6 Legislative Options
The form the new legislation takes will depend on the final content of the policy and the administrative requirements. The two broad options given were to amend an existing statute or to create new stand-alone legislation. Existing statutes that could be amended are the Territorial Sea, Contiguous Zone and Exclusive Economic Zone Act 1977 (TSCZEEZ) or the Maritime Transport Act 1994
Question 31: Do you consider the regime should be in separate legislation or should be incorporated in existing legislation?
Twenty-three submitters responded to the question of legislation. Seven submitters from the petroleum and minerals industries and one from science, academic and research, supported amending existing legislation. Fifteen submitters from local authorities, environmental NGOs, the fishing and telecommunications industries, others and the science, academic and research community supported the introduction of separate legislation. An individual submitter considered it premature to ask which option is preferred as, in their opinion there are problems with existing legislation relating to the territorial sea, contiguous zone and EEZ where there are overlaps and gaps.
Of those that supported the amendment of existing legislation, PEPANZ and Todd Energy suggested modifications to the Maritime Transport Act 1994. These two submitters suggested that EEZ consenting could be incorporated into the Maritime Transport Act 1994 as it contains the objective of “ensuring environment sustainability” and Maritime New Zealand is responsible for “protection of the marine environment in and beyond New Zealand”.
MIA suggested that very little legislation should be required at this transitional time. This submitter commented that if the critical issue is to collect knowledge and information about the effects of activities on the ecosystem, then that could be done under existing legislation by requiring 100 per cent observer coverage over every activity. MIA submitted that under the consent (and its monitoring and compliance), the data required on the effects of an activity on the ecosystem could be appropriately defined on a case-by-case basis. This submitter also noted that whether there are gaps or not in existing legislation, an overarching principle should be that:
... all activities in the EEZ, their possible interactions with other activities, and with the environment (chemical, physical, and biological) will be appropriately controlled and co-ordinated. The degree of control and quanta of information required for activities and their effects needs to be designed for the EEZ.
Nautilus Minerals recommended using the Papua New Guinea model for offshore legislation for seabed mining. This submitter said that the regulatory and permitting process in Papua New Guinea is similar to the RMA and could be modified for the New Zealand EEZ environment.
Three submitters that supported the option of stand-alone new legislation also commented on the option of amending existing legislation. Comments were that:
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although it may be more appropriate to have separate legislation, it was not a strong preference (Te Ohu Kai Moana Trustee Ltd)
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the TSCZEEZ could be extended into an environmental statute, but whichever option is chosen, it would need clear and certain purpose and scope, should be closely related to existing legislation, and should be able to drive change in that legislation if needed (MWH New Zealand)
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if stand-alone legislation is introduced, it would need to provide for the integrated management of the territorial sea and EEZ (Northland Regional Council).
Of the submitters that supported the introduction of stand-alone legislation, a common reason given was to have a clear purpose that could provide direction, and could operate across all other statutes operating in the EEZ. Auckland Conservation Board suggested that this clear purpose would mean the protection of the integrity of the marine environment stood above trade considerations or economic matters.
Environment Canterbury suggested that this environment required a whole-of-government approach, with a purpose differing from the existing legislation. Taranaki Regional Council noted that any “add-on” to an existing statute could be inconsistent with the purpose of the parent statute. Local Government New Zealand recommended the development of a New Zealand oceans (or EEZ) Act. This submitter also commented that strong links were needed between an EEZ management framework and existing management of the territorial sea.
Auckland Regional Council suggested that any new legislation needs to ensure sustainable management and provide an appropriate process for considering proposals. At the same time the legislation should avoid undue requirements and costs, which may result in deterring appropriate development and use of EEZ resources.
WWF recommended the introduction of an oceans policy, bringing all management issues under one document or act. This new act, WWF suggested, could then form the base for modernising the Fisheries Act 1996, Marine Reserves Act 1971 and Marine Transport Act 1994.
Greenpeace New Zealand outlined terms of reference for new stand-alone legislation, which it suggested could achieve and maintain good environmental status in the EEZ while allowing environmentally sustainable development projects to proceed. This submitter recommended adopting the following four goals to underpin new legislation:
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to preserve and protect, allow recovery, and restore the function and structure of marine biodiversity and ecosystems in order to achieve and maintain good ecological status of these ecosystems
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to phase out pollution in the marine environment to ensure there are no significant impacts or risk to human and/or on ecosystem health, and/or on uses of the sea
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to contain the use of marine resources and goods and other activities in marine areas to levels that are sustainable and that do not compromise uses and activities of future generations, nor the capacity of marine ecosystems to respond to changes
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to apply the principles of good governance, both within New Zealand’s waters and globally.
