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New Zealand Journal of Environmental Law |
Last Updated: 29 January 2023
203
The Adequacy of Legislation Regulating the Environmental Effects of Mining
Michelle van Kampen*
Environmental protection for mineral-related activities in New Zealand is a hot topic. The oil spill in the Gulf of Mexico highlighted the poten- tial environmental (and economic) effects of an offshore incident. A comparative review (commissioned by the Ministry of Economic Development) of the adequacy of New Zealand’s health, safety and environmental legislation for offshore petroleum operations followed shortly thereafter, and highlighted the absence of a comprehensive environmental consenting regime for activities in New Zealand’s waters. Proposals for the removal of some areas of conservation land from sch 4 of the Crown Minerals Act 1991 in turn resulted in thousands of submissions in opposition and a protest march down Queen Street in Auckland. This article steps back from the emotion that is often associated with the debate around the appropriateness of mineral-related activities, and critically discusses the current statutory framework for such activities in New Zealand, including identifying the gaps and steps that may be (and are being) taken to address them.
1. INTRODUCTION
The acceptability of mineralrelated activities has been a topical issue in recent times, with the debate surrounding sch 4 of the Crown Minerals Act
*Michelle van Kampen, LLB (Hons)/BCom Auckland University. Michelle is a practising resource management lawyer, with a particular interest in mineralrelated projects. This article is based on a research paper submitted as part of the requirements for obtaining an LLM in Environmental Law in 2011. The article has been updated to reflect the Exclusive Economic and Continental Shelf (Environmental Effects) Act 2012 subsequently being introduced and passed into law.
1991 (CMA), the Deepwater Horizon disaster in the Gulf of Mexico, and more recently protests about the seismic testing being undertaken off the East Cape of the North Island. The adequacy of legislation to protect against the potential adverse effects of mining and other mineralrelated activities has also been called into question, particularly in relation to licences granted under the previous legislative regime,1 and activities on conservation land2 and within New Zealand’s waters.3
This article critically assesses the adequacy of the current legal framework in managing the potential environmental effects of mining, and considers whether mining and associated activities warrant special treatment different to other activities. It is clear that mining is an activity which carries with it a stigma, and in turn is a topic on which there is polarised opinion. The challenge is to step back from the emotion that often accompanies the debate, and objectively assess the regulatory framework that is presently in place.
Within this article the question of the adequacy of the legislative regime is assessed from three angles:
(1) mining licences granted under the Mining Act 1971 (MA71) and Coal Mines Act 1979 (Coal MA) that continue in force under the transitional provisions of the CMA;
(2) the current regime under the Resource Management Act 1991 (RMA) and CMA; and
(3) controls for activities in New Zealand’s Exclusive Economic Zone (EEZ) and continental shelf beyond.
In addition to assessing the adequacy of the legislative regime, comments are made as to possible means of addressing deficiencies in the regime.
2. THE NATURE OF MINING ACTIVITIES
In order to provide some context around the assessment undertaken within this article, it is necessary to provide a brief overview of the nature of the activities that are undertaken as part of mining operations. The specific activities under- taken by each operation will differ; however, there are some common elements and general comments that can be made about mineralrelated activities.
Mineral resources on (and in) land are usually extracted using open pit or underground methods.4 Open pit methods of extraction involve the excavation of an area of land.5 Underground methods of mining involve creating voids underground, which are accessed from the land surface through a portal.6 Extraction activities can utilise a range of techniques including blasting, excavators, and, in the case of underground coal mines, may use highpressure water cannons.7 Often the groundwater levels near the mineral resource need to be reduced by dewatering.
Once extracted, the minerals must be transported and processed. The nature of processing will depend on the type of mineral but usually involves an element of crushing. Some processes simply involve washing and sorting of the mineral resource,8 while other minerals such as gold and silver require a severalstage process to extract the mineral from the orebearing rock.
Transporting the mineral resource both from its source to the area for processing, and also from where it is processed to the market, can take many forms including by way of truck, conveyor9 or rail.10
Mining operations often result in waste materials being generated — for example, overburden or waste rock,11 and tailings generated by the processing of gold and silverbearing rock. These materials must be stored — often in overburden stockpiles or tailings storage facilities. The materials are also sometimes used for backfilling the voids created during extraction.
Most mining operations, particularly more modern operations, have rehabili tation as the final stage of operations. The Golden Cross Mine is an example of a mine currently in the process of planned closure and rehabilitation.12
The potential adverse environmental effects that may arise from mining on land if not managed properly include landscape and visual effects; discharge of sediments associated with earthworks; settlement; dust and other discharges to air; discharges to land (of overburden, waste rock, and tailings); discharges to water; acidic drainage (arising from exposure of potentially acidforming rock); ground surface instability, vibration and noise.
Mineral activity in New Zealand’s waters is relatively limited at present and predominantly relates to the extraction of sand, gas and petroleum.
Sand extraction involves the dredging of sand from the sea floor using methods such as suction dredges.
Petroleum activities range from exploration to extraction. Exploration includes seismic testing13 and drilling, while gas and petroleum extraction activ ities often involve the establishment of platforms and pipelines. In the same way as for mines established on land, decommissioning at the cessation of gas and petroleum extraction activities is an essential part of the operation.
Unless appropriately managed, these activities have the potential to disturb sediments and marine life on the ocean floor, can produce noises that disturb marine mammals, and may result in discharges to the marine environment.
When broken down into the component parts or the potential effects that may be generated, mineralrelated activities are similar or no different to a range of other activities. For example, exploration drilling is similar to drilling water bores; the transport of minerals can raise similar effects to the transport of other bulk products; the land clearance and visual effects of open pit mining operations can be comparable (and sometimes less) than those associated with production forestry; processing of gold and silver can be seen as comparable to many other industrial processing activities with byproducts to be disposed of; and noise and vibration can arise from a range of nonmineralrelated activities. Accordingly, there is no basis for treating mineralrelated activities differ ently to other activities with similar effects. This was confirmed by the Court of Appeal when it quoted “an important factual finding” of the Environment Court in relation to the treatment of mining in what was then the proposed Thames
Coromandel District Plan:14
The Environment Court made an important factual finding in its decision, which led it to criticising the TCDC for inconsistency in its treatment of some activities which the Environment Court believed had essentially the same effect as mining. The Court said at paras [21]–[22]:
[21] The exclusion of mining from large tracts of the Peninsula seemed to reflect an attitude toward that industry generally which is, we think, inconsistent with the attitude taken towards other activities which, depending on their nature and scale, have the potential to produce equally adverse effects. Mining was treated differently from, for instance, quarrying and production forestry. Those two activities were provided for throughout the Peninsula, mining was not. But quarrying is a subset of mining, with potentially identical effects. In the case of production forestry the noise, dust, traffic issues, indigenous vegetation issues and general visual effects are, potentially at least, similar to anything likely to be produced by a mining undertaking.
3. MINING LICENCES AND COAL MINING LICENCES
The starting point for the current analysis of the adequacy of the regulatory regime is a consideration of mining licences and coal mining licences granted under the former (preRMA and preCMA) legislative regime but still operative under the transitional provisions of the CMA. While the transitional provisions also apply to mining licences granted under the Petroleum Act 1937 and rights under the Iron and Steel Industry Act 1959, this article restricts its focus to an assessment of the provisions of the MA71 and Coal MA.
As set out below, this article reaches the conclusion that some of the criticisms made about the robustness of this ongoing regime are valid. Provision should be made for the enforcement provisions of the RMA to be used in enforcing compliance with the conditions of licences, and a broad provision allowing coal mining licences to be reviewed, enacted.
3.1 The Transitional Provisions
As noted above, mining licences and coal mining licences granted under the former legislative regime continue in force pursuant to the transitional provisions of the CMA and RMA.
