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COVID-19 Recovery (Fast-track Consenting) Bill - Submission to the Environment Committee [2020] NZHRCSub 9 (21 June 2020)
Last Updated: 20 January 2021
![2020_900.png](2020_900.png)
COVID-19 RECOVERY (FAST TRACK CONSENTING) BILL
21 June 2020
Submission of the
Tracking Equality at Work 2018:
Summar y and Recommendations | June 2018 1
Human Rights Commission
Tracking Equality at Work 2018: Summar y
and Recommendations | June 2018 1
Submission of the Human Rights Commission to the Environment
Committee
21 June 2020
The New Zealand Human Rights Commission (the Commission) is established and
operates under the Crown Entities Act 2004 and the Human
Rights Act 1993. The
Commission is accredited as an ‘A status’ national human rights
institution under the Paris Principles.
Information about the Commission’s
activities can be found on our website: www.hrc.co.nz
![2020_900.png](2020_900.png)
Contents
Introduction
- The
Human Rights Commission welcomes the opportunity to provide the Environment
Committee with this submission on the COVID-19 Recovery
(Fast-track Consenting)
Bill (the Bill). The Commission acknowledges that this Bill seeks to address a
human rights emergency, by
creating employment and thereby promoting the right
to decent work1 while respecting the right to a healthy
environment.2 This submission discusses how human rights and te
Tiriti o Waitangi can enhance the effectiveness of this Bill and the recovery
that
the Bill is designed to support.
- Pursuant
to the Commission’s statutory functions, we have supported and scrutinised
the
Government’s response to COVID-19, particularly as it relates to the
balance that must be struck between, on the one hand,
the rights to life and
healthcare and protection, and, on the other hand, other human rights that are
restricted or curtailed. In
our report Human Rights and Te Tiriti o Waitangi:
COVID-19 and Alert Level 4 in Aotearoa New Zealand, while recognising that
there is much to commend about New Zealand’s prompt and effective response
to COVID-19, we observed
that Te Tiriti and human rights have not been
consistently integrated across the response to the pandemic.3 A copy
of the report is provided with this submission for the Committee’s
reference.
- The
Commission has consistently advocated that the Government incorporate a Tiriti o
Waitangi and human rights-based approach into
the measures it has taken to
prevent and limit the spread of the virus.4 Now that New Zealand is
entering a recovery phase and faces considerable economic and social challenges,
we consider that a Tiriti
and human rights based approach remains a matter of
crucial importance, and will support good decision-making in the recovery.
- Measures
to reset and rebuild New Zealand’s economy provide an opportunity to embed
human rights and Te Tiriti in the ‘new
normal’. There are
opportunities to positively advance a range of Tiriti and human rights
priorities, such as Tiriti-based
decision making, accessibility and inclusion
for disabled people, equal employment opportunities, children’s rights and
environmental
rights – through economic development projects. Conversely
however, if decision-making processes are unduly curtailed and fail
to
adequately uphold Te Tiriti and human rights, there are risks that current
inequities and environmental issues will be further
exacerbated. Now is the time
to create a solid Tiriti and human rights basis for the recovery.
- Using
a human rights and Tiriti lens and a process that is consistent with these
obligations, including Tiriti partnership and meaningful
participation by
affected communities, will support good decision- making to promote a recovery
that is codetermined with tangata
whenua and results in equitable outcomes for
all, including vulnerable population groups.
- The
premise of the Bill is that it seeks to curtail participation rights in the
interests of economic recovery. The Commission acknowledges
this imperative and
recognises the complex balancing required. We commend the involvement of Iwi
advisors in the development of the
Bill, and the positive progress that this
represents towards a Tiriti partnership approach and consistency with human
rights obligations.
We commend the many positive provisions in the Bill,
including provisions upholding Treaty settlements, protecting wāhi tapu,
utilising Te Arawhiti reports, and including several Crown-Iwi partnership
projects in Schedule 2. However, we suggest that overall
the balance the Bill
strikes needs adjustment. We suggest amendments to better support a Tiriti- and
human- rights based recovery.
Structure of this submission
- Part
one provides an overview of the applicable human rights and Te Tiriti
obligations that should be applied to COVID-19 legislation and policy
responses.
It suggests amendments to the draft purpose
1 International Covenant on Economic, Social and
Cultural Rights (ICESCR) Article 7.
2 See the work of the Special
Rapporteur on human rights and the environment.
3 Human
Rights and Te Tiriti o Waitangi: COVID-19 and Alert Level 4 in Aotearoa New
Zealand, page 4.
4 Including in the report referenced above and provided with this
submission (Human
Rights and Te Tiriti o Waitangi: COVID-19
and Alert Level 4 in Aotearoa New Zealand), and in the Commission’s
appearance before the Inquiry into the Operation of the COVID-19 Public Health
Response Act 2020.
of the Act, a reduced timeframe for the Act, and regular review of the
Act’s operation. It notes significant shortcomings in
relation to Tiriti
and Indigenous rights standards and suggests amendments to better comply with te
Tiriti o Waitangi.
- Part
two examines specific human rights implications arising from the operational
aspects of the Bill. The section focuses on the importance
of equal employment
opportunities and universal design. Universal design means the design of
products, environments, programmes and
services to be usable by all people, to
the greatest extent possible, without the need for adaptation or specialised
design.5
- Our
recommendations are summarised at the end of the
submission.
