Resource Legislation Amendment Bill

New Zealand First will be voting against this part as well. I would like to speak in particular about clause 184, which would amend section 4 of the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012.

What is objectionable about this is the exclusions. It defines dumping in subclause (1)(a), and dumping means “any deliberate disposal into the sea of waste or other matter from ships, aircraft, and structures at sea;”. It then goes on, in subparagraphs (ii), (iii), and (iv), in relation to any deliberate disposal into the sea of ships, the storage of waste, and any abandonment or toppling of structures.

But it is subclause (1)(b) that creates the difficulty because, having quite properly prohibited the dumping of the things that I have just mentioned, it then lists an incredible list of exclusions that are so broad as to virtually nullify the definition of dumping in subclause (1)(a). I refer in particular to the new definition of dumping in subclause (1)(b). This is what it says, and listen carefully because it takes a lot of listening to, Mr Chairman: “(i) the disposal into the sea of waste or other matter incidental to, or derived from, the normal operations of ships, aircraft, and structures at sea and their equipment, other than waste or other matter transported by or to ships, aircraft, and structures at sea, operating for the purpose of disposal of such matter or derived from the treatment of such waste or other matter on such ships, aircraft and structures;”. Did you get that, Mr Chairman? Did you get that? That is really, really clear.

💬 Tim Macindoe: Don’t bring the Chair into the debate.

The CHAIRPERSON (Lindsay Tisch): Yes, do not direct anything to me. I am impartial in these matters. You direct that to the Minister or to other members.

I will. I will do exactly that. Minister, did you get that? He is going to nod his head. Yes, I am sure he would. But he would be one of the few, because that is such convoluted nonsense as to be virtually unintelligible. It is so broad in its interpretation, that there is virtually no point in having a definition of dumping in subclause (1)(a) at all.

But what it really means is that we have a very, very permissive regime here, as to what can actually be dumped or disposed of at sea. It is far, far too permissive, and it actually amounts to a permission to dump, at sea or on our exclusive economic zone or continental shelf, a whole range of materials that ought not to be dumped. There is no reason for them to be disposed of at sea in that way.

But it goes on, in subclause (1)(b)(ii) and (iii), by saying that it prohibits dumping but it does not include “placement of matter for a purpose other than the mere disposal of the matter, but only if the placement is not contrary to the aims of the 1996 Protocol to the London Convention; or (iii) abandonment in the sea of matter (for example, cables, pipelines, and marine research devices) placed for a purpose other than the mere disposal of it;”.

We are talking here about deliberate acts, because abandonment is a deliberate act. It is not just a loss of those materials; it is a deliberate act to get rid of, at sea, those things that I mentioned. Somehow the words “other than mere disposal” are supposed to be some kind of a qualification. Well, I do not think they are. I think this regime is far, far too permissive. It is not something that we should be permitting as a Parliament—

The CHAIRPERSON (Lindsay Tisch): I am sorry to interrupt the honourable member. The time has come for me to leave the Chair for the dinner break.

Sitting suspended from 6 p.m. to 7.30 p.m.

The exclusions to the definition of “dumping” in amended section 4(1)(b) are badly drafted and are far, far too wide. They amount to permission to shippers and other operators on the economic zone and the continental shelf to dump and dispose of waste to a degree that New Zealand First could not possibly support, and for that reason we will certainly be voting against it. What we expected in this bill is that there would be a tightening up of those things so that there would be fewer such activities.

I would like to make some comments around policy statements. We are dealing with clause 188 on page 149 of the bill. The bill introduces this concept of having policy statements in the EEZ. We have got to remember that there is no plan mechanism in the EEZ, so we have got the Minister being able to have virtually total control of the policy statement process.

