Exclusive Economic Zone and Continental Shelf (Environmental Effects) Bill

We come to the title and commencement debate, and it is interesting when we look at the title of this bill, the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Bill. If only that were true—that what this bill was entirely focused on, relevant to the title, were the environmental effects. What we have heard throughout the debate on this bill, particularly in this Committee stage, is that there is a willingness on all sides of the House to ensure that we come up with a piece of legislation that manages environmental effects, as the title of this bill suggests it should. But the problem we have now got is that the bill that is in front of us today has reached such a point that although it is good, it is not good enough. It is good in the sense that we now are managing environmental effects, as the title suggests, by making, for instance, the purpose clause more consistent with the Resource Management Act. That is a step towards managing environmental effects, as the title would tell us the bill does. But it is a step not far enough in terms of being consistent with our international obligations, in terms of making sure that we have a robust regime that reflects the concerns of New Zealanders about the management of the marine environment.

The game has changed since this bill was given its title, and I note that the commencement date in clause 2 has been pushed out by a year, of course. What we know is that in the time that has elapsed since this bill originally began life under a previous Labour Government, the bill changed in a number of ways when the National Government got hold of it. We know that concerns among the public about how environmental effects should be managed—that is the title of the bill—have changed. People have been through the experience of the Gulf of Mexico, people have been through the experience of the Rena, and they realise that we need to manage environmental effects in a far more robust way. So giving this bill this title would seem on the surface, to some people, to be acceptable, but actually, in reality, it does not meet properly the goal that it set itself in this title.

On this side of the Chamber we would have liked the Government to adopt some of the Supplementary Order Papers put up by the Labour and Green parties. We believe that would have given the title of this bill some meaning. But at the moment, unfortunately, it is mis-titled, and it does not deal with the environmental effects of activities in the exclusive economic zone and on the continental shelf in the way that we would like to see.

We need a more robust regime. We need to be using terminology in the bill that is understood, that is clear, and that makes sure that where the management of environmental effects is undertaken elsewhere in our legal process—i.e., through the Resources Management Act—that is reflected in the bill. That is reflected now in the purpose clause; it is not reflected in other parts of the bill where Labour and the Greens proposed amendments that would have made it happen that way. So I think the title of this bill is, in fact, misleading. It does not manage environmental effects in the exclusive economic zone sufficiently to give New Zealanders the confidence that any activity that takes place there will be alongside a robust regime. That is what all parties, I believe, in this Chamber set out to do.

The Government has improved the bill that it introduced, but it has not taken it far enough for the Labour Party to be able to support this bill. Despite things like the penalty provision being extended, which is a good thing, what we now have is a piece of law that still is inconsistent with our international obligations, still has too much uncertainty inside it, has new provisions introduced by way of a Supplementary Order Paper that we do not know the exact meaning of, and, as a result, fails to meet the test of the title that it has been given.

I am going to take only a short call on the title clause. The title is entirely appropriate for the bill, the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Bill. I want to respond briefly to the contribution that was made by Grant Robertson. It can be broadly summarised as that of an Opposition that is desperately exploring for some reason to oppose, rather than any sort of principled stand around this being legislation. In fact, the member acknowledged that this is good legislation and that this is a bill that is overdue.

I would take the Opposition back to the fact that the gap in New Zealand’s environmental regime, which this Exclusive Economic Zone and Continental Shelf (Environmental Effects) Bill fills, was identified way back in 2000. Labour made no progress in getting a bill before the House in its 9 years in Government. We have made good progress and have got a robust piece of legislation to bring into effect, and, with the clause 2 provision, it will be fully implemented by 1 July 2014.

I do want to point out that when this bill was introduced Labour said that it had two major concerns: inconsistencies with the Resource Management Act and the penalties not being strong enough. The Government worked and addressed those two concerns, and Labour still says that it opposes. That, in my view, just exposes how vacant the Labour Opposition’s true opposition to this bill is. Those members are simply dancing on the head of a pin. If the Government then addressed their latest range of pedantic excuses, I am sure that they would find some other set.