PART ONE: AN OVERVIEW OF HUMAN RIGHTS AND TE TIRITI
CONSIDERATIONS
General
observations on human rights considerations
- A
human rights approach necessitates a holistic approach – encompassing
civil and political rights; social, economic and cultural
rights; Indigenous
Peoples’ rights; and the right to a safe and healthy environment –
and ensuring that both processes
and outcomes are consistent with human rights
obligations. The relationship between human rights and the environment is much
neglected
in Aotearoa New Zealand. In his report of January 2018, the UN Special
Rapporteur on human rights and the environment provides useful
Framework
Principles on Human Rights and the Environment. The 16 Principles include
that “States should ensure that they comply with their obligations to
indigenous peoples and members
of traditional communities” and sets out
how this can be achieved.6
- The
Commission appreciates that the Bill seeks to respond to a human rights
emergency (as already noted in the introduction, and as
discussed further in the
below section relating to the draft purpose clause). There is a real need to act
swiftly to mitigate negative
economic impacts and to protect rights like the
right to decent work and to an adequate standard of living. In doing so, a
holistic
human rights approach will enhance the effectiveness of the Bill and
reduce the risks associated with its fast-track nature.
- The
human rights this Bill seeks to promote need to be balanced carefully alongside
other human rights, like the rights to non-discrimination
and to participation.
The balancing should maximise rights, with particular attention to impacts on
those who are especially vulnerable
to the potential negative impacts of
unemployment or of development.
- The
Cabinet Paper associated with this Bill states that “There are no human
rights, gender and disability implications associated
with this
paper.”7 The Commission considers the Bill to have significant
human rights implications – particularly in relation to the right to
work.
The Commission also considers that gender and disability analysis of COVID-19
recovery spending is vital.
Participation rights to enhance decision-making
- Human
rights, with their emphasis on participation, transparency, non-discrimination,
and accountability, can contribute to good decision-making.
The right to
participate in decision making8 is important, not only because people
have the right to have a say in what affects them, but also because hearing
diverse perspectives
leads to good decisions, fosters buy-in, and can mitigate
against problems arising at later stages. Meaningful participation tends
to
foster trust and confidence in government. It gives authenticity and legitimacy
to decisions.
5 Article 2 of the Convention on the Rights of
Persons with Disabilities.
6 https://undocs.org/en/A/HRC/37/59
7 COVID-19 Recovery (Fast-track Consenting) Bill May 2020 Cabinet
Paper, at paragraph 121.
8 Participation is a cornerstone right of democratic government,
and is recognised in a range of international human rights instruments
See for
example https://www.ohchr.org/EN/Issues/Pages/EqualParticipation.aspx.
- Te
Tiriti o Waitangi provides a complementary yet distinct set of participatory
principles that must be applied in decision-making
processes that affect
Māori. These principles also improve the quality of decision-making while
enabling the Crown to ensure
that it is acting consistently with its obligations
to tangata whenua under Te Tiriti.
- The
Ihumātao development provides a salutary example of the risks of
fast-tracking decision-making at the expense of other concerns.9
- While
the urgent nature of this Bill necessarily affects participation rights, we urge
the Committee to keep participation rights
and their benefits in front of mind
when considering this Bill.
- The
Bill provides an opportunity to strengthen decision-making processes, taking
into account Waitangi Tribunal recommendations about
resource management
processes that fall short of Tiriti requirements.10 (See below
section on Te Tiriti o Waitangi.)
- The
Commission also suggests that the Committee consider how the timeframes,
participation opportunities and appeal processes in the
Bill can be enhanced to
best support broad and meaningful participation to promote good decision-making,
particularly by tangata
whenua.
Recommendation 1.
In reviewing the Bill, the Select Committee should consider enhancing
participation opportunities and Tiriti- based decision-making
as an enabling
factor for good decision-making.
Purpose of the Act
- The
draft purpose of the Act is to “urgently promote employment growth to
support New Zealand’s recovery from the economic
and social impacts of
COVID-19 and to support the certainty of ongoing investment across New Zealand,
while continuing to promote
the sustainable management of natural and physical
resources.”11
- The
Explanatory Note to the Bill further explains that “The Bill seeks to
achieve this by establishing new fast-track resource
consenting and designation
processes for infrastructure and development projects. This Bill also enables
specific work on existing
infrastructure to occur without the need for a
resource consent.”
- The
clause 4 focus is on employment growth, certainty of investment, and sustainable
management. The Commission agrees that these
are important considerations,
particularly in the recovery context. However, we suggest that this purpose
clause is incomplete. We
suggest making it clear that these purposes are to be
pursued consistent with international human rights norms, despite – or
because of – the urgency. We suggest elevating Tiriti o
Waitangi12 and human rights in the purpose clause. This would ensure
that concerns such as equal employment opportunities, inclusivity, non-
discrimination and participation are read into the purposive application of the
legislation. This change would not prevent fast-tracking
but would enhance its
outcomes.
