Exclusive Economic Zone and Continental Shelf (Environmental Effects) Bill

Kia ora tātou, nō reira e te Whare. Tēnā koutou, tēnā koutou, tēnā koutou katoa. Good afternoon honourable members. The House is in Committee on the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Bill, also the Regulatory Reform Bill, the Trade (Safeguard Measures) Bill, and the Taxation (Annual Rates, Returns Filing, and Remedial Matters) Bill. When the Committee last considered the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Bill, we had reached Part 3. The question is, therefore, that Part 3 stand part. I call the honourable member Jacqui Dean.

Good choice. Good choice, Mr Chair. Thank you very much for the opportunity to speak on Part 3 of the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Bill.

💬 Chris Hipkins: I raise a point of order, Mr Chairperson. I am sorry to interrupt the member, who I think genuinely believed that she had the call, but my understanding is that when this debate was last interrupted there was a member in the middle of a call, or getting towards the end of their call but had not concluded.

The CHAIRPERSON (H V Ross Robertson): Well, all I can say to the honourable member is that according to the drill sheet that I have here it said that we had reached Part 3, and the question is that Part 3 stand part.

💬 Grant Robertson: I raise a point of order, Mr Chairperson. I may be able to clarify.

The CHAIRPERSON (H V Ross Robertson): Please do, Mr Robertson.

💬 Grant Robertson: I was the member on my feet at that time. I understand that I had 5 seconds remaining on my call, during which time I would have asked the Government to support Charles Chauvel’s Supplementary Order Paper 95. Thank you.

The CHAIRPERSON (H V Ross Robertson): Well, I guess that that is a good one.

The Exclusive Economic Zone and Continental Shelf (Environmental Effects) Bill Part 3 is where the rubber effectively hits the road with this piece of legislation, because it is the part that deals with, or provides for, objections to the Environmental Protection Authority and also appeals to the High Court on questions of law. Subpart 2 of Part 3 provides for enforcement of the bill by providing for the Environment Court to issue enforcement orders, and that is under clause 113, and also—and I am about to refer to the Minister’s Supplementary Order Paper 100 here—offences and penalties under clause 124 and clause 125, which, of course, with the Minister’s Supplementary Order Paper have increased from $600,000 through to $10 million. It also deals with the appointment of enforcement officers under clause 129. So it is a really important portion of the exclusive economic zone legislation, because it provides the backstop. It provides the accountability for any activities that are consented under this new regime in the exclusive economic zone and the extended continental shelf.

Just for a bit of context about why this is so necessary, I think it is probably good for the Committee to remember that the current regulatory regime has got some significant gaps in it, which means that there are a number of activities that are currently occurring inside the exclusive economic zone that are, in effect, unregulated. So the assessment of the effects of activities—that is, other than fishing in the exclusive economic zone—on seafloor habitats and on biodiversity, which might be as a result of seabed mining, is lacking. There is a gap in the assessment of the effects of activities on biodiversity in the water column. That refers to the effects of seismic surveys on marine life. None of those considerations are currently taken account of in legislation.

Also, there is a gap in the assessment of the effects of new activities on existing interests—for example, the effects of a petroleum platform on surrounding fishing and shipping—and of the management of the cumulative effects of all activities in the exclusive economic zone and the continental shelf, as they are regulated under different and multiple regimes with a differing and variable ability to take into account the sorts of activities in decision making. So there is a gap there. In fact, I would argue that there is quite a yawning gap. This Government took action back in 2006, when Cabinet proceeded to the development of a legislative framework to tidy up the gaps in the regulations around activities in the exclusive economic zone.

Why are these gaps a problem? There is not terribly much that happens in the exclusive economic zone, and we have been told that and we understand that. So why are these gaps a problem, and why is it so necessary to have inserted in this bill parts like Part 3? This part provides for objections to the Environmental Protection Authority, which is the determining body of activities, along with appeals to the High Court on points of law, and also provides for and describes offences and penalties. Why is that so important, and why is it a critical part of this exclusive economic zone bill? Well, there is, of course, the potential for unregulated activities such as we have now, could have in the future, and did have during the term of the previous Labour Government to cause environmental harm. That environmental harm could impact on a lot of things: on marine life, on marine habitats, and also on marine biodiversity. Because of the nature of some of the activities that occurred, occur, and might occur in the exclusive economic zone, some of those impacts could be quite severe—for example, oil spills and the destruction, due to dredging of the seabed, of significant benthic communities.

