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New Zealand Journal of Environmental Law |
Last Updated: 25 January 2023
139
New Zealand’s Offshore Mining Regime — Rights and Responsibilities beyond the 12-Mile Limit
Michaela Stirling*
International law gives States certain exclusive rights over continental shelf resources, but also a correlating responsibility to protect the surrounding environment. This article examines this tension in relation to New Zealand’s offshore mining regime beyond the 12-mile limit, highlighting particular issues for the policy-setting period of the upcoming Oceans Policy.
I. INTRODUCTION
This article is divided into two halves. The first half (Parts II, III) looks at the nature of the “rights” international law gives coastal States over the offshore area and how these rights have been incorporated into New Zealand’s domestic legislation. Under international law, coastal States have the sovereign right to exploit the resources of their continental shelves. However, this is subject to the competing rights of other States within the area and the duty to simultaneously protect the marine environment that the coastal State is exploiting. As a result, these rights are not unfettered and States cannot act freely in exploiting these resources.
New Zealand is currently in the process of preparing a claim to the UN Commission on the Limits of the Continental Shelf to recognise further areas of its continental shelf which extend over 200 miles from shore. If the claim is approved, New Zealand’s continental shelf area may be legally delineated as the fourth largest in the world.
* BA/LLB Victoria, LLM (Envir) (Hons) Auckland. Formerly a natural resources policy analyst with the Ministry of Economic Development, now solicitor with Phillips Fox, Wellington.
<michaela.stirling@phillipsfox.com>. This article is based on a dissertation submitted in partial fulfilment of the LLM (Envir) degree. I would like to acknowledge my family for their support during the programme.
This extension of New Zealand’s sovereign rights will undoubtedly bring advantages to New Zealand by extending its offshore mineral resource base. However, these extended rights will also create increased areas of environmental responsibility for New Zealand under international law. This may put further pressure on New Zealand’s offshore management regime, especially as interest in offshore mining activity increases in the future.
The second half of this article (Parts IV, V) examines the environmental “responsibilities” which are linked to these sovereign rights; firstly at international law and then under New Zealand’s domestic legislation. The inherent tensions between exploiting resources and protecting the environment, and the constrained rights for coastal States beyond their 12-mile limits can make these concepts difficult to effectively translate into domestic legislation. New Zealand’s current regime for managing offshore mineral resources and the maritime environment is struggling to properly reflect these rights and responsibilities, and it has been criticised as being inconsistent and uncoordinated.1
As a possible answer to these problems, work is beginning on an Oceans Policy for New Zealand. The Oceans Policy aims to integrate New Zealand’s fragmented oceans legislation into an overarching framework. This article ends by examining the potential of the new Oceans Policy to better reflect current ideas at international law. It concludes that early work on the Oceans Policy appears to indicate that offshore mining activity will be subjected to more stringent environmental conditions in the future.
II. RIGHTS OF STATES UNDER INTERNATIONAL LAW
1. The International Law of the Sea
The concepts of territorial sovereignty and the freedom of the seas have been in conflict since the seventeenth century, when large volumes of maritime trade were being conducted over contested waters.2 The theory of the freedom of the high seas declares the seas to be free for all users and essentially limits national rights and jurisdiction over the oceans.
The concept found favour with other trading nations and it has since become a fundamental principle of customary international maritime law. Over time, the privileges of territorial sovereignty slowly became restricted to narrow strips of water, adjoining the coastlines of coastal States. Within these territorial sea areas, any conflict between States was resolved with a strong presumption in favour of the coastal State.3 However, beyond this limit, the coastal State’s rights were interpreted restrictively.
(b) Developments in international law
The practice of recognising these two maritime zones continued into the twentieth century, with nations traditionally claiming a 3-mile territorial sea limit. However, by the middle of the twentieth century, there was mounting pressure to extend national claims over offshore resources further into the high seas area. This was because of competing claims for lucrative offshore fish stocks, a growing realisation of the potential of seabed resources and also as a result of concerns about overfishing and the threat of pollution from transport ships and oil tankers travelling on the high seas.4
Soon after the Second World War, several countries began to claim territorial seas of 12 miles. In 1945, the USA unilaterally extended its jurisdiction over all the natural resources on its continental shelf, and shortly afterwards several South American nations asserted sovereign rights over a zone stretching 200 nautical miles from land.5
In addition, tensions were looming over new uses for the ocean’s resources. Offshore oil production, which had begun modestly in the Gulf of Mexico in 1947, reached a million (US) tons by 1954 and had escalated to 400 million tons by the late 1960s. During the 1960s oil exploration had also moved further from land deep into the continental shelf. Britain, Denmark and Germany were in conflict over how to divide the oil-rich continental shelf of the North Sea.6 Tin was also being mined offshore in Indonesia and Thailand and nodules lying on the seabed five kilometres below the sea surface were attracting international attention because of their manganese content.7
In addition to these conflicts over offshore mineral resources, there were serious concerns over large-scale fishing fleets depleting fish stocks and the increasing problem of marine pollution.
In 1967, Malta’s Ambassador to the United Nations called for the General Assembly to recognise the looming devastation for the oceans. He called for an effective international regime over the seabed and the ocean floor beyond a clearly defined national jurisdiction, which would update the freedom of the seas doctrine to take into account the technological changes which had altered humankind’s relationship with the oceans.8
Although four Geneva Conventions had been convened in 1958 to cover uses of the sea, this action started a global diplomatic effort, to regulate and write rules for all ocean areas, all uses of the seas and all its resources.9
In 1973, the Third United Nations Conference on the Law of the Sea (“UNCLOS”) was convened. It ended in 1982 with the adoption of a constitution for the seas — the United Nations Convention on the Law of the Sea (“the UN Convention”). The United Nations Secretary-General described it as “possibly the most significant legal instrument of [the twentieth] century” after its signing. It has now been signed and ratified by the majority of States worldwide and came into force after being ratified by 60 countries in November 1994. New Zealand ratified the UN Convention in 1994.
The UN Convention Secretariat notes that State practice has in nearly all respects been consistent with the UN Convention, particularly after its entry into force, and that it has been rapidly accepted by the international community as the basis for all actions dealing with the oceans and the law of the sea.10
The UN Convention sets out regimes for several new maritime zones, which preserve some of the former high seas freedoms, while granting coastal States increased rights over resources. As a result, about 87% of all known and estimated hydrocarbon reserves under the sea, as well as almost all known and potential offshore mineral resources now fall under some national jurisdiction.11
2. Maritime Zones
The territorial sea first appeared in treaty form in the Geneva Convention on the Territorial Sea and the Contiguous Zone 1958.13 The UN Convention preserved the Geneva Convention’s definition14 and stated that the territorial sea extends out to a maximum of 12 nautical miles from onshore baselines.15
Under the UN Convention, States have full sovereign rights within their territorial sea. This sovereignty is exercised subject to the UN Convention and to other rules of international law.16 The only constraint on these rights is that States are required to allow the right of innocent passage for foreign vessels.17
Beyond the territorial sea limit, as the maritime zones move outwards, States’ sovereign rights are diluted by more and more of the former freedoms of the high seas.