- We
recommend that the Bill should be more explicit about the sort of employment and
the sort of recovery that the Act would seek to
support. We suggest amendment of
the purpose clause to make it clear that the ‘new normal’ promoted
by recovery investment
should be based on Te Tiriti o Waitangi and human
rights.
- Around
the world, COVID-19 has exposed and exacerbated pre-existing and deeply
entrenched discrimination or disparities in society.13 To promote a
recovery that counteracts that effect, the Act
9 See Human Rights Commission (2019), International
human rights perspectives on Ihumātao
10 Waitangi Tribunal, (2019), Stage
2 Report on the National Freshwater and Geothermal Resources Claims, Wai
2358.
11 Clause 4 Purpose, COVID-19 Recovery (Fast-track Consenting)
Bill.
12 We acknowledge clause 6 in this context, and suggest elevation
to the general
13 See for example UN High Commissioner for Human Rights, Disproportionate
impact of COVID-19 on racial and ethnic
minorities needs to be urgently addressed, 2 June 2020. Working Group on
discrimination against women and
must have the purpose of promoting inclusive employment in decent
work,14 or it risks operating to further entrench inequalities. In
terms of the employment growth promoted by the Act, the Commission submits
that
it is essential that such growth provides equal opportunities for
all.
- An
amended purpose section might read, for example (edits in bold):
The
purpose of this Act is to urgently promote inclusive, equitable
employment growth to support a human-rights and Tiriti-based recovery
from the economic and social impacts of COVID-19 and to support the certainty of
ongoing investment across New Zealand, while
continuing to promote the
sustainable management of natural and physical resources.
- An
additional subsection could also be added to clause 4, which provides that an
additional purpose of the legislation is to uphold
the government’s Te
Tiriti and domestic and international human rights commitments; and promote
equal employment opportunities
and social inclusion.
- The
inclusion of these factors in clause 4 is also important when considering the
Minister’s duty to consider certain matters
under clause 19 when
determining whether proposed work aligns with the purpose of the legislation.
The Minister’s duty under
clause 19 logically flows from clause 4. Many of
the factors in clause 19 of the current Bill align with human rights concerns,
such
as social wellbeing. In Part Two of this submission we also recommend that
further human rights related factors are introduced in
clause 19. Amending both
clause 4 and clause 19 will allow human rights to help to deliver on the aims of
the fast-tracked recovery.
Recommendation 2
Amend clause 4 to include the promotion of Te Tiriti and human rights in the
purpose clause.
Recommendation 3
Amend clause 4 to introduce a new subsection that provides that a purpose of the
legislation is to uphold the government’s
Te Tiriti and domestic and
international human rights commitments; and promote equal employment
opportunities and social inclusion
for equitable outcomes.
- For
recommendations regarding the Treaty of Waitangi clause (clause 6), see
recommendation 7 below in the section “Te Tiriti
o Waitangi”.
- In
discussing the purpose clauses, clause 10(1) is also relevant. Clause 10
(according to the Explanatory Note) “sets out procedural
principles to be
applied”:
- Procedural
principles
(1) Every person performing functions and exercising powers
under this Act must take all practicable steps to use timely, efficient,
consistent, and cost-effective processes that are proportionate to the
functions, duties, or powers being performed or exercised.
(2) This includes a duty to act promptly in circumstances where
no time limit has been set for the performance or exercise of a function,
power,
duty, or requirement under this Act.
(3) However, a failure to comply with this section does not of
itself invalidate the performance of a function or duty or the exercise
of a
power under this Act.
girls, Responses
to the Covid-19 could exacerbate pre-existing and deeply entrenched
discrimination against women and
girls, 20 April 2020.
14 See UN Committee on Economic Social and Cultural Rights General
Comment No 18 on the Right to Work E/C.12/GC/186
at paragraph 7: Decent work “is work that respects the fundamental
rights of the human person as well as the rights of workers
in terms of
conditions of work safety and remuneration. It also provides an income allowing
workers to support themselves and their
families”; and at 12(c)
“Protection of the right to work has several components, notably the right
of the worker to just
and favourable conditions of work, in particular to safe
working conditions, the right to form trade unions and the right freely
to
choose and accept work.”
- Again,
the Commission considers that the clause 10(1) principles are sound but
incomplete and can be enhanced to lead to improved
decision-making. On its face,
clause 10(1) prioritises speed and efficiency above all else. An enhanced
purpose clause, as already
suggested, could act to make clear that the
expedience must not be at the expense of a Tiriti o Waitangi and human-rights
based recovery.
- Accordingly,
clause 10 could be amended to make clear that it does not require haste which
undermines the quality of decision making
and the recovery. For example, clause
10(1) and a new clause 10(2) could read:
- Procedural
principles
(1) Every person performing functions and exercising powers
under this Act must take all reasonable steps to use timely, efficient,
consistent, and cost-effective processes that are proportionate to the
functions, duties, or powers
being performed or exercised.
(2) Subsection (1) does not limit the duties of persons
performing powers under the Act to act consistently with:
(a) the purpose of the Act;
(b) the principles of Te Tiriti o Waitangi
(c) the government’s domestic and international human rights
commitments.
Recommendation 4
Revise clause 10 to ensure that timely, efficient and cost-effective
decision-making does not limit the duty of persons performing
functions and
exercising powers under the Act to do so consistently with the
purpose of the Act, the principles of Te Tiriti o Waitangi and the
government’s domestic and international human rights commitments.
