EEZ and Continental Shelf (Environmental Effects) Bill

Marine Environment Bill – EEZ and Continental Shelf Bill

The Government introduced legislation to fill some of the major gaps in the management of the oceans outside New Zealand’s territorial sea – 12 nautical miles offshore - which is the area regulated by the Resource Management Act.

The current Exclusive Economic Zone and Continental Shelf (Environmental Effects) Bill proposes to sets up a new environmental management regime for New Zealand's Exclusive Economic Zone (EEZ) (12 to 200 nautical miles offshore) and the continental shelf extending beyond that. New Zealand has obligations and sovereign rights in these areas under the UN Convention of the Law of the Sea (UNCLOS).  Copies of the Bill can be found on the legislation website.

Activities covered by the Bill include seabed mining, some aspects of petroleum activities, energy generation, carbon capture and storage, and marine farming which currently are mainly unregulated under New Zealand law or only voluntary arrangements apply.

The Environmental Protection Agency is proposed to be the decision maker under the Act.

This legislation has been in discussion for nearly 10 years.  ECO raised concerns in 1998 at the absence of regulations apply to mining and other activities on the EEZ (see the Seaviews Conference).

One Achilles heel in the Bill is the Government’s return to the archaic concept of balance between protection of the environment and economic development (purpose – clause 10).

Unlike the provisions of UNCLOS there is no requirement to preserve and protect the marine environment (article 192).  It does require decision maker to act consistently with the UNCLOS (clause 11) but not other international environmental obligations.

There is no explicit precautionary approach although there is a requirement in clauses 10 to be cautious but it is unclear if that is cautious with information on development or protection of the environment.  This repeats a failure that also exists in the Fisheries Act.  However, clause 13(2) does make it clear that where “the information available is uncertain or inadequate, the person must favour caution and environmental protection.”

Clause 10 also includes a general duty for adverse effects to be avoided, remedied, or mitigated. The Bill does recognises that some adverse effects are avoided, remedied, or mitigated under other legislation.

The language used to make these requirements on decision-makers are weak – instead of the stronger requirements in for example section 6 of the Resource Management Act.

Clause 12 is a key provision which has a grab bag of contradictory obligations from “the economic well-being of New Zealand” to “the protection of rare and vulnerable ecosystems and habitats of threatened species.”  Unlike the RMA there are no matters of national importance for the environment which have “to be recognised and provided for”

There isn’t a general obligation on the Treaty of Waitangi as there is under the RMA rather it relates to specific action (clause 14).

The Bill has a structure similar to that of the Resource Management Act.  The Bill would establish a consent regime to regulate activities but this does not apply to activities which have mineral consents prior to 1 July 2011 (clause 16).

The Bill proposes a consent regime to regulate activities similar to the RMA. Activities are to be classified as permitted, discretionary, or prohibited by regulations. For discretionary activities, all operators will need to apply for a marine consent and there is an ability to object and make submissions.

The Structure of the Bill leaves much of the details to be established by regulations including controls and standards.

An impact assessment will form the basis of an application and will allow the Environmental Protection Authority (EPA) to assess the effects on the environment and existing interests. Clause 40 sets out the requirements for EIAs.

The Bill binds the Crown and allows limited enforcement action to be taken against it but exempts New Zealand and foreign warships and non-commercial state vessels from the provisions of the Act.

It is proposed that all provisions of the Bill would come into force by 1 July 2013.

Call for submissions and the dissolution of Parliament

The Bill was referred to the Local Government and Environment Select Committee,  Committee Secretariat, Local Government and Environment, Parliament Buildings, Wellington. Phone: +64 4 817 9485 or Fax: +64 4 499 0486.

While the closing date for submissions was 20 October, Select Committees ceased to exist upon the dissolution of Parliament on 20 October 2011. Submissions made during the interregnum (period during which the Parliament is dissolved) will be held by the Office of the Clerk, which will provide all submissions received to the new committees.

The Parliamentary website has the details for submissions to be presented on line.   Submissions can be emailed, as an attachment to interregnum.submissions@parliament.govt.nz.

The committee requires 2 copies of each submission if made in writing. Those wishing to appear before the committee to speak to their submissions should state this clearly and provide a daytime telephone contact number. To assist with administration please supply your postcode and an email address if you have one.