Crown Minerals Amendment Bill — Second Reading 
Crown Minerals Amendment Bill — Second Reading 
[Volume:610;Page:7524] 
Crown Minerals Amendment Bill 
Second Reading 
Hon PETE HODGSON (Minister of Energy) 
: 
 I move  
That the Crown Minerals Amendment Bill be now read a second time 
. I would like to thank the Commerce Committee for its detailed consideration of the bill and also all those people who made submissions to and appeared before the select committee. The bill has raised difficult issues and the committee’s careful consideration has resulted in a number of improvements to the bill as introduced. I will look at them in some detail. 
Clauses 22 to 24 of the bill remove the right to apply for a new mining licence and to vary the term of a mining licence under the now-repealed Mining Act and Coal Mines Act. Licence holders will not be entitled to compensation for the loss of those rights. The Government believes that those amendments are needed to ensure that the repealed legislation is not perpetuated and that mining licence holders who want to continue to mine after their mining licences expire move to the new regime under the Crown Minerals Act as was always intended. In 2000 the High Court held in  
Glenharrow Holdings Ltd 
 v  
Attorney-General 
 that the right of mining licence holders to apply for a new mining licence had not been extinguished. There were plenty of proceedings that followed. There were more in the High Court and further proceedings in the Court of Appeal which has now confirmed what the Government has consistently maintained—that the Minister has neither the power to grant a new licence nor to consider an application to vary the terms of a licence. 
Glenharrow Holdings Ltd has been granted conditional leave to appeal to the Privy Council. In response to issues raised at the select committee on 19 September 2002 I announced that the Government intended to propose amendments to the bill so that the removal of the right to apply for a new licence would take effect as from 5 p.m. on 19 September 2002. After careful consideration the select committee has agreed to make those recommended changes. Special provisions have also been added to ensure that the court’s final judgment in the ongoing Glenharrow Holdings proceedings is protected and that the decisions in that litigation are applied to any applications received prior to 5 p.m. on 19 September 2002 including applications by Glenharrow Holdings. 
As Minister I am well aware that the minerals industry makes a significant contribution to New Zealand and especially to certain regional economies. I am also aware that aspects of the bill have been contentious particularly with the holders of current mining licences. However it is important to note that the bill does not extinguish current mining licences. All current mining licences will continue in force until they expire. The bill will not deny mining licence holders continuing opportunities to mine Crown-owned minerals. Mining licence holders will still be able to apply for a mining permit under the Crown Minerals Act. 
Clause 5 of the bill also clarifies what the requirements are when the holder of an exploration permit wants to extend its duration. An exploration permit that had been initially granted for a term of up to 5 years will be able to be extended for a further 5 years subject to certain requirements including the requirement to give up at least half the original permit area. That “use it or lose it” requirement has been part of the regime in New Zealand for over 20 years and it is common overseas. It has become apparent that with the way the Act is currently written exploration permit holders may be able to avoid the relinquishment requirements of section 37 in a way that was not intended. They may do that by applying under section 36 instead where the terms upon which the extension are granted are entirely at the Minister’s discretion. The bill amends those provisions to ensure that exploration permit holders who have not made a discovery and who want to undertake continued basic exploration beyond the first 5 years must relinquish at least 50 percent of the permit area on renewal of the permit. 
The bill also removes the requirement for permit details to be lodged with the district land registrar because that is unnecessary and confusing. Those lodgement requirements are a throwback to the old regime under the Mining Act and Coal Mines Act under which licences included an automatic right of access to land. A fundamental difference between the Crown Minerals Act and the Mining Act and Coal Mines Act is that the Crown Minerals Act does not give a person an automatic right of access to land when he or she is granted a permit. Before a permit holder can enter land to carry out anything other than minimum impact activities he or she must reach an appropriate land access arrangement with each landowner and/or occupier. Permit holders who enter into an access arrangement lasting for 6 months or more must lodge details of the access arrangement with the district land registrar so that it can be recorded against the affected land titles. That alerts any prospective purchaser that the land is subject to a binding access arrangement. The requirement to lodge access arrangements will continue. 
I commend this bill to the House. 
Dr the Hon LOCKWOOD SMITH (NZ National—Rodney) 
: 
 This Crown Minerals Amendment Bill is very important legislation because it expunges property rights without compensation. If a Government is about to expunge property rights without compensation careful thought should go into that. I was not on the Commerce Committee that considered this bill but I have examined the commentary the report of the select committee in some detail. I note that it is a split report. I note that National and ACT members have submitted a minority report to this House and therefore the majority report is the view of the Government. Far from it being a careful consideration I find it a sloppy piece of work. I will explain over the next few minutes why that is so and why this bill should not be read a second time. It actually should go back to the select committee for the work to be done more carefully. 
