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 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?

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 non- notified 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 decision- makers 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 decision- makers 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?