Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012

The Act aims to promote the sustainable management of natural resources in the exclusive economic zone (EEZ) and continental shelf.

The Act also seeks to protect the EEZ and continental shelf from pollution by regulating discharges and dumping. It seeks to achieve these goals by allowing for the regulation of certain activities that were previously unregulated in the EEZ and continental shelf.

More detail on the operation of the Act is outlined in the Geographical area covered by the Act section.

Parliament has made three sets of amendments to the Act since its inception.

These are the:

• Exclusive Economic Zone and Continental Shelf (Environmental Effects) Amendment Act 2013 [New Zealand Legislation website]
  • This introduced a non-notified discretionary classification for activities regulated under the Act. It also transferred regulation of the discharge of harmful substances and the dumping of waste from the Maritime Transport Act 1994 to the Act.
• Exclusive Economic Zone and Continental Shelf (Environmental Effects) (Transitional Provisions) Amendment Act 2015
  • This addressed an issue with the transitional provisions in section 162 of the Act.
• Resource Legislation Amendment Act 2017 [New Zealand Legislation website]
  • This introduced a number of amendments to the Act including:
    • aligning certain marine consent processes with the Resource Management Act 1991 (RMA) process for nationally significant proposals
    • a new tool for national direction
    • new requirements specifically addressing decommissioning activities
    • amendments to existing provisions, including transitional and enforcement provisions.

Ministry for the Environment

The Ministry for the Environment is responsible for the Act. This includes providing policy advice on its application and assisting in the development of regulations under it.

Environmental Protection Authority

The relevant marine consent authority (Environmental Protection Authority (EPA) or Board of Inquiry) makes decisions on marine consent applications. The EPA is responsible for the day-to-day operation of the Act and its regulations, including monitoring and enforcement.

For more information see EEZ marine activities [Environmental Protection Authority website].

Regional councils

The Act does not alter regional councils’ functions in the territorial sea under the RMA. Where an activity spans the boundary between the territorial sea (within 12 nautical miles of shore) and the EEZ, the legislation provides for joint decision-making between the regional council (under the RMA) and the marine consent authority (under the Act).

Additionally, the Minister for the Environment is required to notify regional councils when developing regulations and the EPA is required to notify regional councils whose regions may be affected by a specific application for a discretionary marine consent.

Exclusive Economic Zone

The EEZ is the area of ocean extending between 12 and 200 nautical miles from shore including the seabed and subsoil.

Continental shelf

The continental shelf is the seabed and subsoil of submarine areas extending out to the continental margin.

The Act does not apply to the coastal marine area (the area within 12 nautical miles of shore). This is regulated under the RMA.

The Act applies to the effects on the environment and existing interests of a specific list of activities that were not previously regulated in the EEZ or continental shelf. This includes some aspects of seabed mining and petroleum exploration and extraction, energy generation, and carbon capture and storage.

In the Act, an ‘effect’ refers to:

• any positive or adverse effect; and
• any temporary or permanent effect; and
• any past, present, or future effect; and
• any cumulative effect that arises over time or in combination with other effects; and
• any potential effect of high probability; and
• any potential effect of low probability that has a high potential impact.

The Act explicitly recognises the Crown’s responsibility to give effect to the principles of the Treaty of Waitangi (section 12 of the Act).

Treaty and Māori interests are recognised in the marine consent process, and enable Māori to participate in the process, these include:

• The EPA’s Māori Advisory Committee is able to provide advice and assistance to the marine consent authority on matters of policy, process and decision-making.
• The EPA Act requires at least one member of the EPA to have knowledge and experience relating to the Treaty and tikanga Māori.
• When appointing a person to a Board of Inquiry, the Minister must consider the need to have  knowledge, skill and experience relating to tikanga Māori.
• Existing interests include:
• the settlement of a historical claim under the Treaty of Waitangi Act 1975
• the settlement of a contemporary claim under the Treaty as provided for in an Act, including the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992
• a protected customary right or customary marine title recognised under the Marine and Coastal Area (Takutai Moana) Act 2011.
• The Act therefore requires decision-makers to consider Treaty settlements and customary marine title granted under the Marine and Coastal Area (Takutai Moana) Act 2011.
• Discretionary marine consent applications are publicly notified.
• Copies of applications for publicly notified and non-notified discretionary marine consents are served to iwi authorities and marine customary title-holders likely to be affected by the application.
• The Minister is required to establish and use a process that gives iwi adequate time and opportunity to comment on the subject matter of proposed standards and regulations.

For more information about the Treaty of Waitangi see the Waitangi Tribunal's website.

The decision-making framework for the Act acknowledges that there is limited information about the EEZ and continental shelf environment and new technologies which may be employed there. Decision-makers are required to take into account the best available information, consider any uncertainty or insufficiency in the available information and exercise caution when information is uncertain or insufficient.

Regulations under the Act fill the gaps in the regulation of the EEZ and continental shelf. They do not override existing legislation which includes the following:

• The Fisheries Act 1996 regulates the environmental effects of fishing.
• The Health and Safety in Employment Act 1992 covers the management of health and safety risks and inspections of offshore petroleum structures.
• Marine Protection Rules under the Maritime Transport Act 1994 covers marine pollution from oil spills.
• The Marine Mammals Protection Act 1978 makes provision for the protection, conservation, and management of marine mammals within New Zealand and within New Zealand fisheries waters.
• The Wildlife Act 1953 relates to the protection and control of wild animals and birds.
• The Biosecurity Act 1993 provides for the management of biosecurity risks in the EEZ.
• The Crown Minerals Act 1991 and Continental Shelf Act 1964 relate to the allocation of permits for prospecting, exploration and extraction.

There are appeal rights on points of law to the High Court against the decision to grant or decline a discretionary marine consent, the conditions placed on a marine consent, and any decision to review or cancel a marine consent. Applicants and submitters may appeal decisions on discretionary marine consents and applicants may appeal decisions on non-notified discretionary marine consents.