This issue is so important because when the High Court looked at this issue in 2000 it was not some inexperienced judge that looked at it; Acting Chief Justice Heron looked at it. He said that property rights that existed under the Mining Act 1971 and the Coal Mines Act 1979 were not automatically expunged by the Crown Minerals Act 1991. He pointed out that there was no automatic right of renewal of a licence but he certainly argued that there was the right to apply for a renewal of a licence. That is critically important because this legislation will totally expunge that right. Under the Mining Act 1971 a licence to mine was a property right. Under the Crown Minerals Act 1991 the permits that are issued are not property rights. So these are important issues. 
Of course as the Minister of Energy has said when this matter was taken to the High Court again Justice Chisholm appeared to give a somewhat different decision. But if we look at the report of the Government members of the select committee we see that it states: “Justice Chisholm disagreed in the second  
Glenharrow 
 decision with the proposition that mining licence holders continue to have a right to be granted a new licence for the following reasons:”. Justice Heron in the first case did not say they had a right of renewal; he said they had the right to apply for one. There is a big difference. 
If we look at the reasoning of the Government members of the select committee as stated in the majority report to this Parliament which we are debating in this second reading we see that it is absolutely flawed. The Government members of the select committee said that Justice Chisholm in the second court hearing made the decision that licence holders do not have a right to be granted a new licence for first the following reason: “if the court applied Glenharrow’s interpretation this would mean mining licences can be perpetually renewed”. OK but in the previous decision Justice Heron did not say they had a right to be granted a renewal; he said they had a right to apply for one. The first argument of the select committee is totally flawed because the issue is not about licence holders having the right to be granted renewals for perpetuity; the issue is whether they had a right to apply for a variation in the term of their licence. 
The select committee then goes on to say: “the language used in section 77(2) of the Mining Act 1971 suggests the Minister has the right to decline an application suggesting that there is no automatic right of renewal”. That is exactly what Justice Heron said in the first court decision and gives no argument why a licence holder should not have the right to apply for a variation on his or her licence term. The select committee then goes on to say: “The effect of the second judgment”—the committee having given those two reasons for Justice Chisholm’s decision—“is that there is now a court order saying the Minister of Energy cannot grant a new mining licence to Glenharrow.” What sloppy thinking! Of course people cannot apply for a new licence under a repealed Act. No one is suggesting that. The issue is about a variation to the term of a licence and that is not an absolutely new licence. 
That is why my view is the select committee has not thought through these issues carefully at all. Its own reasoning in the different paragraphs of its argument does not stack up. The committee points out that section 77(2) of the Mining Act 1971 suggests that the Minister has the right to decline an application and that there is no automatic right of renewal—which is perfectly fair—then goes on to say that the effect of the second judgment is that there is now a court order saying the Minister cannot grant a new licence to Glenharrow Holdings. There is no logic in the analysis by the select committee at all. 
It gets worse. The select committee states also in its reasoning that “the concept that a new licence can be granted is not reconcilable with the scheme of the principal Act and the Ngai Tahu (Pounamu Vesting) Act 1997 particularly the transitional provisions.” It says that on page 3 of the report. On just the next page the select committee in referring to the Ngai Tahu (Pounamu Vesting) Act 1997 says: “The Act includes a specific provision that existing privileges and the rights and obligations of holders of existing privileges are not affected by this vesting.” That is totally at odds with the argument the select committee has given on the previous page. 
This is sloppy work by the select committee. The Government members of the Commerce Committee should be damned well ashamed of this report. This is a serious issue. Property rights are at stake. If the matter were clear-cut we would not have two senior justices in our High Court including an Acting Chief Justice giving decisions that superficially appear at odds with each other. I am not sure that they are totally at odds because both talk about there not being an automatic right of renewal. They both talk about that. The fact that the issue has been to the Court of Appeal and may in fact end up at the Privy Council shows there are important property rights at stake here. The Government members on the select committee should have done a better job in analysing the serious issues involved. 
It even goes on. The select committee acknowledges: “In the second  
Glenharrow 
 decision Justice Chisholm said that Ngai Tahu does not have the power to veto the variation application.” Again that is at odds with what the report says on the previous page. All I can say is I commend the work of the ACT and the National members of the select committee in making their minority report to this Parliament as it points out the serious issues involved in this case. What I have just quoted to Parliament from the Government members’ own report of their work on the select committee shows—far from what Minister Hodgson just said about careful consideration—the sloppiness of their work. Their report shows they have got themselves totally confused over the key issues of the right to apply for a variation to the term of a licence compared with an automatic right of renewal. 
