This page last modified 16 September 1998
Crown Pastoral Land Bill (text)
Hansard 6 April 1995
Hansard 7 May 1998
Hansard 27 May 1998 (this page)
Hansard 28
May 1998
Hansard 17 June 1998
Consideration of Report of Primary Production Committee
'Hansard', 27 May 1998
Instruction to Committee
Hon. NICK SMITH (Minister of Conservation): I move, That it be an instruction to the Committee of the whole House on the Crown Pastoral Land Bill that it consider the Bill part by part and take the schedules as a single question. The select committee has been considering this Bill for a very long time, and has given very careful consideration to it. There has been a very large number of submissions to it. It has heard extensively from a large number of key groups, whether it be the high-country trustees, Federated Farmers, the South Island high-country committee of Federated Farmers, the Fish and Game Council, or the Federated Mountain Clubs.
All of those groups have had ample opportunity to make submissions on this important Bill.
Further to that, the Bill was actually reported back in a provisional report just prior to the 1996 general election, and a further round of submissions was invited by the select committee. By the fact of the number of stages---from the first process of the discussion document, to the first Bill, to the second stage of submissions that have been allowed---it would make the best use of this House's time if we were to consider the Bill in that way. In so doing, we would be able to make progress on this important Bill, both for the benefit of the farming community in the South Island and for the important conservation gains that are part of this legislation.
Instruction to Committee
TREVOR MALLARD (NZ Labour---Hutt South): There is a problem with the Government's approach, and I think it is due to the ineptitude of the Leader of the House or, probably to be nice to him, to his overwork. I am being nice to him. Otherwise one could just say that he is an ignorant fool and does not know how to run the House. That is the alternative approach. I am being nice to him in saying that he is overworked and does not understand. Over the last 3 weeks there has been example after example of legislation that is not very contentious---about which there is a bit of an argument, but not very much---yet the Government has deliberately sought to antagonise the Opposition and extend the debate, either by the use of urgency or by using this part by part approach.
Most of these clauses would have gone through with no debate whatsoever, and some clauses with fairly short debate. What the Government guarantees when it moves such a motion is opposition. It guarantees debate to the closure. It ignores the role of Parliament as it can be---a place where people can work together, discuss things in Committee in an informal approach, and work their way through legislation.
I turn to the suggested parts of the Bill. I think that at some stage, maybe during a debate on the Standing Orders, Parliament will have to discuss the drafting of Bills, and the shape of them with regard to the number of parts. In the past it was the prerogative of the law draftspeople, but I detect a certain trend---not only from this Government; it was there before---towards putting Bills into parts, and quite a small number of parts, at that. The result of that is some issues, which are different issues, that could be logically considered as single issues or groups of issues.
In this particular Bill one only has to go to Part 1 and see that there are four distinct issues within the first part. The application of the Land Act 1948 is hardly a major issue. I think if the Bill was properly drafted, it would be sitting right at the end of the Bill, amongst the savings and consequential amendments. That might be a better place for it.
The Bill is about pastoral leases, occupational licenses, and pastoral land generally. Mixed up in the same debate are special provisions relating to the calculation of rent payable for the first renewal of pasture release granted before 1 December 1979---a pretty technical type of issue. At the same time, we discuss the burning of vegetation or activities affecting or disturbing soil. I say to the Government that they are different issues. They are separate issues.
The calculation of rent is quite a separate issue from the burning of vegetation.
The member is shaking his head. I can just about hear the rattle from Mr Roy as he comes across. The point he has to remember is that the Opposition generally supports the thrust of the Bill. We have concerns about some of the sustainable management aspects of the use of pastoral land. We want to discuss those and we want to seek some assurances from the Government. Even a couple of years ago, we had reasonable, good-humoured, and positive debate in this House. It does not happen now.
I do not blame it entirely on MMP and its influence, although maybe I do slightly because it goes without saying that there is a certain unreliability in the reactions of some of the minor parties.
We need a decent Leader of the House, someone who understands how the place worked, someone who would spend time on understanding how it works.
The Prime Minister should review the workload of Wyatt Creech, who is, effectively, the Deputy Prime Minister. We know that Mr Peters is titular Deputy Prime Minister, but we also know that all the work that used to be done by a Deputy Prime Minister within a Government is now being done by Wyatt Creech. Education is a very important portfolio, and he has that portfolio. I think he has another substantive portfolio as well, although I am not quite sure which one it is. He is also Leader of the House. That, for Geoffrey Palmer---for someone with his mind---would have been an extensive workload. He would have been pushed. But someone like Wyatt Creech---
Eric Roy: Don't be uncharitable.
TREVOR MALLARD: I think I am being charitable. I am just saying that he is being stretched, and this House is suffering as a result. This House is becoming a shambles. We have had days and days of unnecessary urgency. We are having debates that last for goodness knows how long on part by part motions, which actually extend the total Committee stage on a Bill. That is inevitable when a part by part motion is moved. There are parts on which there would have been hardly any debate, parts that people just agree with and that would have slipped through. The Chairman says: "All those in favour say 'Aye', against 'No' '', and that will be the total discussion on them.
That is the way whole portions of Bills get debated because we are forced into this artificial structure, which is quite different from what the approach to the Committee stage is meant to be. I remind the House what the Committee stage approach is meant to be. It is meant to be a line by line, a clause by clause, relatively informal approach to legislation, with questions going back and forth.
For example, members should look at the drafting of clause 29. We now have clauses 29A to 29Q. Maybe that is a result of the work of the select committee. The select committee has done some very good work on this Bill. I am told that many of the concerns of the Opposition have been met and the Bill has come back to the House being better drafted than it was when it went to the select committee. I am told that the approach at the select committee was positive, not antagonistic. This is not legislation on which the Government will survive or fall. It is legislation that the House should consider carefully because it is very important, especially in the sustainability area. It is not a Bill on which we should be forced into the straightjacket of a part by part debate---I think deliberately---by the Leader of the House, antagonising the House.
Mark Burton: It's very hard to tell.
TREVOR MALLARD: Well, it is deliberately antagonising the House, in a way that in my opinion is totally unnecessary.
Instruction to Committee
ERIC ROY (NZ National): I was not going to prolong this debate by taking a call, but I will make two points quite quickly. The first is simply that this Bill, more than any other, is one that is suitable to debate part by part because the elements of the clauses follow on in a very consequential way.
Hon. Dr Michael Cullen: One after the other.
ERIC ROY: The member is quite astute. It is important that we grasp the concepts, and when we talk about the objects of the Bill, discretionary actions, and the matters that the previous member mentioned, that they follow on. It is important we debate those in terms of the context.
The member has castigated the Leader of the House. As chairman of the select committee, I have tried to manage this Bill. As soon as I was aware of it, I sought the advice of Opposition members, asking them how long they wanted to consider it. We know that there is a great degree of unanimity on the Bill but that there are some issues on which we will separate. Clauses 14 and 20, in two separate parts, are areas where we are likely to separate. I asked for some sort of understanding and said that if we could not get it, then we will move on a part by part basis.
David Carter: Did the member get it?
ERIC ROY: No, I am afraid we did not get it, with the result that we are seeking to debate the Bill part by part. Do I think that affects the manner and the effectiveness of the way that the Committee will deal with it? No, I do not, because these parts are consequential as they follow through. There are a couple of issues in separate parts that we will deal with. This is an expedient way to deal with this. From the Government's point of view, I am prepared to accept that we may well debate those two parts for up to an hour. That may be a consequence of the way we do it, and I do not seek to avoid that. I sought to get some sort of an agreement. It was not forthcoming; consequently, we want to progress this Bill that has been in the select committee for 3 years. There has been an interim report, an issues paper, and a whole range of things to try to get the best possible deal. Let us do it part by part.
Instruction to Committee
MARK BURTON (Senior Whip---NZ Labour): I, too, am moved to take a call, although I was not going to. The member who has just resumed his seat is entirely correct. He is a very hard-working select committee chairperson, and I do not think there is a member in the House who would debate that. Let us be fair, Mr Roy is a hard-working member. The problem is, as my colleague Mr Mallard pointed out, that it is not for Mr Roy to come into the House and see that there had not been a negotiation, an organisation of the House's business in an orderly way. All credit should go to Mr Roy that in the eleventh hour he tried to sort out something and rush over here with a bit of a proposition about---
Eric Roy: There's a phone in the foyer.
MARK BURTON: It was a matter of minutes before the House was to deal with the business. I do not criticise Mr Roy at all. I think he was doing a sterling job.
Trevor Mallard: He's just making up for the ineptitude.
MARK BURTON: That is right. He is doing a sterling job, trying to cover the tracks of a Leader of the House who is just not coping. I suggest to the Government that it has a very experienced member there. Perhaps it is time there was an assistant Leader of the House. I think that Mr Eric Roy would be a fine assistant. We might see the House's business arranged in a more orderly fashion, then we would not have part by part motions as a last-minute lurch. I am sure that Mr Roy would be much more orderly in facilitating the Government's business. We might have the opportunity to consider the proposition in a more measured way, and who knows what the outcome of that would be!
This is not the way to conduct the House's business. I am afraid that it is typical of the rolling shambles that we have had in the last few weeks. I have watched Government members falling like flies from their benches. I cannot refer to the absence from the Chamber of members, but there has been plenty of space on the Government benches in the last few days. Government members are falling like flies under the stress of pressure, of the urgency that is largely unnecessary.
