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EEZ Bill Questions and Answers


Why do we need environmental effects legislation for the EEZ and ECS?

Some activities in our Exclusive Economic Zone (EEZ) or extended continental shelf (ECS), such as fishing and shipping, are already regulated and this provides some protection for the marine environment. But, until now, New Zealand has had no means to assess and regulate the environmental effects of many other activities such as seabed mining, petroleum exploration, and marine energy generation and carbon capture developments. This creates a potential risk of harm to the environment, a reputational risk for New Zealand internationally, and a lack of certainty for industry regarding the regulations that will affect their investments.


What activities and effects will be covered by the legislation?

The legislation will apply to most activities that cause environmental effects in the EEZ or ECS that are not currently regulated under existing legislation. This will include seabed mining and some aspects of petroleum exploration and extraction, energy generation, carbon capture and storage, and marine farming.


How will the legislation interact with existing regulation in the EEZ?

The legislation will not override existing regulation; it will fill the gaps in the control of the EEZ and ECS. For example, the environmental effects of fishing are already regulated under the Fisheries Act 1996. The management of health and safety risks and inspections of offshore petroleum structures are covered by the Health and Safety in Employment Act 1992. Marine pollution issues such as discharges and dumping of waste are covered by Marine Protection Rules under the Maritime Transport Act 1994. Other legislation applicable in the EEZ includes the Marine Mammals Protection Act 1978 and the Wildlife Act 1953. The Biosecurity Law Reform Bill currently before Parliament will provide for the management of biosecurity risks in the EEZ. New Zealand Petroleum and Minerals (part of the Ministry of Economic Development) is responsible for allocation of permits for prospecting, exploration and extraction under the Crown Minerals Act 1991 and Continental Shelf Act 1964, so this will not be covered by the EEZ legislation.


The legislation ensures that decision makers consider controls that have been established under other laws. For example, if an area has been closed to bottom trawling for fish, this will need to be taken into account when determining how to regulate seabed mining in the same space.


What will be the purpose and principles of the legislation?

The legislation will seek to achieve a balance between protection of the environment and economic development of natural resources in the EEZ and ECS. The legislation will set out an obligation for adverse environmental effects to be avoided, remedied, or mitigated. Principal considerations for decision-makers will include:

  • the adverse effects on the environment of all activities undertaken in an area of the exclusive economic zone or the continental shelf (including cumulative effects and effects regulated by other legislation)
  • the economic well-being of New Zealand
  • the efficient use and development of natural resources
  • the effects of activities on existing interests
  • the effects on human health that may arise from adverse effects on the environment
  • the nature and effect of other marine management regimes
  • the protection of the biological diversity and integrity of marine species, ecosystems, and processes
  • the protection of rare and vulnerable ecosystems, and the habitats of threatened species.

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Who will be responsible for functions under the legislation?

The Ministry for the Environment will be responsible for the legislation, development of regulations and for providing policy advice on the legislation. The Environmental Protection Authority (EPA) will make decisions on consent applications, and will be responsible for the day to day operation of the legislation, including monitoring and enforcement.


How will the legislation operate in practice?

The legislation will be an enabling Act under which a detailed set of regulations will be developed. These regulations will establish rules and standards, and will classify activities controlled under the legislation into three categories: permitted, discretionary, and prohibited. Activities that are classified as discretionary will require a marine consent from the EPA.


How will the consenting process work?

Consents will be required for discretionary activities. Applicants will be required to prepare an impact assessment statement identifying the effects on the environment and existing interests of the proposed activity. The impact assessment will also specify measures that will be taken (if consent is granted) to avoid, remedy, or mitigate the adverse effects. All applications will be publicly notified, and submissions will be invited. Hearings will be held if requested. The EPA will be the decision-maker on consents.


What will the EPA consider when making decisions?

The EPA will consider the application and submissions, the purpose and principles of the legislation, any relevant regulations, the effects of the activity, any information the EPA has received in relation to the application and industry best practice in relation to the activity.