We clearly have a shambles here—an absolute shambles. We have a situation whereby although this legislation protects the position of holders of mining licences who applied for variations to terms or renewals prior to 5 p.m. on 19 September 2002 there are a whole lot of licence holders—an unknown number—who have not done that because Crown Minerals told them they had no right to do it when in fact according to Justice Heron they may well have had a right to do it. It is a disastrous situation. A Crown agency told licence holders they could not apply for renewals and they did not apply; but they could have applied and if they had done so they would have been protected by this bill. Because they were given bad advice by a Crown agency they did not apply and therefore they are locked out by this bill. Their rights are expunged. 
Worse still this legislation will force everyone into the new permits system. The select committee was told—and this is horrific—that the officials could not tell the committee if and when the Department of Conservation had ever granted access to its lands for the purpose of mining since the 1991 Crown Minerals Act came into effect. This is serious. Property rights are at stake and the future of New Zealand’s mining industry is at stake. That is why National is totally opposed to this shonky legislation. 
CLAYTON COSGROVE (NZ Labour—Waimakariri) 
: 
 I stand to support this bill as one who worked in a previous lifetime for what is still New Zealand’s largest gold mining company that of Macrae’s Mining Co. GRD Macraes. It has had various forms over a number of years. 
Hon Ken Shirley 
: You had better get ready to go back. 
CLAYTON COSGROVE 
: That is rich coming from a 4 percenter who lost his seat. Instead of a lot of hot air and— 
Jill Pettis 
: Talk about digging. 
CLAYTON COSGROVE 
: —digging his own grave—instead of some of the dramatic extracts we have heard from Opposition members I think it is pertinent to look at this bill for what it is. The Crown Minerals Act provides for the allocation and management of permits for Crown-owned minerals and the Crown Minerals Amendment Bill makes a number of amendments that in my view will improve the management and allocation of rights to Crown-owned minerals. 
We should make the point in this debate that the mining industry makes a huge contribution to this economy. When I worked in the industry some years ago I think the figures showed that gold alone was worth quite a bit more than our wine industry for instance. But because it is a reasonably controversial industry because it involves digging large holes in the ground and because it raises the hackles of some the economic and social contribution that it makes around the country is often lost. For instance GRD Macraes has operations on the West Coast and Otago and I would say that in its lifetime it has put several hundreds of millions of dollars into Dunedin and the Otago community alone both directly and indirectly. So as we go through this bill I think it is worth our noting the huge contribution that the industry makes. 
The bill will address issues that have arisen as has been previously mentioned as a result of a recent High Court decision concerning the transition from the previous regime under the Mining Act 1971 and the Coal Mines Act 1979 to the Crown Minerals Act 1991 regime. Effectively this bill removes the right of licensees to extend or renew their mining licences under the now repealed Mining Act and Coal Mines Act. It also clarifies the requirements for extension of the duration of an exploration permit providing that a permit remains current while an extension of its duration is being processed. I think the key point despite the bluff and bluster of some members opposite that should be reiterated is that the proposed amendments will not in any way be retrospective and therefore any mining licence or variation applications received before the amendment is made must be accepted and processed. 
The National and ACT parties have put a minority view. I acknowledge Dr Lockwood Smith’s view. I did not sit on the select committee that examined this bill but I do know the industry relatively well. As I say the industry makes a huge contribution to our economy. This bill will help I think to shed some light and some clarity on the permitting regime. What I learnt from my years in the mining industry is that one of the biggest battles the industry has is getting variations on permits. I mean no disrespect to our friends in Crown Minerals but one has to jump through huge bureaucracies to dig a hole in the ground extract a mineral and process it. I believe that this bill will add some clarity. I think there are a few others in this House who have worked in the industry such as Damien O’Connor who comes from the heartland of mining the West Coast. I ask members opposite and others to look closely at this bill to do away with the hot air and the dramatic extracts and actually to go through the bill and make their points. The proposed amendments will not be retrospective; therefore any mining-licence or variation applications received before the amendment is made must be accepted and processed. 
I support the bill. As I close I say again that the industry provides an immense number of jobs and dollars for the economy. It is considered by some to be a messy industry and a controversial industry and I know that some in this House are bitterly opposed to it. I am not one of those members. I am one of those members who think we can have a robust minerals industry— 
Hon Ken Shirley 
: Tell that to the Minister of Conservation. 
