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: 21 August 2012. Volume:683;Page:4595. Text is incorporated into the Bound Volume.] 
MOANA MACKEY (Labour) 
: 
 I have a number of amendments in my name on Supplementary Order Paper 103 and also on another Supplementary Order Paper that I do not have the number of at the moment amending Part 2 of the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Bill which is the processes around the requirements and the issuing of marine consents under the legislation. 
The first clause that I have an amendment to in my name is clause 27. This is around the regulations prescribing standards methods or requirements. As I mentioned in my speeches on earlier parts of the bill an awful lot in this piece of legislation is being left to regulation. It was very disappointing. During the select committee process we would have really liked to have the regulations alongside the legislation because it was hard to really know what the impact of the legislation was going to be how effective it was going to be when in fact the guts of it was in regulation that was still being developed by officials. The particularly disappointing thing was that we could have held off on reporting back on this bill but we were told that the regulations were a way off and then basically the minute we reported it back the regulations were suddenly released for public consultation. It was literally that quick. That was disappointing because for a few more weeks we could have sat down and gone through the regulations and given a far more considered report back to the House. But c’est la vie. That is what happens and here we are debating this part of the bill. 
My concern and the reason I put up this amendment to clause 27 is that there really is not a strong decision-making methodology in the bill. There are some things that have to be considered but really the process of applying for a marine consent being issued a marine consent and the appeals around that are actually very very unclear. My fear is that this is going to result in an awful lot of uncertainty. There are some obligations on the Environmental Protection Authority as to what it needs to take into account and there have been some information principles put in but I really do not feel that they are strong enough in order to really guide the authority through the process to allow applicants both those from industry who are applying and those who are submitting on those applications to really know what the process is meant to be so that they can challenge it if they think that it has not been adequate. We had a very good submission on this from Simon Terry of the Sustainability Council who really raised it as a major concern and said it was a similar concern with the Hazardous Substances and New Organisms Act when that went through Parliament as well. The way they plugged that gap was to allow for regulation-making abilities in the legislation. 
When you read clause 27 it is possible that in fact it could fall within the ambit of this piece of legislation to provide for the regulations to provide the decision-making methodology. But it is not clear and in fact the advice that has come back from officials is that no it is not the intention of the legislation to allow for decision-making methodology to be provided in regulation. The officials consider it may actually be ultra vires of the legislation and so I have an amendment in my name to clause 27 to add in decision-making methodology to the list of things that can be done by regulation either by this Government if it decides it wants to actually provide more certainty and provide a clearer process and a more transparent process that guides the Environmental Protection Authority far more strongly than the bill currently does or by a future Government that intends to clarify this. 
There really is nothing in this bill to give guidance to the Environmental Protection Authority on how it is meant to weigh up the various factors. There are an awful lot of things it needs to consider but I think as the Green member Eugenie Sage said in an earlier speech there is no guidance as to what takes precedence over things. There is no priority given to the various things that the Environmental Protection Authority is required to consider. We think this is a very very big gap in the legislation. It is a gap that could be easily fixed. If we are unable to get support from the Government to allow this to proceed then we may look to writing to the Regulations Review Committee to ask it whether it could consider the matter of whether or not this kind of power would fill the gap as indeed it did with the Hazardous Substances and New Organisms Act. The last thing we want and one of our big concerns about this legislation—and we have said this the whole way through—is for it to be a field day for lawyers an absolute field day for lawyers which is perhaps why the law firm for the oil and gas industry was so effusive in its support for this piece of legislation when it came to the Local Government and Environment Committee. And why would it not be? 
I have a number of other amendments and I want to go to the main ones first. If I get time in this speech I will come back to the others. One of our really big concerns is the creation of all these new legal tests in this legislation. It is undefined legal language. We had 20 years of Resource Management Act case law that we could call on to provide us with those legal terms that we could use in this legislation so that everyone knows exactly what that means. This is not about extending the Resource Management Act out into the exclusive economic zone. It is not about saying the Resource Management Act now applies beyond 12 miles. It is just about saying that through 20 years of Resource Management Act case law there are some pretty well-understood terms. Internationally there are some well-understood terms. It would make sense given that these two schemes are going to operate side by side the Resource Management Act and the exclusive economic zone legislation. The line that lies between them is jurisdictional only. It is there only because within 12 miles it is our territorial waters and beyond that it is not our sovereign territory. We are able to exploit the resources there only because we are a signatory to an international convention. So why would you have two regimes regulating exactly the same thing side by side with completely different processes and completely different legal tests? It does not make any sense unless you want the exclusive economic zone regulation to be more permissive—or tougher but in this case it is more permissive. So it is only if you actually want the test to be different that you would not use the same legal tests that exist under the Resource Management Act. 
One of the ones that we have here in clause 33A “Information principles” is “favour caution”. “Favour caution” is not found anywhere else in New Zealand; it is not understood what that means. Industry and environmental advocates are going to fight it out in the courts. That is going to be the only way we actually determine what “favour caution” means. How does that provide any certainty? I have an amendment in my name to replace “favour caution” with “a precautionary approach”. “A precautionary approach” is well understood. People know what it means. They know where the goalposts are. The oil and gas industry in Taranaki has been able to operate under the Resource Management Act and it has not been completely stymied by the legal tests there. The Taranaki Regional Council when it came and submitted at the select committee said it would prefer more consistency with the Resource Management Act because it is used to dealing with it and it understands it. Now it is going to have to come to grips with a whole new set of rules a whole lot of appeals and a whole lot of concerns as people grapple it out and try to fight as to what this “favour caution” means. 
As I said ultimately it will be the courts that decide what “favour caution” means. It may go against the Government’s wishes. It may end up being tougher than the Resource Management Act but I doubt it because all the indications given from the Government so far on this piece of legislation have been that it wants to do more of this so I think the inference could be taken that it was intended to be more permissive on balance rather than tougher. But on this side of the Chamber in the Labour Party we wonder why you would not use well-known legal tests to save people the lawyers’ bills and to save people the uncertainty. The answer is that the only reason you would not is that you do not want the tests to be the same. That is the only reason. 
If you remember this is a jurisdictional line. It is not about resource allocation. It is not about the environment. It is not about science. It is not about any of those things. It is just about where our territorial waters end. That is why the line is drawn there. So why do we have a completely different test? There may be some projects that actually operate across that line so they have to go through both processes—the Resource Management Act on this side and the exclusive economic zone processes on the other side. They are facing completely different legal tests for exactly the same activity. Well that is just nuts. That is just nuts. It is not clear. It is going to create enormous uncertainty. We really hope that the Government takes that on board and goes with language that is well known. 
I also have an amendment on the adaptive management approach which I will probably leave for my next call because I think that will perhaps take too long. 
One of the other areas that I have proposed changes to is around when regulations are going to be changed and who gets to be notified who gets to be told. I have proposed some amendments to make sure that when regional councils iwi and stakeholders are being engaged in this they are being given all the information possible. At the moment the Minister is required to provide basically just a summary of what is about to happen. Well we think they should be given the full text of what is about to happen. They can be given a summary too if that is what the officials want to do but they need to see exactly what is about to happen. As we see with this Supplementary Order Paper the devil really is in the detail. Then there is an out clause for the Minister to not have to go through that process of consultation if the changes are only minor or technical. I have an amendment in my name to add in clause 32(3) “that have no potential to increase an adverse effect on the environment or an adverse effect on persons with an existing interest”.