Exclusive Economic Zone and Continental Shelf (Environmental Effects) Bill — In Committee 
Text is incorporated into the Bound Volume 
Exclusive Economic Zone and Continental Shelf (Environmental Effects) Bill — In Committee 
[Sitting date: 21 August 2012. Volume:683;Page:4592. Text is incorporated into the Bound Volume.] 
Exclusive Economic Zone and Continental Shelf (Environmental Effects) Bill 
In Committee 
Debate resumed from 16 August. 
Part 1A Duties and restrictions ( 
continued 
)  
GRANT ROBERTSON (Deputy Leader—Labour) 
: 
 We are returning to Part 1A of the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Bill. When we left this during our last exciting instalment we were looking particularly on this side of the Chamber at some elements of the Minister for the Environment’s substantial Supplementary Order Paper 100. In particular some questions had been asked of the Minister around both the impact of new clause 17A and also the meaning of the replaced clause 17(3). 
On the latter the Minister I think the last time we were debating this was acknowledging that there was no intent to create a situation of a continuous loop of an application where an application if it were incomplete would be returned and the person would then be able to put in a new application and that would then start the process again. The concern we had is that we did not think clause 42 of the bill which is covered by new clause 17(3) was sufficiently clear to allow people to be able to understand the way in which the process would work for incomplete applications. So I think the Minister at that time was going to go and get some advice on whether or not a further Supplementary Order Paper was required to give that clarity about what happens with an incomplete application. 
Clause 42 of the bill talks about the Environmental Protection Authority returning an incomplete application if it decides that it “does not include an impact assessment that complies with section 40” and says that “The EPA must return an incomplete application and give the applicant a written explanation for its finding that the application is incomplete within 10 working days after the application is received by the EPA.” Under new clause 17(3) that incomplete application then becomes a new application if it is resubmitted. So we were seeking some clarity from the Minister around whether or not there need to be further changes made to ensure that there is an understanding that this is not a process that could simply go on and on ad infinitum with incomplete applications being returned and new applications being put in. We would appreciate some clarity from the Minister on new clause 17(3). 
The other matter is around new clause 17A which essentially says that planned petroleum activities can commence and continue under this law. My colleague Moana Mackey raised a concern about the Petrobras application off the East Coast of New Zealand where it has had approval for seismic activity. Would this clause mean that it could move to drilling without having to go through under the new rules? We have not yet had a response from the Minister to indicate whether or not that is in fact the impact of new clause 17A. Obviously it is a concern for us. We are not talking just about existing activities here; this is about planned activities. We on this side of the Chamber want to ensure that we understand what this clause means. It would provide to us significant concern if indeed a planned activity meant in the case of Petrobras that just because it got the approval around seismic work it has a continuing approval for drilling rather than it having to go back to the new processes that are established under this bill. 
They are the two concerns that we have got around Part 1A. I hope the Minister is going to be able to respond to us and to indicate whether or not she is looking at some amendment to clause 17(3) and to clarify the meaning of clause 17A because a planned activity is quite a different thing from an existing activity. Certainly people on the East Coast of New Zealand have had significant concerns about what Petrobras has been doing. They would be very alarmed to learn that just because it had approval for seismic surveys and seismic testing it would then be able under this clause to go on and move to drilling. That kind of loophole is something that we on this side of the Chamber are very concerned to make sure we are not putting in. 
We expressed our concern at having this Supplementary Order Paper put forward at short notice. Hopefully the Minister has had time in the interim period to answer some of our questions. I look forward to the Minister taking a call and answering those two questions. 
Hon AMY ADAMS (Minister for the Environment) 
: 
 I am happy to take a call on Part 1A. It is quite a short part of the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Bill and so I am more than happy to address Opposition members’ genuine queries in the expectation that we should be able to move through this part with some ease. The issue that Mr Robertson has raised around clause 17 and my proposed new clause 17(3) we did touch on last time the bill was in Committee and I gave Mr Robertson at that stage the assurance that there was not a cyclical process created. It seems that he just wants confirmation of that with the benefit of some reflection and I can assure Opposition members that I went away and double-checked that point. I went back to the Parliamentary Counsel Office and checked with the drafting and it has come back and absolutely and categorically made it very clear that it is as I indicated to the member the last time and there is no possibility of a continual loop which he was concerned about. So that addresses the first point. 
The second point I think can be addressed equally quickly and that is the concern that Ms Mackey raised around a particular application—and obviously I do not want to start discussing particular applications. I think the point the member is referring to really relates to Part 4 of the bill which talks about transitional activities right now so I would rather we had that discussion then. The clauses 17 and 17A relate to the situation once this regime is in place and we have a set of regulations. If in the future those regulations are changed and people have started an activity whether it be planned in terms of committing to rigs and drilling programmes and the like with one set of regulations and at some point a future Parliament promulgates new regulations that covers how the transition works between those two. So I do not think it is probably quite the concern members were expecting. 
Moana Mackey 
: It might be the same issue though. 
Hon AMY ADAMS 
: Well it could be but of course that is something the Parliament of the day can take into account when it promulgates those regulations—the point being that people are entitled to proceed on the basis of the law as it stands. They work on that basis and if there is a change we need to have some mechanism for making sure that that is seemly. So that is the intention of this part of the bill. No doubt we will have more discussion on the original transitional provisions as we move into this regime when we get to Part 4. 
The question was put that the amendment set out on Supplementary Order Paper 102 in the name of Gareth Hughes to clause 15 be agreed to. 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 15 
Green Party 14; Mana 1. 
Noes 105 
New Zealand National 59; New Zealand Labour 34; New Zealand First 8; Maori Party 2; ACT New Zealand 1; United Future 1. 
Amendment not agreed to. 
The question was put that the amendments set out on Supplementary Order Paper 100 in the name of the Hon Amy Adams to Part 1A be agreed to. 
A party vote was called for on the question  
That the amendments be agreed to. 
Ayes 71 
New Zealand National 59; New Zealand First 8; Maori Party 2; ACT New Zealand 1; United Future 1. 
Noes 49 
New Zealand Labour 34; Green Party 14; Mana 1. 
Amendments agreed to. 
A party vote was called for on the question  
That Part 1A as amended be agreed to. 
Ayes 71 
New Zealand National 59; New Zealand First 8; Maori Party 2; ACT New Zealand 1; United Future 1. 
Noes 49 
New Zealand Labour 34; Green Party 14; Mana 1. 
Part 1A as amended agreed to. 
Part 2 Requirements and consents 
MOANA MACKEY (Labour) 
: 
 I have a number of amendments in my name on Supplementary Order Paper 103 and also on another Supplementary Order Paper that I do not have the number of at the moment amending Part 2 of the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Bill which is the processes around the requirements and the issuing of marine consents under the legislation. 
The first clause that I have an amendment to in my name is clause 27. This is around the regulations prescribing standards methods or requirements. As I mentioned in my speeches on earlier parts of the bill an awful lot in this piece of legislation is being left to regulation. It was very disappointing. During the select committee process we would have really liked to have the regulations alongside the legislation because it was hard to really know what the impact of the legislation was going to be how effective it was going to be when in fact the guts of it was in regulation that was still being developed by officials. The particularly disappointing thing was that we could have held off on reporting back on this bill but we were told that the regulations were a way off and then basically the minute we reported it back the regulations were suddenly released for public consultation. It was literally that quick. That was disappointing because for a few more weeks we could have sat down and gone through the regulations and given a far more considered report back to the House. But c’est la vie. That is what happens and here we are debating this part of the bill. 
My concern and the reason I put up this amendment to clause 27 is that there really is not a strong decision-making methodology in the bill. There are some things that have to be considered but really the process of applying for a marine consent being issued a marine consent and the appeals around that are actually very very unclear. My fear is that this is going to result in an awful lot of uncertainty. There are some obligations on the Environmental Protection Authority as to what it needs to take into account and there have been some information principles put in but I really do not feel that they are strong enough in order to really guide the authority through the process to allow applicants both those from industry who are applying and those who are submitting on those applications to really know what the process is meant to be so that they can challenge it if they think that it has not been adequate. We had a very good submission on this from Simon Terry of the Sustainability Council who really raised it as a major concern and said it was a similar concern with the Hazardous Substances and New Organisms Act when that went through Parliament as well. The way they plugged that gap was to allow for regulation-making abilities in the legislation. 
When you read clause 27 it is possible that in fact it could fall within the ambit of this piece of legislation to provide for the regulations to provide the decision-making methodology. But it is not clear and in fact the advice that has come back from officials is that no it is not the intention of the legislation to allow for decision-making methodology to be provided in regulation. The officials consider it may actually be ultra vires of the legislation and so I have an amendment in my name to clause 27 to add in decision-making methodology to the list of things that can be done by regulation either by this Government if it decides it wants to actually provide more certainty and provide a clearer process and a more transparent process that guides the Environmental Protection Authority far more strongly than the bill currently does or by a future Government that intends to clarify this. 