There is also—and I think this is pretty critical and germane to this bill—no mechanism for ensuring public participation in decision making around these activities. So it is beyond me why Labour and Greens are opposing this bill. I can only come to the conclusion that Labour and the Greens in this House and in this Parliament are quite satisfied with the 9 years of the previous Labour Government and the state of affairs where there are yawning regulatory gaps in this legislation. They are opposing this exclusive economic zone bill, and I can only conclude that they actually do not care that much about what is happening in the exclusive economic zone. Maybe because it is so far out to sea, they do not particularly care about what happens out in the exclusive economic zone. Well, I can assure the Committee that this party does, and that is why this party has brought this exclusive economic zone bill to the House.

Just briefly on Part 3, the enforcement of offences and penalties is very closely described in some detail. If members would have a look at clause 113, they would see that it is quite explicit in what it requires people who are undertaking activities in the exclusive economic zone to do. For example, if there is “an order made by the Environment Court or an Environment Judge”, it has the effect of requiring the person “to stop doing something”. That is just a few words in this bill, but what that might mean is quite a significant penalty and impact on some activity in the exclusive economic zone. Part 3 is a significant and substantive part of this bill. Thank you.

I think it says more about the member who just taken her seat, Jacqui Dean, than it does about members of the Opposition if, after all the time we spent together on the Local Government and Environment Committee, and all the speeches in this Chamber, she still does not understand why Labour and the Greens oppose this piece of legislation, the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Bill. She said that it is because the exclusive economic zone is far away—it is far away. This was someone, of course, who did ask a submitter whether the ocean could be described as a deep-water marine environment at the select committee, so I have to say that Jacqui Dean is being very disingenuous when she says she does not understand why we oppose this legislation. We oppose this legislation because it simply is not consistent with our international obligations and it does not provide the level of environmental protection that the community wants and that we should be expecting in an environment as precious as our marine environment, which so much of our economy relies on. We contacted the Minister for the Environment, Amy Adams, and we tried to work with her to find a compromise where we could get a settled cross-party agreement, so that there would be certainty for everyone. We were rebuffed on that. That is the reality of what happened, instead of the fiction that we have just heard from Jacqui Dean.

Part 3 of this piece of legislation is around appeals, enforcement orders, and abatement notices. One of our big concerns about this part is that unlike under the Resource Management Act, where submitters or opponents are able to take a case to the Environment Court on points of fact where they disagree with an issue, where new information has come to light, or where they do not think the decision was right, they can take it only on points of law to the High Court under this exclusive economic zone legislation. As I said in my speech yesterday, a jurisdictional line has been drawn between our territorial waters and the exclusive economic zone. It is only jurisdictional. Many, many other pieces of legislation in New Zealand operate across both perfectly adequately. Whether that be fisheries legislation, whether that be health and safety legislation, or whether that be maritime legislation, they do not have any problems differentiating between our exclusive economic zone and our territorial waters.

Apparently this is one piece of legislation where it is absolutely impossible to get consistency between the two. We disagree with that, and one area where we do disagree is in the taking away of the rights of people to access the Environment Court on points of substance. I think it is a false economy to think that you are going to save a lot of time and money by doing this. One of the things the Environment Court has done—and there are plenty of protections in there to avoid vexatious claimants—is taken a lot of that negotiation and a lot of that mediation offline and out of that process. Because all parties know that there is potential for that to happen, and there is that recourse, a lot more effort is put into making sure that obvious issues are dealt with up front and that obvious stakeholders are consulted, unlike what we saw up on the East Coast with Petrobras, where local iwi heard about it on the 6 o’clock news. That is not adequate. What we know is that under Resource Management Act legislation it does provide an incentive for people to try to sort out as many of those issues as they possibly can, before they get to the actual legal process. We note, of course, with some concern that the Government is now moving to remove that ability under the Resource Management Act as well, and talking about these plans of regional significance, which will no longer be able to go through that full court process. We are concerned about that, as well. To parties who are voting for this bill because they like more alignment with the Resource Management Act, just be aware of where the Resource Management Act is going. Suddenly, being aligned with the Resource Management Act may not be as flash a thing as it used to be in the past.

