Mackey Moana: Exclusive Economic Zone and Continental Shelf (Environmental Effects) Bill — Third Reading 
Text is incorporated into the Bound Volume 
Mackey Moana: Exclusive Economic Zone and Continental Shelf (Environmental Effects) Bill — Third Reading 
[Sitting date: 28 August 2012. Volume:683;Page:4781. Text is incorporated into the Bound Volume.] 
MOANA MACKEY (Labour) 
: 
 The only thing that the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Bill will unlock is hordes of lawyers making a lot of money as court cases are fought out in domestic courts and in international tribunals. That is what this piece of legislation unlocks. It is a shame because Labour the Greens and New Zealand First made an approach to the Minister for the Environment to try to find a compromise on what is undoubtedly a very very important piece of legislation. It did not need to be a political football but unfortunately after what we thought was a very good meeting with the Minister she was not willing to address the concerns that Labour members had about this piece of legislation apart from increasing the penalties—and we did welcome that change and we voted for it at the Committee stage. But apart from that the significant concerns that we had going into the Local Government and Environment Committee were not addressed they were not addressed in the Committee of the whole House and we will be voting against this bill at the third reading. 
Primary to our concerns is whether or not this piece of legislation is in line with our international obligations under the United Nations Convention on the Law of the Sea. The Minister keeps saying: “Yes it is. Yes it is. Yes it is.” Well she can say it until she is blue in the face but it is not going to make a blind bit of difference until it is tested in a court. What Labour has been saying and what it has been so disappointed about is that there was a very simple solution to this. If we actually believe that this piece of legislation should be consistent with our international conventions and presumably we all do and if we all agree that it is good to have no question about that and to put it outside of any question that it is—and I would think that that would be what we would want—then why would we not use the language that is in the convention to show that this piece of legislation is consistent? That language is around preserving and protecting the marine environment. The National members will get up over and over again and say that it is consistent it is consistent it is consistent. But no National member has said why they did not just put it completely out of doubt by using the language in the United Nations Convention on the Law of the Sea around preserving and protecting the marine environment. Then we would not have to even have that debate. 
This is a contentious piece of legislation. This legislation is going to be the legislation that regulates a very contentious activity and that is deep-sea oil and gas drilling. There is a high level of public interest in this piece of legislation. There is a high level of concern about that activity. Minister Heatley does not seem to think so. That does not surprise me. He is very out of touch in this portfolio area. 
Hon Annette King 
: Most portfolios. 
MOANA MACKEY 
: In most portfolio areas as the honourable member Annette King says. There is a high level of interest in this because people are concerned and it appears that the Gulf of Mexico disaster completely passed the National Party members by. They did not think at all that that changed the public’s perception of this particular activity. They did not think at all that that and the  
Rena 
 disaster changed the way New Zealanders think about the protection of our marine environment. It is unbelievable that they would not want to do as much as they possibly can to allay the concerns of the public— 
Hon Phil Heatley 
: I just smiled. 
MOANA MACKEY 
: Apart from just smiling Mr Heatley; it takes a little bit more than that if we get a massive oil spill. It takes a little bit more than that. Even your laughter will not stop that. As magical as it is your laughter cannot stop an oil spill in the deep sea. I am pleased that the Minister seems to think that this issue is a joke. It is actually not. 
What we want to see is robust legislation in our exclusive economic zone. We have the Resource Management Act within our territorial waters. So what we have now with this piece of legislation are two completely different regimes operating side by side regulating exactly the same activity. This line in the sea is jurisdictional only. It is only because beyond 12 miles it is not our sovereign territory and within 12 miles it is our territorial waters. It is nothing to do with the environment nothing to do with resource allocation nothing to do with science and nothing to do with anything to do with the marine environment other than being jurisdictional. So why would you have two such different regimes—very different regimes—operating side by side regulating exactly the same activity? It does not make any sense at all unless you deliberately want the two regimes to be different so that the one in the exclusive economic zone can be more permissive than the Resource Management Act is. One energy company that came to the select committee actually quite openly told us that that is why it liked it because it was going to be far more permissive than the Resource Management Act and it was going to allow activity to go ahead that perhaps would not have had we had a regime in place that was as robust and as stringent as the Resource Management Act. We had the Taranaki Regional Council which is used to dealing with the Resource Management Act in terms of oil and gas exploration tell us that it would like to have seen more consistency with the Resource Management Act because it is used to using it it knows where the goalposts are and it knows what the thresholds are. We do not know all these new legal terms that the Government has fabricated for the legislation and we have no idea what ultimately they are going to mean in practice. 
