Crown Minerals Amendment Act 2013 Amendment Bill

I call our spokesperson. I call the honourable member Moana Mackey.

💬 Hon Simon Bridges: I thought you were impartial!

The CHAIRPERSON (H V Ross Robertson): I am supposed to be. I had better explain myself!

By “our spokesperson”, clearly you mean Parliament’s spokesperson. It is a role that I am very humbled to hold. Part 2 of the Crown Minerals Amendment Act 2013 Amendment Bill is where many of the substantive amendments are being made. This is the part of the bill that extends the Government’s anti-democratic and Draconian protest ban, which it passed into law a mere few weeks ago, and here we are, not 2 months later, extending it even further than the original bill suggested.

The original Crown Minerals Amendment Bill, which was passed a mere few weeks ago, had the definition of offshore area as “any area within the territorial sea or exclusive economic zone that is on or above the continental shelf”. What that means is that wherever the continental shelf exists, the area of the territorial sea and the exclusive economic zone that sits above that is where this new, Draconian, anti-protest law applies. The change that is being made under clause 14 of Part 2 is that that is being amended so that the definition of offshore area now means “any area that is—(a) within the territorial sea; or (b) within the exclusive economic zone; or (c) on or above the continental shelf.” What we are seeing is a rapid expansion of this utterly, utterly repugnant law out into the high seas and right up to the beaches. So between the beaches of New Zealand and the high seas—where we do not actually have the ability to pass laws, but we are doing it anyway—we will see a ban on protest vessels protesting against deep-sea oil and gas exploration.

The Minister in the chair, the Minister of Energy and Resources, has never answered this question. He has been sitting there like a dried arrangement all night, so I would welcome him getting on his pins and actually taking a call. He never answered this question during the Committee stage of the last bill, when the original ban was passed, so maybe he is prepared to answer it tonight. If it is about safety, then why did he simply not introduce a bill that extends the Maritime Transport Act and the Crimes Act, which deal with dangerous and reckless behaviour by vessels in our territorial waters, into the exclusive economic zone? Why did he not do it like that? At the moment anyone who behaves in a dangerous or reckless manner in our territorial waters is committing an offence, and it is quite appropriate that that offence be extended to the exclusive economic zone. So why, Minister, have you not done that? Why is it that instead of saying that anyone who behaves in a dangerous or reckless manner deserves to be held to account for that, you have said that it is only protest vessels, and it is only protest vessels that are protesting against oil and gas exploration? I welcome an answer to that question, Minister. I believe the fact that you cannot answer the question shows that you have no answer for it. There is no legitimate reason why one would not extend the existing law out into the exclusive economic zone.

So here we have a ridiculous law—and I am glad the Attorney-General has come down to the Chamber. He came down to the Chamber when we passed the original bill and tried to pretend that he had a New Zealand Bill of Rights Act opinion, which, it turned out, he did not have. When we asked him to table it, it turned out it was just his opinion, and it was not a particularly good one. I am disappointed the Hon Tim Groser is not still here—a man with an international reputation, a man who knows about international law. I mean, it would be good if Chris Finlayson could take a call. He is kind of the poor man’s Tim Groser, but he is the Attorney-General, and we would welcome hearing whether he has an actual legal opinion on this, because the issue that we have, Mr Attorney-General—who is meant to be the protector of the New Zealand Bill of Rights Act in this country—is that there has been no New Zealand Bill of Rights Act vet. We have had no legal opinion on whether this complies with international law and there is no regulatory impact statement, so how is Parliament supposed to be able to make a considered decision on whether or not this is good lawmaking?

I will point out a particular issue. According the Ministry of Foreign Affairs and Trade, we do not have the right to make laws in the waters above the continental shelf. That is the high seas. The ministry actually specifically says—and it refers to an example—that we do not have the right to make laws that regulate shipping activities. Well, what is a protest vessel protesting in the high seas if it is not a shipping activity? The Ministry of Foreign Affairs and Trade website clearly states that we do not have the jurisdiction in this Parliament to pass those kinds of laws in the waters above the continental shelf. So I would like to hear an answer to that from the Minister in the chair and from the Attorney-General as to how come the Ministry of Foreign Affairs and Trade is saying one thing, which is that we have do not have the right to make laws in this area, and the Minister is telling us another thing.

He is passing a law that opens us up to potential legal challenges. It actually makes us look like idiots if we think that we are passing—well, the Minister in the chair is shaking his head. Get up and take a call for once. That is what we pay you the big bucks for, Minister—get up and take a call. People deserve to have an answer to those questions, and if the Minister does not want to answer them, that is because he does not have the answers and that is because he does not know what he is doing. We know that; it is because of his incompetence that we have to pass this bill in the first place. The previous bill has not even come into force yet, and we are already having to fix it. That is extraordinary. But the Minister needs to answer the questions that he refused to answer on the original bill, and that he has not answered on clause 14 of this piece of legislation.