(b) Contiguous zone
The contiguous zone is the first of the zones beyond the territorial sea, extending 24 miles from the territorial sea baselines.18 State rights are interpreted more
restrictively in this area.19 Under the UN Convention,20 a coastal State can exercise the control necessary in its contiguous zone to prevent or punish some infringements that have occurred within the territorial sea. This is usually the right of hot pursuit.21 However, although the State has powers to interfere with vessels for these purposes, the vessel does not appear to have a correlating duty to submit.
(c) Exclusive economic zone
In 1972 the concept of the exclusive economic zone (“EEZ”) was introduced into UNCLOS discussions. During the lead-in period to the UN Convention negotiations, States had begun to claim exclusive fishing zones (“EFZs”) beyond the limits of their territorial seas, some extending up to 200 miles from their territorial sea baselines.22 The number of States claiming EFZs during this period made it clear that the status quo, namely exclusive fishing rights within the territorial sea boundary only, was under threat.23
As a result of this pressure, the UN Convention created the concept of the EEZ. Coastal States can claim an EEZ extending to a maximum of 200 nautical miles from territorial sea baselines.24 The almost universal signature of the UN Convention and the practice of States shows that the concept of the EEZ has entered international customary law. The International Court of Justice (“ICJ”) has stated that “the concept of the [EEZ] may be regarded as part of modern international law”25 and that “the institution of the [EEZ] ... is shown by the practice of States to have become part of customary law.”26
Article 56 of the UN Convention also extends the scope of coastal States’ rights within the EEZ beyond fishing to encompass “any economic activity” within the zone.27 This means that coastal States now have the right to exploit, develop,
manage and conserve all resources — fish or oil, gas or gravel, nodules or sulphur
— to be found in the waters, on the ocean floor and in the subsoil of an area extending 200 miles from its shore.28
By creating the EEZ, the UN Convention gave the world’s coastal States jurisdiction over the resources of 38 million square nautical miles of ocean space.29 However, being a creature of the UN Convention, States must actually claim an EEZ and do not enjoy them as of right.
There are other peculiarities concerning the EEZ. Because it was created as a specific creature of the UN Convention, the EEZ is designed to be subject to the provisions of Part V of the UN Convention rather than to the international law of the sea regime which existed at the time.30 This means that whereas before the UN Convention there were just two main maritime boundaries; the territorial sea, with its legal presumption of state sovereignty and the high seas, where the freedom of the seas is paramount, the EEZ is a zone sui generis, where neither state sovereignty nor the freedom of the seas is paramount.31
Instead, Part V of the UN Convention sets out a hybrid regime of rights and duties for the EEZ which preserves several of the former high seas freedoms for third party States, creates certain rights for coastal States and provides an obligation upon both to give “due regard” to the rights and duties of the other.32 These rights and obligations are extensive, and cover all potential uses of EEZ waters. As this article is primarily concerned with offshore mineral resources, it will only discuss the EEZ rights and duties which directly affect the exploration
of the continental shelf.
The structure of the UN Convention appears to treat the EEZ primarily as a zone of water, with the continental shelf as a distinct zone underneath it. Part V of the Convention gives coastal States sovereign rights to exploit the non-living resources of the EEZ seabed and subsoil, but it leaves these rights to be exercised under Part VI of the Convention, which specifically deals with the continental shelf.
As a result, Part V of the UN Convention is only relevant to offshore mining in terms of how it affects access to the continental shelf below. Naturally, to exploit continental shelf resources, mining operations must occupy and use EEZ
waters that overlie the continental shelf. This use of the water can come into conflict with other users. This will be discussed in a later section.
(d) The continental shelf
Arguably the most important development in the history of the concept of the legal continental shelf was President Truman’s assertion of jurisdiction and control over the natural resources of the US continental shelf in his Presidential Proclamation of 1945.33 Twenty-four years later, the ICJ recognised this as the starting point of the positive law of the continental shelf34 and it was later codified in the Geneva Convention on the Continental Shelf 1958. It is now the subject of Part VI of the UN Convention.
Unlike its EEZ, a coastal State does not need to claim a continental shelf. States are automatically entitled to a continental shelf of at least 200 nautical miles from onshore baselines.35 This has been accepted by the ICJ which has stated “the coastal State’s rights [in the continental shelf] exist ipso facto and ab initio without there being any question of having to make good a claim to the areas concerned”.36
This means a State has rights over the seabed and subsoil below its EEZ although it must claim the area of water lying above it. States can also claim continental shelves extending beyond this 200-mile limit using a choice of formulae set out in Article 76.37 However, while Article 76 gives States the opportunity to claim areas beyond the 200 mile minimum, it expressly contemplates that there will be an outer limit.38 States are required to research the limits of their continental
shelves and submit claims to the Commission on the Limits of the Continental Shelf.39 As mentioned earlier, New Zealand is in the process of making a claim which, if successful, may create the fourth largest continental shelf in the world.40
(i) “SOVEREIGN RIGHTS” OF COASTAL STATES
This extra area of continental shelf is important, as Article 77 of the UN Convention gives coastal States sovereign rights over the continental shelf for the purpose of exploring it and exploiting its natural resources:
At first instance, the scope of these rights seems to be quite broad. The coastal State’s rights exist as of right and are exclusive. The coastal State has the sole right to grant or refuse consent to any party wishing to exploit its continental shelf. Articles 81 and 85 also give the coastal State the exclusive right to drill or tunnel on the continental shelf.
(ii) ARTIFICIAL ISLANDS, INSTALLATIONS AND STRUCTURES ON THE CONTINENTAL SHELF The UN Convention also gives coastal States the exclusive right to construct offshore installations and structures on the continental shelf (such as oil platforms and offshore mining operations). It gives the State jurisdiction over these structures, which is vital to protect the States’ rights to exploit the continental shelf area.41
Coastal States can also establish safety zones around the structures of up to 500 metres in any direction, which all ships must respect. A State can also take appropriate measures to ensure the structures’ safety and the safety of navigation within these zones.
However, the full extent of the coastal State’s rights is still questionable. Brown argues that the sovereign rights of coastal States must be extensively interpreted to include whatever powers are needed to ensure that the coastal State is enabled to enjoy its rights in full. However, he stops short of calling these rights absolutely exclusive because in practice, beyond the limits of their territorial sea, coastal States are restricted from exercising these rights freely. This is because the UN Convention requires States to recognise specific rights of other States, as well as environmental duties.42
Other States have limited, but specific rights over a coastal State’s continental shelf. Article 79 of the UN Convention provides that all States can lay submarine cables and pipelines on another State’s continental shelf. The coastal State can direct the course of a foreign cable or pipeline, but it cannot prevent other States from actually laying or maintaining the lines. In contrast, coastal States can establish conditions for cables or pipelines entering their territory or territorial sea.43 This indicates that the coastal State’s rights are stronger within the territorial sea than they are beyond it.
Other States also have rights which apply to the waters overlying the continental shelf. These fall into two zones; the EEZ (up to the 200-mile limit) and the high seas (beyond the 200-mile limit to the edge of the continental shelf).
