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Environmental protection laws for oceans introduced

Hon Dr Nick Smith

Minister for the Environment
24 August 2011 Media Statement
Environmental protection laws for oceans introduced

The Government today introduced legislation to manage the environmental effects of activities in New Zealand’s Exclusive Economic Zone (EEZ) and Extended Continental Shelf (ECS) and announced interim measures to manage the environmental effects of activities before the new law is passed.

“This legislation puts in place a robust system of environmental controls for the huge ocean and seabed area 20 times that of New Zealand’s landmass that is currently unregulated. This is about ensuring that New Zealand is environmentally responsible in taking up the significant economic opportunities in our EEZ and ECS,” Environment Minister Nick Smith said.

The Bill makes the new Environmental Protection Authority (EPA) responsible for consenting, monitoring and enforcement of activities that impact on the environment like petroleum exploration, seabed mining, deepwater aquaculture and marine energy development. It requires public consultation on regulations and consents and enables activities to be classified as permitted, discretionary or prohibited. The new law is intended to come into effect on 1 July 2012.

“The Government is also putting in place interim measures from today to ensure a smooth transition to the new regime. Environmental impact assessments will need to be undertaken and submitted to the EPA for oil and gas drilling operations. Operators will also need to comply with the latest drilling safety rules developed in the United States following the inquiries into the Gulf of Mexico disaster.

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“These measures complement last week’s announcements by the Minister of Labour on the establishment of a High Hazards Unit with four inspectors specifically for the petroleum industry. The Minister of Transport is also reviewing the liability insurance requirements for the industry and is looking to raise it above the current level of NZ$30 million,” Dr Smith said.

“The Bill has been introduced to Parliament today and will have its first reading in September. It will be subject to a full Select Committee process of public submissions. The Government’s intention, subject to the results of the General Election, would be to have the Bill passed in the first half of next year.

“This initiative is part of the Government’s bluegreen agenda of growing the economy but also ensuring we have world’s best practise in place to protect the environment.”


Attached – Questions & answers
Map of New Zealand’s EEZ and Extended Continental Shelf [PDF]


Questions and Answers

1. What is our Exclusive Economic Zone (EEZ)?

The EEZ is the area of sea, seabed and subsoil from 12 to 200 nautical miles offshore over which New Zealand has jurisdiction.

2. What is our Extended Continental Shelf (ECS)?

The ECS is the seabed and subsoil of New Zealand’s submerged landmass where it extends beyond the EEZ. In that area, New Zealand has exclusive sovereign rights for the purpose of exploring the continental shelf and managing, conserving and exploiting its natural resources. These resources are limited to those found on or under the seabed.

3. How large are New Zealand’s EEZ and ECS?

New Zealand’s EEZ is one of the largest in the world at more than 400 million hectares. Our extended continental shelf is approximately 170 million hectares.

4. Why do we need environmental effects legislation?

The effects of some activities fall outside of the existing regulatory framework.

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.

5. What activities and effects will be covered by the legislation?

Activities covered by the legislation will include seabed mining and some aspects of petroleum exploration and extraction. The legislation will also apply to any activities that may cause environmental effects such as the redistribution of sediment, damage to seabed or ecosystems.

6. Is there currently any regulation of petroleum and seabed mining in the EEZ?

Some existing laws apply to the EEZ. The allocation of petroleum permits for prospecting, exploration and extraction are covered by the Crown Minerals Act 1991 while licences for seabed mining are granted under the Continental Shelf Act 1964.

The management of health and safety risks and inspections of offshore petroleum structures are covered by the Health and Safety in Employment Act 1992, and marine pollution issues from ships and offshore installations such as oil spills and dumping of waste or dredged material, are covered by the Maritime Transport Act 1994. However there is currently no legislation in the EEZ that enables a full and comprehensive environmental assessment of all aspects of these activities.

7. What other regulation currently exists for activities in New Zealand’s EEZ?

The Fisheries Act 1996 provides for the management of fisheries, including the environmental impacts of fishing. Other legislation applicable in the EEZ includes the Marine Mammals Protection Act 1978, the Wildlife Act 1953 and the Biosecurity Act 1993. The Biosecurity Law Reform Bill currently before Parliament provides for the management of biosecurity risks in the EEZ.

8. Who will be responsible for functions under the legislation?

The Minister 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 information management, monitoring and enforcement functions.