Let me just take the point that Mr Robertson made that he objects to the relatively short, I have to say, Supplementary Order Paper 100, which has been introduced by Amy Adams. I would remind members of the Committee that 4 weeks prior to the 2008 general election, on another very important piece of environmental legislation, the Climate Change Response (Emissions Trading) Amendment Bill, the Labour Government of the day introduced an 800-page Supplementary Order Paper. It did not refer that back to the select committee at that time, yet today it demands that this relatively short Supplementary Order Paper suddenly has to go back to a select committee. We do not accept that on this side of the Chamber. We say that that is grossly inconsistent. The member said that the amendments have been available for only 2 days. Actually, it is dated 14 August, and that is a great deal more than 2 days ago. In fact, it is more like 8 days that members have had to study this Supplementary Order Paper, and see—

💬 Moana Mackey: A whole 8 days!

Well, it is a very short Supplementary Order Paper, I would say to the member who is interjecting. They are technical changes to the provision. They make the bill stronger.

I would simply urge Parliament, as has been urged by the Parliamentary Commissioner for the Environment, to get on, support, and pass this good legislation so that we can get this proper piece of environmental effects assessment legislation into place, so that the Environmental Protection Authority can get on with this important new area of work.

Members, the last votes, on the Minister’s amendments on Supplementary Order Paper 100 to Part 4 and on Part 4 as amended, were incorrectly announced. The results should have been Ayes 72 and Noes 46. The record will show the correct results.

Nick Smith, in terms of claiming that we are dancing on the head of a pin, is misrepresenting the Opposition once again. He has obviously not read the substantive Supplementary Order Papers. There are eight from the Opposition seeking to make quite substantive changes to the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Bill. That is because, yes, it is going through, because of the Government’s majority, but it has a number of defects, which the Green Party has highlighted from day one. They are in the purpose clause, the gutting of—

💬 Hon Dr Nick Smith: Never satisfied, the Green Party.

The member says we are never satisfied. No, Mr Smith, we are not satisfied, because we want good, robust legislation that will endure, that actually talks about sustainable management of the oceans. Yes, this legislation does that, but it is a whole mix of factors, so there is no clear direction to the decision makers about which should be given priority.

There is no clear emphasis on protection and preservation of the marine environment, which is part of our commitment under the United Nations Convention on the Law of the Sea. There are these planned activities. The transitional provisions are very broad, and they potentially allow quite a lot to happen in the marine environment without the need to get a marine consent, particularly with the commencement date potentially being not until 1 July 2014. The mining industry said to the Local Government and Environment Committee that it was very, very happy with this bill. Once again, this underlines that there is not enough commitment to environmental protection in the bill, if the industry is happy with it. We have throughout the House’s consideration and in the select committee sought constructively to improve the bill. We still have not had clarification around the scope and impact of the transitional provisions and the planned activities, and what can be allowed there. There is the potential for some quite serious oil exploration to occur without the need for a marine consent.

Yes, this bill will go through. It certainly is an improvement, because we have not got legislation there at the moment, but the fact that there is not the ability to appeal to the Environment Court will make it very difficult for the community to engage. The time limits on hearings will, again, mean that for very complex applications the Environmental Protection Authority will be under substantial pressure to deal with those quickly. Given that applicants will have been able to develop those over several years, the bill is actually restricting the ability of the community to get involved in the way that occurs under the Resource Management Act at the moment. So, yes, it is an improvement on the status quo, but there are a number of constructive changes that the Opposition put forward in its Supplementary Order Papers, and it is disappointing that those have not been more seriously considered by the Government.

It was interesting hearing the revising of history from the Hon Dr Nick Smith, which he is particularly good at doing, I have to say, because he does it with such gusto that people think, surely, he could not be making that up. I know the member is reacquainting himself with select committees. What he perhaps is finding is that there is this interesting process called submissions at select committees, where people who have expertise in a certain area come along and tell the committee what they believe is wrong with the bill or right with the bill. So when we got to the Local Government and Environment Committee and heard submissions from submitters, what we found was that actually there were a lot more problems with the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Bill than we had realised at the first reading.

💬 Hon Dr Nick Smith: But you opposed its introduction.

We did, because at the first reading we actually thought that it was not good enough, and then when we got to the select committee we realised that it was even worse than we had originally thought. The Green Party actually supported it on balance at the first reading, and, again, when we got to the select committee and heard from submitter after submitter saying how weak the bill was, how inadequate it was, the Green Party changed its position.