Section 107 of the CMA provides:15
107 Existing privileges to continue
(1) Except as provided in this Part, every existing privilege shall continue to have effect after the date of commencement of this Act as if the Act which applied to the privilege before that date continued in force, and as if—
(a) subject to subsection (3), the holder of the privilege continued to have the same statutory rights as the holder would have had if this Act and the Resource Management Act 1991 had not been enacted; and(b) subject to subsection (3), the holder of the privilege continued to have the same statutory obligations as the holder would have had if this Act had not been enacted; and
(c) subject to section 108, every person having any function, power, or duty relating to the administration of the Act which applied to the privilege before that date continued to have those functions, powers, and duties; and
(d) the Environment Court and any other body having any function, power, or duty connected with the determination of any dispute under the Act which applied to the privilege before that date continued to have those functions, powers, and duties; and
(e) all persons continued to have the same rights to compensation, to make objections, and to appeal, as they would have had if this Act had not been enacted.
(2) Nothing in subsection (1)(a) applies to any right under any enactment specified in section 111(2) or section 111A.
(3) Where any consent in respect of any such existing privilege which, but for this section, would be required and would need to be sought under the Resource Management Act 1991, then the Resource Management Act 1991 shall apply.
Existing privileges are defined by s 106 of the CMA to include mining licences granted under the MA7116 (and mining licences granted under the previous legislation),17 and coal mining licences granted under the Coal MA.18
The practical effect of ss 106 and 107 of the CMA is that mining licences and coal mining licences continue as though the MA71 and Coal MA had not been repealed, with the exception of the provisions relating to the ability to apply for subsequent licences or to extend the duration of a licence.19 The only other change to the regime revolves around the role of the “Minister”. Section 108 of the CMA splits the role of administering existing privileges between
16 CMA, s 106(a).
19 Sections 107(2), 111 and 111A.
territorial authorities and regional councils (to the extent that matters in the mining or coal mining licence relate to their functions under ss 30 and 31 of the RMA),20 and the Minister of Energy and Resources in respect of matters that fall outside the jurisdiction of local authorities under ss 30 and 31 of the RMA.21 An Inspector under s 29(1) of the Health and Safety in Employment Act 1992 also has a role in exercising functions, powers and duties under the transitional provisions of the CMA. The role of the Inspector is limited to administering the licence conditions to the extent that they fall within the jurisdiction of the Inspector under the current health and safety legislation.
Before addressing the criticisms that have been targeted at the adequacy of environmental management under the licences granted under the former regime, it would be useful to briefly outline the regime provided under the MA71 and Coal MA.
3.2 The Former Regime — the Mining Act 1971 and Coal Mines Act 1979
The legislative regime under the MA71 and Coal MA was very similar. The grant of a licence effectively provided allocation rights to the mineral, access to the land, and land use consent.
Under both the MA71 and Coal MA, a licence was required for all mining operations.22 The holder of a licence was granted exclusive rights to mine the mineral within the area for which the licence was granted, and to carry out certain activities associated with mining.23 A licence was able to be granted for a maximum duration of 40 years in the case of coal24 and 42 years for minerals governed by the MA71.25
In general, minerals (including coal) found under land are owned by the registered owner of the property, unless the mineral is “nationalised”26 or the land has been alienated from the Crown and the ownership of the mineral is reserved to the Crown.27
Section 26 of the MA71 and s 21 of the Coal MA provided that a licence was not to be granted over any specified Crown land or class of Crown land without the written consent of the appropriate minister charged with the administration of the land. The landholding minister was entitled to refuse
25 MA71, s 77.
26 Section 6: in relation to gold and silver. 27 Coal MA, s 5 and MA71, s 8.
consent, grant consent unconditionally, or alternatively grant consent subject to conditions.28
In terms of land owned by any private person, a licence was not to be granted without the consent of that person.29 However, if the private land owner did not consent to access, and the mineral was Crownowned, the licence holder could apply to the Minister to have the land declared open for mining.30 Where the Minister considered it to be in the national interest, he or she could make a recommendation that the land be declared open for mining by Order in Council.31
Activities carried out under a licence did not require district land use consents under the Town and Country Planning Act 1977.32 Regional type consents, under the Water and Soil Conservation Act 1967, Soil Conservation and Rivers Control Act 1941 and Clean Air Act 1972, were, however, still required (where relevant for the particular activity).
3.3 Criticisms of the Adequacy of Mining Licences and Coal Mining Licences in Managing Environmental Effects
The adequacy of the environmental protections within the conditions of mining licences and coal mining licences granted under the MA71 and Coal MA has been the subject of several complaints to the Parliamentary Commissioner for the Environment33 and is a matter that has been raised more than once in reports by the Commissioner.34 A large number of mining licences and coal mining licences endure, even though the legislation under which they were granted was repealed 20 years ago.35 At the time of initially writing the article in 2011, a total of 79 mining licences for minerals, coal and petroleum were still active and remained listed on the New Zealand Petroleum and Minerals website.36
28 Coal MA, s 21(5) and MA71, s 26(6).
By the time of preparing the article for publication, the number of listed active licences had reduced to 65. Some of these mining licences will not expire for another 10, 20 or more years.37
In 1992, the then Parliamentary Commissioner for the Environment, in a report entitled Environmental Management of Coal Mining,38 set out the findings of an investigation “into the government system of agencies and processes established for managing the environmental effects of coal mining operations”.39 The report focused on how compliance and enforcement was achieved in relation to three privately owned open cast coal mines in three different parts of the country — namely the Roa coal mine operated by Francis Mining Company Ltd and located on the West Coast of the South Island;40 the Pirongia coal mine in Waikato, operated by Glencoal Energy Ltd;41 and the Newvale and Goodwin coal mines in Southland, operated by Newvale Coal Company Ltd.42 All operated under licences granted under the former regime. The Parliamentary Commissioner found that the conditions on the coal mining licence for the Roa coal mine were substandard and would in time lead to significant environmental damage.43 Fortunately, this situation was not found to be the case at the Pirongia coal mine, nor the Newvale and Goodwin coal mines, although several common constraints were identified that affected the mine operator’s environmental performance and the ability of public authorities to regulate coal mining activities, namely:44
(1) a number of administrative procedures;
(2) the quality of the conditions imposed on coal mining licences;
(3) monitoring and compliance arrangements; and
(4) the initial uncertainty and confusion in interpretation of the (then) recently enacted legislation.
The first, third and fourth matters raised by the Parliamentary Commissioner overlap to a large extent. These three matters include concerns about the confusion over the roles and responsibilities under the transitional provisions of the CMA following the enactment of the RMA and CMA; concerns about
43 PCE 1992, above n 34, at 38.
44 At 38.
capability in terms of relevant experience and financial ability of regional and territorial councils to monitor existing coal mining licences; and the absence of the power to use the RMA enforcement tools to enforce compliance with the conditions of coal mining licences.
On the matter of the adequacy of the conditions in the three coal mining licences, the Parliamentary Commissioner noted:45
The controls attached to the coal mining licences in the various case studies were largely in the form of standard conditions with little attempt to develop conditions specific to the particular site. “Standard conditions” have very general wording (being subjective rather than objective) and regional councils, district councils and offices of DOC involved in this investigation have found interpretation of [the then Ministry of Commerce’s] standard conditions difficult. Relying on standard conditions which were not sitespecific contributed to the situation at Roa where conditions were inappropriate and unenforceable.
A number of recommendations were made by the Parliamentary Commissioner, many directly to the West Coast Regional Council and Grey District Council in relation to the Roa coal mine.46 Other more general recommendations were also made and included:47
(1) that the transitional provisions of the CMA be amended to provide local authorities with the power to use the enforcement provisions in the RMA to enforce compliance with existing privileges; and
(2) that existing coal mining licences contain a condition to the effect that all conditions relating to environmental effects expire on 1 October 2001 and after that date, resource consents under the RMA are required.
Neither of these two general comments were adopted and enacted through amending legislation.