I have two amendments in my name on this part. One is to delete clause 14, because I do not believe that we should be extending what is a rotten, repugnant law out into the high seas, where we actually do not have the jurisdiction to do it, or right into the beaches of New Zealand, just because the Minister does not like the fact that a large number of New Zealanders disagree with the way his Government has handled the very sensitive issue of deep-sea drilling. Let us be clear. It is this Government’s handling of this issue that is the problem. It is because it has not listened to communities, it is because it has watered down legislation, and it is because it does not front up in those communities to answer questions about why communities are having this foisted upon them when they feel nervous about it and when they do not understand it. That is why there is so much concern. That is why people are taking to protest. It is because the Government will not listen to them. The Government will not talk to them, and the Government will not answer their questions.

That is why we are seeing clause 14 of this bill coming into force, which is saying: “You don’t like it? You’re protesting? Well, we’re just going to legislate away your right to do that.” That is utterly appalling—utterly appalling—and National should hang its head in shame, particularly the Attorney-General, who is meant to be the protector of the New Zealand Bill of Rights Act in this country. What a joke. What a joke. How can he even sit in this Chamber when such a repugnant piece of legislation that is so contrary to the New Zealand Bill of Rights Act is going through?

💬 Chris Auchinvole: Oh, don’t you love the virtue of it all.

💬 Hon Christopher Finlayson: The venom.

Venom? Oh, hello! Wafer-thin ice, Mr Finlayson—wafer-thin ice. Wow. Anyway, the second amendment in my name is actually to amend clause 14 so that the definition of “offshore area” is simply limited to within the territorial seas, so to reduce that area down there, as well. Although I hope the amendments are passed, the reality is that neither of them actually fixes the basic problem, which is that we need to get rid of the section that is in the original legislation.

What happens now—and again, the Attorney-General might have an opinion on this; the Minister in the chair is pretending to read something, so he is not listening. But another question is that we now have two separate offence regimes, penalty regimes, in our territorial waters. We now have two different regimes, one under the Maritime Transport Act and the Crimes Act, and one under this section amended in clause 14. So which one are the police going to apply when someone makes a complaint or says that someone is breaking the law in terms of this right to protest? We now have two offence regimes in our territorial waters. Which one applies, Minister? Minister? Hello? There is only so long you can ignore me for. We are not going away, Minister. Which one applies? We now have the ridiculous position of having two completely different penalty and offence regimes in the same area of water. Why is that? Which one are the police supposed to apply? Do they just get to pick? Do we flip a coin? Is it a lottery? Is there some kind of algorithm the Minister has that can—

💬 Grant Robertson: Skycity.

Skycity can sort it out. That is it. It is probably part of its deal. But how are we meant to know? How are the people who are operating meant to know which penalty regime is going to apply? Did the Minister even know that this was going to result in two completely separate offence and penalty regimes in the same part of the ocean? No, he did not. And we will be back here in another few weeks passing another amendment bill to the “Crown Minerals Amendment Bill Amendment Act Amendment Bill Amendment Bill” because the Minister has not done the work, and the Minister does not know the detail of this bill that we are passing, and that is why this should have gone to a select committee. Those are my questions to the Minister.

The call I want to take on this particular part of the Crown Minerals Amendment Act 2013 Amendment Bill will focus on clause 14. I want to be very clear what this clause is about. It is amending what is already a very bad part of the law, which was passed only 6 weeks ago, to restrict the rights of people to protest. John Key loves to go around on the world stage, shake hands with people like Barack Obama, and show up to events that are about opposing nuclear proliferation and about celebrating New Zealand’s place in the world as an antinuclear country. He has his photograph taken, and he says he supports this. Well, where do Mr Key and Mr Bridges think New Zealand’s status in the world as a country that stands up against nuclear weapons comes from? It comes from New Zealanders on boats and in dinghies getting out there in the 1970s and the 1980s and saying: “We’re not prepared to see the world go about destroying itself. We want to make sure that we stand up for people and the planet, and we’re going to get out and protest in those boats and in those dinghies.”

That is the kind of dissent that has led to good law in New Zealand. It is the kind of dissent that has led to New Zealand being respected on the world stage, and this Government is prepared to chuck that away because some corporate interests have asked it to do it. That is the bottom line here—corporate interests dictating New Zealand’s legislation again. We had it with Warner Bros, we had it with Skycity, and now we have it with companies that do not want to see protesters too close to them, and this Government is prepared to sacrifice all that history of protest in New Zealand, all that history of dissent in New Zealand, to appease these companies.

💬 Chris Auchinvole: Not much history of oil protests.

It is as simple as that, Mr Auchinvole. That is what has happened with this law.

That is bad enough—trashing New Zealand’s reputation and selling off our laws one more time—but what is more, this Government cannot even make a case for why it is expanding the legislation and potentially doing something that actually goes against our international obligations. I am wondering whether the Minister has had the time to have a read of the Ministry of Foreign Affairs and Trade’s website, because what that says is: “States do not have any special rights to the water column above the continental shelf; so New Zealand does not have special rights to the fisheries above the continental shelf beyond the EEZ or to control other activities such as shipping.” That is an exact quote, Minister, from the Ministry of Foreign Affairs and Trade website.

