Smith Stuart; Parker DavidSTUART SMITH (National—Kaikōura): Thank you Madam Chair. It is a pleasure to speak on the Natural and Built Environment Bill. While I did spend some time on the Environment Committee on this but not as much as others—to my good fortune I think!My question to the Minister for the Environment is around clause 4 around the Treaty of Waitangi where it says All persons exercising powers and performing functions and duties under this Act must give effect to the principles of [the Treaty of Waitangi]."—or "te Tiriti" or whichever way you want to call it and there are differences; there is one here. I'd like to know why they chose that version and not the "the Treaty of Waitangi"—the one that took primacy in 1840.Further to that where are the principles? There's no reference in that clause to the principles. What are they? Where are they listed? How will they work? We can't judge that unless we know what they are. I would suggest that that's going to make it pretty difficult. I do note at the beginning of the original bill it gives a definition although it's not in the bill itself of "tikanga". We heard in the Environment Committee last week expert witness evidence on the seabed mining inquiry about such matters and the difficulties that they create because ultimately good law is something that has to be able to be known—it doesn't have to be known but has to be able to be known—and yet tikanga is not known; it's essentially secret knowledge. In a normal case of events—and this is where it relates to this bill Madam Chair—when this bill becomes an Act and tikanga comes up in a hearing or in a consent process it doesn't have the same process as it would if it was expert evidence say about environmental effects. So if we had a marine biologist for example giving evidence about the effects of potential seabed mining for example or it could be a wind farm and the effect on birds where we have witness expert evidence that would come up from the applicant and then those objecting to it on the other side of the argument could get their own expert witness and then we would have something to weigh up and a decision to be made. But with tikanga that can't happen. Well that's my understanding but perhaps the Minister is going to enlighten us all because it certainly had that legal expert very confused as to how that might work and the practicalities of it and also the fact that money changes hands to get a lot of these reports through. So I asked that witness—Hon Member: A lot of money.STUART SMITH: —yes—how he would deal with that how that would be dealt with in the law. His response—it was interesting I think and I—Hon Scott Simpson: Tell us.STUART SMITH: Well I will. I'm hoping that the Minister's listening because I'd like him to come back with an answer to this—whether this is right or not. He said "Well you simply make it of no value. If you can't test it then it's bad law and so therefore you have to make it of no value." So it could be admitted and used but it has no real value because it can't be tested. So I really would like the Minister's view on that. So how's that going to work on a day-to-day basis when I make an application for a wind farm on a nice ridge line overlooking Auckland? Have they got some ridge lines in Auckland somewhere?Hon Member: Bound to.STUART SMITH: Go and put some wind turbines up there and the local residents complain or object and I have some expert—Simon Court: Give them a gas turbine Stuart.STUART SMITH: Well a gas turbine—well I might be doing that as well; the same thing. It would be more efficient I suspect in the long run. But how is that going to be weighed up with the principles of the Treaty and how's it going to be weighed up with tikanga? If I get someone to give evidence who invokes tikanga and says it's worthwhile on the basis of that secret knowledge can that be tested and how can that be tested if it's secret knowledge? So I'd really appreciate the Minister's answers to those questions.Hon DAVID PARKER (Minister for the Environment): Dealing with the first point the member raised which was that clause 4 of the bill says that "All persons exercising powers and performing functions and duties under this Act must give effect to the principles of te Tiriti o Waitangi." the term "te Tiriti o Waitangi" is defined in the "Definitions" section in clause 7(1) and it is defined to mean "the Treaty as defined in section 2 of the Treaty of Waitangi Act 1975". I know—because I had advice on this on the way through—that definition refers to both versions of the Treaty. So it doesn't give preference to the te reo version or the English version. It does as the Treaty of Waitangi Act does and makes reference to both.In respect of the "give effect to the principles of" the Treaty clause that's broadly the same as the "give effect to the principles of" the Treaty clause in the Conservation Act. So that's not new. The wording is slightly different but it's of similar effect. And it was recommended by the Randerson panel and it's previously been recommended by the Waitangi Tribunal.The Waitangi Tribunal went quite a bit further. It's clear from some of their writing that they would have preferred a co-governance model for resource management that we haven't pursued through this legislation because the Government didn't agree that that was appropriate.In respect of the issue as to tikanga Māori this is not a new concept; it is in the Resource Management Act (RMA). Is the definition the same? The definition is broadly similar. If the member's got specific questions about that I can dig out the RMA to answer some further questions about that but I haven't got the RMA definition right in front of me. But tikanga Māori is in the existing Resource Management Act.In respect of the issues as to secret evidence that I think the member referred to if whatever happened would be in relation to something like—if there is a place known to local Māori on their piece of land that there is a burial site they don't necessarily want archaeologists if this is on public land or something going and digging it up. So they might come and they might say to the authorities "Look please listen to us as to where that burial site is. We know it's down there but we don't want you to broadcast that." That would be up to the court to determine or the council to determine whether they thought that was fair. If they didn't think that was fair they would obviously make that sort of thing public. But "tikanga Māori means Māori customary law customary values and customary practices". Irrespective of whether we had that definition in the law the Supreme Court has recently found that tikanga is a branch of the customary law that does have a current place in New Zealand law. It obviously has a current place under the Resource Management Act because it's provided for. Really the only way that this Parliament could have a different outcome in respect of tikanga these days would actually be to expressly exclude it by legislation to say that tikanga Māori cannot be taken into account in respect of these resource management decisions. That's not a position that this Government or obviously the prior Government that was in power for nine years—the National-ACT Government never did that in respect of the RMA."