Instead of using and calling on 20 years of Resource Management Act case law and using legal terms that are well defined where people know where the goalposts are we have invented new terms like “favour caution”. No one knows what “favour caution” means. We all know what being cautious means but this is a piece of legislation and ultimately there is going to be a legal definition and a legal test of what “favour caution” means. It should not be a court that just decides this out of the blue and then we go backwards and forwards when we already have case law under the Resource Management Act where people know where the goalposts are. Why are we going through that entire process again unless you do not want those tests which are well understood to be applied in the exclusive economic zone? That is the reason for it. The National Government will not say that. The only plan it has for the economy apart from selling our assets is to ramp up oil and gas exploration in deep-sea water in New Zealand. 
Hon Dr Nick Smith 
: That’s not true and the member knows it. 
MOANA MACKEY 
: It is true. So because it has got no other plan it is desperate to get this stuff flying ahead and it wants to put as few barriers as possible in front of the companies that are going to go ahead and do this. But it is not good enough. This is a real missed opportunity—a real missed opportunity—because it is in no one’s best interests for this piece of legislation to become a political football. It is in no one’s best interests to have the National Government passing this piece of legislation and the Labour Party saying that when it comes to Government it is going to change it and swing in the other direction instead of asking as to what we can lock down now and how we can find a compromise that everyone can live with where we feel confident that the protections for the environment are there. 
The United Nations Convention on the Law of the Sea is very very clear. We have a right to exploit the mineral resources in our exclusive economic zone but that comes with an obligation to preserve and protect the marine environment. There is no qualification on that. As the Parliamentary Commissioner for the Environment said in her submission to the committee the exploration of those mineral resources is optional but the duty to protect is not. We could have been absolutely clear absolutely categorical in this piece of legislation that that was what this Parliament intended—that we have a right but that comes with an obligation an absolute bottom line. And we have not done that in this piece of legislation. 
We are also very concerned about the restrictions on the public—for example not being able to appeal to the Environment Court being able to go only to the High Court and then only on points of law. When you come to issues as complex as these where communities—and they are up against some very tight time frames potentially in this legislation—do not have the resources that the industry has to pull together evidence and to gather their arguments they do not have the money to do that they do not necessarily have access to the expertise to do that and as I said they could be doing it up against potentially very tight time frames you need to have an ability for them to appeal not just on points of law but on points of substance. That is a very important part of the process and it sends a very clear message in the Resource Management Act that it is good to try to resolve as many of these things as possible before you get into that formal process. It provides an incentive for people to actually engage with key stakeholders when they know that if they have not got their facts straight if they have not given some parties enough time to respond to that that they could be taken to the Environment Court. 
The Environment Court has a wealth of knowledge in this area—a wealth of expertise. Instead we are sending it to the High Court and only on points of law which is obviously deliberately meant to shut down a community’s ability to respond to what they see happening in their exclusive economic zone and their marine environment that they believe to be detrimental. We believe that that is an important part of natural justice and it should not have been removed in this legislation. We note that the Government has already notified its intention to do a similar thing in the Resource Management Act on mining projects. Again we say that sometimes these things can be a very false economy. When you start to take away a community’s ability to actually have access to natural justice on issues that could detrimentally affect their environment then that is a retrograde step and we would not support that. 
As I said at the beginning it is a shame that we are here on the third reading of this bill when we could have done so much more. I do want to thank the officials who worked on the bill. They worked incredibly hard. It is a contentious piece of legislation; it was very technical. They were wonderful officials to work with and we do thank them for everything they did and for all the hoops that we made them jump through. But at the end of the day this bill falls far short and it did not have to be that way. Our marine environment is far too precious to be gambled away on a piece of legislation that simply does not provide the level of environmental protection that our communities would expect this Parliament to be passing. When you see what happened with the  
Rena 
 disaster with that amount of oil washing up on the beaches of the Bay of Plenty that should have been a warning note to the Government that it needed to do better in this space.