Timeframe and review
- The
COVID-19 response is necessarily fast-moving. The Commission is concerned that
any limits on public participation in democratic
processes should be minimised.
We supported the reduction in the duration of the COVID-19 Public Health
Response Act, and the establishment
of a Select Committee inquiry to provide an
opportunity for scrutiny of the operation of the Act. We suggest that this
exceptional
legislation should similarly be of relatively short duration and
should be subject to regular review while in operation.
- The
Select Committee review should consider whether the Bill is operating in a way
which promotes a Tiriti o Waitangi and human rights-based
recovery. The first
review should take place within 90 days to six months of the Act’s
commencement.
Recommendation 5.
Amend clause 3 to reduce the duration of the Bill to one year and require
periodic review by Parliamentary Select Committee during
its operation.
Te Tiriti o Waitangi
- It
is imperative that COVID-19 recovery efforts are undertaken in a way that
upholds Te Tiriti o Waitangi. While the objectives of
economic recovery and
employment growth are worthy and necessary, if the Bill fails to properly uphold
Te Tiriti, then it risks perpetuating
existing inequities and misses a valuable
opportunity to strengthen the Crown-Māori relationship and work together to
rebuild
the economy in genuine partnership. That type of approach would
recognise that the role of Māori Tiriti partners is not merely
as
stakeholders to be consulted with, but as equal partners in determining the
direction and actions Aotearoa New Zealand takes to
recover and rebuild.
- The
premise of this Bill is that it seeks to curtail participation rights in the
interests of economic recovery. However, unduly restricting
participation rights
and disregarding Tiriti partnership and rangatiratanga risks flawed
decision-making. If mana whenua voices are
not adequately heard
and
projects undertaken without their support, there is potential for projects to be
delayed, for example, by legal action or other forms
of opposition. Goals of
efficiency will be better advanced by enabling
iwi and hapū participation in decision-making from the outset. Potential
problems and delays could be avoided if a partnership
approach is taken from the
outset, and obligations of ‘free, prior and
informed consent’ are upheld.
Tiriti obligations
- Under
te Tiriti, Māori are guaranteed tino rangatiratanga in relation to their
whenua, kāinga and taonga katoa. Rangatiratanga
stems from inherent rights
of Tangata Whenua and whakapapa connections to land and the natural environment.
It entails the authority
and ability to exercise Kaitiakitanga rights and
responsibilities, uphold intergenerational obligations and maintain spiritual
connections
to lands and waters. Its underpinning core values speak to an
indivisible relationship
between Māori and whenua. These inherent rights are affirmed in the
guarantees of Te Tiriti and are further reinforced by international
human
rights, including the UN Declaration on the Rights of Indigenous Peoples (the
Declaration).
- A
Tiriti o Waitangi-based approach includes that: Māori as Tiriti-partners
are part of decision-making;
Māori are able and supported to exercise rangatiratanga and
self-determination and to lead solutions; and equity for Māori
is central
to responses. To help ensure this, Te Tiriti and the Declaration should be
central to all planning and decision-making.
- Te
Tiriti provides for co-existing systems of governance authority – Crown
kāwanatanga authority and Iwi and hapū
rangatiratanga. The Waitangi
Tribunal has found that those who signed Te Tiriti envisaged a sharing of power
and authority and a
partnership of equals15, yet the Bill assigns
significant decision-making power to the Minister, and gives virtually no
recognition to the
rangatiratanga authority of Māori. In 2019 the Waitangi Tribunal found that
the participatory arrangements of the RMA are not
consistent with Tiriti
partnership or the guarantee of tino rangatiratanga.16 The
Bill’s curtailing of those existing provisions represents a further
backwards step.
- Throughout
the COVID-19 crisis Iwi and Māori communities were proactive in exercising
their rangatiratanga to look after their
communities and rohe, yet there is
little acknowledgement in the Bill of the valuable leadership role of Iwi and
Māori in the
recovery phase.
International human rights
- The
Declaration complements and reinforces Te Tiriti.17 Articles of the
Declaration elaborate on the guarantees of Te Tiriti and provide guidance on how
these may be implemented in practice.
The Declaration recognises the fundamental
importance of land and other natural resources to
Indigenous Peoples’ identity and the need to respect indigenous knowledge,
cultures and traditional practices contributing
to sustainable and equitable
development and proper management of the environment.18 It affirms
that Indigenous Peoples have the right to the lands and resources they have
traditionally owned or used,19 the rights to maintain and strengthen
their spiritual relationship with land and to uphold responsibilities for future
generations.20 The Declaration explicitly recognizes the right of
Indigenous Peoples to the conservation and protection of the
environment21
15 Waitangi Tribunal, (2014), He
Whakaputanga me te Tiriti: Report on stage 1 of the Te Paparahi o te Raki
Inquiry, Wai 1040, at p529.
16 Waitangi Tribunal, (2019), Stage
2 Report on the National Freshwater and Geothermal Resources Claims, Wai
2358, at p 528.
17 New Zealand courts and the Waitangi Tribunal have interpreted
Te Tiriti and the Declaration alongside one another, for example, see: New
Zealand Māori Council v Attorney-General [2013] NZSC 6.