The Minister could get on his feet and actually explain how it is that he is passing a law through this House tonight that appears to go against what New Zealand is actually allowed to do when it comes to the continental shelf. But the Minister does not seem to care about that. The Minister does not want to actually get up and explain whether he is even allowed to make this law. So he is selling the law off and he will not even explain how he can justify expanding that to a massive extra 1.7 million square kilometres—1.7 million square kilometres extra. We do not even, according to the Ministry of Foreign Affairs and Trade, actually have the right to make any law in that area, and yet the Minister comes to this Chamber with this bill. As Moana Mackey says, we will be back here in a month with yet another amendment bill, after Mr Bridges makes the sensible decision to put it as a standing item on the Order Paper so we can just keep coming back to it, and he will have to correct another mistake.

There are other matters about the continental shelf that the Minister does not appear to have taken into account. The continental shelf overlaps with other countries’ jurisdictions. We actually have an agreement with the Australians around where the continental shelf overlaps with us. It is around Lord Howe Rise through to the Three Kings Ridge. We have that agreement. The problem for the Minister, and the problem for the Government, is that we do not have that agreement with other countries around where the continental shelf overlaps with their jurisdictions—Fiji and Tonga, for instance. We have not done anything about that when it comes to other areas, the Kermadec Ridge being one of those. So the Government has two areas where it appears to be actually breaching international law about whether it can even put this up.

These are the issues that would be discussed at a select committee. In fact, they would have already been discussed at a select committee and we would now, no doubt, not be looking at amendments to the law because the Government had stuffed up. But instead, at 11 o’clock on a Friday night, we have got a bill being shoved through the House not in the interests of New Zealanders, nor even of our Pacific neighbours whose territory this impinges upon, but in the interests of the corporate sector—in the vested interests of those for whom this Government, the National Government, seems to believe they are governing.

That is what we see time and time again. We saw it with Skycity, and what a shameful, shabby deal that was. We saw it with Warner Bros. Our laws are for sale under this Government. What is more, we are going to have to pay to change the law in the case of Skycity because of the compensation arrangements that have been put in place there. If we want to change the gambling laws, we will be paying for it. Now, under this law, we have a situation where we have been pushed into changing the law to ensure that the corporate interests are kept happy. We are not protecting New Zealanders’ rights to protest. [Interruption] The Attorney-General likes to interject on these matters. He is living in his own golden age over there—the Attorney-General, the saviour of the art scene, a legend in his own Twitterverse. But he is sitting there today as the right to protest is limited. He is sitting there today as the right to dissent is limited.

What kind of Attorney-General is that? Why do we not have an Attorney-General who stands up for the rights of New Zealanders to protest? Why do we not have an Attorney-General who actually comes to this Chamber and says to his Government: “No way, I am not accepting this. New Zealanders have the right to protest.”? Instead, we have an Attorney-General who sits on Twitter trying to come up with his own achievements in the arts sector, and he does not care about a bill before this Committee that severely limits what New Zealanders would see as their basic rights.

This bill is deeply flawed. This amendment bill to the Crown Minerals Amendment Act is deeply flawed. New Zealanders right across the country have expressed their concern about this, and they have been dismissed by people like Chris Finlayson and the Prime Minister. Geoffrey Palmer, Dame Ann Salmond, who is the New Zealander of the Year—John Key will have his photograph taken with Dame Ann Salmond, but when she signs a letter that says this kind of law change limiting the right to protest is wrong, suddenly she is dismissed. She is totally taken out of the picture.

This is absolutely poor lawmaking. It is shabby lawmaking. It is sloppy lawmaking. We are back in front of this Committee with an extension to this legislation, and, once again, the Minister needs to get up and answer the question that a lot of New Zealanders want to know: who is behind this? Who is behind this change? Which company has asked for it? Who has come to Simon Bridges and put the pressure on him? There are important aspects of this law, which Simon Bridges is responsible for, for protecting the rights of New Zealanders. It seems to us on this side of the Chamber that Simon Bridges has caved. He caved straight away. As soon as someone has come to him and asked “Can you please extend out this already bad law?”, he has caved. He has said: “Yes, I will take it out to the continental shelf. That is fine.” Even if New Zealand does not have a right to make a law in that place, he will take it out.

This bill and clause 14 of this bill are typical of this Government. They are typical of a Government that is no longer governing in the interests of New Zealanders. It is governing in corporate interests and overseas interests and in the interests of its mates, not in the interests of ordinary New Zealanders. This clause should not pass.

Clause 8 in Part 2 of this bill, the Crown Minerals Amendment Act 2013 Amendment Bill, changes all references to mineral “reserves” in the Crown Minerals Act to mineral “resources”. That is very symbolic because this Government sees nature as a resource ripe for exploitation, rather than having values that deserve protection and keeping them in reserve for present and future generations.

What right do we have to try to access oil and coal and minerals that were put down millennia ago? It is almost as if this Government does not believe humans are going to exist in another 200 years, because it wants to exploit everything now, rather than recognising that in 200 years’ time we might have the technology whereby we can mine coal and burn it without getting the emissions that contribute to climate change. But, no, this Government wants it now. It never thinks of the future, and it does not think of the environmental debt that it is creating for our future generations.

Mr Bridges on Easter Monday, I think it was, introduced the Supplementary Order Paper that amended the principal Crown Minerals Amendment Act by putting in the Anadarko amendment—the no-protest amendment. The April issue of LawTalk, and I will just quote from it, described what the Government did: “The Government appears to be developing a practice of using post-Select Committee supplementary order papers (SOPs) as a portal through which to rush controversial law changes.” We are seeing the same thing happening tonight, not through a Supplementary Order Paper but through using urgency.