There really is nothing in this bill to give guidance to the Environmental Protection Authority on how it is meant to weigh up the various factors. There are an awful lot of things it needs to consider but I think as the Green member Eugenie Sage said in an earlier speech there is no guidance as to what takes precedence over things. There is no priority given to the various things that the Environmental Protection Authority is required to consider. We think this is a very very big gap in the legislation. It is a gap that could be easily fixed. If we are unable to get support from the Government to allow this to proceed then we may look to writing to the Regulations Review Committee to ask it whether it could consider the matter of whether or not this kind of power would fill the gap as indeed it did with the Hazardous Substances and New Organisms Act. The last thing we want and one of our big concerns about this legislation—and we have said this the whole way through—is for it to be a field day for lawyers an absolute field day for lawyers which is perhaps why the law firm for the oil and gas industry was so effusive in its support for this piece of legislation when it came to the Local Government and Environment Committee. And why would it not be? 
I have a number of other amendments and I want to go to the main ones first. If I get time in this speech I will come back to the others. One of our really big concerns is the creation of all these new legal tests in this legislation. It is undefined legal language. We had 20 years of Resource Management Act case law that we could call on to provide us with those legal terms that we could use in this legislation so that everyone knows exactly what that means. This is not about extending the Resource Management Act out into the exclusive economic zone. It is not about saying the Resource Management Act now applies beyond 12 miles. It is just about saying that through 20 years of Resource Management Act case law there are some pretty well-understood terms. Internationally there are some well-understood terms. It would make sense given that these two schemes are going to operate side by side the Resource Management Act and the exclusive economic zone legislation. The line that lies between them is jurisdictional only. It is there only because within 12 miles it is our territorial waters and beyond that it is not our sovereign territory. We are able to exploit the resources there only because we are a signatory to an international convention. So why would you have two regimes regulating exactly the same thing side by side with completely different processes and completely different legal tests? It does not make any sense unless you want the exclusive economic zone regulation to be more permissive—or tougher but in this case it is more permissive. So it is only if you actually want the test to be different that you would not use the same legal tests that exist under the Resource Management Act. 
One of the ones that we have here in clause 33A “Information principles” is “favour caution”. “Favour caution” is not found anywhere else in New Zealand; it is not understood what that means. Industry and environmental advocates are going to fight it out in the courts. That is going to be the only way we actually determine what “favour caution” means. How does that provide any certainty? I have an amendment in my name to replace “favour caution” with “a precautionary approach”. “A precautionary approach” is well understood. People know what it means. They know where the goalposts are. The oil and gas industry in Taranaki has been able to operate under the Resource Management Act and it has not been completely stymied by the legal tests there. The Taranaki Regional Council when it came and submitted at the select committee said it would prefer more consistency with the Resource Management Act because it is used to dealing with it and it understands it. Now it is going to have to come to grips with a whole new set of rules a whole lot of appeals and a whole lot of concerns as people grapple it out and try to fight as to what this “favour caution” means. 
As I said ultimately it will be the courts that decide what “favour caution” means. It may go against the Government’s wishes. It may end up being tougher than the Resource Management Act but I doubt it because all the indications given from the Government so far on this piece of legislation have been that it wants to do more of this so I think the inference could be taken that it was intended to be more permissive on balance rather than tougher. But on this side of the Chamber in the Labour Party we wonder why you would not use well-known legal tests to save people the lawyers’ bills and to save people the uncertainty. The answer is that the only reason you would not is that you do not want the tests to be the same. That is the only reason. 
If you remember this is a jurisdictional line. It is not about resource allocation. It is not about the environment. It is not about science. It is not about any of those things. It is just about where our territorial waters end. That is why the line is drawn there. So why do we have a completely different test? There may be some projects that actually operate across that line so they have to go through both processes—the Resource Management Act on this side and the exclusive economic zone processes on the other side. They are facing completely different legal tests for exactly the same activity. Well that is just nuts. That is just nuts. It is not clear. It is going to create enormous uncertainty. We really hope that the Government takes that on board and goes with language that is well known. 
I also have an amendment on the adaptive management approach which I will probably leave for my next call because I think that will perhaps take too long. 
One of the other areas that I have proposed changes to is around when regulations are going to be changed and who gets to be notified who gets to be told. I have proposed some amendments to make sure that when regional councils iwi and stakeholders are being engaged in this they are being given all the information possible. At the moment the Minister is required to provide basically just a summary of what is about to happen. Well we think they should be given the full text of what is about to happen. They can be given a summary too if that is what the officials want to do but they need to see exactly what is about to happen. As we see with this Supplementary Order Paper the devil really is in the detail. Then there is an out clause for the Minister to not have to go through that process of consultation if the changes are only minor or technical. I have an amendment in my name to add in clause 32(3) “that have no potential to increase an adverse effect on the environment or an adverse effect on persons with an existing interest”. 
NICKY WAGNER (National—Christchurch Central) 
: 
 I am standing to support Part 2 of this bill the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Bill. Part 2 as we have heard covers the making of regulations and the processes around marine consents hearings and decision making. We received a number of submissions on these issues and we did make some minor amendments to the bill. The Minister for the Environment has also made further changes in her Supplementary Order Paper 100. 
The regulation-making powers in this part are modelled on section 43 of the Resource Management Act. The Local Government and Environment Committee believes that it sets out clear limits for the use of regulations. The Regulations Review Committee has reviewed the legislation has ticked it off across its lists of what regulations should be and has signed it off. We are familiar through the Resource Management Act with the three classifications. They are of course permitted activities discretionary activities and prohibited activities—the default in this case being “discretionary” unless permitted by a marine consent or by a specified exemption. Because of the lack of information about the exclusive economic zone and the continental shelf and the nature of the emerging technologies that may be used to look at resources in that area this bill seeks to favour caution and environmental protection. 
There were several submissions concerning consultation requirements around the making of regulations because some people considered that the terms were too narrow. However the consultation requirements on regulations are flexible and they are flexible for a purpose. They are flexible so that the Minister can tailor the consultation to suit the significance of the proposed regulations. For example consultation on the first sets of regulations may be much more robust and more comprehensive than perhaps on some more minor regulatory changes later on. At a minimum the Minister must notify and allow the opportunity for comment from the public iwi authorities and persons with existing interests who are likely to be affected by the regulations. The select committee subsequently made amendments to add the requirement for regional councils to be directly notified because of course regional councils are responsible for the 12-mile zone in their coastal plans. As I said before this bill is predicated on caution because of the size of the exclusive economic zone the unknown qualities of our waters and the new and emerging technologies that may be used to access the resources. 
In making the regulations the Minister must take into account a very comprehensive list of requirements. The Minister must take into account effects on the environment effects on existing interests cumulative effects and effects that may occur in New Zealand—the land of New Zealand—or even in the waters beyond the exclusive economic zone and continental shelf. The Minister must also take into account effects on human health and the importance of protecting biological diversity and the integrity of marine species and ecosystems. Also he or she must be aware of the importance of protecting rare and vulnerable ecosystems and the habitats of threatened species. Of course we must take into account New Zealand’s international obligations and look at the economic benefit to New Zealand of an activity and the efficient use and development of natural resources. The Minister must also consider the nature and effect of other marine management regimes best practice in relation to the industry involved or the activity involved and in relation to whether that activity is permitted or discretionary the desirability of allowing the public to be heard in relation to the activity or type of activity. And finally—a catch-all—the Minister must take into account any other relevant matter. So you can see that it is a very comprehensive list and this is the list that will inform good regulation. 
Part 2 also covers the processes around marine consents. The select committee looked at these consents and added the requirement that the Minister must have regard to public interest when being heard in relation to marine consent applications and for any marine consent hearings we also added the ability to allow the questioning of a party or witness by the leave of the Environmental Protection Authority. Part 2 also provides rules around the timing and notices required for hearings and the Minister’s Supplementary Order Paper tightens that up further by providing a time limit for a hearing to be completed and that is 40 working days. Of course there is a significant amount of work to be done to develop these regulations under this legislation but we believe that Part 2 provides a robust and sensible framework for this work to begin. Thank you. 
GRANT ROBERTSON (Deputy Leader—Labour) 
: 
 Mr Chair— 
The CHAIRPERSON (Eric Roy) 
: Grant Robertson. 
GRANT ROBERTSON 
: Oh thank you very much Mr Chair. 
The CHAIRPERSON (Eric Roy) 
: I thought we were going to have a different outcome then. 
