The Exclusive Economic Zone: for sale

TAG Oil is very excited. It wants to turn the East Coast of the North Island – “literally leaking oil and gas”!! – into the “Texas of the south”, hosting thousands of oil wells.

A graphic showing the various legislative zones

If you thought that the EEZ Bill, currently before select committee, would be a major weapon in the government’s armoury to protect this unique and extensive environment – if you believed what responsible Minister Dr Nick Smith has said – you were wrong.

Each country’s EEZ stretches from its coast to out to 200 nautical miles. New Zealand’s marine environment, which also includes the continental shelf, is 23 times bigger than our land environment.
The EEZ Bill is supposed to protect it. However, it has what, according to the very charitable interpretation of the Parliamentary Commissioner for the Environment (PCE), can only be a “serious error”.

The Bill is, all on its own, an environmental risk.

New Zealand is a party to the United Nations Convention on the Law of the Sea (UNCLOS). It is from UNCLOS that our right to use the EEZ for economic purposes comes. It is this that gives us the authority and the exclusive privilege. It does that on condition of a requirement to “protect and preserve” this environment.

New Zealand waters are a breeding ground and transit route for many marine and seabird species, including threatened and endangered species. There are risks for them, and marine conservation, from accidents that may result from activities in the EEZ, particularly offshore oil activities.

Despite encouragement to comply with UNCLOS (“protect and preserve”), the Marine Reserves Bill has been stuck in Parliament since 2002. A woeful 0.4 percent of the EEZ is protected in marine reserves.

By contrast, around one-third of our land is public conservation land.

Dr Smith has promised to prioritise the Marine Reserves Bill and get it passed in the next three years. It will be reported back from select committee on February 29, with the EEZ Bill. This is good. It is an important part of the protection package.

But it is not, on its own, good enough. No less important is managing the competing uses of the parts of the marine environment that we do not set aside in reserves. It is all the same environment.

The MV Rena’s grounding on the Astrolabe Reef, and oil spill, has taught us about the importance of prevention. Forest & Bird is among those calling for an independent inquiry into the circumstances of this accident – into New Zealand’s oil spill response capacity, but more importantly, stopping accidents in the first place.

That means making good judgements about what activities are allowed offshore, by whom, and on what conditions.

The EEZ Bill is one tool for doing this. It establishes a decision-making process to manage activities in the exclusive economic zone (EEZ) and on the continental shelf beyond 12 nautical miles.

It has the same job as the RMA, which applies on land, and to 12 nautical miles offshore.

Beyond 12 nautical miles, out to 200 miles, the law is complicated and has gaps. To all intents and purposes, it is currently unregulated. In this sense, the EEZ Bill is a good and a necessary thing.

The Bill is modelled on the Resource Management Act (RMA). And it should be: there is no reason, in principle, for the philosophies of the two Acts to differ. If anything, UNCLOS requires a higher, not a lesser, standard of protection.

However, the Bill does differ from the RMA in some important, and quite malign, ways.

The purpose of the RMA is to “promote the sustainable management of natural and physical resources”. It says this in section 5. Similarly, section 8 of the Fisheries Act says that “The purpose of this Act is to provide for the utilisation of fisheries resources while ensuring sustainability”.

The EEZ Bill is concerned with “economic wellbeing”.

It “seeks to achieve a balance between the protection of the environment and economic development”: the purpose clause in section 10. It does not talk about sustainability, at all. It directs decision-makers to consider the “efficient” use of resources, not their sustainable use.

Responsible Minister Hon Nick Smith has said that for the small number of decisions under the EEZ Bill (around 10-20 consents per year), the level of complexity in the RMA is not justified. Also, that the RMA requires consideration of some factors, such as social and cultural factors, which are not applicable offshore; therefore, the focus needs to be on economic and environmental factors.

We agree. However, we think that the Minister’s logic is still wrong.

The Bill can be more simply and appropriately drafted. But its basic purpose and philosophy still apply. Without sustainability, we are lost. No environmental protection, no long-term economic wellbeing – so that, in fact, the current drafting of the Bill inadvertently undermines its own stated goal.

We support the Minister’s desire to “simplify and streamline”, provided it can be achieved without doing damage to our own goals of properly protecting the environment. We think that it can.

For example, it would be more “simplified and streamlined” to have at least approximately the same law on both sides of the 12 nautical mile line. At the margins (ie, in cases that cross or are close to the 12 mile limit), and when talking about species that migrate between the two, totally different philosophies makes no sense.

Beneath this is a more fundamental, non-negotiable point. New Zealand is already party to another law, UNCLOS, that requires it.

Beyond the purpose clause, the EEZ Bill differs from the RMA in other ways. The RMA prioritises decision-making factors, into “matters of national importance” (which are about environmental preservation and protection), and “other matters”.

The EEZ Bill lists them all together, with no indication about relative weight, except that on the list of eight items, the conservation ones come last.  This is backed up by clause 61, which provides that the Environmental Protection Agency (EPA) may grant an application for marine consent “if the activity’s contribution to New Zealand’s economic development outweighs the activity’s adverse effects on the environment” or “may refuse the application if the adverse effects of the activity on the environment outweigh the activity’s contribution to New Zealand’s economic development”.

This is a direct trade off of economic benefits against environmental costs. In effect, it says that provided the economic rewards are sufficiently high, any lesser amount of environmental destruction or damage may be consented to by the EPA.

It fails to recognise that there are environmental limits which should not be breached irrespective of the economic benefits. And in many cases it is neither possible nor appropriate to try to put a monetary value on environmental damage, such as the irreversible loss of a species or unique habitat.

It is this, concluded the PCE, which must be a “serious error”.

It says that if what you find out there in the EEZ is worth enough, it’s all for sale. What the Bill does is state its price. It does not set in place any bottom line – any fence, if you like, against risk of environmental destruction.

It is the Schedule 4 policy leftovers warmed up, in a more remote place, where the government hopes we will neither notice nor care.

Do you?

If so, please speak for the blue whales and their calves, the wandering albatross who died cloaked in tar from the Rena, the many, many other less charismatic megafauna out there in the EEZ, and those who are not charismatic at all – but important, and with whom we are privileged to share this environment.

It’s not too late to make a submission to the Local Government and Environment select committee which is dealing with this Bill. They close on 27 January. Forest & Bird’s submission is here.