As LawTalk said further: “The introduction of significant law changes by way of SOP bypasses the normal vetting processes and increases the risk of sloppy lawmaking.” Well, we have certainly seen that with the previous legislation, because it is back here before it has even become law.

This Government should be ashamed of what it is doing tonight. It should be ashamed because of the way in which democracy is being undermined, not just by that noxious little clause 14, which creates that 500-metre no-go zone around vessels so that you cannot protest, and not just because the Government wants to shut down dissent, but because of the way this bill is going through under urgency with no opportunity for public comment.

That is typical, because we have seen a whole weakening of the regulatory regime in New Zealand under this Government. We have seen the exclusive economic zone legislation that we passed, which has yet to come into force, that had a bastardised version of sustainable management, and then we have seen regulations under that Act that make offshore deep-sea prospecting a permitted activity with no opportunity for the public to comment on it.

So what are New Zealanders able to do? If they cannot make submissions on legislation, if they cannot make submissions on applications to prospect offshore, of course they take to protest, because there is no legitimate forum to express their concerns and their dissent. So what does the Government do? It then seeks to shut down that dissent. That is why this bill is very troubling, because it potentially increases the level of disaffection with Government and with democracy in New Zealand. People are being denied their legitimate right to have a say. They cannot do it in this Parliament through submissions and by contributing to the lawmaking. They now cannot do it under this bill by protesting, because the Government wants to make that a criminal offence.

So where do people go when they see that they cannot have a say? They get disaffected. That is how revolutions start, because people cannot have a say through the normal processes. That is what this Government is doing. It is shutting down the right to have a say. It is totally undemocratic. Clause 14, at the heart of this bill, is about that. The Government wants to make it easy for the big corporates—the transnational oil companies, the Chinese State companies—to exploit nature, and make it easier for its mates, which, doubtless, contribute to the National Party coffers at election time. So that is what this bill is about: making it easier to exploit nature, and actually attacking the heart of democracy by riding roughshod over due process and then suppressing the right to protest.

It is my pleasure to take a call on Part 2 of this bill, the Crown Minerals Amendment Act 2013 Amendment Bill. I do want to just note that when there was a closure motion called for Part 1, and there were those of us who wanted to try to take a call and were disappointed that we did not have a chance to debate what is an incredibly important bill, the Attorney-General’s response to that denial of what I would call a basic element of a democratic procedure in this Committee was “Stiff bickies.” “Stiff bickies.” was the call.

💬 Hon Christopher Finlayson: No, it wasn’t.

What was it? Was it “Stiff cookies.”?

💬 Hon Christopher Finlayson: No, “Stiff cheese.”

“Stiff cheese.”—I stand corrected. I am glad that that will be on the record. It was “Stiff cheese.” I am glad we cleared that up.

💬 Grant Robertson: Was it brie or camembert?

The deputy leader asks a fine point. Does the Attorney-General wish to further define his type of cheese?

💬 Chris Hipkins: Blue cheese.

It was a blue cheese, of course.

It is important that we have the chance to fully debate particularly this section of the bill. One of my concerns is that even in Part 1 of this bill, which we have obviously already closed off our discussions on, there was a bit of discussion about the types of companies that might be drawn into our exploration regime in New Zealand via this bill. I spent a very small amount of time working for an Associate Minister of Energy—like Chris Hipkins said, this certainly does not make me an expert in the field—who, obviously, had the same portfolio that Mr Bridges, the Minister of Energy and Resources, now has, and that is around oil and gas exploration and mining. What I certainly learnt in that time was that this business is a high-stakes game. It is incredibly expensive to operate in this field, and yet we have discussion in this bill that uses language like that someone “who does not have the expertise or financial ability” to operate in this area having the use of conditional permits. If you do not have the expertise or the financial ability, then you will not last in this sector for a particularly long time. Nor will you potentially—

The CHAIRPERSON (Lindsay Tisch): No.

—have the success in what is obviously a high-stakes game. Sorry, Mr Chairperson, I am bringing you into the debate. So that was a point I just wanted to make before moving on—that this “give it a punt” mentality will bring in, I think, the kind of low-grade exploration and explorers that the Green Party has referenced. That is bad for everyone, particularly when the Labour Party’s views on these issues are that until we can give the absolute guarantees that we need and the protections that we need, particularly for deep-sea drilling, that is not a space we are willing to go into. If the Government, at the same time, is opening up for rogue explorers, then that is absolutely not a space we want to move into.

But moving on to Part 2, the amendment to section 55 in clause 14 is the area I want to talk about. As has been raised, this is the extension of that much-protested—ironically—provision that 79 percent of New Zealanders were opposed to, and that was the setting of limitations around the right to protest out on the seas and now out on the high seas. The change in definition that we have seen here in clause 14 is: “In section 55, new section 101A, replace the definition of offshore area with: offshore area means any area that is—(a) within the territorial sea; or (b) within the exclusive economic zone; or (c) on or above the continental shelf.” I wanted to do a little bit of reading about what the definition of the continental shelf is. There was a United Nations declaration signed on 29 August 1980. It was a statement of understanding. That makes this declaration, I think, about the same age as the Minister. That declaration set out a definition for the continental shelf—this is really interesting—“The continental shelf of a coastal State comprises the seabed and subsoil of the submarine areas that extend beyond its territorial sea ...”. It is absolutely correct that we have mining rights over the continental shelf, according to this declaration, under article 76.