GRANT ROBERTSON 
: Well we are in your hands Mr Chair. 
The CHAIRPERSON (Eric Roy) 
: You have the call. 
GRANT ROBERTSON 
: Thank you very much for the call. I am sure my very good colleague will speak soon on this bill the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Bill. I wanted to pick up a couple of the matters that Moana Mackey raised—in particular her amendments on Supplementary Order Paper 103 to clause 33A. What this particular part of the bill is about—what it should be about anyway—is both what is certainty and what to do in a situation of uncertainty. This is the bit of the bill that during the submission process and in terms of the comment that has been made around the bill both those who make it their life’s work to protect the marine environment and those who seek to undertake economic activity in the marine environment need certainty and want certainty and I am not convinced that it is provided by this particular clause. 
Clause 33A “Information principles” tells us in subclause (2) that “If in relation to the making of a decision under this Act the information available is uncertain or inadequate the Minister must favour caution and environmental protection.” As my colleague Moana Mackey has said the phrase “favour caution” does not have legal precedent or meaning in a New Zealand context. And as Moana Mackey said the question has to be asked as to what is intended by using a phrase that does not have any previous usage and does not have previous precedent. What is the point in using it? If the point is to create a precautionary approach as it is understood in law then surely the Government would use the words “precautionary approach”. It is the logical thing to do. It is an understood term. It has been talked about in international environmental law since the early 1980s. It has been present in terms of New Zealand’s role. New Zealand signed up to the Rio Declaration on Environment and Development at the Earth Summit in 1992 which had the precautionary approach. 
Hon Dr Nick Smith 
: Yeah. 
GRANT ROBERTSON 
: Nick Smith was there. He was chanting “precautionary approach” over and over again throughout that debate such was his enthusiasm then for the concept. But now today here in this exclusive economic zone legislation new language appears with the notion of favouring caution. It is clearly a deliberate approach by the Government to put in a different piece of wording and the only conclusion that can be drawn from that from this side of the Chamber—I happy to be proved otherwise—is that the Government is seeking to create a more permissive regime in the exclusive economic zone. 
Hon Dr Nick Smith 
: Oh! 
GRANT ROBERTSON 
: Well the member Dr Smith might want to take a call and explain the logic behind using a term like “favour caution” which has no meaning and no status within current New Zealand law rather than the term “precautionary approach”. If the reason is not that they want a more permissive approach I would be very interested to hear from the member why that is there. But more to the point the way in which the Government it appears is trying to manage this new term “favour caution” comes in the concept of “adaptive management”. If we go down to clause 33A(3) it says: “If favouring caution and environmental protection means that an activity is likely to be prohibited the Minister must first consider whether providing for an adaptive management approach would allow the activity to be classified as discretionary.” 
So the whole notion of what it is to favour caution and what happens if there is some conflict around a piece of development and how it might occur falls back to these adaptive management principles. We on this side of the Chamber have considerable concerns about the definition of “adaptive management” that appears in this bill. The problem with adaptive management drilling at the depths that will be drilled at in the high seas going into uncharted territory—both literally and figuratively—is that we have a great concern that the concept of “adaptive management” will not be able to be implemented in the way it is meant here because of the absence in their definition of the notion of irreversible effects. 
Moana Mackay in her Supplementary Order Paper 103 has new clause 62A which would actually define the adaptive management approach in such a way that the most important bit of it is subclause (2)(c) which says that an adaptive management approach “does not include allowing an activity to commence if its effects are likely to be serious or irreversible.” I would have thought that that was the kind of sensible amendment that the National Government would want to agree to because it is about providing certainty for everyone involved in this scenario. It is about certainty for those who wish to undertake economic activity and certainty for those who want—[ 
Bell rung 
]—Mr Chair very briefly. 
The CHAIRPERSON (Eric Roy) 
: Grant Robertson. 
GRANT ROBERTSON 
: Very briefly Mr Chair. I will not take my full call now that I have bargained for it. But I am sure the Chair would like to hear more from me on this topic having given me a full 5-minute call on this matter. 
The most important element of this is making clear that if the adaptive management approach were to include allowing for activity whose effects are likely to be serious or irreversible it is clearly not adaptive management. The point here is that the idea of adaptive management is that you can change the way in which an activity is being undertaken to meet whatever concerns are being raised. In these kinds of activities it is quite clear that a severe risk is run that those who will be undertaking the activity will be potentially involved in activities that may be serious or irreversible. It just seems ridiculous to have a notion of adaptive management in these areas that does not take that into account. So I hope that the Government will take on board this concern and also perhaps answer to us the reasoning behind the removal of the precautionary approach for the “favour caution”. I note that Dr Smith appears to be about to defend this; I await that with interest. 
Hon Dr NICK SMITH (National—Nelson) 
: 
 Firstly I want to congratulate the Minister in the chair the Minister for the Environment on Supplementary Order Paper 100 and the work that she has done to knock this bill the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Bill into really good shape. I think this is going to be one of the really good bits of environmental legislation that is advanced by this Government. The first question that I would love to have answered by members of the Opposition is where their party was when it did 46 drills during their last period in Government without any exclusive economic zone legislation. For 9 years they sang “Drill baby drill!” without any legislative framework at all. They had 9— 
Grant Robertson 
: I raise a point of order Mr Chairperson. This has been a very good debate so far around the detailed matters contained in the bill. I just urge the member to actually talk to the bill rather than make a political speech. 
The CHAIRPERSON (Lindsay Tisch) 
: He has not been going for a minute yet and I am sure he will come back to the content of the bill. I will listen very carefully. 
Hon Dr NICK SMITH 
: I totally understand why Labour is really defensive about this. The truth is that it had 9 years in Government and we have got this gaping hole in our environmental statute in that an area 20 times New Zealand’s land area does not have a proper environmental statute. We campaigned on filling that gap and we are delivering on that promise. I am proud of that and proud of the contribution that we make. It really is a tribute to how pedantic Mr Robertson has become when the fault with this bill— 
Grant Robertson 
: Come on talk to the bill! 
Hon Dr NICK SMITH 
: Let me explain. The great difficulty with this bill is rather than talking about the precautionary principle it says that “the Minister must favour caution and environmental protection.” So the great big contribution to environmental protection in New Zealand is an argument over whether the words “must favour caution and environmental protection” are as good as putting into the law the precautionary principle. 
I can understand why our friends in New Zealand First have said they are not going to have a bar of this silly game that Labour is playing dancing on the head of a pin. They know this is good law just as the Parliamentary Commissioner for the Environment has come out and said that this is good law. Mr Robertson asks why it is that in terms of this bill we are not using the very specific language that was in the international negotiations at Rio. The simple reason Mr Robertson—and this will be news for you—is that the legal uncertainty over the precautionary principle if we look at principle decisions— 
Grant Robertson 
: Oh come on! 
Hon Dr NICK SMITH 
: Look you asked the question and when I give you the answer you will not hear us out. If you actually look through court decisions on those that have chosen to put that precautionary principle it creates huge uncertainty. I actually commend the Minister. The language that we have in this bill could not be more plain—could not be more plain—than simply saying that the Minister must favour caution and environmental protection where there is uncertainty. How could it be more clear than that? 
The part I most enjoy in this debate is this point: members opposite have consistently argued that they do not want balance that they do not want to have a piece of legislation that is carefully balancing New Zealand’s economic opportunities in the huge exclusive economic zone with the need for environmental protection. Well I have to say Mr Robertson that I look forward to going to the electors in 2014—and probably 2017 and 2020—and saying that we on this side of the Chamber are balanced and members of the Opposition are not balanced because they are not. They are not balanced. They have consistently argued and when it comes to this issue they have a simplistic view that underrates the economic opportunities that there are for New Zealand within the exclusive economic zone. 
I simply want to support particularly this part. I want to commend the Minister for the great job that she has done. My advice to the Opposition’s environment spokesperson is that he is going to have to do a damned sight better than pedantic arguments over the words “showing caution” or the “precautionary principle” if he really is going to put up a credible argument that this is not damned good law that Parliament should get on and support. I am actually very disappointed that on such a key area of public policy filling a gap in New Zealand’s environmental laws that Labour left for 9 years— 
EUGENIE SAGE (Green) 
: 
 I think the previous speech by Nick Smith as always sought to twist slightly how the law operates. That is partly because of this whole concept of adaptive management which I will get on to in a minute. I think the number of Supplementary Order Papers that are before the Committee on Part 2 of the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Bill reflect unfinished business in the Local Government and Environment Committee and a number of concerns that Opposition parties raised there that have not been resolved. But before going on to those I would like to record the Green Party’s thanks to officials. There was a lot of debate in the select committee and a lot of interchange with officials and they dealt with that very professionally and have put a huge amount of work into the bill. 
