Chauvel Charles: Exclusive Economic Zone and Continental Shelf (Environmental Effects) Bill — Third Reading 
Text is incorporated into the Bound Volume 
Chauvel Charles: Exclusive Economic Zone and Continental Shelf (Environmental Effects) Bill — Third Reading 
[Sitting date: 28 August 2012. Volume:683;Page:4786. Text is incorporated into the Bound Volume.] 
CHARLES CHAUVEL (Labour) 
: 
 I want to deal with a number of the points that were made by the previous speaker Dr Nick Smith because he suggested that the Labour Opposition was opposing this bill on a basis other than principle. Nothing could be further from the truth as that member knows because it has been Labour’s position from the start that this bill is inadequate. 
Hon Dr Nick Smith 
: Pure politics. 
CHARLES CHAUVEL 
: No Dr Smith it is not pure politics. Dr Smith you are the master of that art in this House. People on this side of the House take principled positions and I want to say exactly what those positions are. Let us start with first principles the principles around our international obligations. No amount of assertion on the part of National that this legislation is compliant with those obligations will make it so in the face of the submissions that were received from experts who were very clear that that was not the case. The United Nations Convention on the Law of the Sea is absolutely clear in article 192. Article 192 states: “States have the obligation to protect and preserve the marine environment.” Article 193 goes on to allow for the exploitation by States of their natural resources but it is “pursuant to their environmental policies and in accordance with their duty to protect and preserve the marine environment.” 
Dr Smith knows because he introduced this legislation—and I thought it was interesting that he failed to acknowledge this in his contribution just now—that when the bill was introduced it had a purpose section that actually pitted the environment and the economy against each other. I said in my contribution during I think the Committee stage that the current Minister for the Environment Amy Adams deserves some credit for modifying the purpose clause. The worst of the pitting of the two considerations against one another has been removed but it still falls short of properly protecting New Zealand’s environment just like other important environmental legislation that we have seen introduced by this Government. It is just like the Environmental Protection Authority Act which was referred to by the previous speaker—an environmental protection Act that does not even include in its purpose statement a duty to protect the environment. That is the sort of commitment to the environment that we have seen from this Government and it is reinforced in this legislation. 
The legislation is inconsistent with our obligations under the United Nations Convention on the Law of the Sea where the right to exploit resources is accompanied by a very clear duty to protect and preserve that precious marine environment. The international obligation section as amended if it passes in its current form will mean that decision makers have no obligation whatsoever to have regard to our international obligations. The chair of the Local Government and Environment Committee who I apprehend might speak soon conceded as much in the Committee stage. She said that that was a deliberate choice urged on her by the officials. So what do our international obligations mean to National? Why are we legislating in derogation of them? Why are we seeing in the House legislation that actually ignores those obligations and moreover within the four corners of the legislation calls for them to be ignored? This is not good practice and it is certainly not consistent with what we have told the world we will do. 
The second objection that Labour raises to this legislation and has maintained throughout is that the regime it will create will be much weaker than the regime that is created by the Resource Management Act and that applies on land in New Zealand. Dr Smith said that only six applications per year are anticipated to be dealt with by the Environmental Protection Authority under this legislation whereas there are thousands and thousands of applications under the Resource Management Act. So why would you apply the same tests? Well there are a number of reasons. First of all everybody knows what the tests are under the Resource Management Act. The law is settled. It is clear and well understood so no confusion will arise. No litigation risk or cost will arise from putting the same regime in place onshore and offshore. 
 But perhaps more important as we saw with the  
Rena 
 disaster there is a very very important issue here. Maybe there will be only six applications that might be dealt with every year but the consequences of failure—the consequences of weak conditions being set as part of the consenting process—are catastrophic when they occur in the marine environment and they cannot be allowed to occur in that environment willy-nilly. That is why tough protection is needed within the exclusive economic zone and on the continental shelf. 
As I said the tests under the Resource Management Act are well understood. Local and regional authorities already have experience managing those activities. The Environmental Protection Authority would be able to pick up that experience understand it and apply it very easily if the same sort of legal tests were proposed in this legislation but instead we have a completely new regime. Some industry submitters made this point in the Local Government and Environment Committee. I read their submissions with interest. They basically said it would make sense to have a closer alignment between the two on the basis that it would give business certainty—the sort of thing that National talks about but does not practise terribly often. 
Businesses understand how the Resource Management Act operates. The completely new set of legal tests that will be put in place under this legislation will simply mean arguments in court between lawyers for many years to come while the law has to be settled as to what it actually means. The bill adds new terms such as “favour caution” which are not widely understood or defined. In addition there is a definition of “adaptive management” that is completely different from that which appears in the Resource Management Act case law. So these are examples of the problems that I am pointing to with this different regime that is being set in place. 
The third objection that the Labour Party has raised consistently in respect of this legislation is that the process for issuing marine consents should be much more transparent than it is proposed to be. We are concerned that there are significantly more restrictions and barriers for submitters than there are for applicants and we are very disappointed that the bill blocks appeals to the Environment Court the very body that has expertise in dealing with these sorts of specialist objections and issues. It makes no sense to bar the jurisdiction of that court and that is a step that we should be very very concerned about. 
The fourth objection again advanced consistently by Labour throughout this process has been the Government’s complete failure to consult with or involve iwi through the process that has been invoked in getting this bill into the House. Their input into the processes that are set out in the bill will be optional only and at the discretion of the Environmental Protection Authority. We supported a submission made that the bill should be amended to include reference to Moriori and tikane Moriori in the bill. We put up an amendment to do that and National voted it down. We objected to the Treaty clause in clause 14. The bill does not impose a general obligation on the Crown to give effect to the principles of the Treaty. Again we put forward an amendment to fix that but National voted it down showing its real lack of commitment to any of the Treaty principles that ought to appear in the legislation. 
We are also concerned that the provisions covering penalties and cost recovery for a breach of the legislation are inadequate. Yes we supported the increase in a penalty for non-natural persons to $10 million but the other penalty levels are too low. Again the consequences of a disaster occurring in our marine environment are catastrophic and we ought to show that we take this seriously by having a stiff penalties regime in the bill. 
Finally in answer to Dr Smith’s charge that this is the first piece of important environmental legislation that has not been treated in a bipartisan way the process for dealing with this bill has been shambolic. The select committee was rushed and did not adequately consider the issues. There was a raft of amendments required that were put forward by the Minister which were also shambolic and rushed right at the end of the process. Those changes are significant and have not been subject to proper scrutiny and consideration because they were put forward after the select committee process ended. This is not the way to legislate on such an important matter and these are the principled reasons why the Labour Party will not support this shambles of a bill.