The current Parliamentary Commissioner for the Environment, Dr Jan Wright, has also commented on the matter. In her report titled Stockton Revisited: The Mine and the Regulatory Minefield 48 she raised concerns about the transitional provisions of the CMA resulting in an outdated and confusing regulatory regime. Particular matters raised in her report included that:
45 At 42.
46 At 52. The report noted, however, that the comments were also potentially relevant for other regional and district councils responsible for managing the environmental effects of coal mining.
47 At 58.
48 PCE 2009, above n 1.
(1) Mining and coal mining licences are outdated, and refer to statutes, legal entities and standards that no longer exist or have been superseded.49
(2) There are different public expectations as to what is environmentally acceptable. Resource consents granted in present times are likely to have more detailed and site-specific environmental conditions.50
(3) There is no provision for the Minister of Conservation to impose conditions where land covered by a mining licence has subsequently been transferred to the Department of Conservation.51
(4) There is confusion and uncertainty as to the roles of councils in regulating mining licences and coal mining licences under the transitional provisions of the CMA, including uncertainty about the extent of enforcement powers and the capacity to improve licence conditions.52
The Parliamentary Commissioner for the Environment went on to make six recommendations, in summary that:
(1) The Minister for the Environment should review what conditions in existing mining and coal mining licences require updating to provide better environmental outcomes, and the Minister of Energy and Resources update these conditions.53
(2) The Minister for the Environment review the conditions of deemed resource consents associated with mining and coal mining licences and initiates the necessary legislative amendments to provide local authorities with the power to vary the conditions.54
(3) The necessary legislative amendments are made to provide local authorities with the full range of enforcement provisions in part 12 of the RMA when exercising their regulatory powers in relation to existing privileges.55
(4) In addition, that amendments are made to legislation to provide local authorities with the full range of enforcement provisions in part 12 of the RMA in respect of deemed resource consents.56
49 At 38.
53 At 49.
54 At 49.
55 At 50.
56 At 50.
(5) The Minister of Conservation review the mining and coal mining licences for land managed by the Department of Conservation to ensure the existing conservation protection is adequate.57
(6) Should any of the coal mining licences held by Solid Energy be transferred to a private entity, then the Minister of Energy and Resources should consult the Minister of Finance and the Minister for StateOwned Enterprises to ensure that the Crown is not exposed to fiscal risk due to the inadequacy of environmental conditions associated with the licence.
The Parliamentary Commissioner for the Environment was clearly con cerned with the existing situation. However, are her concerns valid for all mining licences granted under the MA71 and Coal MA? The report started as a review of the environmental management of the Stockton coal mine58 which operates under a coal mining licence. The report is largely focused on coal mining licences which, as the Parliamentary Commissioner acknowledges in her report, were granted subject to a template of conditions if the coal mining licence was issued to the former Coal Corporation of New Zealand Ltd (now Solid Energy).59 In order to test whether the Parliamentary Commissioner for the Environment’s concerns have broad application, a random selection of mining60 and coal mining licences granted under the former legislative regime were reviewed.
3.4 Assessment of the Adequacy of Mining Licences and Coal Mining Licences
A selection of existing mining licences and coal mining licences were downloaded from the New Zealand Petroleum and Minerals website61 to ascertain whether the concerns raised by the Parliamentary Commissioners for the Environment (in both 1992 and more recently in 2009) were valid, or whether the comments were largely restricted to the licences reviewed for the purposes of the two reports prepared.
57 At 51.
(Goodwin); Mining Licence [ML] 32 3191; ML 32 093; ML 32 2954 (Golden Cross — open pit and underground); ML 32 2051 (Matatoki); ML 32 2305 (Birchfield Mine — Ross #2); ML 32 2373 (Birchfield Mine — Ross #3); and ML 32 2388 (Martha Mine).
The review of permits indicated that there was wide variance in the quality of the conditions — from comprehensive and detailed provisions as found in the mining licences for the Golden Cross Mine (ML 32 2954) and Martha Mine (ML 32 2388), to very scant and general conditions.62
There was a level of standardisation in conditions for various licences, and often the conditions had very general and subjectively worded obligations, which in practice would be difficult to enforce. For example, condition 8 of CML 37 168 (Roa coal mine) provides:
Mining shall be carried out so that there is no unnecessary disturbance of, or damage to vegetation or wildlife.
The Matatoki mining licence (ML 32 2051) has a similar condition in con dition 4:
At all times mining shall be carried out in a manner which will ensure that environmental disturbance is kept to a minimum. All necessary steps shall be taken by the licensee to prevent unnecessary destruction of or damage to vegetation or property and to ensure the safety of the public and livestock.
In both cases the conditions strive to achieve worthy goals; however, the con ditions would be difficult to enforce because they impose subjective rather than objective standards.
The conditions of some of the licences included performance standards around hours of operation, noise and vibration, while others had no such controls. This is perhaps reflective of the isolated location of some of the opera- tions, or alternatively, in some cases, the lack of comprehensive conditions.
Several of the licences included provision for annual work programmes to be signed off by the Inspector of Mines. While the role of the Inspector of Mines no longer exists, under the transitional provisions of the CMA it is clear that this role is now split between the relevant local and regional councils, and Minister of Energy and Resources. The provision of an annual work programme often provides for the “Inspector” to have an input into how operations for the next year will be undertaken (including environmental protections and rehabilitation)63 or alternatively make provision for signoff before certain works are undertaken.64
Some mining licences also made provision for technical peer review panels to ensure works were being undertaken appropriately.65
However, even though a review of conditions on licences granted under the previous legislative regime has shown that some of the issues raised by two Parliamentary Commissioners for the Environment are valid, the question still arises whether the situation is such that legislative changes are required or whether the powers within existing legislation are sufficient.
The ability to vary (and improve) the conditions of licences differs depending on whether the licence was granted under the MA71 or Coal MA.
In the case of the MA71, s 103D expressly provides for the Minister (namely the three components of the “Minister” provided for in s 108 of the CMA) to amend the conditions of a mining licence at any time, subject to the process in subsections (5) to (7) being followed. This power is reinforced by the transitional provisions of s 108(3) and (4) of the CMA that make it clear that either the Minister, regional or territorial authority can vary conditions so long as written notice is given to the other. A mining licence holder may also vary the conditions of its mining licence at any time under this provision.
A further ability to vary conditions of a mining licence granted under the MA71 is found in s 145. Section 145 requires the consent of the Minister to transfer (or otherwise deal) with a mining licence. The Minister’s consent to the transfer or dealing may be subject to any conditions, which could conceivably include environmentalbased conditions.
The ability to amend the conditions of a coal mining licence is, however, much more constrained. A review of the Coal MA only identified two provisions providing for the amendment of conditions. Section 70 provides for the Minister to “correct errors and supply omissions”, which would appear to provide for the correction of minor mistakes and gaps in the licence. Section 51 provides a broader, but still constrained, ability for the Minister to amend conditions for the purpose of preventing, or reducing, or making good damage to the surface of the land to which the licence relates; or damage to anything on the surface of that land; or preventing any conflict with the provisions of the Soil Conservation and Rivers Control Act 1941.
The enforcement provisions under the MA71 and Coal MA are relatively limited.66 The process in both statutes essentially provides for notice to be provided raising the non-compliance and seeking the rectification of the situation. If the licence holder does not address the noncompliance, then the
primary relief is forfeiture of the licence — a rather significant step. Provision is also made for the payment of fines; however, the level of fine is so minimal as to not provide any deterrent.67
Within the transitional provisions of the CMA, the local authority powers of an enforcement officer under s 322 are applied. However, the enforcement provisions of the RMA do not apply.68
In short, there are limited powers for the enforcement of the conditions of existing licences. This is a gap in the legislative regime worthy of review.
