Marine Legislation Bill

Clauses 1 and 2 deal with the title and commencement of the Marine Legislation Bill. The title clause reads thus: “This Act is the Marine Legislation Act 2012.” That might need a bit of updating, seeing as we are now very late in 2013. Such is the length of time it has taken to progress this legislation, late as it was arriving in Parliament, late as it was to be introduced, and late as the first reading was. The process since then has been so slow that we find ourselves not in 2012 but very, very deep in 2013. So that part of the title will need a minor amendment as well.

We could think of some names for this bill. I think there are plenty of clichés that could be applied to this bill—the “Shutting the Door Well After the Horse has Bolted Act” would be a very good name for it, which leads me to the commencement. The commencement is not as straightforward as most commencement clauses are. The commencement clause allows for Part 2 of this Act to come into force “on a date appointed by the Governor-General by Order in Council; and 1 or more orders may be made bringing different provisions into force on different dates.” So Parliament actually has no control over when Part 2 of this bill will actually come into force. That has been handed over to the Government.

Again, I think it was my colleague Maryan Street who pointed out that when Gerry Brownlee is given this level of control over regulations and this level of control over when an Act actually comes into force, he likes to push the boundaries to the absolute extreme. Gerry Brownlee has a history of making regulations that actually undermine the original purpose of the Act that gave him that regulation-making power in the first place. I fear what it means to give Gerry Brownlee that level of control over when the different aspects of Part 2 will actually come into force.

The rest of this Act—Part 1, “Amendments to Maritime Transport Act 1994”—are the changes that we really needed before the Rena disaster occurred. Actually, there has been an amendment made at the Transport and Industrial Relations Committee. I do not know whether there was a bit of crystal ball gazing happening at the select committee, because originally—

💬 Andrew Little: Probably done on the Labour side.

Yes, I think it was probably the Labour side that could see what was going to happen. Originally, this read that the rest of this Act comes into force on 1 April 2013. Can anybody spot the problem there—that this Act was supposed to come into force on 1 April 2013? Again, we have got the same problem: this Government is so slow and has made such a low priority of this legislation that we are a very long way past 1 April 2013. The select committee got it right by amending the commencement clause to say that the rest of this Act comes into force on the day after the date on which it receives Royal assent. So that at least means that Parliament has control over when this Act will come into force, because it should, hopefully, from here on in make speedy progress through its final stages, be off to the Governor-General, and receive the Royal assent, and we should have it enforced the following day. But it certainly is not 1 April 2013—long past that particular date.

But I wondered whether there was any possibility of retrospectively applying the commencement of this Act, because we would really like to have had this Act come into force before two events that occurred. The first, actually, is Phil Heatley making a promise to a public meeting in Kaikōura about the provisions in Part 2 of this Act. I am sure my colleague Moana Mackey knows about the promises made by Phil Heatley that have now been broken, particularly by one of the amendments that Gerry Brownlee has pushed through this afternoon and that the Government has voted for. So we would have liked this to be applied before Phil Heatley made those promises, just to save face for Phil Heatley, really, so that maybe he could be transported back in time and never make those promises, so that he would not be breaking a promise today.

But far more important than that would be for the commencement of this Act to have occurred before 2.20 a.m. on Wednesday, 5 October 2011. If this Act could have come into force at any point in time before 2.20 a.m. on Wednesday, 5 October 2011, we would have saved the country millions and millions of dollars. If this Act had been in force before the Rena came aground on the Astrolabe Reef, then the New Zealand Government would not be liable for the cost of cleaning up that disaster. I am surprised, frankly, that this Government has not promoted an amendment to the commencement date that would retrospectively apply this Act, because that Government over there must be so embarrassed—so embarrassed—about its failure to act. It was handed this legislation on a plate from the previous Government. The work had been done. The bill was ready to go in early 2009. All it had to do was introduce it in Parliament, put it on the Order Paper, and make it a priority. If it had done that, then when the Rena hit the Astrolabe Reef, and the ensuing disaster occurred and the ensuing cost occurred, that would not have been borne by the poor old New Zealand taxpayer, who, once again, has been hit in the back pocket by that negligent National-led Government.

So I think that it would perhaps be fantastic if the Minister of Transport could whip down to the Chamber as quickly as possible and put an amendment up to change the commencement date back to any moment—any moment. It could be at 2.19 a.m. on Wednesday, 5 October 2011. That date would be sufficient to have had this Act in place when it was needed, because any date after that, frankly, is far, far past the useful date of this legislation. Really, if that Government had been on to it, if that Government had understood the risks, and if that Government had been prepared to make safety around our coasts a priority, then this legislation would have been commenced long before today and we would not be debating it now.

