Mackey Moana: Exclusive Economic Zone and Continental Shelf (Environmental Effects) Bill — In Committee 
Text is incorporated into the Bound Volume 
Mackey Moana: Exclusive Economic Zone and Continental Shelf (Environmental Effects) Bill — In Committee 
[Sitting date: 16 August 2012. Volume:682;Page:4513. Text is incorporated into the Bound Volume.] 
MOANA MACKEY (Labour) 
: 
 I want to come to the Supplementary Order Paper in the name of my colleague the Hon Parekura Horomia Supplementary Order Paper 96 and congratulate him on the work he did which relates to the clause around the Treaty of Waitangi. What was very disappointing at the Local Government and Environment Committee was that there had been absolutely zero consultation with iwi on this legislation in the development of the bill. It really surprised the members on the Opposition side of the select committee that on a piece of legislation— 
Simon O’Connor 
: Have you consulted iwi about this speech? 
MOANA MACKEY 
: Yes Parekura Horomia has consulted iwi in the drafting of this. I mean look at that: “Have you consulted iwi in the giving of this speech?”. What a ridiculous statement. This is a piece of legislation that iwi are actually enormously concerned about. It might be a joke to Simon O’Connor but the fact is that the Government should have consulted with iwi in the development of this piece of legislation. I mean he only has to look up the East Coast at NgatiPorou to Te Whanau-a-Apanui who are deeply concerned about the implications of this legislation for their iwi for their livelihoods— 
Paul Goldsmith 
: Yeah well they should be concerned about getting some jobs as well. 
MOANA MACKEY 
: Because they will get jobs? Petrobras has said there are no jobs on the East Coast actually Mr Goldsmith OK? So you can keep trotting out that same old line. I welcome any National MP to front up on the East Coast because no National MP has including our local MP on this issue. I welcome all these National MPs who suddenly have so much to say about iwi—so much to say about how great it is going to be for iwi on the East Coast—to come at any point because we have been waiting for a National Minister or MP to come up and have that debate and to provide the information and perhaps allay some of the concerns that iwi have around it. But when you look at the attitude in this bill of not consulting with iwi—like when it came to the permit that was given to Petrobras on the East Coast again and iwi heard about it on the 6 o’clock news as did the rest of us—there is kind of a pattern there that is disturbing. 
Dr Apirana Mahuika from NgatiPorou came to the select committee. I have known Api for a long time and I do not think I have ever seen him as angry as he was when he gave that submission to the select committee. In fact the iwi submissions were the only submissions that actually said that this bill should stop completely and start again. See most other submitters were actually very constructive even though the Government ignored everything they had to say. They came along and said: “Yes we need legislation we want it to go ahead but this is how we think it should be changed.” Those were very constructive submissions and we welcome that. Iwi were so angry about this and about the Treaty of Waitangi clause and about the lack of consultation that they actually said: “You need to stop and do it again.” 
We had a very compelling submission from Mark Solomon from NgaiTahu who pointed out that when you look at the area of the exclusive economic zone that NgaiTahu have an interest in it is astonishing that they were not told about the bill or consulted on it in any way. I would again urge the Government to think seriously about the way it consults with iwi on these pieces of legislation. When we had the submission from Te Iwi Moriori Trust Board it came along and pointed out that it is only because of the Chatham Islands that New Zealand has such a large exclusive economic zone. It is only because the Chathams are so far away from the mainland and they drag our exclusive economic zone out as far as that so it would like to have been consulted. 
I welcome the Supplementary Order Paper and I really do in all sincerity urge the Minister in the chair to consider Supplementary Order Paper 104 by the Hon Annette King which would give recognition of Moriori people in the legislation as we have done for Maori. We have done this in the fisheries legislation as well so this is not something that is setting a new precedent that the Government would need to be worried about. It is done in fisheries legislation and it is entirely appropriate that it be done in this legislation as well. 
I know that there were members on the Government side of the select committee who were actually quite swayed by that submission but in the end we were not able to get it across the line. I do think that perhaps Minister this is one Supplementary Order Paper that we could consider going through. I know that it would mean an awful lot to the Moriori people and as I am sure the Minister is well aware they have some local debates going on about phosphate mining on the Chatham Rise which means that this piece of legislation is particularly something that they are reminded of daily when they are looking at what is happening in that particular area. 
