Crown Minerals Amendment Bill

It is interesting, in debating this clause tonight, to examine the bill to try to establish its the purpose. One of the important things in debating the title of a bill is to make sure that the title fits its purpose, otherwise the title can be misleading. One of the extraordinary things one finds, if one examines this bill, is that there is no purpose clause, that I can find. We do not often find a bill that has no specified purpose. That is a major deficiency in this legislation, because it makes it difficult to judge the accuracy of the title.

Clause 1 is the title clause, clause 2 is the commencement clause, and then the bill goes on to Part 1, which gets into interpretation and all sorts of things but does not actually spell out a purpose. However, it is quite clear, when one reads through the various provisions, that the main purpose of the bill is to expunge what may be existing property rights.

People who had licences under the old mining legislation, the Mining Act and the Coal Mines Act, had property rights, but if people had to apply for permits under the Crown Minerals Act, the principal Act that this bill amends, they no longer had property rights. What is hugely important about this legislation that we are debating tonight is that it expunges property rights. It makes it very clear, despite court rulings and controversy. In 2000, a mining business, Glenharrow Holdings, took the issue of its right to renew a mining licence to the High Court, under the Mining Act. The Acting Chief Justice held that Glenharrow Holdings had a right to seek to renew that mining licence. That meant Glenharrow Holdings had a right to continue the property right that it had prior to the introduction of the Crown Minerals Act.

Despite that High Court ruling, this Government is moving to expunge those property rights. If that is the case, and it is pretty clear I am right that that is the case—that is what this legislation does, in effect—then the title is quite misleading. For the title simply to be Crown Minerals Amendment Bill it could mean that it is amending anything to do with the Crown Minerals Act, but it does not amend absolutely anything in the Crown Minerals Act. This bill amends one very specific part of it, and that is that if there is any notion that mining businesses may have a property right under the old Mining Act or the Coal Mines Act, this legislation will expunge that property right.

Far from the title Crown Minerals Amendment Bill being an appropriate title, the title should establish what the bill really does. The title should be something like “Mineral Property Rights Bill”. What is the noun of the verb to expunge? Where is a literary expert among my colleagues here? Where is that eminent lawyer Dail Jones? What is the noun of the verb to expunge?

💬 Dail Jones: Extinguish!

Dr the Hon LOCKWOOD SMITH: A more accurate title would be “Mineral Property Rights Extinction Bill”, because that is what it does. It extinguishes any notion that businesses have property rights prior to the courts finally deciding the issue. As I understand it, the issue is currently being taken to the Court of Appeal. In 2000, the High Court decision in the Glenharrow Holdings case, in front of Acting Chief Justice Heron, held that property rights existed. A second High Court judgment may have ruled otherwise and it is now going to appeal, and this Government is legislating over the top.

Before I call the next speaker, who will be the honourable member Pansy Wong, I just remind members of Speaker’s ruling 90/1, which is in the name of Speaker Gray and Deputy Speaker Braybrooke, which states that “the debate on the title clause in committee is limited strictly to the elements of that clause and any amendments proposed to it.”

Mr Chairman, I feel that I should take that comment personally. I have not even started my first sentence, and I am getting a warning. I can assure you that my speech will be very relevant to the title. First of all, I congratulate my learned colleague Dr the Hon Lockwood Smith on actually coming up with a title that is a lot more appropriate than the current one. I remember from the first reading of the Crown Minerals Amendment Bill that one reason for the outrage expressed by the industry operators is that they were reassured by the Labour Government that this bill was just a minor bill to make some changes to the administration relating to the Crown office. But somewhere between then and the time when the bill was actually introduced to Parliament, industry operators discovered that the Crown Minerals Amendment Bill was not just to amend some administrative procedure. In fact, major changes were being made to the legislation in order to extinguish the mining licences granted under both the Crown Minerals Act of 1991 and the Mining Act.

I think that the industry operators are absolutely valid in their outrage, because they should, during the initial consultation stage, have been made aware that in effect this amendment bill did not relate to any minor administrative amendment. At the stage they made submissions, they were reassured by the Ministry of Economic Development that they were to be consulted, and they believed that what they were being consulted on was some technical amendment, and nothing major was expected.

I would like to support my colleague Dr the Hon Lockwood Smith and say that the Labour Government should at least be upfront and honest as to the intention of this bill and rename it the “Mineral Property Right Extinction Bill”, or at least call it the “Crown Mineral Major Amendment Bill”. The title should at least reflect the issue of the property rights being legislated away.