CLAYTON COSGROVE 
: —that is not exploitative of our environment. We can have business and can preserve the environment as long as there are tight rules. The genius to my right will tell us in his speech the secret to his 4 percent success rate. That member said: “Tell that to the Minister of Conservation.” Well I believe that we can have a robust mining industry but I also believe that we have to have very very tight environmental laws and a very very tight environmental framework so that if the industry breaks the rules the industry gets nailed. As with any industry—manufacturing farming or any industry around this country—it must adhere to the rules. I am proud to have been associated with a company that I believe does adhere to the rules a company that has taken a quite unique and flexible view to mining that has engaged with stakeholders right around the country that has attempted just to get on with the job and that makes a huge contribution to this country but does not blow its own trumpet. That attitude should be acknowledged. I commend the bill to the House. 
BRENT CATCHPOLE (NZ First) 
: 
 I would like to start by acknowledging Lockwood Smith’s comments. He is absolutely right; this particular bill expunges property rights. It not only does that but it also does it in a rather peculiar way based on one particular case and one particular issue—that is the case of the greenstone mining company  
Glenharrow Holdings Ltd v Attorney-General and Te Runanga O Ngai Tahu 
. Ngai Tahu received the land and the resources from the Crown under the Ngai Tahu (Pounamu Vesting) Act. That particular Act was fair enough but the Government forgot to include some very important clauses. The case arose out of the Crown Minerals Act that repealed the old 1971 mining Act and the different treatments of mining licences and permits. The transition period between the two Acts did not successfully deal with the change of ownership of land from the Crown to Ngai Tahu. 
The trouble was that the rights that existed for greenstone miners were not extinguished by the Ngai Tahu (Pounamu Vesting) Act. A grandfather clause in that Act stated that the Act was not to affect an existing privilege as defined in the Crown Minerals Act. The Crown Minerals Act also contained a grandfather clause stating “… every existing privilege shall continue to have effect after the date of commencement of this Act as if the Act which applied to the privilege before that date continued in force …”. 
The problems arose as a result of the court case which was in front of Acting Chief Justice Heron one of the top men in the legal system. He found in favour of Glenharrow Holdings in supporting an application for the renewal and variations of its mining rights. It was not a case of renewing them but the rights to apply. I believe the select committee got it wrong in the paragraphs that Lockwood Smith read out. He was absolutely correct—it was not a case of Justice Heron getting it wrong but of the select committee getting it wrong. 
The Crown Minerals Act is essentially anti-mining and anti-private enterprise. It does not recognise miners’ needs for security. Mining industry leaders say that the effect of the appeal court judgment will be to close mines and effectively it will be a disincentive to invest in mines. The mining industry will have less capital to be able to explore. It will also affect the Government-owned coal mine Solid Energy. Its rights will come up for renewal and this particular bill will affect it. When that issue arises the Government will have to deal with it as well. 
Shane Ardern 
: It will simply introduce its own legislation for that. 
BRENT CATCHPOLE 
: Yes it probably will. It is interesting to note that as the appeal court decision stands the Government will not have to pass this retrospective legislation—Associate Minister Harry Duynhoven ensured that. He issued a press statement—and I have a copy of it here—that basically took away all rights for miners to reapply for their licences and extension of their licences. He did so by issuing the statement around midday on the day and giving them 5 hours to apply. It states: “Anyone who applies for a new licence or a variation to the terms of an existing licence after 5 p.m. today”—that is 19 September 2002—“will no longer be covered by the Acts that were repealed in 1991.” Does that not sound very familiar? It is basically a parallel to the late Rob Muldoon’s Government by press release—in which case he was taken to court. 
 Governing by press release is a great example of this Government’s contempt for our parliamentary process. The Government is very fortunate that the appeal court decision has saved Mr Duynhoven and his Government from a very embarrassing court case because there would have been one for sure. 
In summary I would like to reiterate Lockwood Smith’s comments about the select committee getting it wrong—that is absolutely right. The fact is that this legislation is no longer necessary because Harry Duynhoven’s press release basically stopped everybody from reapplying and reasserting the property rights they had prior to that press release. Unfortunately this Government does not care about people’s property rights. All it cares about is trying to close gaps in the legislation that it had created and left simply to avoid its responsibilities. For us sadly this bill is a shambles. New Zealand First cannot and will not support it at this stage. 