Article 78 of the UN Convention states:
This section recognises the coastal State’s rights over the continental shelf, but makes the rights subject to other freedoms that are protected in the EEZ, such as the freedom of navigation. This effectively limits the exercise of the States’ sovereign rights over the continental shelf, if not the actual rights themselves.
This effective restriction of rights can be seen in Article 60 of the UN Convention. It states that a coastal State must notify other States if it builds any structures in the EEZ (ie, to exploit its continental shelf), it must maintain a
permanent way to warn other ocean users of their presence, and it cannot put structures and safety zones in the way of recognised sea lanes.
Any structures which are eventually abandoned must be removed to ensure safety of navigation, taking into account any generally accepted international standards.44 If the structures are removed, the coastal State must have due regard to fishing, the protection of the marine environment and the rights and duties of other States in the EEZ.45 The coastal State must also publicise the details (including the depth, position and dimensions) of any structure that does remain, either in whole or in part. These restrictions recognise the traditional high seas freedoms of safety for vessels and freedom of navigation which have been preserved in the EEZ for all States.
As a counterpart to the jurisdiction that Article 60 gives coastal States over structures, it also creates an obligation on States to reduce marine pollution that they create.46 This will be discussed further in the second half of this article.
(e) The high seas
The “high seas” are the waters that lie beyond the limits of any national jurisdiction.47 Where a country is successful in claiming an extended continental shelf, the part that extends beyond the EEZ 200-mile boundary will lie under the high seas.
As this article has shown, a coastal State has sovereign rights over the resources of its full continental shelf regardless of the status of the waters above.48 However, beyond the 200-mile limit, these sovereign rights are weaker again than those which apply within the 200-mile limit. This is because during the UN Convention negotiations, some landlocked States were concerned that coastal States could claim continental shelves of more than 200 miles. They believed this meant that continental shelf claims were encroaching on “The Area”, which is
the term given to the deep seabed and ocean floor beyond the limits of national jurisdiction.49 The Area forms part of what Ambassador Pardo famously called the “common heritage of mankind” in his UN General Assembly Address in 1967,50 and this caused concern among other States because of the known value of the Area’s seabed mineral resources.
As a result, Article 82 was introduced into the UN Convention. It requires coastal States to make royalty payments to the International Seabed Authority for any of the continental shelf resources it exploits beyond the 200-mile limit.51 Therefore, this provision arguably weakens coastal States’ sovereign rights over their continental shelf resources beyond the 200-mile limit, because they are required to share the benefits of these resources with other States.
Unlike the EEZ, with its own regime that holds different rights in balance, the legal presumption in the high seas falls in favour of the traditional high seas freedoms.52 This means that in a conflict, coastal States that want to exercise their sovereign rights over their continental shelf resources will have their rights interpreted restrictively. This is most likely to occur when States want to erect structures occupying the high seas waters.
(f) The Area
Finally, beyond the limits of coastal States’ continental shelves lies The Area, the deep ocean seabed which is outside the limits of any national jurisdiction. The UN Convention contains a separate Part to govern offshore mineral exploitation in the Area.
III. RIGHTS OF STATES UNDER NEW ZEALAND LAW
1. Territorial Sea and EEZ
New Zealand signed the UN Convention in 1994 and ratified it on 18 August 1996. Its provisions have been incorporated into New Zealand law through a
variety of different Acts.53 New Zealand declared its EEZ to be 200 nautical miles in 1977, and enacted the Territorial Sea, Contiguous Zone and Exclusive Economic Zone Act 1977 (“the Territorial Sea Act”).
The Territorial Sea Act’s long title states that it provides for the exercise of the sovereign rights of New Zealand in the “exploration, exploitation, conservation and management of resources” within the EEZ. It establishes New Zealand’s jurisdiction over a 12 nautical mile territorial sea, a 24 nautical mile contiguous zone and a 200-mile EEZ.54 It also specifically vests the bed of the territorial sea and the internal waters of New Zealand in the Crown, subject to the grant of any estate or interest,55 but it does not attempt to vest ownership of the seabed in the Crown beyond the 12-mile limit.
2. Continental Shelf
(i) THE NATURE OF THE CROWN PROPERTY RIGHT OVER CONTINENTAL SHELF MINERALS The Continental Shelf Act 1964 (“the CSA”) governs New Zealand’s continental shelf area. It is administered by the Ministry of Foreign Affairs and Trade (“MFAT”). The CSA incorporates the UN Convention definition of continental shelf into New Zealand law.56 It states:
The continental shelf of a coastal State comprises the seabed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured where the outer edge of the continental margin does not extend up to that distance.
Section 3 of the CSA vests in the Crown “all rights that are exercisable by New Zealand with respect to the continental shelf and its natural resources for the
purpose of exploring the shelf and exploiting its resources”.57 Like the Territorial Sea Act, this provision also stops short of vesting the seabed in the Crown, and simply reserves to the Crown the rights to take the continental shelf minerals. This is consistent with the UN Convention, which grants coastal States sovereign rights to exploit their continental shelf resources, but not the seabed itself.
(ii) OWNERSHIP OF MINERALS
Within the 12-mile limit, it is clear that the Crown owns most minerals lying in New Zealand land. During the twentieth century, the Crown progressively reserved ownership of most of the minerals lying in New Zealand land to itself.58 However, both the Crown Minerals Act 1991, which allocates the rights to mine all Crown-owned minerals, and the CSA are silent on the question of who owns minerals beyond the 12-mile limit.
(iii) ALLOCATING PROPERTY RIGHTS OVER CONTINENTAL SHELF MINERALS
Regardless of the ownership question, New Zealand has clearly incorporated the sovereign rights to take minerals into its domestic legislation. However, there are some tensions around how these rights have been implemented in the different maritime zones. As mentioned above, the Crown allocates the rights to mine all Crown-owned minerals under the Crown Minerals Act (“the CMA”).59 The CMA applies over all land in New Zealand, which it defines as including the foreshore and seabed to the outer edge of the territorial sea.60 Therefore, it does not apply beyond the 12-mile limit.
Beyond this line, mining rights are nominally allocated under the CSA. However, the CSA refers offshore petroleum mining applications back to the CMA permitting regime. It does this by expanding the definition of “land” in the CMA to include the full continental shelf, in relation to petroleum.61 This was done to ensure that all rights to New Zealand’s high-value petroleum resources would be allocated under the more comprehensive CMA regime. Mining rights for minerals other than petroleum are still allocated under the CSA beyond the 12-mile limit.
However, referring all petroleum permits to the CMA creates a problem. Within the 12-mile limit, the CMA performs two functions; allocating the rights to mine minerals and setting out the requirements for access agreements between the landowner and the mining company. Mining in New Zealand is also constrained by the RMA which regulates environmental effects. However, these processes do not work so well beyond the 12-mile limit because New Zealand’s rights are more limited in this area. Neither CMA access agreements nor the RMA can apply in the same form.
