Mackey Moana: Exclusive Economic Zone and Continental Shelf (Environmental Effects) Bill — In Committee 
Text is incorporated into the Bound Volume 
Mackey Moana: Exclusive Economic Zone and Continental Shelf (Environmental Effects) Bill — In Committee 
[Sitting date: 22 August 2012. Volume:683;Page:4659. Text is incorporated into the Bound Volume.] 
MOANA MACKEY (Labour) 
: 
 Part 4 of the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Bill is very important because it contains the transitional provisions for the legislation which is how we deal with those activities that are currently under way and now need to be brought into this scheme and those who have been granted consents under the Crown Minerals Act but have not yet started that activity. It also deals with future transitional provisions for the changes in regulations that might occur under future Governments and under the next Labour Government obviously there will be changes. 
I just want to start by saying these are significant changes from what we saw at the Local Government and Environment Committee—significant. And it is actually very very difficult to fully understand the impact of these changes when we are not able to sit down with officials and talk through what the various changes mean. It is again very disappointing that this was not dealt with at the select committee. The advantage of delaying this bill by just a couple of weeks bearing in mind that there was quite a generous period between it leaving the select committee and coming back to the House for it second reading would have been that the regulations would be available so that we could take a more holistic view of the bill—the legislation alongside the regulations—and deal with these transitional provisions if there were significant problems with them which there must have been because we are making quite drastic changes and quite large changes compared with what the select committee finally decided upon. In the reading of these changes it appears that in tightening up the purpose clause—and I reiterate that we do no think that goes far enough in meeting our international obligations—there has been a lot of loosening up in other areas to avoid a backlash from industry. That would be my reading of what has happened in the transitional provisions here. 
When I say it is really difficult to fully comprehend whether some of the changes are minor or significant I am talking about changes like that in clause 149A. If we look at subclause (4) of that it used to say in the existing bill that came back from the select committee that the impact assessment had to comply with clause 40. When we look at clause 40 we see that it describes what an impact assessment must contain. It goes through everything that assessment has to do and what it has to contain. It goes into great detail. Well that requirement to comply has just been removed from the legislation completely and replaced with something else about incomplete applications. I am not sure why clause 149A(4) relating to clause 40 was removed given that these are people who do not have to go through the full process but instead have to provide an impact assessment and we are now saying that the clause that describes what has to be in an impact assessment no longer applies. That may be something that is minor. It does not seem like something that is minor. It seems like something fairly significant. And it is the same when you look at new clause 149A(7) which states that subclause (5) overrides clause 15. When you go back and look at clause 15 you see that clause 15 is actually one of the most important parts of the bill. It is in Part 1A “Duties and restrictions” and it is the restrictions on activities in the exclusive economic zone and in or on the continental shelf. It goes through in some detail what must not happen in the exclusive economic zone about the environmental damage that could occur. It is a very important clause. Subclause (7) of this new clause might just be something that is technical. It might be that these are transitional provisions so that part no longer applies but this was not raised with us at the select committee and whenever I see something overriding a significant part of the legislation I would like to know why. The other disturbing thing is that the Minister’s explanatory note is completely silent on this. It does not explain why this is happening. So I would like the Minister in the chair the Minister for Courts—who was actually a member of the select committee for some of this—to take a call on this. 
Grant Robertson 
: The former Minister could take a call. 
MOANA MACKEY 
: Yes the former Minister could take a call and explain if he knows the answer to that because these are wholesale changes to what we decided at the select committee. 
 We are now no longer saying that when you are providing an impact assessment you have to have reference to the clause that says what has to be in that impact assessment and we are overriding a very serious clause about the duties and responsibilities and what cannot happen under the exclusive economic zone. I think it is only fair to ask what the practical impact of that is going to be why we are doing it and why this was not raised as an issue at the select committee. 
