Environmental Protection Authority Bill — In Committee 
Environmental Protection Authority Bill — In Committee 
[Volume:672;Page:18488] 
Environmental Protection Authority Bill 
In Committee 
Debate resumed from 5 May. 
Part 2 Environmental Protection Authority ( 
continued 
)  
CHARLES CHAUVEL (Labour) 
: 
 In my contribution on this part I will deal with the question of the independence of the Environmental Protection Authority. In an earlier contribution I noted that three types of Crown entity are recognised by the Crown Entities Act. Firstly there are Crown agents which just give effect to Government policy. Crown agents are the closest type of body to the Crown one can get without having a Government department. The next layer of the onion out from the executive is an autonomous Crown entity. They must have regard to Government policy but are not required to directly implement it. Finally the last layer of the onion if you like is the independent Crown entity. They are independent of Government policy and the Minister must not give them directions unless he is authorised to do so by another Act. 
If we look at clause 7 we see that the clear intent is to set up the Environmental Protection Authority as a Crown entity. The way in which the provisions interact make it quite clear—and I hope the Minister for the Environment will be able to speak on this matter and confirm it—that the Government’s intent is that the Environmental Protection Authority will be a Crown agent; that is the closest type of Crown entity that is able to be brought within the powers of the Minister. It still has a board so it is not a department but it is amenable to ministerial direction. 
One of the concerns expressed by a number of submitters to the Local Government and Environment Committee was that this meant that the Environmental Protection Authority would be too close to the Crown that the authority would not be able to function with appropriate independence and that it would be much better to constitute the authority from the start as an autonomous Crown entity. That would mean that the authority would act independently of the Minister and that it would clearly be an authority that the public could have confidence in because it would not have to do what the Minister told it to do on any particular occasion. 
Supplementary Order Paper 242 which is in my name makes it clear that the authority is to function as an autonomous Crown entity in terms of the submissions that I have referred to. Labour members on the select committee were persuaded by the force of those submissions. If one has a look at the ways in which the authority will initially function one sees that the majority of the decisions that will have to be taken by the Environmental Protection Authority will be those that it inherits from the Environmental Risk Management Authority which is currently constituted under the Hazardous Substances and New Organisms Act.  
At the moment the Environmental Risk Management Authority is an autonomous Crown entity so if we adopt the Minister’s approach then we are moving a key function of the Environmental Protection Authority which is currently autonomous much closer to ministerial direction and control. If one thinks about the nature of the power—being responsible for dealing with applications around hazardous substances and new organisms—then the folly of this becomes immediately apparent. Why on earth would we disturb the wisdom of a previous Parliament that said these types of applications around genetically modified material for example must be dealt with on a completely independent basis to the Minister’s? The applications must not be anywhere near ministerial direction or control yet we are constituting an authority over which the Minister would have serious powers of control and direction. 
No justification is advanced in the regulatory impact material or in any commentary that I have seen for moving this power closer to the Crown. I think it would be helpful to hear from the Minister as to why he feels that it is necessary to compromise the authority of the former Environmental Risk Management Authority by moving that power closer to ministerial direction. As I have tried to explain in my contribution that would be a serious change.  
If the Minister takes a call I apprehend that he would point to section 17 of the Hazardous Substances and New Organisms Act because it is a provision that would expressly prevent him from making a direction to the board on its key decision-making functions under Parts 5 and 6A of the Act. It may well be that clause 78 of the Environmental Protection Authority Bill provides a similar protection in respect of the Environmental Protection Authority’s decision making under the Resource Management Act. Clause 78 would expressly prevent the Minister from making a direction to the board in respect of certificates of compliance. If that is the case then I accept—as do members on this side—that there is a degree of protection in respect of some key powers of direction. 
But that is not really the point. The point is that when a new public entity is created the overall scheme of the legislation is what sets the tone for its operation. Anybody who has worked in an establishment entity in the public sector would know this. But it is not limited just to the public sector; it is the same when one is starting a private sector entity. The overall direction the overall tone is set by the key establishment documents. In the case of the private sector it is set by the articles of association and the mood of the owner as communicated to the employees and key staff. In the case of a public entity it is set by the empowering statute. This statute starts with the premise that the Minister is able to direct; the Minister is able to control. The authority is not the independent or autonomous Crown entity that hitherto existed in respect of the Environmental Risk Management Authority an entity that is abolished by a later provision of the bill. This is something that is closer to the Crown. 
Why should we be concerned about this? As has been said by a number of speakers in this debate so far what is needed desperately in this country is a strong central comprehensively empowered independent authority to deal with environmental issues. Do we have that in this legislation? Regrettably no. This should be of particular concern to members who want to contemplate the make-up of the establishment board because not only do we have a power being brought closer to the Crown but also we have an establishment board chaired by a former National Party candidate. Kerry Prendergast is somebody for whom I have a lot of time and respect. She was an excellent Mayor of Wellington. She treated all people with whom she had dealings politically with absolute fairness in my experience. But none the less she was a candidate for the National Party at a not too distant general election. 
The chair of the Local Government and Environment Committee is yet to make a contribution in the debate but I do look forward to that contribution because everybody agrees that he is a fine chair of the select committee. I wonder whether he would perhaps like to think about whether the “optics”—to quote one of his colleagues—of this is a very good look here: a politicised chair of the establishment board as well as these powers being much closer to the Crown than is the case at the moment. 
So rather than see a statutory scheme where the Environmental Protection Authority is obliged to give general effect to the Minister’s objectives with specific exemptions for independence where the Minister thinks that that is a good idea we prefer the reverse position. We should start with the position of independence or autonomy and then give the Minister specific powers of direction if this Parliament thinks he needs them. That would be a perfectly acceptable way to proceed. It would allow the Government to communicate its general policy objectives to the Environmental Protection Authority but it would allow the Environmental Protection Authority to proceed on an independent basis and to win public confidence. I say to members that we are not putting that scheme into place; we are putting in place the opposite scheme. I think and I know that other members of this side of the Chamber agree that this is the wrong way to proceed. When it is the desire of the House to create a new independent transparent organisation the statutory scheme is actually the opposite of what is desired to be created here. 
PHIL TWYFORD (Labour) 
: 
 It is often said that the perfect should not be the enemy of the good meaning that if something is good enough it is good enough. But that is not the case with the Environmental Protection Authority Bill. This is a case of the inadequate the mediocre and the unsatisfactory being the enemy of the good. 
Labour members voted for this bill at the first reading because we thought that to establish a strong central independent environmental regulator would have been a big step forward for New Zealand. Disappointingly the bill that has emerged from the Local Government and Environment Committee and come back to the House is really a pale shadow of what it could and should have been. 
We listened carefully to submitters at the select committee and four key problems concerns emerged from that process. The first is that the functions of the Environmental Protection Authority are far too narrow for this new organisation to exercise any real kind of leadership in the environment sector. Second the objectives are inadequate; bizarrely it does not include even the task the responsibility of protecting the environment. Third the Environmental Protection Authority is not sufficiently independent from the Minister for the Environment. Its independence is compromised. Fourth on the question of its need to take into account Maori perspectives in its decision making the legislation is confusing and in fact sets back the environmental legislation in that regard. 
I will first talk about the functions of the Environmental Protection Authority. I point to a couple of amendments that are on the Table in the name of Charles Chauvel. One of them would insert a new paragraph in Part 2—clause 12(c)—which would charge the Environmental Protection Authority with carrying out the administration of the Waste Minimisation Act 2008. My colleague has brought this amendment to the House because we believe that the administration of the Waste Minimisation Act is one of the functions that it was always obvious that the Environmental Protection Authority should be responsible for. It makes complete sense it is logical and we are at a loss to understand why this has been excluded from the objectives of the Environmental Protection Authority. Similarly we are baffled as to why the climate change legislation and the various functions of the Resource Management Act have not been handed over to the Environmental Protection Authority. 
The second amendment in the name of Charles Chauvel to Part 2 is new clause 12(e). It would give the Environmental Protection Authority the responsibility “To protect and enhance the Coastal and Marine Environment and to carry out the environmental management of New Zealand’s Exclusive Economic Zone.” That is of course an issue that is on the minds of everybody in New Zealand at the moment because of the deep-sea offshore drilling that Petrobras is doing off the east coast of the North Island. It is a matter of great concern to all New Zealanders that that drilling should be properly regulated and that our marine environment should be protected for generations to come. We have no confidence that that kind of protection is in place and we are mystified as to why the Environmental Protection Authority has not been given the responsibility to discharge those tasks. 