9. What will be the purpose and principles of the legislation?

The legislation will provide for the development of natural resources in the EEZ and ECS, while protecting the environment from any adverse effects of these activities. 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 present and future economic wellbeing of New Zealand

• effects on the health and safety of people

• protecting existing uses, interests and values

• safeguarding the biological diversity and integrity of marine species and ecosystems and processes, protecting rare and vulnerable ecosystems as well as the habitat of depleted, threatened or endangered species

• managing the cumulative effects of all activities on the receiving environment

• the efficient use and development of natural and physical resources

• improving information and knowledge of the marine environment, including the effects of human activity on the marine environment.

10. How will the legislation operate in practice?

The legislation will be an enabling Act under which a detailed set of regulations will be developed. The details of regulations will be developed through a public consultation process. These regulations will establish the details of the management system through rules and standards, and will classify activities controlled under the legislation into three categories:

• activities with no, or only minor, effects will be classed as permitted

• activities with effects over certain thresholds will be discretionary and will require consent from the Environmental Protection Authority (EPA)

• some activities could be completely prohibited.

11. How will the legislation affect seismic surveying?

Seismic surveying is likely to be a permitted activity but governed by regulations that would set out how such work would need to be done. There would be public consultation on the regulations on seismic survey work.

These would replace the existing guidelines that are unenforceable.

More extensive exploration such as drilling would require a consent, assessment of environmental impacts, public notification, and opportunities for communities to have their say.

12. How will the consenting process work?

Consents will only be required for discretionary activities. Applicants will be required to prepare an impact assessment statement to identify the environmental effects of their proposal, and also the effects on other interests.

Applications will be publicly notified, and submissions will be invited. Hearings will be held if requested.

13. What will the EPA consider when making decisions?

The EPA will consider the purpose and principles of the legislation, the likely effects of the activity, and proposals to avoid, remedy or mitigate any adverse effects. It will also consider any matters raised in submissions or hearings.

14. How will the legislation deal with low levels of environmental information?

The decision-making framework for the legislation needs to acknowledge that there is little information about the EEZ and ECS environment and 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.

15. How will the new legislation interact with existing regulations?

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. Therefore, the new legislation will not regulate fishing. The legislation will ensure, however, that the EPA considers controls that have been established under other laws, and vice versa. 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.

16. 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. There also will be appeal rights to the High Court on both the merits and points of law against enforcement orders and conviction for offences.

Full appeal rights on the merits will not be allowed as it is preferable to have one robust and timely decision rather than full appeals on the merits. This approach is consistent with the current appeal rights for decisions of Boards of Inquiry under the RMA.

17. Will the legislation have any transitional provisions?

The legislation will come into force when the first complete set of regulations has been developed. Activities within the scope of the legislation that exist when the legislation comes into force will be issued with a transitional consent, and potentially will have to apply for a new consent at a later date, depending on the scale of the effects of their activity. New consents will not, however, be required for existing oil and gas production installations and associated infrastructure, such as pipelines.

18. Will local government have any role under the new legislation?

Regional Councils will still be responsible for Regional Coastal Plans and consenting for activities in the territorial sea (up to 12 nautical miles offshore).

Where an activity spans the boundary between the territorial sea and EEZ, the legislation will provide for a joint decision-making process between the Regional Council and EPA.

19. Why not just amend the RMA?

The Resource Management Act 1991 contains detailed planning and appeals processes. In the EEZ there is less competition for space and less effect on local communities. There also will be a relatively low number of activities regulated under this legislation in the foreseeable future. Therefore a separate and more streamlined piece of legislation is appropriate, rather than importing all of the detail of the RMA.

20. Why is the legislation being introduced in August – a month later than intended?

This is due to two reasons:

• Parliamentary Counsel Office taking longer than intended to draft the legislation

• Dialogue with iwi

21. How does the legislation provide for the Treaty relationship?

The legislation will provide for consultation with Maori, and will ensure consideration of Treaty settlements and customary rights and/or interests granted under the Marine and Coastal Area (Takutai Moana) Act 2011.

The EPA Advisory Committee, which carries over from the similar committee from ERMA, would also have a role in providing advice on process and decisions under the new EEZ/ECS legislation.

22. What was the outcome of the recent claim and application for urgency to the Waitangi Tribunal from Ngati Kahungunu on the EEZ legislation?

The Waitangi Tribunal ruled that the criterion for urgency had not been satisfied.

It also noted that the policy content, institutions and processes in the proposed legislation provide “realistic opportunities” for the recognition and protection of the claimants’ interests.

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