2021 Inquiry on the Natural and Built Environments Bill: Parliamentary Paper

This submission responded to the exposure draft for the Natural and Built Environments Bill. (August 4th, 2021)

PSGR's original submission is available here.

Link to oral presentation to Environment Select Committee here. (commences at 3:24:00)

Link to transcript of presentation here.

Environment Select Committee members in attendance: Hon Eugenie Sage, Rachel Brooking, Anahila Kanongata'a-Suisuiki Tangi Ukitere, Angie Warren-Clark, Nicola Willis, Scott Simpson, Simon Court, Tamati Coffey

1. The Natural and Built Environments Bill (NBEB) is envisaged as an overarching Act to manage air, soil, freshwater and the coastal marine area, and regulate land use and the provision of infrastructure.

2. The Draft Parliamentary Paper (DPP) [1] replicates the failings of the RMA and inadequately articulates the links between pollution, climate change, biodiversity loss and ecosystem degradation; and the obligation of the public sector to work across these spheres to and preserve ecosystem systems and protect intergenerational human and environmental health.

3. Aotearoa New Zealand is currently blind to the global pollution crisis.

Pollution is not strategically integrated at high level into overarching policy and regulation.
There is no integrated strategic science funding to articulate the industrial, agricultural and human drivers of pollution, beyond short term and precariously funded research activities.
The national narrative sets the protection of the environment as a linear process through the setting of ‘environmental limits’ rather than as an integrated cross-sector approach involving deep seated cultural change, and the promotion of both carrot and stick activities.
Environmental limits insufficiently encompass water health. Water is taonga, central to Māori life and required to be protected by the Crown according to the Treaty of Waitangi. [2] [3]
The media environment has not drawn attention to this complexity.

4. The problem of diffuse pollution remains the bête noire – the black beast - of New Zealand environmental policy, at every political juncture.

5. Jurisdictions which are ‘turning their elephants around’ – have adopted a strong interpretation of the precautionary principle at a high level in policy.

‘A key benefit of this stronger approach is that it does not function only as a shield – that is it is not merely a defence or enabling mechanism to justify a cautionary measure that a decision-maker decides to take. This stronger direction functions as a sword, requiring the decision-maker to take a precautionary approach in certain circumstances.’ [4]

For efficient and effective legislation PSGR offers:

→ It is noted the terms of this Inquiry refer to a focus on ‘efficiency’.

→ Clearly the RMA became complex because it replaced ‘purpose’ with many absurd, costly and unnecessary (but specified) procedural requirements. In addition, arguably inappropriate RMA National Policy Statements began to set aside any fundamental role of localgovernment to protect its people – a policy to retreat from climate change effects, for example.

→ While there was opportunity to strategically shift in the public interest, National Policy Statements and national bottom lines have been unable to identify and prioritise pollution.

→ Yet compliance with policies and procedures by administrators became dominant - even when they were outdated, counter to statutory purpose and/or counter to the public interest.

→ Inconvenient issues, such as pollution were buried, as the complicated legislation failed to draw a line of sight between polluter and polluted.
Costly and inefficient ‘specified procedures’ can be ignored in this new legislation by a new requirement to identify all relevant considerations – the facts and the evidence – and then administrators can be required to set out their reasoning and the weight that they have accorded to all of the relevant factors – i.e. simple compliance with the principles of administrative law.

→ Such a simple approach would set a basis for accountability, public evaluation and judicial reviews of decisions by administrators – and efficient administration.
PSGR notes that transparency and accountability are integral to maintaining trust in policy and decision-making. Rigor is especially required in politically controversial environments, such as when identifying pollutants that are harmful to health.

→ We recommend that elected members and public officials direct their gaze to the policy of countries who have embedded the precautionary principle at a high level in policy.

→ Prior to further development of this policy, we ask that the Parliamentary Commissioner for the Environment undertakes a public review of the European framework to transition to a pollution free planet. See brief outline in [E]

→ Suggestions relating to the DPP text in section [F] These are an immediate response to the issues in the paper but do not sufficiently address the context of this discussion.

Our submission drew attention to the exclusion of discussion concerning pollution from synthetic chemicals, and draws attention to the growing importance of pollution in policy that has been emphasised in Europe and in the UNEP. In 2019 we drew attention to how policy is constructed to exclude this 'inconvenient' knowledge when we talked about the ongoing suppression of information relating to synthetic chemical (industrial, agricultural and wastewater) pollutants in freshwater. Organisations that signed on to support the paper Aotearoa New Zealand Policy Proposals on healthy waterways: Are they fit for Purpose? (2019)

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References:

[1] New Zealand Government. Natural and Built Environments Bill Parliamentary paper on the exposure draft (updated). C.32.

[2] Waitangi Tribunal, 1985, WAI 8 at 116

[3] Waitangi Tribunal 1998 WAI 212 at 2.4

[4] From a paper discussing pesticides regulation and the weakness of a precautionary approach in the HSNO Act. Iorns Magallanes, C. (2018). Permitting Poison: Pesticide Regulation in Aotearoa New Zealand. EPLJ, 456-490

2021 Inquiry on the Natural and Built Environments Bill: Parliamentary Paper

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