Waitangi Tribunal, (2014),
Whāia te
Mana Motuhake: Report on the Māori Development Act Claim, Wai 2417.
18 Preamble of the Declaration
19 Article 26 of the Declaration.
20 Article 25 of the Declaration.
21 Article 29 of the Declaration.
and to determine and develop priorities and strategies for the development or
use of their lands or resources.22
- UN
human rights bodies have highlighted the need for special protection of
Indigenous communities and have urged States to work in
partnership with
Indigenous Peoples in responding to COVID-19 and its impacts. The UN Special
Rapporteur on the Rights of Indigenous
Peoples has expressed concern that some
States’ emergency responses “are exacerbating the marginalisation of
indigenous
communities” and that environmental protections and
consultation mechanisms were being
“abruptly suspended in order to force through
megaprojects.”23 The Special Rapporteur has affirmed
the continued importance of upholding Indigenous Peoples’ rights in times
of emergency, stating:
Now, more than ever, Governments worldwide
should support indigenous peoples to implement their own plans to protect their
communities
and participate in the elaboration of nationwide initiatives to
ensure these do not discriminate against them. ...
The rights to development, self-determination and lands,
territories and resources must be ensured in order for indigenous peoples
to
manage these times of crisis and to advance the worldwide goals of sustained
development and environmental protection.
The pandemic is teaching us that we need to change: we need to
value the collective over the individual and build inclusive societies
that
respect and protect everyone.
- Similarly,
the UN Expert Mechanism on the Rights of Indigenous Peoples (EMRIP) has called
on States to work in partnership with Indigenous
peoples and reaffirmed that in
responding to COVID-19, “[a]s with the adoption of any measures that may
affect indigenous peoples,
their free, prior and informed consent, grounded in
the right to self-determination, should be sought.” 24 The
EMRIP has also specifically urged States to uphold Indigenous Peoples land
rights as a vital component of response efforts and
to contribute to recovery
after the crisis.
- The
Declaration provides that States must consult and cooperate with Indigenous
Peoples in good faith and endeavour to obtain their
free, prior and informed
consent prior to the approval of any project affecting their lands or
resources.25 The EMRIP has provided further guidance on how the
obligations of free, prior and informed consent are to be applied in
practice.26 This includes respecting Indigenous Peoples’
’ decision-making processes27. States should ensure that
Indigenous Peoples have the information28, resources and capacity to
effectively engage in consultation processes.29 The obligation to
“consult and co-operate” with Indigenous Peoples denotes a right to
influence the outcome of decision-making
processes affecting them, not just the
right to be involved in such processes or have their views heard.30
The objective of consultations should be to achieve agreement and
consent.31
22 Article 32 of the Declaration.
23 UN Special Rapporteur on the Rights of Indigenous Peoples,
“COVID-19 is devastating indigenous communities worldwide, and it’s
not only about health” – UN expert warns’, 18 May 2020.
Accessible at: https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=25893&LangID=E.
24 EMRIP (2020), ‘COVID-19 yet another challenge for
indigenous peoples’, 6 April 2020. Accessible at: https://www.un.org/development/desa/indigenouspeoples/wp-content/uploads/sites/19/2020/04/EMPRIP-
English.pdf
25 Articles 19 and 32(2) of the Declaration.
26 Expert Mechanism on the Rights of Indigenous Peoples,
Free, prior and informed consent: a human rights-based approach
– Study of the Expert Mechanism on the Rights of Indigenous
Peoples, UN Doc A/HRC/39/62, (10 August 2018).
27 Ibid, Annex at para 9.
28 Ibid., at para 7.
29 Ibid., Annex at para 9.
30 Ibid., at para 15.
31 Ibid., Annex at para 6.
Application to present Bill
- While
the Bill includes a number of positive measures, in the Commission’s view
the limited opportunities for mana whenua participation
do not adequately
reflect Tiriti partnership, and do not adequately uphold rangatiratanga or the
obligations of free, prior and informed
consent. This is both a significant flaw
of the Bill, and a missed opportunity to build a recovery in partnership with
tangata whenua
in a Tiriti-based way. It also misses an opportunity to
strengthen existing resource management decision-making through the recovery,
by
building in joint decision-making processes and mechanisms.
- Bearing
in mind these inherent challenges, the following comments and recommendations
seek to identify possible amendments that could
enhance the alignment with
Tiriti and human rights standards without compromising the purpose of the
Bill.
- In
terms of specific positive steps, the Commission particularly welcomes the
involvement of Iwi advisors in the development of this
Bill, and the positive
progress that this represents towards a Tiriti partnership approach and
consistency with human rights obligations.
- In
line with the obligations of free, prior and informed consent noted above, it is
important that this input has had a meaningful
influence on the final form of
the Bill. This also reflects the need to uphold and support rangatiratanga. We
recommend that the
Select Committee give particular attention to submissions
from Iwi and what they say about the extent that Iwi views have been reflected
in the final bill.
Recommendation 6
That the Committee give particular attention to submissions from Iwi and the
extent that Iwi input has been reflected in the final
Bill.
