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: 22 August 2012. Volume:683;Page:4668. Text is incorporated into the Bound Volume.] 
MOANA MACKEY (Labour) 
: 
 It was interesting hearing the revising of history from the Hon Dr Nick Smith which he is particularly good at doing I have to say because he does it with such gusto that people think surely he could not be making that up. I know the member is reacquainting himself with select committees. What he perhaps is finding is that there is this interesting process called submissions at select committees where people who have expertise in a certain area come along and tell the committee what they believe is wrong with the bill or right with the bill. So when we got to the Local Government and Environment Committee and heard submissions from submitters what we found was that actually there were a lot more problems with the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Bill than we had realised at the first reading. 
Hon Dr Nick Smith 
: But you opposed its introduction. 
MOANA MACKEY 
: We did because at the first reading we actually thought that it was not good enough and then when we got to the select committee we realised that it was even worse than we had originally thought. The Green Party actually supported it on balance at the first reading and again when we got to the select committee and heard from submitter after submitter saying how weak the bill was how inadequate it was the Green Party changed its position. 
A whole number of other issues were raised at the select committee. That is why the select committee process is so important and that is why when we come back to the Committee stage we see Supplementary Order Papers from Opposition members on a raft of different issues that were raised at the select committee that we had not picked up initially. I was not aware for example at the first reading that the bill was inconsistent with our international obligations. That was not something that I had considered. But that actually became one of the primary concerns as we went through the select committee—that it is not consistent. There is no certainty around it it would be tested in the courts and the Government could have done one very very simple thing. It could have used the language from the international convention that we ratified in the bill. That one thing would have made it clear and beyond doubt. We would not have to fight about it. It would be beyond doubt that the legislation was consistent if we had used the language of “preserve and protect the marine environment”. 
The Hon Dr Nick Smith said that Labour at the first reading was all about consistency with the Resource Management Act. That is true. In fact the one clause that needed to be more than just consistent with the Resource Management Act was that purpose clause. We wanted consistency throughout the bill with all the legal terms that were being used so that we do not use “favour caution” we use the “precautionary approach”. We use language drawn from 20 years of Resource Management Act case law so that people know what they are walking into they know where the goalposts are and they know what the thresholds are. Resource Management Act case law in international law is well understood. 
No one knows what “favour caution” means. It has been made up. It is brand new. It has no precedent. Do you know who will decide what it means? Lawyers and courts. This should be the “Exclusive Economic Zone and Continental Shelf (Boon for Lawyers) Bill” because that is what is going to happen. 
Hon Christopher Finlayson 
: Good. 
MOANA MACKEY 
: Chris Finlayson says that is good. He has a vested interest that he is meant to leave behind when he enters this Chamber. But that is what is going to happen because it will be a court that ultimately decides. We do not need to be here. If the Hon Dr Nick Smith agrees with the United Nations Convention on the Law of the Sea agrees that we have ratified it— 
Hon Dr Nick Smith 
: This is consistent with it. 
MOANA MACKEY 
: It is not consistent with it. 
Hon Dr Nick Smith 
: Yes it is. 
MOANA MACKEY 
: It is not. If you wanted to be sure then why would you not just use the language of the United Nations Convention on the Law of the Sea? Then we do not have to have this fight and we can all just get on Dr Smith. We can all just move on knowing that we are collectively consistent with our international obligations and put that one big argument which actually was the biggest concern that Labour had—that this is going to end up costing New Zealand taxpayers money as litigation happens at international tribunals with people saying that New Zealand has not met its international obligations. 
Hon Dr Nick Smith 
: It is consistent. 
MOANA MACKEY 
: It is not consistent. One of the most telling parts— 
Hon Dr Nick Smith 
: It is. 
MOANA MACKEY 
: Why would you not just make it clear? 
Hon Dr Nick Smith 
: What have the officials said at the select committee? 
MOANA MACKEY 
: They said that they had not had any legal advice which was astonishing; that they had not got any legal advice from the Ministry of Foreign Affairs and Trade that the Minister had not called for that before putting the bill together. 
But I am asking Dr Smith a very important question. Why can we not just use the language of the United Nations Convention on the Law of the Sea and then we are clear? Then we do not have to have this fight; we can all get along. We can all get along. We are consistent we are there we are good. Why? There has to be a reason why. 
 When you look at clause 11 around international obligations the language has been changed from saying that everything in “This Act must be interpreted” as being consistent with our international obligations to a requirement to move us towards and to continue to implement. 
Hon Dr Nick Smith 
: It doesn’t say that. 
MOANA MACKEY 
: It does say that. It says “This Act continues … the implementation” of our international obligations. We are no longer consistent with them; we are just in the process of continuing to implement them. 