I was on the Commerce Committee and had the opportunity to listen to quite a few submitters, and most of them expressed their outrage at not being included in the consultation process. They were totally, totally misled by the bill because of its title. At first all of them thought they were being fully consulted on certain administrative amendments to the bill; then, when the bill was introduced to the House, they all subsequently discovered that in effect their property rights were being legislated away. They actually have not been consulted on this issue.

I wonder what happened to the modern practice of our Parliament being able to say that each piece of legislation should have a title that will inform the public and the industry or the business concerned of the clear intention of a bill. This Labour Government—which is continuing to try to convince the public that it always believes in frank and honest exchange, and would properly include the public during the consultation process—should at least start off by giving a proper name to any piece of legislation, so that the Government ensures that any sector involved would be alert to any major issues affecting its industry.

The title of this bill is the Crown Minerals Amendment Bill, but this bill does not really amend the Crown Minerals Act. It is in fact the “Crown Minerals High Court Repeal Bill”. This bill tries to cement into place a means of destroying our legal system by closing the loophole that has appeared in the Crown Minerals Act. The issue went to the High Court, and the High Court has come out in a particular way that this Government does not like.

💬 Dail Jones: Again.

Once again! So this bill is an attempt to shut that down. This Government had problems with this bill in the High Court, and will have them particularly once it gets to the Privy Council. So the Government has tried to circumvent that process. Another alternative for the title is the “Closing the Gaps in the Crown Minerals Act Bill”.

💬 Pansy Wong: Gaps?

This is trying to close the gaps. There are huge gaps. But, once again, this Government does not like dealing with closing the gaps, does it? That is something that it does not like to hear about. The Government has decided to close those huge gaps in a rather peculiar way—by bringing in a bill that it calls the Crown Minerals Amendment Bill. But, unfortunately, it is all to do with a particular case—the Glenharrow Holdings Ltd case, where that company had the right to mine greenstone. So perhaps the bill should be called the “Crown Minerals (Stop Glenharrow Holdings Mining Greenstone) Amendment Bill”.

💬 Pansy Wong: I want to know what gaps.

Oh, the member wants to know more about the gaps.

💬 Pansy Wong: What gaps?

Oh, the member wants more gaps! What about the “Stop Mining Greenstone (Gaps) Bill”? The gaps that the legislation has created have been rather extraordinarily changed; the Government has tried to legislate against them. Glenharrow Holdings tried to exert its property rights, and this bill attempts to take away the right that it had under the legislation. It had the right to vary its licence and its permit. That legislation had a grandfather clause that allowed it to do that, but this bill has changed things. Perhaps another title could be the “Remove all Grandfather Clauses Bill”, because that is what it is doing: it is trying to remove the grandfather clause from both the Crown Minerals Act and the Glenharrow Holdings Ltd case that came up in 2001. This bill is really to try to close those gaps, and I am afraid the attempt just misses the mark. We could give to this bill another title, and that is the “Total Waste of Time Bill”, because that is what it is doing; it is wasting time. The Minister came out and set a date on which everything would stop, so nobody could make any more applications to extend their licences, and he did that by press release. So this is the “Government by Press Release Bill”.

💬 Rodney Hide: It was the “former” member, Harry Duynhoven.

It was the “former” member Harry Duynhoven who did that—that is right. I thank Mr Hide for that. I had forgotten that it was the “former” member Harry Duynhoven who issued that press release. I certainly hope that by doing so, he has not extinguished all their rights.

I move, That the question be now put.

I have a whole lot of new material that I am sure the Committee will be interested in, on the title of this bill, the Crown Minerals Amendment Bill. There is an old cliché that says: “Never judge a book by its cover.” But the problem with that old saying is that it is quite deep and meaningful. There is quite a bit in it. Sometimes it is used to refer to people. But it is actually quite accurate in the case of this socialist Labour Government: “Never judge a bill by its title.” This bill should be described as the “Never Judge a Labour Socialist Bill by its Title Bill”, because it will have no significance whatsoever in terms of what it contains.

If members look at this legislation they will see that that is absolutely so. If one has a look at the fact that this legislation is amending the Mining Act 1971, the Coal Mines Act, and the Crown Minerals Act, one will see that the title has no relevance to what is being achieved. In fact a better title would be the “Jackboots Across All Property Rights Bill”. That would be a good name for this bill. If members look at what happened in the case presided over by Acting Chief Justice Heron in the High Court, they will see that he found that there was an explicitly worded priority right in mining licence providing a built-in protection once mining has started. When one looks at that case, and that finding, and looks at what has been proposed in this bill, one sees that this title has no relevance whatsoever to what this Government is proposing—absolutely none.

