The Exclusive Economic Zone and Continental Shelf (Environmental Effects) Bill passed its third reading on 28 August 2012 and was enacted on 3 September 2012. The Act will not come into effect until a complete set of regulations is developed.
In our June issue of Environment in Focus, we provided you with a summary of the Report of the Select Committee and Discussion Document for the Regulations. We now set out some of the sections of note in the Act.
- Purpose: The purpose of the Act was amended through the select committee process, and now mirrors the sustainable management purpose in the Resource Management Act 1991 (RMA).
- Treaty of Waitangi principles: The Act provides for the Crown's responsibility to give effect to the principles of the Treaty of Waitangi. The Act includes provision for decisions to be informed by a Maori perspective (section 18); a process is to be established and used that gives iwi adequate time and opportunity to comment on the subject matter of proposed regulations (section 32), effects of activities on existing interests are to be taken into account (sections 33 and 59), and iwi authorities, customary marine title groups, and protected customary rights groups are to be notified of consent applications that may affect them (section 45).
- The decision-making regime: Decision-making is with central government. The Environmental Protection Authority (EPA) decides applications for marine consents. The EPA may delegate its decision making to a Board of Inquiry or a committee appointed pursuant to the Crown Entities Act 2004. A Maori Advisory Committee may in some circumstances provide advice to the EPA.
- The marine consent regime: If an activity is not permitted or authorised by the Act, a marine consent is required to authorise that activity. Consent can not be sought for prohibited activities. An application for marine consent is made to the EPA. The application must describe the activity, existing environment, the effects of the activity, and identify any persons likely to be affected. All applications must be publicly notified and submissions invited. The EPA has discretion in setting the procedure for any hearing, but has strict and tight timeframes for the hearing date (not later than 40 working days after submissions), length of hearing (no longer than 40 working days) and date of decision (no later than 20 working days after conclusion of the hearing).
- Certainty of information: When considering an application for marine consent, the EPA must base decisions on the "best available information" and take into account any uncertainty or inadequacy in the information available. "Best available information" means the best information that, in the particular circumstances, is available without unreasonable cost, effort, or time. If the information available is uncertain or inadequate, the EPA must favour caution and environmental protection. If favouring caution and environmental protection means that an activity is likely to be refused, the decision maker must first consider whether taking an adaptive management approach would allow the activity to be undertaken (section 61).
- Adaptive management approach: The EPA may incorporate an adaptive management approach into a marine consent. This includes 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; or 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 (section 64).
- Protection of sensitive information: The EPA may, on its own initiative or on the application of any party to any proceeding, require the whole or part of a hearing to be held with public excluded or prohibit or restrict the publication or communication of any information supplied to it to avoid causing serious offence to tikanga Maori or to avoid disclosing the location of wahi tapu; or to avoid disclosing a trade secret or avoid causing unreasonable prejudice to the commercial position of the person who supplied or is the subject of the information (section 158).
- Conditions of marine consents: Conditions that the EPA can impose include requiring the consent holder to provide a bond, obtain and maintain public liability insurance of a specified value, appoint an observer to monitor the activity authorised by the consent and its effects on the environment, monitor and report on the exercise of the consent and the effects of the activity, and make records related to the activity authorised by the consent available for audit (section 63).
- Marine consents for cross-boundary activities: The EPA is responsible for ensuring the efficient and co-ordinated processing of a joint application for consent for a cross-boundary activity (section 96). A person who intends to undertake a cross-boundary activity may prepare a joint application for consent that complies with the requirements of the Act in relation to that part of the activity that relates to the exclusive economic zone or continental shelf; and the RMA in relation to that part of the activity that relates to the area within the 12 nautical mile limit. A person can also apply for a marine consent and resource consent for a cross-boundary activity separately, whether concurrently or at different times. However, the EPA may decide that a cross boundary application ought to be processed and heard jointly even if not applied for by the applicant (section 93). Separate decisions must be made on marine and resource consent joint applications – the EPA must decide the marine consent, and the consent authority must decide the resource consent (section 98).
- Nationally significant cost-boundary activities: Where an activity within the 12 nautical mile limit is a proposal of national significance that is referred to a board of inquiry, the EPA may delegate to that board the EPA's functions in relation to an application for marine consent. The board of inquiry will therefore decide the application for a resource consent pursuant to the RMA and the application for marine consent pursuant to the Act. The EPA will still be responsible for the processing of the application.
- Appeals on question of law: There is a right to appeal a decision by the EPA and/or conditions imposed in a marine consent to the High Court on points of law, and subsequently to higher appellant courts.
- Offences and Penalties: The EPA is also responsible for the enforcement regime. Offences are strict liability. A person who commits an offence against the Act is liable in the case of a natural person, to a fine not exceeding $300,000 and in the case of a person other than a natural person to a fine not exceeding $10 million. There are also fines for continuing offences.
- Transitional provisions: Various transitional provisions apply to existing petroleum activities that become discretionary under the regulations, mining activities involving structures or pipelines, or other lawfully established existing activities.
The regulations will provide the detail on what activities are permitted, discretionary and prohibited. The regulations may also specify the terms and conditions that will apply to a particular activity. The Minister must not recommend any regulation until they have been notified and open to public submission. The draft regulations are proposed to be notified in 2013.