New law governing the impacts of deep water petroleum and mineral

extraction

Robert MakgillBarrister & Solicitor

North South Environmental Law

Introduction• Increasing raw commodity prices = deep

water• International law & Impact Assessment

– Law of the Sea Convention 1982– ITLOS deep sea mining opinion

• EEZ (Environmental Effects) Act 2012– Precautionary approach– Adaptive management

New Zealand’s EEZ & CS

Source: Ministry for the Environment

• Territorial Sea – 12 nautical miles– Full sovereignty

• Continental Shelf & EEZ– 200 nautical miles – Rights to develop resources– Obligation to protect

Law of the Sea Convention 1982

ITLOS deep sea mining opinion• Concerns about liability in non-

jurisdictional waters• Duty of due diligence• Adopt laws and regulations:

– The Precautionary Approach– Best Environmental Practice – not best

available technology– Environmental Impact Assessment

New Zealand - Prior to EEZ Act• Petrobras decision clear statement of

statutory lacuna prior to EEZ Act• CMA requires allocation not environment

management• No Ministerial power or responsibility for

EIA

Exclusive Economic Zone and Continental Shelf

(Environmental Effects) Act 2012

• Introduced to plug statutory-gap in environmental management of EEZ

• Effects based legislation where decision-making is designed to be driven by scientific information

Purpose of the Act – s 10(1)• Clause 10(1) EEZ Bill:

– to achieve a balance between protection of the environment and economic development in relation to activities in EEZ or on the CS

• Section 10(1) EEZ Act:– to promote the sustainable management of the

natural resources of the EEZ & CS

Marine Consents• Activities in EEZ must permitted or

authorised by marine consent (s.20)• Consent applications must be supported

by an impact assessment (s.38 and s.39)

Information Principles – s.61• Act to gives effect through the information

principles (s.61):– Favouring caution and environmental

protection– Enabling adaptive management if caution and

protection means that an activity is likely to be refused

• Reasonable reflection of precautionary principle

Adaptive Management – s.64

• EPA may include adaptive management approaches in conditions of marine consent

• An adaptive management approach includes (s.64(2)):

– commencing on a small scale, or for a short period so that effects can be monitored;

– 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

Summary• Technology and commodity prices have driven

demand for deep water resources• International law concerning IA has been driven

by concerns about liability outside sovereign jurisdictions

• NZ has lagged behind other jurisdictions in environmental management of our EEZ

• The EEZ Act is an effects based instrument that relies on scientific information

• Poor information about the EEZ means IA preparation will need to include precautionary approaches

For more informationSee forthcoming article:

Ocean Governance in the Pacific since the ITLOS Advisory Opinion on Deep Seabed Mining

• R Makgill and K Dawson• The McGill International Journal of Sustainable

Development Law and Policy• Spring 9:1 issue. (Feb 2013)