- The
Commission notes that some positive steps have been taken in the Bill to reflect
and uphold Tiriti obligations. The Commission
strongly supports the inclusion of
a Te Tiriti provision in clause 6, explicitly requiring treaty consistency in
the exercise of
functions and powers under the Act. This provision is
particularly crucial given the potential impacts of the Bill on Tiriti rights
and obligations and we welcome this advancement on the current equivalent RMA
provision. The Commission therefore welcomes and supports
clause 6. In our view,
the clause could be even further strengthened by referring to Te Tiriti, and
directly to the texts, rather
than treaty principles.
- The
Commission also agrees that consistency with previous Treaty settlement
agreements made
with iwi and hapū is essential to upholding Te Tiriti and maintaining
positive Crown-Māori relationships. The Commission
therefore welcomes the
provisions in the Bill aimed at preserving and upholding those settlements.
However, we note that a Tiriti-based
approach is broader than the settlements
that have been negotiated to provide redress for previous rights breaches. It
extends to
protect the rights of iwi and hapū who have not reached
settlements with the Crown. The Commission suggests an addition to clause
6 to
recognise the importance of the broader, ongoing Tiriti relationship between
Māori and the Crown, and require that the
implementation of the Act is
consistent with “promoting Tiriti partnership and strengthening the
Crown-Māori relationship”.
Recommendation 7
Amend clause 6 to refer to “Te Tiriti o Waitangi” rather than
“the principles of the Treaty” in subclause
(a). Add a further
subclause “(c) promoting Tiriti partnership decision-making and
strengthening the Crown- Māori relationship”.
- This
commitment to Tiriti partnership should also be affirmed by adding a reference
to it in the matters the Minister must consider
under clause 19. Further
discussion and recommendations relating to clause 19 are set out in Part 2
below.
Recommendation 8
Add a new provision to clause 19(d) to include “strengthening authentic
Tiriti partnership and Crown-Māori relationships”
as a public benefit
to be considered by the Minister.
![2020_901.png](2020_901.png)
- We
also note that the Bill includes several positive steps to provide for Tiriti
obligations and iwi involvement or comments at various
points in the
process.
Recommendation 9
Amend clause 17 to provide for engagement with Iwi prior to any decisions by the
Minister to refer a project to a consent panel.
Requirements
under clause 17 for the Minister to obtain and consider a report by Te Arawhiti
outlining certain Treaty and customary
rights considerations, are positive. The
Commission suggests that these measures would be enhanced by enabling the
Minister to also
hear from Iwi directly at this point in the process. The
Minister’s decisions could be enhanced by hearing the views of affected
iwi and hapū directly, identifying and addressing any issues at this early
stage rather than leaving this solely to expert panels
once the matter has
progressed further through the process.
Recommendation 10
That clause 32 is amended to require an engagement period of 60 days, and at
a minimum, to provide for extensions to the iwi and hapū engagement
process when necessary.
The Commission also welcomes the explicit
exclusion of wāhi tapu or culturally significant sites from
‘permitted activities’
(clause 31) and the requirement for agencies
to engage with iwi/hapū (clause 32). However, we note the very short (30
day) timeframe
for this engagement. We suggest extending this to at least 60
days, and, at a minimum, provision is made in the Bill to extend this
timeframe
when necessary, for example in circumstances where concerns are raised by iwi or
hapū that require further time to
investigate.
- The
Waitangi Tribunal’s recent freshwater report highlighted that
under-resourcing is a barrier to iwi participation in RMA
processes in normal
circumstances.32 These factors will be exacerbated when timeframes
are shortened further. To this end, the Commission welcomes the ability for iwi
and hapū to recover costs in relation to identifying wāhi tapu and
culturally significant sites. However, on its own this
is unlikely to address
the ongoing issue of under-resourcing, and we note the importance of continued
attention to this issue.
- In
relation to the expert consent panels, the Commission supports the inclusion of
at least one iwi- nominated representative under
clause 3, Schedule 5. We
recommend that Te Tiriti partnership would be better reflected by providing for
an equal number of iwi/non-iwi
members. (cf clause 4,
Schedule 5). The Commission supports the requirement for panels to include
members with
Recommendation 11
Amend clause 3, Schedule 5 to provide for an equal number of iwi- and
Crown-nominated members.
Recommendation 12
Amend clause 8, Schedule 5 to include a requirement for Tiriti expertise.
expertise in tikanga and mātauranga Māori (clause 8, Schedule 5). We
also recommend that the latter provision is further
strengthened by adding
Tiriti expertise to the collective skillset required of panels.
- The
Bill requires panels to seek comment from certain persons, including iwi
authorities, treaty settlement entities, or any other
the person the Panel
considers appropriate. While welcoming that
32 Waitangi Tribunal, (2019), Stage
2 Report on the National Freshwater and Geothermal Resources Claims, Wai
2358, at p 523, 528, 561.
this provides some opportunity for mana whenua to have input into the consent
process, the Commission notes with concern the very
short period for comment (10
days), particularly in light of the under-resourcing issues noted above. The
right to ‘free, prior
and informed consent’ requires adequate time
and resource to engage effectively. We also note that while there is provision
for the Panel to hold a hearing if they choose, there is no requirement for them
to do so. This further curtails the ability for
mana whenua to present their
views, ensure they have been understood, and have meaningful influence on the
decision.