The Parliamentary Commissioner for the Environment in 1992 suggested that the transitional provisions of the CMA should be amended so that all existing coal mining licences expire on 1 October 2001 and resource consents are required for operations from that date on.
This suggestion would have significant implications that appear to have been overlooked by the (then) Parliamentary Commissioner. Significant capital investment is spent in establishing and running mining operations, based on the expectation of the duration of the life of the licence held for the operation. To adopt the Parliamentary Commissioner’s suggested approach would add an unreasonable level of uncertainty, particularly when there are other methods that can be adopted.
As has been identified in the assessment above, the primary areas where the present transitional regime could be objectively seen to be inadequate relate to the limited ability to review the conditions of coal mining licences and the limited range of options and powers available for enforcing compliance with the conditions of licences.
These matters could be addressed by enacting amendments to provide a general power to enable the review of the conditions of coal mining licences granted under the Coal MA (similar to that provided in s 103D of the MA71), and to provide for the application of the enforcement provisions in part 12 of the RMA to existing licences.
(HC).
4. THE CURRENT REGIME — CROWN MINERALS ACT AND RESOURCE MANAGEMENT ACT
In 1991, the former mineralspecific regime of a range of statutes dealing with the allocation of mineral rights, access to the resource and environmental protections was replaced by the RMA and CMA.69 The RMA and CMA provide a comprehensive framework in which to manage the allocation of mineral rights, access to minerals, and the management of the environmental effects associated with mineralrelated activities. Contrary to the claims that s 61(1A) and sch 4 of the CMA are necessary to protect the most pristine parts of New Zealand’s conservation estate, as will be demonstrated in the following section of this article, these provisions merely provide window dressing.
4.1 Overview of the Current Regime
The RMA and CMA significantly changed the statutory regime for mineral- related activities by separating the allocation of rights to Crownowned minerals from the environmental regulation of such activities.
Crown-owned minerals are defined in the CMA as being the “nationalised” minerals — gold, silver, petroleum and uranium;70 as well as minerals reserved to the Crown either under other statutes or by deemed reservation at the time of alienation (by sale, lease, or otherwise) from the Crown on or following the CMA coming into force.71
Under the current statutory regime three approvals are required for a proposal involving Crownowned minerals to proceed, namely:
(1) a minerals permit granted under the CMA;72
(2) a written access arrangement with the owner (and occupier) of the land;73 and
72 CMA, s 8(1)(a).
73 Section 8(1)(b).
(3) the necessary resource consents under the RMA.74
In the case of privately owned minerals, only the second two elements are required — access and the necessary resource consents.
Of the three elements of approval required, access arrangements and resource consents allow for conditions to be imposed to manage the effects of mining or other mineralrelated activity.
Mineral permits under the CMA provide for the efficient allocation of rights to the mineral resource and a fair financial return to the Crown for the extraction of the mineral resource.75 Conditions on mineral permits relate to the methods of mining and level of work expected to be undertaken under the permit, as well as the payment of royalties for the mineral resource extracted. They do not address environmental matters.
4.2 Access Arrangements
As noted above, with the passing of the CMA the rights to access the mineral resource were separated from the allocation of the resource. Section 47 of the CMA is clear that the grant of a minerals permit does not also grant a right of access, and that an access arrangement must be entered into between the permit holder and each owner and occupier.76 The three exceptions to this requirement to obtain written approval for access are minimum impact activities;77 where a right to exclusive occupation of Crown land in the coastal marine area has been granted under the RMA;78 and underground mining.79
78 CMA, s 61(3).
79 Section 57. This section provides that underground workings do not require a written access arrangement with any owners or occupiers of the surface of the land so long as the underground workings will not or are unlikely to cause any damage to the surface of the land or loss or damage to the owner of the land; will not or are unlikely to have any prejudicial effect in respect of the use and enjoyment of the land; or will not or are unlikely to have any prejudicial effect in respect of any possible future use of the surface of the land. In effect, so long as the underground workings do not have any surface expressions (eg in the form of a portal or vent shaft) then an access arrangement is not required.
An access arrangement entered into under the CMA may include a range of conditions including:80
(1) the times or periods during which the permit holder can access the land;
(2) the areas and ways in which the permit holder can access the land;
(3) the type of prospecting, exploration or mining operations that may be carried out on or in the land;
(4) the things that the permit holder needs to do in order to protect the environment while having access to the land;
(5) compensation to be paid; and
(6) the way(s) in which the arrangement can be varied.
In the case of access arrangements for Crown land, and land in the common marine and coastal area,81 s 61 of the CMA applies. Section 61 is important in two respects. First, it sets out the matters to which the relevant landholding minister must have regard in deciding whether to grant access. Second, it is the section that sets out the specific circumstances when the Minister of Conservation must not accept or enter into an access arrangement.
The matters that the landholding minister must consider in deciding whether to enter into an access arrangement are set out in s 61(2) and include:
(a) the objectives of any Act under which the land is administered; and
(b) any purpose for which the land is held by the Crown; and
(c) any policy statement or management plan of the Crown in relation to the land;
(d) the safeguards against any potential adverse effects of carrying out the proposed programme of work; and
(e) such other matters as the appropriate Minister considers relevant.
The matters for consideration are broad. There has, however, been some criticism that, in the case of land administered by the Department of Con servation, the test for access for mineralrelated activities (under mineral permits) applied under s 61 of the CMA sets a lesser threshold than the test applied for a concession (for all other activities) under the Conservation Act 1987.82 This is because the Conservation Act provides that the Minister “shall
not grant an application for a concession if the proposed activity is contrary to the provisions of [the Conservation] Act or the purposes for which the land concerned is held”83 as compared to the requirement to “have regard to” in s 61(2) of the CMA.
While on its face the criticism would appear to be justified,84 in practical terms the application of the two “tests” is unlikely to result in different out comes. The Minister of Conservation, when “having regard to” the objectives of the Conservation Act and any purpose for which the land is held, is unlikely to grant an access arrangement to a mineral proposal that does not appropriately recognise and address the nature of the land held and the purposes of the Act (for example, by adopting mining methods that minimise the effects on the land). While there is no directive to prevent the Minister from granting access in such circumstances, it is anticipated that he or she would not do so.
Further, if the case law relating to whether or not a proposal is “contrary to” the objectives and policies of a relevant plan (in terms of the s 104D threshold test in the RMA for noncomplying activities) is applied to the test in the Conservation Act, then again the practical difference between the phrases is reduced. The High Court in New Zealand Rail Ltd v Marlborough District Council 85 commented (in relation to the then equivalent provision to s 104D):86
The Tribunal correctly I think, with respect, accepted that that should not be restrictively defined and that it contemplated being opposed to in nature, different to or opposite. The Oxford English Dictionary in its definition of “contrary” refers also to repugnant and antagonistic. The consideration of this question starts from the point that the proposal is already a noncomplying activity but cannot, for that reason alone, be said to be contrary. “Contrary” therefore means something more than just noncomplying.
It is very unlikely that a proposal that fails the test in s 17U(3) of the Conser vation Act in terms of being “contrary to” the Conservation Act or purpose for which the land is held would be granted an access arrangement if it were considered under s 61 of the CMA.
In addition to setting out the matters that the landholding minister must have regard to when making a decision on whether or not to grant access, s 61 also
sets out the circumstances where the Minister of Conservation must not accept or grant access.
Subsection (1A) was inserted into s 61 of the CMA by the Crown Minerals Amendment Act (No 2) 1997 (Amendment Act). The Amendment Act has an interesting history, with its origin found in the Protected Areas (Prohibition on Mining) Bill (PAPOM Bill) introduced in 1990 by Philip Woollaston, who was the then Minister of Conservation. The PAPOM Bill was intended to be standalone legislation which would sit alongside the MA71, Coal MA, and Petroleum Act, although it did require some amendments to those statutes. The purpose of the PAPOM Bill was to prohibit mining in certain protected areas87 and Antarctica.
