Dalziel Lianne: Environment Canterbury (Temporary Commissioners and Improved Water Management) Bill — In Committee Third Reading 
Dalziel Lianne: Environment Canterbury (Temporary Commissioners and Improved Water Management) Bill — In Committee Third Reading 
[Volume:661;Page:10044] 
Hon LIANNE DALZIEL (Labour—Christchurch East) 
: 
 I have been very keen to get back to the regulatory impact statement which was not included with the Environment Canterbury (Temporary Commissioners and Improved Water Management) Bill. Under the leadership of Rodney Hide as the Minister for Regulatory Reform this Government has decided to take all the regulatory impact statements out of bills and to hide them away on the individual websites of the relevant ministry and of Treasury. This regulatory impact statement would have to qualify as one of the most damning indictments of any Government’s process or of any bill that I have ever seen in this Parliament in the 20 years since I was elected to represent people in Christchurch. I think I have some justification for feeling pretty aggrieved about how the people in our area have been treated by this Government. 
I direct the Committee’s attention to the regulatory impact analysis which is unpaged. Let me read out a quote under the heading “General discussion of options”. It states: “Options that rely on introducing legislation in a very short timeframe increase the risk of poor or misdirected intervention resulting in unintended consequences and the need for subsequent intervention to remedy these consequences. Ad hoc intervention also potentially undermines the integrity and credibility of existing legislative provisions. However in this instance because any national level decisions on water management (particularly WCOs)”—which are included in this part of the bill—“have the potential to undermine the government’s New Start for Freshwater policy programme and the work of the Land and Water Forum it is considered preferable for any intervention to have a narrow Canterbury-specific focus in the first instance.” 
So this is the beginning. It is the beginning of a new approach that this Government will have. This is the end of water conservation orders. That is why I have an amendment on the Table of this House to ask that the sections relating to water conservation orders be removed from the bill. I hope that I get the support of other members of this Committee. I do not think that Government members or the parties that are supporting the Government particularly the Maori Party fully appreciate the extent of what is happening to water conservation orders under this legislation. I honestly do not believe that that has been fully explained but it all becomes very clear when the regulatory impact analysis is analysed. 
The regulatory impact analysis goes on to say “The results of any intervention” in Canterbury—and that is what Part 3 of this bill implements—“could provide useful information for decision-makers on the outcomes of the New Start for Freshwater policy programme and potentially an opportunity to trial alternative policy settings in a confined context.” So Canterbury is now to be the scene of an experiment in terms of the Government’s wider policy objectives with the New Start for Fresh Water policy programme. I am deeply alarmed to find that stated in the regulatory impact analysis. No commentary on this agenda is contained within the explanatory note of the bill. We have to go to the regulatory impact analysis which is no longer contained with bills to find that this is the Government’s objective. 
Another point in the regulatory impact analysis says—and I think it is relevant that the Minister has not commented on this; I think perhaps the Minister in the chair Chris Finlayson could take up this particular issue because it is within his broader portfolio—that “Any intervention that alters the nature of the relationship between Ngai Tahu and the body responsible for governance and decision-making on natural resources particularly water will need to be designed in light of the Crown’s Treaty responsibilities. In particular commissioners will individually and/or collectively need to have a strong understanding of the Ngai Tahu perspective rights and interests.” Not once have we heard the Minister talk about how that will be addressed in the context of implementing Part 3 of the bill. 
Part 3 creates a whole new paradigm for water conservation orders. If we go through the regulatory impact statement we find that the Government is a little concerned about the nature of the requirements for assessing water conservation orders. That is why my amendment becomes all the more important. The regulatory impact analysis states that one of the options was to put together the whole question of water conservation orders. The concern was expressed that “This would displace the statutory purpose of WCOs as an instrument for protecting outstanding amenity or intrinsic values of water bodies and would allow decisions on the allocation of water from these water bodies to be made in the context of sustainable management of resources.” I think the Minister should talk to us about this issue because there seems to be a very deliberate decision by the Government to shift from the conservation values that are behind our water conservation orders in one part of the Resource Management Act to another part of that Act which talks about the sustainable management of resources. I think that if the Minister is doing that as part of a long-term objective to shift over time in that way throughout New Zealand this is not the way to do it. To have an experiment in Canterbury to see whether we can trial a different way of doing things there is actually quite untenable. 
The regulatory impact analysis contains 3½ pages on option one. A regulatory impact statement requires the Government to set out what the objectives are to set out the range of options and then to analyse each of those options: do a bit of risk analysis opportunity costing and various other tests when looking at the risks and benefits of a particular approach. In this regulatory impact statement there are three pages on option one which is the legislation to replace Environment Canterbury councillors with commissioners. There is half a page each on the other four options. We have option two “Legislation appointing commissioners to take over resource management functions only”; option three “Legislation replacing council with commission tasked with transitioning to Canterbury Regional Water Authority” which I believe is still on the agenda; and option four “Implement Canterbury Water Management Strategy”. 