We have Supplementary Order Paper 95, in the name of Charles Chauvel, to delete the clause that states you can take an appeal only on points of law, and also to replace “High Court” with “Environment Court”. One of the interesting things about this is that when we come to the issue of enforcement orders, which the member Jacqui Dean was talking about, because of the experience and the knowledge held there, it is actually the Environment Court that deals with that. It is actually the Environment Court that issues the notice. It is the Environment Court that upholds it. The Environment Court, of course, has a lot of expertise in this area, and we just think that perhaps it should also be the court that is dealing with appeals when people have concerns about marine consents that have been granted, or, indeed, where an applicant has concerns that the requirements that the Environmental Protection Authority has put upon them are too stringent. So it should be there for all parties. To create this kind of new set of goalposts just because we have crossed over an invisible line in the ocean, which has nothing to do with resource management allocation, has nothing to do with science, and has nothing to do with environmental integrity—it has nothing to do with any of that; it is just an invisible jurisdictional line—and to suddenly say that the goalposts are a lot further away once you step over that line to us does not really make an awful lot of policy sense, unless what you are trying to do is streamline these projects and make it harder for communities to raise concerns.

I want to put that into context of the reality that a lot of communities face. We are already looking at local government, which is struggling to make a lot of these decisions. It may be the first port of call in some instances for communities that have concerns about applications that are going to the Environmental Protection Authority, where it might want its local authority to submit on behalf of the community. I look at the Gisborne District Council. It is a unitary authority with a low rating base. It does not have a lot of money to access the kind of research that these companies can access. There is not a lot of money in my community to access that research, particularly within some of the time frames that have been given. Because it will be up to the Environmental Protection Authority as to how it sets the timing of the hearings, there is a concern, again, that that timing could be so short so that these communities will not be able to even access those organisations that would be able to provide them with some help and with some assistance. The reality is that everything is weighed against communities that have concerns right from the beginning. We would like to have seen this legislation actually try to incentivise engaging with communities, not a piece of legislation that essentially could see stuff being pushed through against a community’s will when it does not have the resources to access the kind of research that some of these companies—which, remember, go all around the world doing these projects and have big research teams, because this is what they do on a regular basis—are able to access. They have access to vast amounts of money to produce that research. We would just like to see a little bit of a level playing field so that communities are not completely left out of the loop and are given a much higher threshold to jump over than the applicants that are applying to carry out the activity.

I just want to quickly touch on the issue of penalties. We are very, very pleased to see the dramatic increase in penalty. I really wish it could have been done at the select committee, and we would not have had to bash our heads against the wall asking why the penalties were so low. It would have been nice to have been done at the select committee, but it is great that it is being done here, and I want to thank the officials for all their work on this part, as well.

I come back to a core point, as well, which we will address in Part 4, which is the ability to actually collect the money and to ensure that it is there. We could have a penalty of $1 billion, but if these companies are simply going to fold or if we are unable to require bonds and insurance up front to ensure that that liability can be met, then it really does not matter what the penalty is. There were concerns, again, at the select committee about that, but we will come to that in Part 4. We have a Supplementary Order Paper in my name and there is also a Supplementary Order Paper in Gareth Hughes’ name to increase the rest of the penalties, because, of course, there are a range of penalties under the bill. We are only increasing one of them here. As we have said, we absolutely welcome that increase in penalty. It will provide a much bigger disincentive than the previous penalty, but, again, we really would question—and I am not sure whether the Minister in the chair is able to have the answer to this; she is the Minister of Conservation, so I am sure she is taking an active, active interest in the exclusive economic zone legislation—why none of the other penalties are being increased, because we also felt that they were inadequate. But we are not going to be churlish around the issue of the main penalty, as $10 million is a very, very, very drastic improvement on what was in the bill as it came to the select committee. Thank you.