The Planning and Development Committee did not report back on the PAPOM Bill until September 1996. By that time one of the objectives of the PAPOM Bill as introduced, namely prohibiting mining in the Ross Dependency and making it an offence for a New Zealand citizen or resident to mine in Antarctica, had been implemented by the Antarctica (Environmental Protection) Act 1994.88 In addition, a Member’s Bill, the Coromandel Hauraki Gulf (Prohibition on Mining) Bill, introduced by Judith Tizard, was incorporated into what became the Amendment Act.89 The Coromandel Hauraki Gulf (Prohibition on Mining) Bill sought to prohibit mining activities in all conservation land within the Hauraki Gulf islands; the Coromandel Ecological Region; the Hauraki, Waihi, and Te Aroha Ecological Districts in the Bay of Plenty Ecological Region; and all coastal marine areas abutting land within the boundaries of the Coromandel Ecological Region and Hauraki Gulf islands.
The Planning and Development Committee commented in its report that:90
[t]his bill, as amended, is not essentially antimining in its intent. It is intended to be a statement by Parliament and by the Crown that certain areas of land owned by the Crown and allocated for conservation purposes are of particular significance in ecological and recreational terms, and that mining activities potentially compromise these values.
90 At iv.
As enacted, the Amendment Act inserted a new subsection (1A) prohibiting the Minister of Conservation from considering and/or entering into an access arrangement for those areas listed in sch 4 to the CMA,91 except in certain restricted circumstances.92 New subsections (4) to (8) were also added to the CMA providing the process to be followed to make amendments to sch 4 of the CMA. In essence, the amendments made to the CMA in 1997 effectively prevent surface mining of approximately 40 per cent of public conservation land or 13 per cent of New Zealand’s total land area because access to the land cannot be obtained.93 While this may not seem a significant percentage in terms of land area, the potential impact of s 61(1A) and sch 4 becomes obvious when one realises that approximately 40 per cent of New Zealand’s known mineral potential is estimated to be in sch 4 areas.94 The restrictions on access imposed by s 61(1A) of the CMA are therefore significant in terms of New Zealand being able to utilise its mineral resources. Nonetheless, and as is discussed later in this article, the “protection” afforded by s 61(1A) and sch 4 of the CMA is unnecessary, when considered against the comprehensive and robust protection
already provided by the RMA and CMA.
4.3 Resource Consents and Other Controls under the Resource Management Act
There are a number of checks and balances provided for within the RMA.
The activity status applied to mining and miningrelated activities provides the first layer of protection within the RMA framework — setting the thresholds that must be met for resource consent to be granted.
The RMA provides for activities to be classified as permitted, controlled, restricted discretionary, discretionary, noncomplying, and prohibited. While resource consent is not required for a permitted activity, and no resource consent can be sought or granted for a prohibited activity, the powers of the consent authority to decline or otherwise impose conditions on activities increases as one works through the activity types.95
In the case of mineralrelated activities, the activity status applied will depend on the nature of the activity and the sensitivity of the area concerned. Often prospecting and exploration96 are provided for as permitted activities in district plans, although in the case of exploration it may depend on the specific nature of the exploration activity being undertaken and the location.97 Exploration activities may involve the use of water and in the case of drilling may require regional consent for the discharges of drilling muds and water used in drilling; and sometimes for taking water.
Mining invariably will require a range of resource consents — regardless of whether the proposal is for an underground mine or surface mine. Again, the activity status often depends on the nature of the area in which the operations will take place and the type of activity proposed, with underground mining, by its very nature, being more likely to have a more favourable activity status to surface mining in district plans. Underground mining is often classified in a district plan as a discretionary activity, or noncomplying activity in more sensitive areas. Surface mining is often provided with noncomplying activity or prohibited activity status.98 That being said, in a range of district plans, surface
prospecting means any activity undertaken for the purpose of identifying land likely to contain exploitable mineral deposits or occurrences; and includes—
(a) geological, geochemical, and geophysical surveys; and(b) the taking of samples by hand or hand held methods; and
(c) aerial surveys,—
and to prospect has a corresponding meaning While exploration is defined as:
exploration means any activity undertaken for the purpose of identifying mineral deposits or occurrences and evaluating the feasibility of mining particular deposits or occurrences of 1 or more minerals; and includes any drilling, dredging, or excavations (whether surface or subsurface) that are reasonably necessary to determine the nature and size of a mineral deposit or occurrence; and to explore has a corresponding meaning
mining (which, depending on the district plan definition, may appropriately include quarrying) is provided for as a discretionary activity in rural zones. A range of regional consents are usually required.
A resource consent application must be accompanied by an assessment of effects with detail commensurate with the scale and significance of the potential effects that may arise from the activity.99 Schedule 4 of the RMA sets out in more detail the expectations for an assessment of effects which includes, amongst other matters:
(1) a description of alternative locations or methods in circumstances where the activity for which consent is sought will have a significant adverse effect on the environment;100
(2) an assessment of any risks to the environment that are likely to arise from the use of hazardous substances and installations;101
(3) a description of the nature of the discharge, the sensitivity of the proposed receiving environment to adverse effects, and any possible alternative methods of discharge (for example, whether the discharge could be to another receiving environment) where the activity includes a discharge of any contaminant;102
(4) a description of mitigation measures such as safeguards and contingency plans that will be adopted to help prevent or reduce the actual or potential effects of the proposed activity;103 and
(5) where the effects of the activity are such that warrant monitoring, details of the monitoring that will be put in place and who will be responsible for the monitoring.104
99 RMA, s 88(2)(b).
contaminant includes any substance (including gases, odorous compounds, liquids, solids, and microorganisms) or energy (excluding noise) or heat, that either by itself or in combination with the same, similar, or other substances, energy, or heat—
(a) when discharged into water, changes or is likely to change the physical, chemical, or biological condition of water; or(b) when discharged onto or into land or into air, changes or is likely to change the physical, chemical, or biological condition of the land or air onto or into which it is discharged
It should also be noted that the definition of environment in the RMA is broad:105
environment includes—
(a) ecosystems and their constituent parts, including people and communities; and(b) all natural and physical resources; and
(c) amenity values; and
(d) the social, economic, aesthetic, and cultural conditions which affect the matters stated in paragraphs (a) to (c) or which are affected by those matters
Therefore, an assessment of environmental effects will also need to cover a broad range of matters including the socioeconomic and cultural effects of the activity for the community; possible effects on amenity; and the effects on ecosystems and other natural and physical resources bearing in mind the wide set of values they may hold for members of the community.106
For a large project — for example, a new mine or quarry — the accom panying assessment of environmental effects is likely to be a rather substantial document covering a range of matters. For more minor matters — for example, any resource consents required for exploration activities — then the accom panying assessment of environmental effects would be a shorter document focusing on the key effects arising from the nature of the temporary activities associated with exploration.
If the assessment of environmental effects accompanying the resource consent application provides insufficient detail, then a consent authority may reject the application under s 88(3) as being incomplete. The application can only be rejected as incomplete within five working days after the application was first lodged.
Should an application be accepted for processing, then the local authority still has the ability to seek further information regarding the application from the applicant.107 The consent authority may also commission a report on the application where the activity for which resource consent is sought may have a significant adverse environmental effect (in the consent authority’s view), and the applicant is notified and does not refuse to the commissioning of the report.108
In short, the applicant must provide a comprehensive assessment of the nature of the proposed activity and any likely and potential effects (including effects of low probability, but high potential impact) arising from the proposed activity, with the level of assessment being proportionate with the scale and
significance of the likely effects. The council also has the opportunity to seek further information from the applicant, and commission reports from others in specific circumstances, to ensure the decision-maker has sufficient information to make an informed decision.