It is interesting. We have noticed a bit of a trend with some of the legislation that is coming through the Local Government and Environment Committee. There is something about this bill: it is unformed. It is partially formed; it is just not all there. It really should never have been brought to the House by the Minister at this time. He should have waited until more of the groundwork had been done and until there was a more substantial more comprehensive more developed bill for the Environmental Protection Authority. We have seen that in the Building Amendment Bill (No 3) which is currently before the Local Government and Environment Committee. We have seen it with the weathertight homes financial assistance package which has a deferred commencement date because the Government is still negotiating with the banks that are supposed to be providing the finance for that package. 
We have seen it as I said with the Building Amendment Bill (No 3). A number of reforms are being proposed for the building and construction industry yet people in the industry have come to us saying that the cart has been put before the horse the industry is not ready for it and these things are not being sequenced properly. So a bit of a pattern is emerging of inadequate underdeveloped poorly thought-through legislation being brought to this House. One can surmise only that it is because of the electoral cycle that Ministers—not just this Minister but others—are keen to be seen tabling some bill and trying to get some runs on the board before the election at the end of this year. 
We question whether in fact the Environmental Protection Authority being established by this bill is sufficiently credible and substantial to survive. There are real questions about its long-term viability because of the inadequacy of the structure the mandate and the roles that are being put in place. A number of powers and responsibilities are being transferred from existing bodies but it is happening in a piecemeal fashion. 
A number of submitters pointed out the legal situation in regard to the Environmental Protection Authority and its relationship with other key bits of legislation—the Hazardous Substances and New Organisms Act the Resource Management Act and the climate change legislation. All of those bits of law will have to be read in conjunction with the Environmental Protection Authority Act and vice versa. That will have the effect of making our environmental law more complicated and less accessible and less intelligible to the layperson. 
A related concern we have is that the bill gives the Minister the power to direct the Environmental Protection Authority to carry out additional functions. The Minister has assured the House that such functions are likely to be minor and ancillary to the current functions of the Environmental Protection Authority. We remain concerned that this is an unsatisfactory way of setting up the future development of the Environmental Protection Authority. There is no brightline test to determine whether something is an ancillary or a substantive function; it is up to the Minister of the day. He or she will make a political judgment and that could not only confuse the public but undermine the integrity of the Environmental Protection Authority if that is the way it is going to grow and develop over time. 
The second big concern we have is that as I mentioned the objectives in Part 2 do not include even the explicit tasking of the Environmental Protection Authority with the job of protecting the environment. It brings to mind George W Bush’s Clear Skies Act in the United States which perversely actually substantially degraded the quality of the regulation of air quality in the US. To call this bill the Environmental Protection Authority Bill raises real questions about truth in advertising. It is not really an environmental protection authority and when we look at the bill’s objectives we see that that becomes even clearer. 
Charles Chauvel has put forward an amendment to clause 11(1) which proposes to insert new paragraph (c). That amendment would rectify this defect in the bill by explicitly stating that the job of the Environmental Protection Authority would be to protect maintain and enhance New Zealand’s environment. It is pretty basic stuff but it is a mystery to us why that is not in the bill as we see it. 
LOUISE UPSTON (National—Taupo) 
: 
 I move  
That the question be now put 
. 
BRENDON BURNS (Labour—Christchurch Central) 
: 
 I am very pleased to pick up the theme that my colleague Phil Twyford put before the Chamber this afternoon in respect of the pattern beginning to emerge in the environmental policy of this Government. 
I note that just yesterday Minister Smith announced the National Policy Statement for Freshwater Management. That statement was looked forward to with enormous anticipation I think by anybody with an interest in the environment of this country. It was obviously brought together under the process of the Land and Water Forum a very good Scandinavian model. I applaud the Minister for setting that up but there is enormous disappointment emerging from some members of that forum. They are looking at that policy just as they looked at the shape and form of the Environmental Protection Authority and they are asking what happened and where the driver of good sound environmental policy went. There are just so many bits missing that deserved to be there. 
In respect of the National Policy Statement for Freshwater Management for example although we see that councils are supposed to bring in and implement its outline over the next 3½ years there is actually an out-clause: if they find it impracticable to meet the deadline then they have another deadline. That deadline is December 2030. If we were looking to that document as an example of this Government delivering on environmental outcomes we would be waiting a long long time before we began to see the final results of those environmental changes. 
That is paralleled by the lack of any clear commitment to environmental policy in the objectives of the Environmental Protection Authority and that is why I support and applaud the amendment proposed by my colleague Charles Chauvel. The amendment would give this organisation some real functioning form that relates to environmental policy and objectives and is not a bland assertion of bureaucratese. 
The other parallel I draw between the National Policy Statement for Freshwater Management and the Environmental Protection Authority Bill is on the weakening that has gone on between the versions. The basis of the Environmental Protection Authority Bill comes out of National’s much-vaunted  
A Bluegreen vision for New Zealand 
 from 2006. 
Hon Member 
: Oxymoron. 
BRENDON BURNS 
: Well it is something of an oxymoron. One of the things I have learnt as Labour’s spokesperson on water is that the most toxic of all the algae to be found in the now polluted river ways of Canterbury is a blue-green algae. It is the cyanobacterium that forms the matting on the bottom of rivers. If dogs go in and eat some of that matting they will die. So in many rivers in Canterbury it is no longer safe for people to take their dog down to the water. We were looking for the Environmental Protection Authority to be a watchdog on those issues. We were looking for the National Policy Statement for Freshwater Management to be a new tool—a powerful new tool—and for the Environmental Protection Authority to have some role in administering and enforcing it. But I am afraid that both of them are weaker. 
Let us look for instance at the original version of the National Policy Statement for Freshwater Management. It required that conditions be imposed by councils on all discharge permits affecting fresh water so as to protect the environment—so as to protect the environment. What did we see in the version delivered by the Minister yesterday? It simply requires councils to regard any adverse effect. One could not get a blander requirement of a council taking a role in enforcing water quality than that. The Minister is hiding behind the idea that there is an ultra vires legal opinion. I have not seen that tabled yet. He has indicated that he might table it at some point if somebody does not say no to that. I welcome seeing that advice. I say to the Minister that he needs to find a way to give that national water policy statement some teeth. There is no point in having something that is simply wishy-washy and does not put any onus on councils. 
I note the irony that just over a year ago in this House over 30 hours of legislation we passed the Environment Canterbury (Temporary Commissioners and Improved Water Management) Act which did away with the councillors of the original Canterbury Regional Council. I must acknowledge that at least with the Environmental Protection Authority Bill we are taking it through the normal passage of Parliament and I welcome that. That I must say is an advance. I go back to the “Environment Canterbury Deconstruction Bill”—I think it had another name; it was called the Environment Canterbury (Temporary Commissioners and Improved Water Management) Bill which is an oxymoron in itself. That bill did away with the councillors because the councillors of that regional council were not delivering effective water policy in that region. 
Of course they argued very strongly that they had great difficulty in enforcing water policy because there was no national framework underpinning what they were trying to do. The Minister claimed that it was the only council that did not have a water plan but I say to the Minister that that is not correct. Environment Southland did not have its water plan in place until April 2010 which was exactly the same time as he said that Environment Canterbury was the only one that did not have a regional water plan. So that was not correct. 
We come to the situation now where we are seeing the requirements for taking charge of water quality being handed back to regional councils without an underpinning framework. So what does that mean? Does it now mean that if councils decide to be good environmental watchdogs—as I think Environment Canterbury was attempting to be admittedly belatedly after some “gold rush” went on for the water resources of Canterbury—and get too vigorous in enforcing the environmental side of the equation they are likely to face the same fate we saw happen to Environment Canterbury? It has been sheeted to them that they will have responsibility but there is nothing underpinning them under the national water policy statement that gives them the basis for making their decision. We have neither fish nor fowl in respect of the national policy statement and it is a bit like the Environmental Protection Authority in that respect. 
The Environmental Protection Authority has been created without a proper goal and objective. The bill does not state that the Environmental Protection Authority is there to protect and enhance the environment. It is formed by an amalgam of existing Government agencies. Most of the staff will come from the Environmental Risk Management Authority from the Climate Change Office and from the fast-track mechanism that the Environmental Protection Authority already embodies. I see nothing to suggest that there will be any staff there to enforce issues like improving water quality. 
The Minister made much much noise today and yesterday about the big increase in funding for improving water quality. There has been a $7.5 million a year increase—whoopsie-do—but at the same time half a billion dollars is being created to facilitate irrigation projects. Of course some of those projects are likely to come to fruition before the several long years the Minister has indicated arrive when we will see the new environmental rules which he still heralds are coming. He says that it will be several long years but some of those new schemes funded by the Government’s half-billion of largesse will come into play. They will not be required to meet any tough new requirements. I suspect that we will see a further deterioration in water quality and that is not even counting the schemes already under way such as the Darfield Fonterra plant. I think there is a view in the industry that if it can push ahead and get some new production in place before new rules come in well that is what it needs to do. 