We had the clauses for existing activities and again as I said these changes have been made and we would like to know the answer to that. But now we have a whole new set of transitional provisions for planned activities. We went through the clauses in the select committee around existing activities and these are things that are already happening out there so that is fine. You have got to transition them in. You cannot just say well on the day that this legislation passes you have to stop doing what you are doing until you get a marine consent. I absolutely understand that. We have concerns around how far that might extend where people have not really already started or where people might rush to hurry up and get in. We were assured that no this was just existing activities. This is where people are already doing it and it would be unreasonable to expect them to stop just because we pass a law given that everything was consented and everything was approved under the previous legislative situation. 
Then the Minister’s Supplementary Order Paper came out and suddenly we are talking about planned activities not just existing activities. The definition of planned activities means “an activity involved with the exploration prospecting or mining for petroleum”—and the same occurs with minerals—“if—(a) before the Act comes into force the exploration prospecting or mining for petroleum with which the activity is involved is authorised by a permit that was granted under … the Crown Minerals Act 1991 … and (b) the activity had not commenced before the Act comes into force.” We are no longer dealing with existing activities. We are now dealing with other things. It is a question that I asked of the Minister in Part 1A and she said she would come back to it in Part 4 because she felt that is where the discussion on transitional provisions should occur. What I want to know is if we take the example—because when we are talking about transition activities the problem is we are actually talking about specific cases the public knows about now and is concerned about now. It is not kind of in the theoretical in the future that we might be doing some stuff out here. Actually there are cases and there are permits that have been granted right now that are sitting there. Off the East Coast the Petrobras permit which has been granted is a well-known example. 
Petrobras has carried out only seismic surveying so far. It has said it wants to drill some exploratory wells. We are talking 3000 to 4000 metres deep and that obviously raises significant concerns in the community that I live in about the feasibility of doing that. What happens if something goes wrong? We notice that Anadarko Petroleum Corporation in far less deep waters has recently pulled back because of the inability to get a rig. The rigs for deep water are not that common. They are not like the smaller rigs. But it does beg the question: if it is so hard to get a rig to do the initial drilling how easy is it going to be to get a second rig to drill a relief well which is what you are going to need in waters of that depth because you cannot cap at 3000 to 4000 metres deep? Does this mean that if Petrobras wants to go ahead and drill that well it no longer has to get a marine consent because it was a planned activity? Does it mean that Petrobras can now go ahead with the exploration and mining because it was a planned activity and it has already been granted the permit? I do not know the answer to that question. I am hoping the answer to that question is no. As soon as Petrobras decides it wants to start drilling it is going to have to go through the marine consent process because that activity has not started yet. In fact it is a long way off I suspect particularly given some of the reported financial problems the company is having. But my reading of this is that even if it was not what it was intended it could very easily be interpreted—and again we do not want more legal battles over defining it—as saying that because it has been granted a permit under the Crown Minerals Act that makes it a planned activity. It means that it could go ahead and continue not just a seismic survey which is fine but also exploratory drilling and potentially mining in the Raukumara Basin 3000 to 4000 metres deep without my community getting to have a say and without going through the full marine consent process. If that is the case then that is deeply deeply worrying especially as the Government is issuing a large number of these permits right now. 
Suddenly that issuing of the permit process that is going on now carries a much greater significance if by getting one of those before this legislation passes into law that gives you rights out into perpetuity to be able to go through exploration exploratory drilling and mining without going through any process that examines the environmental impact of those activities. I sincerely hope that the answer is no it cannot in which case the question will be why we are even having to recognise planned activities. If it has not gone ahead why are the existing activities provisions not strong enough to deal with that? If there is some little difficulty that needs to be fixed then why are we not just patching up or strengthening beefing up the existing activities provisions instead of creating this whole new class? I hate to be cynical but I really feel that this was the trade-off with industry that when they saw the word “balance” going which was something they really wanted in the purpose clause they said: “Well what are we going to get in return?”. I suspect that this is what they got in return.