Let us call this Marine Legislation Bill what it is, which is the “Anadarko Bill”. The fact is that we are seeing laws for, and by, the oil industry under this Government. In this part of the debate on clauses 1 and 2, in the Committee stage, as we look at the title and commencement clauses, it is a chance to actually speak a bit of truth to power and to ask what the rationale is and what the truth is behind this bill

The fact is that this used to be a good bill. This used to be a common-sense bill that all parties in Parliament could support. Sure, it was a bit late in signing up to some common-sense international conventions, making some minor amendments to the Maritime Transport Act and the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act, but now the Government, through this back-door, no-say amendment, has changed it. It is now a bill about deep-sea oil drilling, and that is why Kiwis are so incensed. So let us also call it what it is, which is the “No-say, Back-door Amendment Bill”. Let us call it what it is: the “Deep-sea Drilling Empowering Bill”.

This used to be a good bill; now it is a bill that I think the public could legitimately say was the “What is the Government Scared of (Asking the Public) Amendment Bill”, because the fact is that this bill is locking out the public from having a say on discretionary consents when it comes to exploratory deep-sea drilling. We are talking about drilling kilometres under the sea, an incredibly risky activity. Now that the amendment has passed, it means that this bill should be called the “Government is Scared of What the Public Will Think Bill”.

We have seen this twice now in this Parliament, where back-door amendments have seen the scope for New Zealanders to express themselves and to express their opinions taken away. We saw it with the Anadarko amendment to the Crown Minerals Amendment Act 2013 Amendment Act, which took away Kiwis’ right to protest. Of course, what it is really doing is giving Kiwis a challenge, because what that amendment Act said was: “Sure, we and the oil industry are scared of protest. That is why we are going to legislate against it.” In fact, it is a giant challenge to iwi and Kiwis to stand up and send those oil companies a message.

Likewise, with this amendment changing this bill and making it the “No-say, Back-door Amendment Bill” for deep-sea oil drilling it is, again, giving Kiwis a challenge. The Government has sent them a very clear message: it does not want to hear what they think because it is scared of what the people of New Zealand will say. So the people of New Zealand need to say it loud, they need to say it clear, and they need to say it together: no deep-sea drilling in New Zealand’s waters; focus on clean energy—that is where our future is. Kia ora.

Well, I think, given the debate that has happened in the Chamber today, an appropriate title for this bill, the Marine Legislation Bill, might be the “Marine Legislation (Just When You Thought It Couldn’t Get Any Worse) Amendment Bill”. When the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act, which this bill amends, was passed through Parliament, Labour was the only party that voted against it at every single reading. Then at the Transport and Industrial Relations Committee other political parties realised just how dire the legislation was and that it was likely to be inconsistent with our commitments under the United Nations Convention on the Law of the Sea; that it was woefully inadequate in terms of economic protection compared with the Resource Management Act, which is the legislation that governs economic activity in our territorial waters; that we were removing the ability to appeal to the Environment Court on points of substance; and that, basically, it was a general greasing of the wheels for industry to make sure that projects that potentially would not have got through under the Resource Management Act process, which is far more robust, would get through under this very, very permissive piece of legislation.

When you consider that the line between our territorial waters and our exclusive economic zone is jurisdictional only—it is not based on any environmental factors, any scientific analysis, or any risk factors; it is just that within 12 nautical miles is our territorial waters and beyond it is not—you would have to question the sanity of having two such completely different regimes regulating exactly the same activity, operating side by side, separated by only an invisible jurisdictional line in the ocean. Well, the Labour Party thinks that that is not sensible. We do not see the sense in introducing untested legal terms in the exclusive economic zone. We question why we could not have used the well-known language of the Resource Management Act, which has 20 years of case law behind it and which provides certainty for regional councils, certainty for industry, and certainty for communities so that they know what they are dealing with and they know what these legal and environmental tests are. We said “Why can we not just use those terms—mirror them in the exclusive economic zone legislation?”, and the answer is that, again, it was intended to be more permissive than the Resource Management Act and not intended to mirror the Resource Management Act.

Labour raised concerns the entire way through the process. We were very disappointed. We made approaches to Minister Adams, saying to her that no one in the country, whether they be from industry or environmental NGOs, wanted to see this kind of pendulum swinging of legislation between National and Labour Governments. We have seen it too often on crucial pieces of economic legislation like the emissions trading scheme and the Crown Minerals Act—and it was not just Labour; it was a meeting that we had with the Greens and New Zealand First. We said “Look, we actually think that there is a lot we could lock down in common on this exclusive economic zone legislation. How about we try to do it? Find something that none of us are entirely happy with, none of us are 100 percent happy with, but we can all live with and then give that kind of assurance, that stability, that it is not going to change.”, and we were rebuffed. That, I think, was very unfortunate.