For instance, this morning the House sat under urgency for 18 minutes because the Government could not organise its business. It is just no good. Frankly, this sort of arrangement needs to be done in a more orderly way when there is time to look properly at the ramifications of what is being proposed.
A party vote was called for on the question, That the motion be agreed to.
Ayes 70
New Zealand National 44;
New Zealand First 17;
ACT New Zealand 7; United New Zealand 1;Independent 1.
Noes 49
Labour 37;
Alliance 12.
Majority for: 21
Motion agreed to.
In Committee
Clause 1. Short Title
PETE HODGSON (NZ Labour---Dunedin North): I regret to tread on the Standing Orders, but I want to ask very gently whether the Minister of Conservation will be able to take the chair during the course of the debate.
Eric Roy: Yes, he is.
PETE HODGSON: Thank you. The short title states that the Act may be cited as the Crown Pastoral Land Act 1995. We have no particular problem with that. However, we wonder whether the term "Crown pastoral land'' necessarily covers not only pastoral leases but occupational licences. We wonder whether that term is sufficiently generic to cover both of those and whether the Minister could assist us on that. If he is able to assist us, we would be happy to let the clause go through without further debate.
ERIC ROY (NZ National): That question was raised initially. Of course, the short title actually still embraces the original Land Act that deals with that particular issue. If members follow through the appropriate clause, they will find that pastoral occupational licences will be reviewed as they fall due, so consequently they will not exist after continuing reviews of their time of expiry. So the Bill does deal with them. They are also covered subsequently under the provisions of the Land Act, which this Bill sits alongside.
Pete Hodgson: Pastoral occupational leases didn't exist in 1948.
ERIC ROY: Well, they are still covered. The member will be aware that they are covered satisfactorily in a clause in the Bill.
Clause 1 agreed to.
Clause 2. Interpretation
JEANETTE FITZSIMONS (The Alliance): I believe that there are definitions in clause 2 that deserve to be discussed in the Committee. It took a significant amount of time in the select committee to change "high inherent value'' to "significant inherent value'', and I think the public may like to know the arguments that went on in the course of that.
An inherent value is defined extremely widely to include ecological and conservation-type values, cultural and human-type values, historical values, and scientific values. When we came to the question of how high the inherent values have to be before land ought to be protected in Crown ownership and control under the Department of Conservation, we decided on the word "significant'' rather than the word "high'', because we felt that the word "high'' was much too restrictive. The high-country land has a great many values associated with it that are of enormous public interest and concern.
It was felt that it was not right that the definition should be too restrictive. In determining that we would use the word "significant'', we linked it to the definitions in the Conservation Act and the Reserves Act to achieve consistency across the management of conservation land generally, so that those features that are worthy of preservation under the Conservation Act or the Reserves Act are also worthy of protection under this legislation. I think that is an important consistency that the select committee achieved.
The other definition I would like to refer to is "protective mechanism''. Protective mechanisms are the alternative and less preferred way of protecting land that has significant inherent values but for some reason does not go back to Crown ownership and control as part of the Department of Conservation estate. Protective mechanisms can include covenants under the Queen Elizabeth the Second National Trust Act as well as a variety of other kinds of covenants and easements.
There is a wide degree of concern in the community that the intention of the select committee was that covenants under the Queen Elizabeth the Second National Trust Act should be used only for relatively small, fenced, and discrete pieces of land, such as wetlands or particular confined ecosystems that are a long way from the Department of Conservation estate and cannot easily be managed in association with it. The legislation as drafted does not adequately reflect the intention of the select committee that only such relatively small, ecologically important pieces of land should be protected by covenant rather than by full restoration to the Crown.
I therefore feel it is necessary to report to the Committee that the select committee was of the unanimous opinion that that was how covenants ought to be used. In the end, the safeguard that we saw was that the Minister of Conservation would not, under his Act, be able to approve protection of large areas of land with significant inherent values under a mechanism that has no public input, no public access, can be reversed in the future, and is simply an agreement between a private landowner and a trust. I want to make absolutely clear in this debate the intention of the select committee. We were told that officials would implement this Act in such a way that the use of trusts under the Queen Elizabeth the Second National Trust Act would be limited to small, discrete, fenced areas of land that could not reasonably be put in with the rest of the conservation estate.
PETE HODGSON (NZ Labour---Dunedin North): I thank my colleague Jeanette Fitzsimons for some expansion on matters that have been concerning some of us on the Labour side as well. They are to do with the so-called whole-of-property Queen Elizabeth the Second National Trust covenants. If the select committee believes that they apply only to small and discrete areas, that raises the question of why, later in the Bill, the Bill does not state that.
Jeanette Fitzsimons has given a useful explanation in suggesting that the check and balance is that the Minister of Conservation---any Minister of Conservation of the day---must sign off pursuant to the purposes under the Act that he or she operates, the Conservation Act.
That surely is a very good safeguard. It perhaps is not readily understood. It was not readily understood by myself, I might say.
What Jeanette Fitzsimons might also have said, but did not, was that leaving the whole-of-property covenants there as an option---that is, by not having the words "small and discrete areas''---allows whole-of-property covenants to be put over land that has not been subject to tenure review and that currently, and in the future, is ordinarily just Crown pastoral land. Indeed, it enables someone to put a whole-of-property covenant over land after it has been freeholded, which would offer it additional protection, one assumes, to the protection that it would receive if it were simply freeholded.
The question arises as to whether it is the intention of the Government---and we will, when we get to that stage of the Bill, invite the Minister of Conservation to get to his feet to specify it---to take an owner's prospects of a whole-of-property covenant into account in the negotiation process. That could be quite a problem. Someone whose land comes up for review could say: "We're going to stick a whole-of-property covenant over the freeholded bit.'', and the Government could say: "That's fine. You can therefore have a larger freeholded bit than you might otherwise have had.'' I think that risk still exists. When the time comes we will need the view of the Minister of Conservation, to ascertain whether the Government sees that risk, and if it does see it, what it intends to do about it.
JILL PETTIS (NZ Labour---Whanganui): I am pleased to join the debate this afternoon. First, I acknowledge that this Bill is rather complex. I am sure that word "complex'' will be uttered more than once this afternoon as we proceed through the debate. While the Bill is complex, it is of incredibly long-term importance to New Zealand. It is not just a little Bill that we will debate, then put aside and move on to something else. There are long-term implications contained within this Bill.
As I said in debate in the House a fortnight or so ago, I did not participate in the select committee process. I regret that I was not able to, but we cannot be in three places at once. It has been a very steep learning curve for me. I do not profess for one moment to be an expert on this Bill, but I am certainly pleased to add a small contribution to the debate this afternoon. At this stage I too want to comment briefly about the term "significant inherent value'' in clause 2. The Bill states: " `Significant inherent value', in relation to any land, means inherent value of such importance, nature, quality, or rarity that the land deserves the protection of management under the Reserves Act 1977 or the Conservation Act 1987:''. Jeanette Fitzsimons spoke earlier about these significant values. We need to pay special attention to that term. This Bill refers to huge tracts of land in the South Island. I believe that significant value is attached to all that land, hence the complexity of this debate. The long-term significant value of those particular tracts of land must be accorded at all times, now and into the future. I see nods of acquiescence from members on the other side of the Chamber. Certainly, we will be observing to make sure---and I am sure many people out there from various non-governmental organisations will be watching very, very closely---that that attention is accorded to those lands from now on into the future.
While I acknowledge that considerable consultation and negotiation took place during the lengthy debate over a whole term of Parliament, when this Bill was before the select committee, there still remains some disquiet about some of the trade-offs that had to occur during the negotiation process. I have some concerns that there are some failings still within the Bill. In some respects---
Eric Roy: I raise a point of order, Mr Chairperson. I think we are debating clause 2. We have had an expression from the other side about the importance of actually doing the business. This speech is getting on to other matters in the Bill.
The CHAIRPERSON (Geoff Braybrooke): I listened very carefully to the honourable member. She slips back now and again to clause 2, but she is lengthening it out into what could be generously described on occasions as a second reading speech. I recognise the enthusiasm of the member, but I would be grateful if she could just stick exactly to clause 2, "Interpretation'', for the next 50 seconds.
JILL PETTIS: Thank you for your generosity, Mr Chairperson. I seek the Chairperson's indulgence. Now that there are only 40 seconds left, I will resume my chair and allow somebody else to speak. I will join the debate later on.
Hon. DENIS MARSHALL (NZ National---Rangitikei): I would like to speak briefly to clause 2. Within clause 2, "Interpretation'', there is one particular interpretation that is controversial. The select committee acknowledged that at the time, and dwelt at some length on the issues surrounding it. I refer to the words "inherent value''. "Inherent value'' is the interpretation applied to words in clause14 that deal with discretionary actions.
I have heard comment from Opposition speakers about their disquiet as to whether the decisions made by the committee with regard to values in this legislation give adequate protection to the land. I must say that the farming community that is affected is concerned about the term "inherent value''. When farmers apply for some discretionary action---some consents---the commissioner, in relation to any land, has to take into account: "(a) A cultural, ecological, historical, recreational, or scientific attribute or characteristic of a natural resource in, on, forming part of, or existing by virtue of the conformation of, the land; or (b) A cultural, historical, recreational, or scientific attribute, or characteristic of a historic place on or forming part of the land:''.