- The
Commission also welcomes that several of the identified listed projects in
Schedule 2 of the Bill involve partnerships between
Crown agencies and Iwi.
However, we note with concern that by effectively giving legislative approval to
listed projects, this aspect
of the represents a significant curtailment of the
participatory rights guaranteed under Te Tiriti and committed to under human
rights
treaties and declarations.
- Our
above recommendations seek to enhance the alignment of the Bill with Te Tiriti
and human rights obligations. However, we note
that overall the Bill falls far
short in terms of Tiriti partnership and the free, prior and informed consent
obligations affirmed
in the Declaration.
PART TWO: HUMAN RIGHTS IMPLICATIONS ARISING FROM THE
ACT’S OPERATION
Achieving the purpose of the Act
- Clause
19 is a crucial provision within the Bill as it establishes the factors the
Minister must take into account when considering
whether a project fits with the
purpose of the legislation.
- Under
the current version of clause 19, the Minister may consider the economic costs
and benefits as well as social and cultural wellbeing
of current and future
generations. This can involve not only looking at what benefits are being
proposed, but also who will reap those benefits. Similarly, in relation
to costs, the Minister can consider what costs are being proposed
and whether they will be disproportionately felt by already marginalised
communities or create further disparities.
- While
a number of the current subclauses allow the Minister to consider factors
relevant to the realisation of human rights, such
as social and cultural
wellbeing and environmental impacts, this section could be strengthened to
provide better and more equitable
opportunities for the recovery.
- Given
that the current purpose of the Bill is to promote employment growth to support
New Zealand’s recovery from both the economic
and social impacts of
COVID-19, it is important to recognise the disproportionate impact that the
pandemic had on already vulnerable
communities.
- It
follows that the duty of the Minister to consider the matters set out in clause
19 should be mandatory. This requires the changing
of the current word
“may” to “must”. This ensures these matters are
mandatory relevant considerations, rather
then merely permissive. Given that
this Bill is legislation that authorises decision-making that engages the
national interest, it
is appropriate that the Minister is required to consider
these factors.
Recommendation 13.
Amend Clause 19 to impose a mandatory duty upon the Minister to consider the
factors listed therein, as follows - “...for the purpose of section
18(3), whether a project will help to achieve the purpose of this Act, the
Minister must consider any or all of the following
matters...”
Inclusivity and equal employment
opportunity
- A
number of international treaties codify the right for all persons to
work.33 However we know that even prior to the pandemic, some
communities were more likely to be impacted by
unemployment,
33 International Covenant on Economic, Social and
Cultural Rights (Articles 6 & 7), Convention on the Elimination of All Forms
of
Discrimination Against Women (Article 11); the Convention on the Rights of
Persons with Disabilities (Article 27); the Convention
on the Elimination of All
Forms of Racial Discrimination (Article 5); and the International Convention on
the Protection of the Rights
of All Migrant Workers and Members of Their
Families (Article 25).
low-paid employment or unstable employment, for example women, Māori,
Pacific peoples, persons with disabilities, migrants,
older persons, youth and
those in the rainbow community.
- While
time will tell what the full impacts of COVID-19 will be on New Zealand’s
economic situation, some of the early evidence
is already showing the
disproportionate impact on Māori34 and other
ethnicities35 as well as people under 30.36
- An
economic and social recovery founded in human rights principles should recognise
and address the structural inequalities in existing
systems which create
disproportionate outcomes.
- A
lens of accessibility and inclusion can fit within the Minister’s
assessment under clause 19. Inclusive employment practices
which encourage equal
employment opportunities for all to be involved in the recovery projects are
also critical.
Accessible projects
- The
COVID-19 recovery is an opportunity to help build an inclusive society for
Aotearoa. Making sure that projects take accessibility
into account will make a
significant contribution to realising this opportunity.
- Accessibility
is a precondition for disabled people to live independently and participate
fully and equally in society.37 It is related to disabled
people’s right to participate and be included in their
communities38 and to be free from discrimination.39
- Universal
design means the design of products, environments, programmes and services to be
usable by all people, to the greatest extent
possible, without the need for
adaptation or specialised design.40 Universal design can provide
measurable economic and social benefits for everyone – particularly older
people, children, disabled
people and people with access needs, and culturally
and linguistically diverse groups.
Recommendation 14.
Include the following paragraphs in clause 19:
(x) Whether the project is being developed with and for people or communities
who are more vulnerable or have been more severely
impacted by the COVID-19
epidemic.
(xi) the degree to which the project will deliver equitable social and economic
recovery of people and communities disproportionately
affected by COVID 19.
(xii) Whether the project promotes or improves accessibility and universal
design.
(xii) When considering projects for fast-track, the
Minister should consider how closely the project conforms to or promotes
universal
design principles and accessibility. This is a chance to ensure that
the opportunities missed in the Christchurch rebuild are taken
during this reset
and recovery.
Expert Consenting Panel
Extending
the experience of Panel members
- We
note that schedule 5, clause 8 provides that Panel members are required to have
the knowledge, skills, and expertise relevant to
resource management issues; the
technical expertise relevant to the project; and expertise in tikanga Māori
and mātauranga
Māori.
