New law governing the impacts of deep water petroleum and mineral extraction

1. New law governing the impacts of deep water petroleum and mineral extraction Robert Makgill Barrister & Solicitor North South Environmental Law

2. Introduction • Increasing raw commodity prices = deep water • International law & Impact Assessment • Law of the Sea Convention 1982 • ITLOS deep sea mining opinion • EEZ (Environmental Effects) Act 2012 • Precautionary approach • Adaptive management

3. New Zealand’s EEZ & CS Source: Ministry for the Environment

4. Law of the Sea Convention 1982 • Territorial Sea • 12 nautical miles • Full sovereignty • Continental Shelf & EEZ • 200 nautical miles • Rights to develop resources • Obligation to protect

5. ITLOS deep sea mining opinion • Concerns about liability in non-jurisdictional waters • Duty of due diligence • Adopt laws and regulations: • The Precautionary Approach • Best Environmental Practice – not best available technology • Environmental Impact Assessment

6. New Zealand - Prior to EEZ Act Petrobras decision clear statement of statutory lacuna prior to EEZ Act CMA requires allocation not environment management No Ministerial power or responsibility for EIA

7. Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012 • Introduced to plug statutory-gap in environmental management of EEZ • Effects based legislation where decision-making is designed to be driven by scientific information

8. Purpose of the Act – s 10(1) Clause 10(1) EEZ Bill: to achieve a balance between protection of the environment and economic development in relation to activities in EEZ or on the CS Section 10(1) EEZ Act: to promote the sustainable management of the natural resources of the EEZ & CS

9. Marine Consents • Activities in EEZ must permitted or authorised by marine consent (s.20) • Consent applications must be supported by an impact assessment (s.38 and s.39)

10. Information Principles – s.61 • Act to gives effect through the information principles (s.61): • Favouring caution and environmental protection • Enabling adaptive management if caution and protection means that an activity is likely to be refused • Reasonable reflection of precautionary principle

11. Adaptive Management – s.64 • EPA may include adaptive management approaches in conditions of marine consent • An adaptive management approach includes (s.64(2)): • commencing on a small scale, or for a short period so that effects can be monitored; • any other approach that allows an activity to be undertaken so that its effects can be assessed and the activity discontinued, or continued with or without amendment, on the basis of those effects

12. Summary Technology and commodity prices have driven demand for deep water resources International law concerning IA has been driven by concerns about liability outside sovereign jurisdictions NZ has lagged behind other jurisdictions in environmental management of our EEZ The EEZ Act is an effects based instrument that relies on scientific information Poor information about the EEZ means IA preparation will need to include precautionary approaches

13. For more information • R Makgill and K Dawson • The McGill International Journal of Sustainable Development Law and Policy • Spring 9:1 issue. (Feb 2013) See forthcoming article: Ocean Governance in the Pacific since the ITLOS Advisory Opinion on Deep Seabed Mining