A whole number of other issues were raised at the select committee. That is why the select committee process is so important, and that is why, when we come back to the Committee stage, we see Supplementary Order Papers from Opposition members on a raft of different issues that were raised at the select committee that we had not picked up initially. I was not aware, for example, at the first reading, that the bill was inconsistent with our international obligations. That was not something that I had considered. But that actually became one of the primary concerns as we went through the select committee—that it is not consistent. There is no certainty around it, it would be tested in the courts, and the Government could have done one very, very simple thing. It could have used the language from the international convention that we ratified in the bill. That one thing would have made it clear, and beyond doubt. We would not have to fight about it. It would be beyond doubt that the legislation was consistent if we had used the language of “preserve and protect the marine environment”.

The Hon Dr Nick Smith said that Labour, at the first reading, was all about consistency with the Resource Management Act. That is true. In fact, the one clause that needed to be more than just consistent with the Resource Management Act was that purpose clause. We wanted consistency throughout the bill with all the legal terms that were being used, so that we do not use “favour caution”, we use the “precautionary approach”. We use language drawn from 20 years of Resource Management Act case law so that people know what they are walking into, they know where the goalposts are, and they know what the thresholds are. Resource Management Act case law, in international law, is well understood.

No one knows what “favour caution” means. It has been made up. It is brand new. It has no precedent. Do you know who will decide what it means? Lawyers and courts. This should be the “Exclusive Economic Zone and Continental Shelf (Boon for Lawyers) Bill”, because that is what is going to happen.

💬 Hon Christopher Finlayson: Good.

Chris Finlayson says that is good. He has a vested interest that he is meant to leave behind when he enters this Chamber. But that is what is going to happen, because it will be a court that ultimately decides. We do not need to be here. If the Hon Dr Nick Smith agrees with the United Nations Convention on the Law of the Sea, agrees that we have ratified it—

💬 Hon Dr Nick Smith: This is consistent with it.

It is not consistent with it.

💬 Hon Dr Nick Smith: Yes, it is.

It is not. If you wanted to be sure, then why would you not just use the language of the United Nations Convention on the Law of the Sea? Then we do not have to have this fight, and we can all just get on, Dr Smith. We can all just move on, knowing that we are collectively consistent with our international obligations and put that one big argument, which, actually, was the biggest concern that Labour had—that this is going to end up costing New Zealand taxpayers money as litigation happens at international tribunals with people saying that New Zealand has not met its international obligations.

💬 Hon Dr Nick Smith: It is consistent.

It is not consistent. One of the most telling parts—

💬 Hon Dr Nick Smith: It is.

Why would you not just make it clear?

💬 Hon Dr Nick Smith: What have the officials said at the select committee?

They said that they had not had any legal advice, which was astonishing; that they had not got any legal advice from the Ministry of Foreign Affairs and Trade, that the Minister had not called for that before putting the bill together.

But I am asking Dr Smith a very important question. Why can we not just use the language of the United Nations Convention on the Law of the Sea, and then we are clear? Then we do not have to have this fight; we can all get along. We can all get along. We are consistent, we are there, we are good. Why? There has to be a reason why.

When you look at clause 11 around international obligations, the language has been changed from saying that everything in “This Act must be interpreted” as being consistent with our international obligations, to a requirement to move us towards, and to continue to implement.

💬 Hon Dr Nick Smith: It doesn’t say that.

It does say that. It says “This Act continues … the implementation” of our international obligations. We are no longer consistent with them; we are just in the process of continuing to implement them.

I think it is pretty clear that there is a lot of wriggle-room that the Government has left there because it does not want to be consistent with that international convention. That leaves New Zealand taxpayers exposed, because they are the ones who are going to have to pay for any litigation that is taken against our Government by anyone who thinks we are not consistent with those obligations. It was a relatively simple thing to fix. The fact is that Dr Smith is getting so wound up about it, and did not just say “Well, let’s just fix it.” Apparently he is trying to say that we all agree consistency is important, and we must be consistent with our international obligations, but he is not prepared to do the one thing that would take this issue off the table and leave absolutely no shadow of a doubt that we have consistency. Instead, he is going to do what he has done throughout the entire bill, which is to use language that is entirely different from any legal language that has legal precedent, and which leaves enormous uncertainty.

