Transcript Session 2 Understanding the EEZ and CS Act and its

Understanding the EEZ & CS
Act and its Provisions
Siobhan Quayle & Siobhan Mordaunt (EPA Legal Team)
EEZ Act 2012
EEZ Act came into force in June 2013
Aim to balance environmental protection and economic
development for activities in the EEZ and extended continental
shelf
Restricts certain activities listed in (s 20)
Associated regulations
Permitted Activities Regulations
Fees and Charges Regulations
EEZ Amendment Act 2013
EEZ Amendment Act 2013
Established a non-notified consent process
Non-notified Discretionary Regulations 2014 currently only apply
that process to activities associated with exploratory drilling
EPA will become responsible for consenting discharges of
“harmful substances” and “dumping” in the EEZ due to
commence shortly with Discharge and Dumping Regulations
What activities need marine
consent?
What is currently restricted?
Section 20 of the EEZ Act restricts a range of activities on or under the
seabed or subsoil of the EEZ or CS, for example
construction / placement of a structure / submarine pipeline on or under
the seabed
disturbance of the seabed or subsoil in a manner that is likely to have an
adverse effect on the seabed or subsoil
removal of non-living natural material from the seabed or subsoil
causing vibration in the waters of the EEZ in a manner that is likely to
have an adverse effect on marine life, etc.
What will be restricted / prohibited?
EEZ Amendment Act restricts …
Discharges of harmful substances from structures and submarine
pipelines (s20B)
Mining discharges from ships (s20C)
Dumping of waste or other matters (s20G)
Emergency dumping of waste or other matter (s20H)
EEZ Amendment Act prohibits …
Dumping of radioactive waste or other radioactive matter (s20E)
Dumping toxic or hazardous waste (s20F)
What about other Marine Management
Regimes?
Shipping
HEALTH AND
SAFETY
Petroleum &
Minerals
Aquaculture
Other Activities e.g.
Marine Energy
Environmental Protection
Authority
Maritime NZ
Ministry of
Fisheries
RESOURCE
ALLOCATION
ENVIRONMENTAL
EFFECTS
Fisheries
NZ
Petroleum
and
Minerals
MBIE Labour
Group / Maritime NZ
MBIE
Labour
Group
MBIE Labour
Group / Maritime NZ
Existing Activities
Certain existing activities may continue for a prescribed period (s 21)
Planned petroleum activities may commence and continue (s 22)
Certain existing activities that become prohibited may continue (s23)
Unauthorised activities must stop (s24)
Ruling that the adverse effects on the environment or existing interests
of the activity are likely to be minor or less than minor (s162)
Where do Māori fit in the
framework?
Purpose (s10)
(1) The purpose of this Act is to promote the sustainable management of the
natural resources of the exclusive economic zone and the continental shelf.
(2) In this Act, sustainable management means managing the use,
development, and protection of natural resources in a way, or at a rate, that
enables people to provide for their economic well-being while—
(a) sustaining the potential of natural resources (excluding minerals) to
meet the reasonably foreseeable needs of future generations; and
(b) safeguarding the life-supporting capacity of the environment; and
(c) avoiding, remedying, or mitigating any adverse effects of activities
on the environment.
Treaty of Waitangi for EEZ applications (s12)
In order to recognise and respect the Crown’s responsibility to give effect to
the principles of the Treaty of Waitangi for the purposes of this Act ….
•
section 18 provides for Ngā Kaihautū Tikanga Taiao (Ngā Kaihautū) to
advise the EPA (in accordance with Ngā Kaihautū terms of reference
established under the EPA Act) so that decisions may be informed from a
Māori perspective.
•
section 45 requires the EPA to notify iwi authorities and [existing Māori
interests] of consent applications that may affect them.
•
section 59 requires the EPA decision-maker to take into account the
effects of activities on existing interests and to ‘have regard to’ Ngā
Kaihautū advice.
Who has an existing interest?
existing interest means, in relation to New Zealand, the exclusive economic
zone, or the continental shelf (as applicable), the interest a person has in—
(a) any lawfully established existing activity, whether or not authorised by or under any Act or
regulations, including rights of access, navigation, and fishing
(b) any activity that may be undertaken under the authority of an existing marine consent
(c) any activity that may be undertaken under the authority of an existing resource consent
(d) the settlement of a historical claim
(e) the settlement of a contemporary claim
(f) a protected customary right or customary marine title
What is the process?
Who hears and decides?
The EPA will appoint a decision-making committee to decide all s20
applications and notified marine discharge and dumping consent
applications
Decision-making committees will be between 2 to 5 persons with
relevant experience and qualifications including 1 EPA Board
member
The Chief Executive of the EPA (Rob Forlong) will decide nonnotified marine discharge or dumping consent applications
EPA decision: Unlike the RMA boards of inquiry these will be EPA
decisions similar to HSNO
Participation in the process
Anyone may submit on a publicly notified marine consent / marine
discharge or dumping consent application (s46) within 20 working
days of public notification of that application (s47)
No-one may submit on a non-notified marine consent application
The EPA may request information from applicants or any other
person on an application (notified or non-notified) to assist the
decision-maker (ss 42 and 44)
The EPA may request that parties, meet to discuss dispute or
engage in mediation to resolve a dispute (s44)
How is a decision made?
Information Principles (ss 61)
For marine consent applications and marine discharge and dumping
consent applications, the information principles require decisionmakers to:
make full use of powers to obtain information
make decisions based on the best available information that, in
the particular circumstances, is available without unreasonable
cost, effort or time
favour caution and environmental protection where information is
uncertain or inadequate
Adaptive Management (s64)
The EPA may incorporate an adaptive management approach into a
marine consent granted for an activity
Under s61, the EPA must consider whether an adaptive
management approach would allow an activity to be granted
consent where favouring caution and environmental protection
means an activity is likely to be refused
Adaptive management approach includes:
(a) allowing an activity to commence on a small scale or for a short period so that its
effects on the environment and existing interests can be monitored:
(b) any other approach that allows an activity to be undertaken so that its effects can
be assessed and the activity discontinued, or continued with or without amendment,
on the basis of those effects.
Decision-Making Criteria (s59)
Must take into account:
any effect on the environment or existing interests of allowing
the activity, including any effects beyond the continental shelf &
EEZ
the effects on the environment or existing interests of other
activities undertaken in the application area
a range of matters including biological diversity, protection of the
habitat of threatened species, economic benefit, and the nature of
other marine management regimes
the extent to which imposing conditions (s63) might avoid,
remedy or mitigate the adverse effects of the activity
Decision-Making Criteria (s60)
Must have regard to
the area that the activity would have in common with the existing
interest
the degree to which both the activity and the existing interests
must be carried out to the exclusion of other activities
whether the existing interests can be exercised only in the area to
which the application relates
Decisions
Decision-maker may (s62):
refuse consent
grant consent in whole or part
grant consent subject to any conditions considered appropriate to
deal with adverse effects of the activity authorised by consent on
the environment or existing interests (s63)
Appeals on questions of law only to the High Court (s105)
Differences - Discharge & Dumping
Information principles apply but does not require or enable decisionmakers to consider adaptive management (s87E)
Different decision-making criteria e.g. the EPA must take into
account whether there are practical opportunities to reuse, recycle
or treat the waste for a marine dumping consent application (s87D)
EPA must refuse a marine dumping consent in certain prescribed
situations e.g. where the EPA considers the waste or other matter
may be reused, recycled, or treated without adverse effects on
human health or the environment that are more than minor (s87F(2)
Questions?