I would like to correct some of the statements that Jacqui Dean made. I think she was more than mischievous in not accurately characterising the Green Party’s position on this bill, the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Bill. We supported the bill at its introduction because there is a huge gap in the environmental management of our oceans—the fact that we do not have legislation that provides for a consenting regime. But we have opposed it and continue to oppose it because of the major shortcomings of the bill: the fact that there is no hierarchy for matters of national importance, the fact that Treaty obligations are not well dealt with, and the failure to adequately provide for the protection and preservation of the marine environment in line with the United Nations Convention on the Law of the Sea.

In relation to this part, Part 3 of the bill is about what can happen after the Environmental Protection Authority makes a decision. It relates to objections to the Environmental Protection Authority’s decisions, appeals to the High Court and beyond on points of law, and enforcement. It is this fact that there are no appeals to the Environment Court and that submitters and applicants can appeal only to the High Court against a whole or part of an Environmental Protection Authority decision that is a major issue, because that is constraining access to justice—not having the full scope of appeal rights to the Environment Court. This was a deliberate policy decision by Cabinet, and we understand that it was made because Cabinet believed that the Environmental Protection Authority was already making decisions at the national level and was seen as being an expert body.

But, as the Royal Forest and Bird Protection Society noted in its submission, clause 97 of the bill provides for applications that deal with nationally significant cross-boundary issues—that is, across the 12-nautical-mile limit—to be dealt with by a board of inquiry, not by the Environmental Protection Authority. So surely this is already signalling that the Environmental Protection Authority does not have the same standing and expertise as other decision makers—the fact that you get this delegated to a board of inquiry. The Green Party supports Supplementary Order Paper 95 in the name of Charles Chauvel because it would provide for appeals to the Environment Court instead of restricting it to the High Court.

The experience with the Environment Canterbury (Temporary Commissioners and Improved Water Management) Act is instructive, because that legislation has disallowed appeals to the Environment Court and restricted them to points of law appeals to the High Court. Environment Canterbury has just notified decisions on the Canterbury Regional Policy Statement. There has been a slew of appeals from various parties, technically on points of law, but a lot of those appeals actually raise substantive issues of public policy around environmental management, and, in that case, the appropriateness of policies in the regional policy statement about whether they are adequate to control the allocation of water. Those sorts of public policy and public interest issues are much better dealt with by the Environment Court, given its specialist expertise, given the substantial technical skills of the commissioners, who sit alongside the judiciary, and given the court’s experience with mediation, such that a lot of cases are resolved before going to a formal court hearing.

I think the downplaying and setting aside of the role of the Environment Court in this bill is very short-sighted because it means that the focus is going to be very legalistic in the High Court, where you do not have that specialist expertise that the Environment Court has. I think we need to reflect on the fact that the Environment Court succeeded the Planning Tribunal. It has dealt with, and been fundamental in, developing the case law around particular bits of the Resource Management Act—the meaning of particular clauses and the legislation there. Similarly, this bill and the substantive issues about how our oceans should be managed would benefit from the Environment Court’s expertise and from allowing appeals to be taken there.

The Environment Court is also much more accessible than the High Court to lay people, so by restricting it to the High Court you are again constraining the ability of communities to engage.

The Environment Court is not bound by strict rules of evidence. It has powers of inquiry, which, when you are dealing with public policy issues like resource management and management of the oceans, are very useful. Given the substantive public interest issues that will come up in appeals, in our view Charles Chauvel’s Supplementary Order Paper should proceed because it reinstates those appeals to the Environment Court. I think doing away with the Environment Court is incredibly short-sighted. I think it reflects this Government’s focus on pushing development through as quickly as possible without taking significant account of environmental impacts.

The other matter I would like to comment on is clause 125 and the proposals in Supplementary Order Papers from Labour and from my colleague Gareth Hughes to increase those penalties. Like Moana Mackey said, it would have been good to see that done in the Local Government and Environment Committee, because Opposition members certainly raised this several times, but we were defeated there. The problem with the bill as it is currently drafted is that the penalties are the same as the maximum fines in the Resource Management Act—$600,000 for corporations and $30,000 for natural persons, plus there is a provision for continuing fines. But here we are dealing with major corporations with significant financial clout getting involved in activities that are very risky. There is an obvious need to substantially increase the penalties.

