| How time flies when you are busy! And marine and coastal matters... It has been 12 months since we circulated our last newsletter. Much has happened. The Government has continued on a rapid - some might say dizzying - path of legislative reform. The Crown and local authorities have been divested of title to the territorial seabed, the right to claim customary title over that area has been restored and a new bill to manage the environmental effects of offshore activities in the EEZ is imminent. North South Environmental Law (NSEL) during this period has:
Clearly there has been a distinct marine and coastal theme to much of NSEL's recent work. In keeping with that trend this instalment of our newsletter addresses recent legal developments concerning the marine and coastal environment. Legal issues covered in the following articles include: customary marine title; international obligations in respect of the marine environment; mineral and petroleum exploration and exploitation of the seabed; ocean governance beyond territorial waters; protected surfing reefs; marine spatial planning, aquaculture and the functions of the Environmental Protection Authority. We hope you find our commentary on marine environmental law in this issue of some interest and use. Marine and Coastal Area Act 2011 | top The passing of the Marine and Coastal Area (Takutai Moana) Act (MCAA) by Parliament on 24 March 2011 establishes a new regime for recognition of customary rights and title over the foreshore and seabed. A Court of Appeal finding that the Maori Land Court had jurisdiction to determine claims of customary ownership over the foreshore and seabed in Ngati Apa v Attorney-General [2003] 3 NZLR 643 led to the previous Government's enactment of the Foreshore and Seabed Act 2004 (FSA). The FSA removed the ability of Maori to seek recognition of their customary or aboriginal title and vested beneficial ownership of the foreshore and seabed in the Crown, but allowed existing freehold title to remain. The perceived elimination of customary title under the FSA led to the creation of the Maori Party, and adverse reports by The Waitangi Tribunal (WAI 1071) and a United Nations Special Rapporteur (E/CN.4/2006/78/Add.3, 13 March 2006). Despite the criticism of the FSA it is worth noting that many of the provisions under the MCAA are based on those in the earlier enactment. Robert Makgill and Dr Hamish Rennie (Department of Environmental Management, Lincoln University) have had a front page article, on the legislative effect of the MCAA, published in the latest issue of the Resource Management Journal. See Makgill, R. and Rennie, H. ‘The Marine and Coastal Area Act 2011’ April 2011 Resource Management Journal, at 1 to 7. A copy of the Resource Management Journal article will be made available on our website once it is available on the Resource Management Law Association's web site. In the meantime a working draft of this article can be downloaded from the following link. Makgill, R. and Rennie, H., 'The Marine and Coastal Area Act 2011' April 2011 Robert Makgill and Prof. Richard Boast (Faculty of Law, Victoria University) will be presenting a series of New Zealand Law Society | CLE seminars on the MCAA in the main centres from 30 August to 1 September 2011. For more information on this seminar series click on the following link. New Zealand Law Society | CLE Ltd Seminar: Marine and Coastal Area Act - demystifying the hype Robert Makgill and Bronwyn Arthur (Crown Counsel -Team Leader Natural Resources Team) have also agreed to run a series of seminars on the MCAA, as part of the Resource Management Law Association's (RMLA) national road show seminar programme. This road show will take place sometime after late September 2011. The purpose of this road show will be to take the MCAA to decision makers, resource users and tangata whenua who are likely to affected by the new legislation, but are located outside the main centres. If you would like to know more about these seminars please contact your local RMLA branch. If you do not know how to contact your RMLA branch please contact Karol Helmink (Executive Officer, RMLA). If you would like to know more about the Marine and Coastal Area Act please contact Robert Makgill. Deep Sea Mining in the High Seas: International Law of the Sea Advisory Opinion | top Robert Makgill joined American lawyers, Cymie Payne and Donald Anton, as legal counsel before the Seabed Disputes Chamber of the International Law of the Sea Tribunal in Hamburg, Germany, between 14 and 16 September 2010. Robert and his co-counsel appeared on behalf of the International Union for Conservation of Nature and Natural Resources (IUCN) presenting written and oral submissions addressing the responsibilities and obligations of States that sponsor entities seeking to undertake deep sea mining within the High Seas seabed. On 1 February 2011, the Chamber unanimously adopted an Advisory Opinion on state responsibility. The Chamber's Advisory Opinion states, first and foremost, that States have an obligation of due diligence. Elaborating on this point the Advisory Opinion states that "[t]his 'due diligence' obligation requires the sponsoring State to take measures within its legal system. These measures must consist of laws and regulations and administrative measures. The applicable standard is that the measures must be 'reasonably appropriate'." Following its discussion of due diligence, the Chamber proceeded to put "meat on the bones" by considering the "direct obligations" of sponsoring states under the Convention and general international law. Three particularly important direct obligations are:
Robert Makgill, Cymie Payne and Donald Anton have written a review of the Advisory Opinion, which is soon to be published in the Environmental Policy and Law Journal, IOS Press, The Netherlands. In the meantime a working draft of this article can be downloaded from the following link: Anton, D.K., Makgill, R.A. and Payne C.R., 'Advisory Opinion on Responsibility and Liability for International Seabed Mining (ITLOS Case No. 17)' There have also been a number of articles in the media concerning Robert's involvement in the Advisory Opinion proceedings. Copies of these articles can be downloaded from the following links: 'Historic Environmental Law Decision', New Zealand Law Society, Law Talk, Issue 768, 25 March 2011 'Protecting the Common Heritage of Mankind', NZ Lawyer Magazine, 25 February 2011 'NZ Lawyer at Law of the Sea Tribunal', New Zealand Law Society, Law Talk, Issue 758, 13 September 2010. If you would like to know more about the Advisory Opinion please contact Robert Makgill. Deep Sea Mining in the Pacific: Secretariat of the South Pacific Community DSM Workshop | top The European Union recently granted 4.7 million Euro to the Secretariat of the South Pacific Community (SPC) to assist in the development of a sustainable marine minerals industry. The SPC has in turn initiated a project entitled 'Deep Sea Minerals in the Pacific Islands Region: a Legal and Fiscal Framework for Sustainable Resource Management'. The project is intended to deliver:
The first step in this project was a workshop held in Fiji between 6 and 8 June 2011 to provide a high level briefing on the status of deep sea minerals in the Pacific Island Region and planning for a regionally integrated way forward. Robert Makgill and Keith Frentz (Beca International Consultants) were invited to the workshop to provide a briefing on legislative and administrative frameworks for deep sea minerals. Issues addressed by Robert and Keith included:
If you would like to know more about deep sea mining, or the deep sea minerals project, please contact Robert Makgill. EEZ Reform | top Exclusive Economic Zone and Extended Continental Shelf (Environmental Effects) Bill New Zealand is at a crossroad in terms of how we regulate allocation, management and use of our marine environment. We have more than 330 islands, with 18,218 kilometres of coastline extending from subtropical to subantarctic waters. New Zealand's territorial waters (shoreline to 12 nautical miles) are larger in area than a number of other countries' Exclusive Economic Zone (EEZ) (16.3 million hectares - source MfE). Our EEZ (12 and 200 nautical miles offshore) is the fifth largest in the world (430 million hectares - source MfE). Our marine and coastal areas are pretty much unused when compared to those in the Northern Hemisphere. However, there is increasing interest being shown in the economic potential of our ocean resources. There are, by way of example, presently 70 permits for petroleum exploration in our deep sea environment under the Crown Minerals Act 1991, and another 23 applications pending (source: Sunday Star Times – What lies beneath - 29/05/11). While the Resource Management Act 1991 (RMA) provides a robust regime for managing the effects of these activities in territorial waters, the environmental regime for managing our EEZ is weak at best. Environment Minister, Dr Nick Smith, announced on 2 June 2011, that an Exclusive Economic Zone and Extended Continental Shelf (Environmental Effects) Bill will be introduced into the house in July 2011, to manage the effects of offshore activities such as mining and petroleum exploration in New Zealand's EEZ and Extended Continental Shelf. The Bill will be New Zealand's first attempt at oceans governance legislation. It would seem from the Minister's comments that the regulatory regime may have some resemblance to the RMA. This is interesting given that a Cabinet Paper, made available shortly before the last general election (July, 2008), cast doubt on whether New Zealand has jurisdiction to extend an RMA type regulatory regime over the EEZ and Continental Shelf. The Cabinet Paper questioned amongst other things whether sustainable management was an appropriate purpose for a legislative regime outside territorial waters. Clearly integrated management would be made easier by adopting the RMA's purpose. However, it was questioned whether such an approach would be inconsistent with the requirement to 'protect and preserve' the marine environment under the United Nations Law of the Sea Convention 1982 (LOSC). This not surprisingly led to concerns from industry stakeholders that 'protect and preserve' could push the legislation too much towards conservation rather than sustainable use. Whatever the case, NSEL is of the view that there is certainly jurisdiction under the LOSC to enact a more comprehensive regulatory regime for managing the environmental effects of activities in the EEZ and Continental Shelf. International examples of trans-boundary marine and coastal management include England's Marine and Coastal Access Act 2009. This legislation enables (amongst other things) marine spatial planning throughout England's territorial waters and EEZ. For more information on marine spatial planning follow the below link: Marine Spatial Planning: spatial planning for land and sea Whatever shape the Bill takes it provisions will have a significant impact on exploration and exploitation of resources within the EEZ and Continental Shelf. Consequently, its passage through Parliament should be of real interest to industry stakeholders, as well as environmental groups. All those groups are likely to take an active role in lobbying Government and participating in the inevitable Select Committee process. If you would like to know more about the EEZ Environmental Effects Bill please contact Robert Makgill or Katia Fraser. Nationally Significant