I think the industry is being encouraged by a Cabinet cabal that the Minister is not part of. He has clearly lost the arguments on both the National Policy Statement for Freshwater Management and the Environmental Protection Authority. This is not the bill that was intimated. It is not the bill that was indicated. It does not deliver on clear goals and objectives to improve the environment as one would have hoped. I am glad to see that we are picking it up. I hope that we might get some support for some environmental goals and objectives for the Environmental Protection Authority as enshrined in the amendment from my colleague Charles Chauvel. 
It is truly disappointing that we are here passing this bill. It will not deliver the environmental gains that we were hoping for. It is a watered-down agency that is an amalgam of existing functions. I ask the Minister for instance whether we are going to see any staff in the regions. To date it was projecting to have about one person in Canterbury. Will we see any people starting out in the regions enforcing issues like water quality like air quality like environmental risk management or will we see a Wellington-based bureaucracy that will be small and tight with no objective and no real capacity to improve on the environment which was supposedly enshrined in the objective of this bill? 
NICKY WAGNER (National) 
: 
 I move  
That the question be now put 
. 
Dr KENNEDY GRAHAM (Green) 
: 
 I rise to advise the Committee that in the last half an hour I have developed an amendment and it should be in front of colleagues now or very shortly. It reflects a similar concern as that articulated earlier by my colleague Charles Chauvel—picking up from various concerns that my colleague David Clendon and the Green Party have raised earlier in the Committee and during the first reading—that there is a fundamental illogic in the Environmental Protection Authority Bill here. It can be clarified or rectified with some fairly simple wording. If we look to the purpose in Part 1 and the objective in Part 2 it is in relation to clause 11 “Objective of EPA” that I offer the amendment. Clause 3 states: “The purpose of this Act is to establish an Environmental Protection Authority”—that is environmental protection. When we look at the objective of the authority it is to carry out the purpose in every Act. The objective as has already been noted says nothing at all about protection. Clause 11 “Objective of EPA” states: “(1) The objective of the EPA is to undertake its functions in a way that—(a) contributes to the efficient effective and transparent management of New Zealand’s environment and natural and physical resources;”. 
It makes no sense to establish a protection authority that does not explicitly contain in its objective the protection of the environment. My proposal in my amendment is the following: “The objective of the EPA is to undertake its functions in a way that—(a) ensures the protection of NZ’s environment and natural and physical resources while having regard to their efficient effective and transparent management.” That wording keeps the intended thrust of the Government—that is the efficient effective and transparent management of resources—but it precedes that with the superior obligation that is implicit in the bill and in its stated purpose which is the protection of the environment. I repeat its objective: “(a) ensures the protection of NZ’s environment and natural and physical resources while having regard to their efficient effective and transparent management.” 
I submit that amendment to the Committee and with your indulgence Mr Chairperson I would like to raise a separate point but may I do that in a separate call? 
The CHAIRPERSON (Lindsay Tisch) 
: Is the member finishing the call? 
Dr KENNEDY GRAHAM 
: Yes. I am indicating that there is a separate point I would like to explore but I would prefer to do it in a separate call if that is possible. 
The CHAIRPERSON (Lindsay Tisch) 
: We are on Part 2. The member may want to continue because I cannot guarantee the allocation of speaking spots. While the member has the call he might want to continue with it. 
Dr KENNEDY GRAHAM 
: Thank you Mr Chairperson. I appreciate your advice but I will in fact leave it at that and give it a shot later. 
CHRIS AUCHINVOLE (National—West Coast - Tasman) 
: 
 I move  
That the question be now put 
. 
Dr ASHRAF CHOUDHARY (Labour) 
: 
 I appreciate this opportunity to speak on the Environmental Protection Authority Bill. I fully support what Dr Kennedy Graham said particularly in relation to the word “protection”. It is almost unbelievable that someone like the Minister in the chair Dr Nick Smith does not know better. I have gone with him to meet with the Institution of Professional Engineers and to discuss a lot of these issues. When he is promoting a bill like this where we are talking about a protection authority there has to be something in the functions of the authority that uses the word “protection” in regard to the environment. It is very sad to see that he has very limited objectives for this authority. 
In the 1980s I had the opportunity to do some research with the Department of Agriculture in the US. Part of that research was to work with the Environmental Protection Agency over there. That research related particularly to water—to groundwater and water management and soils. One of the important things that the Environmental Protection Agency did was to research and become involved in those issues particularly land-based issues. The US agency was established 40 years ago. One of its major functions is science research and development but this bill says nothing about research and development. I ask the Minister to take a call and let us know where the bill talks about research and development which should be part of the Environmental Protection Authority. 
This bill as I see it is all about fast tracking controversial projects. The authority has half a dozen projects before it right now and they are all related to development. They are not directly related to either the protection of the environment particularly land-based issues or to water quality. My colleagues have raised the issue of water quality and I am also really concerned about that issue. I am personally aware that major issues are developing around water quality and agricultural lands. There are two areas: the first that is being talked about nowadays concerns the dairy industry where the number of dairy herds is increasing but there is a whole lot of pollution runoff from the land that is polluting our water. At the moment there are no standards although I know the Minister announced something today about water standards. I still need to be convinced of what he is trying to do. 
Another particularly important issue is non - point source pollution. That means pollution that is coming from the farms particularly the nitrates and pesticides in the runoff from the land due to dairy farming and agricultural land that is used for cropping. In the horticultural area there is a huge issue. In major horticultural areas like Levin there is a major problem with the leaching of nitrates and runoffs. I have not seen anything in this bill that tells us what the Environmental Protection Authority will do about that non - point source pollution which is a major issue for our rivers. 
Members who have seen the Manawatu River after rain will know that a huge amount of soil comes through from the Wairarapa and through the Manawatu area. All that soil comes from the runoff from the land. I am personally very keen for the Minister to take a call on that issue and on other issues to tell us what the Environmental Protection Authority will do about them. 
LOUISA WALL (Labour) 
: 
 The Environmental Protection Authority Bill is flawed. I highlight my colleague Charles Chauvel’s press release because we have tried to fix the bill have we not I say to Charles. The reality is that members opposite do not want us to help fix it. Labour opposes this bill quite vigorously and I will tell members why. I will focus on a New Zealand Government press release that was issued at 2.47 p.m. on 16 November 2010 and in it Dr Nick Smith said: “The EPA is about providing stronger central government leadership on environmental issues.” I find that statement incredibly interesting. Members opposite seem to want to protect environmental issues but they do not have as a mandate of the bill or of the Environmental Protection Authority the fact that they should protect the environment. It is completely ironic to have a bill that will not fulfil any of the objectives in the name of the bill. 
I want to highlight what is meant by Nick Smith’s words “providing stronger central government leadership”. We have found that it actually means minimising the opportunity for local people—mum and dad New Zealanders—Maori and other interest groups to have a say about developments that are happening where they live. I will use a few examples. One of them is the Waterview Connection project which is particularly relevant to my colleague David Shearer. I will draw on some press releases about what has happened with the Waterview Connection project and the way the Environmental Protection Authority has undermined the opportunity for local people for elected members of that community to be involved in decision making about projects such as the Waterview Connection project. 
We had people like councillors Simon Friar and Cathy Casey at the time and other community leaders who were given only 20 days to have their say as local people in local communities about an extension that as we all know has a huge impact on local people—homeowners and business people. There was a 40-volume application with 54 resource consents and seven new designations but that community was given only 20 days to respond. I find it incredibly interesting because the community was engaged. Those councillors and leaders wanted to have their say and they wanted to represent the interests of local people but they were denied an additional 10 days. One has to ask how flawed is a process that is supposed to be about democracy— 
Hon Dr Nick Smith 
: I raise a point of order Mr Chairperson. I have listened carefully to the member’s contribution. There is nothing in her speech that has any regard to Part 2 which we are currently considering. 
The CHAIRPERSON (Lindsay Tisch) 
: I remind members that we are on Part 2 and that is the Environmental Protection Authority. I ask the member to come back to that matter. 
LOUISA WALL 
: Kia ora Mr Chair. I am just saying that the functions of the Environmental Protection Authority are to exercise the powers and carry out the functions and duties conferred on it under this legislation. I am trying to highlight that in fact this bill erodes democracy and erodes the opportunity of local people—mum and dad New Zealanders—to have a say in developments that are happening in their communities. The mandate of this bill means that if it is designated to have national significance then those mum and dad New Zealanders who live in communities will not have the opportunity to have a say about developments that will affect their daily lives. I want to highlight that that is what Nick Smith was actually talking about when he talked about “stronger central government leadership”. It is actually about the erosion of mum and dad New Zealanders in our community who have a connection to where they live who obviously have a sense of responsibility for the way that their community will develop. This bill will undermine their opportunity to live in that community and to contribute to decisions that will affect their community. That is what I want to highlight. 