The Minister for the Environment’s Supplementary Order Paper 100 is a very useful step in the right direction, because it would increase the fines to $10 million for any offence involving a corporation. But that should be higher, and Gareth Hughes’ Supplementary Order Paper 102 provides for a more realistic penalty of $12 million, because we are dealing with oil and gas prospecting companies and the potential consequences of something like an oil well blowout are catastrophic. So it is very appropriate that the fine should be $12 million rather than $10 million. We recognise that even when you set fines at this level, of course they cannot compensate for the ecological consequences and the economic consequences of such a catastrophe. We will be supporting the Minister’s Supplementary Order Paper 100 on Part 3 if Supplementary Order Paper 102 does not get the support of the Committee. Thank you.

I am pleased to take a call on Part 3 of the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Bill. I just want to start by making a couple of comments. The first is to acknowledge why we are here. We know that there is a regulatory gap. We know that our exclusive economic zone and continental shelf offer significant opportunities. The question is, after a significant period when Governments did not move to fulfil this regulatory gap, whether here today parties in Parliament will support legislation to be able to do that. I am very pleased that we have seen the Māori Party and the New Zealand First Party shift to support this legislation, and I think one of the key reasons for that was there has been a Supplementary Order Paper.

One of the key aspects of our Supplementary Order Paper 100 addresses this issue, this Part 3 of the bill. If we look at Supplementary Order Paper 100, which has been put to the Committee, it has been supported by the Parliamentary Commissioner for the Environment. In fact, the Parliamentary Commissioner for the Environment has been very clear that she now supports this bill. One of the key aspects of Supplementary Order Paper 100 is to significantly increase the penalties. When you look through all of Part 3, everything that this part is about is saying that we want to decrease risk to our environment and ensure that there are adequate enforcement powers and adequate penalties to be able to do that. This Supplementary Order Paper massively strengthens that by taking it from $600,000 for the maximum penalty to $10 million.

Additionally, if you look through some of these clauses, we have had a great contribution from the community, and we have really strengthened the law as a result of that. I want to make a special mention of one of the submitters that came to the Local Government and Environment Committee and, I think, had a real impact on the committee. That was the Taranaki Regional Council. It has been undertaking activity in terms of marine consents in coastal waters for years. It came to our select committee with a very practical suggestion around the fact that there needed to be greater enforcement in terms of abatement notices, and our select committee acted. When you look at the provisions in the bill that deal with this—clause 122A right through to clause 122D—it really shows that we are serious about enforcement. But we are also serious about when the system might see that something is going wrong—about there being an ability for people to ask questions, or to ask for activity to be looked at or stopped. That really shows right throughout this part, whether it is the penalties, the abatement notices, or even if we turn to some sections around enforcement and the powers of enforcement officers—clauses 129, 130, and 131. They show a huge amount of power, in terms of being able to search vessels and get information.

So what I think this part is actually about is giving a lot of confidence in terms of our environmental management regime to say: “Yes, we do believe in exploring greater economic opportunities, but we want to ensure that there are some powers in there to prevent and mitigate risk.” That is a very sensible piece of legislation for this House to be passing. I want to acknowledge those parties that have realised that the changes through Supplementary Order Paper 100 are significant, and that have seen that the Parliamentary Commissioner for the Environment supports them. The Māori Party and the New Zealand First Party have taken practical measures to show their support for addressing this regulatory gap, and, ultimately, making our environmental regime stronger. Thank you.

I want to take just a brief call on the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Bill, partly to respond to that speech we have just heard from Nikki Kaye, and partly to ask the Minister in the chair, the Hon Kate Wilkinson, a question. I think, in fairness to the previous speaker, everybody in this House throughout the debate has acknowledged the importance of filling the regulatory gap that there is. There has been some disagreement among parties about how we do that, about the extent to which we need to have consistency with our international obligations, and about the extent to which we need to have consistency with our domestic law, such as the Resource Management Act. There has been a shift from the Government in that regard, which we welcome on this side of the Chamber.

