Sage Eugenie: Exclusive Economic Zone and Continental Shelf (Environmental Effects) Bill — In Committee 
Text is incorporated into the Bound Volume 
Sage Eugenie: Exclusive Economic Zone and Continental Shelf (Environmental Effects) Bill — In Committee 
[Sitting date: 21 August 2012. Volume:683;Page:4601. Text is incorporated into the Bound Volume.] 
EUGENIE SAGE (Green) 
: 
 I think the previous speech by Nick Smith as always sought to twist slightly how the law operates. That is partly because of this whole concept of adaptive management which I will get on to in a minute. I think the number of Supplementary Order Papers that are before the Committee on Part 2 of the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Bill reflect unfinished business in the Local Government and Environment Committee and a number of concerns that Opposition parties raised there that have not been resolved. But before going on to those I would like to record the Green Party’s thanks to officials. There was a lot of debate in the select committee and a lot of interchange with officials and they dealt with that very professionally and have put a huge amount of work into the bill. 
In terms of the Supplementary Order Papers that the Green Party is proposing one of them in my name Supplementary Order Paper 90 is around this whole issue of adaptive management. The concept of adaptive management is one of “suck it and see”. The previous speaker has referred to caution and the cautionary approach. Like Labour—and we support Moana Mackey’s Supplementary Order Paper 103—we say that “caution” is a very new term in the legislation. It contributes to legal uncertainty and to opportunities for more litigation by using that term rather than the more commonly understood “precautionary approach”. But if this cautious approach means that an activity is likely to be prohibited through regulations or a marine consent application is likely to be refused by the Environmental Protection Authority then the Minister for the Environment or the Environmental Protection Authority must consider whether using the adaptive management approach would allow the activity to proceed. That means that it proceeds at a certain scale and there is monitoring done to determine whether it can continue and be expanded. 
In our view both clauses 33A and 60A create quite major obstacles to the Minister prohibiting damaging activities and to the Environmental Protection Authority declining consent to them. As submitters such as the Royal Forest and Bird Protection Society noted it turns the precautionary approach on its head because it fails to recognise that there are situations where a “suck it and see” approach through adaptive management is not appropriate. That is where there is a risk of causing irreversible environmental harm.  
Supplementary Order Paper 90 in my name redefines adaptive management to exclude an activity that risks causing irreversible harm such as affecting the population of a threatened species or destroying a biodiversity hot spot like a seamount. It would omit this requirement in clause 33A(3) that before prohibiting an activity the decision maker first has to consider adaptive management. The Green Party is concerned about the changes that the Government’s Supplementary Order Paper 100 would make to the definition of “adaptive management” because that further expands the scope for using it.  
When we were considering Part 1 of the bill and when we passed that relevant part of Supplementary Order Paper 100 we effectively omitted the bill’s definition of “adaptive management” from the interpretation clause which would have clearly allowed a marine consent to be revoked and the activity discontinued. Omitting that and then relying on clause 62A for the definition of “adaptive management” means that there is no clear ability for the Environmental Protection Authority to revoke a marine consent to ensure that an activity is discontinued if it is found to have greater impacts than the Environmental Protection Authority expected. The experience under the Resource Management Act is that when you review consent conditions you cannot cancel a consent. So the former interpretation and definition of “adaptive management” was quite critical to allowing the Environmental Protection Authority to revoke a consent. My concern is that that is now gone.  
I think that is quite typical of the permissive approach to the Government’s oceans management through the exclusive economic zone regulations which as Moana Mackey mentioned came out after we had reported back from the select committee. That permissive approach is illustrated in the fact that seismic surveying is permitted under the regulations. That is despite there being the potential for quite significant impacts on marine mammals and fish because where you get these seismic surveys occurring you get these big high-pressure airguns being towed behind a survey vessel. They produce pulses of high-energy sound which is directed at the seabed but it can spread horizontally for hundreds of kilometres. That can have an effect on marine mammals that is quite disturbing. For them it can be the equivalent to us having a 747 jet engine taking off nearby. So we have a concern around adaptive management.  
One of the other issues of concern is that in clause 33(3)(e) as Nicky Wagner pointed out one of the list of matters that the Environmental Protection Authority must consider when making regulations is “the importance of protecting rare and vulnerable ecosystems and the habitats of threatened species”. Yet when the Minister is making regulations and also in the parallel provision for the Environmental Protection Authority in clause 59(3)(e) they can consider an impact on a threatened species and their habitat only if the Minister of Conservation has previously gazetted a species as threatened. Only two species have been gazetted by the Minister of Conservation as threatened species: the New Zealand sea lion and the Hector’s dolphin. Our Supplementary Order Paper sought to change that so that there was a reference to the New Zealand Threat Classification System lists and the International Union for Conservation of Nature’s Red List of Threatened Species. We did not want the political process set out by the bill that the Minister of Conservation must gazette a threatened species as threatened for it to be given status under clause 33. That remains a concern.  
We are also concerned about the failure in Part 2 of the bill to have any provision for spatial planning in the marine environment because the Government has tendered more than 40000 square kilometres of offshore seabed for oil and gas exploration yet we do not have any provision for deep-water marine reserves and no legislation to do that. There is no regime for creating these deep-water marine reserves to balance the exploration that is occurring. That is why Gareth Hughes’ Supplementary Order Paper 102 is important because it makes amendments that would provide for marine reserves in areas such as the Kermadec Islands to be extended offshore. Some of the protection initiatives that we have at the moment such as the benthic protection areas are totally ineffectual. We are already seeing applications for prospecting for phosphate in those areas and there is no constraint on that.  
We have got a number of changes in our Supplementary Order Papers. We support Labour’s Supplementary Order Paper 103 seeking to replace “caution” with “a precautionary approach” and we have major concerns about adaptive management.