Exclusively Economic Zone bad for industry

The Exclusive Economic Zone and Continental Shelf (Environmental Effects) Bill, known as the EEZ Bill, is among the most important pieces of legislation being progressed by John Key’s government. Forest & Bird, and everyone who cares about our marine environment, wants to support it.

As drafted at the moment, the Bill risks our oceans and our reputation. For industry, too, it’s a risk.

Reported back by the Local Government and Environment select committee on May 15, and currently passing through its remaining stages in Parliament, the Bill fails to keep promises made by New Zealand to the United Nations, and 162 other countries who have signed the United Nations Convention on the Law of the Sea. When we signed that law (UNCLOS, for short) we promised to protect and preserve New Zealand’s marine environment.

On land, and at sea within 12 nautical miles, we have the Resource Management Act. In the EEZ, there is no equivalent legislation.

Our EEZ is the fifth largest in the world, rich in biodiversity (home to around 80% of New Zealand’s biodiversity), a breeding ground and feeding place for seabirds (“seabird capital of the world”), a life support system for endangered marine mammals, including half the world’s whale and dolphin species.

Seabed mining, renewable and fossil energy, and aquaculture are development opportunities being sought offshore. They join other industries such as fisheries, whale watching – and all of the things that go on, unseen, in that important environment that are just about supporting ocean health.

The EEZ Bill should be the offshore version of the Resource Management Act. It has the same job: to help decide who can develop parts of the EEZ, under what conditions; and to ensure that the environment is sustained and protected.

Others who shared Forest & Bird’s view, and told the select committee that the Bill was inadequate, included the New Zealand Law Society, the Environmental Defence Society, and the Parliamentary Commissioner for the Environment.

These were submitters all coming from a position of adequately understanding the applicable law, including Parliament’s independent expert environmental adviser.

We said the Bill would expose New Zealand to a risk of being sued at international law, and international embarrassment, for failing to keep our promises. It is UNCLOS that gives New Zealand rights over the resources in the EEZ. But countries, including New Zealand, only have those rights subject to “their duty to protect and preserve the marine environment”.

By contrast, the EEZ Bill “seeks to achieve a balance between the protection of the environment and economic development”.  It ignores three things.

First, long term economic benefit requires sustainable development. Secondly, because economic benefits are more immediate and easier to quantify than the environmental ones, the balance will always tilt the wrong way. Thirdly, “balance” gives decision-makers no guidance. Inconsistent decisions, and bad decisions, are inevitable, regardless of how much the government professes to want to comply.

This business of “balance” is government policy. But out in the EEZ, it is not what the law requires. And by contrast with the expertise of other submitters, it was clear from remarks in the select committee report that government members of the committee had fundamentally misunderstood what that law says.

This is bad for industry, even though the language used in this Bill is weaker than existing environmental laws. It is certainly bad for the environment, and environment-dependent economic activity (all of it).

It’s bad for industry because, if the Bill proceeds, litigation costing everyone money and time is inevitable.

Instead of well-understood legal language developed under the Resource Management Act and at international law, this Bill is drafted differently, and its meaning will need to be tested, case by case. Industry will have two different Acts to comply with: the Resource Management Act within 12 nautical miles of the coast, and the EEZ legislation beyond it.

Until fixed by a future government, this new law will cost and embarrass New Zealand, which has already dragged the chain on UNCLOS compliance for 30 years. This was a wasted opportunity to set in place a framework like the Resource Management Act that is capable of enduring for decades.

This is not about what Forest & Bird thinks should happen. This is about what the law says must happen.  Meanwhile, government is doing industry, the economy, our oceans and New Zealand no favours.

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4 Comments

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  1. June 12, 2012 5:33 pm
    Keith says

    Why have the mainstream media not brought this to the attention of the public and made it a political issue?

  2. June 12, 2012 6:31 pm
    Claire Browning says

    Hi Keith. It’s had some media attention … more would be better, of course!

    For myself, I’d like to see it NOT made into a political issue. I’d like to see the opposite – a consensus that we need at least to get a basic framework in place, that keeps our international legal promises, and protects and preserves the environment.

  3. June 15, 2012 11:29 am
    Marvin Hubbard says

    An Ethical Interpation of Gwynne Dyer’s article How bad could it get for planet Earth?
    By Marvin Hubbard

    Gwynne Dyer’s article presenting an accurate picture of the consensus from the overwhelming majority of scientists and palaeontologists concerned with climate change. In which he describes the likely reaction of the ocean to global warming and the likelihood of another mass extinction of life on Earth including mammals and human beings. Gwynne Dyer presents us with with an ethical challenge not unlike that faced by the United States Supreme Court Justice Felix Frankfurter in 1942.