GORDON COPELAND (United Future) 
: 
 United Future had initially hoped to be able to support the Government on this bill. However as it stands it does not fit into the overall policy framework of our party in relation to its interface with the Conservation Act. I will endeavour to explain why. This bill is an amendment to the principal Act which is known as the Crown Minerals Act. The principal Act sets out in section 66 to provide that where access arrangements have not been agreed between a mining permit holder and a private landowner then by way of Order in Council the Government can intervene on the grounds of public interest by referring the matter to an independent arbitrator. 
The general law concerning such agreements is also quite clear—namely that a full fair and adequate sum of money must be paid to the landowner so that he or she is compensated for loss of the use and enjoyment of the land in question. Other conditions could also be imposed on both parties under the Resource Management Act whereby for example they would have to address issues relating to environmental damage reinstatement of the site following closure of the mine etc. Those are the general rules and they are normally thrashed out between the parties until agreement is reached. However a situation could arise where the owner of the property refused to deal with the mining company at all or only on conditions that were grossly unfair and unreasonable. 
A different situation however might arise when we are talking about valuable minerals such as oil gas gold or uranium. In such cases it might well be in the public interest that the matter go to compulsory arbitration so that both sides of the issue can be coolly and objectively assessed and a decision reached that is consistent both with the private property rights of the landowner concerned and the public interest. That is when section 66 kicks in to create a win-win situation for everyone. 
However—and this is where the essential difficulty arises for United Future—any land held or managed under the Conservation Act is specifically excluded from those provisions. That in our view is an untenable provision. It has to be remembered that 33 percent of all New Zealand land is controlled by the Department of Conservation under the Conservation Act and that includes virtually all New Zealand rivers lakes and streams. It also includes everything from pristine conservation areas and National Parks to a variety of rubbish land. 
In relation to that land a completely different set of rules comes into play. The Conservation Act established the Minister of Conservation as the advocate for conservation. He does that through 13 regional conservatories each of which has a conservation advisory board made up of people nominated by the Minister. That is all well and good but if the Minister is personally the advocate for no less than one-third of New Zealand’s land area plus most of its rivers lakes and streams the question needs to be asked to whom exactly is he or she advocating? Is it not true that in the normal course of events an advocate goes to a court and argues his or her case before a judge or an arbitrator? So who is the judge or the arbitrator under the Conservation Act? Sad to say it is the Minister of Conservation so under that Act he or she acts as both judge and jury. Does that constitute due process? 
But wait it gets worse. The public of New Zealand the mining companies the energy generating companies and tourism operators never get to hear exactly what the Minister in his or her role as advocate gets to say to the Minister in his or her role as sole judge and there is no right of appeal. That lacks common sense transparency and balance. As far as United Future is concerned it is therefore unacceptable and a matter that needs to be urgently addressed by the Government. 
I want to draw the attention of this House to just how serious this problem is because we are talking about a major systemic problem in the way the Conservation Act has been set up. Since 1987 no new hydro-generation projects or tourism facilities such as hotels have been permitted on that one-third of New Zealand that is controlled by the Department of Conservation and the Minister of Conservation. Furthermore to quote from the minority National and ACT view on this bill officials were “unable to advise the committee if and when the Department of Conservation has ever granted access to its lands for the purposes of mining since 1991.” Someone said to me that that is not an accurate statement. If it is not accurate why was it in the report? If it is not accurate let us have the accurate information from the Government. So I challenge the Government—if that statement is inaccurate let us have a list of all of the mining projects that have been granted on conservation land since 1991. 
All of this all amounts to a gigantic shooting of ourselves and our economic future in the foot. If the Conservation Act had been enacted at an earlier date we would have no Manapouri hydro scheme no Hermitage no tourism facilities at Mount Cook no visitors’ centre on Mount Egmont etc. etc. As matters stand at present the reality is that international mining companies are bypassing New Zealand and heading off to places like Western Australia where there are proper transparent processes manuals and policies in relation to mining on conservation land. If we are to attract such people back to New Zealand and maximise the benefits to our economy of mining activities then in United Future’s view we must review these matters so that the system provides firstly certainty of process rather than outcomes; secondly fairness; and thirdly transparency. 
I appeal to all parties in Parliament in saying that we must endeavour to create a situation where on the grounds of public interest and as with privately owned land individual projects on Department of Conservation land can be taken to an independent arbitrator judge or similar. That would enable all sides of the arguments including those relating to conservation to be taken into account in a proper structured and above all transparent manner. I am convinced that in many instances we would be able both to allow mining activities to proceed and in conjunction with those activities to add net benefit to the conservation estate itself—in other words it would be a clear-cut win-win situation for all and in particular for the New Zealand economy and the New Zealand people. 
