Mackey Moana: Exclusive Economic Zone and Continental Shelf (Environmental Effects) Bill — Second Reading 
Text is incorporated into the Bound Volume 
Mackey Moana: Exclusive Economic Zone and Continental Shelf (Environmental Effects) Bill — Second Reading 
[Sitting date: 30 May 2012. Volume:680;Page:2738. Text is incorporated into the Bound Volume.] 
MOANA MACKEY (Labour) 
: 
 Talofa lava Mr Speaker. I want to start by saying that I do not think that you would get any disagreement in this House that legislation monitoring and governing what happens in our exclusive economic zone and continental shelf is needed. What we on this side of the House are saying is that this bill the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Bill simply does not achieve the Government’s stated aims of allowing that economic activity to continue whilst protecting the environment in which it occurs. New Zealand has the fifth-largest exclusive economic zone and continental shelf in the world. The only reason that we have any right to for example exploit resources in that area is that we are signatories to the United Nations Convention on the Law of the Sea. But in signing that convention we also signed up to an obligation to put in place legislation that would allow any activity in that area to occur in an environmentally sustainable way. 
I have to put on record our concern and disappointment that the Government has decided to charge ahead with the exploitation of mineral resources in our exclusive economic zone before this bill has even passed through the House. I think it shows a level of arrogance. It shows that the debating process in this House the Committee stage that is coming up and the select committee process is just a rubber-stamping exercise because members opposite are so sure it is just going to get rubber-stamped by the parties that are supporting it. At the first reading it was more parties and we are very happy now that the select committee process has highlighted the inadequacies of this piece of legislation but now it is going to be rubber-stamped by ACT rubber-stamped by United Future and rubber-stamped by National and in fact we are not going to have the proper debate that we need to have. All the while the Government is going out there and saying: “Please come in here go into the exclusive economic zone exploit those resources. We have got a voluntary regime in place.” 
On the first reading of this bill I put to the then Minister for the Environment Nick Smith the case on the East Coast with Petrobras coming in and carrying out oil and gas exploration. He said to me: “No we guarantee that nothing can ever happen until the bill is passed.” Well that is actually not true. There is a voluntary regime in place that the Government is asking people to subscribe to but if this bill does not meet our international obligations under the United Nations Convention on the Law of the Sea then certainly a voluntary regime does not meet our international obligations. We think that perhaps the Government should just have waited until we had legislation in place before allowing those activities to go ahead. 
The issue has been raised about whether or not this meets our international obligation and clearly there is disagreement. It is not true that we were told by all submitters that it did meet our international obligation. We were astonished that the Government had not even bothered to get a legal opinion on this bill before it got to the select committee and the reality is that we are never going to know until it is tested in the court. That is a reality. But we could have made certain that it met our international obligations by simply using the language that the convention uses. What the convention says is that it is not a balance between economic development and environmental protection. We have a right to exploit the resources in our exclusive economic zone but that comes with an obligation—a duty—to ensure environmental protection. That is not a trade-off; that is a right with an obligation. Environmental protection is the bottom line.  
The Parliamentary Commissioner for the Environment said in her submission: “we can pursue economic development but we must protect the environment. The former—economic development—is optional. The latter—environmental protection—is not.” That is what the Parliamentary Commissioner for the Environment told the select committee. 
Hon Steven Joyce 
: We don’t want jobs eh? That would be terrible. No jobs. Don’t want the jobs. 
MOANA MACKEY 
: Well Minister Joyce can make fun of it. It will be great when the Government is in court defending this weak piece of legislation just because he would not put in a simple purpose clause that showed that we were consistent with the United Nations Convention on the Law of the Sea and that left absolutely no question as to whether or not we had met our international obligations.  
Now I come to the issue of the regulations because one of the other issues that was raised at the select committee was that so much of this has been done by regulation. This is a pattern we are seeing with this National Government particularly on contentious pieces of legislation: put as much of it as possible into regulation as you can and then it does not see the light of day at a select committee and it does not come to the House to be debated. Before me is the discussion document on the regulations on this legislation. As you can see it is not insubstantial and what submitters said to us was: “It’s really difficult for us to know how effective or ineffective this piece of legislation is going to be when we have not seen the regulations.” The regulations were released only after we heard submissions at the select committee so they said: “Either keep the bill in select committee until we have had time to review the regulations and maybe come back to you with a supplementary submission—we do not have to be heard in person; it could be a written submission—or send the bill back to the committee once the regulations are released.” This is a discussion document but we know how discussion documents go with the National Government. Basically it is: “This is what we are going to do. We are going to put it on our website and invite you to waste your time reading it and writing and telling us what you think despite the fact that you know a lot more about it than we do. Then we are going to ignore everything”— 
The ASSISTANT SPEAKER (H V Ross Robertson) 
: Order! 