There was quite a degree of concern from submitters because this part of the bill was largely drafted in response to industry concerns. The consultation that was done before this part of the bill was introduced and became part of the bigger bill was largely with the Environmental Protection Authority (EPA) and industry users. It shut out environmental groups and those representing the thousands of New Zealanders who have made submissions about activities like the Trans-Tasman Resources and Chatham Rock Phosphate seabed mining proposals. So there does seem to be quite a level of public scepticism amongst some submitters about what these policy statements under the EEZ are going to be doing.

It is interesting because, as a result of the decisions of the EPA to decline consent to Trans-Tasman Resources, a huge application for seabed mining off the Taranaki coast, which would have had a sediment plume of about 50 kilometres, the decision panel concluded that there was uncertainty around the scope and significance of the effects of seabed mining as proposed by Trans-Tasman Resources. There was huge public interest in that application, 4,700 submissions, and the same with Chatham Rock Phosphate, which was a major proposal, which would have seen the destruction of benthic habitats. The fishing industry was involved in making submissions and many members of the public. Again, the decision-making panel there said that there was a lot of uncertainty. That goes back to the provisions—I think it is in section 61—of the principal exclusive economic zone legislation about the precautionary principle.

Once those decisions had come out and the EPA had said no to major seabed mining because of uncertainty about the scale of effects, then the industry came along and started lobbying the Government, and, lo and behold, we end up with the provisions in this bill that allow the development of policy statements. Submitters were concerned in terms of the new section 37A in clause 188 about the purpose of these policy statements being “to state objectives and policies to support decision-making on applications for marine consents” like seabed mining.

Originally in the bill as introduced, that was not constrained by having to have the policy statements implement, or be consistent with, the purpose of the principal Act, the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act (EEZ Act). The Local Government and Environment Committee has put in that qualification, but there are still major concerns around the process that these policy statements will go through and the major discretion that is available to the Minister. So when you have this part of the bill being the result of industry lobbying because they did not like the way the EEZ Act and the precautionary principle were applied to two seabed mining applications, and you have in new section 37B(b), where, in terms of the consultation process, unlike a lot of other things in this bill, there is a huge level of detail and prescription setting out what must happen when—here we have a clause that just allows the Minister to establish a consultation process that gives the public, iwi authorities, regional councils, and people with existing interests adequate time and opportunity to comment. Unlike the national policy statement (NPS) process in the Resource Management Act (RMA)—and this is all supposed to be integrated legislation, remember—where there are quite robust and detailed provisions around how a national policy statement should be developed, here these EEZ policy statements are much looser.

The Minister has a lot of discretion around what sort of consultation will occur. There is no requirement for an evaluation report in terms of something similar to a section 32 analysis that you get under the RMA, and there is the emphasis on consulting people with existing interests, giving them a special status that they do not have in terms of the NPS process under the RMA. I have to ask the Minister why there is so little detail around the consultation process here and why this provision has gone into the bill, and will go into the Act, as a result of industry being concerned about the precautionary principle and the way it was applied in the decisions on Chatham Rock Phosphate and Trans-Tasman Resources.

This level of discretion makes us very suspicious about the potential for a Minister to override the primary legislation by going through an EEZ policy statement process and putting in place policies that will undermine the precautionary principle. If that happens, of course, it will be much easier for Trans-Tasman Resources and others who want to go ahead with this trialling and experimentation with massively destructive seabed mining—never been tried in deep waters like they are proposing here. New Zealand is the experiment for it. Why does the Minister have such discretion when these policy statements can potentially override the provisions in the principal Act? Why has there been no public consultation on the development of this section before it became part of the bill, when there was consultation with user groups and industry stakeholders? We are quite suspicious of the purpose of these policy statements given that it has obviously been something that the industry has wanted.

I think the other issue I would like to comment on in this call is climate change, because there is a Supplementary Order Paper (SOP) 283 in my name that would require some consideration when the EPA is considering marine consent activities of the greenhouse gas emissions that may be associated with those activities. As Sir Geoffrey Palmer said in a major address on the RMA and our planning legislation last year, “Planning for climate change in future is an enormous issue and central government so far in New Zealand has not taken that on board.” That is what my SOP, which would change the RMA, attempted to do in ensuring that greenhouse gas emissions were taken into account here under the RMA, and there is a parallel SOP here to require decision makers to look at how the activities that are being applied for in the EEZ are actually going to contribute, or not, to our climate pollution.