There is also the potential for public input in the process. While there is no requirement to consult,109 it is usually good practice to do so, particularly for more significant proposals. The identification of persons who may be affected by a proposal and the outcome of any consultation is a matter that should be included in an assessment of environmental effects.110 Nonetheless, even if there is no consultation, an opportunity is provided for those affected by a proposal to participate in the hearing process for a resource consent application and have their views heard.
In essence, an application will be publicly notified where:
(1) the effects of a proposal will be or are likely to be more than minor;111 or
(2) a rule or national environmental standard requires notification;112 or
(3) the applicant refuses a s 92 request for information;113 or
(4) the applicant requests public notification;114 or
(5) special circumstances exist.115
In the event that none of the requirements for public notification apply, then it is possible that an application may still be notified to a limited range of people. Limited notification applies where there is any “affected” person,116 affected protected customary rights group, or affected customary marine title group on whom the effects of the proposal will be minor or more.117
In conclusion, the combined effect of the provisions relating to the preparation of an assessment of effects, ability to seek further information, and the opportunity for public input will be that there is a broad range of material
and views available to the consent authority on which it can base its decision whether or not to grant resource consent.
There are also a number of protections provided within the RMA that provide for the ongoing monitoring and review of activities should resource consent be granted. Section 108 of the RMA allows for conditions to be imposed on a broad range of matters including the provision of a bond;118 a condition requiring services or works to be undertaken — for example, the protection, planting or replanting of any tree or other natural or physical resource;119 and ongoing monitoring of operations and reporting of the results to the relevant consent authority.120 In effect, conditions can be imposed for any environmental purpose, so long as it is reasonable, and fairly and reasonably relates to the consent to which the condition is attached.121
A review condition is often included in resource consents, particularly consents for significant proposals that have a long duration, have the potential to result in more than minor adverse effects, or for which the potential for adverse effects is not completely understood.122 Section 128 of the RMA provides for a consent authority to serve notice on a consent holder of its intention to review the conditions of the resource consent. A review can only be carried out where the resource consent provides for reviews, and at the time or times specified in the consent. Often a review condition will specify that the consent can be reviewed in the circumstances provided for in s 128, namely:
(1) to deal with any adverse effect on the environment which may arise from the exercise of the consent and which it is appropriate to deal with at a later stage;123
(2) to require the holder of a discharge permit or coastal permit to do something that would otherwise contravene ss 15 or 15B to adopt the best practicable option to remove or reduce any adverse effect on the environment;124
(3) in the case of a coastal, water or discharge permit, either when a regional plan has been made operative and sets rules relating to levels,
123 RMA, s 128(1)(a)(i).
124 Section 128(1)(a)(ii).
flows, rates or standards to be met; or when relevant national environ- mental standards have been made;125 or
(4) if the information made available to the consent authority by the applicant as part of the application contained inaccuracies which materially influenced the decision made and the effects of the exercise of the consent are such that it is necessary to apply more appropriate conditions.126
The process followed for a review of conditions is largely the same as for an application for a resource consent, and may involve notification and a hearing.127 In addition to the power to review resource consent conditions, sometimes
the duration of a consent is limited as a means of allowing the effects of the activity to be reassessed at a future date. Land use consents are usually for an unlimited duration unless the term is expressly limited to a defined period,128 while water, discharge and coastal consents granted under ss 12 to 15 have a maximum duration of 35 years.129
Finally, the RMA also provides powers and tools to ensure compliance with the conditions of a resource consent including declarations, abatement notices and enforcement orders.130
4.4 Adequacy of the Current Regime to Control the Effects of Mineral- related Activities
As has been demonstrated by the discussion above, the current legislative regime for the allocation of mineral rights, access to those minerals and environmental management of activities under the RMA is robust and comprehensive, with a number of checks and balances. The effects of mineralrelated activities are or can be the same or similar to the effects of a range of other activities. Therefore, there does not appear to be any basis for additional controls to be imposed, under the RMA or other legislation, on mineralrelated activities.
While the recent debate regarding whether land should be removed from sch 4 engendered images of open pit mines within national parks, the reality is that the various protections already provided within the CMA and RMA would ensure that an inappropriately designed and visually intrusive open pit mining proposal would not occur. Such a proposal would unlikely be able to
125 Section 128(1)(b) and (ba). 126 Section 128(1)(c).
obtain either the necessary resource consents or an access arrangement from the Minister of Conservation.
In this respect it would appear that s 61(1A) and sch 4 really only provide window dressing and sufficient protection is already provided within the CMA and RMA without these provisions.
This view is supported by the report of the Planning and Development Committee on the Amendment Act131 where the Committee, in effect, accepted that the amendments to the CMA to introduce sch 4, and the related provisions, were an essentially unnecessary additional layer of protection:132
It is our view that there are circumstances where the ecological or recreational value of a particular area is so important that mining is incompatible with the purpose for which the land is held. The CMA allows the Minister to make that decision on a case by case basis, in response to an application for access, but has only a limited capacity for decisions to be made in relation to areas in advance of applications.
Furthermore, we heard many submissions which suggested that the RMA is unable in practice to prohibit mining in all the circumstances in which this might be desirable. While we do not support criticism of the RMA on this ground, we are aware that some local authorities, community groups and companies have been required to invest considerable resources and energy in processes under the Act. We believe that, in the case of the areas included in this bill, such efforts should not be necessary.
The political nature of the inclusion of s 61(1A) and sch 4 is also clear when the commentary surrounding the inclusion of areas of the Coromandel Peninsula and Hauraki Gulf is read:133
There is a strong history of mining on the West Coast and the Coromandel Peninsula, which are also areas of considerable natural beauty. In respect of the Coromandel Peninsula in particular, there has been a strong history of protests against mining activities on the one hand, and also considerable interest in preserving operations which provide employment and economic and community benefits. This historical aspect has meant that the communities involved have, over a long period, developed and focussed on opposing viewpoints ...
131 Crown Minerals Amendment (No 2) Act 1997. 132 Select Committee Report, above n 88, at iii.
133 At iii.
The report went on to state, in terms of the somewhat arbitrary line drawn for inclusion of conservation land in the Coromandel within sch 4:134
... We recognise that, in relation to other categories of conservation estate on the Coromandel Peninsula, there are two distinct community viewpoints. For the areas north of the Kopu-Hikuai Road, we were satisfied that the majority of the community wish to see all such areas closed ...
For the conservation estate south of the KopuHikuai Road, the majority view was that there is no community consensus as to whether they should be closed to mining, and that such closure would impose considerable costs on the Crown as mineral owner, the mining industry and those persons reliant on that industry for their income.
Therefore, it would appear that while some areas listed in sch 4 may reflect special values that warrant protection, other areas included in sch 4 simply reflect the political power of an anti-mining movement in a particular area.
It appears unnecessary to add an additional “gloss” with respect to mining when, as discussed above in part 2, mineralrelated activities, when broken down into their component parts, can result in effects similar to a range of other industrial activities that do not face the same level of stigma or additional control. That being said, given the political nature of the provisions, it is unlikely that s 61(1A) and sch 4 will be repealed and the “special treatment” for mining in those provisions is likely to remain, at least in the short term. This has been reflected in the lack of appetite to revisit the need for s 61(1A) and sch 4 in the proposed amendments to the CMA recently introduced as part of the Crown Minerals (Permitting and Crown Land) Bill.135
5. MINERAL-RELATED ACTIVITIES IN NEW ZEALAND’S WATERS136
Attention has been directed at the absence of a comprehensive environmental permitting regime for activities in New Zealand’s waters, and public interest has been heightened by publicity surrounding protests over offshore petroleum
exploration activities undertaken off the East Coast of the North Island, and more recently the environmental legislation proposed (and now passed into law).
