Regulations

The EEZ Act allows regulations to be developed to:

• classify activities as permitted, discretionary (notified or non-notified), or prohibited. ⁶⁹
• identify and provide for areas which are important or vulnerable or require particular management due to completing uses or cumulative adverse environmental effects (allowing for marine spatial planning to be given legal effect under the EEZ Act). ⁷¹
• prescribe technical standards, methods, or requirements. ⁷²

Regulations are developed by the Minister for the Environment, with the assistance of the Ministry for the Environment. The EEZ Act puts in place the following process for the development of regulations:

• The public, iwi authorities, regional councils, and persons whose existing interests are likely to be affected must be notified of the proposed subject matter of the regulations and  must be given adequate time and opportunity to comment. ⁷³
• The Minister must have regard to any comments made and take into account the following criteria: ⁷⁴
  • any effects on the environment or existing interests of allowing an activity with or without a marine consent, including cumulative effects and effects that may occur in New Zealand or in the waters above or beyond the continental shelf beyond the outer limits of the exclusive economic zone; and
  • the effects on the environment or existing interests of other activities undertaken in the exclusive economic zone or in or on the continental shelf, including the effects of activities that are not regulated under this Act and effects that may occur in New Zealand or in the waters above or beyond the continental shelf beyond the outer limits of the exclusive economic zone; and
  • the effects on human health that may arise from effects on the environment; and
  • the importance of protecting the biological diversity and integrity of marine species, ecosystems, and processes; and
  • the importance of protecting rare and vulnerable ecosystems and the habitats of threatened species; and
  • New Zealand's international obligations; and
  • the economic benefit to New Zealand of an activity; and
  • the efficient use and development of natural resources; and
  • the nature and effect of other marine management regimes; and
  • best practice in relation to an industry or activity; and
  • in relation to whether an activity is classified as permitted, discretionary, non-notified, or publicly notifiable, the desirability of allowing the public to be heard in relation to the activity or type of activity; and
  • any other relevant matter.
  • The Minister must: ⁷⁵
    • make full use of the information and other resources available to him or her; and
    • base decisions on the best available information; and
    • take into account any uncertainty or inadequacy in the information available.
    • If the information available is uncertain or inadequate, favour caution and environmental protection.
    • If favouring caution and environmental protection means that an activity is likely to be prohibited, consider whether providing for an adaptive management approach would allow the activity to be classified as discretionary.

Regulations recommended by the Minister for the Environment will be promulgated by the Governor-General and take effect by Order in Council. An Order in Council is a decision of the Executive Council, comprised of all Ministers of the Crown.

To date, regulations have only been promulgated to address dumping (Exclusive Economic Zone and Continental Shelf (Environmental Effects—Discharge and Dumping) Regulations 2015), set fees and charges (Exclusive Economic Zone and Continental Shelf (Fees and Charges) Regulations 2013) and classify activities as permitted, discretionary, or non-notified (Exclusive Economic Zone and Continental Shelf (Environmental Effects— Non–notified Activities) Regulations 2014). However, the broad nature of potential regulations means that regulations could be used to provide for integrated and strategic management of the marine environment, similar to regional coastal plans prepared under the RMA. However, there are limits to such a possibility, as the EEZ Act cannot be used to control two of the most common activities in the EEZ: fishing and maritime transport.

To be legally valid regulations must be “intra vires”, meaning they must be within the scope of the regulation-making power set out in the Act. Regulations which are “ultra vires” (outside the scope of that regulation-making power) may be judicially reviewed and held to be invalid. Parliament also exercises a degree of control over regulations via the Regulations Review Committee which examines regulations and any complaints about regulations. If the Regulations Review Committee determines that regulations are not within legal and constitutional limits it may give notice of a motion to disallow regulations. If Parliament does not dispose of the motion, the regulations will be “disallowed”. ⁷⁷  Parliament may also “disallow” any regulation of its own resolution. ⁷⁸  Disallowance has the effect of revoking the regulations. Greenpeace and Forest and Bird lodged such a complaint over the Permitted Activty Regulations but the complaint was rejected ⁴⁴⁸¹ . 

Last updated at 3:50PM on December 28, 2017