The Green Party puts an emphasis on protecting the climate, because we require a stable climate. This Government, in voting down the changes to the RMA that would have seen it go back to the provisions prior to 2004, which would have allowed decision makers to take that into account, I imagine will vote down this similar SOP here, but we have a responsibility to look at how we are impacting on the climate. The Government cannot just keep dismissing actions that would be directed towards mitigation and just focus on adaptation. Of course, it is in the EEZ, where we have got these major activities for deep-sea oil drilling to try to find more oil reserves when there is already abundant evidence that known reserves are going to significantly impact on the climate if we allow them to be exploited. So there is an opportunity with this SOP to actually take climate protection into account, to put it into the principal Act. There are a number of other major amendments to the EEZ in this part of the bill. We should be doing something about the climate. Thank you.

I believe we are on Part 5. I would just like to acknowledge the Minister in the chair, the Hon Nick Smith, who has taken some opportunities to respond to questions from members of the Opposition. The issue that I want to raise goes to clause 188, which is Part 3A of the Act, and the risk of perception and the real risk of actual politicisation of the Minister choosing to appoint members to boards of inquiry for applications for publicly notifiable section 20 activities. I understand that we have some concern with this.

Other parties have concern about the fact that the Minister, under this new piece of legislation, will have the power to appoint board members. I point to new section 53, under Part 3A of the Act, set out in Part 5, where there is the ability for the Minister to appoint three to five suitable persons, and the Minister may, if he or she considers it appropriate, invite the Environmental Protection Authority (EPA) to nominate persons to the board and appoint people with relevant expertise, legal experience, and, obviously, tikanga Māori representation on that board, when it has in the past, I believe, been the practice that the Environmental Protection Authority has been the body that has nominated and appointed people to boards of this nature.

It is my understanding from some of the earlier commentary in the bill that during the drafting of the bill and advice to the Minister, officials advised that that should not be the case—that it should be the EPA, I understand, that should make the appointments to those boards, and not the Minister. On this side of the House, we believe that that opens up—regardless of the stripe of Government that might be there—if the Minister has given that power, the process of nominating people to that board to political influence.

I do note, as I have mentioned, that there is the ability for the Minister to look at certain skills, but under new section 53(3) it does say that the Minister can appoint three to five suitable persons. I guess the question is: what is “suitable”? Depending on the issue they might be looking at and the application that might be being made, for the Minister at the time “suitable” might be someone who is going to make something happen.

I guess my question and our question to the Minister, if he is willing to answer it, is: why have you gone down this track? It is a departure from the practice that I believe is in place at the moment, where the appointment process is free of any ministerial influence. I do note that there is an attempt to be able to give some other discretion to the EPA to be able to—“may”—have some influence on the make-up of the board of inquiry, but it seems, in the way that it is drafted at the moment, the Minister has a lot of influence in the make-up of the boards of inquiry as it stands. There may be a valid reason for that, but I think, as I pointed out at the beginning of my contribution, there is a perception risk, and a real risk, if the Minister uses the discretion that is within the legislation as drafted here, that someone could use those appointments for political reasons.

The Minister has responded to questions, and I think it is a fair enough question to ask as to why the Government and the Minister have seen fit to depart from what is the practice now and leave the process open to potential political influence.

💬 Hon Ruth Dyson: Or accusations of it.

Yes, or accusations of it. I think those boards of inquiry need to be as independent as possible. If the Minister in the chair could, potentially, address some of those concerns—if it was the case that the officials advised against making this change, why he went against that advice, and the benefit of having the Minister making those decisions as opposed to the likes of the EPA making those decisions on the appointment—I would welcome hearing the response.