If we are going to use Part 3 as the example of what Nikki Kaye has just said—she mentioned the importance of the community, and the importance of people having confidence in the system—that is the very reason why we have got an amendment in place around the question of appeals, and whether or not appeals can go to the Environment Court, because that is exactly the point of giving people the opportunity to have a say. Remember, under this law, appeals can be only on points of law. They cannot be on facts, and they cannot be on new information. If the member is serious about wanting to create a law that gives the community a say, and that ensures there is community confidence, I do not see how opposing the Supplementary Order Paper that we have tabled to bring the Environment Court back in, Supplementary Order Paper 95, would do that.

I think it would be good for the Government to stop and think and to listen to, for instance, the contribution from Eugenie Sage just now on what role the Environment Court can actually play in helping develop law in this area, because it is quite clear to anyone who has been following this debate that there will be significant dispute around some of the things that have been raised in this bill—for instance, the meaning of the phrase “favour caution”, or whatever you want to look at. There will be issues here. The Environment Court has actually played a very constructive role in establishing the body of law in practice with the Resource Management Act—

💬 Nikki Kaye: There are appeals around to the Environment Court, around abatement notices.

That is the point. But specifically in clause 103, on the question of appeals, that is why we have made that change. I mean, this is a genuine thing. I am not saying that the Government does not care about this; I am just saying that there is a better alternative, which we know about as a result of the Resource Management Act, that would facilitate the thing that the member just told us she was concerned about, which is the involvement of the community and the ability to build up that body of law that will give people confidence.

I appeal to the Government to have a look at the Supplementary Order Paper that exists on this, and to consider whether or not it could support both broadening the scope of appeals to be able to be on matters of fact as well as on matters of law and bringing the Environment Court back into that phase, because I do believe that that will make for better law in the long run in this area.

The other matter I wanted to just quickly raise was around the question of penalties, contained in clause 125. As I think I said in my earlier contribution on this matter, we welcome the fact that the Government has increased the penalty for someone committing an offence under this bill to the large figure of $10 million. That is great, but there is now an inconsistency created in the law, because the following provisions of clause 125 cover what happens in the event of a continuing offence, when somebody continues to break the law. That is defined quite clearly under clause 125(6) where it says: “The continued existence of anything, or the intermittent repetition of any actions, contrary to any provision of this Act is a continuing offence.”—so there is a very clear definition of what a continuing offence is—the Government has rightly said that this is such a significant area that it has to set a proper deterrent in place. It has to set something that is commensurate with the scale of what will be going on in the exclusive economic zone. It is $10 million for an offence—that is great.

But then we come down to clause 125(2), (3), and (4), and we have fines of $10,000 a day for a continuing offence. It is now completely out of whack. It is $10 million when you break the law, and then we drop all the way down to $10,000 a day. If it is a company—and these are large companies that are involved in this—that is hardly a consistent or commensurate penalty for a continuing offence. So I welcome the fact that the Government has decided to amend clause 125(1). It has done exactly the right thing, which, as my colleagues in the Local Government and Environment Committee have noted, was something that Opposition parties said often, much to the concern of the Government members, who did not seem at that point to agree with us. They do now. So why, then, not back Supplementary Order Paper 103, in Moana Mackey’s name, or, indeed, the Supplementary Order Paper in Gareth Hughes’ name, Supplementary Order Paper 102, which actually make those penalties for a continuing offence more appropriate? They are out of whack at the moment, and I would like the Minister in the chair or a Government member to be able to rise now and tell us why the Government will not make changes to the continuing offence penalties, given that it has made those changes under clause 125(1). It just does not make logical sense. The Committee is in agreement here that we need to have penalties that fit the crime—as it were—and have a deterrent effect. That is happening in one part of clause 125, but then it completely fails in the rest.

In clause 125(2) at the moment, the first stage of what happens with a continuing offence is a fine not exceeding $10,000 for every day. We are proposing in Supplementary Order Paper 103 that that becomes $100,000 every day from thereon. After that, when it is a summary conviction and it carries on, the penalty is $1,000 per day under clause 125(3). We would like to see that go up to $100,000, and, if the offence is a continuing one, to a further fine not exceeding $10,000.