But the reason I think that this bill could be called the “Marine Legislation (Just When You Think It Couldn’t Get Any Worse) Amendment Bill”, is that at that time we really did think that, well, this was pretty bad and that we were going to have to make changes to it. We signalled clearly what those changes were going to be. No one saw this coming down the pipeline. We were not told at the select committee. In fact, at the select committee it was reinforced for us time and time again that all these concerns that had been raised about the legislation and all the concerns that were raised in submissions—all the concerns that were being raised by councils, that were being raised by environmental NGOs, that were being raised by technical experts, and that were being raised by the general public—would be addressed through the marine consent process, which allowed for public submissions. That is what we were told.

Minister Phil Heatley, the then Minister of Energy and Resources, was in Kaikōura, where there was significant public concern about the block offer that was being pursued off the coast. Given their extensive whale-watching interests and given how important that particular industry is to the economy in Kaikōura, the people there asked Minister Heatley why this legislation was so weak. He said to them: “You will get to have your say through a public submission process when the application for a marine consent off the coast of Kaikōura is being considered.” That was the promise that the previous Minister of Energy and Resources made less than a year ago to the people of Kaikōura, and then to the people of New Zealand.

Well, I do not know whether he did not read it properly, or whether he was lying, or whether he was—

The CHAIRPERSON (Lindsay Tisch): Order! You cannot say that.

Sorry, Mr Chair. I do not know whether he was being—

💬 Andrew Little: Wrong—he was wrong.

—yes, whether he was wrong—

💬 Meka Whaitiri: Misleading.

—or whether he knew he was being misleading at the time, or whether, in fact, someone had got in the ear of the new Minister of Energy and Resources and the Minister for the Environment since that legislation has been passed and said: “You know that pesky process where we actually have to listen to people who have concerns and who want to have their say? Or to experts who have not been engaged in the process so far, who think that maybe when we are considering an application for an activity as controversial as offshore oil and gas exploration we should not rely solely on industry data, maybe we should not rely solely on industry research, and maybe it is good to have a contestable process, where people can challenge the science and challenge the data, and challenge the facts that have been put through by the applicant—people who think maybe that might make for a better process that, No. 1, could result in decisions being made based on all the information available, not just the information from one side.

That is particularly the case when you consider that the Environmental Protection Authority does not have an investigative capability in there and that it is very new in what it does, and also the fact that when the Environmental Protection Authority legislation was going through this Parliament, Labour put up an amendment to make environmental protection one of the purposes of the Environmental Protection Authority and the National Government voted it down. That leads us to have some concerns about whether the Environmental Protection Authority is actually about environmental protection or whether it is solely about economic development at any cost.

On this side of the Chamber we see the value of a submission process. I do not think there is a member of this House who has sat on a select committee who does not see the value in that process. They accept that even in an organisation like the Environmental Protection Authority you are not going to have a monopoly on all knowledge. There are going to be factors that could be brought through a submission process. That is why very few pieces of legislation go to a select committee in this House and come back to Parliament unchanged. It is because we take on board the points that have been made, and the comments that have been made, and the same is true of a process that consents a very technical and controversial activity like offshore oil and gas exploration. To have that taken away not only undermines confidence in the legislation, not only undermines confidence in the Government, and not only undermines confidence in the process but also means that information that would have been put on the table in front of an agency that is brand new, in front of an agency that does not have any investigative capability of its own, is now no longer going to happen.

Minister Amy Adams said: “Well, that’s because we write legislation assuming that nothing’s going to go wrong.” Well, I am sorry, but I do not know whether the Gulf of Mexico disaster happened just to other people and not to Minister Amy Adams, but it did because things do go wrong. In terms of legislation that consents risky activities even though the risks may be considered low in exploratory drilling—drilling of exploratory wells—we cannot get past the fact that the Gulf of Mexico Deepwater Horizon disaster was in an exploratory well. It was in a well about which Minister Adams has said: “They should not have to go through a full consent process because the risk is so low and I write legislation for things always going right, not for things going wrong.” That is not good enough.