In terms of the Supplementary Order Papers that the Green Party is proposing one of them in my name Supplementary Order Paper 90 is around this whole issue of adaptive management. The concept of adaptive management is one of “suck it and see”. The previous speaker has referred to caution and the cautionary approach. Like Labour—and we support Moana Mackey’s Supplementary Order Paper 103—we say that “caution” is a very new term in the legislation. It contributes to legal uncertainty and to opportunities for more litigation by using that term rather than the more commonly understood “precautionary approach”. But if this cautious approach means that an activity is likely to be prohibited through regulations or a marine consent application is likely to be refused by the Environmental Protection Authority then the Minister for the Environment or the Environmental Protection Authority must consider whether using the adaptive management approach would allow the activity to proceed. That means that it proceeds at a certain scale and there is monitoring done to determine whether it can continue and be expanded. 
In our view both clauses 33A and 60A create quite major obstacles to the Minister prohibiting damaging activities and to the Environmental Protection Authority declining consent to them. As submitters such as the Royal Forest and Bird Protection Society noted it turns the precautionary approach on its head because it fails to recognise that there are situations where a “suck it and see” approach through adaptive management is not appropriate. That is where there is a risk of causing irreversible environmental harm.  
Supplementary Order Paper 90 in my name redefines adaptive management to exclude an activity that risks causing irreversible harm such as affecting the population of a threatened species or destroying a biodiversity hot spot like a seamount. It would omit this requirement in clause 33A(3) that before prohibiting an activity the decision maker first has to consider adaptive management. The Green Party is concerned about the changes that the Government’s Supplementary Order Paper 100 would make to the definition of “adaptive management” because that further expands the scope for using it.  
When we were considering Part 1 of the bill and when we passed that relevant part of Supplementary Order Paper 100 we effectively omitted the bill’s definition of “adaptive management” from the interpretation clause which would have clearly allowed a marine consent to be revoked and the activity discontinued. Omitting that and then relying on clause 62A for the definition of “adaptive management” means that there is no clear ability for the Environmental Protection Authority to revoke a marine consent to ensure that an activity is discontinued if it is found to have greater impacts than the Environmental Protection Authority expected. The experience under the Resource Management Act is that when you review consent conditions you cannot cancel a consent. So the former interpretation and definition of “adaptive management” was quite critical to allowing the Environmental Protection Authority to revoke a consent. My concern is that that is now gone.  
I think that is quite typical of the permissive approach to the Government’s oceans management through the exclusive economic zone regulations which as Moana Mackey mentioned came out after we had reported back from the select committee. That permissive approach is illustrated in the fact that seismic surveying is permitted under the regulations. That is despite there being the potential for quite significant impacts on marine mammals and fish because where you get these seismic surveys occurring you get these big high-pressure airguns being towed behind a survey vessel. They produce pulses of high-energy sound which is directed at the seabed but it can spread horizontally for hundreds of kilometres. That can have an effect on marine mammals that is quite disturbing. For them it can be the equivalent to us having a 747 jet engine taking off nearby. So we have a concern around adaptive management.  
One of the other issues of concern is that in clause 33(3)(e) as Nicky Wagner pointed out one of the list of matters that the Environmental Protection Authority must consider when making regulations is “the importance of protecting rare and vulnerable ecosystems and the habitats of threatened species”. Yet when the Minister is making regulations and also in the parallel provision for the Environmental Protection Authority in clause 59(3)(e) they can consider an impact on a threatened species and their habitat only if the Minister of Conservation has previously gazetted a species as threatened. Only two species have been gazetted by the Minister of Conservation as threatened species: the New Zealand sea lion and the Hector’s dolphin. Our Supplementary Order Paper sought to change that so that there was a reference to the New Zealand Threat Classification System lists and the International Union for Conservation of Nature’s Red List of Threatened Species. We did not want the political process set out by the bill that the Minister of Conservation must gazette a threatened species as threatened for it to be given status under clause 33. That remains a concern.  
We are also concerned about the failure in Part 2 of the bill to have any provision for spatial planning in the marine environment because the Government has tendered more than 40000 square kilometres of offshore seabed for oil and gas exploration yet we do not have any provision for deep-water marine reserves and no legislation to do that. There is no regime for creating these deep-water marine reserves to balance the exploration that is occurring. That is why Gareth Hughes’ Supplementary Order Paper 102 is important because it makes amendments that would provide for marine reserves in areas such as the Kermadec Islands to be extended offshore. Some of the protection initiatives that we have at the moment such as the benthic protection areas are totally ineffectual. We are already seeing applications for prospecting for phosphate in those areas and there is no constraint on that.  
We have got a number of changes in our Supplementary Order Papers. We support Labour’s Supplementary Order Paper 103 seeking to replace “caution” with “a precautionary approach” and we have major concerns about adaptive management.  
RINO TIRIKATENE (Labour—Te Tai Tonga) 
: 
 Kia ora Mr Chair. I am pleased to take a call on Part 2 in the Committee stage of this bill the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Bill. Just at the outset I would like to respond to Dr Nick Smith’s comments that the bill is actually good law and that it has been substantially knocked into shape by the Minister for the Environment. I would like to just say that in terms of Maori and Treaty relationships this bill falls well short of measuring up in terms of the protection of Maori interests. But firstly I would like to also just stand in support of the two Supplementary Order Papers from my colleague Moana Mackey Supplementary Order Paper 103 and Supplementary Order Paper 106. 
But getting back to the issues in terms of Maori rights I am picking up on the Maori advisory committee. The Maori advisory committee is a positive step in terms of its relationship with the Environmental Protection Authority and it would have been good to see the role of the Maori advisory committee strengthened. The Maori advisory committee has a power only to advise. There is no power to bind nor is there an onus on the Environmental Protection Authority to even show that it has taken on board any of the recommendations or advice from the Maori advisory committee nor is it obliged to take anything into serious consideration. This is not good enough and it does relegate Maori interests as secondary under the consenting process that is outlined in Part 2. 
The advisory committee yes has a power to advise but again it is only “may”. Its power to advise is optional; it is not mandatory. The Environmental Protection Authority may choose to receive the advice of the Maori advisory committee but it does not have to. So that is not good enough and we do not want a situation where the advisory committee or Maori interests are merely just a box that is to be ticked in the consenting process. Consultation with Maori must extend beyond the Maori advisory committee and include iwi and hapu as views do differ from region to region. I refer to the submission from my own iwi down in Ngai Tahu where they had very strong views as to their role as kaitiaki in terms of the exclusive economic zone because equivalent to 50 percent of the exclusive economic zone falls within the Ngai Tahu takiwa. 
The next area where this bill falls short in Part 2 in relation to tangata whenua interests is around the principles of the Treaty of Waitangi. It was disappointing that the Supplementary Order Paper that we put up on Part 1 to broaden the recognition or adherence of the general obligation of the Treaty between the Crown and iwi was not adopted. But the bill does need to be strengthened to give better effect to the principles of Te Tiriti o Waitangi. As I mentioned there is no general obligation on the Crown to give effect to those principles and there are only references to specific clauses in terms of activities through the consenting process but there is no general obligation that is an obligation on the Crown. Just as an example if we go through Part 2 clauses 32 33 and 46 do not give proper effect to the principles of the Treaty as the provisions are largely toothless and do not impose any concrete obligations. It is merely a notification-type obligation by the Minister or by the Environmental Protection Authority. The bill does not recognise the special relationship Maori do have with their taonga which in this case is the marine environment and this is a clear breach of Treaty principles. 
There is long-established Waitangi Tribunal jurisprudence and the like on these Treaty principles and that means that there is a duty to give effect to the relationship of iwi or Maori with their taonga. How can the bill claim to give effect to the principles of the Treaty when the bill breaches the most important principle the principle of partnership and when a key aspect of that partnership is the relationship with taonga and it is omitted from the bill? The principles of the Treaty are not given concrete enough effect and this may expose the Crown to legal action in terms of failure to adhere to its Treaty obligations. The bill does not actively protect interests of active protection. They are not given full effect. Instead these duties are delegated down to bodies such as the Environmental Protection Authority and other lesser bodies. 
Recognising the special relationship that Maori do have with the marine environment is fundamental to this bill. It was a key part of the submissions that many iwi and other interested Maori groups gave to the Local Government and Environment Committee and unfortunately they have not been given expression in the bill. That does arguably open up some litigation risk around those in addition to the shortcomings from all of the other areas that have been identified earlier in the debate. I will just conclude my contribution here but I will pick up in Part 3 some other aspects around the tangata whenua interests. Kia ora. 