That very, very broad range of criteria must be taken into account. In fairness to the Green movement, which has expressed some disquiet, I think it covers all its concerns. I have no doubt at all that every possible attribute has been considered. The farming community has some justification in feeling some disquiet about this particular interpretation of "inherent value''. Nevertheless, the committee gave it its full consideration. It is happy to stick with it. Quite frankly, I do not think we can do any better than the interpretations in clause 2.
Hon. KEN SHIRLEY (Deputy Leader---ACT NZ): It has just been pointed out that the interpretation clause, clause 2, is critical as it relates to clause 14. Contrary to the previous speaker, I believe that the high-country farmers of this country have, indeed, considerable cause for deep concern with the interpretation as it now appears before the Committee. I believe that the Government has rolled over excessively to the influence of an extremely vociferous and narrowly focused Green lobby. The point I would like to make to this Committee is that it comes back to a property-right issue and a stewardship-rights issue.
We all recognise the sensitive and vulnerable---
The CHAIRPERSON (Geoff Braybrooke): Whilst I am absolutely fascinated with the honourable member's speech, we are only on clause 2, "Interpretation''. This is not a second-reading speech. We have to stick to what is in the Bill. There will be plenty of opportunities when we do the Bill part by part for that speech, which most certainly will be in order then. But at the moment I ask the member to speak, as per the Standing Orders, only to clause 2, "Interpretation''.
Hon. KEN SHIRLEY: I was very mindful of that point. I was responding to the previous speaker. He made the point very clearly that the interpretation with regard to significant values has a direct application on clause 14, which we will come to later.
The point is that those high-country farmers---contrary to the member's comment---do have very just cause for grievance. Indeed, I know they are very aggrieved. I have spoken to them as recently as this morning. They continue to be very aggrieved by the way this interpretation has been skewed. Clause 2 is skewing the context of the Bill. It is very important from the outset of this debate, and to the extent we are taking it part by part, that that point is clearly made in the debate.
For generations the high-country farmers have managed those lands---recognising the sensitive and vulnerable nature of the landscape---in a stewardship role. The implication in the interpretation of "Significant inherent value'' is that somehow---and this is the premise of the Green movement---State control and Government control will do it better.
That comes down to a philosophical point, if one believes inherently that State control and Government control will do it better. I do not believe that. I believe people empowered will do it better. The risk we have is the tragedy of the commons. Indeed the existing evidence is that the Department of Conservation cannot manage the existing land it has.
Eric Roy: I raise a point of order, Mr Chairperson. I make the point again that the member has strayed well from clause 2.
The CHAIRPERSON (Geoff Braybrooke): Indeed he has. I was in some hope that the Hon. Ken Shirley would come back to clause 2. He can discuss the matters he has raised in Part 1, and they will most certainly be in order, but until we get to Part 1 as a whole, I must ask him to stick strictly to clause 2, which is one of the few clauses that we will discuss as a clause only. I ask him for the second time to come back and talk about the interpretation. If not, I will have to curtail the member's speech, because if we give licence to one, we have to give it to all.
Hon. KEN SHIRLEY: Clearly the Government members were not enjoying my speech. It is a matter of inherent values. I can only repeat the point that has been made that relates directly to clause 2, "Interpretation'', which creates the framework as it were where subsequent clauses hang and take their effect. We must always refer to what the interpretation is.
I repeat that this Bill has skewed those interpretations, and therefore in any disputes in the future the courts and appeal authorities will look to these interpretations for the guidance of what was the intent and object of this Parliament, and to that extent their findings will be skewed. That is the fear that the high-country farmers have, and it is a very legitimate fear. Overall they support the Bill. They have been waiting a very, very long time for it. It has had a huge gestation period, but right at the outset we must be quite sure that we get---
Eric Roy: I raise a point of order, Mr Chairperson. The member has again strayed from the point.
The CHAIRPERSON (Geoff Braybrooke): There are but a few seconds to go and, to be fair, the Hon. Ken Shirley has been here long enough. He does throw in an occasional word that is quite relevant. I have been extremely lenient up to now. He has only a few seconds to go, and I hope he will just wrap up his contribution on clause 2.
Hon. KEN SHIRLEY: I thank you yet again, Mr Chairperson. It seems that the discomfort of Mr Roy is greater than I thought. I repeat, in case he was not listening, that clause 2, "Interpretation'', is critical. It is the foundation. I signal here that ACT New Zealand is very concerned about the definition and interpretation of inherent value, because it does lay a foundation for how that interpretation will be viewed in the future.
DAMIEN O'CONNOR (NZ Labour---West Coast - Tasman): I am pleased to follow the former member for Tasman who I know is, or certainly was, renowned for his strong support of the green movement in that neck of the woods.
We are dealing with clause 2, which is a very significant part of the Bill as has been stated before. The definitions were thoroughly canvassed. I have to tell the House that we had an ACT member on the committee. The select committee had the benefit of all the ideas from Mr Owen Jennings, so as members can imagine, we canvassed most of these views very widely. He did raise concerns, as did many submitters, about what "significant inherent value'' might mean when it comes to the interpretation through the tenure review process.
But there were a lot of other definitions, as there are here, such as "reviewable instrument''. We discussed at length whether pastoral occupational licences should be included in the review process.
Eric Roy: Go back to clause 2.
DAMIEN O'CONNOR: If Mr Roy looks at clause 2, I think he will find a definition there relating to "reviewable instrument''. What I am trying to do is to explain to the Chamber some of the arguments and issues that were raised in arriving at what I consider is a very balanced clause. "Significant inherent values'', as explained by a number of people, was widely debated, and there are some concerns about that.
What we should note by its omission, rather than by the fact that it is in the Bill, is that there is no definition of "sustainable management''. I think that many people who originally looked at the Bill will say: "That seems bizarre for a Bill that is clearly designed to ensure sustainable management of the high country.'' Well, that is true, but the select committee looked at this issue at length, and we decided that to be consistent in legislation, we had to go back to the Resource Management Act and see what "sustainable management'' referred to and how it was defined in that Act. The committee decided that it was not appropriate to use "sustainable management'' as a clause or a term in this Bill, or in fact as an objective. We went further than that and defined it very, very clearly. The objective of the Bill now in our words is: "To promote the management of reviewable land in a way that is ecologically sustainable.'' That is quite different, and in fact is a compromise from either end of the spectrum. We believe that it does take into consideration the views and wishes of the farmers and the conservation movement.
After all, this Bill is about ensuring the protection of the high country, and at all times, in every one of the definitions in clause 2, we were very aware that we had to appease the views and certainly come up with a reasonable compromise.
I would just like to finish on that note and say that the Bill is not lacking by its omission of sustainable management as an interpretation. We have dealt with that appropriately, and members will find during further debate on this Bill that we will explain that we believe we have come up with the best solution.
RUTH DYSON (NZ Labour): Like some of my colleagues who have spoken, I had the pleasure of sitting for a little while during the considerable deliberations on this Bill. Although a number of the National Party members have said: "This has taken such a long time, therefore we should try to ram it through the House tonight at the earliest possible opportunity.'', I do not feel like that about a Bill that is primarily quite divisive in some parts. Although there have been attempts at a number of compromises, I do not mind that. I think it is much better to spend longer and take more time on the exact wording of a document and try to get better agreement, rather than having constant win-lose situations. I am not sure that the interpretations in the clause we are currently discussing have reached that stage.
I would like to ask the Minister some specific questions because I do not understand why there is such a lot of difference between the old clause 2 that was struck out, and the new clause 2. There are a number of areas of interpretation that are significantly different so I wonder whether the Minister would mind taking a call to explain that. I am sure it is pretty obvious to him, but I regret that it is not obvious to me. For example, why is the Land Act not referred to at all in new clause 2, "Interpretation'', whereas it was quite specifically mentioned as "the former Act'' in the earlier interpretation clause? I do not quite understand how one can have reference to "the Land Act 1948'' but then not put in the interpretation of clause 2.
I also assume that "grass'' is still given the ordinary interpretation, unless we have some Northland variation on its meaning. In the original clause 2, "Interpretation'', "grass'' included clover and lucerne, but it is not included in the new interpretation clause, so that is a bit of a puzzle to me as well. "Pastoral lease'' has a different interpretation. It is called "pastoral land'' rather than "pastoral lease''. "Pastoral lease'' does not have an interpretation at all under the new clause 2. The definition of easement under "protective mechanism'' has quite a number of omissions. If that was agreed to by the committee and is an improvement, then that is good. But I think when we are looking at progressing the debate on the Bill the least we can do is try to get some clarity about the interpretation, and I certainly do not have that at the moment.
There are a couple of other areas that are quite significantly different, and I do hope that the Minister is able to assist with his view on why those were changed. "Removable improvement'' is another area that was quite specifically outlined in the original clause 2, relating to an occupation licence meaning a building, an enclosure, fencing etc., but the new clause has no such interpretation at all.
The final point I want to make is that if we cannot get understanding of and agreement on the interpretation of the Bill, then it is unlikely that the rest of it will progress either with great speed or with the sort of understanding and support that this type of Bill needs.
It should not be seen, as Mr Shirley indicated, as a win for one sector. What we would like to do is ensure that the values that New Zealanders hold for the sustainable management of our lands are reflected in all our legislation. It does not seem to me that the select committee has been able to get that understanding and support. It is not reflected as clearly as I would like to see in the interpretation, and I certainly hope that the Minister takes his only opportunity for a call on the interpretation part of this debate to clarify those few specific points for me.