I am happy to respond to the three questions that have been put by members. The first is from Mr Faafoi in respect of the issue of the boards of inquiry. A key theme of this Resource Legislation Amendment Bill is getting consistency of process—whether it be time frames for submissions or whether it be board appointment processes—so that they are common for the agencies that administer them. The Environmental Protection Authority (EPA) has responsibility for the boards of inquiry under the Resource Management Act (RMA). That deals with the big projects—for instance, Transmission Gully and projects in the member’s electorate to the north—and that process has worked very well.

In aligning the exclusive economic zone (EEZ) legislation with the RMA legislation, the appointment of the boards of inquiry is being applied consistently and being done with the Minister. You could argue that both be appointed by the EPA. We feel that these are decisions—and I would make the comparison for the member that, for instance, in Australia, Europe, or the US, Ministers actually have a lot more influence than just appointing the board. We think it gets the right balance between independence but also the Government of the day being able to ensure the skillset is right for the decision making.

It is a very similar answer to Eugenie Sage’s point about the national policy. She raised concerns that the idea had come from industry. Actually, I plead guilty; it was my idea. It was my idea because, under the Resource Management Act, we have national policies. In fact, the member has been one of those who have advocated for greater use of national policies. All that we are doing in the EEZ framework is providing for a similar policy statement so that you get some consistency of framework around the decisions that are being made in the EEZ.

The third question was asked by New Zealand First. That relates to the question of dumping. There is, rightly, in the EEZ legislation a prohibition on dumping, but that does mean you need to be very careful that you define what it is. For instance, if a ship or a platform that is working in the EEZ has something that is not the normal course of events—what we are trying to stop—then we need to be quite clear about that. In my view, the definition of “dumping” that is provided for in this part is quite—

💬 Denis O’Rourke: It’s the exclusions that are the problem.

The member says that the exclusions are the problem. For instance, if someone lays a cable for telecommunications purposes, at the end of the life of that telecommunications cable we do not want to catch that in the definition of being a prohibited activity, and that is why we believe the definition that is provided there is practicable and workable.

I am happy to take a call on Part 5 of this bill. I just want to turn my comments to new section 37, inserted by clause 188, and I particularly raise the issue in new section 37A about whether it is desirable to prepare exclusive economic zone (EEZ) policy statements. The statement here says that “the Minister may have regard to—”, and we list a number of things that he should have regard to: “(a) the actual or potential effects of the use, development, or protection of natural resources: (b) New Zealand’s obligations under any international conventions… (c) the matters in subpart 2 of Part 1: (d) any other relevant matter.”

Then we go on to new section 37B. I want to note this because I want to ask the Minister a question in terms of his consistency of terminology. New section 37B states: “Before issuing an EEZ policy statement, the Minister must—(a) notify the public, iwi authorities, regional councils, and persons …”. I guess the question I want to raise, as was provided by submitters, is: was the guarantee of the Treaty rights to iwi, as guaranteed under the Māori Fisheries Settlement Act and how settled iwi, in terms of fisheries—just to give a bit of context to the Committee, with a lot of fishery-settled iwi you have both your inshore and your outshore zones that you can fish.

I suspect that both Ngāi Tahu and Waikato see the value in EEZ policy statements as an essential element of planning, but it raises the question of how, under this particular part of the bill, Minister Smith can guarantee that rights as conferred on iwi are protected, particularly if the Minister’s own statement says that all he has to do is notify iwi. That then raises my earlier point around consistency of terms, because in this other section of the bill, where we talk about the Mana Whakahono a Rohe, that particular clause’s amendment talks about iwi being able to participate at the table. Yet when it comes to the EEZ policy statements, it appears in the Minister’s own bill that all we need to do is notify iwi. Maybe he can clarify whether I am misreading that iwi have a much higher role to aid and abet the Minister to make sure that there are not any further breaches, as raised in his own departmental report, to ensure that historic claims are not further breached under this clause. So that was my first question to the Minister.

