Current Environmental Legislation in the EEZ, and Management Gaps
This section of the report describes the four main statutes controlling environmental impacts in New Zealand's EEZ (from 12 to 200 nautical miles), and assesses the environmental requirements for current activities.
Legislation in the EEZ with environmental requirements
The four main statutes controlling environmental impacts in the EEZ are the:
- Marine Mammals Protection Act 1978
- Wildlife Act 1953
- Maritime Transport Act 1994
- Fisheries Act 1996.
The Marine Mammals Protection Act 1978 is administered by the Department of Conservation and makes provision for the protection, conservation and management of marine mammals within New Zealand and within New Zealand fisheries waters (including the EEZ and territorial waters). The Act protects marine mammals from harm or harassment.
The Wildlife Act 1953 is also administered by the Department of Conservation and provides for the protection and control of wildlife. It protects black coral, red coral and spotted black grouper, as well as other marine species such as seabirds and reptiles (eg, turtles and sea snakes).
The Maritime Transport Act 1994 is administered by Maritime New Zealand. Marine protection rules specifically cover, inter alia, the disposal of waste at sea, and the operational discharge of oil, noxious liquid substances, sewage, waste and other matters from ships and offshore installations.
The purpose of the Fisheries Act 1996 is to provide for the utilisation of fisheries resources while ensuring sustainability (defined as maintaining resources to meet the reasonably foreseeable needs of future generations; and avoiding, remedying or mitigating any adverse effects of fishing on the aquatic environment). The Ministry of Fisheries administers this Act.
Assessing the gaps in environmental legislation in the EEZ
Current activities
In order to assess whether environmental management in the EEZ is adequate, we need to identify activities that are currently operating in the EEZ. As discussed in the context section, broadly speaking these are shipping, petroleum activities (including prospecting and extraction), laying and maintenance of submarine cables and pipelines, fishing, scientific research (biological and non-biological), dumping, and prospecting for minerals. The next step is to identify the legislation and environmental requirements that would apply to each activity and whether these are adequate.
Table 1 below sets out the environmental requirements that apply to each activity and whether they include:
- procedures to assess environmental effects
- powers and procedures for setting conditions to protect the environment. [This table summarises sections of the paperManagement in New Zealand's Exclusive Economic Zone, the full paper is attached as Appendix 1.]
Please note that Table 1 does not discuss voluntary efforts by industry to manage environmental effects.
Table 1: Legislation, conditions and gaps in environmental management of current activities in New Zealand's EEZ
Table 1 shows that there are few procedures in place for assessing the environmental effects of current activities past the 12 nautical mile boundary of the RMA. In summary, in the EEZ:
- the only procedures in place for assessing the environmental effects of an activity are for dumping and biological research
- a strategy for managing the environmental effects of fishing is currently in draft form - this proposes that an environmental risk assessment be undertaken for each fishery within a specified timeframe
- there are no procedures in place for assessing the environmental effects of shipping, exploration or mining for petroleum, the laying of submarine cables, or the cumulative effects of activities.
This means that for many activities in the EEZ, government is unable to assess whether an activity will have a significant effect on the environment.
Table 1 also highlights that there are few specific procedures for setting environmental conditions on activities in the EEZ. There are regulations - or the ability to place regulations - on oil spills, operational discharges, fishing, biological scientific research and the disposal of wastes.
There are regulation-making powers under the Territorial Sea, Contiguous Zone and Exclusive Economic Zone Act 1977 for the enforcement and setting of penalties:
Where no other provision is for the time being made by any other enactment for any such purposes, the Governor-General may from time to time, by Order in Council, make regulations for all or any of the following purposes:
(a) Regulating the conduct of scientific research within the exclusive economic zone:
(b) Prescribing measures for the protection and preservation of the marine environment of the zone:
(c) Regulating the construction, operation, and use of artificial islands (whether permanent or temporary), and other installations and structures within the zone, including the establishment of safety zones around such islands, installations, and structures:
(d) Regulating the exploration and exploitation of the zone for the production of energy from the water, currents, and winds, and for any other economic purposes:
(e) Providing for such other matters as are necessary or expedient for giving full effect to the sovereign rights of New Zealand in relation to the zone:
(f) Providing that a breach of any such regulations shall be a criminal offence, and imposing penalties by way of fine not exceeding $10,000 for any such offences:
(g) Providing for such other matters as are contemplated by or necessary for giving full effect to the provisions of this Part of this Act (other than matters for which regulations may be made under section 22 of this Act) and for its due administration.
However, no regulations have been set so far under this Act.
The Territorial Sea, Contiguous Zone and Exclusive Economic Zone Act 1977 primarily establishes the various zones in the marine area - the territorial sea, internal waters, contiguous zone and the EEZ - and the means for setting the boundaries for those zones. The Act gives effect to the international law of the sea by setting out New Zealand's sovereignty, jurisdiction and sovereign rights to the marine area. While the Act has catch-all regulations within it, it is not designed to regulate environmental effects.
It is also unclear when the general regulation powers within the Act would apply, given that they are restricted to situations "where no other provision is for the time being made by any other enactment for any such purposes". For example, there is no Act that looks at the environmental effects of the laying of submarine cables and pipelines, although the Submarine Cables and Pipelines Protection Act 1996 does protect and manage cables and pipelines.
