we measure that? Are we weighing this between 50 today and 50 tomorrow?Are we talking about a 500-year plan like Wakatū Incorporation in Nelson or a 25-year plan like Whakatupuranga Rua Mano or Ngāti Raukawa Te Atī Awa Ngāti Toa Rangatira? What is the time frame that we're talking about here? Because ultimately the commitment of decision makers iwi Māori incorporations and trusts property developers and others often rests on timing.Here we don't know where the harvest can come from fertilising and planting something; we don't know if both present and future generations count for 1 2 or 20 generations. Because once you start making decisions based on the future generations you need some guidance as a decision maker. Is that 100 years into the future or 20 years into the future? The wording in this bill in my view does not go far enough.What about the health and wellbeing of communities? What does the legislation give on guidance here? Are we talking about the Whare Tapa Whā model popularised by Tā Mason Durie when we get into spiritual physical mental and social health; or are we back to the Living Standards Framework popularised by The Treasury? Or was it the Wheke model popularised by Rangimārie Rose Pere? You see these particular models could all be used in different ways with different investment time frames and giving different investment ambiguities and decision ambiguities for decision makers. That's one of the reasons why I think that the bill in its current wording is very premature.What about the relationships of farmers and their families like the ones on the Taihape-Napier Road and their connectedness with the Taiao? They too have bones buried in the hills up there. Are we saying that their connections are not important? I think that that's where the Labour-led Government is saying that the relations and the ancestors of people like the member of Northcote and myself from 200 years ago Pākehā or Māori actually divide.The proposed establishment of the National Maori Entity has actually been opposed by the iwi fresh waters forum group. Rukumoana Schaafhausen has made comments about how that entity effectively seeks to cut against the rangatiratanga of iwi. Yet we have the omnipotent Labour-led Government saying "No this is the right thing to do notwithstanding that group's concerns." The bare words set out in subpart 5 suggest otherwise.Second the bill now elevates the standard of compliance and performance against Treaty principles. In the current RMA as we know you take account of the Treaty of Waitangi principles. But in this new bill commensurate with section 4 of the Conservation Act decision makers are expected to give effect to the principles of the Treaty.In my brief experiences with the loveable and colourful rogues of Motutapu and Maraetai James and Billy Brown and the now famous Supreme Court decision in the Ngāi Tai ki Tāmaki Tribal Trust and the Department of Conservation the courts have made some determinations on how the department needs to give effect of that Department of Conservation to the Treaty principles. But as the Hon Eugenie Sage would recall notwithstanding that this was a useful decision the implementation of the decision has left an absolute bureaucratic nightmare. So section 4 when it says gives effect to the principles of the Treaty of Waitangi in fact when you go through the guidance of that it's very thin and concerning.In my view expediting the elevation of this specific envisioned in the legislation requires more careful consideration from people who are actually in the game and deliberation to ensure greater certainty for the iwi the communities territorial authorities and to ensure less failure to deliver on reasonable expectations.We lived through that process when I worked at Ngāi Tai ki Tāmaki. We lived through the absolute shemozzle that the interpretation by bureaucrats at the Department of Conservation and elsewhere sought to give to that provision. We were unable to actually progress things in a timely and civil manner because people did not know what to do. They were playing that game that we used to play as children called "Freeze." Stop don't do anything and never get anywhere.With these comments. I'd like to reinforce: we support reform but we don't support this particular package. Kia ora tātou."