I also wanted to note that of the nine submitters under this particular section in Part 5, including environmental NGOs and Te Rūnanga o Ngāi Tahu—again, concerns were raised about the discretionary powers of the Minister to establish a process to develop these policy statements. I guess they were raising their concerns in terms of ensuring that iwi authorities’ views, particularly, were catered for in the process that the Minister is obviously going to adopt. So the question I again will put to the Minister is what guarantees—when I look at the clauses in this particular section we are talking about notification, but in other parts of the bill in terms of the Mana Whakahono a Rohe there is a much more active engagement at the planning stage with iwi. It does not seem to be the same in this particular section, unless I am missing it somewhere in this particular part. I really would want some guarantees from the Minister that iwi rights and interests in terms of their fishing rights will not be impacted adversely through this part of the bill. Kia ora, Minister.

I just want to go straight to a clause in Part 5, and that is clause 217. It may be one of those finicky ones in the legislation. It goes to new subpart 4, “Decommissioning plans”, and the submission of decommissioning plans for, I guess, oil rigs, petroleum—I will read it out. “The owner or operator of an offshore installation used in connection with petroleum production, or a structure, submarine pipeline, or submarine cable associated with such an installation”—and then the word “may” pops up. I am wondering whether that is meant to mean “must”, because “may” is optional, and “must” is not. I am wondering whether that is just a small thing within the piece of legislation—

💬 Hon Dr Nick Smith: What section number?

It is clause 217, new section 100A, for the Minister. It says the owner or operator “may submit a decommissioning plan to the Environmental Protection Authority for acceptance.”, and then it goes, in the next line, “The decommissioning plan must—”. So it sets out in pretty clear terms what the plan must have, but it says anyone who owns or operates an offshore installation “may” submit a plan for the decommissioning. I know that the decommissioning is mentioned earlier on in the section, but it just kind of sticks out a little bit that you are asking someone to do something and saying “may”, and whether that might mean “must”.

💬 Hon Dr Nick Smith: No.

If it is not, if it is “may”, then is it optional? If it is not optional and it is meant to be that you have got to do it, then I would suggest that that is changed to “must”. I am just wondering whether the officials might be able to answer that, or the Minister, because you are very prescriptive about what “must” be done in the decommissioning plan. It says you have got to—there are amendments to decommissioning plans, requirements for public consultation for a decommissioning plan, but if it is optional to do that, you do not need to do that. I think I have made my point, so if it is meant to be done, I will suggest that change to a “must”.

I want to talk a little more on new subpart 4 of new Part 3A, but not on the “must” or “may” point that has already been mentioned—except to say, in passing, that if members look at the previous new section 100A, which was struck out at the Local Government and Environment Committee and replaced by the new section that the member Kris Faafoi has just been referring to, it does say “owner must” submit a decommissioning plan, actually. That was struck out. I do not know whether that was a conscious and deliberate decision of the select committee, but it actually said, in that previous section, as well, that “The EPA may, by written notice, require the owner of an offshore installation to prepare a decommissioning plan.” I presume that that is when the Environmental Protection Authority (EPA) has made the decision that this operation should no longer carry on. But, either way, what we have as a revision has quite a different onus of responsibility.

As I said, that is not the point that I wanted to make in my contribution, though. Whether by “may” or “must”, there are a number of requirements that the Environmental Protection Authority is putting on to owners or operators of the offshore installation that is being proposed for decommissioning. So they have to identify the structures, fully describe how they are going to be decommissioned, and identify changes from the accepted decommissioning plan if they are doing a new one. They have to include other information required by the regulations. There is quite a lot of responsibility on the owner or operator to do all of these things, and my question to Minister Smith is pretty simple: what if they do not? I cannot find it anywhere in Part 5 or in any other part. I have looked right through to the schedules, and I am pretty sure that I have not missed it in any of the parts that we have been debating up till now, but there does not seem to be any comeback.

