Decision-making criteria

When the EPA is considering an application for marine consent and submissions it must “take into account”: ¹³⁵

• any effects on the environment or existing interests of allowing the activity, including cumulative effects and effects that may occur in New Zealand or beyond our jurisdiction;
• the effects on the environment or existing interests of other activities undertaken in the area covered by the application or in its vicinity, including the effects of activities that are not regulated under the EEZ Act and effects that may occur in New Zealand or beyond its jurisdiction;
• the effects on human health that may arise from effects on the environment;
• the importance of protecting the biological diversity and integrity of marine species, ecosystems, and processes;
• the importance of protecting rare and vulnerable ecosystems and the habitats of threatened species;
• the economic benefit to New Zealand of allowing the application;
• the efficient use and development of natural resources;
• the nature and effect of other marine management regimes;
• best practice in relation to an industry or activity;
• the extent to which imposing conditions under section 63 might avoid, remedy, or mitigate the adverse effects of the activity;
• relevant regulations;
• any other applicable law; and
• any other matter the EPA considers relevant and reasonably necessary to determine the application.

The requirement to “take into account” matters is a deliberate legislative contrast with the language “recognise and provide for” which is used in section 6 of the RMA. “Recognise and provide for” means that actual provision must be made for the listed matters. In contrast, the obligation to “take into account” requires the decision-maker to consider that matter, to weigh it up with other relevant factors and to give it the weight that is appropriate in the circumstances. ¹³⁶

There is no explicit internal hierarchy between the listed matters which decision-makers must take into account. The importance of each matter will vary depending of the factual context of each application, the nature of the environment and the extent and nature of existing interests. However, the words “the importance of protecting” indicate an emphasis is to be placed on the protection of the intrinsic value of important biological resources. ¹³⁷

Where a replacement consent is being sought, the EPA must also have regard to the value of the investment in the activity of the existing consent holder. ¹³⁸  The requirement to “have regard to” has a similar meaning to “take into account”. ¹³⁹

In considering an application the EPA must not have regard to trade competition, the effects on climate change of discharging greenhouse gases into the air, or effects on the existing interests of persons who have given written approval to the activity. ¹⁴⁰

Any effects on the environment or existing interests, including cumulative effects

The definition of "effect" includes cumulative effects. Therefore the specific reference to "cumulative effects" in this subsection emphasises the importance of considering cumulative impacts on the marine environment. There are two reasons why this emphasis is required. First, there are practical difficulties in identifying and managing cumulative effects such that it would be tempting to put such assessments in the ‘too hard box’. Second, there are no planning documents under the EEZ Act and therefore less opportunity for strategic decision making (although regulations can be developed).

The importance of protecting rare and vulnerable ecosystems and the habitats of threatened species

The term “rare and vulnerable ecosystems” is not defined in the EEZ Act. This relates to ecosystems, as opposed to individual species. “Rare” indicates that the ecosystem is not widespread. “Vulnerable” indicates that an ecosystem may be sensitive to disturbance. The EEZ Act defines ‘threatened species’ ¹⁴¹ to mean: ¹⁴²

- any species that is declared to be a threatened or at-risk species by the Minister of Conservation under section 19 of the EEZ Act; or

- any species within the meaning given to the terms extinct in the wild, critically endangered, endangered, and vulnerable by the International Union for Conservation of Nature and Natural Resources.

The EEZ Act also provides the Minister of Conservation with a power to declare a marine species to be a threatened or an at-risk species. ¹⁴³ On 11 July 2013, the Minister of Conservation declared the marine species listed in the New Zealand Threat Classification System, including dolphin, seabird, fish and invertebrate species, to be ‘threatened’ for the purpose of the EEZ Act. ¹⁴⁴

The nature and effect of other marine management regimes

Marine management regimes include the functions, duties, powers, regulations, rules and policies developed under any Act applying to the territorial sea, EEZ and/or CS. They include the Biosecurity Act 1993, Continental Shelf Act 1964, Crown Minerals Act 1991, Defence Act 1990, Fiordland (Te Moana o Atawhenua) Marine Management Act 2005, Fisheries Act 1996, Hauraki Gulf Marine Park Act 2000, Marine and Coastal Area (Takutai Moana) Act 2011, Marine Mammals Protection Act 1978, Marine Reserves Act 1971, Maritime Transport Act 1994, Resource Management Act 1991, Submarine Cables and Pipelines Protection Act 1996, and Wildlife Act 1953. ¹⁴⁵

The RMA regime, particularly the New Zealand Coastal Policy Statement 2010 and regional coastal plans, will often be of particular relevance.

The first Trans-Tasman Resources Decision-Making Committee said that there is no requirement for marine consent applications to give effect to the RMA and its subordinate documents. However it observed that the proposed activity would cause effects in the coastal marine area and the New Zealand Coastal Policy Statement, Regional Policy Statement, and Regional Coastal Plan give guidance as to the important values within the coastal marine area and how sustainable management (in the RMA sense) is to be achieved. ¹⁴⁶ The Decision-Making Committee determined that the proposed activity would not satisfy the relevant policies of the New Zealand Coastal Policy Statement, Regional Policy Statement, and Regional Coastal Plan. The Committee stated:

While that finding does not preclude us granting marine consents under the EEZ Act … they provide important guidance as to whether the potential effects of the proposal, as mitigated, are acceptable in the marine environment. ¹⁴⁷

The EEZ Act provides for a joint application process for cross-boundary activities (an activity that is carried out partly in the EEZ or CS and partly in New Zealand).

Environmental compensation

Current best practice environmental management utilises a ‘no net loss’ approach and uses environmental compensation to address effects which cannot be avoided, remedied or otherwise mitigated. ¹⁴⁸ Environmental compensation is commonly adopted for large projects consented under the RMA, despite there being no explicit provision for offsetting in that Act. ¹⁴⁹

Therefore, while the EEZ Act also does not expressly refer to compensation, RMA experience suggests that environmental compensation may be an available approach for addressing effects of activities in the EEZ and CS. However, the practicality of environmental offsetting in the marine environment is uncertain at this stage.

Last updated at 4:22PM on December 28, 2017