EEZ Bill: Walking the tightrope – Balancing the economy, the environment, and international law
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The Exclusive Economic Zone and Continental Shelf (Environmental Effects) Bill, reported back from select committee on 15 May 2012, leaves existing statutes largely intact, but acts as "gap-filling" legislation for implementing an environmental management regime beyond the 12 nautical mile limit of the territorial sea.
The purpose of the Bill is to seek "a balance between the protection of the environment and economic development". Most significantly, the Bill proposes a marine consent regime similar to that of the Resource Management Act 1991, whereby consents must be granted by the Environmental Protection Authority before certain activities can take place in the EEZ or on the continental shelf. The primary activities affected by the Bill will be those that disturb the seabed, such as mining and oil and gas exploration and production. Certain activities will be given permitted, discretionary or prohibited status by regulations made by the Governor-General on the recommendation of the Minister for the Environment.
As under the RMA, applicants will be required to submit an environmental impact assessment for discretionary activities, and there is a duty to avoid, remedy, or mitigate adverse effects. However, all applications for discretionary activities will be publicly notified and open to submissions and, in all likelihood, will involve a hearing.
Opposition in select committee
Few substantial changes occurred in the reported back version of the Bill. However, divisions between political parties became clearer. Having supported the Bill in its first reading, the Greens now oppose the current Bill, along with Labour and New Zealand First. The opposition parties believe the Bill should prioritise the environment above economic development, rather than seek to balance the two.
Economy vs environment?
The most contentious issue in the Bill is whether the purpose clause should prioritise the protection of the environment above economic development, as the opposition parties suggest, or seek to balance the two, as in the current clause. The wording of the purpose clause is important because, while the Bill includes a long list of matters that a decision-maker must take into account in clauses 33 and 59, there is no guidance as to how different matters should be weighted. This leaves considerable discretion to the decision-maker on how to achieve the balance required by the purpose clause.
Consistency with international law
Considerations of international law are important in the EEZ and continental shelf, as New Zealand does not have full sovereignty beyond 12 nautical miles but relies on rights under the UN Convention on the Law of the Sea (UNCLOS). The Parliamentary Commissioner for the Environment, Dr Jan Wright, submitted that the Bill is inconsistent with the obligation under UNCLOS to "protect and preserve the marine environment". However, the Ministry of Foreign Affairs considers the Bill to be consistent with UNCLOS as a whole, stating that the obligation to "protect and preserve the marine environment" must be considered in light of the right to "explore and exploit" the resources of the EEZ. Clause 11 of the Bill now requires that the "Act must be interpreted, under various international conventions relating to the marine environment" including UNCLOS and the Convention on Biological Diversity. The legal effect of that provision remains unclear.
The precautionary approach and adaptive management
The Bill incorporates a form of the precautionary approach by requiring decision-makers to "favour caution and environmental protection" when the information relating to a marine consent application is uncertain. If an application is likely to be refused due to uncertainty, the decision-maker "must first consider whether taking an adaptive management approach would allow the activity to be undertaken."
An adaptive management approach would allow activities to proceed in stages with monitoring and review mechanisms that enable changes to be made or activities halted based on the level of effects on the environment. The Bill as reported back remains somewhat unclear on the use of adaptive management conditions for marine consents, and may require further refinement to remedy some apparent inconsistencies in the drafting.
Proposed regulations discussion document
The Ministry for the Environment has released a discussion document entitled "Managing our Oceans" for regulations proposed under the Bill. The document includes proposed criteria for classifying activities, and discusses how each industry would be affected under those criteria. No prohibited activities are proposed. There are five proposed permitted activites (subject to compliance with conditions) involving cables, surveying, research and prospecting. The activities given proposed discretionary status are those that breach the permitted activity thresholds and those that relate to exploration for and production of oil and gas, and seabed mining.
The Ministry for the Environment seeks feedback on 63 questions in the document. Submissions on the proposal document are due by 20 June. The document can be found here.
If you would like assistance in making a submission to the Ministry for the Environment, or would like further information and advice about the Bill, please contact one of our team - Paul Beverley, Patrick Mulligan, Kerry Smith, Rachel Dunningham, Cedric Carranceja, David Allen, David Randal, Andrew Braggins or Vanessa Evitt.