Once again Labour is being propped up by the Greens and various machinations of people who come to this Parliament to support it—a whole range of different misguided socialists are propping it up—and once again, through legislation by stealth, the Government is stealing property rights from those who have worked hard, developed an industry, have a successful profit line, will make a contribution to New Zealand, and can contribute to growth, which this Government talks about but it does the opposite. This title bears no relevance whatsoever to the purpose of this legislation.

A further suggested title for this legislation might be the “Hon Paul Swain Misguiding the Mining Industry Bill”. The Hon Paul Swain, in the first reading of this legislation, told Parliament that it would not be retrospective. So perhaps the title should be amended to the “Labour Party Once Again Introducing Retrospective Legislation for its Own Political Expediency Bill”.

There are a range of suggestions, obviously, that would be more apt at describing what this bill actually does. But the most important issue, and I guess the most important title that should be considered, is “Legislating Across Private Property Rights (the State Knows Best) Taking Property Rights from People Bill”. That would be a much fairer description. The title in no way whatsoever represents anything at all of any significance that is in this legislation.

It is interesting to note that the Commerce Committee was very divided. The very good National and ACT members on that select committee put together a minority report. The National member opposite to me, Pansy Wong, was, I believe, part of that select committee—

💬 Pansy Wong: The first part.

She was present for the first part of that select committee that looked at this legislation, and she made a very worthwhile contribution to the title of the bill. Of course, she will be in a much better position to judge that than most of the members on the other side of the Chamber tonight, who will not have a clue what is in the bill, let alone what the title should be, and clearly I would listen to that member’s comments in relation to what the title of this bill should be, before I listen to Government members. They have a habit of coming to this Parliament—and certainly they have ramped that habit up in recent times—with all sorts of “snatch property rights” pieces of legislation, think nothing of it—and they draw very long faces at my suggestion about that.

I move, That the question be now put.

The ACT party arises to oppose this bill, and I agree with the National Party and Brent Catchpole of New Zealand First that the title of this bill has to be absolutely wrong. Members may not remember the Hon Harry Duynhoven, because under the electoral law of New Zealand he has gone. I am quite pleased to see that he is not sitting in the Chamber, because he is not legally entitled to be here. But this is his first mess-up as a Minister. He put out a press release to tell New Zealanders that they did not have the property rights that they thought they had. They had gone to the courts and won, and the Government was going to turn around and extinguish those property rights, and that is what Harry Duynhoven announced in his press release.

So the title of this bill should be the “Saving Private Harry Bill”, because that is what this bill is about—a Minister not prepared to follow the law of the land. When speaking to the title of this bill—the Crown Minerals Amendment Bill 2001—one gets the sense that this is just a little tidy-up of the legislation rather than the extinguishing of people’s hard-fought property rights. So we hear from a Government that, on the one hand, says: “Oh we can’t legislate here, we can’t legislate there, we can’t make this retrospective, we can’t do that.” But when it comes to this bill the Government is not even prepared to explain in the title to New Zealanders that this Parliament is extinguishing miners’ property rights, over which the Hon Harry Duynhoven—rest in peace—in his brief career, sort of like a moth flittering around a light, as an Associate Minister responsible for mining, got himself caught in the high wire of the legislative and legal processes.

Was that not something to come? This bill, according to the ACT party, should be called the “Saving Private Harry Bill”. Of course, we oppose any suggestion that there should be a second bill—a “Saving Private Harry Bill (No 2)”—in order to save a Minister who, in every decision that he has made, whether it is a member’s bill for his own advantage, or one as Minister, finds himself incapable of following the law of the land—

The CHAIRPERSON (H V Ross Robertson): This is not an opportunity to go on about a Minister. We are talking to the elements of the bill.

Yes, and I am explaining that the title of this bill is very much wrapped up with the behaviour of the Minister. I am sorry, but it was the Minister who put out the press release, which was the first that miners knew. I know that Shane Ardern will support me in that. I know that Dr Nick Smith will support me in that. You, Mr Chairperson, could have read about it in the Independent newspaper.

The ASSISTANT SPEAKER (H V Ross Robertson): Do not bring me into the debate.

We certainly heard it in the select committee, and that is my point. This bill is all about the Minister, Harry Duynhoven, who had a brief career in this Parliament.