Why is the EPA the right body to undertake consenting in the EEZ?

The EPA is a national body that manages the consenting process for large-scale, nationally-significant projects under the Resource Management Act 1991 (RMA), and approvals under the Hazardous Substances and New Organisms Act 1996 (HSNO). EPA staff have environmental risk management expertise. In anticipation of its new EEZ functions, the EPA will build expertise in marine matters. Marine (EEZ) consent applications to the EPA will generally be decided by a specially-appointed committee including subject matter experts.


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How does the legislation provide for the Treaty relationship?

The legislation contains a Treaty of Waitangi clause (clause 14) that explicitly recognises the Crown’s responsibility to take appropriate account of the Treaty.


Also, the following provisions will exist for Treaty and Maori interests to be recognised, and for Maori to participate in the consent process:

  • The EPA’s Maori Advisory Committee is able to provide advice and assistance to the EPA on matters of policy, process and decision-making.
  • The EPA Act requires at least one member of the EPA to have knowledge and experience relating to the Treaty and tikanga Maori.
  • Along with environmental effects, the consideration of effects on existing interests is a key element of the legislation. Impact assessments (provided with consent applications) will need to identify the impacts on existing interests.
  • The Bill will require decision-makers to consider Treaty Settlements, and customary marine title granted under the Marine and Coastal Area (Takutai Moana) Act 2011.
  • There will be public notification of all EEZ consent applications, including direct notification to iwi authorities and marine customary title holders likely to be affected
  • The Minister is required to establish and use a process that gives iwi adequate time and opportunity to comment on the subject matter of proposed standards and regulations.

 

How will the legislation deal with the lack of environmental information in the EEZ?

The decision-making framework for the legislation needs to acknowledge that there is little information about the EEZ and ECS environment, or the new technologies which may be employed there. Decision-makers under the legislation will therefore be required to take into account the best available information, consider any uncertainty or insufficiency in the information available and exercise caution when information is uncertain or insufficient.


What appeal rights will the legislation provide?

There will be appeal rights on points of law to the High Court against the decision to grant or decline a consent, the conditions placed on a consent, and any decision to review or cancel a consent.


Why not just extend the RMA to the EEZ?

The Resource Management Act 1991 regulates natural resource management activities on land and in the territorial sea out to 12 nautical miles. This Bill is not an RMA of the seas, nor is one required.  Beyond 12 nautical miles offshore there is less competition for resources, less local community interest and the number of activities needing consent will be a handful each year.


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Will local government have any role under the new legislation?

The Bill will not alter regional councils’ functions in the territorial sea under the RMA. Where an activity spans the boundary between the territorial sea and EEZ, the legislation will provide for joint decision-making between the regional council (under the RMA) and EPA (under the EEZ legislation).


Will there be interim arrangements before the legislation comes into force?

Some new oil and gas exploration activity may occur in the EEZ or ECS before the legislation takes effect. To manage the potential risks in this interim period, a voluntary regime will be put in place. It will foreshadow the requirements that will be in effect under the Bill. The key requirement is that industry operators will be asked to prepare an environmental impact assessment for their activity and submit it to the EPA for review. Many operators already meet and exceed best practice environmental and safety standards.


Will there be any transitional provisions?

When the legislation comes into force:

  • Operators of permitted activities will be required to comply with the regulations applying to the activity
  • Operators of discretionary activities (that are lawfully established) may continue for six months. If the operator intends to continue the activity beyond the six months, they must apply for consent through the standard process within the six months, and may continue until the application is decided.
  • Operators of prohibited activities must stop the activity by a time prescribed in regulations.
  • The existing petroleum platforms in the EEZ and prospecting licences under the Continental Shelf Act 1964 that were granted before 1 July 2011will be exempt from the requirements of the legislation.


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Last updated: 24 August 2011