I think it is pretty clear that there is a lot of wriggle-room that the Government has left there because it does not want to be consistent with that international convention. That leaves New Zealand taxpayers exposed because they are the ones who are going to have to pay for any litigation that is taken against our Government by anyone who thinks we are not consistent with those obligations. It was a relatively simple thing to fix. The fact is that Dr Smith is getting so wound up about it and did not just say “Well let’s just fix it.” Apparently he is trying to say that we all agree consistency is important and we must be consistent with our international obligations but he is not prepared to do the one thing that would take this issue off the table and leave absolutely no shadow of a doubt that we have consistency. Instead he is going to do what he has done throughout the entire bill which is to use language that is entirely different from any legal language that has legal precedent and which leaves enormous uncertainty. 
People now do not know where the goalposts are and the only reason you would not align the language of 20 years of Resource Management Act case law the language that internationally has been understood and the language of the United Nations Convention on the Law of the Sea is if you did not want it to have to meet that test. That is the only reason you would not do it and that is why it has been done. We know that on this side of the House. I mean the Government does not want to say it. We actually had one energy company that did come to the Local Government and Environment Committee and they were the only ones who said “Yeah we like this because it is way more permissive than the Resource Management Act. We are going to be able to get away with a lot more.” That is what they said to the select committee—and we knew that that was the case. It was nice that someone was honest enough to actually say it for once and say that this bill is going to be less restrictive than the Resource Management Act has been. 
The Resource Management Act of course has allowed the oil and gas industry to go ahead in Taranaki. It has not stopped it. It has not stopped it dead in its tracks. The Taranaki Regional Council came along and said and some of it has been included in the bill: “We like working with the Resource Management Act because we understand it and it gives us the ability to monitor it gives us the ability to enforce and also we understand what the tests are. We are used to dealing with it so we have no issue with those same principles and those same level tests being applied.” This is a part of the country that the Government consistently points to and says “Look they can do it so why can’t everywhere else?”. 
Well you know the council was quite happy with what was being proposed in terms of getting more consistency because that line at 12 miles is jurisdictional only. You jump across an invisible line in the sea and suddenly we have two completely different regimes operating side by side and regulating exactly the same activity. How is that sensible? That line is not environmental. That line is not about science. It is not about resource allocation. It is just jurisdictional and when you jump across it we now have a completely different regime for exactly the same activity. 
As you get further and further out to sea in the really deep waters—3000 metres and 4000 metres deep in the Raukumara Basin off the East Coast—I think that the public want to see that there is definite consistency with the Resource Management Act in terms of their ability to access the process and to appeal to the Environment Court. But on the environmental protection clauses the former Minister made the comment that he did not think the community needed that same level of engagement under the exclusive economic zone bill because what happens in the exclusive economic zone has less of an impact on them. 
I think that when you see the impact of oil washing up on the beaches in the Bay of Plenty—and I know the Minister did because he came to the Bay of Plenty during the  
Rena 
 disaster—you cannot tell me that that does not have an impact on communities and that they do not deserve to be engaged in the process in the same way that they would be if it happened within 12 miles before you jump over an invisible jurisdictional line. It does affect communities—very very deeply. 
I think that this legislation should perhaps be called the “Exclusive Economic Zone and Continental Shelf (Missed Opportunity) Bill”. We went to the Minister for the Environment Amy Adams and said “Let us find a compromise. As many parties as possible but particularly Labour and National can agree that this is how it is going to be. Let us lock down as much as we possibly can.” 
Labour will change this legislation. We will make sure it is consistent with our international obligations and provides the levels of environmental protection that the community would expect. We wanted to find a compromise with the Minister. We tried to do it with the Hon Nick Smith on the emissions trading scheme and then the Maori Party gazumped us. We thought we were actually close to getting bipartisan agreement on the emissions trading scheme and then I heard on the 12 o’clock news that he had gone to the Maori Party instead and done a dirty deal there. So I know that the National Party is not very big on bipartisan agreements but they are important when you have got incredibly important legislation like this. 
I know that a number of the environmental groups also wrote to the Minister and said: “Look obviously we would like it to go a lot further but we think that if you worked together and if you found a compromise we are not that far off.” So we are very disappointed. We met with the Minister and we thought it was a good meeting but then we had Supplementary Order Paper 100 dropped on us. It did not address a lot of the issues that we raised. Some of them we were never going to agree on and that is absolutely fine. That is the nature of politics. But we think that on a piece of legislation this important we could have locked down an awful lot more. 
A lot of the stuff that has been done here in the Committee stage could have been done at the select committee. In fact we asked for it to be done at the select committee and were told no. Government members did not want to discuss that and we were not going to change this and it has been changed. As I said I am very pleased to see the penalties increased. It would have been good to see the penalties increased across the board but that one increase we do support and that is why we voted for that particular part of the Minister’s Supplementary Order Paper and of the bill. But this really was a missed opportunity because we open ourselves to legal challenges. We open industry community and the environmental groups up to enormous uncertainty because this now—