As the last half of this article will discuss, the RMA only extends out to the 12-mile limit, so the environmental effects of offshore mining operations cannot be monitored under the same process beyond this point.62
Also, it is not possible for the Crown to make access agreements under the CMA for land beyond the 12-mile limit, despite the fact that the definition of “land” in relation to petroleum has been expanded to include the continental shelf, because the Crown is not the owner or occupier of the seabed.63 Despite this, section 4(1)(c) of the CMA seems to assume this is possible, and attempts to give the Minister of Transport the power to make access agreements.64 As a result, there is some confusion around which Crown agency (if any) has the power to approve offshore mining operations beyond the 12-mile limit. The only power technically available for the Crown to grant is the Minister of Foreign Affairs’ consent to enter the continental shelf.65
(b) Installations on the continental shelf
Section 7 of the CSA gives New Zealand jurisdiction over continental shelf installations and structures, consistent with the UN Convention.66 The CSA also gives the Minister of Foreign Affairs the power to regulate: 67
In addition, the Governor-General can prohibit or restrict any continental shelf exploration which could unjustifiably interfere with navigation, fishing, conserving the living resources of the sea, national defence, scientific research or submarine cables or pipelines. These powers reflect the restrictions on coastal States over installations which are set out in Article 60 of the UN Convention, but the CSA seems to go further than the UN Convention requires. These powers have not yet been used.
Finally, the Continental Shelf Amendment Act 1996 introduced the UN Convention’s royalty regime for mining on the extended continental shelf (beyond the 200-mile limit) into New Zealand law. The Minister of Energy must now
have regard to Article 82 of the UN Convention and impose additional royalty conditions on mining licences and permits issued to explore the continental shelf beyond the 200-mile limit.69 This applies to both mineral mining licences issued under the CSA and petroleum mining licences issued under the CMA.70
3. Summary — Offshore Mining Activity in New Zealand
In summary, New Zealand has translated the sovereign rights set out in the UN Convention into its domestic legislation. However, the domestic legislation is inconsistent and does not reflect a full and balanced regime of rights.
At the moment the regime is not being fully tested, as New Zealand’s offshore area beyond the 12-mile limit is relatively unexplored. New Zealand has also not yet claimed a continental shelf area beyond 200 miles. However, it seems clear that New Zealand, as a coastal State with one of the largest EEZs in the world, and with the potential to gain further sovereign rights at international law over an extended continental shelf, is in an unusually fortunate position. Coupled with the exploration potential of New Zealand’s existing offshore area, New Zealand stands to gain real economic benefit from exploiting these resources in the future. However, this is only half the picture. As the discussion on international maritime law has illustrated, these sovereign rights over resources must be exercised with regard to the rights and duties of other States in these zones, and also with a correlating duty to protect and preserve the marine environment. This article will now move on to the companion section to this “rights” discussion —
that of environmental responsibility within the offshore area.
IV. MARINE ENVIRONMENTAL RESPONSIBILITY UNDER INTERNATIONAL LAW
1. International Environmental Law
The second half of this article looks at States’ environmental responsibilities beyond the 12-mile limit. International law creates an obligation on coastal States to protect the marine environment, which corresponds with their extended rights
and jurisdiction over areas of the ocean. The following section examines early international environmental law and the development of increased State responsibility.
(a) Background
One of the first international declarations relating to the environment was the Stockholm Declaration on the Human Environment (“the Declaration”) in 1972. It consists of a 7-paragraph proclamation and 26 principles covering a wide range of environmental matters. The Declaration has undoubtedly contributed to the formation of rules of customary international law, but it is not a treaty in itself and it has no binding force.71
However, several of its principles are relevant to the environmental protection of the offshore area. Famously, Principle 21 sets out one of the guiding principles of international environmental law, that States have the sovereign right to exploit their own resources pursuant to their own environmental policies. However, it also requires States to ensure that activities within their jurisdiction do not cause damage to the environment of other States or to areas beyond the limits of national jurisdiction.
This principle, among others, was re-iterated in the 1992 Rio Declaration, one of the products of the United Nations Conference on Environment and Development 1992 (UNCED).72 UNCED was formed as a follow-up to the Stockholm Conference 20 years earlier and, in addition to UNCED’s Rio Declaration, it produced an action plan for sustainable development titled “Agenda 21”. However, like the Stockholm Declaration, the Rio Declaration and the Agenda 21 action plan are non-binding documents.
Chapter 17 of Agenda 21 seeks to integrate all aspects of the marine environment.73 Although this article is concerned with exploration of the continental shelf, the nature of the marine environment means that pollution caused by offshore mining activities will have potential effects on the ocean’s living resources, the coastlines of nearby States and on all ocean users. For this reason, an integrated approach to protecting the marine environment is crucial. Chapter 17
calls for further regional and global responses to managing the oceans in an integrated way.
Some of the relevant objectives of Chapter 17 state that:
States, in accordance with the provisions of the [UN Convention] commit themselves, in accordance with their policies, priorities and resources, to prevent, reduce and control degradation of the marine environment so as to maintain and improve its life support and productive capacities. To this end it is necessary to:
a) apply preventive, precautionary and anticipatory approaches ...;
b) ensure prior assessment of activities which may have significant adverse impacts on the marine environment;
c) integrate protection of the marine environment into relevant general environmental, social and economic development policies;
d) develop economic incentives, where appropriate ...;
e) improve the living standards of coastal populations ...
These commitments by States recognise that precaution and integration are key goals. In particular, it is interesting to note that the Chapter stresses integrating protection of the marine environment alongside environmental, social and economic development policies. This new focus on development recognises the Rio Conference’s focus on sustainable development initiatives.
While the benefits of developing sustainable management approaches for living resources are obvious and not directly contradictory, there are more fundamental problems with including offshore mining as an element of an integrated and sustainable marine protection regime. As this article will discuss, New Zealand is in the early stages of trying to develop an Oceans Policy to deal with these issues. However it is difficult to see how continued promotion and exploration of offshore minerals can be reconciled with a sustainable and integrated Oceans Policy that is in line with these international environmental principles.
2. International Maritime Conventions
The UN Convention creates a general duty on all States to protect and preserve the marine environment.74 It also gives States the sovereign right to exploit their natural resources pursuant to their environmental policies under Article 193, but this is in accordance with their duty to protect and preserve the marine
environment.75 This is a different formulation than the Stockholm Declaration, which simply requires States to avoid harm to the environments of neighbouring States.76 Arguably, this means the UN Convention imposes a higher duty on States to protect the marine environment as a whole.
Article 56 gives coastal States specific jurisdiction to protect and preserve their marine environment in the EEZ.77 Although this jurisdiction ends at the 200- mile limit, coastal States must also prevent, reduce and control all marine environmental pollution connected with seabed activities under their jurisdiction.78 This means that States could be responsible for marine pollution beyond the 200- mile limit, if it is caused by exploring their continental shelf beyond this line.79
The UN Convention goes on to create more specific obligations in relation to marine pollution and dumping. These are complemented by provisions from other international agreements. As this article focuses on offshore mining activity, it will concentrate on marine pollution and dumping caused by offshore exploration.