Finally, under clause 125(4) where it says: “A person who commits an offence … is liable on summary conviction to a fine not exceeding $1,500.”, we would like to see that go to $15,000. This is simply consistent with where the Government has now reached on clause 125(1), and if the Government is not going to support that Supplementary Order Paper, this Committee deserves to know why, because it is completely inconsistent and illogical. We end up with a penalty regime that does not fit the magnitude of what may be taking place inside the exclusive economic zone. That is our big concern with Part 3 of this bill.

We do want to support the Government in raising these penalties. Everybody in this Chamber wants to support the Government, but I just urge some consistency in this particular part.

Tēnā koe, Mr Chair. I am pleased to make a contribution on Part 3 of the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Bill and I would like to pick up on Mr Robertson’s contribution in regard to Supplementary Order Paper 95 in the name of Charles Chauvel in terms of clause 103. It is interesting. I have just looked at the departmental report as reported back from the Local Government and Environment Committee in regard to clause 103. There were some 22 submissions covering clause 103 and all of them were universally opposed to restricting rights of appeal to the High Court, and purely on points of law. So there were strong submissions being made that rights of appeal go to the Environment Court and that they follow the standard practice of appeals under the Resource Management Act, which provides full rights of de novo appeals on questions of fact and law to the Environment Court.

We had submissions from the likes of our main listed fishing company, Sanford. We had submissions from Sanford, and I read that there were submissions from the likes of the Royal Forest and Bird Protection Society—all saying the same thing. So it is disappointing, then, that the submissions—22 of them in total, all universally saying that we need to make sure that we change these rights of appeal so we can actually go to the Environment Court and cover questions of fact and law—were not adopted.

It seems that the departmental officials, toeing the line of the Government, said that there is some degree of alignment with the Resource Management Act. Because of the regime that has now been imposed in the Resource Management Act—the fact that nationally significant projects can be basically applied and ticked off very quickly by a technical committee and appeals go only to the High Court on points of law—there is some consistency with the Resource Management Act. Well, that is not good enough. We know that there are a lot of concerns around activities in the exclusive economic zone and we want to make sure that there is confidence in the whole process for applicants and for those who are concerned and are opposing such applications, so I do support Supplementary Order Paper 95.

I will just go through the other clauses in Part 3 point by point. Clause 114 deals with the enforcement orders. Obviously, this has had “or any other person” added before “may apply to the Environment Court for an enforcement order.” Originally, it was limited to the Environmental Protection Authority and now it has been extended out to any person, so we support that amendment, which came through the select committee. Likewise, the inclusion of abatement notices in clause 122A was an important addition; it gives another option in terms of enforcement or remedies in Part 3 of the Act. Likewise, the insertion in clause 122F: it is a useful tool for the Environmental Protection Authority in dealing with urgent matters. There are little technical things around procedural aspects for abatement notices and the like, which were tidied up and have been included in the bill as it has been reported back.

I would like to move on to clause 125, which we have been talking about this afternoon and which deals with the penalty provisions, and Supplementary Order Paper 103 in the name of my colleague Moana Mackey. Certainly, if there are breaches of the Act or breaches of provisions in terms of clause 124, we want to make sure that there are penalties that provide a good disincentive for breaches of the Act. It is commendable that Supplementary Order Paper 100 in the name of the Minister for the Environment does include amendments that increase the penalties up to $10 million. That is commendable and we do support that. But as we go through all of the other penalties and fines throughout clause 125, we see that it is incongruent in terms of having a $6 million fine and then going down to some $10,000 fines—some very petty fines, which are not real deterrents. So we want to make sure that there is consistency right across those fines, hence Ms Mackey’s Supplementary Order Paper 103, which basically increases all of those fines tenfold. There are tenfold increases in those fines proposed to make sure that there is a nice balance across the fines in clause 125, but also to make sure that there is sufficient disincentive for breaches of the Act by those who may want to do so in regard to their activities.

Part 3 as a whole deals with objections, appeals, and enforcements, but, I think, critically, there are the two Supplementary Order Papers that deal with creating the right of appeal to the Environment Court on points of law—in fact, appeals de novo—and we would ask the Government to support Supplementary Order Paper 95. Likewise, Supplementary Order Paper 103, which extends, increases, and provides more balance and grunt to the fine provisions in clause 125. Thank you.