It seems to me that with such tiered layers of responsibility, all these things that the owner or operator has to do, there is not a tuppence ha’penny fine to them if they do not do it. Can they just say “Here is our decommissioning plan.”, and the EPA checks it and accepts it—“That is now your decommissioning plan.”—and then takes not a blind bit of notice of it? That seems illogical. I cannot imagine that that would be the case. I hope I have been unable to find the relevant section, rather than it having been omitted, but I think now is the opportunity to make sure that if we do have what are really important environmental protections in the decommissioning of an operation such as this, that if things go wrong—we know about things going wrong with oil spills and nobody knowing who is going to pay for it, so let us make sure that with this sort of decommissioning there is really clear responsibility in the legislation for who carries the can if things go wrong. If the decommissioning plan has been accepted and then not followed, who is monitoring it? Who is responsible for saying to the owner or operator: “That is not what you said in the plan, and the consequences of breaching the plan are x, y, and z.”? I would really appreciate it if the Minister could just take the opportunity to answer that question.

I have to say that we have heard a lot of opposition to parts of this bill, but I do want to commend the select committee and the Minister for the requirement for public consultation in new section 100D. A lot of the provisions in this legislation, as we have seen in resource management changes since 2009, have watered down the councils’ responsibility—territorial local authorities’ responsibility—to publicly notify consent applications. They have reduced the opportunity for members of the public to make a submission or to appeal through the normal Resource Management Act processes, and I have been exercising some caution against a number of provisions in this bill because of that very fact. It just carries on the trend of reducing public involvement. But here in new section 100D it is not just that this would be a good thing to do; it is actually a requirement for public consultation. This is a big deal. It could have really negative impacts, and I think that having the public involved and having their say is a really important thing. So if we can get the responsibility for monitoring and the liability if the decommissioning plan is not implemented clear, I would be really happy. Thank you.

I did pose a question to the Minister, Nick Smith, a relatively simple one, earlier during the debate. I guess without having to go over the details of that—

The CHAIRPERSON (Hon Chester Borrows): That would be repetitive.

That would be repetitive. But I think the difference between “must” and “may” and the obligation on someone who has operated an oil rig at sea—there is quite a big difference between “must” and “may” and responsibilities therefore. My colleague Ruth Dyson has outlined her concerns around what may happen as a result of a penalty if they do not meet obligations in a decommissioning plan that they may or may not have to adhere to.

We did also note that in an earlier draft of the legislation it was “must”. And if the Government has changed its mind for some reason to allow the owners and the operators of those plants that are being decommissioned to move to less of an obligation, then I think that is a fair enough question to ask and get a response from the Minister, especially when people from coastal communities will be very concerned if this kind of activity is happening off the coast of what they call home.

If there is an onus on those companies, or those operators, to put forward a plan to say that “If things were to go wrong, here is the plan, and this is how we’re going to decommission a plant in order for it to be done environmentally safely—to protect the coastline.”, then that is great. But if that is an option to them and that is a decision that this Government has taken and has done it in a motivated way, then I think that the Government should answer to that and answer to the community and to New Zealanders in terms of what the motivation is for the change of position. My understanding is that from the first draft there was an obligation that operators did have to do this. They did have to tell and publicly consult about how they were going to take and decommission their plant. As it reads now, and with a small change in words, that is now optional for them and there is absolutely no onus on them. It is optional to those operators as to whether they are going to do that.

If that is a motivated change of position from the Government, I think that is a fair enough question to ask and is worthy of a response from the Government. If it is not going to get a response from the Government, then I think it will have to answer to those communities as to why it has made this change of position and why those operators who are decommissioning a plant, and I am assuming it is a risky business and has the potential to go wrong—why they are taking this new position. I would ask the Minister, if this is a motivated change of position, to respond to why this is.

I am happy to give the member a quick explanation. What you need to recognise is that we have got a difference between offshore platforms that operated prior to the exclusive economic zone (EEZ) legislation being in place. Our Government is the first Government to actually provide a regulatory framework for those activities and the environmental impacts in the exclusive economic zone.