The National Party appears to be the only political party that has not taken another look at its policy in the wake of the Gulf of Mexico disaster, in the wake of the Rena disaster, and in the wake of the Pike River disaster. It has not done anything to reinforce our emergency response capability. My colleague Andrew Little has been doing a lot of work on what a rapid response capability would look like, maybe based somewhere like Taranaki, where they have a lot of experience in this, and maybe actually having some equipment in New Zealand ready to go in case something goes wrong. Having the expertise, training people on a regular basis—surely these are lessons that we should have learnt from tragic recent experiences that have had enormous environmental and economic impacts. But it appears that the National Party members have not learnt.

The reason that they refuse to do anything and that they want to keep their heads buried in the sands is because they have no plan B. Oil and gas exploration is their entire regional economic plan, and if it does not pan out, then they are kind of screwed and we in the provinces are kind of screwed. I am sorry, but I think that the provinces of New Zealand deserve a plan B from this Government. If it wants to charge ahead with oil and gas exploration, that is its right as a Government. If it wants to weaken environmental protection, it will be held to account for that at the next election, but we deserve a plan B in provincial New Zealand. Because if this does not pan out—and it has not; we have been told on the East Coast—

💬 David Bennett: Come to Hamilton.

“Come to Hamilton.”, says Mr Bennett. OK—

💬 Andrew Little: That’s plan C.

That is plan C. Plan C, my colleague says, is to move to Hamilton.

I would like to take a short call on the commencement clause as well. I would like to follow on with regard to the friends I have in Kaikōura—the electorate I live in—whom I joined when they protested the direction that this bill, the Marine Legislation Bill, and the Government is going in terms of oil exploration. They had hundreds of people on the beach in that very small community. They had a petition in which somebody from every household in that community said they did not want deep-sea oil exploration to go ahead as it could risk their livelihoods and risk the things that whole economy is based on in Kaikōura.

I just point out—the Government seems to have missed it, and the Minister for the Environment missed it as well when she spoke about exploratory wells—that the riskiest phase in drilling is when exploration is happening, because they do not know until they do that what is likely to go. The risk of blowout is worse in the exploration stage. I will just pop over to another area that has had exploration, and that is just off D’Urville Island, another part of my rohe, over into Tasman Bay. I negotiated with an oil company that wanted to drill off D’Urville Island and ultimately did. I remember that the Minister—it was Nick Smith—actually got on the platform when they did do the exploration, ultimately. That is in a much shallower area, but the risks even there are too high.

Even following that negotiation, where we ended up getting some format where you could do decent environmental assessments—a matrix that you would look at to check what the risks were in a marine environment; we got that developed out of that negotiation—there is no way I would sign off again on something like that. What we found with that company, which has got a very good record in theory, is that it did not disclose to us that, years before, it had managed to pollute the Taranaki coast with a much smaller oil spill than what we are really worried about here. But that spill, I think, affected up to 15 kilometres of coast at the time.

So these risks are very real and if we get the companies that have been associated with the Gulf of Mexico coming over here and thinking they can do the same thing without, as my colleague pointed out, the resources to support or back up any correction from a mistake in even just the exploratory part, we have got some real concern. But I go back to the people in Kaikōura. They are actually further away from some of the main focus of that protest, which was closer to the Wairarapa, Wellington, the Marlborough Sounds, Clifford Bay, and Cloudy Bay areas—those people, as we have heard, were promised that they would have access to the process. That has been taken away from them and left with the council, maybe, and some of the iwi, maybe, and we can hopefully rely on them—we certainly can in respect of Kaikōura—to be very concerned and to be opposing this. But that is not necessarily the case elsewhere in the country for other councils that may have been told porkies, as we were—we were misled—in terms of the exploration off D’Urville Island, to some degree.

So I just want to add voice to the fact that the Minister does not know everything and may be being misled by some of the officials as to where the risk lies. This Committee certainly has been misled if we are listening to the Minister on that. There is a major risk. We are an island nation. We have got a lot of coastline. The last thing we need is oil on our coastline. We do not need it in the Marlborough Sounds around aquaculture, and we do not need it down through the Kaikōura coast either.

If people on the Government seats have an issue, I ask them to come to my region and talk to me. I ask them to meet those people and actually realise what they are concerned about: their livelihoods, their local flora and fauna, the things that they are really proud of. The fact that they can drive to the Kaikōura coast and see seals just off the beach is fantastic for the tourist industry.

Clause 1 agreed to.

The question was put that the amendment set out on Supplementary Order Paper 360 in the name of the Hon Gerry Brownlee to clause 2 be agreed to.

Amendment agreed to.

Clause 2 as amended agreed to.

The Committee divided the bill into the Maritime Transport Amendment Bill and the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Amendment Bill, pursuant to Supplementary Order Paper 359.

Bill to be reported with amendment presently.