Late last week, the Government released a discussion document on activity
classifications under the EEZ Act. The discussion document addresses two key
whether the EEZ Act should be amended to introduce a non-notified
discretionary activity classification (with regulations to include offshore
exploration drilling within this category); and
the proposed transfer of the regulation of the discharge of harmful
substances from offshore structures and production facilities on ships (and the
dumping of waste) from Maritime New Zealand to the EPA (and the appropriate
classification of those activities under the EEZ Act).
These proposals have been introduced by way of a Supplementary Order Paper to
the Marine Legislation Bill which is currently before Parliament. Although that
Bill is currently awaiting its committee stage and third reading, it is expected
to be enacted in the near future.
This column comments on the first proposal identified above.
New non-notified discretionary classification
Under the EEZ Act and regulations as they currently stand, offshore
exploration drilling in the EEZ is a discretionary activity which, after the
current transitional arrangements expire in June 2014, will require a marine
The discussion document proposes the introduction of a non-notified
discretionary classification, in addition to the existing permitted,
discretionary and prohibited activity categories.
The implications of a non-notified discretionary classification include:
a marine consent must still be sought and obtained from the EPA for
exploration drilling in the EEZ;
the EPA, after considering the operator's EIA, any other relevant information
and any matters raised at any hearing, will have the discretion to approve or
decline the application;
the time required for operators to obtain a marine consent will be marginally
reduced (and, importantly, there will be greater certainty as to the relevant
the non-notified discretionary process will likely result in some costs
savings for operators (although these are not likely to be material in the
overall context of the cost of an offshore exploration well in the EEZ); and
reduced ability for issue-motivated groups or those with an ideological
objection to offshore exploration activity to delay, frustrate or create
unnecessary costs for operators by uninformed or emotive participation in the
marine consenting process or court proceedings.
Given the highly technical nature of the matters the EPA will likely consider
at any hearing on a marine consent application, it is hard to see what
meaningful substantive input an issue-motivated group can have on the merits of
the matters being considered.
A raft of new regulation
The proposed new activity classification does not mean that the Government is
abrogating appropriate protection of the offshore environment and/or undermining
other HSE considerations.
This is underscored by the raft of new legislation that has been introduced
in recent years regulating all aspects of offshore exploration activity - this
includes the recent Crown Minerals Act reforms, new HSE regulations (including
mandatory safety cases), bio-security law reform, new and proposed changes to
New Zealand's maritime legislation, the new DoC Seismic Code, and the EEZ Act
and marine consent process itself.
It is also underscored by the rigour the EPA is applying in respect of
offshore exploration drilling in the upcoming 2013/2014 season and the
relatively stringent conditions associated with the less regulated "permitted
activity" category under the Exclusive Economic Zone and Continental Shelf
(Environmental Effects-Permitted Activities) Regulations 2013 – both of which
give an indication of the approach the EPA is likely to take to any non-notified
marine consent application for offshore exploration drilling.
There is no doubt that the proposals to amend the Marine Legislation Bill
will not be satisfactory to everyone – and we have already seen the
Environmental Defence Society issue a press release complaining about the public
consultation process and that the outcome has been pre-determined.
Notwithstanding any such objections, it is clearly the case that it is in
everyone's interests – the Government, the petroleum sector and environmental
lobby groups – for there to be appropriately rigorous scrutiny of marine consent
applications and associated EIAs. And one expects that is precisely what the EPA
This publication is necessarily brief and general in nature. You should seek professional advice before taking any action in relation to the matters dealt with in this publication.