Accordingly I renew my request to the Government that the provisions of the principal Act as they relate to private land be extended—and I know another bill would probably be necessary—to also embrace land held or managed by the Department of Conservation. I would like to see the Government undertake a comprehensive review of the overall operation of the Act so that we at last have proper manuals procedures and policies in relation to mining on the conservation estate. Until that request is acted on United Future is left with no option—in the interests of balance and common sense—but to oppose this legislation. 
Hon KEN SHIRLEY (Deputy Leader—ACT NZ) 
: 
 I would like to commend the member who has just resumed his seat Mr Copeland for a very good speech. He made some excellent points. In assessing the situation here I declare ACT strongly opposes this bill. National also opposes it—and we had a very good speech from Lockwood Smith—as does New Zealand First. It appears that the minority Labour - Jim Anderton coalition Government is dependent on the Greens to pass this legislation. It is green legislation. It is anti-mining legislation as the previous speaker so eloquently reminded us. 
Many people do not realise the size and importance of the mineral mining industry in New Zealand. I believe it is the quiet achiever of the New Zealand economy. The Minister whose name appeared on the bill Harry Duynhoven put out a press release just last week stating that for the first time mining export receipts have surpassed $500 million in a single 12-month period. That is fantastic but the untapped potential is enormous. The Institute of Geological Survey and Nuclear Sciences put out a very good report in 1999 which I am sure Mr Copeland is very familiar with. It estimated that at today’s prices there is $86 billion worth of mineral wealth in 16 minerals alone in New Zealand. We know about the GRD Macraes mine at Macraes Flat. 
Clayton Cosgrove 
: Have you been there? 
Hon KEN SHIRLEY 
: Yes I have and I hope the member has too. It is a very good enterprise. 
Clayton Cosgrove 
: I worked for them. 
Hon KEN SHIRLEY 
: I know the member used to work for that company; he used to be based in Perth and worked for it. He used to come and lobby me when I was in the forestry industry. But what is he doing? He is sitting on the fence here and trying to have a bob each way. If he went back to the mining industry and told it he was supporting this bill he would be kicked out of the office. There is no doubt about that. 
The mining industry has a huge potential in this country. It is estimated that there is $30 billion worth of gold alone in the Hauraki field. And what has this Government and also the previous Government done? It has closed down the whole of the Hauraki field to mining. The problem we have in this country is that 70 percent of our mineral wealth is within the Department of Conservation estate. That department is meant to be the Department of Conservation not the “Department of Preservation”. It is meant to be the steward of the conservation lands that we hold. Modern mining techniques can have a minimal impact on the environment and the wealth generated can give a net conservation benefit many times greater than any impact that mining may have. We are not a rich country and we cannot afford to turn our back on $86 billion of potential wealth but that is the curious situation we have got into. 
I note from the Commerce Committee’s report that the committee actually asked the officials whether they could give it one example of a case where the Minister of Conservation in exercising his powers under the Crown Minerals Act—in which essentially he is given veto rights without any right of appeal—has since 1991 granted access to the conservation estate to a mining operation in New Zealand. They could not find one example of a case where the Department of Conservation through its Minister had allowed access for mining. 
Of course we have the Pike River coalfield which has all its resource consents. But what is the problem? The Department of Conservation will not grant access for mining and the Minister of Conservation Chris Carter sits on his chuff drags his feet and tries to wait it out when there is a tremendous amount of wealth and jobs to be created by that coalfield alone. Hopefully he will be forced into making a positive decision on that issue. It is overdue already and I hope he is listening—wherever he might be—because that is certainly one project that should go ahead. 
I come back to the minority report of the select committee. I was not a member of the committee but an excellent minority view is presented in the commentary on the bill. The High Court decision of Justice Heron made the outcome quite clear. Then there was the case of  
Glenharrow Holdings Ltd v Attorney-General 
 and the decision in that case upheld the property rights held by miners who had gained licences under the Mining Act. It further made it clear that those licensees were able to continue to apply for extensions to their licences gained under that Act. Then what happened? It is recognised that the bill does protect the court-won gains of Glenharrow Holdings specifically protecting its licences and those of a number of other people who had applied for an extension to their licences prior to the decree that was issued by the Hon Harry Duynhoven on 19 September 2002. 
