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:4493. Text is incorporated into the Bound Volume.] 
MOANA MACKEY (Labour) 
: 
 I also would like to put on record how disappointed I am that the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Bill was not referred back to the Local Government and Environment Committee so that Supplementary Order Paper 100 could be fully considered because it is significant and it does make significant changes. It is not the positive step that the Minister in the chair the Minister for the Environment is claiming it is. In fact when we went through the Supplementary Order Paper clause by clause what was very clear was that the Supplementary Order Paper actually takes the bill backwards considerably. The bill should go back to the select committee. 
I want to address some of the Minister’s comments on the purpose clause of the bill because it does not meet the test of our international obligations under the United Nations Convention on the Law of the Sea. We open ourselves up to a very real risk of legal challenges which will of course be funded by the New Zealand taxpayer in terms of their defence if we do not get this right. There is a very simple way we could have got it right: put the wording of the United Nations Convention on the Law of the Sea into the purpose clause of the bill. That is what other countries have done. If we use the term “preserve and protect the marine environment” in the purpose clause of the bill then it removes any uncertainty that we are not consistent with the United Nations Convention on the Law of the Sea. And if we have ratified the United Nations Convention on the Law of the Sea which we have then why would we oppose using the same language as the convention? It does not make sense.  
If we agree with the United Nations Convention on the Law of the Sea which we must do because we ratified it then using the language of the United Nations Convention on the Law of the Sea should not be something the Government opposes unless of course it thinks that the United Nations Convention on the Law of the Sea is far too restrictive and might stop some of the oil and gas exploration that it has planned from going ahead which is the only plan the Government has for the economy.  
The Minister in the chair the Minister for the Environment is a lawyer. She knows that this could have removed an awful lot of legal uncertainty. Instead she has decided that she is just going to wing it and take the risk. I want to read to the Minister Part 12 of the United Nations Convention on the Law of the Sea. There is a suite of provisions there. The Minister is very fond of saying that there are a whole lot of things under the United Nations Convention on the Law of the Sea and that they all have to be taken into context. Well article 192 says: “States have the obligation to protect and preserve the marine environment.” That is not qualified in any way. Nowhere does it say “unless this” or “unless that”. Nowhere is there a provision that overrides that. It says we have an obligation—an obligation—to protect and preserve the marine environment. Article 193 provides that the right to exploit natural resources must—must—be in accordance with the duty to protect and preserve the marine environment. It could not be more clear. 
So although the Minister has come up with a clause from the Resource Management Act that is better than the one that is in the bill at the end of the day it still does not get us over the line. It does not matter actually how close we get to that line; if we are not over it then we are in breach of our international obligations. We are in breach of those international obligations and that is what the Labour Party has been concerned about from the first reading of this piece of legislation. 
I do not know how the Minister can continue to claim that because she has aligned the purpose clause with the Resource Management Act that somehow meets our international obligations. The Resource Management Act does not have to be consistent with the United Nations Convention on the Law of the Sea Minister. Just because it is consistent with the Resource Management Act does not make it consistent with the United Nations Convention on the Law of the Sea. 
Hon Amy Adams 
: It was anyway. 
MOANA MACKEY 
: Sorry? 
Hon Amy Adams 
: It was anyway. 
MOANA MACKEY 
: It was not consistent. Instead of having this to-ing and fro-ing why would we not provide absolute certainty and use the language of the United Nations Convention on the Law of the Sea? Why would we not use the language “preserve and protect the marine environment.”? Then we would not have to worry about it. We have ratified the United Nations Convention on the Law of the Sea so obviously we agree with that so why would we not just use it and then we do not even have to have this argument any more?  
The reason we are not going to use it is that the Minister well knows—and as one of the energy companies told us when it came to the select committee—they like this because it is intended to be more permissive than the Resource Management Act. That is what the energy company told us and that is the reason that the purpose clause is deliberately not consistent with our international conventions. 
I want to talk about the changes to clause 11 in the Minister’s Supplementary Order Paper. This is a clause around our international obligations. When the bill came back from the Local Government and Environment Committee we strengthened this clause significantly. We were clear. We said that this Act must be interpreted under various international conventions relating to the marine environment including the United Nations Convention on the Law of the Sea and the Convention on Biological Diversity. We thought that made it quite clear that everything in the bill was meant to be and intended to be consistent with our international obligations. 