💬 Jill Pettis: That has nothing to do with it. Speak to the title.

I am speaking to the title. If Ms Pettis has a point of order she should stand up and take it. If she cleaned her ears out and listened with what brain she has, she would understand that if it were not for Harry Duynhoven, we would not be having a debate on this bill right now. If Harry Duynhoven had not put out that press release, we would not need to be here debating this matter. That is understood by everyone who sat on the select committee and by everyone on this side of the Chamber. Why does Jill Pettis not understand? I guess it is what she said before about the difference between those who sit on that side of the Chamber and those who sit on this side—about 35 points IQ on average. Poor Jill Pettis cannot read what is in this bill. Poor Jill Pettis does not understand the history. Poor Jill Pettis does not mean Harry Duynhoven’s press release—

I move, That the question be now put.

The CHAIRPERSON (H V Ross Robertson): I am very tempted but I will hear the Hon Dr Nick Smith.

Thank you, Mr Chairman. I thank Mr Hide for his contribution and I want to put the case to the Committee that the bill should be titled “Labour Party Double Standards Bill”. I have been listening to the radio a lot on the foreshore and seabed case, and have heard Government Ministers saying—

💬 Jill Pettis: Oh, that’s right!

Let me explain to Jill Pettis. I have listened to Ministers, and she has been saying we have to follow the court decisions; if the court decides a particular way, we have to accept that decision. Well, this bill is driven by the fact that some companies went to court, got a positive decision—had a winning—and this bill will unravel it. That seems to me like double standards. The Government cannot say—and have the Minister John Tamihere going around saying—that Māori can go to the courts and if they have a win in the courts, then it is quite wrong for this Parliament to change it, but when we come to this bill we have a different set of rules and say: “No, no. If Pākehā have a win in the courts, we’ve got to legislate across it.” That is why I say that a far more appropriate name for this bill would be “Labour Party Double Standards Bill”, because with that title we get a flavour of the double standards that are exhibited by Government members.

When it comes to impacting on Ngāi Tahu’s greenstone rights, which this bill is all about, the Government says to forget about what the courts say about people’s mining rights, because the Government will just cut across them; it will get rid of them. It will use the power of the legislation to overrule the decision. But if the table is turned the other way round, and it happens to be Māori contesting their rights, as they see it, for the ownership of the foreshore and seabed, then Government Ministers say the courts have to be able to do their thing, and New Zealanders just have to live with it. That does not seem very consistent to me, nor, as my colleague Shane Ardern, the very capable member for King Country – Taranaki says, does it sound very fair. It is distinctly unfair. That is why I say this bill should be called “Labour Party Double Standards Bill”. The Government wants one set of rules for one group of New Zealanders, but if one happens to be a Labour lackey there is a different set of rules.

I do not think that that is a very fair way for this Parliament to conduct its business. It should be made on the basis of some principled decision-making, and as an Opposition we do not believe that the provisions in this bill are principled. We do not believe that it is fair to be saying to those people who obtained their mining licences through the 1971 Act that, despite their court win, the Government will cut across their mining rights licence. So we say call it the “Double Standards Bill”. Call it what it is—call it for the double standards that we continually see from Ministers, with this piece of legislation and so many others. Members on this side of the Chamber promote one standard of citizenship, because whether or not one is—

💬 David Benson-Pope: The member even gets his own policy wrong.

Mr Benson-Pope gets all excited. I would like him to explain—

💬 Opposition Member: Who? “Benson-Dope”?

“Benson-Dope” I think—

The CHAIRPERSON (H V Ross Robertson): That is out of order. The member will apologise.

Benson-Pope. I would like him to get to his feet to explain why we have heard from Ministers, time and time again, who have the attitude that when Māori win their case in the court, so be it, but when Pākehā win in the court they want to bring in legislation such as this to cut across it. That seems to me, with my basic sense of Kiwi fairness, to be wrong. I would like the Minister in the chair, or Mr Benson-Pope, to get to his feet and explain why Ministers seem to be singing two different tunes. If they cannot, then this bill should be called the “Labour Double Standards Bill”—reflecting Labour’s sets of rules where there is one set of rules for one group of citizens but if one happens to be a group of citizens who support the Labour Party, then there is a different set of rules.

💬 Jill Pettis: Ha, ha!

It is not good enough. I would like Jill Pettis, who has so much to say, to get to her feet and answer that basic point.

I move, That the question be now put.