I put it to the House that that decree was ultra vires. The Minister made a decree that effectively retrospectively stripped away property rights. We know that the Hon Harry Duynhoven is the Associate Minister of Energy with delegated responsibility for mining and I know that when he got that appointment the Hon Pete Hodgson made the point that Harry Duynhoven was in charge of everything under the ground. The question now is whether Harry Duynhoven has a right to sit in this House. Therefore what is the date on those proclamations and decrees issued by Harry Duynhoven? Are they legal in law? What is their standing? I would like someone from the Government side of the House to clarify that point. This issue must be a huge embarrassment to the Government. Not only was there a retrospective decree by the Minister stripping away property rights that had been protected by the courts but we now have the spectre of a question of whether that Minister was eligible to hold a ministerial warrant by virtue of the fact that under the Electoral Act Harry Duynhoven is probably not entitled to be a member of Parliament. 
Section 55 of the Electoral Act is very clear. It has been reviewed by Parliament about four times and this House has deliberately and consciously retained sections 55(1)(b) and (c) of that Act in all of those reviews. The Act states quite clearly—spells it out quite clearly—that a member cannot swear allegiance to a foreign principal State. That is the situation and Mr Duynhoven fails that test. Quite frankly I do not think this is a matter for the Privileges Committee to determine; I think that is what the Act states. The law cannot just be changed as a convenience to a member. The law is the law. We might not like it. Certainly we concede it is unfair—and I do that—but the law is the law. If Parliament—the body that passes the laws—does not uphold the law how can we expect the public to have faith in our courts and our lawmaking institutions? This issue is an inconvenience and an embarrassment—it is—and Mr Duynhoven is a good colleague. We all acknowledge that but that is the law and we cannot just change the law in that way. Clearly this legislation is bad. I believe the decree made by Harry Duynhoven is ultra vires and I would like someone from the Government side of the House to try to clarify that point. 
In conclusion I make the point again that we should encourage mining in this country. In the early days of our pioneering era following European settlement mining gave a huge boost to this country’s economy. Sure a lot of damage was done; it was very rough. But if one goes to the countryside today one finds those scars cannot be seen; in many places they have been totally healed. With modern techniques mining can be carried out in a very very environmentally responsible manner. I repeat again that there is $86 billion worth of wealth in this country in 16 minerals alone 70 percent of which is in the Department of Conservation estate—and the Minister of Conservation under successive Governments has denied access for mining every time it has been sought. We could not be given one example of a case where the department has allowed access to the public conservation estate for mining. 
SHANE ARDERN (NZ National—Taranaki - King Country) 
: 
 I am pleased that the member for Whanganui is quite happy to see me take a call. That member has not turned up to a single “flatulence tax” meeting anywhere in the electorate despite the fact that there have been many of them up and down the country. 
We are here to talk about the Crown Minerals Amendment Bill and I intend to do so. Once again I say it is an outrage to have a socialist Government that cares nothing for property rights development potential jobs or anything else that makes the country work. In fact the old cliché “If it moves tax it; if it keeps moving tax it; and if it stops moving subsidise it to get it moving again.” could never apply more than it does to this bill. As my colleague said the bill itself—or the work that was done in the Commerce Committee—is very sloppy. All that I need to do is to refer Government members to the first reading debate when the Hon Paul Swain said— 
Jill Pettis 
: I raise a point of order Mr Speaker. I ask the member to withdraw the statement he made about my not having attended any public meetings in my electorate on the “flatulence tax” issue. I have not attended any because there have not been any. 
The ASSISTANT SPEAKER (H V Ross Robertson) 
: That is an issue for debate. 
SHANE ARDERN 
: I raise a point of order Mr Speaker. The member has inadvertently misled the House in this sense: yesterday I was at a public meeting in the city of Wanganui on the subject of flatulence. The meeting had been advertised in the  
Wanganui Chronicle 
. If that was not a meeting in her electorate— 
Hon Ken Shirley 
: The member was invited? 
SHANE ARDERN 
: I am sure she probably was invited but if she was not I will take her word for that. However the fact is that she may have misled the House with her statement. 
The ASSISTANT SPEAKER (H V Ross Robertson) 
: All members are honourable members. Their word is their bond and if it is found to be otherwise there are other courses of action. 
SHANE ARDERN 
: I raise a point of order Mr Speaker. I hope that has not come off my time. 
The ASSISTANT SPEAKER (H V Ross Robertson) 
: No it has not. 
SHANE ARDERN 
: To get back to the bill I point out that it is a sloppy piece of work for the reason that in the first reading the Hon Paul Swain said it would not be retrospective. That is what he said. Yet that statement is clearly contradicted by clauses 22 and 23. Those clauses absolutely contradict that. The wider constituency in the mining industry was led to believe by a Minister of this House that the bill would not be ultra vires. That is what the industry was told. Yet when we look in the bill we see it is ulta vires. 