ANDREW WILLIAMS (NZ First) 
: 
 I will take a call on the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Bill. New Zealand First will be supporting Part 2 of the bill as we did Part 1 of the bill. In that respect as we have said in this House before we will support what we believe is good policy but we will oppose bad policy. In this case in New Zealand’s interest we believe it is in the interests of New Zealand and of this Parliament to pass this bill in its entirety and for the country to get on with it. This has the potential to increase the economic performance of this country. With the fifth-largest economic zone in the world we owe a level of responsibility to the people of New Zealand to ensure that there is an Act in place to cover the 200-mile economic zone and this bill when it becomes an Act of Parliament will do that. We do understand of course that there are some reservations on the part of some parties over some of the clauses and some of the terminology but in many cases it is very much just words and in a sense pedantry over the determination of how the wording is best put. We do believe however that it achieves the outcomes that we are seeking in the main. In the vast majority of cases it serves the purpose that we are seeking. 
I also would like to concur with other members of Parliament who have made the comment that the officials have done a great job through this whole process and through the Local Government and Environment Committee process over this year. This has been a very very significant part of the Local Government and Environment Committee’s work this year. There were a huge number of submissions from a great many organisations and the officers and officials have done a great job of bringing all that information together reporting back to the committee and providing very very good feedback information and advice as to how those various submissions impact on the overall parameters of the bill. 
Likewise I would like to thank the Minister for the Environment too for her input in being able to address many of the concerns and issues that were raised by the committee agreeing to some changes where appropriate and agreeing to some wording changes to give effect to some of the concerns that were there. Although not meeting all the concerns the bill we believe again goes a sufficient way to meet the vast majority of the concerns of those who were submitting and those who were raising the concerns. We are somewhat appeased by the fact that the Parliamentary Commissioner for the Environment Dr Jan Wright has advised that she has a level of support for the bill now that many of the concerns have been addressed and it is very very heartening to hear that in her role she does feel that the bill now has great merit to move forward. For many of the submitters to the bill and many of the environmental organisations I am sure that they likewise although still having some concerns about the marine environment must be greatly relieved at some of the changes that were made to assist. 
In terms of New Zealand’s economic performance we do have a huge responsibility here. When you are talking about the vast area of ocean and the fact that the New Zealand landmass that we inhabit or the above-the-surface landmass is something like only 5 percent of the total area of the zone that is taken up by this exclusive economic zone and you think of this mass of water out there then you can appreciate the implications that it has for the New Zealand economy. We looked at many many submissions on many areas of the exclusive economic zone which included areas like the Chatham Rise. I had not realised how significant the Chatham Rise is and how vast it is and the resources that are out there that potentially could have a huge impact on the New Zealand economy. Likewise many of the other areas around the coast that were brought to our attention and the potential that is there provided it is done in an environmentally sustainable way and in a very sound and secure manner that ensures the environmental concerns and protections are there and that the environment is given the benefit of the doubt. Should there be any grave concerns about any planned projects then certainly the New Zealand First Party will want to ensure that those procedures are in place. 
We believe that the wording now provides sufficient safeguards—sufficient for the Environmental Protection Authority to effect what is the will of the Government and what is the will of this Parliament to ensure that the exclusive economic zone is properly policed and properly administered. It also ensures that there are also options for appeals through the High Court and through the Court of Appeal and also for some aspects being handled by the Environment Court in terms of some of the applications for various things to ensure that there are also the legal sides for recourse should that occur. 
 We constantly hear in this Parliament about the need for increased economic development in this country for more jobs for opportunities for our young people and for our people to have a more secure workforce. Our marine environment does offer the opportunity to provide that in New Zealand. We are very very fortunate as a small country of 4½ million people to have such a vast marine environment out there and a potential resource that could greatly impact on the well-being of the people of New Zealand. We therefore have to do all we can to both protect that environment and make sure that it is there for future generations but at the same time make sure that the resources that are available there can be properly taken and properly used in a proper manner and that that is done so for the benefit of this country. New Zealand First will be supporting this bill. 
CATHERINE DELAHUNTY (Green) 
: 
 I am delighted to have an opportunity to take a call on Part 2 of the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Bill. I am sorry that I was not able to be at the Local Government and Environment Committee because this is a very interesting experience even now hearing the aspirations for the bill which unfortunately seem to me romantic. Basically we know less about the deep ocean than we do about Mars and the surface of the moon. We do not know at 3000 metres what is going to happen. Basically this bill although laudable because we do need legislation that regulates the marine environment is romantic. We have no ability to know whether we can sustainably manage something that we are yet to understand. Part 2 actually provides the opportunity for marine consents as if it was something just down the road as if it was a dairy farm or as if it was a block of conservation land where we are able to count species. 
Actually we know hardly anything about what happens at 3000 metres. We have some experience in the shallow water and actually off the coast of Tauranga that did not go terribly well. Having scraped a lot of oil off I know that even in the shallow water with a tiny spill it is very difficult to restore the environment. They appear to be nothing to do with it but actually when we are talking about risk management and sustainability you cannot invoke caution if you are going to ignore precaution. That is what the debate is actually about. Whether you are talking about the  
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 minor disaster or what happened in the Gulf of Mexico—best practice I do not think so. We do not know what to do about this in terms of adaptive management. Adaptive management regimes where you can adapt what you are doing because you have some control over the environment are valid. But in 3000 metres off the coast of say Whanau-a-Apanui in the deep ocean where we do not even know the species that we are potentially destroying it is gambling. Let us just admit it—it is gambling. 
I would like to move to some other points about Part 2 and support the comments of Rino Tirikatene about the issues around the Treaty. I remember vividly the Marine and Coastal Area (Takutai Moana) Bill. It was never about the beach. It was about getting Crown control and the right to permit seabed—read my lips—and foreshore resources. That is what it was about. That is why Elvis Teddy got in that boat with Whanau-a-Apanui went off the coast and got arrested for whatever the court could dream up but in fact the case failed. The case failed even though the navy tried to arrest them. Part 2 is about granting consents and I am talking about the rights of people to say no the rights of people to say: “I do not want this to happen in my rohe.” That is why the history is important in respect of Part 2. This is setting up tests around possibly being cautious when in fact we already know that some communities have said no. What about the ability to contest the information? 
I just want to look at clause 60A in Part 2 where they talk about favouring caution. The reason why they have not used the precautionary principle is that it has meaning. “Favouring caution” is a wonderful new phrase. It is like a traffic light. Perhaps we had better not go for green we will just go for orange and when we like it we will go for green. That is what “favouring caution” means. The precautionary principle was discussed at Rio in relation to deep sea mining and this is what was said by Dr Helen Rosenbaum about the precautionary principle: “if there’s any uncertainty about the nature of the impacts but there is a reason to believe there are going to be serious negative impacts then projects should be delayed.” The reason this is not in the bill is because precautionary is an extremely strong test. Actually it is sometimes argued that if you do not understand what you are doing you do not do it—sorry not you Mr Chair. If people do not understand what they are doing then they do not do it whereas being cautious is open to any form of interpretation. 
I would just like to quote clause 60A(4) which says: “In this section best available information means the best information that in the particular circumstances is available without unreasonable cost effort or time.” Does that sound like the precautionary principle? No because it is not. It does not even sound like caution to me. It sounds like: “We don’t want to limit the opportunities here.” If we do not know what is under the ocean and we are not sure what impact the deep sea drilling is going to have or the seismic blasting or anything else is it going to be an unreasonable cost to find out? Is it going to be a bit of an effort or is it going to take too much time in which case we do not want to limit ourselves. [ 
Bell rung 
] I will not take my full 5 minutes but just to say briefly that if you are talking about robust legislation and what is basically an extremely unknown environment Part 2 does not meet the tests. It is very important that principles like the precautionary approach and adaptive management are actually workable. It is not workable to talk about this environment that we do not even understand and try to apply these tests which actually in the Resource Management Act need to be stronger. Many of us have struggled in respect of the Resource Management Act in our ability to participate meaningfully. 
If we are talking about the development of resources in this country we are not talking about the people of the East Coast getting a job; we are talking about Petrobras Nautilus Minerals Inc. and the other multinationals that will be fronting this week at the Pacific Islands Forum as well. Basically what they are saying is “Open slather. We want to get in there.” This bill has the opportunity to provide some prevention but I would like to also acknowledge what Rino Tirikatene said about the role of Maori and the Treaty in it. If the advisory committee which is mentioned in here in the Environmental Protection Authority is optional then how does Whanau-a-Apanui say that they do not want this? How do they say no if the advice around tangata whenua is either optional or mere advice? I do not know but I have spent far too many years of my life in the Environment Court where advice from tangata whenua has been ignored where optional information has been ignored and where the idea that someone is going to benefit and someone is going to make money means that we can enter into environments that we have no baseline data about that we do not understand and that we just hope. 