I will take a call on Part 3 of the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Bill just to perhaps make a few points of clarification. I thank the prior speaker, Rino Tirikatene, for his comments, but I just wanted to raise a few issues in regard to some of the comments he made.

When this came to the Local Government and Environment Committee there were some concerns that possibly there was no recourse to the Environment Court, and that was a question—I was one of the ones who questioned it. But we were assured by the officials and by the counsel who was in attendance that the actual Environmental Protection Authority itself had Environment Court judges who were now with the authority and were, in effect, fulfilling the role within the Environmental Protection Authority of providing that aspect. In other words, instead of having to go off to the Environment Court, the Environmental Protection Authority itself had learned judges within its own body who would be considering the applications for projects and consents within the exclusive economic zone. I was very pleased to hear that, basically, this agency was not just reliant on officials to do the work but did have High Court judges involved in the agency itself, which took away much of the concern in relation to not having that appeal to the Environment Court. We still also heard that there are, of course, opportunities for appeals on points of law to both the High Court and the Court of Appeal.

In relation to the fines—and, again, we did lobby to get the fines increased—we are very pleased that it did go to $10 million from what was $600,000. It is a very hefty and sizeable increase. I do believe that New Zealand First would have difficulties with some of the other incremental fines going up to the order of $100,000 per day, because on a daily basis those sorts of figures become incredibly difficult to manage, in that some of the breaches could be relatively minor, or could actually have little consequence, but would need the parties to take action. On the basis of $100,000 per day, where there might simply be some technical matters that need to be remedied, that would be a very, very onerous figure to impose on any organisation that was trying to bring itself into line with its particular consent.

But, having said that, at the end of the day were that organisation to continue to breach the basis of its consents and if it were incurring $10,000 a day and continuing to do so for a period of time to the point where it was not actually sorting the problem out, or where it was unable or unwilling to solve the issue, then there is that final situation where the organisation can be taken to court and fined up to $10 million. That would be the ultimate penalty—to do that. But in the meantime it certainly would make it very, very difficult for many organisations to operate in New Zealand, to undertake development exercises, and to undertake important economic development within our exclusive economic zone if they were going to be subject to, possibly, $100,000 in fines on a daily basis.

So I would just repeat the comments that we made. It is most important—and we do support Part 3 of this bill and the rest of the bill, in its total, for the exclusive economic zone—that we do require economic development in this country. This is a huge potential resource. I will give one example, which quite staggered me at the Local Government and Environment Committee, where it was said that the Chatham Rise had one of the largest deposits of phosphate in the world, and that, currently, New Zealand imports very, very large volumes of phosphate from Morocco and Algeria. We are very dependant on sources of phosphate for our agricultural sector from countries that are not always necessarily that stable. We could, as an agricultural nation, find ourselves in great difficulty if our sources of phosphate came a bit unstuck. What is projected for the Chatham Rise would have an impact in the order of something like 1 percent of the total area of the Chatham Rise, and to secure phosphate in the future from there for the New Zealand agricultural sector would make us 100 percent self-sufficient in this country for our agricultural needs. You can imagine what impact that would have on our economy whereby this country, which is so dependent on agriculture, could be basically self-sufficient for phosphate for the next 100 years, 200 years, 300 years, or more.

💬 Hon Craig Foss: All “phos” is good Foss.

Yes, yes, Mr Foss. You are a very good “Fossfate”. But your fate might be quite different in the future, Mr Foss.

But, anyway, to go back to the phosphate on the Chatham Rise, that was one small example that came to the select committee of the importance of the exclusive economic zone to New Zealand, and of the potential impact it would have on this economy if it is managed well, if it is done in a sustainable manner, and if the likes of extraction of that phosphate from the Chatham Rise is done in an environmentally friendly manner that will assist the New Zealand economy and not have any great impact on the Chathams.

So I have just taken this call on behalf of New Zealand First to say that we will not be supporting the Supplementary Order Papers that are suggested, and we feel that in this instance we support the Government through the Committee stage of the bill.

The question was put that the amendments set out on Supplementary Order Paper 95 in the name of Charles Chauvel to clause 103 be agreed to.