If we move on, though, to article 78, which sets out the legal status of the superjacent waters and airspace and the rights and freedoms of other States, it says—[Bell rung] Mr Chair—

The CHAIRPERSON (Lindsay Tisch): Jacinda Ardern.

Thank you. I did want to get through this UN declaration because, clearly, this has not been explored nearly enough, and I hope the Minister will respond to my questions here. Article 78 of this declaration, which, as I said, sets out the legal status of the superjacent waters and airspace and the rights and freedoms of other States, sets out in the first point that “The rights of the coastal State over the continental shelf do not affect the legal status of the superjacent waters or of the air space above those waters.”, and in point 2 that “The exercise of the rights of the coastal State over the continental shelf must not infringe or result in any unjustifiable interference with navigation and other rights and freedoms of other States as provided for in this Convention.”—of other States and probably of the citizens of those States, because, as this declaration clearly points out, yes, mining rights do exist over the continental shelf, but those rights are limited to activities in the seabed and subsoil of the submarine areas. Above that continental shelf, those same rights do not extend. We are at the high seas point at that point, and, as article 78 points out, “The rights … over the continental shelf do not affect the legal status of the superjacent waters or of the air space …”.

So this Government does not have the right to extend this already much-disliked and hated provision to the continental shelf, but it is going to try, and if it is going to try that, then it might as well just go for the airspace as well. Why do we not just have protests banned from the air as well, anything above the continental shelf? It is just as ludicrous.

💬 Grant Robertson: Don’t give them ideas.

We could just claim as a territory all of Mars while we are at it, because it is actually about as legally possible.

This declaration goes down as far as article 85, to tunnelling: “This Part does not prejudice the right of the coastal State to exploit the subsoil by means of tunnelling, irrespective of the depth of water above the subsoil.” Again, it is reiterating that at sea level and at the subsoil level, you can go for gold, literally. It is the State’s patch. You can tunnel it, you can mine it, you can drill it—sorry, Mr Chairperson—according to this UN declaration. I am not advocating that this is what the Government should do. It should not take this as a challenge. So the Government can go in and tunnel. A protester could be banned from tunnelling, but they cannot be banned from doing anything at sea level. That is the distinction that we are trying to make here.

The point I wish to leave with the Minister is whether he can tell the Committee whether or not this declaration—which, as I pointed out, has been around on this Earth as long as he has been—was even looked at. Was there any consultation with the Ministry of Foreign Affairs and Trade in drafting these provisions? The Minister is doing a very good job of pretending that he is not registering any of these questions. Or was this simply something where the ministry determined we did not need to look at any of this? Did it just simply decide that what was signed at an international level did not matter? And is it possible for the UN to question these kinds of limitations that we are now legislating in an area where the UN has said that we cannot prevent other States? And that might mean a citizen from the United States who might want to come over and protest in our waters. We cannot set a limitation on them, so how can we set a limitation on our own citizens in that regard? I would ask the Minister to rise and speak to that very important question.

Kia ora. Ngā mihi nui. Kia ora. It is a bit late, Mr Chairperson. We are in the Committee stage of the Crown Minerals Amendment Act 2013 Amendment Bill, where we get the ability to drill down into the parts and clauses in detail, and have the ability to make amendments. I was thinking about writing some amendments, but actually we should just throw the whole bill out. This is an embarrassment for the Minister of Energy and Resources. It is a shoddy process, it is bad content, and I do not know why we are here in urgency doing it.

What I want to focus on in this call is clause 14—this egregious clause. I do not know whether the Minister thought he could get away with this, but, sneakily, under Budget urgency, he is trying to extend out these egregious powers, these anti-democratic powers, these anti - human rights powers. Clause 14 relates to new sections 101A and 101B in section 55 of the Crown Minerals Amendment Act—the so-called Anadarko amendment. It introduces five new criminal offences if protesters—and it is only protesters—protest against seabed mining or drilling, and it is only seabed mining or drilling. It is a ridiculous situation. You could commit the same offence on land and get about a third to a quarter of the same penalty, and we have the ridiculous scenario now where if you do something against one particular industry that has got Government friends in the Beehive, you will face higher penalties. In fact, I believe these are unconstitutional and unlawful laws.

This Anadarko amendment was lawmaking at its worst, and that is what clause 14 is amending. This was legislation that was introduced via a Supplementary Order Paper. We have heard mention in the LawTalk magazine that experts were critical, but I have also got a letter here from the New Zealand Law Society to the Attorney-General criticising the process and suggesting: “Why can’t we have a New Zealand Bill of Rights Act analysis for substantive Supplementary Order Papers?”. It is a good idea and I think we should look at that at the Standing Orders Committee. We saw no New Zealand Bill of Rights Act consideration, and no select committee process. It is a terrible process, and what the Government is now doing is trying to sneak in an abhorrent expansion of it.