However, discussion surrounding the adequacy (or otherwise) of the legislative framework for New Zealand’s waters (including, specifically, an environmental protection regime) is not a new issue and has been a matter the subject of significant policy work over more than 10 years.137 This has included reports commissioned more recently to address the legislative framework for petroleum activities.138 Up until now, the legal framework has been developed in a somewhat piecemeal and activityspecific manner. While there has been much discussion and policy work, a comprehensive approach for the environmental protection of the marine environment (that assesses the effects of an activity, both on its own and cumulatively with other activities in the marine area) has only recently been translated into legislation. The introduction and recent enactment of the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012 (EEZ Act) therefore comes as no surprise and is a longawaited initiative.
Protection of the marine environment is clearly a very important matter, particularly when one considers the size of the area involved. New Zealand has the fifthlargest EEZ, which is 15 times larger than its land area and covers approximately 4 million square kilometres.139 New Zealand’s extended continental shelf extends to cover a further 1.7 million square kilometres beyond the EEZ.140
In addition to petroleum resources, it is known that New Zealand’s waters are rich in other mineral resources.141 It is also an area of high biological diversity.142
However, until such time as the new legislation comes into force,143 the patchwork of legislation and other guidelines for mineralrelated activities in New Zealand’s waters will apply. An assessment of this existing regulatory regime has demonstrated that while substandard, the current regime is still providing an effective level of environmental protection for the interim period.
5.1 The Current Legislative Framework
The current legislative framework reflects the differing levels of jurisdiction that New Zealand has under the United Nations Convention on the Law of the Sea (UNCLOS) in relation to the distinct zones making up our offshore waters
— the territorial sea, the EEZ, and the outlying continental shelf.144
New Zealand has sovereignty over the territorial sea, which extends 12 nautical miles out from shore.145 In a general sense, the territorial sea is treated in the same manner as the land mass itself, and all relevant New Zealand laws apply. In an environmental context, the RMA applies within the territorial sea which, together with the foreshore, is known as the coastal marine area.146
The EEZ extends from the outer boundary of the territorial sea to a point 200 nautical miles out from shore.147 While New Zealand does not have complete sovereignty over the EEZ, the country has specific sovereign rights over the exploration, exploitation, management and conservation of the natural resources of the seabed and water column.148 New Zealand also has jurisdiction in relation to the construction of artificial islands, marine scientific research, and protection and preservation of the marine environment. The sovereign rights and jurisdiction held are, however, subject to the rights of other nations in relation to freedoms of navigation, over-flight, and the laying of submarine cables.149
For those areas of the continental shelf that extend beyond the boundary of the EEZ,150 New Zealand has even less jurisdiction. There, New Zealand has sovereign rights over the exploration and exploitation of the natural resources of the seabed but not the water column. Jurisdiction also extends to the construction of artificial islands and drilling on the continental shelf, but it is subject to the same rights that other nations have in the EEZ.151
In exercising its jurisdiction New Zealand has a general obligation under UNCLOS to “protect and preserve the marine environment”.152 In addition, New Zealand has requirements in relation to monitoring and environmental assessment.153
As noted above, the jurisdiction of the RMA extends only so far as the outer boundary of the territorial sea. Beyond the territorial sea a range of different statutes apply which are generally sector specific154 and protect only elements of the marine environment. Until such time as the EEZ Act comes into force, no statute presently provides a comprehensive environmental regulatory regime.
In relation to mineralrelated activities in the EEZ and continental shelf, the Continental Shelf Act 1964 (CSA) and Maritime Transport Act 1994 (MTA) are the key statutes that apply;155 with the Marine Mammals Protection Act 1978 and Wildlife Act 1953 also having application to the extent that mineralrelated activities have the potential to affect marine mammals or wildlife.
The CSA provides for the grant of licences for the prospecting, exploration and mining of minerals. Section 4 of the CSA provides that no person shall prospect or mine for minerals without a licence granted under the CSA. In granting a licence, the Minister of Energy and Resources may impose any conditions that he or she considers appropriate including conditions relating to health and safety and the payment of royalties.156 While there is no specific requirement to consider environmental matters as part of the licensing process under the CSA, or to address environmental matters in the conditions of any licence, there is nothing prohibiting the Minister from taking environmental
matters into consideration and imposing conditions on the licence to protect the environment. In more recent times the Minister has imposed specific environmental mitigation and monitoring conditions on licences granted under the CSA.157 For example, the extension of duration158 for the Continental Shelf Licence (CSL 39 195) for Neptune Resources (Kermadec) Ltd included additional conditions that require mitigation, monitoring and reporting of environmental effects. Condition 38 requires Neptune Resources (Kermadec) Ltd to comply with the environmental guidelines for the exploration of polymetallic sulphides prepared by the International Seabed Authority,159 while conditions 39 to 45 require the avoidance, remedying or mitigating of adverse environmental effects; the collection of baseline data; a programme of monitoring to be undertaken; and reporting of both monitoring results and any incidents that may result in serious harm to the marine environment.
Two other Continental Shelf Licences granted to Chatham Rock Phosphate Ltd160 and TransTasman Resources Ltd161 also include environmental conditions requiring monitoring, reporting and the preparation of environmental impact assessments for further work.
Further, as an interim measure until the EEZ Act comes into force, industry will prepare environmental impact assessments and provide them to the Environmental Protection Agency for review.162 These interim measures have been developed with industry (and particularly the petroleum industry).163 But in terms of the existing legislation, the CSA does not require environmental assessments to be undertaken, or for monitoring to be carried out. Nor does it provide opportunities for public participation.
In relation to petroleum, the CSA incorporates the full regime of the CMA.164 However, as discussed earlier in this article, the CMA provides only for the allocation of mineral rights. It does not provide for consideration of environmental matters. Again, unless any specific conditions are included in the permit/licence document itself, the regime leaves a gap in terms of environmental matters for petroleum activities in New Zealand’s waters.
However, the petroleum industry has agreed to voluntary principles to manage the effects of their activities beyond the territorial seas. These principles are captured in a document called Environmental Best Practice Guidelines for the Offshore Petroleum Industry.165 A code of conduct has also been developed between the Department of Conservation and the petroleum industry to minimise the acoustic disturbance to marine mammals from seismic survey operations.166 Both of these guidelines are voluntary and not enforceable, but together with the voluntary agreement to provide environmental impact assess ments, and with the industry’s cooperation, they go some way to addressing the management of potential environmental effects arising from petroleum exploration and extraction activities in the interim and until the EEZ Act comes into force.
The MTA covers the disposal of waste at sea, and the discharge of oil, noxious liquid substances, sewage, waste and other material as part of operations from ships and offshore installations.167 The MTA is administered by Maritime New Zealand, although the transfer of some powers and functions associated with discharge and dumping activities in the EEZ from Maritime New Zealand to the Environmental Protection Agency has recently been proposed by the Marine Legislation Bill 2012, introduced into Parliament on 30 August 2012.
However, under the legislation as it is at the time of writing, the MTA provides Maritime New Zealand with the powers to make marine protection rules for a range of purposes including compliance with New Zealand’s obligations under international law; in relation to harmful or other substances; and in relation to waste and other material.168 Part 200 of the Marine Protection Rules (Rules) is directly relevant to mineralrelated activities and is aimed at preventing pollution of the marine environment from the discharge of harmful substances associated with the operation of offshore installations used in mineral exploration and exploitation.169 The Rules give effect to provisions of the International Convention for the Prevention of Pollution from Ships 1973/78
and the International Convention on Oil Pollution Preparedness, Response and Cooperation 1990, in respect to offshore installations.170
Among other matters, the Rules require operators of offshore installations to hold a discharge management plan approved by the Director of Maritime New Zealand, setting out the measures that will be used to manage discharges of harmful substances.171 The purpose of the discharge management plan is to establish procedures and practices that are aimed at reducing the environmental effects associated with harmful substances (including oil).172
The Marine Mammals Protection Act seeks to protect marine mammals from harm. The Act is administered by the Department of Conservation173 and covers activities both within New Zealand’s territorial seas and the EEZ (but not the continental shelf ).
