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:4609. Text is incorporated into the Bound Volume.] 
MOANA MACKEY (Labour) 
: 
 I still have a number of amendments in my name that I have yet to be given the opportunity to speak to so I am grateful for the call. I think a general concern we have about Part 2 of the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Bill is that it seems that there are many more barriers to people submitting on applications than there are to the applicants. It seems—and as we come into Part 3 we will discuss the removal of appeals to the Environment Court—that there is that general tone throughout Part 2 of the bill and the Minister for the Environment’s Supplementary Order Paper 100 takes those a little bit further. 
My colleague Andrew Little has just been speaking on my Supplementary Order Paper 106 in relation to mediation. In fact the Minister does not need to support the Supplementary Order Paper; she just needs to withdraw her amendment in hindsight. But we were trying to put in the Supplementary Order Paper in order to outlay what our concerns were. I have had a conversation with the Minister about that and I appreciate that we agree to disagree on this matter. 
Although I certainly appreciate the concerns the Minister has about wanting to facilitate these processes and make them move smoothly we would have liked a bit of a protection in there to say that this cannot be used to try to undermine the mediation process while that is happening at the same time as a hearing. The Environmental Protection Authority could benefit from having that information in front of it. We would have liked to see some words around the situation where the discussions that are occurring at mediation do not have a material impact on the hearing and where things can be taken off-line. For example people with existing interests might just need to have a discussion with the applicant and that can be done outside the hearing. Absolutely but we I think would have liked to see that protection put into wording. 
I do not believe that the Environmental Protection Authority is going to try to abuse this power. That is a reality but I always like to have these belts and braces so that people can feel that their rights are not going to be usurped and there is some protection there. I do not believe for a second that the Environmental Protection Authority is going to suggest that Greenpeace and Petrobras go through a mediation process. I appreciate that this will probably be for small technical things. I think that is just where we would have liked to see that protection put into law but I appreciate that the Minister for the Environment has decided not to support that. 
I do have another amendment in my name that I hope the Minister will take a call on which is on the time limit for the hearing. New clause 52A in the Minister’s Supplementary Order Paper 100 says: “A hearing must be completed not later than 40 working days after the first day of the hearing.” That seems very reasonable because I doubt many hearings are going to go for longer than that. I have an amendment in my name that explains that where there are exceptional circumstances where you have a particularly complicated case—for example where something arises and the Environmental Protection Authority may need to call in an international expert and it may be hard to get that person in—we can be clear that actually the 40 days have to be 40 days of hearings not just 40 consecutive days or 40 working days. It is 40 working days. The Minister in the chair the Minister for the Environment is nodding. Yes I know that is what it is in the bill but just to clarify that in exceptional circumstances—and I know that off-line the Minister has indicated to me that that is somewhere else in the bill. It would be useful if she could tell me where that is and then we could have— 
Hon Amy Adams 
: 147. 
MOANA MACKEY 
: Sorry? 
Hon Amy Adams 
: 147 and 148. 
MOANA MACKEY 
: And what part is that in? 
Hon Member 
: 3. 
MOANA MACKEY 
: Part 3. OK we will have a look at that before we get to Part 3. 
But we are concerned. Again it comes back to I think the conversation that we had on Part 1 or Part 1A about just making it clear that when we were talking about clause 42 which is around incomplete applications we would have liked to see it made clear that you cannot just go through that over and over again. I think it is the same here. It would not hurt to make it clear in this clause that even though there is a time limit of 40 days in exceptional circumstances where we want to make sure that we have the best decision-making processes and the best information available to the Environmental Protection Authority it is in fact able to extend that hearing beyond 40 days. I will have a look at that when we come to Part 4 of the bill. 
 My colleague Grant Robertson talked about the amendment that I have in my name on Supplementary Order Paper 103 around adaptive management. That is a real concern. We had a big discussion about it at the Local Government and Environment Committee. Obviously it was another area—it was along the same lines as the precautionary approach—where some people had big concerns about the use of adaptive management. But we really do feel that having some language in there around the fact that where the effects are likely to be very serious or irreversible adaptive management is just simply not appropriate for most of the things that occur in the exclusive economic zone. We were focusing deeply on oil and gas exploration but this covers a much much broader variety of activities. In fact I suspect that most of the marine consents issued under this legislation will relate to the laying of pipelines fibre-optic cable and things like that. 