(b) Preventing pollution from seabed activities
(i) MARINE POLLUTION UNDER THE UN CONVENTION
Part XII of the UN Convention deals with the protection and preservation of the marine environment. It defines pollution of the marine environment as:
the introduction by man, directly or indirectly, of substances or energy into the marine environment, including estuaries, which results or is likely to result in such deleterious effects as harm to living resources and marine life, hazards to human health, hindrance to marine activities, including fishing and other legitimate uses of the sea, impairment of quality for use of sea water and reduction of amenities.80
Articles 207–212 apply identical, specific obligations to States in relation to different sources of marine pollution. Article 208 applies to pollution from seabed activities. It states:
...
As this shows, Article 208(1) requires coastal States to create laws to protect the environment, and specifically connects this with their jurisdiction over offshore installations.81 States must enforce these environmental laws under Article 214, which also links this obligation with States’ jurisdiction to exploit the seabed. As a result, Articles 208 and 214 add environmental obligations to the duties coastal States already have to recognise under Article 60.82 However, it is up to the State to decide on the quality and extent of these laws and regulations, subject to minimum international standards.
Under the UN Convention, States must also use the best practicable means at their disposal to prevent, reduce and control pollution,83 use specific equipment to prevent accidents and ensure safety, and monitor all activities they do permit to determine whether these activities are likely to pollute the marine environment.84 When the activity is likely to cause substantial pollution or significant harmful changes to the marine environment, States must assess the potential effects and report to the international community.85 The UN Convention’s liability provisions are also very broad.86
Interestingly, the UN Convention states that States must still refrain from unjustifiably interfering with other States in the exercise of their rights and duties in conformity with the Convention when they take measures against marine pollution.87 This illustrates that even the UN Convention’s general duty to protect
the marine environment is a qualified duty, to be balanced against other rights in the area.
Finally, the UN Convention outlines a framework for States to take further measures to commit themselves to reducing marine pollution through regional or global treaties.88 As well as the provisions of the UN Convention, there are two major international agreements on marine pollution — the London Dumping Convention 1972, which sets minimum standards for the dumping and incineration of wastes at sea, and the International Convention for the Prevention of Pollution from Ships 1973 (“the MARPOL Convention.”) The MARPOL Convention, together with its 1978 Protocol,89 specifies controls on the discharge of oil and oily mixtures, noxious liquid substances, sewage and garbage. This article will now go on to briefly examine how these marine pollution treaties affect seabed exploration activities.
(ii) MARINE POLLUTION UNDER THE MARPOL CONVENTION
Although Annex I of the MARPOL Convention90 covers oil pollution caused by discharges, it does not seem to create many new obligations for States in relation to offshore exploration. The major causes of oil pollution from offshore installations are a blow-out, structural failure, something colliding with the installation or the malfunction or failure of a pipeline. As the definition of a “discharge” in Article 2(3) specifically excludes the release of harmful substances directly arising from the exploration, exploitation and associated offshore processing of seabed mineral resources, it seems that MARPOL does not apply to these kinds of marine pollution caused by offshore explorations.
Brown notes that no international convention has followed the UN Convention (or the earlier Geneva High Seas Convention) to develop a set of detailed regulations for these operations.91 He believes that the job of precisely regulating the construction and operation of offshore installations currently falls to national legislation. As this article will discuss later, New Zealand legislation seems to have addressed this issue by prohibiting offshore installations from discharging any oil without a permit.92
However, the MARPOL Convention does cover operational discharges of oil. Fixed and floating oil rigs are only permitted to discharge oil or an oily mixture if they are beyond the 12-mile limit and if the mixture is less than 100 parts oil per
million parts of water (“ppm”). The installation must also have other monitoring and safety equipment.93
The MARPOL Convention also covers garbage from offshore installations. Fixed or floating platforms beyond the 12-mile limit cannot dispose of garbage from the platform and can only release food wastes into the sea when they have been processed through a grinder, to a grade of less than 25 millimetres.94
(iii) MARINE POLLUTION UNDER REGIONAL TREATIES
During the 1970s, a number of regional treaties on marine pollution were concluded, particularly by the neighbouring States of the North Sea.95 While these treaties all took firm steps towards creating a more detailed, co-operative regime protecting States from pollution by offshore sources, they were not open to signature by New Zealand.
However, more recently a fuller range of UNEP Regional Seas Conventions have been developed. These are regional agreements to develop protocols combating regional pollution emergencies and to prevent pollution from offshore exploitation. The Convention for the Protection of Natural Resources and Environment of the South Pacific Region (“the SPREP Convention”) is the regional seas convention in force for the South Pacific.96 It was adopted in 1986 and has been in force since 1990.
The SPREP Convention has two protocols; the Protocol for the Prevention of Pollution of the South Pacific Region by Dumping (“the SPREP Dumping Protocol”) and the Protocol Concerning Co-operation in Combating Pollution Emergencies in the South Pacific Region (“the SPREP Pollution Protocol”). Both protocols were adopted at the same time as the SPREP Convention itself. Although these protocols cover the main causes of marine pollution, other regional areas have created specific continental shelf protocols as well as agreements on pollution and dumping.97
UNEP sees the Regional Seas Conventions as providing the legal framework for the regional action plan, expressing the commitment and will of governments to tackle their common environmental problems. It also believes that regional conventions are more likely to attract the full interest and commitment of the governments which sign them, in comparison with more widely drawn global conventions.98
The SPREP Protocols do not add anything significant to New Zealand’s existing obligations under the London Dumping Convention and MARPOL, beyond setting up requirements for the South Pacific parties to notify each other, co- operate and develop sub-regional arrangements for when a pollution incident occurs.99 However, the SPREP Pollution Protocol’s preamble expressly states that the parties are “conscious that the exploration, development and use of offshore and near shore minerals and the use of hazardous substances ... pose the threat of significant pollution emergencies in the South Pacific”.
(c) Preventing marine “dumping” through seabed activities
(i) DUMPING UNDER THE UN CONVENTION
In addition to the specific provisions relating to pollution from the seabed, Article 194 of the UN Convention creates an obligation on States to adopt measures to avoid dumping. Dumping, as defined under the UN Convention, can also include dumping platforms and structures once States have completed their continental shelf exploration activities. As discussed earlier, the UN Convention requires States to dispose of abandoned installations in an environmentally aware way, and, if the structures are removed, the coastal State must have due regard to fishing, the protection of the marine environment and the rights and duties of other States in the EEZ. 100
Article 1(1)(5)(a) of the UN Convention defines dumping as:
(i) any deliberate disposal of wastes or other matter from vessels, aircraft, platforms or other man-made structures at sea;
(ii) any deliberate disposal of vessels, aircraft, platforms or other man-made structures at sea.101
However, while the UN Convention requires States to enact laws against dumping, perversely it also allows States to give permission for waste to be dumped within the areas under their jurisdiction (territorial sea, EEZ and onto the continental shelf) after considering it with other affected States.
Article 210 states:
...
5. Dumping within the territorial sea and the exclusive economic zone or onto the continental shelf shall not be carried out without the express prior approval of the coastal State, which has the right to permit, regulate and control such dumping after due consideration of the matter with other States which by reason of their geographical situation may be adversely affected thereby.