The Act provides that no person shall hold a marine mammal in captivity or “take” any marine mammal, alive or dead, without a permit.174 The definition of “take” in s 2 of the Act is very broad and includes harming, harassing and disturbing marine mammals.
Finally, the Wildlife Act provides for the protection and control of wildlife,175 including black coral, red coral and spotted black grouper. It also protects a number of seabirds and reptiles.176 Like the Marine Mammals Protection Act, the Wildlife Act applies to activities in the territorial sea and EEZ (but not the continental shelf ).
Collectively these four statutes and voluntary guidelines provide the regulatory framework within which mineralrelated activities presently operate in New Zealand’s waters.
5.2 The Issues and Possible Means of Plugging the Gaps
Mineral activities within New Zealand’s waters have the obvious potential to result in environmental effects, with the potential effects increasing in scale as the activity progresses from initial exploration to full development. Even initial surveying activities have the potential for shortterm adverse effects on marine life.177 Other prospecting and exploration activities such as obtaining physical samples and drilling have the potential to disturb sediments and surrounding marine life and habitats on the seafloor. Construction activities associated with offshore installations and associated pipelines can also affect marine life in proximity to the operations.178 Finally, there is the prospect of the environmental damage associated with any incident. While there have been no major incidents arising from mineral activities in New Zealand’s waters, the possibility of a catastrophic event, such as the Deepwater Horizon explosion in the Gulf of Mexico, cannot be ignored.
Until the EEZ Act was passed into law, a key issue was that the legislative regime did not require an assessment of the environmental effects of proposed activities before they are given the necessary approvals to proceed. This was an issue that was not confined to mineral-related activities.179
Both the CSA and Territorial Sea, Contiguous Zone, and Exclusive Economic Zone Act 1977 contain regulationmaking powers;180 however, the appropriateness and reasonableness of using those regulationmaking powers to ensure environmental protection has been questioned by the Ministry for the Environment particularly as the statutes themselves do not require the assessment of environmental effects.181
5.3 The Future — the EEZ Act182
The EEZ Act passed its third reading on 28 August 2012 and received royal assent on 3 September 2012. The EEZ Act does not, however, come into force until the associated regulations are drafted and on a date appointed by the Governor-General by Order in Council, or 1 July 2014, whichever comes first.
182 As the EEZ Act comprises 177 provisions and 111 pages, the following section is necessarily a summary of some of the key aspects of the Bill.
The EEZ Act takes the form of “umbrella” legislation — providing a comprehensive environmental consenting regime that is additional to, and fills the gaps in, the existing legislative regime.183 This is appropriate as it provides for future activities that are presently not being undertaken in the EEZ and continental shelf but may be undertaken in the future. It also enables an integrated and evenhanded approach to managing effects of activities on the marine environment.
The purpose of the EEZ Act is to promote the sustainable management of natural resources of the Exclusive Economic Zone and the continental shelf.184 Sustainable management in turn is defined to mirror the definition of sustainable management in s 5 of the RMA.
The purpose of the EEZ Act differs from the form it took at the time the legislation was introduced. At the time of introduction into Parliament, the Bill set out as the purpose sought to achieve a balance between the protection of the environment and economic development. This was expressly provided for both in the purpose of the legislation185 and also in the matters that must be considered when considering applications for marine consents.186 The original purpose statement was very contentious and proved to be incredibly polarising. Questions were raised as to how environmental protection could be measured in the absence of environmental benchmarks and how this could be weighed against tangible economic benefits. Through the Select Committee Process and Supplementary Order Papers, cl 61 was deleted and the purpose of the EEZ Act was amended to its present form.
The EEZ Act also emphasises applying a cautious approach where there is uncertain or inadequate information;187 and the use of the adaptive management approach where appropriate.188 These principles were also the subject of much comment as the Bill proceeded through the legislative process, particularly how favouring caution differs from the RMA concept of the “precautionary approach” and how the adaptive management approach will apply in practice under this legislation.
The EEZ Act will be administered by the Environmental Protection Authority, an independent Crown entity.189 While it would appear appropriate for the Environmental Protection Authority to be the consent authority in
relation to the EEZ Act, it will not be effective unless it is properly resourced
— both in terms of sufficient numbers of experienced staff, and also funds and infrastructure that will enable it to monitor offshore operations. At the time of writing, these finer details were still to be addressed.
The EEZ Act applies to all activities in the EEZ and the continental shelf. As presently defined, activities covered by the Bill are very broadly defined190 and would essentially cover any activity, and certainly any mineralrelated activity. Activities covered by the EEZ Act include construction, placement, alteration, extension, removal or demolition of a structure on or under the seabed; the deposit of any thing or organism in, on, or under the seabed; and the removal of nonliving natural material from the seabed or subsoil (and a range of other activities).
The EEZ Act provides for activities to be classified as permitted, discre- tionary, or prohibited in regulations that are still to be prepared.191
Permitted activities may be undertaken without a marine consent under the EEZ Act, although if required by the future regulations, notice must be given to the Environmental Protection Authority before undertaking the activity. Prohibited activities, as the name suggests, are unable to be carried out.
For a discretionary activity to be undertaken, a marine consent must be applied for (and granted). An impact assessment must accompany an application for a marine consent,192 the requirements for which are very similar to those for assessments of environmental effects under the RMA.193
All applications for discretionary activities must be publicly notified,194 and unlike the RMA, there is presently no provision for limited or non-notification depending on level of effect that the activity may generate. While this may be intended to be dealt with as part of the classification of activities,195 without the detail that will be provided in future regulations it is difficult to know.
It is also interesting to note that some commentators have previously opined196 that the level of notification provided in the RMA would be inappro- priate for the consenting of activities in the EEZ and continental shelf, and a
lesser degree of public input, more akin to that adopted in other jurisdictions,197 would be more appropriate.198
It is for the Environmental Protection Authority to decide whether it is necessary or desirable to hold a hearing into an application for a marine consent; however, a hearing must be held where one is sought by a submitter or the applicant.199
The provisions relating to hearings appear to adopt a model similar to council hearings under the RMA; for example, only a representative for the Environmental Protection Authority may ask questions of witnesses or parties.200
A key difference with the council hearing process under the RMA is that appeals from decisions of the Environmental Protection Authority are limited to appeals to the High Court on points of law only.201 This is similar to the situation for projects of national significance under the RMA where the first- instance decisionmaker is a board of inquiry or the Environment Court, and appeals are to the High Court on points of law only.
In conclusion, the EEZ Act seeks to address the gap in the legislative regime for managing the environmental effects of activities in the EEZ and continental shelf. However, the devil is in the detail and that detail has been left to be provided in regulations. Only once those regulations come into force will the full effect of the EEZ Act be able to be properly assessed.
6. CONCLUSION
In conclusion, overall the regime for the management of the environmental effects for mineralrelated activities provides adequate protection and there is no justification for the special treatment of such activities as compared to other activities with the same or similar effects.
In the case of licences under the transitional provisions of the CMA, the legislative regime could be improved by providing for the more general review of the conditions of coal mining licences, and also for the enforcement provisions of the RMA to apply.
The current CMA and RMA regime is comprehensive and robust. Against the background of this comprehensive regime, with its checks and balances, s 61(1A) and sch 4 of the CMA provide “window dressing” rather than a necessary provision for protecting the more pristine parts of New Zealand.
Finally, it is well accepted that the patchwork of legislation applying to the EEZ and continental shelf up until the recent enactment of the EEZ Act had a number of gaps that needed to be filled. That being said, the Government and industry have in more recent times been acting responsibly ensuring, either by way of conditions on a licence or by way of compliance with voluntary guidelines, that the effects of operations in New Zealand’s waters are appropriately managed. The recently passed EEZ Act seeks to “plug the gaps”; however, its full effect will not become clear until the relevant regulations are promulgated.
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URL: http://www.nzlii.org/nz/journals/NZJlEnvLaw/2012/7.html