I also want to highlight that the National Government as we have in our notes has a bad track record on environmental protection. I say that the National Government has a record on environment non-protection. That is the reality. National has extended the deadline for the National Environmental Standards for Air Quality to 2018 and has ignored warnings that doing so puts people’s lives at risk. National obviously does not care. National has watered down the emissions trading scheme and that will add billions to the taxpayers’ bill for— 
Hon Dr Nick Smith 
: I raise a point of order Mr Chairperson. The member’s comments have absolutely nothing to do with Part 2. None of the issues she has raised are relevant to the part. 
Charles Chauvel 
: Mr Chairperson— 
The CHAIRPERSON (Lindsay Tisch) 
: I do not need any help. I warned the member earlier that the emissions trading scheme is not part of this debate and the member had just mentioned the emissions trading scheme. The member has 7 seconds remaining. 
LOUISA WALL 
: For anyone who is listening I think they should seriously consider what “stronger central government leadership” means. 
CRAIG FOSS (National—Tukituki) 
: 
 I move  
That the question be now put 
. 
A party vote was called for on the question  
That the question be now put. 
Ayes 68 
New Zealand National 58; ACT New Zealand 5; Maori Party 4; United Future 1. 
Noes 54 
New Zealand Labour 42; Green Party 9; Progressive 1; Independents: Carter C Harawira. 
Motion agreed to. 
The question was put that the amendments set out on Supplementary Order Paper 242 in the name of Charles Chauvel to the heading to clause 7 and to clause 7 be agreed to. 
A party vote was called for on the question  
That the amendments be agreed to. 
Ayes 54 
New Zealand Labour 42; Green Party 9; Progressive 1; Independents: Carter C Harawira. 
Noes 68 
New Zealand National 58; ACT New Zealand 5; Maori Party 4; United Future 1. 
Amendments not agreed to. 
The question was put that the amendment set out on Supplementary Order Paper 242 in the name of Charles Chauvel to clause 11 be agreed to. 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 54 
New Zealand Labour 42; Green Party 9; Progressive 1; Independents: Carter C Harawira. 
Noes 68 
New Zealand National 58; ACT New Zealand 5; Maori Party 4; United Future 1. 
Amendment not agreed to. 
The question was put that the following amendment in the name of Dr Kennedy Graham to clause 11 be agreed to: 
to omit subclause (1)(a) and substitute the following paragraph: 
(a)ensures the protection of New Zealand’s environment and natural and physical resources while having regard to their efficient effective and transparent management; and. 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 54 
New Zealand Labour 42; Green Party 9; Progressive 1; Independents: Carter C Harawira. 
Noes 68 
New Zealand National 58; ACT New Zealand 5; Maori Party 4; United Future 1. 
Amendment not agreed to. 
The question was put that the amendment set out on Supplementary Order Paper 242 in the name of Charles Chauvel to add new paragraph (e) to clause 12 be agreed to. 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 54 
New Zealand Labour 42; Green Party 9; Progressive 1; Independents: Carter C Harawira. 
Noes 68 
New Zealand National 58; ACT New Zealand 5; Maori Party 4; United Future 1. 
Amendment not agreed to. 
The question was put that the following amendment set out on Supplementary Order Paper 242 in the name of Charles Chauvel to add new paragraph (f) to clause 12. 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 54 
New Zealand Labour 42; Green Party 9; Progressive 1; Independents: Carter C Harawira. 
Noes 68 
New Zealand National 58; ACT New Zealand 5; Maori Party 4; United Future 1. 
Amendment not agreed to. 
The question was put that the amendment set out on Supplementary Order Paper 241 in the name of the Hon Dr Nick Smith to clause 15 be agreed to. 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 68 
New Zealand National 58; ACT New Zealand 5; Maori Party 4; United Future 1. 
Noes 54 
New Zealand Labour 42; Green Party 9; Progressive 1; Independents: Carter C Harawira. 
Amendment agreed to. 
A party vote was called for on the question  
That Part 2 as amended be agreed to. 
Ayes 68 
New Zealand National 58; ACT New Zealand 5; Maori Party 4; United Future 1. 
Noes 54 
New Zealand Labour 42; Green Party 9; Progressive 1; Independents: Carter C Harawira. 
Part 2 as amended agreed to. 
Part 3 Disestablishment of entities transfer of functions and other matters 
CHRIS AUCHINVOLE (National—West Coast - Tasman) 
: 
 I intend to take only a small call on Part 3 of the Environmental Protection Authority Bill. It is interesting because it speaks about one of the real kickers of the whole bill which is bringing staff together. There is a definite concentration on collegiate advantage and that will be really good. One of the points that interests me in the contributions from the other side of the Chamber so far is that the majority of people who have spoken on the bill to the best of my memory did not actually sit on the Local Government and Environment Committee during the hearings on this bill—for very good reasons I am sure as part of their internal party organisation. I honestly think that that has been reflected in the quality of the contributions they have made. Without wishing to be personal about it they are demonstrating a very narrow understanding and interpretation of the submissions received because they missed out on the accompanying discussion which really did broaden the whole platform. 
I am sorry that that is the case because the Minister for the Environment has responded very politely to each point that members have raised on the exclusive economic zone and the environmental purpose and status of the Environmental Protection Authority. We are hearing over and over again the same old arguments and that does not give sufficient credit to the capacity of the Opposition to join us in promoting this bill as a good thing for the environment. The bill has been through a very robust and thorough process and our environment is best served by us getting on and passing the law so that the authority can get on with the job on 1 July. I know that the structures that are being established in Part 3 will do that very very effectively. 
The Hon Ruth Dyson brought something contradictory into the debate the last time she was here. I note that she said in an earlier speech that the Minister had not kept me the chair of the select committee advised of his views of the bill that I should be hopping mad about that and that she would be if she were me. In response to that I say: “He did I’m not and she isn’t.” 
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. 
BRENDON BURNS (Labour—Christchurch Central) 
: 
 As we deal with Part 3 of the Environmental Protection Authority Bill I note that a major part of it relates to the disestablishment of the Environmental Risk Management Authority. We on this side of the Chamber acknowledge the benefits that could be had by incorporating the Environmental Risk Management Authority into the broader Environmental Protection Authority. There is a sound logic to that but there is I think a flaw in this and that is that the Environmental Risk Management Authority’s staff will make up around two-thirds of the staffing of the new expanded Environmental Protection Authority to take effect from 1 July this year. 
If we look at the risks to our environment we find they are mostly risks to our reputation. We make a living in the world on the basis of our clean green image. We need to look only at media overnight and the interview with the Prime Minister on the BBC  
HARDtalk  
programme when he was grilled about whether New Zealand really is as clean and green as the tourism campaign suggests. The interviewer put it to John Key that Mike Joy a leading environmental scientist at Massey University recently said that we are delusional about how clean and green we are. Dr Joy made that comment particularly in respect of the issues facing our waterways with more than half of our lakes and lowland rivers being polluted. The Prime Minister’s response was that he did not want to get into a flaming row with one of our leading academics which sort of suggested that scientists are a bit like lawyers in that we can get whatever outcome we want from them. I think that is a bit offensive to the science community because scientists make their interpretations based on science. It is a bit of a smack in the face for the scientific community which is not like one or two other professions because all of its work is based on science. 
The core of this legislation is trying to protect the environmental reputation of our nation which makes two-thirds of its living from what we produce on our “clean green land”. We should also consider that this is not the first time that a leading world news organisation has questioned how tenuous or otherwise our reputation is and how real it is for us to be claiming that we are “100% Pure New Zealand” and marketing ourselves as such. 
We are establishing an Environmental Protection Authority that does not have an objective and goal of protecting and enhancing our environment and two-thirds of its staffing is made up of one important but still relatively small component of the environmental picture. The key thing that I would have thought the authority would deliver is the enhancement and protection of that environmental reputation which is the very core of our economic basis as a nation. 
When I look at Part 3 I see that the Environmental Risk Management Authority is included in the authority and issues of climate change are to be addressed by the authority but then I look for the gaps. I wonder why there is not a division of some kind to manage water or provide policy advice to the Minister for the Environment on water. We have to conclude that the reasons it is not there are firstly budgetary which is always a reason we have to acknowledge or secondly relating to the question of whether the Government really wants strong science on water from one of its own agencies which can confirm the sorts of findings like those of Dr Mike Joy that are being quoted to the Prime Minister on the BBC. I ask whether that science would truly be wanted by a Government that has made very clear its primary objective of rapid new growth which is seeing allocations of water take place as we speak in Canterbury and other places driving a new wave of production in industries such as dairying. It is not exclusively in dairying and I have to say that dairying can be done responsibly but unfortunately far too often that is not the case. 
