Clendon David: Exclusive Economic Zone and Continental Shelf (Environmental Effects) Bill — First Reading 
Text is incorporated into the Bound Volume 
Clendon David: Exclusive Economic Zone and Continental Shelf (Environmental Effects) Bill — First Reading 
[Sitting date: 13 September 2011. Volume:675;Page:21221. Text is incorporated into the Bound Volume.] 
DAVID CLENDON (Green) 
: 
 Kia ora Mr Deputy Speaker. Kia ora koutou. The Minister for the Environment in his opening remarks quite rightly pointed to the fact that the Greens will support the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Bill being referred to a select committee. That is a decision we made after some considerable thought. It was quite a finely judged decision I have to say. We are committed to supporting this bill being referred to a select committee because some good and positive steps are proposed in it. It is however a curate’s egg of a bill: it is excellent in parts but equally there are some very unsavoury elements that we would need to see excised amended or added to in order for our support to go beyond the select committee process. 
We have long acknowledged that there is a considerable gap in our legislative and regulatory frameworks to the extent that for example there is no requirement currently for any environmental impact assessment of activities that seek to exploit the seabed in the exclusive economic zone. Under the current regime of course the Resource Management Act covers matters out to the territorial sea. Beyond that other than legislation around shipping navigation and fishing there is a significant gap in our legislative framework due to a whole host of historic and other reasons we will not undertake to encompass here. We see considerable value for example in the establishment of a legislative framework. 
We are fortunate—and I am sure the Minister will acknowledge that we are fortunate—to have a very substantive independent paper prepared by the Environmental Defence Society and published earlier this year under the title  
Governing our Oceans. 
 We wholeheartedly endorse a number of recommendations from that paper. Not the least of those is the call for a royal commission of inquiry to undertake a comprehensive review of all of the existing mechanisms of international best practice and the current legislative framework including the territorial sea the exclusive economic zone and the continental shelf. For reasons of history and convenience we treat those as separate and distinct but in a sense—physically and certainly ecologically—we are talking about a continuum. There are no brightlines between those three zones. We think that any management framework and any legislative framework need to acknowledge that the separations are matters of convenience not reality. 
We entirely support the necessity of giving a level of environmental protection to the exclusive economic zone sooner rather than later as the Environmental Defence Society has indicated. So we support in principle the establishment of some governance prior to that more comprehensive review and inquiry being undertaken. We do though have serious reservations about some of the content of this bill some of the attitudes and assumptions that underpin it and some of the absences—some of what is lacking—from the bill. We are particularly concerned to see the emergence once again of the word “balance” which we have come to understand is a coded word shall we say for an unwillingness to engage with a notion of absolute environmental bottom lines. We must insist on some absolute environmental bottom lines if we are genuinely interested in environmental protection. 
Anyone who has read the Government’s recently released energy strategy will know that in terms of this so-called balance the Government clearly expresses a preference. It would tilt the balance if you like in favour of economic development which is designed to attract foreign investment. We are told it will potentially generate a $13 billion to $15 billion bonanza. 
Clause 61(2)(a) of the bill says that the Environmental Protection Authority may “grant an application … if the activity’s contribution to New Zealand’s economic development outweighs the activity’s adverse effects on the environment;”. Anyone persuaded by that chimera—that illusion—of a $14 billion to $15 billion bonanza awaiting us in seabed resources might be persuaded to ignore the very real environmental and social dangers and costs. It is notoriously difficult to do any sensible assessment of the potential value of exploitation of a resource. It is equally difficult to put figures or some sort of value on environmental quality and environmental protection. These are some of the issues that I say this bill avoids rather than engages with. 
A recent Cabinet paper pointed out that part of the reason for this bill is that the exploration industry is concerned about a lack of certainty and regulatory process that could affect their considerable long-term investment. A point was made that the reputational risk to companies that cannot demonstrate compliance with high environmental standards could compromise their willingness to invest or indeed their willingness to participate. In accepting that there might be a legitimate concern I suggest that those companies should be careful of what they wish for. Given that we are talking about what the industry refers to internationally as frontier areas and given the extraordinarily high risk and the various dubious assessments of environmental or economic return any organisation that was genuinely committed to long-term environmental protection would have no choice but to deny or to refuse any of the sorts of exploitation deep-water drilling and the like that might otherwise be mandated. 
The Environmental Protection Authority was established against the opposition of the Greens. We opposed its establishment because it was not an independent agency. It is a Crown agency for the purposes of section 7 of the Crown Entities Act and as such is subject to direction by the Minister. We acknowledge that clause 22 of this bill seeks to remove the ministerial option of directing the authority to fulfil Government policy one way or another. We can applaud that provision. Unfortunately any good intention of that provision is seriously undermined by clause 62(4) which denies the agency the right to impose any conditions on a consent approval that have previously been prohibited or vetoed by regulation. In other words it allows the Minister a back door to ensure that the authority is constrained in what conditions it might place on consents. As I say that effectively undermines the bill’s apparent good intentions. 
Rather than taking this very convoluted approach of giving a little bit of power to the Environmental Protection Authority and then seeking to limit its powers we challenge the Minister to actually assign the higher status of independent Crown entity to the authority as he indicated he might do in a speech earlier this year. That would clearly give the authority the mandate—the authority—that an organisation absolutely needs if it is to fulfil its role under this proposed legislation. 
We are told that the Environmental Protection Authority will monitor compliance and be responsible for enforcement. My question is where within the authority currently it has the capacity to do that. In respect of an offshore drilling rig in deep water for example I would be surprised if the authority inspectors—if we had any—got access to that site through any other means but the good officers basically hitching a ride with the oil company. That suggests that in practice it would be very difficult for the agency as it currently exists to do any sensible management monitoring of compliance or enforcement of anything that might come under this bill. 
The bill talks at some length about taking a cautious approach; it encompasses effectively the precautionary principle without actually using those words. Again it almost seems to avoid coming to grips with the precautionary principle which is well acknowledged well proven and has traction nationally and internationally as a concept and as an application of that concept. We wonder why there has been an attempt to simply talk about taking a cautious approach to decision making rather than being more explicit about applying the precautionary principle. 
The matters to be taken into account by the Environmental Protection Authority include a whole host of things including the protection of biological diversity and the protection of rare and vulnerable ecosystems. My final comments are that the authority in order to fulfil this proposed role will need a remarkably better understanding of and body of knowledge about the deep-water marine environment. We know very little about that environment and this bill does not address it. We look forward to further debate on the bill.