Hon. Dr MICHAEL CULLEN (Deputy Leader---NZ Labour): Clause 2 is a very interesting clause because it shows first of all that the Bill has been changed enormously from the Bill that came into the House, went to the select committee, and has now come back from the select committee. The original interpretation clause is just over a page long. The new clause is something over 5 pages long. Nearly everything that is in the new interpretation clause is not in the original interpretation clause, and nearly everything that is in the original interpretation clause does not appear in the new interpretation clause.
The original clause included the most extraordinary phrase: "the former Act'', referring to an Act that remained in force and was referred to on a number of occasions throughout the Bill itself. I have no idea what was meant by the term "the former Act'' when that was drafted in the original Bill. It clearly was not the former Act; it was the principal Act, in effect, at that point.
Eric Roy: That's why we changed it.
Hon. Dr MICHAEL CULLEN: Indeed. I come to some interesting questions that I want to raise with the Minister. I am grateful that the Minister has the capacity---I hope he does---to answer those questions in relation to some cross-fertilisation with other areas of conservation. I note that in the definitions of "cultivation'' and "improvement'', there is some degree of overlap and potential confusion. The definition of "cultivation'' includes drainage and felling bush. The definition of "improvement'' includes draining and clearing bush.
I do not pretend to be an expert in matters agricultural, but I am unclear about the difference between felling bush and clearing it. I assume that I would not normally fell bush as part of cultivation and just leave it there. One would normally be clearing the bush off the land. Presumably cultivation and improvement have different meanings somewhere within the Bill. It seems to me that the definitions include things that are extraordinarily similar in that regard. I think that common language usage would tend to regard felling bush and clearing it as being much the same thing.
In so far as draining and drainage are different, I would have thought that drainage was an improvement of a permanent character, and that draining was a form of cultivation. Draining is something that we do and is not something that is of a permanent character. Drainage is something that is of a permanent character. It is the thing that the draining occurs within---if I might suggest the normal use of the English language yet again. In so far as there is a difference, it seems to me that the meanings are reversed. "Improvement'' ought to include drainage, and "cultivation'' ought to include draining, not the other way round.
So I raise those matters, and I also raise the wisdom of having a very long list of specific improvements, including the rather strange phrase: "clearing of broom, bush, gorse, scrub or sweetbriar;''. There are three specific forms of plants mentioned---broom, gorse, and sweetbriar---and two generic references mentioned---bush and scrub.
There is a fundamental rule of law that once we start listing things, it can be questioned whether if we have not included something, it is covered. I really wonder whether it is wise to go beyond stating "substantial improvement of a permanent character;'' and then to get into a very long and specific list, including water tanks, sheep dips, and other things. Will the committee be satisfied that all possibilities are included in that list, because if---
Pete Hodgson: Like horse races.
Hon. Dr MICHAEL CULLEN: Like horse races, etc. Other things should perhaps be in there that may have been left out. Are they meant to be included under the definition of the term "improvement''? A very strong legal case can be made that if they are not in there, then a court may rule that they are not meant to be there by the intention of Parliament. If they are clearly akin to something like a water tank or a sheep dip, but are not listed---
Eric Roy: Read (a), under "improvement''.
Hon. Dr MICHAEL CULLEN: Yes, I know, but the problem is that once we start listing, there is a rule of law in that regard. I remind the member of that.
I think that probably Jeanette Fitzsimons and I would have some doubt about whether a reclamation from a swamp should always be regarded as an improvement. It is not true that reclamations from swamps should always be regarded as an improvement---
Pete Hodgson: It's not a reclamation; it's a "clamation''.
Hon. Dr MICHAEL CULLEN: Indeed. As the member quite rightly said, it is a "clamation'' in one sense or another. I also finally ask the Minister whether he is satisfied that the definitions of terms like "ecosystem'', "inherent value'', etc., are consistent with the definitions of the same terms used in other conservation-related legislation. If they are not, then it seems to me we have a difficulty in using language in one Bill that is different from that in another Bill when we are covering essentially the same matters for inclusion within the legislation.
The final point I would like to raise is that while I like to see legislation that avoids repetition, it does seem to me that to use the term "pastoral land'' when one means "Crown pastoral land'', creates confusion. It might be better, instead of altering the term in the definitions clause, to keep using the term "Crown pastoral land'' throughout the legislation. To read the Bill and to find the term "pastoral land'' being used in a very general sense, so that one has to keep referring back to that small definitions clause, seems to me to create confusion.
Taking the definition of "reviewable land'', I see that it means land that "(a) Is held under a reviewable instrument; or (b) Is pastoral land not for the time being held under a reviewable instrument.'' When I read it I thought it could not possibly mean that all pastoral land not held under a reviewable instrument was covered by this Bill. An awful lot of pastoral land in this country is not Crown pastoral land. "Pastoral land'' has a very broad, general meaning in agricultural practice. It did seem to me, when reading the Bill, that there were difficulties in that regard.
I come back to the two things that worried me the most, which were whether definitions that were being used were consistent with definitions applied in other related statutes that had the same purpose---if one likes---or covered the same kind of lands and usages. Secondly, I was worried whether particularly the definitions of "cultivation'' and "improvement'' contained some potentially inherent contradictions that might cause difficulty further down the track.
Hon. NICK SMITH (Minister of Conservation): I just want to respond quickly to the points that were raised by Mr Michael Cullen with regard to the issue of definitions. Firstly, on the issue of the definition of "cultivation'', I say that that is a subset of "improvement''. If the member looks under the definition of "improvement'' he will see that cultivation is a subset of that definition. So it is not surprising that there are elements of the definition of "cultivation'' that are repeated within the definition of "improvement''.
The first point that I would make to the member is that the select committee was unanimous in its recommendations in relation to the changes in these definitions, and I suggest that if he really is serious about wanting to make changes and having concerns about it, he should discuss it with his Labour colleagues who were on the select committee. His caucus colleagues agreed that the proposition for the definitions of these matters was quite appropriate.
Secondly, I point out that this is an amendment to the Land Act of 1948, and it is important that there be some consistency. I think that in relation to the definitions of both "cultivation'' and "improvement'', while we might be able to have some argy-bargy about why they might be defined in this way or that way, the simplest thing in terms of continuation of pastoral leases is that those definitions should substantially be maintained. That is the approach that has been taken by the select committee, and I think it is wise to do so.
JILL WHITE (NZ Labour): It is interesting to hear the Minister's comments on "cultivation'' being a subset of "improvement''---I think that was his explanation. I am not totally sure that that makes it any clearer, but it is useful. What I have found difficult about the Minister's response was his saying that the members of the select committee were unanimous in their findings and that we should talk to our own caucus committee members and everything would be then all right. I thought that that was a totally inadequate response from the Minister.
Of course we can talk to our caucus colleagues, but the Committee stage plays a really important role in any Bill that is being debated. It is at that stage that questions can be asked, and then, hopefully, clarified by the ministerial response. That then becomes part of the written record in relation to this Bill. I would be very reluctant for members to take on any idea that just because something was unanimously agreed to in the select committee, it could not then be questioned during the Committee stage. That would be a dreadful disregard of due process. That is the first point I wished to make in relation to this matter.
I have some questions to ask the Minister as well, and I certainly hope he will not turn around and say to me that I should ask my own caucus colleagues. I want these questions to be part of the record, and I would hope the Minister would give some due considered response to them.
I wish to raise some points in relation to the interpretation of "inherent value'' and the lack of interpretation of sustainable management. First, in relation to "inherent value'' I ask whether this interpretation is used anywhere else. Looking at the parts that have been struck out or have been recommended to be struck out by the select committee, it appears that this is part of the Bill that was significantly changed. In the original Bill, "inherent values'' means "(a) Its natural resources (within the meaning of the Conservation Act 1987); and (b) Its recreational, cultural, and historical values:''.
That has been considerably changed in the recommendation from the select committee. In new clause 2 it is stated: '` `Inherent value', in relation to any land, means a value arising from---(a) A cultural, ecological, historical, recreational, or scientific attribute or characteristic of a natural resource in, on, forming part of, or existing by virtue of the conformation of, the land; or ...'' . It goes on to (b), but I am not going to read any more. I think I have read enough to illustrate that there are considerable differences between that which has been struck out and that which is recommended to be incorporated into the Bill.
What interests me here is that the explanatory note states that the term "inherent values'' is quite different from "intrinsic values''. The term "inherent values'' is like the word "amenity''. It is an expression that everybody knows what it means to them, but that people find it incredibly difficult to explain, particularly when writing it down. One of the important things about a term like "inherent value'' or "amenity value'' is that what is excluded is as important as what is included in the definition. I would like the Minister to give due consideration to that point and to respond to it.
We come to the question of another term, "sustainable management'', that is used---or perhaps it is more correct to say it has not been used, because the wording in the original Bill in relation to this term has been changed. Clause 20(a) now states: "(i) Promote the management of reviewable land in a way that is ecologically sustainable:''. I cannot find any interpretation of "ecologically sustainable'' in this interpretation. Does the Minister believe that this creates problems down the track? This is an issue I think he should be prepared to respond to.
DAVID CARTER (Junior Whip---NZ National): I move, That the question be now put.