So the reason for the “may” is that if there is a new facility that has been installed, then it is required by law to include a decommissioning plan when it is consented. So the reason for the “may” is that if I have got a platform that has been installed as a part of the EEZ regime, there is not a need for them to prepare a decommissioning plan, because that was part of the application in getting set up.

And then the question—this is important, actually, and this is why I brought the bill before the House—is that there are jurisdictions in the world that have been caught with hundreds of millions of dollars of liabilities at the end of life, and a company has been able to exploit the oil and gas and then at the end of it leave an abandoned platform.

What I am able to reassure the member is that with the regulation-making power that is provided in this section, there is the power for us to be able to require those platforms that do not have decommissioning plans to require them, to meet those requirements, and that is why the member should be satisfied that the provision is appropriate.

Just to continue along that line then—I understand the point that the Minister for the Environment is making as to some companies that may already have obligations because they may fall under different regulations. My question is whether the law should be more specific, then, about those that are not in that category. My understanding is that companies that may enter into this kind of practice would quite happily go to court and answer the difference between “must” and “may” and could quite easily—if we are going to quibble over two words—put up quite a fight over whether it is actually obligated to submit a decommissioning plan if it thinks it can argue in a court of law that it need not. And my challenge is to ask whether we need to be more specific about those that may fall into that category, to, therefore, not leave the possibility open that someone may take advantage of the word “may” instead of “must”.

I am speaking again to Part 5 and the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act and the changes to that. The Green Party, like others, shares concerns about the provisions in this, particularly in new section 53 about the Minister appointing boards of inquiry for publicly notified section 20 activities.

While the Minister has explained that there is a desire to make this similar to the Resource Management Act, there is a huge possibility of there being quite a politicisation of the process here, with the Minister both appointing the board of inquiry, setting the terms of reference—though the select committee did change this slightly to require that the terms of reference be only in relation to administrative matters, rather than generally. But there is still a problem there because if the terms of reference are to relate to administrative matters, potentially they can limit and constrain the budget for the board of inquiry, which would then limit its ability to truly inquire into the environmental effects and ways of avoiding, remedying, and mitigating those.

Because there is no ability to appeal the import of inquiry decisions to the Environment Court, there is not a sufficient check and balance. Again, we come back to what the rationale is for these changes to the Act. The Minister explained in relation to policy statements for exclusive economic zone (EEZ) that it was his idea, but I would just like to remind him of what the Ministry for the Environment said in the regulatory impact statement. It said that one of the problems that new section 37A, in relation to these policy statements, was drafted to address: “The mining industry and allied business interest groups have also expressed concern that there is not national direction on a number of matters relevant to the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act, in particular, there are concerns that the intent of the requirement to favour caution as currently drafted is not sufficiently clear and is leading decision-makers, applicants and submitters to focus inappropriately on inadequacies in information rather than on the scale and significance of the effects of the activity.” And, of course, it was that precautionary principle in section 61(2) that led to those two seabed mining applications being declined. So there is concern around the politicisation of boards of inquiry by those being appointed by the Minister.

There is also concern that this part of the bill replaces sections 35 to 58 of the principal EEZ Act with a range of new sections. One of those new sections is new section 46, in clause 188, about non-notified activities. I ask the Minister whether he could expand on what sorts of activities are going to not be notified, because in the principal Act, in section 45, there is a mandatory requirement—because it uses the word “must”—that when the Environmental Protection Authority is satisfied that an application for a marine consent is complete it must give public notice of the application. That is because of the important principle that our oceans are a common property resource. They are there for all of us and they are being managed on behalf of all of us. It is not like private land. So that is why in the principal Act there is this emphasis on public notification so that the public can get involved in these critical decisions, particularly when they are for things like seabed mining. As we saw with Trans-Tasman Resources and Chatham Rock Phosphate there was huge public interest and involvement in those activities. Yet this new section 46 is talking about non-notified activities. Does the Minister intend, through one of his policy statements or through regulation, to provide much more guidance on what constitutes a non-notified activity, and, again where the public is being shut out of the ability to actually have a say on what happens in our oceans?