Part 3 incorporates the Environmental Risk Management Authority in the Environmental Protection Authority and includes addressing climate change as an important component of the authority’s work requiring probably around 20 staff meaning we are now up to 110 staff of around 140. There is also the fast-track component which involves another portion of the staffing. 
I would like the Minister to take a call at some point and tell us how many people with some water science experience will be there to either agree with or comment on Government policy so that the Prime Minister is not just basically chipping away at the credibility of scientists when he responds to what I think will be increasing questions from international media and others—because farmers and farming organisations will be taking note of that interview. I ask what environmental science the Minister will be able to access so that he can say that Mike Joy may have one point of view but scientists working for the Environmental Protection Authority have a different view. Is it because the science is actually fairly strong? There is no doubting that we have polluted waterways in New Zealand and my source for that comment is none other than the Minister himself. He made something of a triumph of noting that water quality was deteriorating in New Zealand vowing that the situation would be turned round. He talked about 9 years of inaction on water yet yesterday we saw him delivering a national policy statement on freshwater management which had provisions that he acknowledged would take in his words several years to implement. In fact when we look at the detail we see that councils will be given until 2030 to bring everything into line in respect of improving water quality. Beyond that acknowledgments are given in the Cabinet paper that where a waterway is too badly degraded it will not have to come up to any standard; the assessment of improving water quality will be made on the whole region. So in my region of Canterbury that might mean that Lake Ellesmere which is a vital source of food for Maori and is now managed in fact by Ngai Tahu may never have to improve its water quality to a point where it is acceptable once again to swim in it or take fish from its waterways. It would also mean that that would be all right because some improvement may be made in other parts of Canterbury and over the next 16 years overall water quality will be deemed to have risen to some acceptable point. Those are the kinds of reasons why we should have in the Environmental Protection Authority some strong water science. It is a gaping hole in this legislation. Although we have some coverage in respect of environmental risk management through the Environmental Risk Management Authority and some coverage in respect of climate change water management is a gaping hole. 
There is one other hole and it might be particularly appropriate to raise this issue tonight because some of us in this Chamber will go once the dinner bell rings to one of the Speaker’s excellent science lectures and tonight the featured topic is New Zealand’s leading role in Antarctica. When the Minister spoke to the Local Government and Environment Committee in June of last year about the shaping of the Environmental Protection Authority he indicated that there would be within the authority coverage of Antarctica yet that is also not in Part 3. It is missing in action. If we consider how important Antarctica is to the issue of climate change it is rather curious that it is not associated with the Environmental Protection Authority. It is missing in action and I would like the Minister to take a call to explain to us why nobody will be employed to oversee water issues. I would like to know not only whether there will be staff on the ground for the Environmental Protection Authority in regions such as mine in Canterbury but also why there will not be any staffing for water. I am sure part of the answer will be that it is covered by other ministries but if we are to have this strong new watchdog as this authority was envisaged surely when our living is made through water it should be at the very core of this new authority. 
Hon STEVE CHADWICK (Labour) 
: 
 I will take a quick call on Part 3 of the Environmental Protection Authority Bill. It probably reflects the fact that some of us were not on the select committee but we were trying to get our heads around this new Environmental Protection Authority as opposed to the old Environmental Protection Authority. I suppose Part 3 shows us what is in and what is out and the danger of this part is in the missing bits. I cannot work out for the life of me whether this is an authority to protect and enhance the environment which we really hoped it would be I say to the Minister in the chair the Minister for the Environment. There are substantial bits missing. 
One of the issues I am really worried about here is the disestablishment of the Environmental Risk Management Authority and Nga Kaihautu Tikanga Taiao. I understand that the Maori Party has acceptance for a Treaty clause to go into the bill but I cannot understand why we are setting up a Maori advisory committee in the Environmental Protection Authority. It is subservient to the authority and is just an advisory committee. We have had trouble before with Maori advisory committees and their standing in terms of how much their advice is taken by any authority. We saw it in Auckland City we saw it in Canterbury and we are now seeing it again in this new Environmental Protection Authority. The Government is being too tidy in thinking we will just tuck in a Treaty of Waitangi clause and that therefore we are looking after the interests of Maori and iwi. 
I say to the Hon Nick Smith the Minister in the chair that I am glad he is there but I am not sure whether the iwi advisory committee will pick up the functions of Nga Kaihautu Tikanga Taiao or whether he is intending an entirely new modus operandi for that committee—that little advisory committee. How toothless will it be? How much authority will it have? Will it be listened to or is it just a little bit of flannel sitting there in the Environmental Protection Authority to be listened to but not to be taken much notice of? That is something that I think is offensive to Maori. 
One of the issues that concern me greatly is what is missing in this bill. I am struggling to find out why some bits are not here with the movement of all of the hazardous substances and new organisms responsibilities and loss of the Environmental Risk Management Authority. What is in and what is out and what is now sitting with the Ministry for the Environment? It is not easy to understand and—heaven knows—I was a Minister of Conservation for some time so I do understand the overlapping responsibilities between conservation and the protection of the conservation estate and species and the Ministry for the Environment. But this legislation does not make it any clearer to me at all. 
It is amazing that coastal marine management and the environmental management of New Zealand’s economic zone is not part of this Environmental Protection Authority. I cannot work that out. We have had a Minister of Conservation though who sat on the New Zealand Coastal Policy Statement for over 18 months. It was ready to go when I completed my term in office but was not tabled in the House until pressure was put on— 
Hon Dr Nick Smith 
: I raise a point of order Mr Chairperson. We are debating Part 3 of this bill. There is absolutely no reference to national policy statements or frankly to any other matters that the member has been raising. This part is limited to disestablishment. We have already argued about the functions of the new Environmental Protection Authority. This section is simply about disestablishment and the transfer of functions. The issue of the Maori committee was covered in the previous part and I think the member should be brought back to the provisions of this part. 
The CHAIRPERSON (Eric Roy) 
: Yes. I ask the member to debate Part 3. 
Hon STEVE CHADWICK 
: I thank the Minister for his clarification but I think the point has been made about what is missing and I will continue to try to get my head around it. We are not sure about the disestablishment of the Environmental Risk Management Authority and I can remember a former colleague of mine Jeanette Fitzsimons who battled away to get the authority better resourced. But in the disestablishment of the Environmental Risk Management Authority in Subpart 2 of Part 3—I hope the Minister is pleased I am referring to that in this Part 3 debate—I am really concerned about whether all of the functions of the authority will carry over into the new authority. We are really not sure just what is in and what is out. 
I think that will raise confusion for us all even though the Minister is very clear in his head apparently. I tell the Minister that it is about how we tell the story to New Zealanders so that they have confidence in the Environmental Protection Authority. At the moment there are so many shifts of staff from the Ministry for the Environment and the Ministry of Economic Development to the Environmental Protection Authority. The functions of the former Environmental Protection Authority under the Climate Change Response Act will now be “in” as part of the Environmental Protection Authority. I think the country is confused and when we are confused the Minister must accept that we do not have confidence that the new authority will have any more teeth any more powers of coercion or any more effectiveness. 
Hon DAMIEN O’CONNOR (Labour) 
: 
 I probably have to apologise to my colleagues for a start because I am going to say something nice about the Environmental Protection Authority Bill. The Minister in the chair the Minister for the Environment may fall over as well. I think it is great that in the transfer of staff in Part 3 to the Environmental Protection Authority their terms and conditions are locked in and carried over. I am almost amazed and shocked that the National Government would do anything like that but it is a very good precedent to set. 
The question I have of the Minister is whether this precedent will be the new standard for changes in the public sector. We accept that the Government seems to be focused on efficiency restructuring and part-privatisation—call it what you like—but in this part there are some very good provisions I have to say. Under clause 38(1A) “The employee’s employment is to be treated as unbroken and the employee’s period of service with the previous employer ending on the close of the day before the employee is transferred …”. 
In summary—and I accept the criticism that I was not on the Local Government and Environment Committee so I may not get it entirely right—I think that any New Zealander as my colleague the previous speaker said on reading through the bill will have these questions. It is very reasonable that we in Opposition ask them here not as members of the select committee who have heard hours and hours of submissions but as people who pick up this legislation read it and ask what it means. We can be sure that lawyers around the country will pick it up and take two meanings from the one word. That is the job of lawyers in fact. But the public— 
Charles Chauvel 
: No—careful! 