A party vote was called for on the question, That the question be now put.
Ayes 70
New Zealand National 44;
New Zealand First 17;
ACT New Zealand 7; United New Zealand 1; Independent 1.
Noes 49
Labour 37;
Alliance 12.
Majority for: 21
Motion agreed to.
Clause 2 agreed to.
New clause 2A. Act binds the Crown
The CHAIRPERSON (Geoff Braybrooke) put the question that the amendment set out on Supplementary Order Paper 88 in the name of Hon. John Luxton be agreed to.
New clause 2A agreed to.
Part 1. Pastoral Leases and Occupation Licences
PETE HODGSON (NZ Labour---Dunedin North): I want to turn straight to clause 14---others will talk on the earlier clauses---because I want to pick up the debate about "inherent'' versus "intrinsic''. We have already heard in this House from Denis Marshall that the farming fraternity is concerned about the use of the word "inherent''. We have heard from others that people who have a concern for environmental matters are also concerned about the use of "inherent'', because it is not intrinsic.
We have heard from the deputy leader of the Labour Party Michael Cullen, that if we use words that are similar but different there will be a lot of confusion. Michael Cullen asked whether the word "inherent'' had the same meaning as it does in other legislation, or whether there were different ways of describing things.
The word "inherent'' does not appear in the Resource Management Act---probably the best Act of its nature---but the word "intrinsic'' does. It is defined, and the definition is related strictly to ecosystems, or aspects of ecosystems. So it is a flora and fauna, air, water and soil type definition, and that is all, whereas inherent values include values of history, recreation, culture, and Uncle Tom Cobbleigh. So it is a much broader definition, yet it includes the flora and fauna type definitions.
The scene is now set for a debate of mammoth proportions, because those from an environmental perspective will say: "Inherent values are being applied to the flora and fauna of the land.'' No Parliament in its right mind would, in the same decade, pass one set of protections for one lot of flora and fauna defined by "intrinsic'' values, and then later apply another set of protections that are defined as "inherent'' values. The environmental lobby would argue, therefore, that there would need to be some similarity between the current use of the intrinsic values clause in the Resource Management Act and it being pushed across and used in the Crown pastoral lease legislation.
The runholders would say: "That'll be the day. That means you are going to accord some member of our flora and fauna that might be endangered, or similar, the same level of protection that is accorded a gold mine. That is bizarre.'' And so it is. The way around it is to distinguish between inherent and intrinsic. The place to do it is in clause 14. The way to do it is to change the word "inherent'' where it appears for the second time in paragraph (a) of clause 14(2) to the word "intrinsic''. That would get us around the problem, from both sides.
We would have a cascade, admittedly of only two levels, of protection. We would protect the intrinsic values of the flora and fauna and the inherent values of other things, such as the land itself other than its recreational value.
I remind the Minister what the definition of "inherent values'' includes. It is all the cultural, ecological, historical, recreational, and scientific attributes or characteristics. I am simply saying that the word "ecological'' be taken out and the word "intrinsic'' ascribed so that it is consistent with the Resource Management Act. It will give the landholders the view that something that is part of the natural flora and fauna will be accorded a higher level of protection but, equally, something that is not part of that will be accorded a lower level of protection.
It would be inferred, I think, that intrinsic values would have a higher test placed on them than inherent values. If that differentiation is not made, then there will be a running debate. I think that is serious, indeed.
The other point I want to make about clause 14 is this: if clause 14 proves anything, it is that we must get on with high-country tenure review. If members do not mind me being blunt, a large part of this is to do with burning tussock, which has been a discretionary activity for some time the scientific debate on which has raged for about 110 years. We are now writing into our law that the commissioner must, on the one hand, take into account the desirability of protecting inherent values and, on the other hand, the desirability of "making it easier to use the land for farming''.
What is a commissioner to do with that? What is the commissioner to do when being told on the one hand to allow it so the land can be farmed, and on the other hand disallow it so that inherent values can be protected? It really is a muddle. It really is a dollar each way. It is the opposite of the Resource Management Act, in which a series of things were set out as being matters of national importance, then other matters of importance were listed, and so on. Instead of having a hierarchy, we have a balancing act that no reasonable person can meet.
So we must get on and do the sorting out of what can be burnt and what cannot, by changing the ownership on the one hand from leasehold to Crown ownership in the Department of Conservation, and on the other hand from leasehold to private ownership. The nonsense in clause 14 can then be done away with, with the passage of history.
There is one other matter. Nothing in this Bill, now or in the future, renders tenure review compulsory. If the runholder cannot strike a deal, the runholder has nothing with which he or she may trade and no trade will take place. That means we are likely to end up with this muddle in the middle for many decades to come.
I am sorry that the select committee has seen fit not to put an end date on this, maybe 20 years hence, so that between now and then everyone had to go through that review process, and, if they did not, they would be compulsorily reviewed. I am sorry that has not happened. It seems to me that we will need to revisit it.
JEANETTE FITZSIMONS (The Alliance): I draw the attention of the Committee to what clauses 5, 6, and 7 do to the rents paid by high-country lessees to the Crown---that is, nothing. Ever since Crown pastoral tenure was established, extremely concessionary rents have been paid by these leaseholders for Crown lands. Once upon a time that was normal across a huge range of activities in New Zealand that were seen as contributing to the economy and to the public good.
Times have changed. State house tenants now pay market rents, and in some cases higher than market rents, across the board. They were not even given a transition time. It was simply dumped on them. The Crown does not now normally subsidise farming or any other economic activity. The rents paid for the pastoral leases are the last great State subsidy to farmers---to a group of people who generically in New Zealand pride themselves on not needing subsidies any longer.
This Bill was the opportunity to do something about that, without taking away any rights that the leaseholders hold under the Land Act. That Act provides for regular rent reviews. This was an opportunity, gradually, over time, with notice, and at the provided-for review period, to bring those rents into line with the market rents that everybody else in New Zealand is expected to pay. It does not do that. I remind the House that the Land Act does not give lessees perpetual rights to low rents. It gives them perpetual rights to renewable leases, but not to the peppercorn rents they have been paying. This Bill cements in place those highly concessionary rents and the farming practices that go with them.
I would like to know where the ACT perk-busters are on this issue, given that they oppose State subsidies to anybody else for anything else. I have not heard ACT members talking about the extremely poor deal the Crown gets out of the rents paid for its land. They do not even amount to enough to cover the administration costs, which of course is the main reason that the Crown---[Interruption] That is the issue. If the Crown is losing money on rents and the farmers are losing money on farming, we really have to ask whether this is a sustainable business activity. That is precisely what the Martin report and many others have asked.
Hon. Ken Shirley: Unpaid stewards.
JEANETTE FITZSIMONS: The member says they are unpaid stewards. I have walked across Crown pastoral leasehold land that is nothing but bare dirt and Hieracium.
Hon. Ken Shirley: That's because of the Department of Conservation rabbits from next door.
JEANETTE FITZSIMONS: Department of Conservation land is a long way away from the land I have walked on, which is bare dirt and Hieracium. The rabbit problem and the Hieracium problem are largely a result of bad land management. That is what people have been trying to correct for a long time.
I do not think it is reasonable that only large landholders in the South Island be exempt from the need to pay market rents, which have now caught lessees in Taranaki. If it is Maori land the rent has gone up. If it is Crown land the rent has not gone up. I think it is unfortunate that we did not take the opportunity to bring that into line with other lessees in New Zealand.
DAMIEN O'CONNOR (NZ Labour---West Coast - Tasman): Jeannette Fitzsimons does raise a very interesting issue. While I was not on the committee for all the time that submissions were heard, it is a glaring omission from the Bill. Perhaps the Minister can take a call and explain to us why we do not have reasonable rent reviews in this process.
I believe that farmers do not want to be the beneficiaries of subsidies any longer. I am sure they are very happy to front up with a realistic rental amount on their leases. But I do say from the select committee's perspective that the objective of our process was to encourage and to facilitate the ongoing tenure review process. I think the existing situation is unsuitable. We were trying to ensure that the goodwill remained in the process, that the Crown would regain control of appropriate land, and that freehold could take the place of the land that was clearly best utilised for production.
None the less, if the pastoral leases are to continue until the tenure review process is completed, it is only fair that those farmers should pay a reasonable rental on this land. Those lessees on Maori land are having to face that reality. I believe that the high-country lessees should also do that. I am sure that the Minister can get some advice and perhaps explain why we did overlook that; and maybe the chair of the committee would like to explain to us why that has been so.
I will just go through the clauses. We are debating this in a part by part way, and I think it is important that we go through it systematically. I go back to clause 3. What was attempted here through the select committee process was a determination that the Crown or its agents should set the stocking limitations on this land. That is a very, very difficult thing to do. Our conclusion in the Bill as it is now basically states that there should be some control over levels without setting specified limits in legislation.
The commissioner, hopefully, will have all the wisdom, knowledge, and expertise to set reasonable stocking levels that will protect the environment, make for sustainable farming, and make it viable for people to go on and manage the land in a profitable and sustainable way in terms of environmental values.
Clause 8 is another clause that a few issues arose around. This is a new provision that makes it clear that expired pastoral leases can be renewed only if at the time of the expiry the commissioner and the lessee have agreed that the lease be renewed. There is no obligation on the Crown to renew the leases. It has to be in agreement. That is in keeping with the spirit of the Bill, and I think we have moved a long way. It is effectively removing the right of perpetuity, and hopefully encouraging tenure review that will put the land in the appropriate allocations.