I want to come on to clause 21 of Subpart 4 which is about the Environmental Protection Authority. The member Nikki Kaye made some comments about this along the way that I wanted to pick up on. In terms of our concerns about the Environmental Protection Authority and we raised this at the select committee we asked whether if a legal challenge is taken against the Government questioning its authority under this piece of legislation to allow this activity to go ahead—putting aside all the issues we have with the purpose clause putting aside all the issues we have with the clause around international obligations—the agency that actually awards the marine consent could be a factor that an international tribunal would take into consideration. Is that something that an international tribunal might look at when it is deciding whether or not that marine consent has been legally I suppose in terms of our international obligations granted? We had a bit of a discussion around it and where we got to was that the answer was actually yes. For example if we were allowing Shell to issue marine consents on oil and gas exploration that would probably be something that an international tribunal would say would put us in breach of the United Nations Convention on the Law of the Sea. That is an extreme example obviously. But it does mean that we need to be very careful when we look at the Environmental Protection Authority as to how that might be viewed by an international tribunal. 
The problem with the Environmental Protection Authority is that it does not have as its purpose the protection of the environment. We know that because when that piece of legislation establishing the Environmental Protection Authority was going through Parliament Labour put up an amendment saying: “Here’s a really wacky idea: let’s make environmental protection one of the purposes of the Environmental Protection Authority.” and the Government voted it down. 
Andrew Little 
: No! 
MOANA MACKEY 
: The Government voted it down. So you do not have to look very far and an international tribunal would not have to look very far to see that environmental protection which is required under the United Nations Convention on the Law of the Sea is actually not part of the purpose. It was not just accidentally left out and not just unmentioned but by a vote in Parliament the Government showed that environmental protection was not one of the purposes of the Environmental Protection Authority. 
So Minister when we talk about the purpose clause and the importance of ensuring consistency with the United Nations Convention on the Law of the Sea we need to make sure we get ourselves well over that line so that we can be absolutely certain. This is even more important when you consider the Environmental Protection Authority—and the Environmental Protection Authority officials were very good on the bill as were all the officials; I want to thank the officials as I meant to do in my first speech who helped us on this legislation because we certainly ran them through their paces. But the international tribunal will look at the Environmental Protection Authority and say: “Well not only have you got this purpose clause that we don’t think quite meets your obligations but the agency that is dishing out the marine consents is actually an economic development agency.” That is what it is if we are being brutally honest. It is not an environmental protection authority. 
When we come to the functions and the clauses in Part 1 around the Environmental Protection Authority I do think that it is a reminder of why we need to go back to the purpose clause and ensure that it gets us across the line for the United Nations Convention on the Law of the Sea because we have left ourselves wide open in terms of the Environmental Protection Authority being the organisation that administers it having more legal challenges. 
I want to just finish off by going back to some comments that Jacqui Dean made about Labour’s desire to see more replication of the language and legal tests of the Resource Management Act throughout the legislation. I am very pleased that she read that out because that is absolutely what we believe. But when it comes to the purpose clause that has to be consistent with the United Nations Convention on the Law of the Sea. That is the bottom line for the Labour Party and putting the language of the Resource Management Act in there as we have said is nice—I mean that is great—but the Resource Management Act does not have to be consistent with the United Nations Convention on the Law of the Sea so it does not get us over that line that we have to get over—the line that actually we are legally obliged to get over. This is not a kind of “nice-to-have” or a case of “We might want to do it.” 
We have ratified this convention. The only reason we are even allowed to go and exploit resources in our exclusive economic zone is because we ratified the United Nations Convention on the Law of the Sea. So adhering to it is not a case of: “Well you can if you want to it would be nice if you want to.” It is actually: “You must.” That is why it is important to use the language because as my colleague Charles Chauvel said a court is always going to look back to the treaty that gives us the right which is the entire reason that we are actually putting this legislation into place in the first instance. The only reason we are doing this is that we have ratified the United Nations Convention on the Law of the Sea so to suggest that under the “International obligations” clause you do not need to look any further than this legislation that this legislation is all you need and that you can ignore the international conventions that we have ratified is simply not true and the Minister knows that. The court is always going to go back to the treaties which are actually where this legislation came from and are actually the reason why we are doing it. That treaty says quite clearly that we have a right to exploit those resources but it comes with a duty and an obligation to protect and preserve the marine environment. 
Why can we not just have that language in the legislation so that it can be clear that what we want to do is be consistent with the United Nations Convention on the Law of the Sea? That is all we want to do. Having the clause in there that we have now is better than the one we had before. The idea of balance was ridiculous and was never going to work and good on the Minister for getting rid of that. We are very pleased to see that that has been abolished but—