Fitzsimons Jeanette: Resource Management (Waitaki Catchment) Amendment Bill — Second Reading 
Fitzsimons Jeanette: Resource Management (Waitaki Catchment) Amendment Bill — Second Reading 
[Volume:616;Page:12011] 
JEANETTE FITZSIMONS (Co-Leader—Green) 
: 
 This bill has been substantially rewritten by the Local Government and Environment Committee. I want to thank all the members for their work towards a much-improved bill. I think it is significant that when we came to deliberation all of the members of the committee voted for all of the amendments even though some of them still voted against the bill itself. We have worked cooperatively I believe in order to get the best possible outcome. 
The primary issue the committee had to consider was whether there was justification for setting up a new process to deal with water allocation in the Waitaki River which would amend the Resource Management Act yet again. The Resource Management Act is supposed to deal with those issues. The answer to that question has to be a very limited yes but not to the extent the bill provided when it was introduced. At present no one has set an environmental flow regime for the Lower Waitaki. No one has decided how much water is needed to provide for the habitat of wading birds the integrity of the wetlands the trout and salmon fishery the recreational opportunities the landscape and scenic values. These are broadly summed up in the Resource Management Act as intrinsic values of ecosystems and amenity values appreciated by humans. Data exists on those values but they have not been assessed and provided for. Now we have applications for the right to take water for irrigation and hydro which together total more than the water in the river. 
It is true that this bill would not have been put forward if Project Aqua had not applied—not I believe because there is some way that this bill favours Project Aqua but because if Project Aqua were not there we would be able to continue allocating some water without getting anywhere near the levels that would threaten those in-stream values that have not yet been provided for. That is why we need the bill. 
How can those applications be assessed without first setting an environmental flow regime? If the argument were only between farming and electricity at the resource consent stage the easy solution would be to partition the river between them and leave the river itself out of the calculation. But the Resource Management Act makes it clear that ecological integrity is paramount. No decision maker could do a good job of providing for that in the time frame allowed to issue resource consents. 
The Act assumes that a fundamental basis of the legislation is that applications for consent are assessed against a pre-agreed plan. There is no plan so the Greens strongly support the need for a delay while a plan is put in place—both to provide properly for the river itself and then to allocate between the end uses of electricity and farming. If this bill does not proceed that cannot happen. Without this bill the process would be that these applications which have been called in under the normal process of the Resource Management Act would be assessed by a board of inquiry appointed by the Minister. The board would make recommendations to the Minister who would make the decision. This board would not have the independence from the Minister that we have recommended here nor the powers status and expertise that we recommend be given to the board setting the framework. 
So a process for producing a water plan for the river is essential. But that is the only way in which this bill should derogate from the principal Act. This should not be a place for trying out the ministry’s new ideas for future amendments to the Resource Management Act. The bill should not be a Trojan Horse for that. It should not truncate the process just because the Minister wants a fast decision. 
There are many provisions in this bill that are about speed rather than quality and we have changed them. For example we were advised by everyone who commented on the issue that 8 months is far too short a time for the board to develop the framework for water allocation. Confining it to 8 months risks sacrificing quality for speed and would not allow time for all the relevant data on the river—and its flows habitats and uses—to be collected analysed and incorporated. So we recommend up to a 50 percent increase in this time frame—a 1-month increase as of right and a further extension of 3 months if it is needed which I am sure it will be. 
The committee took the view that we would remove all the derogations from the principal Act that were not essential and that wherever possible the issue should proceed under the normal Resource Management Act process. This has involved a lot of changes and we will revisit those in greater detail at the Committee stage. Of particular importance is the requirement in clauses 20 and 42 that the plan and consent applications be considered from a national perspective. This raised an outcry from the local community which considered quite fairly that as the national perspective can already be considered under Part 2 of the Act this must be giving it particular weight over and against their local needs. That is not what sustainable management of resources is about. 
We also received evidence that national perspective does not occur elsewhere in relevant legislation and would result in a challenge to its meaning in the higher courts. That is perhaps why the Government has agreed to our recommendation to take it out. The weighting of national and local interests must still be done but done according to the principal Act unchanged by this amendment. For the same reason we have removed the word “strategic” from clause 3. We could see no good reason why the section 32 test in the principal Act which requires decision makers to justify their plans and rules as the most appropriate should be weakened in this case. 
Clause 21 introduced a watered-down requirement for accountability. We have removed it and ensured that section 32 applies to the extent relevant to the matters being considered here. We also could not see any good reason for the Minister to appoint the panel of commissioners who will hear the consent applications. This is a routine function of regional and district councils and they often have joint hearings now. All that was needed to ensure that time was not wasted was to require them to appoint a joint panel and to give it the power to consider all the applications together and comparatively so that is what the bill now provides. 
We have clarified that other relevant planning instruments such as the coastal plan still apply. We have removed clause 31 which would have given a higher degree of protection to existing water rights than would be the case under the Act. We have brought the requirements for public information and provision of documents into line with the Resource Management Act. We were determined that the board and the panel would have no special privileges or exemptions other than those necessary to do their job of getting the plan out. 
There remains one serious departure from the Resource Management Act and that is the question of appeal rights. Normally references on a regional plan would go to the Environment Court but the bill provides for no appeal to the Environment Court on the framework which has the status of a regional plan. I can understand the Government’s reasons. Sixty-odd applications have been held up for some months under call-in and will be held up another year before a hearing can begin and many of them will be quite small applications to take water for farming. These people have been denied the normal pace of a hearing and the Government does not want them to be further delayed by appeals that could in some circumstances take another couple of years. 
But taking away rights of appeal is a serious matter and four of the parties in the select committee noted that they did not believe that there was adequate reason for it. I will be moving an amendment to restore those appeal rights. However in the knowledge that the Government has the numbers on this issue we proceeded to ensure that if there were to be only one hearing it would be of the highest quality. We have therefore recommended that the board be given all the powers status and expertise of the Environment Court so that the job is done right from the start. 
First we have distanced it from the Minister by removing her right to sack its members and give them directions. We have set criteria on which she must appoint to ensure all the necessary skills are covered. We have increased its membership to between three and seven because two is clearly not enough. The board will have the powers of inquiry cross-examination and taking evidence on oath. While there is still one hearing rather than two we believe it combines the best features of both parts of the normal process. 
The bill provides for an Environment Court appeal from consent decisions but to a limited extent. Such appeals will be given priority in the court’s timetable and I have to say that I do not think that that is a problem. If they had proceeded without the delay of the board process to set the framework they would have entered the appeal stage earlier anyway so they are not really leapfrogging other cases. The bill also provides though that new evidence cannot be given except by leave of the court which is likely to be given if it could not reasonably have been presented to the first hearing but probably not otherwise. The evidence already given at the first stage will not be re-heard unless it is challenged. 
I see a problem with this as a very truncated process is being adopted only for these projects. Therefore I will move an amendment on that as well. National is declaiming about process and departure from the Resource Management Act but it is clear that its only concern is that it wants a truncated process like this all the time for everyone. 
So I turn to Project Aqua. To claim that this is a fast track is wrong. Compared with the normal process it is a slow track. National knows that without this bill the hearings would already be under way—that Project Aqua would be more likely to proceed because there would be no minimum flow. The Greens are totally opposed to Project Aqua which wrecks our largest braided river in order to perpetuate our energy waste.