Well this has now been changed. Clause 11 in Supplementary Order Paper 100 now reads: “This Act continues or enables the implementation of New Zealand’s obligation …”. In other words we are not quite there yet—we are not quite there yet. We are continuing to implement our obligations but we do not want to say that it does implement our obligations because that would be a much tougher test and it would be interpreted differently. 
There is a piece in the explanatory note of the Minister’s Supplementary Order Paper 100 that I think was particularly interesting as well. When she talked about clause 11 her explanation was: “… which provides for the Act to be interpreted under various international conventions is replaced. New clause 11 records that the Act continues or enables the implementation of New Zealand’s international obligations”—and this is the interesting bit—“so that a decision-maker under the Act does not need to look beyond the Act to be sure that he or she is complying with those obligations.” Otherwise the people who are implementing this piece of legislation can ignore the United Nations Convention on the Law of the Sea can ignore the convention on biodiversity because the new clause 11 states that they do not have to give any regard to our international obligations. They merely need to give regard to this piece of legislation which as I said no longer says that this Act must be interpreted in accordance with our international obligations. It simply says that it is continuing along the pathway of maybe one day getting somewhere close to implementing and meeting the tests under our various international obligations. 
I find it astonishing that the Minister can continue to claim that this piece of legislation is in accordance with the international obligations when it clearly is not. Although the concept of sustainable management is a good one it is disappointing that throughout the rest of the bill where we would have liked to see more consistency with the Resource Management Act the one part of the bill that is purposeful where we were not calling for the same language as the Resource Management Act is the one where she has actually done it. And then everywhere else in the bill where we have said “Please use the language of the RMA.” she has completely ignored it. 
The purpose clause must be consistent with our international obligations and it is not—it is not; it is quite clear that it is not. We have a right to exploit the resources in our exclusive economic zone but that right comes with a duty and an obligation to protect and preserve the marine environment. That is not a balance—as the Government was talking about before. That is not the language that we have in there now. Where is the language that states that we understand under this legislation that there is an obligation a duty to protect and preserve the marine environment? If the National Government thinks that this piece of legislation does do that then why would they leave so much uncertainty? Why would they not just put that language in the legislation so that we can be in no doubt that the purpose of this legislation is to protect and preserve the marine environment? There is only one reason why you would not use that wording and it is because you do not want— 
The CHAIRPERSON (Eric Roy) 
: Order! 
MOANA MACKEY 
: —sorry Mr Chair—the Government does not want to protect and preserve the marine environment. That is the only reason—the only reason you would not do something so simple. It is because you do not want that to be the outcome of this piece of legislation—that is the only reason. It would be nice if one of the National members would be honest enough to actually say that in the course of this debate. 
Yes I agree with the Minister—we need legislation in place. But at the same time we do not need to be going out there and ramping up oil and gas exploration before this bill is passed. It is not a good enough argument to say: “Oh because all this stuff is going ahead we just need to pass any old piece of legislation.” Maybe we could pass good legislation and then once the protection is in place go ahead with the oil and gas exploration. That would seem to be a sensible way of doing it instead of putting the cart before the horse and allowing the gates to open. We are going to have some very interesting debates on the transitional provisions around this piece of legislation which really have opened the gates to completely allowing exploration to go ahead with no marine consent and no input. We look forward to that debate. 
It is really disappointing that the Minister was not prepared to work with the members of the Labour Party the Green Party and the New Zealand First Party who came to her and met with her saying we need to find a compromise on the purpose clause and on this piece of legislation because it is too important. Instead the Minister dumped the Supplementary Order Paper at a meeting with Grant Robertson sitting next to her and Eugenie Sage—they had no idea it was coming. She did not give us the courtesy of saying: “Look I’ve taken on board what we’ve said in the meeting. I’m going to release an SOP. Here’s basically what it does.” This is too important to be a piece of legislation where the pendulum swings between Governments. We could have found a compromise. We were not that far away. It is a shame we did not do it at the select committee but we were shut down at every point at the select committee when we tried to get these changes. It was clear that it was just going to be the Government’s way or no way at all. 
Unfortunately the chair of the Local Government and Environment Committee although I appreciate all the work she put into it did not realise she had a tied vote on the committee which involved a lot of cleaning up in the Supplementary Order Paper to clean up what happened to the bill because of the way it ended up having to be voted on because the process was not clearly laid out beforehand. But we could have come to an agreement on the purpose clause that had the intention of preserving and protecting the marine environment. We could have got there and it is a shame that the Government rejected that offer.