It is interesting that when one looks under option four one sees that it states that “The visions and principles of the CWMS seek balance between environmental economic social and cultural outcomes but this balance is to be achieved under the over-arching presumption of more reliable water and more intensive land use - an outcome that has not been subject to assessment against the purpose of sustainable management set down in the RMA.” So even the regulatory impact analysis in ruling out one of the options that is actually being implemented by this bill is inconsistent with the provisions that the Minister really ought to be operating under in respect of the Resource Management Act. 
The regulatory impact analysis also goes on to say that “The potential inconsistency between the overarching presumption behind the vision and principles of the CWMS and the purpose of the RMA has implications for the planning framework in Canterbury post-intervention.” That would have to be the understatement of the year; of course it has implications post intervention. But I would really like the Minister to talk about that because not once have any of those issues been raised in the debate so far. We are passing legislation under urgency where we have not had an opportunity to have a rigorous debate about those things which really matter in Canterbury and around the country. 
Option five is “Use existing RMA intervention powers”; and option six is “Targeted assistance to Environment Canterbury” which was based on the proposal that Environment Canterbury put back to the Minister. To be honest that did not get even a fair hearing in my view because the Government had already decided that it would go with option one. So option six which was proposed by Environment Canterbury was ruled out beforehand. 
I will now talk about how other Government departments responded to the consultation after the review of Environment Canterbury. I am really quite shocked to find all of this detail in a document that was not even tabled with the bill. As a result of the consultation with a number of Government departments a whole lot of concerns were raised. First of all on “proposals to replace the elected Councillors for all of ECan’s functions suspend local body elections or remove the right of appeal on the NRRP or Water conservation orders except on points of law” the concern was that “These proposals appear [sic] present a prima facie access to justice issue and some departments were concerned that this may not be consistent with the Government’s statement on regulation: ‘better regulation less regulation’ which requires ‘a particularly strong case [to be] made for any regulatory proposals that are likely to override fundamental common law principles”. 
Which of the Government departments that were consulted said that? Was it the Department of Internal Affairs the Ministry of Agriculture and Forestry Treasury the State Services Commission the Ministry of Justice the Ministry of Transport Te Puni Kokiri or the Department of the Prime Minister and Cabinet? Which one of them or which group of them said there were serious concerns about the likelihood that this would “override fundamental common law principles”? Which one said that? That is what it says here: “These proposals appear [sic] present a prima facie access to justice issue and some departments were concerned …”. Well I am more than concerned after reading that. 
The regulatory impact statement goes on to say there was concern about “the potential for the proposal to mean that parties with a stake in Canterbury’s natural resources will have less ability to protect their rights and interests via appeals on resource management decisions than elsewhere in the country.” So Canterbury misses out again by being alone in the application of this change to the rules. 
The regulatory impact statement also refers to concern about “the proposal to transfer the entire range of ECan’s roles and responsibilities to commissioners despite the finding that ECan was performing adequately outside of its water-related functions”. That entire part is focused on water-related functions yet the research the report and the review—everything that has been done—says that Environment Canterbury was performing adequately outside of those functions. So we are to deal with the whole of Environment Canterbury we are to just wipe the whole lot of those functions and we are not to mind the fact that there is the issue of whether “the gains of such a move outweigh the costs of removing democratically elected representatives.” I am quoting from the Minister’s own department’s report on the regulatory impact analysis. This is not something that I am just making up. The Minister’s own department has reported this to him as having been expressed as a concern by a range of other Government agencies. Goodness knows why the Ministry for the Environment does not think these issues are important either. 
Proposals to change the water conservation order processes have the potential to be highly controversial particularly given that the Government has not signalled such a move in its New Start for Fresh Water policy programme. Because of those concerns three minor changes were made to the proposal but that is it and there is nothing of substance in terms of the seriousness of the issues that have been raised. 
I am deeply concerned that this kind of information this quality information is withheld from members of Parliament who are standing up to debate this bill in the Chamber. 
Hon Dr Nick Smith 
: It was tabled. 
Hon LIANNE DALZIEL 
: It was not tabled with the bill. The Minister can interject as much as he likes but the Government made a decision to no longer include regulatory impact statements with bills. They are now available separately on websites and members have to go back to the House and get a copy of those statements in order to ensure that they have the information in front of them. I think that is a poor process in terms of our ability as a Parliament to monitor anything of substance in a way that enables us to speak for our constituents. They expect us to be able to debate authoritatively on subjects on the basis of all of the information being made available to us when it is required.