The difference between the land and the sea is that the sea looks as if it covers everything up. That is why we dump all our waste in it dump all our sewage in it and dump all our pollutants in the sea—because we cannot see it and we have got no imagination. We lose species when we do that. We lose threatened species we lose integrity of our fisheries and we lose opportunities for the future. I am very disappointed that the bill is so loose. I understand that it is improved and I am grateful it is improved but I cannot accept that sustainable management is possible or that adaptive management is possible in Part 2 if you do not even know what the environment is that you are planning to manage. Basically we are running out of oil on the planet so now we are going into the deep ocean. No one would be doing it if they could get it from somewhere else because it is too hard. This is going to be even harder. We are going to do damage and what is scary is that we can go through all the loops and processes but without any baselines we are not going to achieve sustainability or environmental protection. Thank you. 
ANDREW LITTLE (Labour) 
: 
 It is a pleasure to take a call on Part 2 of the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Bill. The Hon Dr Nick Smith and Andrew Williams both talked about the law being adequate and that we should not dwell on pedantries as we consider this piece of law. That is not good enough. Our job here as lawmakers is not to promote business or any other particular interests but to make law that is fit for the purpose and does the job and that is to ensure that the words that we approve and that this Committee approves not only achieve the objectives that the legislation says it needs to meet but also satisfy the international obligations that we have entered into as well. 
One of the important things is to ensure particularly when it comes to this part that the regulation-making provisions are consistent with the obligations that we have entered into. When you look at clauses 27 28 and 29 in the absence of any reference in clause 10 in a previous part to the fundamental international obligation of preserving and protecting marine life and the marine environment it is noticeable that that objective is missing in those regulation-making parts. 
 There is no overriding or overwhelming guidance in regulation-making powers for the obligation to preserve and protect marine life and the marine environment to apply. That is a glaring omission and it would be good to hear from the Minister in the chair the Hon Amy Adams about what principles and values are going to guide the regulation-making provisions in the absence of anything in the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Bill that is going to require the Government to fulfil the obligations that we have entered into to preserve and protect. 
We do not go as far as those others who have expressed concern about the Gulf of Mexico and the  
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. One was a genuine blowout of an oil rig and the other was a beaching of a vessel which caused an oil spill. But the critical issue for the oil drilling whether it is on land or offshore no matter how deep the sea is not the depth of the sea; it is the geological structures that are being drilled into. That determines what happens. That determines the pressure at which the oil or gas comes out. That is the risk factor that needs to be assessed. That is still something that is entirely appropriate for this legislation to govern. There is nothing there that points to that specifically but it is not a question of being anxious about that particular risk except to know that it is being properly taken care of. 
The other point I wanted to talk about is clause 50 which is the mediation provision in the bill. What started out in the original bill as a reasonably good mediation provision that allowed the Environmental Protection Authority to send parties—an applicant for a marine consent and objectors to it—away and mediate agree on those things they can agree on and hone down those things they cannot and for those to be the subject of any ruling or further discussion was a good model. That is a good provision. But the Minister for the Environment’s Supplementary Order Paper 100 amends that and takes away the requirement not to have the mediation but the requirement for the mediation to then be reported back to the parties and to the Environmental Protection Authority itself so that it can carry on with this determinative role. That is a great pity. It is not just a great pity but it is actually not a very good process. 
If the parties are going to be sent off for mediation under clause 50 which is a very sensible thing to do—to get those things that the parties know they can agree on resolved and sorted and to get those things that they definitely cannot agree on and let those be the subject of the determination by the Environmental Protection Authority—that means that the mediation process must be concluded before the Environmental Protection Authority makes a determination and that the Environmental Protection Authority knows what the points of agreement and disagreement are. That makes complete sense. But the Minister’s Supplementary Order Paper 100 would mean that there is no requirement for the mediation process to be concluded nor for there to be any report back to the Environmental Protection Authority. That has the potential to waste enormous amounts of time and the great thing about the provision as it is at the moment is that it would allow what might otherwise be time-wasting activity to be honed down and refined and allow the genuine points of disagreement to be discovered and then be the subject of a proper hearing. 
Moana Mackey’s Supplementary Order Paper 106 puts back in a proper and effective process and requires that the Environmental Protection Authority not conduct a hearing of any objections to an application for consent until such time as a mediation has taken place and any agreements noted and recorded and there is a general report back from the mediation process. That is a good thing. I just prevail upon the Minister and ask the Minister to think carefully about that. If as the Government says it is it is so concerned about the business interests that are at the forefront of this debate then one thing that business will be most appreciative of is a process that allows it to sift out those things that should not waste the time of a judicially operated body such as the Environmental Protection Authority and allows it to conduct their hearings efficiently minimising costs to all parties and allowing good sensible decisions to be taken. 
With a mediation process that allows that—a mediation process that once entered into means that there cannot be a determination role played by the Environmental Protection Authority—it means that the parties actually have an incentive to as much as possible reach agreement on their points of disagreement. That must be a more constructive approach to take. Indeed it is the very approach that we would like to take with the entire bill but that has not proved possible so far. I simply prevail upon the Minister to think carefully about that clause 50 and leave it so that there is some integrity to the process the mediation process does not become a waste of time and the determinative process that the Environmental Protection Authority conducts can also be conducted efficiently and in the best interests of all parties that come before it. 
JACQUI DEAN (National—Waitaki) 
: 
 I move  
That the question be now put 
. 
MOANA MACKEY (Labour) 
: 
 I still have a number of amendments in my name that I have yet to be given the opportunity to speak to so I am grateful for the call. I think a general concern we have about Part 2 of the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Bill is that it seems that there are many more barriers to people submitting on applications than there are to the applicants. It seems—and as we come into Part 3 we will discuss the removal of appeals to the Environment Court—that there is that general tone throughout Part 2 of the bill and the Minister for the Environment’s Supplementary Order Paper 100 takes those a little bit further. 
My colleague Andrew Little has just been speaking on my Supplementary Order Paper 106 in relation to mediation. In fact the Minister does not need to support the Supplementary Order Paper; she just needs to withdraw her amendment in hindsight. But we were trying to put in the Supplementary Order Paper in order to outlay what our concerns were. I have had a conversation with the Minister about that and I appreciate that we agree to disagree on this matter. 
Although I certainly appreciate the concerns the Minister has about wanting to facilitate these processes and make them move smoothly we would have liked a bit of a protection in there to say that this cannot be used to try to undermine the mediation process while that is happening at the same time as a hearing. The Environmental Protection Authority could benefit from having that information in front of it. We would have liked to see some words around the situation where the discussions that are occurring at mediation do not have a material impact on the hearing and where things can be taken off-line. For example people with existing interests might just need to have a discussion with the applicant and that can be done outside the hearing. Absolutely but we I think would have liked to see that protection put into wording. 
I do not believe that the Environmental Protection Authority is going to try to abuse this power. That is a reality but I always like to have these belts and braces so that people can feel that their rights are not going to be usurped and there is some protection there. I do not believe for a second that the Environmental Protection Authority is going to suggest that Greenpeace and Petrobras go through a mediation process. I appreciate that this will probably be for small technical things. I think that is just where we would have liked to see that protection put into law but I appreciate that the Minister for the Environment has decided not to support that. 
I do have another amendment in my name that I hope the Minister will take a call on which is on the time limit for the hearing. New clause 52A in the Minister’s Supplementary Order Paper 100 says: “A hearing must be completed not later than 40 working days after the first day of the hearing.” That seems very reasonable because I doubt many hearings are going to go for longer than that. I have an amendment in my name that explains that where there are exceptional circumstances where you have a particularly complicated case—for example where something arises and the Environmental Protection Authority may need to call in an international expert and it may be hard to get that person in—we can be clear that actually the 40 days have to be 40 days of hearings not just 40 consecutive days or 40 working days. It is 40 working days. The Minister in the chair the Minister for the Environment is nodding. Yes I know that is what it is in the bill but just to clarify that in exceptional circumstances—and I know that off-line the Minister has indicated to me that that is somewhere else in the bill. It would be useful if she could tell me where that is and then we could have— 
Hon Amy Adams 
: 147. 
MOANA MACKEY 
: Sorry? 
Hon Amy Adams 
: 147 and 148. 
MOANA MACKEY 
: And what part is that in? 
Hon Member 
: 3. 
MOANA MACKEY 
: Part 3. OK we will have a look at that before we get to Part 3. 