34 Almost 50,000 Māori were accesing the
Jobseeker benefit in May 2020, making then 40% of those accessing the benefit in
May 2020,
Ministry of Social Development, Monthly
Benefits Update – May 2020.
35 Non- Māori, non-Pākeha, non-Pacific peoples accessing
the Jobseeker benefit increased by 72% according to the Ministry of
Social
Development, Monthly
Benefits Update – May 2020.
36 Under 30’s accessing the Jobseeker benefit were 45% of
those accessing the benefit in May 2020, Ministry of Social Development,
Monthly
Benefits Update – May 2020.
37 Article 9 of the Convention on the Rights of Persons with
Disabilities. 38 Article 10 of the Convention on the Rights of
Persons with Disabilities. 39 Article 5 of the Convention on the
Rights of Persons with Disabilities. 40 Article 2 of the Convention
on the Rights of Persons with Disabilities.
- While
the Commission supports the inclusion of these factors, we consider that it is
also important that Panel members have skill
and knowledge in Te Tiriti, human
rights, and broad experience.
- We
suggest that skill, knowledge and experience in accessibility and universal
design principles is vital, given the likely impact
of large-scale
infrastructure and development projects on the rights of disabled people. The
government has a duty to ensure that
new projects and infrastructure works
conform with the accessibility and universal design requirements of the
Convention on the Rights
of Persons with Disabilities. In its General Comment on
the right to accessibility under article 9 of the Convention on the Rights
of
Persons with Disabilities, the UN Committee of the Rights of Persons with
Disabilities has held that States Parties must ensure,
among other things
that:
All new objects, infrastructure, facilities, goods,
products and services have to be designed in a way that makes them fully
accessible
for persons with disabilities, in accordance with the principles of
universal design.41
Recommendation 15.
Amend schedule 5, clause 8 to require that Panel Members must collectively have
skills, experience and knowledge in universal design
and accessibility; are
representative of the diverse range of groups in the community; and demonstrate
an understanding of Te Tiriti
and human rights.
41 Committee on the Rights of Person with
Disabilities, General comment No. 2 (2014) Article 9: Accessibility,
CRPD/C/GC/2, paragraph
24
SUMMARY OF RECOMMENDATIONS
Recommendation 1.
In
reviewing the Bill, the Select Committee should consider enhancing participation
opportunities and Tiriti- based decision-making
as an enabling factor for good
decision-making.
Recommendation 2.
Amend clause 4 to include the promotion of Te Tiriti
and human rights in the purpose clause.
Recommendation 3.
Amend clause 4 to introduce a new subsection that
provides that a purpose of the legislation is to uphold the government’s
Te
Tiriti and domestic and international human rights commitments; and promote
equal employment opportunities and social inclusion for
equitable
outcomes.
Recommendation 4.
Revise clause 10 to ensure that timely, efficient and
cost-effective decision-making does not limit the duty of persons performing
functions and exercising powers under the Act to do so consistently with the
purpose of the Act, Te Tiriti o Waitangi and the government’s
domestic and
international human rights commitments.
Recommendation 5.
Amend clause 3 to reduce the duration of the Bill to
one year and require periodic review by Parliamentary Select Committee during
its operation.
Recommendation 6.
That the Committee give particular attention to
submissions from Iwi and the extent that Iwi input has been reflected in the
final
bill.
Recommendation 7.
Amend clause 6 to refer to “Te Tiriti o
Waitangi” rather than “the principles of the Treaty” in
subclause
(a). Add a further subclause “(c) promoting Tiriti partnership
decision-making and strengthening the Crown- Māori
relationship”.
Recommendation 8.
Add a new provision to clause 19(d) to include
“strengthening authentic Tiriti partnership and Crown-Māori
relationships”
as a public benefit to be considered by the Minister.
Recommendation 9. Amend clause 17 to provide for engagement with Iwi
prior to any decisions by the Minister to refer a project to a consent
panel.
Recommendation 10. Amend clause 32 to require an engagement period of 60
days, and at a minimum provide for extensions to the iwi and hapū
engagement
process when necessary.
Recommendation 11. Amend clause 3, Schedule 5 to provide for an equal
number of iwi- and Crown- nominated members.
Recommendation 12.
Amend clause 8, Schedule 5 to include a requirement for
Tiriti expertise.
Recommendation 13.
Amend Clause 19 to impose a mandatory duty upon the
Minister to consider the factors listed therein, as follows - “...for
the purpose of section 18(3), whether a project will help to achieve the purpose
of this Act, the Minister must consider
any or all of the following
matters...”
Recommendation 14.
Include the following paragraphs in clause
19:
(x) Whether the project is being developed with and for
people or communities who are more vulnerable or have been more severely
impacted
by the COVID-19 epidemic.
(xi) The degree to which the project will deliver equitable social and
economic recovery of people and communities disproportionately
affected by COVID
19.
(xii) Whether the project promotes or improves accessibility and universal
design.
Recommendation 15.
Amend schedule 5, clause 8 to require that Panel
Members must collectively have skills, experience and knowledge in universal
design
and accessibility; are representative of the diverse range of groups in
the community; and demonstrate an understanding of Te Tiriti
and human
rights.
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