We go on to pastoral occupation licences in clauses 10 and 11. There was great debate about whether these should continue. In conclusion, I believe that we said they are a useful tool in the ongoing process of tenure review; that to wipe them out, as some of the conservation and recreational groups wanted to do, would have been very unfair. It would have left some problems in how the land, in limbo, if one likes, should be managed. Should it be for utilisation by farmers or by anyone else who had a better idea for that land, or should they be renewed and then the decision made either to freehold or to place that land in the conservation estate?
ERIC ROY (NZ National): I pick up a couple of the points that have been made in the debate on this part to date. The first one relates to the points made by Mr Pete Hodgson with regard to inherent versus intrinsic. It should be recorded here that ''inherent'' refers to the Crown's ownership of aspects. It is not pertinent to make comparisons to the Resource Management Act when we are talking about the impact of discharge of air and water, or whatever, and the impact that would have on the intrinsic values of the environment. They are two succinctly different things. I do not believe that we are releasing a debate at all in the future because it is distinctly different in that respect.
This is simply a method of identifying the inherent values, the Crown's ownership---quite specifically spelt out in the interpretation clause---that we spent about an hour debating just a little earlier. That is the first point.
The second point is the one just raised by Jeanette Fitzsimons with regard to the select committee, or the Bill, overlooking the prerogative of sorting out a market value rental. I have to say firstly that is outside the scope of the Bill. This is simply a means of facilitating a tenure review.
I will just make these comments as well. The member might well say: '`Yes, it fits in the broad gambit.'' But I do not know that market back-rentals are not being paid, and the member may have some evidence to suggest that. Can I just point out to the Committee that a substantial proportion of these properties are for sale in the South Island, and at least a third of them are for sale for a sum that is probably less, in many cases substantially less, than the capital value of those particular properties. I think there is a fairly justifiable case to argue, that these runholders are paying a market rental. The fact that no buyers can be found for the properties, I think, proves the point that they are actually paying a market rental. Otherwise, if this was some golden opportunity there would be a rush of people in there to purchase them. I do not accept the premise that they are paying less than market rental.
It is very easy to be a wee bit frank at this stage and say these people are getting some kind of subsidy through that. The truth of the matter is that a number of these runholders are seeking to exit and there is an absence of people wanting to purchase. I say to that member that would indicate to me that maybe more than market value is being paid in terms of a rental.
It is a harsh environment. It is a difficult environment. It has a number of requirements that are quite difficult to manage in terms of public access and a whole range of environmental issues, which substantially impact upon the ability to generate capital. So therefore it may well be a case that the actual rental that is being struck is substantially beyond the market value, if one takes into consideration all of the issues that surround that particular setting of rentals and the viability of those enterprises.
Hon. KEN SHIRLEY (Deputy Leader---ACT NZ): Could I commence by substantially agreeing with the previous member. I think he made some very good points there. The market has clearly determined the fact that there are people who would like to quit those licences, and that there are no takers does spell it out. To that extent I think it can be said that some of those South Island high-country farmers are at the moment unpaid stewards of the land. We can debate the degree of stewardship but to a large extent they are performing that role.
As I outlined in the earlier debate on clause 2. '`Interpretation'', ACT New Zealand has deep concern with clause 14. We know that the Land Act required the pastoral lessee to obtain the commissioner's consent prior to undertaking certain land-use activity, such as burning and soil disturbance. Under the Land Act the commissioner, when exercising his discretion to grant such consent, could take into account only water and soil values and matters of good husbandry.
Apart from these issues of discretionary consent, the pastoral lessees had the exclusive right of pasturage. Clause 14 of the Bill before us requires the commissioner to take into account the desirability of protecting inherent values---that is, conservation values---when exercising a discretionary consent. That alters the terms of those pastoral leases and to that extent it is intruding on prevailing property rights. It should be of concern to this House when the Crown uses its might to intrude and prevail and change existing property rights.
But the real issue is this. An attempt has been made in the drafting of clause 14. It has taken a number of years and a lot of effort to strike this balance. We have subclause (a) and subclause (b). We find that clause 14(2)(a) is quite clear with regard to the conservation values. It states: '`(a) The desirability of protecting the inherent values of the land concerned (other than attributes and characteristics of a recreational value only), and in particular the inherent values of indigenous plants and animals, and natural ecosystems and landscapes;''.
Subclause (b) introduces balance in respect of farmers' rights, and states: '`(b) The desirability of making it easier to use the land concerned for farming purposes.'', but it is hopelessly inadequate and hopelessly skewed. It is a very, very inadequate subclause. Subclause (a) is clearly worded but unfortunately the balancing clause, subclause (b), which is intended to protect farmers' interests, is poorly worded. I have to ask whether that is deliberately so.
Is the Minister using the great footprint of the State to skew the scrum? It also misses the point. This is not about ease of use of the land but rather about achieving sustainable management and better utilising the full productive value of the land.
To that extent I have tabled an amendment that essentially strikes out subclause (b) of clause 14(2) and substitutes the following subclause: '`(b) The desirability of the lessee or licensee of the land concerned achieving sustainable management of all of the land of the lessee or licensee and in a manner which realises the productive value of the land concerned for farming purposes.''
That wording would spell it out quite clearly. It would ensure that we have the balance that was intended and was sought. But if we leave the clause unchanged then clearly the scrum is skewed. The farmers of the South Island high country could be very aggrieved if we do not adopt the amendment that I have tabled. That is my urging of the Committee of the whole House.
JILL PETTIS (NZ Labour---Whanganui): I want to talk about clauses 5 to 7, which relate to rentals payable. Given the rather significant increase---and some may say major increase---in rights accorded to lessees, I find it rather surprising that the rental does not automatically rise also. I mention this because I think it signifies a certain inconsistency in the Government's policy in relation to other policies that impact upon the social conditions of all New Zealanders---whether they are lessees of Crown pastoral land or live in urban areas.
The points raised by other speakers about the level of rentals paid are quite significant, and, therefore, these clauses are worthy of debate.
If the market determines the setting of State house rents why is that principle not applied to the Bill? I feel a personal involvement in this, given that my own Bill to bring social responsibility into housing was voted down. Yet we have another sector of our broader New Zealand community---
The CHAIRPERSON (Geoff Braybrooke): I am sorry to interrupt the honourable member. Could we please stop all this discussion in the centre of the chamber. It is like Piccadilly Circus on a half-pay night. I want to listen to the honourable member, and not hear the hum of conversation of other members. If they wish to have a discussion they should please go out to the lobbies.
JILL PETTIS (NZ Labour---Whanganui): I look forward to the Minister responding to issues about rentals payable that were raised by other members. If the Government is so determined to take subsidies away from everything else, why does it continue to subsidise the 340-odd remaining pastoral leases? Surely, consistency alone requires that these peppercorn rentals of one-third to one-quarter of Department of Conservation and other market rentals be substantially increased, given that current rentals average only about 40c per hectare.
I listened to and acknowledge the argument put forward by Mr Shirley from the ACT party, that the land is so marginal that 40c per hectare is all that the market would attract. I have to say that this is a huge inconsistency to the ACT party's normal position on things to do with the economy, because subsidies are anathema to those who are so far right of the political spectrum that they make Genghis Khan look like a liberal! I am particularly keen to hear what Mr Shirley has to say about that. I know that we cannot request that the ACT party answer questions but I would be interested in hearing what he has to say.
I do know that the land is particularly fragile in the area of New Zealand we are discussing, because I have visited it and I have a visit planned in the next fortnight to go and look at the high country of the South Island.
Given the poor nature of the land, and the fact that lessees do have to hold huge tracts of land to try to make what is sometimes a very poor living out of the land, one has to ask whether this land should be farmed in the first place. I suspect that farming is not the best use of this land, given that when I visited the Mackenzie Country earlier this year it was indeed grey. It was not green; it was grey. So in the long-term interests of New Zealand---
Hon. Ken Shirley: So is the Hawke's Bay.
JILL PETTIS: I say in response to the ACT member that the land in the Hawke's Bay is grey for only 2 or 3 months of the year. The land we are talking about is grey for the vast majority of the year. So in the broader long-term interests of New Zealand one has to ask whether farming is the best use of this land.
I now refer to clause 14, which is a very topical clause.
JEANETTE FITZSIMONS (The Alliance): There is no doubt that clause 14 is the most contentious clause in Part 1, and I would like to reply to some of the things that Ken Shirley said a few minutes ago.
The property rights of the Crown, which owns the land, and the lessees who lease it are absolutely clear under the Land Act. The Crown retains ownership of the land; the lessee leases the right to pasture animals on the vegetation. It is clear under the Land Act that the lessee had to apply for permission to do anything other than that---and there are a long list of activities that require permission. So for the Crown to take into account in the 1990s some values that were not widely recognised in the 1940s, when deciding how to exercise its ownership rights and what things it will give permission for, clearly does not reduce the statutory rights of the lessees at all. The Crown is absolutely within its rights to decide that in the 1990s it is appropriate to take into account the conservation values of the land, even though those things were not widely considered in the 1940s.