Hon DAMIEN O’CONNOR 
: With all due respect to my colleague in the front there of course. It is usually for good reason. But the point is that this legislation allows the transfer of unbroken employment terms and conditions and that is to be welcomed. 
The only question I have that relates to Subpart 3 is about how many staff members will be transferred over because the provision is a little silent in that area. I guess it leaves the way open for a reduction in staff although I am led to believe that the Environmental Protection Authority is severely understaffed at present. Any changes or cut-backs would undermine the credibility—not just the integrity but the credibility—of the Environmental Protection Authority. 
I will go to another issue in Part 3 and that is the consequences of the transfer of climate change functions. Again I have to applaud the legislation because it implies that the functions of the former agency—that is the Environmental Risk Management Authority I am assuming—must be carried on under an amendment of the Climate Change Response Act. Under clause 44(2)(g) “the commencement continuation or enforcement of proceedings relating to the function by or against a former agency may instead be carried out by or against the EPA without amendment to the proceedings;”. The legislation goes on to state: “(h) a matter or thing relating to the function that would but for this section have been completed by a former agency may be completed by the EPA.” 
I know that the Committee will think that hearing that is a bit like watching grass grow but I say that the devil is in the detail. We too often pass legislation in this Parliament that has not been thoroughly assessed. The select committee may have been pushed or pressured. I understand that the Minister is under a bit of pressure at the moment and he might push through something that may in fact be detrimental. 
I have questions but I applaud the commitment to climate change obligations. I think they imply that environmental standards in this area will be upheld by the new Environmental Protection Agency. We can take for example the Transmission Gully proposal. I guess that the emissions assessments relating to that project—and extensive reports are done in this area before any such project goes through Government agencies now—will be upheld by the new agency. But the water and air quality standards may very well lapse. It is a genuine question. 
Where the Environmental Protection Authority has intervened in big projects—we may think for good reason such as efficiency or whatever the National Government thinks—the question is whether the upholding of the climate change response obligations through Part 3 which I applaud will surpass those of other environmental standards in relation to water quality air quality and any runoff. I ask members and the Minister may want to take a call on this matter why we are putting emissions obligations which we understand are very important right up on a pedestal and through the Act allowing those obligations to be carried through into the new agency but we are saying something else when it comes to water quality. My colleague referred to issues in relation to dairying; no doubt projects will be brought to the Environmental Protection Authority in relation to agriculture. We will uphold emissions obligations but we will forget about the water quality. 
I do not think New Zealanders will accept that decision as fair and they will not accept that the legislation is progress in the area of environmental management. I thank the Chair for the ability to finish on that issue. 
JO GOODHEW (Junior Whip—National) 
: 
 I move  
That the question be now put 
. 
SU’A WILLIAM SIO (Labour—Mangere) 
: 
 I follow on from my colleague the Hon Damien O’Connor by saying I too was shocked to see that the Government is transferring the terms and conditions of employees into the new organisation. Frankly I have to ask questions. It just sounds too good to be true. I ask the Minister for the Environment whether he consulted the New Zealand Public Service Association before finalising this part of the Environmental Protection Authority Bill. I ask that because clause 42 on KiwiSaver states that the transfer of an employee “does not constitute new employment for the purposes of the KiwiSaver Act 2006.” I ask myself why it was necessary to specify that. I then ask myself about the 90-days bill that the Government passed. Will the employees who are being transferred over also come under that particular legislation? Why have we not specified in this legislation that for all employees transferred over to the new organisation the conditions of the 90-days law will not be forced upon them? 
I ask again—and I hope the Minister will take a call—whether the union representatives of those staff were involved in the discussions of the bill. I also ask the Minister because of the belief I have and that many will have that this is too good to be true how many staff have left as a result of it being highlighted that the old organisation will be disestablished and a new organisation will be established. It seems to me that in disestablishing the old Environmental Protection Authority—set up only in 1991 which is not too far off—I need to ask why it is that we are doing this again. In looking to the Auckland region for lessons to be learnt I ask the Minister whether a cost-benefit analysis was undertaken before the decision was made to disestablish the 1991 Environmental Protection Authority and to establish the new organisation. I also ask the Minister what that cost-benefit analysis would reveal in terms of any cost savings to the community or to the Government as we are talking about cost savings at this particular time. 
I raise those questions because I treat the protection of our environment very very seriously. In fact it is an issue that the Hon Pete Hodgson and I raised recently at the Inter-Parliamentary Union conference. Many of the world’s countries have a view that New Zealand has a clean and green image. I say that the disestablishment of the Environmental Protection Authority and the new organisation being set up to replace it does not focus on the protection of our environment. What is the purpose of our doing this if we are not focused on the protection of our environment? 
I want to be quite honest with the Minister. The Minister introducing this bill is the last Minister who should be introducing such a bill because he does not have a good reputation with the wider community. We can look at the way he got rid of the Canterbury Regional Council—an organisation set up for the protection of the environment of Canterbury. How can we have a Minister who did that to our environment saying to the New Zealand public that this legislation will protect our environment? It will not protect our environment. I would like the Minister to take a call in that regard. 
I really find it hard to believe that the bill states that these workers will receive the same terms and conditions in the new organisation. It is important then that the Minister answers the question of how many staff have already left because they are under pressure and under stress because of the changes that are about to come. How many staff have gone? How many staff are going to be affected? Why has the Minister specified clause 42 and what does it mean for staff who will go over to the new organisation under the 90-day law? 
The question was put that the amendment set out on Supplementary Order Paper 241 in the name of the Hon Dr Nick Smith to clause 28 be agreed to. 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 68 
New Zealand National 58; ACT New Zealand 5; Maori Party 4; United Future 1. 
Noes 54 
New Zealand Labour 42; Green Party 9; Progressive 1; Independents: Carter C Harawira. 
Amendment agreed to. 
A party vote was called for on the question  
That Part 3 as amended be agreed to. 
Ayes 68 
New Zealand National 58; ACT New Zealand 5; Maori Party 4; United Future 1. 
Noes 54 
New Zealand Labour 42; Green Party 9; Progressive 1; Independents: Carter C Harawira. 
Part 3 as amended agreed to. 
Part 4 Amendments to Climate Change Response Act 2002 
A party vote was called for on the question  
That Part 4 be agreed to. 
Ayes 68 
New Zealand National 58; ACT New Zealand 5; Maori Party 4; United Future 1. 
Noes 54 
New Zealand Labour 42; Green Party 9; Progressive 1; Independents: Carter C Harawira. 
Part 4 agreed to. 
Part 5 Amendments to Hazardous Substances and New Organisms Act 1996 
A party vote was called for on the question  
That Part 5 be agreed to. 
Ayes 68 
New Zealand National 58; ACT New Zealand 5; Maori Party 4; United Future 1. 
Noes 54 
New Zealand Labour 42; Green Party 9; Progressive 1; Independents: Carter C Harawira. 
Part 5 agreed to. 
Part 5A Amendments to Imports and Exports (Restrictions) Act 1988 
A party vote was called for on the question  
That Part 5A be agreed to. 
Ayes 68 
New Zealand National 58; ACT New Zealand 5; Maori Party 4; United Future 1. 
Noes 54 
New Zealand Labour 42; Green Party 9; Progressive 1; Independents: Carter C Harawira. 
Part 5A agreed to. 
Part 5B Amendments to Ozone Layer Protection Act 1996 
The question was put that the amendments set out on Supplementary Order Paper 241 in the name of the Hon Dr Nick Smith to clause 74R be agreed to. 
A party vote was called for on the question  
That the amendments be agreed to. 
Ayes 68 
New Zealand National 58; ACT New Zealand 5; Maori Party 4; United Future 1. 
Noes 54 
New Zealand Labour 42; Green Party 9; Progressive 1; Independents: Carter C Harawira. 
Amendments agreed to. 
A party vote was called for on the question  
That Part 5B as amended be agreed to. 
Ayes 68 
New Zealand National 58; ACT New Zealand 5; Maori Party 4; United Future 1. 
Noes 54 
New Zealand Labour 42; Green Party 9; Progressive 1; Independents: Carter C Harawira. 
Part 5B as amended agreed to. 
Part 6 Amendments to Resource Management Act 1991 
BRENDON BURNS (Labour—Christchurch Central) 
: 
 I am very pleased to pick up on Part 6 which is where we see a widening of the powers of the Minister for the Environment in respect of his capacity to call in matters that are deemed to be of national significance. I think we need to look through the 10 points in respect of how that power is to be given to the Minister. He is able to call in an issue and have the Environmental Protection Authority steamroll it through on any one of 10 points. Let us look through them. The Minister may call in an issue where it “has aroused widespread public concern or interest regarding its actual or likely effect on the environment (including the global environment)”. A very very broad sweep is encompassed in that particular proposed new subsection. The Minister may call in a project that “involves or is likely to involve significant use of natural and physical resources; or affects or is likely to affect a structure feature place or area of national significance; or affects or is likely to affect or is relevant to New Zealand’s international obligations to the global environment;”. 