    Early in World War II Supreme Court Justice Felix Frankfurter, was presented with evidence from the Polish government in exile, concerning the Jewish holocaust. In 1943 Jan Karsti was in Washington to meet with President Roosevelt and report on conditions in his own country Poland, Roosevelt requested that Karsti meet with Justice Frankfurter as it would be of vital concern for Frankfurter to be up appraised of the horrors befalling his fellow Jews in Poland. Frankfurter listened to Karsti’s detailed accounts of the program of extermination of the Jewish people carried out by the Nazis and Frankfurter’s response was “I do not believe you”. The testimony provided by Karsti addresses the moral challenge presented to Frankfurter and the human inability to “conceive the unconceivable and to recognise what Karsti calls ‘ the unprecedented” our propensity for denial when faced with overwhelming challenges to our comfort! With global climate change we face an ethical situation that is even more dire and instead of being bystanders we are participating in the crisis which threatens an ecological holocaust for our descendants our grandchildren

    Gwynne Dyer is basing his article on the Over all consensus from the overwhelming majority of scientists concerned with climate change that global warming is not only happening but it’s fuelled by human activities. After reading Dyer’s article how could we answer our descendents, if somehow we were transported 100 years into the future and faced the children of our great-grandchildren who ask us how we could not put everything , we had at risk in order to do everything possible to to change government policy and take the necessary actions to radically curb the build up of Greenhouse gasses in the atmosphere before it’s too late? How would we answer them .
    Otago Daily Times Tuesday the 12th 2012 By Gwynne Dyer on Tue, 12 Jun 2012
    How bad could it get for planet Earth?
    The forthcoming United Nations Conference on Sustainable Development in Rio de Janeiro (Rio+20) on June 20-22, has brought out the usual warnings of environmental doom. They have been greeted with the usual indifference: after all, there are seven billion of us now, and we are all still eating.
    What could possibly go wrong?
    The UN Environment Programme published its five-yearly Global Environmental Outlook (GEO-5) saying that significant progress has been made on only four of 90 environmental goals that were adopted at the Rio Earth Summit in 1992.
    “If current patterns of production and consumption of natural resources prevail,” warned UNEP head Achim Steiner, “then governments will preside over unprecedented levels of damage and degradation.” Yawn.
    Meanwhile, a team of respected scientists warns that life on Earth may be on the way to an irreversible “tipping point”. Sure. Heard that one before, too.
    Last week one of the world’s two leading scientific journals, Nature, published a paper, “Approaching a state shift in Earth’s biosphere,” pointing out that more than 40% of the Earth’s land is already used for human needs. With the human population growing by a further two billion by 2050, that figure could soon exceed 50%.
    “It really will be a new world, biologically, at that point,” the paper’s leading author, Prof Anthony Barnofsky of the University of California, Berkeley said. But Prof Barnofsky does not go into the details of what kind of new world it might be. Scientists hardly ever do in public, for fear of being seen as panic-mongers. Besides, it is a relatively new hypothesis, but it is a pretty convincing one, and it should be more widely understood. Here is how bad it could get.
    The scientific consensus is that we are still on track for 3degC of warming by 2100, but that is just warming caused by human greenhouse-gas emissions. The problem is that +3degC is well past the point where the major feedbacks kick in: natural phenomena triggered by our warming, like melting permafrost and the loss of Arctic sea ice cover, that will add to the heating, and that we cannot turn off.
    The trigger is actually around 2degC higher average global temperature. After that we lose control of the process: ending our own carbon-dioxide emissions would no longer be enough to stop the warming. We may end up trapped on an escalator heading up to +6degC, with no way of getting off. And +6degC gives you the mass extinction.
    There have been five mass extinctions in the past 500 million years, when 50% or more of the species then existing on the Earth vanished, but until recently the only people taking any interest in this were paleontologists, not climate scientists. They did wonder what had caused the extinctions, but the best answer they could come up was “climate change”. It was not a very good answer.
    Why would a warmer or colder planet kill off all those species?
    The warming was caused by massive volcanic eruptions pumping huge quantities of carbon dioxide into the atmosphere for tens of thousands of years. But it was very gradual and the animals and plants had plenty of time to migrate to climatic zones that still suited them. (That is exactly what happened more recently, in the Ice Age, as the glaciers repeatedly covered whole continents and then retreated again.) There had to be a more convincing kill mechanism than that, and the paleontologists found one when they discovered that a giant asteroid struck the planet 65 million years ago, just at the time when the dinosaurs died out in the most recent of the great extinctions. So they went looking for evidence of huge asteroid strikes at the time of the other extinction events.
    They found none.
    What they discovered was that there was indeed major warming at the time of all the other extinctions – and that the warming had radically changed the oceans. The currents that carry oxygen-rich cold water down to the depths shifted so that they were bringing down oxygen-poor warm water instead, and gradually the depths of the oceans became anoxic: the deep waters no longer had any oxygen.
    When that happens, the sulfur bacteria that normally live in the silt (because oxygen is poison to them) come out of hiding and begin to multiply.
    Eventually they rise all the way to the surface over the whole ocean, killing all the oxygen-breathing life. The ocean also starts emitting enormous amounts of lethal hydrogen sulfide gas, that destroys the ozone layer and directly poisons land-dwelling species.
    This has happened many times in the Earth’s history.
    Don’t let it worry you. We will all be safely dead long before it could happen again: the earliest possible date for a mass extinction, assuming that the theory is right and that we continue down our present track with emissions, would be well into the next century.
    The only problem is that things like this tend to become inevitable long before they actually happen. Tick, tock.
    Gwynne Dyer is an independent London journalist.

  4. August 6, 2012 11:46 am
    Robyn says

    Our parliamentary commissioner – Jan Wright has just come out saying a similar thing – http://www.pce.parliament.nz/media/media-releases/eez-legislation-too-weak-environment-commissioner/

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