Let us put it in context. Protesting at sea—which is what clause 14 is amending by amending the definition of offshore; that is all it is doing—is honourable. It has played an important role in our country’s history, and in our Government’s history when Norman Kirk sent that frigate to Mururoa. I note that Chris Hipkins and Jacinda Ardern have a background in the energy industry and some experience with petroleum. I have a bit of experience on the other side. I sailed on the Rainbow Warrior protesting at sea, and successfully, I might add, when the Labour Government worked to ban deep-sea bottom trawling in international waters between New Zealand and Chile. So it paid off. We saw some success.

What we are seeing here is all about supporting the mates. Clause 14 has dubious legality, and I hope the member Phil Goff will take a call, because by adding this word I believe we are making an unprecedented international move that I think, as a former Minister of Foreign Affairs and Trade, he would have some experience with. If other States took a step like this, I think New Zealand would be critical. What New Zealand is doing is unilaterally extending its jurisdiction over the extended continental shelf. This has been the subject of huge international debates over the Spratly Islands between Japan, China, Sarawak, and Taiwan and huge debates up in the Arctic, and New Zealand—little old New Zealand—under urgency is deciding what it wants to do with jurisdiction. No country has been able to sort out all the vexed grey areas in the United Nations Convention on the Law of the Sea, but New Zealand is just racing ahead, deciding it, with this amendment in clause 14, passed under urgency.

I want to look at the detail. Clause 14 is interesting because there is only one word changed. It is the introduction of the word “or”. It was late last night when I picked up why this inclusion of the word “or” was so important. I have spent the day on the phone with legal professors from various universities, and international law experts who work in international forums, to see whether this was as big a deal as I suspected late last night, under urgency—the inclusion of the word “or”.

Let us go back in history, because in the Crown Minerals Amendment Act the new definition of “offshore area” was defined originally as meaning “any area within the territorial sea or exclusive economic zone that is on or above the continental shelf”. I missed the inclusion of the word “or” because what this reminded me of was how poor the drafting was with the Anadarko amendment. It is actually logically inconsistent. If you are in the territorial sea or the exclusive economic zone, of course you will automatically be on top of the continental shelf in New Zealand. It is inconsistent. I thought they were just fixing this schoolboy mistake of the Minister with his amendment, but actually what they have done is snuck in the word “or” in clause 14. It is the territorial sea, the exclusive economic zone, or the continental shelf. What this is is a massive expansion, because now the five new criminal provisions are extending out over an additional—

I move, That the question be now put.

I rise to speak to Part 2 of the Crown Minerals Amendment Act 2013 Amendment Bill. In the explanatory note of this bill there are some bullet points that relate to “Matters in the Bill … to which errors or omissions will be corrected …”. In other words, we have an amendment bill to the amendment Act because there are errors or omissions that need to be corrected. As it happens, they all fall within Part 2. They start with the definition of “underground gas storage facility”; the definition of “offshore area”, which is in clause 14, which members have been discussing recently; references to “reserves” being changed to “resources”, which was a matter that the Minister of Energy and Resources referred to in his introductory speech; extensions to existing petroleum permits; addition of “platinum group metals” to the list of mineral types with the same tier 1 thresholds as for gold and silver; clarification of the application of the Crown Minerals Act 1991 to existing privileges, granted after that Act came into effect; clarification of the proprietary status of permits acquired by the Crown; and references to a “dwellinghouse”. That is eight items—eight items—that were errors or omissions in the bill that was passed a matter of just weeks ago—eight errors and omissions.

I am beginning to wonder whether the Minister has just about begun to understand the importance of the select committee process. With eight errors or omissions being corrected in this amendment bill, perhaps now, after hours and hours in the House under urgency on this, the Minister might be beginning to understand the importance of going to a select committee, where people with expertise can help MPs to get the law right.

We can argue about the policy position—and we are arguing about it, particularly with reference to clause 14—but it at least ought to be expressed accurately in the law. But for these eight points that are missing or are incorrect, all of which fall within Part 2, we are here under urgency, instead of observing the proper process, which might have rescued this Minister from these hours of purgatory, as he has had to listen to one speech after another berating him for his incompetence and his inadequate approach to the legislation. I would like to ask the Minister whether he prefers this kind of repeated drubbing in urgency, or whether he would rather have the legislation go to a select committee, where people can have some say and where, in fact, improved legislation may be the result.

I would like to focus a little bit on clause 13, which is unusual, because clause 14 is the lightning rod in this part. But clause 13(1) says: “In section 52, new section 99B(1), replace ‘dwelling house’ ”—spelt as two words—“with ‘dwellinghouse’ ”—spelt as one word. “Dwelling house” spelt as two words, “dwelling” and “house”, is to be replaced with one word, “dwellinghouse”. We are here at 11.30 on a Friday night to turn “dwelling house” into “dwellinghouse”. I wonder whether the Minister could clarify why that should be the case. Why are we here, taking a space out between two perfectly legible and understandable words, and making them into one word? I presume there is some significance in that, and it has a particular meaning. Had I been able to ask at a select committee I might have been able to find out. If this is bringing “dwellinghouse” into the same—

I move, That the question be now put.