But we are concerned. Again it comes back to I think the conversation that we had on Part 1 or Part 1A about just making it clear that when we were talking about clause 42 which is around incomplete applications we would have liked to see it made clear that you cannot just go through that over and over again. I think it is the same here. It would not hurt to make it clear in this clause that even though there is a time limit of 40 days in exceptional circumstances where we want to make sure that we have the best decision-making processes and the best information available to the Environmental Protection Authority it is in fact able to extend that hearing beyond 40 days. I will have a look at that when we come to Part 4 of the bill. 
 My colleague Grant Robertson talked about the amendment that I have in my name on Supplementary Order Paper 103 around adaptive management. That is a real concern. We had a big discussion about it at the Local Government and Environment Committee. Obviously it was another area—it was along the same lines as the precautionary approach—where some people had big concerns about the use of adaptive management. But we really do feel that having some language in there around the fact that where the effects are likely to be very serious or irreversible adaptive management is just simply not appropriate for most of the things that occur in the exclusive economic zone. We were focusing deeply on oil and gas exploration but this covers a much much broader variety of activities. In fact I suspect that most of the marine consents issued under this legislation will relate to the laying of pipelines fibre-optic cable and things like that. 
There may be other areas where in fact adaptive management can be used and is appropriate but where the effects on the environment especially are likely to be irreversible that undermines the whole concept of adaptive management because it means you cannot pull it back. Adaptive management is about allowing something to go ahead and tweaking it as you go. When it comes to an irreversible change to the environment there is no tweaking that can happen beyond that. So I would again really urge the Minister to think seriously about how adaptive management has been laid out in the bill. 
There is a much smaller issue but I do want to mention it because it does occur throughout the legislation and it is in clause 60A the information principles. We are seeing this throughout the bill whenever there is any guidance around what information the Environmental Protection Authority needs to consider when it is considering an application. We notice in the Minister’s Supplementary Order Paper that there has been a real narrowing down so that in many cases it can be only information that it has sought. So if someone has provided it previously with some information that might be relevant which might indicate environmental impacts that may well be serious or irreversible and where they may be concerned that the Environmental Protection Authority has made a decision that goes against the advice that has been provided in that paper unless the Environmental Protection Authority itself has sought that paper then it does not have to consider it. 
I think that in terms of the Environmental Protection Authority developing up its knowledge base suddenly the bill says that the only things that need to be considered in legislation are things that the Environmental Protection Authority has actively sought out itself—although we welcome other amendments the Minister has made to require it to consider the input of the Maori advisory committee. We see it in the amendments to clause 59(4)(b) as well where it is only the information that has been sought that must be considered by the Environmental Protection Authority. Suddenly we are narrowing down what it needs to consider. I am not quite sure why that is. [ 
Interruption 
] The Minister says it is not but it would be useful to know what it is. It is one of those things where you think it could have a large material impact on the processes and the ability of people to challenge the Environmental Protection Authority when they really feel that they provided some very strong evidence and the evidence was not even considered at all because it now falls outside the requirements of the Environmental Protection Authority to do that. 
That is about all I have for my contribution on Part 2 but I do just want to briefly respond to the comments made by Nick Smith when he gave his somewhat wide-ranging speech on Part 2 of this piece of legislation. I think that any political party that has not taken stock of its policies in this area post the Gulf of Mexico and post the  
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is not taking the issue seriously enough and its members are being neglectful in their duties as parliamentarians. Certainly both those events were game-changers. I went to a public meeting in Whakatane around the  
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 where there was real anger and the Hon Dr Nick Smith did not want to answer a lot of the questions that people were having around the application off the East Coast by Petrobras. They were game-changers. 
Well Hekia Parata can pull faces at me. We would have loved to see her during her time as Associate Minister of Energy and Resources on the East Coast— 
Hon Hekia Parata 
: I was happy to answer the questions. I answered the questions. 
MOANA MACKEY 
: Well you were not happy to answer questions when you were the Associate Minister of Energy and Resources. That is the problem Ms Parata. We would have loved to have the Minister at many meetings up there. 
Hon Hekia Parata 
: I continue to do so in my home area. 
MOANA MACKEY 
: I know it is your home area. That is why we were so disappointed. 
But following on from the comments the Hon Dr Nick Smith made yes we did a lot of the stuff when we were in Government. But we took stock and said: “Really have we got those bottom lines right? Are we addressing the concerns of the public?”. This legislation which started its life under a Labour Government but was much more environmentally stringent we simply do not believe meets that test. So Nick Smith can attack us for that but the reality is that they were game-changers. We saw what happens when oil gets in the water in the eastern Bay of Plenty and the Bay of Plenty and the public have concerns and they have every right to expect that their representatives in Parliament will take those concerns on board and learn from them. I guess that is the difference between being in a progressive party and being in a party that is constantly about the status quo and with no new ideas. 
So I would welcome the Minister’s comments on some of those parts in the bill. But certainly on the issue of the time limit of the hearing we will get to it when we come to Part 4. 
NICKY WAGNER (National—Christchurch Central) 
: 
 I move  
That the question be now put 
. 
EUGENIE SAGE (Green) 
: 
 I would like to make just some brief comments in relation to the cultural impact assessments and Supplementary Order Paper 101 which is in my name. The Local Government and Environment Committee had very strong submissions from iwi supporting the need for environmental management of the exclusive economic zone and the continental shelf but highlighting the need for quite major changes to the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Bill if the Crown was to meet its Treaty obligations and particularly the principles of partnership active protection recognition of rangatiratanga and active participation in decision making. We recognised that the Minister for the Environment’s Supplementary Order Paper 100 with its changes to clause 59 certainly provides for the Environmental Protection Authority to take account of any advice it receives from the Maori advisory committee. 
But this is not enough and it is not early enough in the process. There needs to be another mechanism and that is why my Supplementary Order Paper 101 provides for changes to have cultural impact assessments. This will be a mechanism that would ensure that applicants engage with iwi in developing their application. As Te Runanga o Ngai Tahu noted in their submission to the Local Government and Environment Committee “There is likely to be a low level of understanding of iwi interests and associations with the marine environment amongst applicants and potentially EPA staff.” So the Supplementary Order Paper provides for cultural impact assessments as quite a practical mechanism for both applicants and the Environmental Protection Authority to be in a position to adequately identify effects on cultural values and then identify ways of avoiding remedying or mitigating those effects in a manner that reflects tikanga and incorporates an iwi perspective. 
 These cultural impact assessments are increasingly used in applications for water takes so requiring applicants to include a cultural impact assessment as part of their whole impact assessment for a marine consent application by amending clause 40 would give the Environmental Protection Authority the confidence that that impact assessment properly reflected an iwi perspective. It would also in the process of developing that cultural impact assessment provide a mechanism by which the applicant and iwi could really engage in some of the practical issues. 
The other matter I would just like to comment on in this call is Supplementary Order Paper 102 in Gareth Hughes’ name which provides for the contribution to climate change to be one of the list of matters that the Environmental Protection Authority takes into account when it is considering an application for a marine consent and submissions on that application. The Environmental Protection Authority is currently debarred from doing that by clause 59(6)(b) and that parallels a similar provision in the Resource Management Act. The rationale in the Resource Management Act for debarring consideration of contribution to climate change is that regional councils are dealing at the regional level and matters of climate change should be dealt with at the national level. But the Environmental Protection Authority is a Government agency that is working at the national level and it is responsible for environmental management at the national level. It is entirely appropriate then that it should be considering issues around climate change. That is why Gareth Hughes’ amendment seeks to rectify this situation and ensure that the very important issue of climate change is one of the list of considerations that the Environmental Protection Authority must take into account so I commend that Supplementary Order Paper. Thank you. 
The CHAIRPERSON (Lindsay Tisch) 
: We move to the vote on Part 2. We have Eugenie Sage’s amendments to clauses 33 and 59 as set out on Supplementary Order Paper 89. These are ruled out of order as being inconsistent with a previous decision of the Committee. 
The question was put that the amendment set out on Supplementary Order Paper 90 in the name of Eugenie Sage to clause 33A be agreed to. 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 49 
New Zealand Labour 34; Green Party 14; Mana 1. 
Noes 71 
New Zealand National 59; New Zealand First 8; Maori Party 2; ACT New Zealand 1; United Future 1. 
Amendment not agreed to. 
The question was put that the amendment set out on Supplementary Order Paper 101 in the name of Eugenie Sage to clause 40 be agreed to. 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 49 
New Zealand Labour 34; Green Party 14; Mana 1. 
Noes 71 
New Zealand National 59; New Zealand First 8; Maori Party 2; ACT New Zealand 1; United Future 1. 
Amendment not agreed to. 
The question was put that the amendments set out on Supplementary Order Paper 102 in the name of Gareth Hughes to Part 2 be agreed to. 