I would like the Minister to give us some indication of the sorts of scenarios where he envisages he could use the sweeping powers we see here in Part 6. What is the risk to our international obligation to the global environment that would see him call in a project under Part 6? Is it in respect of climate change issues for instance? Is it in respect of a hazardous substance being released into the environment? Is it in respect of ozone issues? Clause 82 is very wide ranging. It goes on to state that a matter can be called in where it “results or is likely to result in or contribute to significant or irreversible changes to the environment (including the global environment);”. I cannot see any particular problem with that. Obviously if something very quickly led to a huge impact on the New Zealand environment or the world environment then we would want to see a Minister with the capacity to intervene rapidly. But I cannot see that a small agency like the Environmental Protection Authority which will probably have only around 20 relevant staff would have that capacity. The Minister can correct my estimation of the figures if I am wrong but we have already heard that the number of Environmental Risk Management Authority staff transferring across is of the order of 90. I think there are 20 or 30 staff in respect of addressing climate change. The balance of the staff is mostly in respect of this call-in unit that is provided for in this provision. I do get a sense that this clause is sort of the Trojan Horse of the bill and that it is there as a rapid agency for fast tracking particular projects. We as a Parliament deserve to hear from the Minister about the various scenarios he sees. 
Looking further through clause 82 we see that a call-in can be invoked where it is likely that an application may “involve technology processes or methods that are new to New Zealand and that may affect its environment;”. Obviously technology moves very very rapidly; there may be scenarios that the Minister has in mind in respect of that clause. This clause signals to me that basically the Minister wants the power to do a call-in no matter what the issue. If the Government wants to push something through very rapidly this clause seems to embody that power because it says that a call-in can happen where it “will assist the Crown in fulfilling its public health welfare security or safety obligations or functions;”. I have to suggest to the Minister that there is not much within the purview of Government that would not fall broadly under that remit. He might have to spell out education as the missing clause but if he needed the power to intervene this is the hold-it clause. When the Minister says that he needs the power to fulfil public health welfare security or safety obligations or functions I think he has the open door to an intervention on a proposal of national significance as he sees fit rather than it having any particular issue of real national significance. It is a very wide clause and I would like the Minister to indicate the sorts of circumstances that relate to that clause that he would like to see introduced. 
I have a particular disquiet about this part and it goes back to my past life as the editor of the paper in Marlborough at the time when the fast ferries started. It is very topical issue at the moment. 
Hon Dr NICK SMITH (Minister for the Environment) 
: 
 I want to provide the member Brendon Burns with just one very simple reassurance. The criteria regarding resource management matters going before the Environmental Protection Authority are exactly the same as the criteria that currently exist for Ministers to be able to call in and deal with consents of national significance. 
BRENDON BURNS (Labour—Christchurch Central) 
: 
 I thank the Minister for the Environment but of course it is a different complexion of Government in charge at the moment so I still have some fears in respect of these clauses and how they might be applied. There is a different agenda. There is definitely a growth agenda in Cabinet at the moment. 
I refer to the article that Colin James wrote in January of this year about the Minister wishing to influence better environmental outcomes but as Colin James reported being in the grip of an economic growth cabal. There is no doubt as we stand and look across the Chamber where the power is based. It is certainly not in the environment portfolio and it is certainly not in the broadcasting portfolio. We could go down a number of other portfolios where the power and weight are minimal compared with a clutch at the top that certainly have a very fixed agenda and that is why Part 6 provides a very very wide-ranging opportunity for intervention. It was used on occasions by the last Government. I remember my friend and former colleague Marian Hobbs using it in respect of Project Aqua and that was an appropriate intervention. But the concerns we have—and why I want reassurance from the Minister—are in respect of the capacity for the 10-part section 142(3)(a) in clause 82(1) to be used to evoke a very rapid set of interventions driven by that growth agenda. 
Coming back to the concern I have about this kind of power in the mid-1990s I was the editor of the newspaper in Marlborough at the time the fast ferries began. Two or three groups sprang up in opposition to the wake that was being effected by two fast ferry operations. It was not a situation where the proposal of national significance provision was used but the power of those companies was sufficient to bring charges against those two or three small groups and whack them with very considerable costs. That is the imbalance that can be created when legislation allows a big entity—that is the Government—to take on a small entity a small ratepayer-based or community-based group that wants to challenge the power of the Crown or a major corporate. The imbalance that can be created can be monstrously unfair. The irony of that situation was that the then Minister of Conservation one Denis Marshall was one of those who had costs awarded against him along with two Marlborough Sounds - based community groups. 
Of course that issue is rapidly coming back into sight at the moment as in the last 48 hours we have seen our rail company indicating with the support of the Minister of Transport a wish to rapidly reconsider the option for a new port at Lake Grassmere to replace Picton as the main port at the top of the South Island for rail-ferry traffic. That proposal deserves to be considered on its merits. It is an issue that will divide the Marlborough community which I still have strong connections to. Already the people of Picton are expressing some very real fears about the impact of that project. I would like to know from the Minister whether that is the sort of project he envisages would be taken in under clause 82 with its 10 wide-ranging provisions with enormous power for call-in. I think the people of Marlborough would welcome such an assurance from him tonight and perhaps the member for Kaikoura might be willing to take a call on behalf of his constituents in respect of that particular application of Part 6. 
Hon DAMIEN O’CONNOR (Labour) 
: 
 I guess it was useful to take the assurance of the Minister in the chair the Minister for the Environment that in repealing section 142(3) of the Resource Management Act and substituting the new subsection in clause 82 in this Environmental Protection Authority Bill the provisions there are all the same as those that are currently in place—that is they provide the ability to call in a resource consent application. I trust that that is true but I suspect that there are some changes. No one could argue with the general thrust of all the provisions in the new subsection (3). In deciding whether a proposal is of national significance the Minister may have regard to widespread public concerns significant use of natural resources effects on structures and features international obligations etc. There are a number of them. They are all laid out here; members will be pleased to hear that I will not read them all out. All of these relate to one particular project that I can think of and that is dairying in the Mackenzie country. I was down there the other day visiting communities and individuals and investigating. The big proposals down there all meet the criteria laid down in new section 142(3) in clause 82. 
I guess that means that the Environmental Protection Authority can step in and make a judgment. It can assess all the criteria and make a judgment on it. But then the thing that concerns members on this side of the Chamber is that if we go to clause 82(3) which adds section 142(7) we see that that subsection states: “To avoid doubt the Minister may make a direction under subsection (2) that differs from the direction recommended by the EPA …”. The underlying or overarching concern—whichever way one sees it—that we have is the ministerial power in all of this. I do not mind trusting one of my colleagues as a Minister but I am not sure whether I have confidence in the current Government because the Minister in the chair at the moment—the Minister for the Environment I think he is called—is the same person who proposed along with all his colleagues mining in national parks. This Minister— 
Hon Dr Nick Smith 
: I raise a point of order Mr Chairperson. There is absolutely no reference to the issue of mining in national parks in the part of this bill that we are debating so it is not appropriate for the member to raise those issues. 
Hon DAMIEN O’CONNOR 
: Mr Chairman— 
The CHAIRPERSON (Eric Roy) 
: I do not need any assistance. I was listening very carefully to the member and I think he was phrasing his remarks about clause 82 and the Minister’s call-in powers. I will just ask the member to restrain himself to that example. We do not need to relitigate the matter that was the example—I do not want to restate it—but the example was I think one that was pertinent to clause 82. If he would contain his speech to that comparison. 
Hon DAMIEN O’CONNOR 
: I will hold myself back. We are talking about clause 82. The Minister may call in a matter that is or is part of a proposal of national significance. The Minister and his wise Government considered the Waterview Connection Transmission Gully and the proposed prison in Wiri. All of those issues are of national significance so the Environmental Protection Authority will call them in. But the precious Minister takes offence at my saying that a proposal to mine in a national park may not be called in by the Environmental Protection Authority. Well I put it to members that that is exactly the kind of proposal to mine in a national park that this Minister who already supports that may take to the Environmental Protection Authority. What we have seen is that this clause here overrides the Resource Management Act and replaces the basic and well-understood provisions that say the community through the resource consent process has the ability to have a say and have an influence. The Environmental Protection Authority Bill will remove that ability. So on projects of so-called national significance the Environmental Protection Authority may make a direction or ruling but the Minister of course can override that sort of advice. That is the concern that we have. It is right here in this part of the bill; it is laid out and spelt out. I say to the Minister that if we cannot ask questions about how the Minister will or will not use those powers then we are not doing our job. 