I was not going to take a call on this but frankly I am outraged that tonight we have had a Minister in the chair, the Minister of Energy and Resources, who either is asleep, is too damn arrogant to respond to valid questions that are being asked of him, or is afraid and frozen to his seat because he cannot answer the questions that have been asked of him.

It is an absolute outrage that that Minister in his first piece of legislation stuffed up so much that we have a bill in front of us, the Crown Minerals Amendment Act 2013 Amendment Bill, that says that we are debating the Crown Minerals Amendment Act 2013 amendment to the Crown Minerals Act. We were in this House 6 weeks ago, Minister. How was it that you were so ill prepared and so incompetent that you brought legislation into the House that has this many errors? Why is it that you brought in legislation that abridges the fundamental rights of people to freedom of expression, freedom of speech, and freedom of assembly? You brought it in by a Supplementary Order Paper after the—no, I am sorry, Mr Chairperson. You did not bring it in; the Minister brought it in. You would never have done such a thing. The Minister brought in legislation that abridges the fundamental rights of New Zealanders, through a Supplementary Order Paper, after the Commerce Committee had met so he never had to front up. The Government members, trembling in their bloody seats, never had to front up at the select committee to answer the question of why they were doing things that are totally without justification.

The Attorney-General sits there and interjects from his seat, but he has never taken a call. What is the role of the Attorney-General if not the watchdog of the fundamental rights of New Zealanders: the right to freedom of speech, the right to assembly, and the right to protest? I think it was Grant Robertson who was speaking before about the proud tradition of New Zealand being nuclear-free. It was a proud tradition that I remember, when Norman Kirk farewelled the frigate Otago to go up to protest against French nuclear testing in Mururoa. And now the National Party would say: “Wasn’t that a wonderful thing?”. It was the right of protest—the right of protest—actually exercised by the Government of New Zealand.

Then I remember when I was a young member, like Mr Bridges in this House, and I was out on the harbour in Auckland and Wellington protesting about nuclear-armed submarines and ships coming into New Zealand. Now the National Party would want to claim credit for some of that policy. So why is it, given that New Zealanders are so proud about the way in which we have used the right of protest at sea to achieve our goals, that this Minister can bring back a bill into the House that abridges those fundamental rights?

But he does not stop there. Not only does he want to abridge the fundamental rights of protest in our territorial waters but he wants to extend that abridgment to our exclusive economic zone and on or above the continental shelf. My question to Mr Bridges is this, if he actually knows the answer to it, but I suspect that he has stuffed up yet again: how does he claim the right to legislate for the waters under and on the surface of the waters of our exclusive economic zone and above the continental shelf, when he does not have that right under law? How is he legislating to extend the outrage of stopping protest within New Zealand’s territorial waters to the waters that we do not even have the right to legislate over? That question has been asked time and again of the Minister in the chair.

How many times has the Minister got up to answer a question in the Committee? Is it not the role of the Committee of the whole House that members of the Committee ask questions of the Minister in the chair, and the Minister is sufficiently competent, courageous, and ready to get up and answer those questions? That Minister has not got out of his chair. We are debating this at 11.35 at night, and not one of the members of the Government has the guts to stand up and to defend the legislation that they have got—

The CHAIRPERSON (Lindsay Tisch): Order! I will ask the member just to withdraw that comment. It implies that the member does not have courage. So I ask the member to withdraw that comment.

I will withdraw that, Mr Chairman. They do not have the intestinal fortitude to get out of their seats and to debate legislation, to make excuses for their incompetence, or to defend what they are doing in the House tonight.

The first time they try to bring this in, they bring it in by a Supplementary Order Paper that does not go to a select committee. This time they do not even take that chance. They rush it through all its stages under urgency, late on a Friday night, when they hope no New Zealanders are listening to the outrage that they are perpetrating.

We are in the position at the moment of debating late on a Friday night because we have not had the benefit of a proper, considered process to consider this legislation, the Crown Minerals Amendment Act 2013 Amendment Bill. The legislation that we are amending, which we considered only 6 weeks ago, now has to be corrected. But we are still dealing with issues that are significant and are important. We have not had the benefit of considered legal advice and other advice. In this particular part of the bill, and particularly clause 14, it is quite obvious now through the contributions of other members of the Committee tonight that there is some real doubt about the lawfulness and legality of this provision. We are in no better shape, because we simply have not had access to advice—the sort of professional advice that officials would give us if this had properly gone before a select committee. We have not had the benefit of that. We have not had the benefit of the Attorney-General and his good offices to give advice about the lawfulness of this particular provision.

It is a matter of the pride and reputation of this House that is now being put at stake. We—when I say “we”, I mean all members of this House, whichever party we are from, whichever side we are on—should never be put in the position where we have a law in front of us that is patently doubtful and questionable as to its legal correctness. That is an unconscionable position for the House to be put in. It is not much for this Committee and for members on this side of the Chamber to ask the Minister in the chair, the Minister of Energy and Resources, to at least respond to a perfectly reasonable and legitimate question about the correctness of this particular provision. There is ample room for doubt—ample room for doubt—of its integrity. What would be the point of passing a law, urgency or no, when we simply do not know whether it will survive the merest scrutiny once it is passed? Let us, for heaven’s sake, not put ourselves in that position.