It is a pleasure to rise and take a call on Part 5 of the bill. In doing so, I particularly want to examine a couple of points that are in new sections 37A and 37B, in clause 188, and also, a bit later on, to make some further points drawing off comments by colleagues Kris Faafoi and Eugenie Sage on boards of inquiry in new section 53, by reference to a number of submissions that have come in in this area.

It is worth noting that looking through the submissions—and I am thinking particularly about submissions that were received from the Resource Management Law Association, which I will comment on later, Te Rūnanga o Ngāi Tahu, and a number of environmental NGOs—the consistent theme that has come through in this part matches that which has come through in other parts of the bill. And that is, a real concern that, while people support there being greater direction in terms of the setting of environmental policy, that needs to be very carefully considered alongside the centralisation of power in a Minister. New Zealand has got a history in this area, and people, I think, are rightly alert to the problems that can arise from that.

Let us start with new sections 37A and 37B, which, in my view and in the view of a number of the submitters, give pretty sweeping powers to the Minister in the establishment of an exclusive economic zone (EEZ) policy statement. Let us just look at a couple of the sections. The bit that really concerns me, if we turn to new section 37B(b), which says “establish a process that the Minister considers gives the public, iwi authorities, regional councils, and persons whose existing interests are likely to be affected adequate time and opportunity to comment on the subject matter of the proposed statement.”—so, in other words, we are giving a lot of power to the Minister to determine the consultation process.

One thing that I thought was interesting in the departmental notes around this section is it notes that the provisions that we are putting in here in respect of consultation differ markedly from the provisions that we see across the rest of the Resource Management Act infrastructure. Of course, one of the things that we have heard from the Minister and the Government, time and time again from the chair, is that one of the goals of this whole exercise is to align legislation with what is in the Resource Management Act here. But in the departmental report it is noted that we are doing something that is quite different here.

One of the submissions I was particularly interested in came from the Resource Management Law Association, and I think it is important for the Committee to take account of that submission. These are the people who will have to deal with this legislation after it is passed. These are the lawyers, the judges, the resource management professionals, the planners, the consultants who will administer this legislation, and they have deep concerns about what is being proposed in new sections 37A and 37B. If I can just refer to the association’s submission, it notes a particular concern that there is no requirement for a hearing to be held on any of the comments made to the Minister on a proposed EEZ policy statement nor any rights of appeal against the Minister’s ultimate decision.

It could be that this House believes that the current Minister is a man of cool disposition, and calm and clearheaded—that could be the view of this House—when we hand these powers over to him. That could be the view of this House. What if in the future we did not have such a Minister, and we had someone who was given to making impulsive decisions, to not consulting, and that kind of thing? If we are handing these powers over with very little to tie that Minister down to good public consultation, then I think that gives real and justified concerns to the community who will actually have to deal with this bill, and that is what is pointed out by the Resource Management Law Association.

Another interesting point that it touches on, and this builds off a point made by colleague Kris Faafoi—if we turn to new section 53, in clause 188, in respect of boards of inquiry—the bill says that the Minister may appoint a current, former, or retired Environment Court judge or retired High Court judge to chair the board of inquiry. The Resource Management Law Association makes, I think, quite a valid point—and it would be good to hear from the Minister on this—that, given the seriousness of what we are looking at here, the setting up of plans that will govern every consent that is heard, there would actually be significant value in having someone with real judicial experience chairing that board of inquiry, particularly given the cross-examination requirements that we will want to see borne out in that process. That was raised during the submissions. The select committee has not chosen to do that. It is still a “may” in terms of appointing a judge, and I think it would be good to hear about that from the Minister too. Thank you.

The question was put that the amendments set out on Supplementary Order Paper 282 in the name of the Hon Dr Nick Smith to Part 5 be agreed to.