Robertson Grant: Exclusive Economic Zone and Continental Shelf (Environmental Effects) Bill — In Committee 
Text is incorporated into the Bound Volume 
Robertson Grant: Exclusive Economic Zone and Continental Shelf (Environmental Effects) Bill — In Committee 
[Sitting date: 21 August 2012. Volume:683;Page:4598. Text is incorporated into the Bound Volume.] 
GRANT ROBERTSON (Deputy Leader—Labour) 
: 
 Mr Chair— 
The CHAIRPERSON (Eric Roy) 
: Grant Robertson. 
GRANT ROBERTSON 
: Oh thank you very much Mr Chair. 
The CHAIRPERSON (Eric Roy) 
: I thought we were going to have a different outcome then. 
GRANT ROBERTSON 
: Well we are in your hands Mr Chair. 
The CHAIRPERSON (Eric Roy) 
: You have the call. 
GRANT ROBERTSON 
: Thank you very much for the call. I am sure my very good colleague will speak soon on this bill the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Bill. I wanted to pick up a couple of the matters that Moana Mackey raised—in particular her amendments on Supplementary Order Paper 103 to clause 33A. What this particular part of the bill is about—what it should be about anyway—is both what is certainty and what to do in a situation of uncertainty. This is the bit of the bill that during the submission process and in terms of the comment that has been made around the bill both those who make it their life’s work to protect the marine environment and those who seek to undertake economic activity in the marine environment need certainty and want certainty and I am not convinced that it is provided by this particular clause. 
Clause 33A “Information principles” tells us in subclause (2) that “If in relation to the making of a decision under this Act the information available is uncertain or inadequate the Minister must favour caution and environmental protection.” As my colleague Moana Mackey has said the phrase “favour caution” does not have legal precedent or meaning in a New Zealand context. And as Moana Mackey said the question has to be asked as to what is intended by using a phrase that does not have any previous usage and does not have previous precedent. What is the point in using it? If the point is to create a precautionary approach as it is understood in law then surely the Government would use the words “precautionary approach”. It is the logical thing to do. It is an understood term. It has been talked about in international environmental law since the early 1980s. It has been present in terms of New Zealand’s role. New Zealand signed up to the Rio Declaration on Environment and Development at the Earth Summit in 1992 which had the precautionary approach. 
Hon Dr Nick Smith 
: Yeah. 
GRANT ROBERTSON 
: Nick Smith was there. He was chanting “precautionary approach” over and over again throughout that debate such was his enthusiasm then for the concept. But now today here in this exclusive economic zone legislation new language appears with the notion of favouring caution. It is clearly a deliberate approach by the Government to put in a different piece of wording and the only conclusion that can be drawn from that from this side of the Chamber—I happy to be proved otherwise—is that the Government is seeking to create a more permissive regime in the exclusive economic zone. 
Hon Dr Nick Smith 
: Oh! 
GRANT ROBERTSON 
: Well the member Dr Smith might want to take a call and explain the logic behind using a term like “favour caution” which has no meaning and no status within current New Zealand law rather than the term “precautionary approach”. If the reason is not that they want a more permissive approach I would be very interested to hear from the member why that is there. But more to the point the way in which the Government it appears is trying to manage this new term “favour caution” comes in the concept of “adaptive management”. If we go down to clause 33A(3) it says: “If favouring caution and environmental protection means that an activity is likely to be prohibited the Minister must first consider whether providing for an adaptive management approach would allow the activity to be classified as discretionary.” 
So the whole notion of what it is to favour caution and what happens if there is some conflict around a piece of development and how it might occur falls back to these adaptive management principles. We on this side of the Chamber have considerable concerns about the definition of “adaptive management” that appears in this bill. The problem with adaptive management drilling at the depths that will be drilled at in the high seas going into uncharted territory—both literally and figuratively—is that we have a great concern that the concept of “adaptive management” will not be able to be implemented in the way it is meant here because of the absence in their definition of the notion of irreversible effects. 
Moana Mackay in her Supplementary Order Paper 103 has new clause 62A which would actually define the adaptive management approach in such a way that the most important bit of it is subclause (2)(c) which says that an adaptive management approach “does not include allowing an activity to commence if its effects are likely to be serious or irreversible.” I would have thought that that was the kind of sensible amendment that the National Government would want to agree to because it is about providing certainty for everyone involved in this scenario. It is about certainty for those who wish to undertake economic activity and certainty for those who want—[ 
Bell rung 
]—Mr Chair very briefly. 
The CHAIRPERSON (Eric Roy) 
: Grant Robertson. 
GRANT ROBERTSON 
: Very briefly Mr Chair. I will not take my full call now that I have bargained for it. But I am sure the Chair would like to hear more from me on this topic having given me a full 5-minute call on this matter. 
The most important element of this is making clear that if the adaptive management approach were to include allowing for activity whose effects are likely to be serious or irreversible it is clearly not adaptive management. The point here is that the idea of adaptive management is that you can change the way in which an activity is being undertaken to meet whatever concerns are being raised. In these kinds of activities it is quite clear that a severe risk is run that those who will be undertaking the activity will be potentially involved in activities that may be serious or irreversible. It just seems ridiculous to have a notion of adaptive management in these areas that does not take that into account. So I hope that the Government will take on board this concern and also perhaps answer to us the reasoning behind the removal of the precautionary approach for the “favour caution”. I note that Dr Smith appears to be about to defend this; I await that with interest.