People now do not know where the goalposts are, and the only reason you would not align the language of 20 years of Resource Management Act case law, the language that internationally has been understood, and the language of the United Nations Convention on the Law of the Sea is if you did not want it to have to meet that test. That is the only reason you would not do it, and that is why it has been done. We know that on this side of the House. I mean, the Government does not want to say it. We actually had one energy company that did come to the Local Government and Environment Committee, and they were the only ones who said “Yeah, we like this, because it is way more permissive than the Resource Management Act. We are going to be able to get away with a lot more.” That is what they said to the select committee—and we knew that that was the case. It was nice that someone was honest enough to actually say it for once, and say that this bill is going to be less restrictive than the Resource Management Act has been.

The Resource Management Act, of course, has allowed the oil and gas industry to go ahead in Taranaki. It has not stopped it. It has not stopped it dead in its tracks. The Taranaki Regional Council came along and said, and some of it has been included in the bill: “We like working with the Resource Management Act because we understand it, and it gives us the ability to monitor, it gives us the ability to enforce, and also we understand what the tests are. We are used to dealing with it, so we have no issue with those same principles and those same level tests being applied.” This is a part of the country that the Government consistently points to and says “Look, they can do it, so why can’t everywhere else?”.

Well, you know, the council was quite happy with what was being proposed in terms of getting more consistency, because that line at 12 miles is jurisdictional only. You jump across an invisible line in the sea, and suddenly we have two completely different regimes operating side by side and regulating exactly the same activity. How is that sensible? That line is not environmental. That line is not about science. It is not about resource allocation. It is just jurisdictional, and when you jump across it, we now have a completely different regime for exactly the same activity.

As you get further and further out to sea, in the really deep waters—3,000 metres and 4,000 metres deep in the Raukūmara Basin off the East Coast—I think that the public want to see that there is definite consistency with the Resource Management Act in terms of their ability to access the process, and to appeal to the Environment Court. But on the environmental protection clauses, the former Minister made the comment that he did not think the community needed that same level of engagement under the exclusive economic zone bill because what happens in the exclusive economic zone has less of an impact on them.

I think that when you see the impact of oil washing up on the beaches in the Bay of Plenty—and I know the Minister did, because he came to the Bay of Plenty during the Rena disaster—you cannot tell me that that does not have an impact on communities and that they do not deserve to be engaged in the process in the same way that they would be if it happened within 12 miles, before you jump over an invisible jurisdictional line. It does affect communities—very, very deeply.

I think that this legislation should perhaps be called the “Exclusive Economic Zone and Continental Shelf (Missed Opportunity) Bill”. We went to the Minister for the Environment, Amy Adams, and said “Let us find a compromise. As many parties as possible, but particularly Labour and National, can agree that this is how it is going to be. Let us lock down as much as we possibly can.”

Labour will change this legislation. We will make sure it is consistent with our international obligations and provides the levels of environmental protection that the community would expect. We wanted to find a compromise with the Minister. We tried to do it with the Hon Nick Smith on the emissions trading scheme, and then the Māori Party gazumped us. We thought we were actually close to getting bipartisan agreement on the emissions trading scheme, and then I heard on the 12 o’clock news that he had gone to the Māori Party instead and done a dirty deal there. So I know that the National Party is not very big on bipartisan agreements, but they are important when you have got incredibly important legislation like this.

I know that a number of the environmental groups also wrote to the Minister and said: “Look, obviously we would like it to go a lot further, but we think that if you worked together and if you found a compromise, we are not that far off.” So we are very disappointed. We met with the Minister and we thought it was a good meeting, but then we had Supplementary Order Paper 100 dropped on us. It did not address a lot of the issues that we raised. Some of them we were never going to agree on, and that is absolutely fine. That is the nature of politics. But we think that on a piece of legislation this important, we could have locked down an awful lot more.

A lot of the stuff that has been done here in the Committee stage could have been done at the select committee. In fact, we asked for it to be done at the select committee, and were told no. Government members did not want to discuss that, and we were not going to change this, and it has been changed. As I said, I am very pleased to see the penalties increased. It would have been good to see the penalties increased across the board, but that one increase we do support, and that is why we voted for that particular part of the Minister’s Supplementary Order Paper and of the bill. But this really was a missed opportunity, because we open ourselves to legal challenges. We open industry, community, and the environmental groups up to enormous uncertainty, because this now—