Chauvel Charles: Exclusive Economic Zone and Continental Shelf (Environmental Effects) Bill — In Committee 
Text is incorporated into the Bound Volume 
Chauvel Charles: Exclusive Economic Zone and Continental Shelf (Environmental Effects) Bill — In Committee 
[Sitting date: 16 August 2012. Volume:682;Page:4501. Text is incorporated into the Bound Volume.] 
CHARLES CHAUVEL (Labour) 
: 
 I just want first of all to congratulate the Minister for the Environment. I think some fair points have been made in the debate and I think there is general agreement that her proposed clause 10 in Supplementary Order Paper 100 is better than where we started. I think it is important to concede that right up front. Labour voted against the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Bill at the first reading for the particular reason that specifically as we said in the first reading debate we had real concerns about the purpose clause. It was absolutely inadequate for the sort of exercise that this bill is designed to deal with. So the Minister has gone some way to try to remedy that and I want to express and put on record appreciation for that as have previous speakers in the debate. I understand that that will not have been an easy exercise because as was said in the first reading debate the problem with this bill is it is too much of a developers’ charter and not enough of a bill that has regard to the preciousness of our environment. 
I just want in that regard to say a few words about the importance of a purpose clause. Other speakers have noted that there is likely to be litigation around this legislation. Of course there will be. It involves natural resources it involves important economic considerations and it will involve powerful economic actors. They will have recourse to the courts for the interpretation and declaration of their rights so it is important that we start right up front with a very clear purpose clause to guide the courts as to the interpretation of the rest of the Act. 
We have already seen with the Environmental Protection Authority Act the sort of problem that Labour still has with this bill. In that particular piece of legislation there was a failure on the part of the Minister’s predecessor to expressly provide in the purpose clause that the purpose of the Environmental Protection Authority should actually be to protect the environment. The major defect of that bill—that Act as it now is—continues to be that there is no express requirement that its sections be interpreted with that prime obligation in mind. 
I think we need to think quite carefully about what we are doing here as a Committee because the public are entitled I think to look at legislation and to expect its contents to at least bear some relationship to its title. Well clearly in the case of the Environmental Protection Authority Act that is a case where this Parliament under this Government failed. I do not want to see Parliament fail again to do that in respect of the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Bill. 
The reason that I say we still are failing—notwithstanding the fact that the Minister has I accept gone some way to try to take into account Opposition concerns—is the issue that was raised by previous speakers which is the problem of inconsistency with our international obligations. You know we can pretend as much as we like in this Committee that we have been advised that it is consistent. We can say that black and blue but any reading of the treaty and then any reading of the clauses that are now reproduced in the proposed purpose clause show that there is still a major inconsistency. The Minister in the chair the Minister for the Environment shakes her head. I hope she gets up and addresses this point and I hope that when she does so she actually has a copy of the treaty provisions in front of her because the basic problem we still have here is the failure to incorporate in the legislation and in the purpose clause the fundamental part of the treaty obligation which is about preserving and protecting the marine environment. It is not about promoting the sustainable management of the natural resources of the exclusive economic zone and the continental shelf. It is about preserving and protecting. 
I have to ask the Minister because I know that she was a respected lawyer in practice why on earth we would set up this dichotomy for the courts so that they have the treaty provision on one hand and the purpose clause on the other being inconsistent. What is to guide the courts when they consider the principles that they ought to observe in considering any ambiguity in the rest of the text of the Act? The Minister knows that that is going to be a problem going forward with the text that she has proposed. 
That is why Grant Robertson has put forward his preferred version of clause 10 in Supplementary Order Paper 97. There is a very careful attempt here to legislate consistently with New Zealand’s international obligations. What he has done in subclause (1) is to very clearly say: “The purpose of the Act is to protect and preserve the environment while providing for sustainable economic development in the exclusive economic zone …”. Why on earth would we not do that? Why on earth would we not take the primary treaty provision and accept in the primary purpose clause in the legislation that it ought to be given prominence and then say what else wants to be done? As I said I am expressing gratitude to the Minister for having come some way but I just cannot see on the face of the competing Supplementary Order Papers why on a logical comparison we would not prefer the approach that is contended for by Grant Robertson. 
 The second issue around general interpretation relates to the Minister’s suggestion for new clause 11 in Supplementary Order Paper 100. We heard a frankly extraordinary contribution from the chair of the Local Government and Environment Committee earlier where I think what she said—what she seemed to think the officials had advised her—was that if Parliament inserted references to the treaties then the courts would not be able to consider the clauses of those treaties; they would be able consider only the terms of the bill. I think that is what she said. We all had a little giggle including the Minister in the chair because clearly that is entirely wrong. 
But actually looking at what is intended in the proposed new clause 11 first of all the good thing is that yes there ought to be reference to the implementation of our obligations under the United Nations Convention on the Law of the Sea and I welcome the inclusion also of a reference to the Convention on Biological Diversity. That was a good move a good suggestion from the committee and it is great to see the Minister taking it up. But what does this mean: “This Act continues or enables the implementation of New Zealand’s obligations …”? I mean which is it? When the court looks at this provision if—God forbid—it is actually enacted then what is the court to make of it? “Oh goodness me I wonder whether this provision is intended to continue an obligation to which we have already accepted an international obligation or are we now enabling that obligation?”. Surely if we have signed the treaty we accept that we are a party to it and it is not a question of enabling or continuing but actually being clear in the text of the statute which one it is. I really hope that the Minister will clarify that point for the Committee. I see she has just asked one of the officials a question; I hope it is about that. 
The final point that I just wanted to make in this call relates to a clause in Part 1A that will be influenced by the Minister’s Supplementary Order Paper. That is the insertion of clause 17A. This deals with planned petroleum activities and essentially declares that they can continue. The problem here is that planned petroleum activities are very different from actual ongoing activities. I think we do have to hear from the Minister as to why this particular means for transition is the one that she thinks the Committee ought to adopt because it does not actually seem either consistent with principle or consistent with the protection obligations that we all know New Zealand is party to. 
Just a word about process. Again without detracting from my earlier comments praising the Minister for being willing to come some way from the extremism that we saw from Dr Smith in the original draft of this bill which was simply a developers’ charter for the exclusive economic zone and continental shelf we do have a process issue that cannot be ignored. We have a select committee system in our Parliament for good reason. I have sat on the Local Government and Environment Committee. I sat on it this morning for an hour or two and it is a good committee. It does its level best to make legislation before it better but to drop a 16-page Supplementary Order Paper at the stage of the Committee of the whole House in respect of legislation that is as important as this is simply not good procedure. I think the Minister should refer it back to the select committee.