The coastal State also has jurisdiction to enforce the laws it creates against dumping, where the dumping happens in its territorial sea, exclusive economic zone or onto its continental shelf.102 However, the main purpose of the UN Convention’s anti-dumping rules, like the rules concerning pollution from seabed activities, is to prepare for further regional rules and international practices to develop around dumping. There are already several broad international treaties which cover dumping at sea.
(ii) THE LONDON DUMPING CONVENTION
In comparison with other well-known regional anti-dumping treaties (such as the Paris Convention103) the London Dumping Convention 1972104 and its 1996 Protocol (“the Protocol”) have global scope in relation to their signatory parties. The Protocol was used to significantly revise the original Convention, and it includes several critical new amendments.
The Protocol prohibits dumping radioactive or industrial wastes at sea, or incinerating wastes at sea.
Instead, the Protocol adopts a precautionary approach and emphasises avoiding, reducing and managing waste. It also favours assessing alternatives to marine dumping, including land-based disposal or treatment. Annex I of the Protocol defines categories of wastes that may be considered for dumping.105 Annex 2 sets out a framework for States to use in making decisions on these categories, known as the waste assessment framework or “WAF Annex”.106 However, States are encouraged to seek an overall net-benefit involving all environmental considerations when making these decisions.
(iii) THE SPREP DUMPING PROTOCOL
The SPREP Convention mentions dumping in general terms,107 but its SPREP Dumping Protocol goes into more detail. It reiterates many of the London Dumping Convention provisions, and those of the 1996 Protocol. The SPREP Secretariat believes that the SPREP Protocols are “important regional frameworks, even if a global framework exists, because even though the environmental concerns may be global in nature, particular regional concerns need to be taken into account so that the global instrument is directly relevant to the region”.108
These provisions mean that States have a duty to ensure that their exploitation of the continental shelf does not harm the marine environment.
V. MARINE ENVIRONMENTAL RESPONSIBILITY UNDER NEW ZEALAND LAW
New Zealand has ratified all three of the major international agreements on marine pollution — the London Convention, most Annexes of MARPOL and the framework provisions of the UN Convention.109 For international conventions to be ratified, they must be implemented under New Zealand law.
The London Convention is currently implemented through the Maritime Transport Act 1994 (“the MTA”), which applies throughout New Zealand’s EEZ, both inside and outside the 12-mile limit. In addition, New Zealand formulated marine protection rules under the MTA in 1998, which finally enabled it to ratify
most Annexes of MARPOL.110 Within the 12-mile zone, MARPOL is implemented by RMA regulations which are enforced by regional councils. Beyond the 12-mile zone it is implemented by marine protection rules created under the MTA and enforced by the Maritime Safety Authority (“the MSA”).111
1. Within the 12-Mile Limit — The RMA Provisions
The Resource Management Act 1991 (“RMA”) restated and reformed the law relating to the use of land, air and water. The purpose of the RMA is to promote the sustainable management of natural and physical resources.112 It identifies coastal management as being of particular importance and, through the creation of a coastal policy statement, it defines a new regime for the coastal marine area out to the edge of the territorial sea. The focus is on controlling the adverse effects of activities on the environment and managing conflict between competing uses of the coastal space. Regional councils are responsible for the sustainable management of the coastal marine area covering the foreshore and seabed of the territorial sea.
People who want to occupy coastal space to the exclusion of others (ie, by erecting offshore installations, marine farming, wharves etc) must comply with the relevant regional council’s regional coastal plan and may be required to obtain a resource consent from the council.113 The purpose of the regional coastal plan and the resource consent process is to ensure that the environmental effects of activities in the coastal marine area are avoided, remedied or mitigated.114
Within the 12-mile limit, RMA regulations have also been formulated to regulate discharges of oil, noxious liquid substances, garbage, ballast water, cooling water and other uncontaminated water as well as the dumping and incineration of waste.115 Dumping waste or other matter requires a resource consent from the regional council and cannot be permitted by a general rule in a regional coastal plan.
112 RMA, s 5(1).
113 RMA, s 12(2).
114 RMA, s 56, s5.
115 Resource Management (Marine Pollution) Regulations 1998.
2. Beyond the 12-Mile limit — The Maritime Transport Act 1994
(a) Scope of the Maritime Transport Act (MTA)
In comparison, the MTA is a general Act covering many different responsibilities within the zone of New Zealand’s “continental waters” — incorporating the EEZ and the high seas overlying the extended continental shelf area.116 This recognises that although New Zealand has no jurisdiction over this part of the high seas, it would still be liable at international law for any pollution of the high seas caused by exploring its extended continental shelf below.117
Unlike the RMA, the MTA does not attempt to introduce environmental concepts into managing this area. It is a hybrid, extremely large piece of legislation,118 combining most of New Zealand’s maritime transport obligations that have been created under international maritime agreements. Generally, the MTA includes provisions on maritime safety and protecting the marine environment from harmful substances, including oil spills. These general provisions are supplemented by more specific marine protection rules created by the Minister of Transport, which marine operators must comply with. The rules also form part of New Zealand maritime law. The MTA provisions and the marine protection rules are implemented by the MSA.
The MTA states that the MSA should try and achieve results at reasonable cost. This is defined using a cost-benefit formula and requires that the benefits for New Zealand of taking some action to prevent marine pollution must outweigh the costs.119 This implies that the MTA protective provisions and duties are not all-encompassing, and that the values associated with protecting the marine environment can be traded off against competing factors.
This approach can be compared with provisions of the UN Convention which state that States must use the “best practicable means at their disposal”.120 Arguably the New Zealand formulation falls below this best practicable approach, but both provisions contemplate that the obligation is not absolute.
(b) “Discharges” and “pollution incidents” under the MTA
Under the MTA, offshore installations cannot discharge harmful substances into New Zealand’s continental waters or onto the seabed, except in accordance with the marine protection rules.121 The rules allow oil discharges from offshore installations if the discharge does not exceed 15 ppm,122 and food wastes, provided they are ground to 25 mm in size.123 These provisions reflect New Zealand’s MARPOL commitments.124
The marine protection rules define a “harmful substance” as garbage, untreated sewage, noxious liquid substances and oil. A “discharge” is defined as any “release, disposal, spilling, leaking, pumping, emitting or emptying”, but it does not include permitted dumping or substances released during legitimate scientific research.125
Where one of these harmful substances is discharged or escapes within the EEZ or continental waters, or a “pollution incident” occurs,126 the owner of the marine operation, pipeline or offshore installation must report it to the Director of the MSA.127 It is an offence not to report the incident without reasonable excuse and it is also an offence to discharge a harmful substance in contravention of the rules.128
The defences available under section 243 are (to paraphrase):
(a) if the incident happened as a result of attempting to secure the safety of the installation or pipeline or trying to save a life and the step was reasonable to take in the circumstances; or
(b) if it occurred as a result of non-negligent damage to the installation or pipeline and all reasonable steps were taken to prevent or minimise the discharge as soon as it was practical to do so.129
As this illustrates, the MTA imposes an obligation on the owners and operators of offshore installations and pipelines to protect New Zealand’s marine environment from harmful substances.130 However, section 243 seems to prioritise safety at sea over strict liability for marine pollution. Section 243 also states that if the discharge occurred deliberately, then criminal liability falls on the person who committed the damage.