The Environmental Protection and Enhancement Procedures (EP & EP) may also still apply in the EEZ. The EP & EP are a 1973 Cabinet minute (updated in 1987) [The EP & EP were updated to enable their application for an interim period while the Environment Act came into force and the government had decided, through legislation or some other means, on the final form of its policy and procedures for environmental assessment.] that advise that government departments should ensure that a system of environmental assessment is implemented. The EP & EP also advise that it is the responsibility of government departments to ensure that environmental protection and enhancement are incorporated in their policies and operations.
Under the EP & EP, environmental assessment is to be applied to, among other things:
... the granting by the Crown of all licences, authorisations, permits and privileges which may have environmental implications and which are issued pursuant to a list of Acts (including the Fisheries Act 1908, the Mining Act 1971).
The EP & EP go on to provide advice on environmental assessment.
In 1995 the Ministry for the Environment advised the Parliamentary Commissioner for the Environment that the EP & EP were still applicable. However, the Ministry for the Environment has since published Auditing Assessments of Environmental Effects (AEE); A Good Practice Guide (Ministry for the Environment 1999). This is the government's advice on policy and procedures for environmental assessment under the RMA. The EP & EP have therefore been superseded in areas covered by the RMA by the explicit requirements to conduct an assessment of environmental effects under the Act. Arguably, the EP & EP still applies outside the 12-mile limit, as there is currently no guidance for environmental assessment in that domain.
The EP & EP are non-statutory - they are restricted to government activities rather than the private sector. For example, the Minister of Energy cannot decline a mining permit on the basis of adverse environmental effects being identified. The guidance on assessment of environmental effects under the EP & EP is also dated, and in some cases applies to Acts that have been superseded or no longer exist. However, the principles behind the EP & EP are sound and could serve as a basis for developing environmental assessment procedures in the EEZ.
Future activities
As increasing pressures are put on near-shore resources, it is likely that activities will extend further offshore (past the 12-mile boundary of the RMA) in the next 10 years. The management regime needs to be robust enough to manage the environmental effects of these 'future activities'. Based on the experience of countries overseas, the activities that may occur in New Zealand's EEZ in the future are:
- aquaculture
- the mining of minerals (other than petroleum)
- marine protected areas
- tourism
- energy generation.
As we have done for current activities, the legislation and environmental requirements that would apply to future activities are assessed, in Table 2 below, to see whether they include procedures to assess the environmental effects and procedures for setting conditions to protect the environment. [This table also summarises sections of the paperManagement in New Zealand's Exclusive Economic Zone. The full paper is attached as the Appendix.]
Table 2: Legislation, conditions and gaps in environmental management that would apply to future activities that may occur in New Zealand's EEZ
Table 2 highlights that in the future, new activities in the EEZ would not be covered by the current management regime. Aquaculture legislation extends out to 12 nautical miles (the boundary of the RMA) but does not apply in the EEZ. Regulation-making powers under the Continental Shelf Act 1964 and the Territorial Sea, Contiguous Zone and Exclusive Economic Zone Act 1977 could be used for environmental protection. However, as discussed above, doubt has been expressed about whether these regulations would stand up to legal challenge. If government does not have the ability to require assessment of the environmental effects of new projects, it is difficult to see how appropriate regulations would be devised.
Also, for new activities in the EEZ, such as aquaculture, no navigational safety provisions would apply. This means that government would not be able to insist that aquaculture structures are lit and marked appropriately in the EEZ. A lack of navigational safety could lead not only to loss of life, but environmental pollution.
A key problem is that for most activities there is no specific government agency with responsibility for managing their environmental effects. Maritime New Zealand administers the Maritime Transport Act, which creates rules and regulations on the disposal of wastes and operational discharges; the Ministry of Fisheries has a role under the Fisheries Act 1996 to manage the sustainable utilisation of fisheries resources; and the Department of Conservation can protect specified marine species under the Marine Mammals Act 1978 and the Wildlife Act 1953. Aside from these key roles, other departments do not have a role in environmental management in the EEZ. The Ministry of Economic Development grants licences for petroleum and mineral exploration and production [Although no minerals other than petroleum have been mined to date.] but does not manage the environmental effects of these activities.
Environmental rules and regulations in the EEZ are different for each activity, and in some cases it is appropriate to manage activities differently. For example, the kinds of environmental assessment that might be appropriate as part of a large aquaculture farm proposal would probably be different to an assessment for a single shipping voyage. The environmental context of activities is also important. The environmental effect of prospecting for minerals might be judged to be unacceptable in areas that are identified as being particularly sensitive, while considered appropriate in others. Currently we have very limited information about the EEZ, so management plans need to be able to adapt to increasing information.
In the past, government has run processes (under the EP & EP) to cover some of the gaps in environmental management, such as the environmental assessment of the Maui proposal. However, inconsistent management and ad hoc processes have created uncertainty for businesses about what may be expected of them when operating in New Zealand's EEZ.
In conclusion, change is needed to the way New Zealand manages the environmental effects of activities in its EEZ. The environmental effects of many projects operating in the EEZ are not assessed. Even if assessments were carried out, government would have limited legal ability to place conditions on the impact the activity could have on the environment. As a result, businesses are left unclear about the expectations of their operations in New Zealand's EEZ. Change is therefore needed, both to protect the environment and to provide certainty to businesses wishing to operate in the EEZ.