I say that in Opposition I have to ask that Minister who supported mining in national parks whether he will when this legislation passes take to the Environmental Protection Authority proposals to mine in national parks—because they are of national significance. Clause 82 provides that the Minister in deciding whether a matter is or is part of a proposal of national significance may consider whether there is widespread public concern and whether matters involve significant use of natural and physical resources. It lines up. We must ask questions around the inevitable use of this legislation through the country. 
As I say the Government already has the Waterview Connection Transmission Gully and Wiri Prison and we have had a proposal to mine in national parks. I am a supporter of mining but the public of New Zealand and every wise person in this country who understands and upholds environmental protection and all the values that go with it knows that national parks have been set up and established and entrenched in legislation for their natural and recreational values not for their mineral values. I know that is frustrating but the mining industry itself understands that. The question I ask the Minister is whether he will bring to the Environmental Protection Authority a proposal that will generate “widespread public concern” to quote new subsection (3)(a)(i) inserted by clause 82. Will he bring that to the Environmental Protection Authority and then instruct—because he can make a direction—the Environmental Protection Agency to approve that? 
That is my last word on this—that a very important issue is raised in this section laid down here in black and white and it will be up to the courts no doubt and to the Minister to establish some precedent beyond the passage of this bill. That is why the Opposition has an obligation—a moral obligation—to ask those questions and to try to get an answer from the Minister. 
A party vote was called for on the question  
That Part 6 be agreed to. 
Ayes 68 
New Zealand National 58; ACT New Zealand 5; Maori Party 4; United Future 1. 
Noes 54 
New Zealand Labour 42; Green Party 9; Progressive 1; Independents: Carter C Harawira. 
Part 6 agreed to. 
Part 7 Minor and consequential amendments 
A party vote was called for on the question  
That Part 7 be agreed to. 
Ayes 68 
New Zealand National 58; ACT New Zealand 5; Maori Party 4; United Future 1. 
Noes 54 
New Zealand Labour 42; Green Party 9; Progressive 1; Independents: Carter C Harawira. 
Part 7 agreed to. 
Schedule 1 
A party vote was called for on the question  
That schedule 1 be agreed to. 
Ayes 68 
New Zealand National 58; ACT New Zealand 5; Maori Party 4; United Future 1. 
Noes 54 
New Zealand Labour 42; Green Party 9; Progressive 1; Independents: Carter C Harawira. 
Schedule 1 agreed to. 
Schedule 2 
A party vote was called for on the question  
That schedule 2 be agreed to. 
Ayes 68 
New Zealand National 58; ACT New Zealand 5; Maori Party 4; United Future 1. 
Noes 54 
New Zealand Labour 42; Green Party 9; Progressive 1; Independents: Carter C Harawira. 
Schedule 2 agreed to. 
Schedule 3 
A party vote was called for on the question  
That schedule 3 be agreed to. 
Ayes 68 
New Zealand National 58; ACT New Zealand 5; Maori Party 4; United Future 1. 
Noes 54 
New Zealand Labour 42; Green Party 9; Progressive 1; Independents: Carter C Harawira. 
Schedule 3 agreed to. 
Schedule 4 
A party vote was called for on the question  
That schedule 4 be agreed to. 
Ayes 68 
New Zealand National 58; ACT New Zealand 5; Maori Party 4; United Future 1. 
Noes 54 
New Zealand Labour 42; Green Party 9; Progressive 1; Independents: Carter C Harawira. 
Schedule 4 be agreed to. 
Schedule 5 
A party vote was called for on the question  
That schedule 5 be agreed to. 
Ayes 68 
New Zealand National 58; ACT New Zealand 5; Maori Party 4; United Future 1. 
Noes 54 
New Zealand Labour 42; Green Party 9; Progressive 1; Independents: Carter C Harawira. 
Schedule 5 agreed to. 
Schedule 6 
A party vote was called for on the question  
That schedule 6 be agreed to. 
Ayes 68 
New Zealand National 58; ACT New Zealand 5; Maori Party 4; United Future 1. 
Noes 54 
New Zealand Labour 42; Green Party 9; Progressive 1; Independents: Carter C Harawira. 
Schedule 6 agreed to. 
Schedule 7 
A party vote was called for on the question  
That schedule 7 be agreed to. 
Ayes 68 
New Zealand National 58; ACT New Zealand 5; Maori Party 4; United Future 1. 
Noes 54 
New Zealand Labour 42; Green Party 9; Progressive 1; Independents: Carter C Harawira. 
Schedule 7 agreed to. 
Clauses 1 and 2 
CHARLES CHAUVEL (Labour) 
: 
 I will make a brief contribution on the question of the manner in which the bill is to be brought into force. The Minister has tabled— 
The CHAIRPERSON (Eric Roy) 
: It’s the title clause we are on. 
CHARLES CHAUVEL 
: Yes the title and commencement Mr Chairperson? 
The CHAIRPERSON (Eric Roy) 
: No just title—my apologies; it is clauses 1 and 2. It was my mistake. You are correct. 
CHARLES CHAUVEL 
: Thank you Mr Chairperson. First of all dealing with the commencement the Minister has tabled a Supplementary Order Paper that will divide the bill into six different pieces of legislation. Each of these bills will be able to be brought into force by Order in Council with the proviso that each of them has to be brought into force by 1 December 2012. That is my understanding of the scheme from the Supplementary Order Paper the Minister has put forward. We have not heard from the Minister on it so I am doing my best to interpret the provisions that have been laid on the Table for the Committee. 
I will make just a couple of points about this manner of proceeding. I know that the Regulations Review Committee wrote to the Local Government and Environment Committee on the manner the bill was originally going to be brought into force which was as I recall to rely even more heavily on Order in Council provisions. The problem with this manner of legislating is that it confuses the responsibility of the Minister and the executive with the responsibilities of this House. We should be clear on any occasion whether we intend to bring a bill into force and if so when. It is lazy to do it this way frankly; it provides the officials with an excuse to delay. If there is a clear provision in the bill that states the date when part of the bill will come into force then the administrative work that is required to be done by departments by entities and by the Minister and his office will be done by that date. If it is not done by that date then the Minister has to come back to this House explain why and propose amending legislation. But as it is this legislation is on the never-never but for a drop-dead date of some 18 months hence. I would like the Committee to reflect on whether that is a satisfactory way of proceeding. It is my submission that particularly on legislation as important as this it is not. 
The second point I will make relates to the title. We have heard a great deal of debate during the Committee stage on whether this bill ought to merit the title the “Environmental Protection Authority Bill”. The nub of the concern is that nowhere in the objectives of the legislation or in the functions is there a requirement that this body be responsible for protecting New Zealand’s environment. Kennedy Graham moved an amendment earlier; I moved an amendment. The Government voted down both of those amendments. We have tried to make this an authority that would be worthy of its name. The Minister and his colleagues have rejected that attempt; I say shame on them for that. I say that in respect of the name that this bill bears the authority that it will create will not live up to that name. 
A party vote was called for on the question  
That clause 1 be agreed to. 
Ayes 68 
New Zealand National 58; ACT New Zealand 5; Maori Party 4; United Future 1. 
Noes 54 
New Zealand Labour 42; Green Party 9; Progressive 1; Independents: Carter C Harawira. 
Clause 1 agreed to. 
A party vote was called for on the question  
That clause 2 be agreed to. 
Ayes 68 
New Zealand National 58; ACT New Zealand 5; Maori Party 4; United Future 1. 
Noes 54 
New Zealand Labour 42; Green Party 9; Progressive 1; Independents: Carter C Harawira. 
Clause 2 agreed to. 
Hon Dr NICK SMITH (Minister for the Environment) 
: 
 I move  
That the Committee divide the bill into the Environmental Protection Authority Bill the Climate Change Response Amendment Bill the Hazardous Substances and New Organisms Amendment Bill (No 2) the Imports and Exports (Restrictions) Amendment Bill the Ozone Layer Protection Amendment Bill and the Resource Management Amendment Bill  
pursuant to Supplementary Order Paper 240 
. 
A party vote was called for on the question  
That the motion be agreed to. 
Ayes 68 
New Zealand National 58; ACT New Zealand 5; Maori Party 4; United Future 1. 
Noes 54 
New Zealand Labour 42; Green Party 9; Progressive 1; Independents: Carter C Harawira. 
Motion agreed to. 
Bill to be reported with amendment presently.