There is real doubt about this particular provision, and the honourable member Gareth Hughes has pointed out the significant difference—the changing of the language, the ordering of the provision in clause 14—that means that we are now legislating for this whole area above the continental shelf, when there is real doubt about whether this House has the ability to do that, and whether in doing that we are compliant with our international obligations. That is a matter that this House has to be cognisant of, and has to take note of when we are passing legislation. It would be totally wrong if we—even in this truncated process, even in the absence of a select committee—now barged ahead without receiving some sort of assurance from those who are in a position to give that assurance: either the Minister in the chair, the Attorney-General, the Minister of Foreign Affairs, or even, indeed, the Minister of Justice when she has finished killing the turtles. Any of them ought to be able to give us an assurance about the integrity and the correctness of this provision, because it is not good. It is not good. It is not good for the turtles that live above the continental shelf. In fact, it will be the turtles that will be most affected because they live above the continental shelf and they will be on the foreshore and seabed. But it is not good. It is not good.

💬 Hon Christopher Finlayson: Let’s get on to the foreshore and seabed—Labour taking away the rights of people to go to court.

That has got the Attorney-General up. The Attorney-General has woken up. If only we could have the benefit of his advice on this particular provision, because it is a serious matter. We can laugh about that. We can laugh at the Attorney-General, and we can laugh about the turtles, but it is a matter of the integrity of this House and every member in it that we are called upon to consider a piece of legislation under urgency. We ordinarily ought to expect the Minister to answer legitimate questions where there is doubt. He has not done that, and we are in no better position. It is wrong for us to be put in this position. We must continue to oppose this unless and until we have some sort of assurance from the Minister in the chair. We are being put in an impossible position. It must never happen. Hopefully, it will never happen again after this.

Kia ora. What we are seeing is this Crown Minerals Amendment Act 2013 Amendment Bill being sneaked through under urgency. This egregious clause 14 is being sneaked through under urgency to amend the Anadarko amendment—also snuck through without any New Zealand Bill of Rights Act or select committee scrutiny, through a Supplementary Order Paper and amendment. This is terrible lawmaking. I believe it is lawmaking at its worst. That is what the Law Society LawTalk magazine is talking about.

But what we are doing right now with clause 14 is something we possibly do not even have the legal ability to do. We do not have the jurisdiction to enforce criminal provisions against protesters to protect one specific industry on the high sea. I am sure members know, and I am sure the Minister of Energy and Resources knows, because he is the lawyer in the Chamber, that the high sea is considered to be an inch above the seabed on the extended continental shelf, past our exclusive economic zone. This extends out to 350 nautical miles. The reason is that a country is given the rights, with the royalties paid to the International Seabed Authority, to exploit the minerals on the seabed. But the water column and the sea are not considered part of New Zealand’s jurisdiction.

We have heard numerous quotes from the Ministry of Foreign Affairs and Trade website and from the Ministry for the Environment website showing it is clear that we do not have jurisdiction to control shipping. But this is exactly what this Government is trying to do, and to sneak it through under Budget urgency at a quarter to midnight. I think it is an outrage.

I think the question for the Minister is this: was he even aware he was doing this? It is not in the explanatory note of the bill. Did he even know he was taking this huge step to extend international jurisdiction unilaterally over 1.7 million square kilometres? I believe this is going to have international ramifications. You are going to see the North Koreans try this example, you are going to see Japan—

The CHAIRPERSON (Lindsay Tisch): No, no, I’m not. No, I’m not.

You are right, Mr Chair. We are going to see countries like Japan and North Korea trying this on. The world is going to see Japan trying to enforce non-interference zones around its ships trying to do its whaling. North Korea is going to do it. I think this is going to be an internationally significant precedent, and I do not think the Minister is even aware he is doing it.

Did he get a legal opinion from the Ministry of Foreign Affairs and Trade? Is the Minister of Foreign Affairs even aware that Simon Bridges, the Minister, under urgency is sneaking through a massive jurisdictional grab to extend New Zealand’s rights over it? This is likely going to be challenged, I believe, at the International Tribunal for the Law of the Sea at Hamburg. It could be challenged in New Zealand’s courts, and, again, we are doing it all without select committee scrutiny. It is an absolute outrage.

But why are we doing it? What happened last week? Which is the first oil company wanting to apply for a permit over the continental shelf? Of course, it is the China National Offshore Oil Corporation, which last week with Shell announced it wanted to get a permit. This is a company that on its own website describes itself as a mega State asset of the Chinese Government. This company wants to get a permit from Mr Bridges over the continental shelf. I want Mr Bridges to tell this Parliament whether he got a call from either Shell or the China National Offshore Oil Corporation, the State-owned oil driller of the Chinese Communist Government. Did he get a call from them, saying “Hey, Mr Bridges, I’m sorry, but with your Anadarko amendment you covered only the territories in the EEZ. The poor drafting used didn’t cover the continental shelf where we want to go prospect for oil with Shell.”?

Mr Bridges, you have not answered a single question. My question to the Minister is this: were you aware, and had your office been contacted? What we are seeing is a travesty of justice, with a poor, egregious clause 14 being rushed through under Budget urgency. This ain’t a good look for this Government.

I move, That the question be now put.