The select committee in the minority report also stated it had asked the officials of the Department of Conservation whether they could advise the committee as to whether the department had ever granted access to its lands for the purposes of mining since 1991. That is a simple enough question to answer; there would be no difficulty in finding an answer to that if the officials went back through their records. So they went back through their records and found that the answer was no access has never been granted. The Hon Ken Shirley made a very good point when he said that there is something like $86 billion worth of minerals tied up in New Zealand at the moment under the ground and that most of that is on Department of Conservation land. 
How is it that the Government goes around the country talking about growth jobs and lifting us back into the top half of the OECD yet brings to this House legislation that runs like jackboots right over the top of all those objectives and over property rights? How can that be? I invite a member on the Government side of the House to take a call and fill me in on that. Maybe I have missed a bit somewhere. Maybe the Government has been talking about something that we have not caught up with. My colleague Pansy Wong at the time that this bill was being promoted said that the National Party members of the select committee were absolutely outraged that the bill absolutely ignored the High Court judgment—the judgment of the Acting Chief Justice at the time Justice Heron. He was the Acting Chief Justice not somebody who was just a new appointee and who may not have been up to speed with the issue. This bill totally ignores that judgment. It has not taken it into consideration at all—not under any circumstances. 
This bill goes right across property rights and right across what the High Court found—right across what that finding stated about property rights with regard to the 1971 Act—and it brings us to a situation where the only conclusion that those in the mining industry can come to is that this Government cannot be trusted. We cannot trust it. Whatever it says it will not do. Regardless of what the issue is the Government will rule over the top of it because there may be a fringe group out on the hard left that the Government needs to support it in a vote just like the one we have in this House today. It is interesting to note that at last United Future has taken a stand and said that it will not support this legislation which is not good for growth or for the things that United Future was led to believe that this Government would support. Therefore United Future will not support this bill. Well what do we know? We are back to Jim Anderton and the Greens—back to that team again. We will see some fostering of friendships there in the next few days because Labour will need those votes more and more over the months to come. 
This bill also flies right in the face of what international experience shows us. I was recently away at a conference in Western Australia where at a town called Karratha about 1500 kilometres north of Perth $10 billion worth of ironsand per year is extracted and exported to Japan mainly. At the per tonne price that the Western Australians are paid for their ironsand that is billions of tonnes of material. We would think that that would have a huge environmental impact. We should think about how they manage that in a way that will not have an everlasting totally devastating impact on the Western Australian landscape. 
The Government members on the opposite side of the House should hop on a plane—instead of flying to Fiji for their usual junket away—and go and look at that. 
David Benson-Pope 
: Careful! 
SHANE ARDERN 
: Careful about what? Those members should hop on a plane and go and have a look. They should investigate what the Western Australians do there and look at the Australian law. The Western Australian Government is a Labour Government as well. I tell those members to go and see what the Western Australians do. They will find that Western Australia’s economy is strong robust and growing faster than New Zealand’s because Western Australia has sensible laws. Employment in a place like Western Australia has strong growth. The place is going ahead and prospering on the back of a commodity—ironsand—and is doing so in a way that protects the environment. 
Here we have members on the Government side of the Chamber who carp away at me because they do not like what I am saying. Yet they take absolutely no notice of those international examples that are there for them to go and look at. Why did the select committee not have a look at that before it came back to this House with stupid legislation that is retrospective that runs like jackboots over the top of property rights that brings no clarity to those involved in this industry and that gives them no faith that this Government will protect them in any way at all let alone encourage them. Why does that member who has been yelling at the top of his voice back at me not go and talk to the Department of Conservation about how many permits have been allowed? Why does he not do that? Maybe the member will take a call and answer those questions after I have completed my speech but I doubt it. 
At the moment $500 million dollars per annum of exports come from our mining industries and there is the potential for that to grow 10 times. This Government is standing in the industry’s way as it does with most things that are profitable most things that potentially could help it to carry out the social programme which it wants to carry out most things that would create jobs most things that earn revenue and most things that are sustainable. 
A party vote was called for on the question  
That the amendments recommended by the Commerce Committee by majority be agreed to. 
Ayes 62 
Labour 52; Green Party 8; Progressive 2. 
Noes 55 
New Zealand National 27; New Zealand First 13; ACT New Zealand 7; United Future 8. 
Question agreed to. 
A party vote was called for on the question  
That the Crown Minerals Amendment Bill be now read a second time. 
Ayes 62 
Labour 52; Green Party 8; Progressive 2. 
Noes 55 
New Zealand National 27; New Zealand First 13; ACT New Zealand 7; United Future 8. 
Bill read a second time.