A party vote was called for on the question  
That the amendments be agreed to. 
Ayes 49 
New Zealand Labour 34; Green Party 14; Mana 1. 
Noes 71 
New Zealand National 59; New Zealand First 8; Maori Party 2; ACT New Zealand 1; United Future 1. 
Amendments not agreed to. 
The question was put that the amendments set out on Supplementary Order Paper 103 in the name of Moana Mackey to clauses 27 32 47 and 49 be agreed to. 
A party vote was called for on the question  
That the amendments be agreed to. 
Ayes 49 
New Zealand Labour 34; Green Party 14; Mana 1. 
Noes 71 
New Zealand National 59; New Zealand First 8; Maori Party 2; ACT New Zealand 1; United Future 1. 
Amendments not agreed to. 
The question was put that the amendments set out on Supplementary Order Paper 103 in the name of Moana Mackey to clauses 33A 60A and 62A be agreed to. 
A party vote was called for on the question  
That the amendments be agreed to. 
Ayes 49 
New Zealand Labour 34; Green Party 14; Mana 1. 
Noes 71 
New Zealand National 59; New Zealand First 8; Maori Party 2; ACT New Zealand 1; United Future 1. 
Amendments not agreed to. 
The question was put that the amendments set out on Supplementary Order Paper 106 in the name of Moana Mackey to Part 2 be agreed to. 
A party vote was called for on the question  
That the amendments be agreed to. 
Ayes 49 
New Zealand Labour 34; Green Party 14; Mana 1. 
Noes 71 
New Zealand National 59; New Zealand First 8; Maori Party 2; ACT New Zealand 1; United Future 1. 
Amendments not agreed to. 
The question was put that the amendments set out on Supplementary Order Paper 100 in the name of the Hon Amy Adams to Part 2 be agreed to. 
A party vote was called for on the question  
That the amendments be agreed to. 
Ayes 71 
New Zealand National 59; New Zealand First 8; Maori Party 2; ACT New Zealand 1; United Future 1. 
Noes 49 
New Zealand Labour 34; Green Party 14; Mana 1. 
Amendments agreed to. 
A party vote was called for on the question  
That Part 2 as amended be agreed to. 
Ayes 71 
New Zealand National 59; New Zealand First 8; Maori Party 2; ACT New Zealand 1; United Future 1. 
Noes 49 
New Zealand Labour 34; Green Party 14; Mana 1. 
Part 2 as amended agreed to. 
The CHAIRPERSON (Lindsay Tisch) 
: Just as a matter of interest if you do not ask for a party vote I do not give one. You must ask for a party vote. 
Part 3 Objections appeals and enforcement 
The CHAIRPERSON (Lindsay Tisch) 
: The debate on this part includes the schedule. 
Hon AMY ADAMS (Minister for the Environment) 
: 
 I did want to take a brief call to start our discussion on Part 3 and there are really two points I want to comment on. The first is to commend the work of the Local Government and Environment Committee of course across the consideration of the whole bill which I have been remiss in not doing to date in the Committee stage. In particular I commend the committee on reviewing the changes that were made to this part of the bill. I thought the committee made some excellent suggestions which really have enhanced the bill particularly in the way we have made it clear now through the select committee’s recommended amendments that any person can apply for an enforcement order to a consent and the consent conditions issued by the Environmental Protection Authority. I certainly think that that will give considerable comfort to some parties who were concerned about that part of the bill initially. 
The other change to this part of the bill that I want to comment on is one of the more significant changes that I am recommending in the Supplementary Order Paper in my name Supplementary Order Paper 100 and that is to clause 125(1)(b). The bill as reported back from the select committee contains a maximum penalty of $600000 for a company for breaching the Act and through the Supplementary Order Paper in my name we are recommending that that limit be increased to $10 million. This is a sizable increase. It is more than simply moving it up a bit. It really represents a significant change and reflects I think quite rightly the severity of the potential actions in this space and the seriousness with which we as a Government and I would hope we as a Parliament would reflect the views we would take of anyone breaching this Act. 
I think that it is a way in which this House can send a message to judicial bodies coming after us who are considering the appropriate manner in which to deal with any company that chooses to come here and has scant regard for the laws this House puts in place. I think it is important that we recognise not only the type of activity that we will be dealing with in this space and in the exclusive economic zone we are fortunate in that there is a much more narrowly defined set of potential activities that we are considering and also the likely players that work in that space. It is certainly my view that it is important to set penalties that are of a size that companies of that magnitude will take notice of. 
It is certainly my intention that with a maximum penalty of $10 million we will be sending a very clear message to those companies that we expect full compliance with the legislation. We expect full compliance with the regulations. And if they choose not to act in full compliance they can expect to be dealt with harshly. So I think this is an important change and one I wanted to discuss my rationale for in this Chamber and I would hope that we get support for this part of the bill. 
GRANT ROBERTSON (Deputy Leader—Labour) 
: 
 Just to pick up where the Minister for the Environment left around the question of penalties in clause 125 of the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Bill I want to congratulate the Minister on that amendment. I think as she has noted the change here is a significant one. Even my maths can tell you that moving from $600000 to $10 million there are a lot more zeros and it is certainly something that on this side of the Chamber we are very pleased to see has been included. I think there was a feeling in the Local Government and Environment Committee and in the submissions that came in that the amounts of money that were being considered in terms of penalties simply were not adequate for the possible damage and the seriousness with which this Parliament would view such a matter so I do want to congratulate the Minister on her amendment to that particular clause. 
In the spirit of that I seek her agreement to Moana Mackey’s changes to clause 125(2) (3) and (4) which are outlined on Supplementary Order Paper 103. These are other penalties that we believe should also be increased in order to indicate the seriousness with which we would deal with these— 
Hon Judith Collins 
: Yawn! 
GRANT ROBERTSON 
: Sorry is there someone over there who is not enjoying this? No. Under clause 125—sorry to keep Judith Collins but it is only the small matter of the destruction of part of the marine environment. There is no need for the Minister to stay awake for that—none whatsoever! 
Jacqui Dean 
: Protection of the marine environment. Carry on. 
GRANT ROBERTSON 
: Both—the protection actually; that is right Jacqui Dean. Clause 125(2) covers— 
Hon Judith Collins 
: Grow up silly boy. 
GRANT ROBERTSON 
: Well no I am the one who is actually trying to make a serious point here. Clause 125(2) states: “Every person who commits an offence … is also liable on conviction if the offence is a continuing one to a fine not exceeding $10000 …”. Moana Mackey is proposing for that to be increased to $100000. Clause 125(3) states: “… summary conviction to a fine not exceeding $10000 and if the offence is a continuing one to a further fine not exceeding $1000 for every day …”. Moana Mackey is proposing that that be increased to $10000 every day as well. So these are in line with the amendments that the Minister has already proposed and I would hope that she will see fit to adopt those along with the one that she herself has proposed. 
The other matter in Part 3 that I would like to draw attention to is clause 103 “Appeals on question of law”. On this clause we believe that the Government has taken far too narrow an approach on two specific points. First is the point that appeals can only be on questions of law and not also on questions of fact and second is the place to which appeals may go. In this case it is proposed to be the High Court. My colleague Charles Chauvel has a Supplementary Order Paper that proposes amending both so that appeals can be on the questions of law and fact and also that those appeals should find their way to the Environment Court. 
There is a lack of full appeal rights in this particular law. This is one of those issues where we welcomed the Minister making this bill more consistent with the Resource Management Act in the purpose clause. We did not think it went quite far enough. Here is another example where we believe having more consistency with the Resource Management Act would be the appropriate thing to do particularly around the question of where these appeals should go. The Environment Court was the place under the Resource Management Act that drove the development of case law. It was the place in which there was further policy development as a result of the Environment Court being involved and it does seem to me that in the case of the exclusive economic zone we are going to see a significant amount of case law develop over time and that the Environment Court is the appropriate place for that to go. The question of whether or not the Environmental Protection Authority has the expertise to deal with everything is certainly one that I would raise here but more to the point I think the Environment Court has the experience through the Resource Management Act process to play a very important role here and that is the appropriate place for appeals to go. 
We also do believe that those appeals should be beyond just matters of law. That is a very limiting provision. Again these are going to be significant cases that are going to be taken here. These are going to be people who have concerns that perhaps will not be able to be dealt with through the Environmental Protection Authority processes. There will be occasions on which the Environmental Protection Authority perhaps does not have the competence in law to be able to deal with these matters. 
House resumed. 
The Chairperson reported progress on the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Bill and no progress on the Taxation (Annual Rates Returns Filing and Remedial Matters) Bill. 
Report adopted.