MOANA MACKEY 
: I am sorry Mr Speaker. Then they will ignore everything that those submitters say and do exactly what they were going to do in the first place which is implement it. So submitters know that these are the regulations that are going to ultimately be in place and they would just like the opportunity to go back to the select committee take account of the regulations alongside the legislation and advise the committee and this House on what the overall impact of the bill is going to be. But obviously they were not given that opportunity and given how quickly the discussion document was released after the bill came back from the select committee I do not think it would have been too difficult to have slowed down that process a little bit to allow that to happen. Clearly it was a deliberate attempt to not let that happen. 
We have also talked a lot about the Resource Management Act. What National members try to make out is that Labour members say they should just extend the Resource Management Act. Well that is not at all what we are saying. What we are saying is that the line that occurs at 12 miles is jurisdictional only. It is there only because within 12 miles that is our sovereign territory and on the other side of 12 miles it is not. That is why the line is there. It has got nothing to do with science it has got nothing to do with resource allocation it has got nothing to do with the environment; it is jurisdictional. So why would you have a completely different regime in the exclusive economic zone compared with inshore? 
Jacqui Dean 
: Because we don’t have sovereignty over the exclusive economic zone. 
MOANA MACKEY 
: Jacqui Dean says it is because we do not have authority in the exclusive economic zone. Our shipping laws occur— 
Jacqui Dean 
: No no. Sovereignty. 
MOANA MACKEY 
: Sovereignty in our exclusive economic zone. Then Jacqui Dean how can our coastal shipping laws occur in the exclusive economic zone? How can our health and safety laws work in the exclusive economic zone? How can our fisheries laws work in the exclusive economic zone? And how does the Biosecurity Act manage to operate in the exclusive economic zone? Apparently the only piece of legislation that is completely incapable of working in our exclusive economic zone is the Resource Management Act. So that is why we cannot have a bar of it. What a load of garbage!  
One of the energy companies that came to speak to the committee said to us: “We support this because it is going to be far more permissive than the Resource Management Act.” And that is the reality. Why would you create brand-new legal tests in the exclusive economic zone? Why would you not call on 20 years of Resource Management Act case law and put in place language and legal tests that are well tested well understood and that councils use now? The Taranaki Regional Council told us at the select committee that it would rather have tests and processes that it already knows. It has allowed oil and gas exploration to go ahead in Taranaki under the Resource Management Act; it has not stopped it. So why would you not use that instead of inventing this new term “favour caution”? No one knows what that means. This bill is an absolute boon for lawyers. They are really the ones who are going to benefit out of this piece of legislation because these are all untested— 
Charles Chauvel 
: It’s not all bad then. 
MOANA MACKEY 
: Mr Chauvel says it is not all bad then. It is untested and there is no reason to have two completely different regimes side by side one far more permissive than the other especially when you consider that some of these activities are actually going to cross that barrier. So they will go through a Resource Management Act process and a process to get a marine consent in the exclusive economic zone. Both those processes are completely different. With one you can appeal to the Environment Court; the other one you cannot—you can go only to the High Court on points of law. It is an absolute mess and all because the Government wants to make it as easy as possible for this activity to go ahead without the environmental protections that the Resource Management Act has provided in our territorial waters. That is the reason: to make it more permissive.  
Yet arguably the marine environment that we are talking about is far more dangerous than the exclusive economic zone. It is deeper. The Raukumara Basin is 3000 to 4000 metres deep where Petrobras is doing its exploration. The Gulf of Mexico is 1400 metres deep. That is far more dangerous far more risky and arguably we should have legislation that is far more robust when we are deciding to let that activity go ahead.  
Let us be clear. The concern with this legislation is around oil and gas exploration. There are a number of other activities as members point out. At the Local Government and Environment Committee the chair kept saying that this was not about oil—this was not about oil. She kept saying to submitters: “Don’t talk about oil.” But if the activity does result in an oil spill then it is about oil—it is about oil. 
There are a number of things that Labour members will traverse through the Committee stage. For example we are concerned about the provisions for penalties and cost recovery. There is actually nothing in this bill that realistically would require a company to have the money to be able to pay for the entirety of cost recovery in terms of bonds or insurance. The penalties are incredibly weak. They are not going to be any kind of disincentive. The processes in the bill are massively stacked against people submitting on an application and are stacked in favour of those making the application. As I said before being allowed to appeal only to the High Court on points of law instead of being able to appeal to the Environment Court raises natural justice issues and this will actually clog the system up rather than make it any easier. 
Labour members would like to work with the Government to make this piece of legislation workable. We obviously want to see legislation in place. This bill does not do what the Government says that it is going to do and it is crucial that we get it right.