The MTA civil liability provisions are more stringent. The owner or person in charge of an installation must pay the reasonable cleanup costs131 for dumping any waste or discharging a harmful substance into onto the seabed or into New Zealand continental waters. These costs can extend to cover all resulting pollution damage in New Zealand and the continental waters, including the costs of any reasonable preventive measures, costs of reinstating the environment and any consequential losses of profit.132
These provisions implement the UN Convention’s Article 235, which requires States to ensure that recourse is available for prompt and adequate compensation for damage caused by pollution to the marine environment.
Owners or operators of marine operations will only escape civil liability if they can prove that the discharge, escape or dumping resulted from:
These defences are much narrower than the criminal liability defences. This means that while marine operators may be strictly liable for the cleanup costs of marine pollution, they only need to meet a reasonable care standard in operating their installations to avoid criminal liability.
Offshore installations must also have a site marine oil spill contingency plan under the MTA’s marine protection rules.134 The MSA is responsible for
administering cleanups of all oil spills that occur in New Zealand marine waters, including those in the territorial sea.135
(c) Anti-dumping provisions under the MTA
It is an offence under the MTA to dump waste, or abandon an offshore installation, into the EEZ or onto the continental shelf without a permit.136 Radioactive wastes cannot be dumped under any circumstances. It is also an offence to incinerate waste anywhere in New Zealand’s continental waters.137 These provisions import the London Convention Protocol provisions into New Zealand law, and the UN Convention, which states that dumping onto the seabed must be subject to the coastal State’s approval. New Zealand ratified the London Convention on 30 April 1975, and has incorporated the elements of the 1996 Protocol through the marine protection rules.138
The MSA can issue permits to dump waste under section 270 of the MTA and the marine protection rules. Dumping permits form part of a wider set of “marine protection documents” which marine installations must have in order to operate in the EEZ or continental waters.139 The rules state the types of waste that permits can be granted for, the application procedure, requirements, terms and duration of permits and the monitoring and testing requirements for marine incineration facilities.140 The MSA has also published guidelines to the new dumping rules which are in accordance with the 1996 Protocol.141
Again, special defences are available for dumping waste without a permit if the owner of the installation proves that:
137 MTA s 261(6A) and s 264(6).
140 MTA s 262, s 289.
141 MSA, Maritime Rules — Advisory Circular (Part 180 Dumping of Waste or Other Matter) 30 June 1999.
(a) the dumping or incineration was necessary to:
- prevent danger to human life; or
(b) was a reasonable step; and(c) was likely to result in less damage than would otherwise have occurred; and
(d) was taken in such a way as to minimise the likelihood of damage to human or marine life.142
3. Summary — New Zealand’s Current Environmental Management Regime
It is clear that the MTA has implemented most of New Zealand’s international marine commitments into New Zealand law. However, New Zealand’s resulting system of offshore environmental management is fragmented into two regimes, one that operates within the 12-mile area and another which operates beyond it.143 There is no overarching environmentally-oriented legislation governing the entire marine area.
This has attracted some concern. Both the Minister for the Environment and the Parliamentary Commissioner for the Environment (“PCE”) have issued reports identifying the lack of coordination in legislation and procedures for environmental management outside the 12-mile limit.144 The PCE observed that the purpose of the regime within the 12-mile limit is to manage the environmental effects of activities, whereas beyond this area the effect is to generally manage the activities rather than the environmental effects themselves.145 This is evident when one looks at the role of the MSA. Although it has a permitting function, the MSA is not required to assess the environmental effects or impacts of activities, but must simply ensure that activities comply with the marine protection rules.
Despite this, there are some methods available to assess environmental effects beyond the 12-mile limit. The PCE has conceded that complying with the marine protection rules beyond the 12-mile limit could amount to a de facto assessment
of environmental effects.146 The marine protection rules are mandatory, and they do set out environmental standards which are designed to anticipate environmental effects.147 However, the PCE report was doubtful whether these rules would give an adequate environmental effects assessment at all the stages of an offshore mining operation, before, during and after it takes place.148
There are also special Cabinet procedures which can be used to approve offshore mining operations. The “Environmental Protection and Enhancement Procedures” 1987 (“EP&EPs”) were used for environmental assessment on the Maui fields, which were the first offshore oil and gas fields beyond the 12-mile limit to be put into production in New Zealand.
The EP&EPs state that the Crown must require environmental impact assessments and reports when it grants licences, authorisations, permits and privileges which may have environmental implications. Despite the fact that the EP&EPs pre-date the RMA, which restated the laws relating to the sustainable management of land, air and water, the Minister for the Environment has specifically stated that the EP&EPs can still apply.149 However, the EP&EPs have since been used on an ad-hoc basis and are not built into any legislation as a formal requirement.150 This partly recognises that so far, New Zealand mineral exploration beyond the 12-mile limit has been limited and Government has been able to deal with applications on a case-by-case basis.151
The lack of a formal environmental procedure built into existing legislation has been criticised by agencies who believe that New Zealand’s marine management regime should be fully integrated, throughout the territorial sea and out to the 200-mile limit. Current trends of international environmental “soft law” illustrated in the Rio Declaration and the Earth Charter also call for an integrated, precautionary approach to ocean management decisions.
The PCE Report recommended that New Zealand’s environmental management regime beyond the 12-mile limit should include the following key requirements:
4. Oceans Policy Process
This sparked the beginning of more extensive policy work looking into New Zealand’s wider marine environment.152 In December 1999, the PCE released a more wide-ranging report entitled Setting Course for a Sustainable Future — the Management of New Zealand’s marine environment. The report concluded that a major revision of New Zealand’s thinking, policies and legislation was required to ensure the sustainable future of the oceans and seas around New Zealand.
As its title indicates, the report was focussed on the sustainable management of the ocean’s resources, rather than the mining of its seabed. However, mineral resources were included in its wide terms of reference, which included all biophysical resources (water, fish, birds, marine ecosystems and mineral resources) as well as people with a stake and interest in the marine world (coastal communities, organisations and businesses). The report concluded that New Zealand’s current marine management structures were arbitrary, fragmented and lacking a coherent overarching strategic focus that would integrate diverse interests and values.153This formed the beginning of work on a proposed New Zealand Oceans Policy, using the report as a starting point. Work on the Oceans Policy is currently mid-way through a two-year process. It is clear that the policy will impact on all users of the seas, including the mining industry. The Oceans Policy aims to integrate all ocean users, values, rights and responsibilities into a single framework, spanning a reach of ocean from New Zealand’s coastline to beyond the 200-mile limit. However, this is obviously a huge task, and faces several key difficulties.
First, as this article has illustrated, New Zealand has different rights within and beyond the 12-mile limit. Beyond the territorial sea, New Zealand’s rights are less absolute and so integration with the 12-mile zone where these rights are paramount, becomes more difficult.