Surfing Reefs | top Policy 16 of New Zealand Coastal Policy Statement (NZCPS) 2010 Robert Makgill appeared as legal counsel for the Surfbreak Protection Society (together with a team of planning and scientific experts) in front of the Board of Inquiry into the New Zealand Coastal Policy Statement (NZCPS) in October 2008. The Sufbreak Protection Society sought the identification a number of internationally recognised surf breaks as nationally significant under the NZCPS 2010. It is with great pleasure that NSEL notes seventeen surf break locations were recently declared as nationally significant under Policy 16 of the NZCPS 2010. Marine Spatial Planning | top EDS Conference 2011: spatial planning for land and sea A hot topic at the recent Environmental Defence Society (EDS) conference was the use of marine spatial planning (MSP) as a tool for managing the use of marine space. MSP can be thought of as a tool that uses science-based maps to identify where particular uses or activities might most appropriately occur. Following the conference EDS announced that the Auckland and Waikato Regional Councils, Hauraki Gulf Forum and Government have all displayed interest in preparing a marine spatial plan for the Gulf. The Hauraki Gulf is the most heavily used section of marine space in the country, and conflicts between different uses have lead to suggestions that MSP might be used to regulate conflicts between those uses, and the effects of those uses on ecological values. Robert Makgill and Dr Hamish Rennie (Department of Environmental Management, Lincoln University) were keynote speakers at the EDS conference. They presented a joint paper on 'Applying Marine Spatial Planning to New Zealand's Seas'. Robert and Hamish endorsed MSP as a useful tool, but urged policy planners not to use MSP in the same way that it has been generally applied in Europe and the United States. This is because those countries have a much more prescriptive approach to spatial planning, which is generally inconsistent with the permissive effects based regime for environmental management under the Resource Management Act 1991. Robert peer reviewed the Hauraki Gulf Forum’s recent report on 'Spatial Planning for the Gulf'. This report provides a review of the use and development of marine spatial plans in other countries and the potential application of marine spatial planning to the Hauraki Gulf. A copy of the Forum's report can be downloaded from the following link: Hauraki Gulf Forum - 'Spatial Planning for the Gulf' If you would like to know more about the marine spatial planning please contact Robert Makgill. The Aquaculture Legislation Amendment Bill | top The Aquaculture Legislation Amendment Bill [No 3] is currently before the Primary Production Select Committee, and was reported back to the House on 9 May 2011. The Bill introduces a number of changes to the present legislation including the:
Robert Makgill and Margo Perpick, members of the New Zealand Law Society's (NZLS) Environmental Law Committee, prepared the analysis and report for the NZLS submission to the Select Committee on the Bill. A copy of the NZLS submission can be downloaded from the following link: NZLS submission - The Aquaculture Legislation Amendment Bill [No 3] If you would like to know more about the Aquaculture Legislation Amendment Bill please contact Robert Makgill. Environmental Protection Authority | top Passage of Environmental Protection Authority Act 2011 NSEL has recently been appointed to the panel of legal experts set up to advise the Environmental Protection Authority (EPA) when it requires external legal advice. The Environmental Protection Authority Act was passed by Parliament on 11 May 2011. This Act establishes a new EPA as a standalone crown agent from 1 July 2011. The new EPA is tasked with streamlining and strengthening national environmental regulatory functions currently spread across Government. A key function of the EPA will be processing matters of national significance under the Resource Management Act 1991. The new EPA is also proposed by the Government to be the entity responsible for consenting activities in the EEZ under the proposed Exclusive Economic Zone and Extended Continental Shelf (Environmental Effects) Bill. Environment Minister, Dr Nick Smith, said at the Environmental Defence Society conference on 2 June 2011 that:
If you would like to know more about the Environmental Protection Authority please contact Katia Fraser. New Zealand Law Society | CLE Ltd Seminar | top Marine and Coastal Area Act - demystifying the hype Who and when Robert Makgill and Prof. Richard Boast (Faculty of Law, Victoria University) will be presenting a series of New Zealand Law Society | CLE Ltd seminars on the Marine and Coastal Area Act 2011 (MCAA) from 30 August to 1 September 2011. The seminar will cover
For more a copy of the NZLS | CLE Ltd brochure on this seminar click on the following link: NZLS | CLE Ltd: Seminar Brochure - The Marine and Coastal Area Act 2011 Resource Management Law Association Conference 2012 | top The RMLA will host its 2012 Conference in Queenstown Robert Makgill, Chair of the Queenstown/Central Otago Resource Management Law Association (RMLA), is pleased to announce that the RMLA will host its 20th anniversary conference in Queenstown in 2012. A draft theme of "Risk & Resilience: has been proposed for this conference. The RMLA plans to engage its Australian counterparts (NELA and QELA) to add an Australasian perspective to this theme. It is presently intended that the conference will be held at the Queenstown Millennium Hotel between Thursday 27 September and Sunday 30 September 2012. To read earlier news from NSEL please visit our archives |
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