There may be other areas where in fact adaptive management can be used and is appropriate but where the effects on the environment especially are likely to be irreversible that undermines the whole concept of adaptive management because it means you cannot pull it back. Adaptive management is about allowing something to go ahead and tweaking it as you go. When it comes to an irreversible change to the environment there is no tweaking that can happen beyond that. So I would again really urge the Minister to think seriously about how adaptive management has been laid out in the bill. 
There is a much smaller issue but I do want to mention it because it does occur throughout the legislation and it is in clause 60A the information principles. We are seeing this throughout the bill whenever there is any guidance around what information the Environmental Protection Authority needs to consider when it is considering an application. We notice in the Minister’s Supplementary Order Paper that there has been a real narrowing down so that in many cases it can be only information that it has sought. So if someone has provided it previously with some information that might be relevant which might indicate environmental impacts that may well be serious or irreversible and where they may be concerned that the Environmental Protection Authority has made a decision that goes against the advice that has been provided in that paper unless the Environmental Protection Authority itself has sought that paper then it does not have to consider it. 
I think that in terms of the Environmental Protection Authority developing up its knowledge base suddenly the bill says that the only things that need to be considered in legislation are things that the Environmental Protection Authority has actively sought out itself—although we welcome other amendments the Minister has made to require it to consider the input of the Maori advisory committee. We see it in the amendments to clause 59(4)(b) as well where it is only the information that has been sought that must be considered by the Environmental Protection Authority. Suddenly we are narrowing down what it needs to consider. I am not quite sure why that is. [ 
Interruption 
] The Minister says it is not but it would be useful to know what it is. It is one of those things where you think it could have a large material impact on the processes and the ability of people to challenge the Environmental Protection Authority when they really feel that they provided some very strong evidence and the evidence was not even considered at all because it now falls outside the requirements of the Environmental Protection Authority to do that. 
That is about all I have for my contribution on Part 2 but I do just want to briefly respond to the comments made by Nick Smith when he gave his somewhat wide-ranging speech on Part 2 of this piece of legislation. I think that any political party that has not taken stock of its policies in this area post the Gulf of Mexico and post the  
Rena  
is not taking the issue seriously enough and its members are being neglectful in their duties as parliamentarians. Certainly both those events were game-changers. I went to a public meeting in Whakatane around the  
Rena 
 where there was real anger and the Hon Dr Nick Smith did not want to answer a lot of the questions that people were having around the application off the East Coast by Petrobras. They were game-changers. 
Well Hekia Parata can pull faces at me. We would have loved to see her during her time as Associate Minister of Energy and Resources on the East Coast— 
Hon Hekia Parata 
: I was happy to answer the questions. I answered the questions. 
MOANA MACKEY 
: Well you were not happy to answer questions when you were the Associate Minister of Energy and Resources. That is the problem Ms Parata. We would have loved to have the Minister at many meetings up there. 
Hon Hekia Parata 
: I continue to do so in my home area. 
MOANA MACKEY 
: I know it is your home area. That is why we were so disappointed. 
But following on from the comments the Hon Dr Nick Smith made yes we did a lot of the stuff when we were in Government. But we took stock and said: “Really have we got those bottom lines right? Are we addressing the concerns of the public?”. This legislation which started its life under a Labour Government but was much more environmentally stringent we simply do not believe meets that test. So Nick Smith can attack us for that but the reality is that they were game-changers. We saw what happens when oil gets in the water in the eastern Bay of Plenty and the Bay of Plenty and the public have concerns and they have every right to expect that their representatives in Parliament will take those concerns on board and learn from them. I guess that is the difference between being in a progressive party and being in a party that is constantly about the status quo and with no new ideas. 
So I would welcome the Minister’s comments on some of those parts in the bill. But certainly on the issue of the time limit of the hearing we will get to it when we come to Part 4.