The Martin report has made it clear that the sustainability of this land is very much in question. The Land Act allowed the question of soil and water to be taken into account, but not the inherent values of living organisms and conservation values. The intention of clause 14 clearly is to extend the matters that the Commissioner of Crown Lands could consider when granting those consents. Given what the Martin report found about the degradation of much of this country, in my view ecological sustainability and the damage to conservation values should have been the bottom line when the commissioner gave his consent. The problem is not that the balance is skewed. The problem is that it is not skewed and it ought to be skewed. In fact, the ecological bottom line ought to come before the convenience of the farmer; otherwise, there will be nothing to farm in the long term. But the clause does not set an ecological bottom line or a conservation bottom line. It requires the commissioner to balance the conservation values against making it easier to use the land for farming. The commissioner will have a very difficult job to implement this clause. I believe that there should have been a hierarchy in clause 14, and I am sorry that there is not.
I remind the House that in terms of the arguments that sometimes take place between the values of farmers or of productive industry of whatever kind, and the values that conservationists put forward, we are not talking about balancing the views, the preferences, and the rights of environmentalists against the views, the preferences, and the rights of farmers; we are actually talking about the survival of the land itself, of the conservation values of that land, and of species that we hope will be there in the long term. It is not a balancing of one section of society against another section of society. It is a balancing of the long-term productivity and biodiversity of our land against the desire of a group of people, right now, at this moment in time, to make some money. That is fine, except they have to do it within the conditions that should be set.
Hon. NICK SMITH (Minister of Conservation): I want to respond briefly to some of the more intelligent contributions that have been made in the Committee stage.
Firstly, I want to respond to the point raised by Mr Pete Hodgson in relation to clause 14 about whether '`inherent value'' or '`intrinsic value'' is better terminology for describing those things. It is not just a matter of words; it is a matter of consistency of legislation. Within the Resource Management Act the term '`intrinsic value'' is used. The member argued that the word '`intrinsic'' might better describe what is desired in clause 14. The difficulty is that the provisions that are required in terms of the balancing act actually extend beyond things that are intrinsic. We have two choices: either to have an inadequate definition for the purposes of this legislation, or, alternatively, to have one definition of '`intrinsic'' in the Resource Management Act and a different definition of '`intrinsic' in this legislation. The Primary Production Committee quite correctly decided that while '`intrinsic'' might be the more appropriate word, the easier thing to do to avoid that conflict was to use the term '`inherent''. I think that is a sensible approach.
It has been interesting to note the debate between the Alliance and the ACT party on the principle of property rights. On the one hand we have the ACT party beating the drum as though the property rights of the pastoral leaseholder are absolute, and ignoring the fact that the land is still Crown owned. Yes, the pastoral leaseholder has a perpetual right, and that needs to be recognised, but the land remains Crown land. On the other hand, and to the other extreme---and that perhaps is not surprising, when people are sticking to their positions philosophically---Alliance members overlook that very real right that the pastoral leaseholder has, and want to skew the provisions in clause 14 so far in favour of the Crown that I think one could run a legitimate argument that the Crown was taking away particular rights from that pastoral leaseholder without compensation. Clause 14 attempts to strike that balance.
It is somewhat ironic that when I first got to know the ACT member Ken Shirley in politics he had long hair and he was a radical '`greenie''. He has come a very, very long way and has converted to the other end of the extreme. Perhaps it is age or something that has changed Mr Shirley's perspective on life, but he is a long way from his days at university in terms of being green and having long hair. Mr Shirley has an amendment that he thinks will provide better balance in clause 14(2).
Clause 14(2) tries to provide the Commissioner of Crown Lands with some guidance from Parliament in trying to weigh up the ecological values of this land and the need to protect it, with the legitimate right of the pastoral leaseholder to get on with his or her business of farming. I think the balance that has been struck is pretty good. Effectively, it states that if activities on the land enable the land to be easily used for farming purposes, and do not compromise the ecological values, then that is fine. But if they do compromise them, then we get into the weighing exercise.
I am doubtful that the amendment put forward by the ACT member takes the farmers' case forward a whole lot. While new clause 14 clearly sets out that it is about weighing up protection vis-a-vis use as a farm, the amendment in the name of Mr Shirley starts winding into the whole principle of sustainable management. I think it takes the balance away. It makes the case for the farmer harder, in that rather than being quite explicit---farm use versus ecological protection---he starts watering down farm use with some principles of sustainable management. I think that is unnecessary, confusing, does nothing for farmers, and adds only further uncertainty. It is true that clause 14 provides something of a balance for the Commissioner of Crown Lands, but I think it is better to be quite explicit about the two factors that he needs to balance, rather than confuse the issue with the very wordy version proposed by the member.
It is equally so with the debate about the payment of rentals. Some members have said, hang on a moment, these farmers are the same as a State house tenant. The point not recognised by Opposition members is that these farmers have a perpetual right under specific provisions currently covered in the Land Act. One starts to draw a very difficult picture when one starts messing around with the rental arrangements of somebody who has a perpetual right. A State house tenant does not have a perpetual right, nor do we provide a subsidy to the farmers paying this rent in the same way that we do for State house tenants through the accommodation supplement. Again, in terms of the balance that is provided, the ACT party says that we are being far too tough, and the Alliance and Labour say that we are being far too soft. I believe that the Bill currently before the House provides a fair balance in terms of the interests of the Crown and the interests of the pastoral leaseholders.
Hon. NICK SMITH (Minister of Conservation): I want to respond briefly to some of the more intelligent contributions that have been made in the Committee stage.
Firstly, I want to respond to the point raised by Mr Pete Hodgson in relation to clause 14 about whether '`inherent value'' or '`intrinsic value'' is better terminology for describing those things. It is not just a matter of words; it is a matter of consistency of legislation. Within the Resource Management Act the term '`intrinsic value'' is used. The member argued that the word '`intrinsic'' might better describe what is desired in clause 14. The difficulty is that the provisions that are required in terms of the balancing act actually extend beyond things that are intrinsic. We have two choices: either to have an inadequate definition for the purposes of this legislation, or, alternatively, to have one definition of '`intrinsic'' in the Resource Management Act and a different definition of '`intrinsic' in this legislation. The Primary Production Committee quite correctly decided that while '`intrinsic'' might be the more appropriate word, the easier thing to do to avoid that conflict was to use the term '`inherent''. I think that is a sensible approach.
It has been interesting to note the debate between the Alliance and the ACT party on the principle of property rights. On the one hand we have the ACT party beating the drum as though the property rights of the pastoral leaseholder are absolute, and ignoring the fact that the land is still Crown owned. Yes, the pastoral leaseholder has a perpetual right, and that needs to be recognised, but the land remains Crown land. On the other hand, and to the other extreme---and that perhaps is not surprising, when people are sticking to their positions philosophically---Alliance members overlook that very real right that the pastoral leaseholder has, and want to skew the provisions in clause 14 so far in favour of the Crown that I think one could run a legitimate argument that the Crown was taking away particular rights from that pastoral leaseholder without compensation. Clause 14 attempts to strike that balance.
It is somewhat ironic that when I first got to know the ACT member Ken Shirley in politics he had long hair and he was a radical '`greenie''. He has come a very, very long way and has converted to the other end of the extreme. Perhaps it is age or something that has changed Mr Shirley's perspective on life, but he is a long way from his days at university in terms of being green and having long hair. Mr Shirley has an amendment that he thinks will provide better balance in clause 14(2).
Clause 14(2) tries to provide the Commissioner of Crown Lands with some guidance from Parliament in trying to weigh up the ecological values of this land and the need to protect it, with the legitimate right of the pastoral leaseholder to get on with his or her business of farming. I think the balance that has been struck is pretty good.
Effectively, it states that if activities on the land enable the land to be easily used for farming purposes, and do not compromise the ecological values, then that is fine. But if they do compromise them, then we get into the weighing exercise.
I am doubtful that the amendment put forward by the ACT member takes the farmers' case forward a whole lot. While new clause 14 clearly sets out that it is about weighing up protection vis-a-vis use as a farm, the amendment in the name of Mr Shirley starts winding into the whole principle of sustainable management. I think it takes the balance away. It makes the case for the farmer harder, in that rather than being quite explicit---farm use versus ecological protection---he starts watering down farm use with some principles of sustainable management. I think that is unnecessary, confusing, does nothing for farmers, and adds only further uncertainty. It is true that clause 14 provides something of a balance for the Commissioner of Crown Lands, but I think it is better to be quite explicit about the two factors that he needs to balance, rather than confuse the issue with the very wordy version proposed by the member.
It is equally so with the debate about the payment of rentals. Some members have said, hang on a moment, these farmers are the same as a State house tenant. The point not recognised by Opposition members is that these farmers have a perpetual right under specific provisions currently covered in the Land Act. One starts to draw a very difficult picture when one starts messing around with the rental arrangements of somebody who has a perpetual right. A State house tenant does not have a perpetual right, nor do we provide a subsidy to the farmers paying this rent in the same way that we do for State house tenants through the accommodation supplement. Again, in terms of the balance that is provided, the ACT party says that we are being far too tough, and the Alliance and Labour say that we are being far too soft. I believe that the Bill currently before the House provides a fair balance in terms of the interests of the Crown and the interests of the pastoral leaseholders.
JILL PETTIS (NZ Labour---Whanganui): I genuinely do not want to be provocative, but the Minister of Conservation just talked about perpetual rights and land being held in perpetuity. What about the Maori Reserved Land Amendment Bill, which recently went through the House with great trauma?