Secondly, an effects-based approach may be difficult to achieve in the deep offshore area, particularly when very little is known about the zone.
Finally, the RMA is a single tool that manages conflicting uses of the environment within the 12-mile limit. However, beyond the 12-mile limit there are different regimes managing different activities. A new regime which aims to integrate and manage all conflicting uses of the oceans will need to decide how the conflicts should be managed in this area, and more importantly, which values should be prioritised.
Although these can be seen as separate issues, in practice they can combine to cause real problems for Oceans Policy decision-makers.
(a) Values
The Oceans Policy taskforce received many submissions highlighting the value of the offshore mining industry to New Zealand. Some submissions noted New Zealand’s economy and lifestyle’s heavy dependence on oil and gas. The Maui offshore platforms supply about 75% of New Zealand’s gas requirements, as well as oil, and the New Zealand economy and lifestyle have a heavy dependence on oil and natural gas — offshore hydrocarbon resources yield about $NZ1.2 billion worth of petroleum each year.154
Petroleum mining companies submitted that New Zealand is expected to have a shortage of natural gas within the next decade and that further exploration and exploitation of oil and gas within New Zealand ’s domain are required to ensure continuing capacity to meet the country’s future needs.155 The current financial return from use and exploitation of all resources within the New Zealand EEZ is estimated at $NZ2 billion per annum, but the unrealised current value of known mineral resources within the EEZ is estimated to be $NZ100–350 billion.156
These consumptive uses of the oceans resources were contrasted by submissions that emphasised the ocean’s intrinsic values, and emphasised the need for sustainable management. Some submissions called for protected marine areas covering up to 50% of New Zealand’s EEZ, which would promote environmental and conservation interests above mining interests in these areas and effectively preserve large tracts of seabed minerals untouched.
Early comments by the Hon Pete Hodgson, the Minister convening the Task Force, illustrate that these kind of conflicts were expected. He stated:
It will not be easy ... identifying existing and potential conflicts means that sooner or later we will need to order, or re-order, priorities. If we develop goals and principles, and if they are valid and considered and agreed, then sooner or later, somewhere, they will bite. Inevitably some interest will have to give way to, or learn to share with, another.157
(b) Jurisdictional issues
MFAT has also emphasised that the UN Convention gives New Zealand different jurisdictional rights within the 12-mile limit and beyond it, and that these will need to be taken into account if an integrated Oceans regime is developed.158 Initial documents released by the Oceans Policy Ministerial Advisory Committee (“MAC”) seem to recognise these problems. They state:
The most essential rules for ocean policy makers to understand are the UN Convention rules setting out the scope of national jurisdiction in the different maritime zones ... inside and outside those zones certain traditional freedoms of the oceans are explicitly protected ... the development of an Oceans Policy for New Zealand should factor in these rights — the corollary of which are New Zealanders’ rights in other countries’ waters.159
(c) Effects-based decision-making
Finally, our lack of knowledge about the deep-water environment also presents problems. In 2001, a mining company applied for a licence to prospect for minerals over an area of New Zealand’s deep seabed containing volcanic seamounts, on which twelve new and very rare marine species were recently discovered.160 At
the time, environmental groups argued that mining techniques such as sample dredging would damage these species and that these ecosystems should be protected.
Environmental groups have used examples such as this to argue for an ecosystem approach to managing the marine environment, incorporating the precautionary principle. They have asked the MAC to protect representative ecosystems from the mountains to the sea, in the deep oceans, and in special or unusual areas such as seamounts.161 Groups want the Oceans Policy to create permanent and temporary protected marine areas to protect biodiversity, “posterity”, scientific research, fisheries management, intrinsic values, recreation and to use as insurance against bad decision-making. Obviously, this would create conflicts with mining interests wanting to explore these areas.
The Oceans Policy taskforce has defined the precautionary principle as “the application of prudent foresight, meaning that preference should be given to risk- averse decisions and that care should be taken to avoid irreversible consequences”.162
Obviously, there is a problem trying to identify irreversible consequences when there is imperfect knowledge about the marine environment. The early Oceans Policy Report on consultation, Healthy Seas, Healthy Society, recognises the pitfalls of trying to resolve these conflicts with a lack of knowledge. It states:
The new found ability to identify seamounts in the outer continental shelf by remote (satellite) technology can be seen as an opportunity — to catch high value species that associate with these environments — and a threat, as there is as yet no knowledge on which to base decisions about the management of such ecosystems.163
However, the introduction of a precautionary approach for New Zealand’s oceans would effectively reverse the current (nonexistent) onus of proof and require mining companies to prove there will be no adverse effects on the marine environment before they begin activity. Given the lack of knowledge about New Zealand’s huge continental shelf area this may be a prohibitive burden for mining companies to take on and affect business certainty and investment.164
Finally, the working group has recognised that both Australia and Canada have developed Oceans Policies — Canada through an Oceans Act and Australia through an Oceans Policy to be implemented through regional plans. However, the working group observed that “as is the case here in New Zealand, both [of the international] initiatives have yet to address the issue of how to implement an
integrated management regime and reconcile competing interests and values within the marine environment”.165 It will be a challenge to move from stating broad principles and competing values to implementing specific, integrated policy. It is likely that mining interests will face more stringent operating conditions in the future as these values are evaluated.
VI. CONCLUSION
New Zealand enjoys sovereign rights over its continental shelf resources under international law, and these rights have been incorporated into domestic legislation. Although the level of offshore mining activity is currently quite low in New Zealand, industry representatives believe that there is good unexplored potential for increased mining of New Zealand’s continental shelf. Coupled with the fact that New Zealand may soon be awarded an extended continental shelf that reaches beyond the 200-mile limit in places, this amounts to a large unexplored resource base for the Crown to allocate rights to, and for mining operators to exploit.
However, international law also requires New Zealand to protect and preserve the marine environment on and above its continental shelf area, and New Zealand’s extension of rights beyond the 200-mile limit arguably calls for further responsibility. New Zealand must ensure that satisfactory environmental management procedures are in place to cope with any increase in development of this region, and the EEZ in general.
Currently, New Zealand’s system of marine environmental management is fragmented and piecemeal beyond the 12-mile limit. Marine protection rules are administered by the MSA and there is no over-arching regime of environmental protection, in stark contrast to the regime which operates within New Zealand’s territorial limits.
The proposed Oceans Policy aims to integrate the current regime and to better reflect current ideas of international environmental law. Early work on the Oceans Policy indicates that conflicts between environmental and industry groups are likely, over the values to be attached to New Zealand’s large marine environment. Certainly the existing system appears to protect mining interests, as the environmental requirements are less stringent beyond the 12-mile limit.
It is too early to estimate how the Oceans Policy will resolve these conflicts. However, it is likely that offshore mining activity will be subjected to more stringent environmental conditions in the future, as the separate regimes for each offshore activity are prioritised and consolidated. The real challenge for policymakers will be in producing an integrated, precautionary regime in the offshore area, that balances New Zealand’s rights and duties while not stifling economic development.
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URL: http://www.nzlii.org/nz/journals/NZJlEnvLaw/2002/5.html