Hon. Nick Smith: We paid compensation!
JILL PETTIS: I genuinely do not want to be provocative, but I believe that there is a huge inconsistency in having this right to lease in perpetuity, when we have just been through a traumatic period for a lot of people on both sides of the lessee and lessor issue. Here we are doing a very similar thing in the South Island. No wonder this place falls into disrepute occasionally. If I did not have Irish ancestry and a great deal of affection for my Irish ancestors, I would say that there was something Irish about it.
To go back to clause 14, significant responsibility will be placed on the Commissioner of Crown Lands as a consequence of this clause.
The requirement for the commissioner to take into account the desirability of protecting inherent values has virtually been nullified by the other requirement to take into account the desirability of making it easier to use the land for farming purposes, which is in paragraph (b) in clause 14(2).
Hon. Nick Smith: Would the member take paragraph (b) out?
JILL PETTIS: I am talking about the inconsistency, and how we will have to rely very, very heavily on the Commissioner of Crown Lands because paragraph (b) talks about the desirability of making it easier to farm the land. When I spoke earlier I asked whether farming was the best use of this land given the fragility of it. The commissioner is now required to undertake what is almost an impossible balancing act when considering applications to burn or clear vegetation, or any other discretionary consents. The commissioner must take into account both the desirability of protecting those special inherent values and the desirability of making it easier to farm the land. No real, clear criteria are given to guide this decision-making process, and no priority is given to the protection of those special inherent values.
I want to refer briefly to the Martin report. I believe that it is a very useful report because in connection with clause 14 it states: '`Our philosophy''---being the people of New Zealand's philosophy---'`for the sustainable use of the high country is that long-term ecological considerations must take precedence over social and economic needs.'' One has to question whether long-term ecological considerations are being seriously considered in respect of paragraph (b) of clause 14(2). Given that the leases are already established as being for pastoral purposes, it is rather difficult to understand why the Bill has this additional requirement to promote farm development. Recognition of indigenous flora and fauna and the inherent values should be given priority by the Commissioner of Crown Lands in any application for a discretionary consent to prevent further loss and depletion of indigenous vegetation. I commend the Martin report. I draw the Government's attention to the very simple recommendations contained in it that were written some years ago.
GAVAN HERLIHY (NZ National---Otago): As a Crown pastoral lessee and one of the 340 people referred to in this Bill, for once I find myself agreeing with Mr Shirley, who referred to the lessees as being unpaid stewards of the high country.
I find it quite incredible that there are such totally divergent views within the Labour Opposition on one particular aspect within Part 1. I agree with Damien O'Connor that there is no obligation to review in this Bill. That is totally at odds with Pete Hodgson, who is critical of Part 1 in that nothing in it makes review compulsory. That is correct, and neither should there be. To do otherwise would be a gross abuse of property rights. The perpetual right of renewal leases remain. While that is divergent from the views of the non-governmental organisations, the Primary Production Committee studied it very carefully. It would have been a gross abuse of property rights to extinguish that perpetual right of renewal.
Part 2, which we will deal with this evening, looks at making the tenure review process a more amenable one. If a win-win situation cannot be achieved it is most important, in terms of the Crown pastoral lessees that remain, to aid their stewardship of this land. Clause 14 is most important in this respect. Currently, the lessees require the approval of the Commissioner of Crown Lands, under the Land Act, in terms of soil and water values. The inherent values that we have introduced in this Bill broaden that scope, but that reflects society's changing values, and it is the Crown's responsibility as the ultimate owner to recognise those.
We have a balance. I disagree with Mr Shirley's comments that clause 14 does not provide a balance. I totally disagree with Jeanette Fitzsimons that the environmental values should come before the farming values. We have got the balance right. The commissioner, who has always done the job in the past, will continue to do that.
RUTH DYSON (NZ Labour): I want to be generous to the Primary Production Committee and the Minister of Conservation and say that, from their contributions tonight, I believe that they really do think the public will understand what clause 14 means. In fact the Minister was very clear when he said that the desirability of making it easier to use the land concerned for farming purposes, which is stated in clause 14(2)(b), would be determined on the basis of taking into consideration protection of the inherent values of the land concerned. I do believe that is what the Minister wants this clause to say. I think that is probably what the select committee members feel, because they have all said that. They have all said: '`We've got the balance right. Of course we don't want to destroy the natural environment. Of course we want to protect the inherent values of the land.'' The difficulty I have is that is not what the Bill says.
I think that, as the select committee process went on for so long, its members talked about this issue amongst themselves, heard the submissions, knew where they were headed, and said: '`Yes, of course, we all understand that.'' But it has not been reflected as clearly as I would like to see or, in my view, as clearly as the public needs to have it reflected. I think it is disappointing that those members have become a bit overwhelmed with their own work, so to speak. I have heard the National members---
Eric Roy: That is cruel.
RUTH DYSON: No, I am being quite genuine, actually. I do think those members think the clause says something quite different. Unfortunately, the position of Parliament has ended up being really unclear, and legislation should not be like that. Legislation on these sorts of issues requires some leadership, and I would like the Minister to take up, just once, a leadership position in this type of legislation. I do not think the clause is clear enough or good enough. The select committee and the Minister might think they know what it means, but it is certainly not obvious.
This clause is a really backwards step in determining our land use. It is the sort of thing that got chucked out when the Town and Country Planning Act was repealed---look at this on the one hand, and look at that on the other hand. Instead we have been moving towards a clear definition of values from Parliament. In my view, this clause takes a backwards step. It puts the Commissioner of Crown Lands in an impossible position. The commissioner has to look at the desirability of protecting inherent values, then to weigh up the desirability of making the land easier to farm. Where is the guidance on that balance? Where are the criteria on which the commissioner should base that decision-making process? Perhaps some of the key deliberative points from the select committee should be put into the Bill, because that is the only way that the commissioner will get any guidance from Parliament.
That is a very weak approach to take. It is certainly not nearly as crazy as the approach that the ACT member wants to take. I agree absolutely with the National members of Parliament that that approach is very silly. We have to recognise as a Parliament that when it comes to moving towards use of the land for farming, there are some negative impacts. The balance of those negative impacts and our determination of the weight of the inherent values of the land concerned are not outlined in this clause. We are abdicating to the commissioner our responsibility and the leadership role that should be taken in legislation, by not providing any criteria or guidelines at all for the decision-making process in weighing up those two key aspects---the protection of the inherent values of the land and the desirability of the land being used for farming.
I do not think that is a proper thing for Parliament to do. We are giving the commissioner a huge responsibility without any guidelines.
In my view, it will be challenged through the court process, and that will be very unhelpful. It is not a good idea for Parliament to be handing over to a commissioner, and, eventually, a court, what is properly our right to determine the interpretation of our laws. We should be much clearer about that. It might take longer, it might be a slower process, but it is our responsibility to take up that leadership role.
Hon. DENIS MARSHALL (NZ National---Rangitikei): I move, That the question be now put.
The CHAIRPERSON (Ian Revell): The Committee, which has been debating this part for about 50 minutes or so, is probably in a position to determine whether it is ready---
Damien O'Connor: I raise a point of order, Mr Chairperson---
The CHAIRPERSON (Ian Revell): I am on my feet at the present time. The Committee is probably in a position to determine whether it is ready to vote on this issue. I will not hear a point of order about it because it is purely at the Chairperson's discretion. However, I will take a point of order on a procedural or other technical matter if the member wishes to raise one.
DAMIEN O'CONNOR (NZ Labour---West Coast - Tasman): I raise a point of order, Mr Chairperson, relating to the wide range of issues we are trying to address here. We have had only one call. I just wish to take one short call.
The CHAIRPERSON (Ian Revell): I have observed the length of debate that has occurred and I have listened carefully to the debate. I am satisfied that the Committee is in a position to determine whether it wants to decide on the part.
A party vote was called for on the question, That the question be now put.
Ayes 70
New Zealand National 44;
New Zealand First 17;
ACT New Zealand 7; United New Zealand 1; Independent 1.
Noes 49
Labour 37;
Alliance 12.
Majority for: 21
Motion agreed to.
The CHAIRPERSON (Ian Revell) put the question that the amendments set out on Supplementary Order Paper 88 in the name of the Hon. John Luxton to Part 1 be agreed to. Amendments agreed to.
The CHAIRPERSON (Ian Revell) put the question that the following amendment in the name of Hon. Ken Shirley to clause 14 be agreed to:
to omit paragraph (b) of clause 14(2) and substitute the following new paragraph: (b) The desirability of the lessee or licensee of the land concerned achieving sustainable management of all of the land of the lessee or licensee and in a manner which realises the productive value of the land concerned for farming purposes ("sustainable management'' having the meaning given by section 5 of the Resource Management Act 1991 to it).
A party vote was called for on the question, That the amendment be agreed to.
Ayes 7
ACT New Zealand 7.
Noes 112
New Zealand National 44;
Labour 37; New Zealand First 17;
Alliance 12; United New Zealand 1; Independent 1.
Majority against: 105
Amendment negatived, and Part 1 as amended by Supplementary Order Paper 88 agreed to.
Part 2. Tenure Reviews
Progress reported.
Sitting suspended from 5.56 p.m. to 7.30 p.m.
Hansard 6 April 1995
Hansard
7 May 1998
Hansard 27 May 1998 (this page)
Hansard 28
May 1998
Hansard 17 June 1998