International obligations

New Zealand does not have full sovereignty beyond 12 nautical miles but relies on rights gained under the United Nations Convention on the Law of the Sea 1982 (“UNCLOS”) to regulate activities in the area covered by the EEZ Act. International obligations are therefore particularly relevant to management of New Zealand’s EEZ and CS.

Section 11 of the EEZ Act provides that the Act continues or enables the implementation of New Zealand’s international obligations in the marine environment, including those under the United Nations Convention on the Law of the Sea 1982, the Convention on Biological Diversity 1992, the International Convention for the Prevention of Pollution from Ships 1973 (MARPOL), and the Convention on the Prevention of Marine Pollution by Dumping Wastes and Other Matter 1972 (the London Convention). ⁴²

When the EEZ Bill was first introduced to Parliament, it contained a clause which required the Act to be interpreted and applied in accordance with international obligations. ⁴³ The clause was deliberately amended due to concerns that international obligations would be utilised to interpret the Act in a manner that was not considered by Parliament. In addition, it was argued that inclusion of such a clause would create a substantial risk of appeals against decisions under the EEZ Act, on the grounds of inconsistency with international obligations. ⁴⁴

When Permitted Activity Regulations were released in 2013, ⁴⁵ Greenpeace New Zealand and Forest and Bird lodged a complaint with the Regulations Review Committee that the regulations were not in accordance with the general objects and intentions of the EEZ Act, specifically the section 11 to continue and enable the implementation of obligations under international conventions. The Regulations Review Committee rejected this argument and determined that section 11 does not require that regulations made under the EEZ Act must not breach international obligations. Rather, they said that section 11 acknowledges that international obligations do not become part of New Zealand law until they are adopted into domestic law and international obligations not adopted into domestic law are used to interpret domestic law only in cases of ambiguity or uncertainty. ⁴⁶

This interpretation may need to be revised following the High Court decision in Thomson v Minister of Climate Change [2017] NZHC 733 which held that a statutory discretionary power must be interpreted consistently with New Zealand's international obligations where that interpretation is available. ⁴⁴⁷⁷

The first Trans-Tasman Resources Decision-Making Committee reached a similar conclusion in the context of a marine consent application:

… in our view, the relevant decision-making criteria and information principles to which we must direct ourselves reflect the nature of New Zealand’s international obligations… Indeed, that is what section 11 indicates. We do not agree that New Zealand’s international obligations require additional consideration to be applied in addition to the decision-making criteria and information principles contained in the EEZ Act. ⁴⁷

Contrary to this, the dissenting decision in the second Trans-Tasman decision found that it is important to read the provisions of the EEZ Act with regard to international human rights obligations and that it is important to recognise and provide for New Zealand's international obligations in relation to the protection of ecological and cultural values. ⁴⁴⁷⁹

United Nations Convention on the Law of the Sea 1982 (UNCLOS)

UNCLOS determines a country's rights and duties over the water column and seabed These delineations of different marine jurisdictions do not necessarily bear a relationship to the boundaries of ocean ecosystems. This is because their genesis stems from an agreement in 1982 to follow a zone-based approach to maritime jurisdiction. 

New Zealand ratified UNCLOS in 1996. Under this convention, New Zealand’s sovereignty extends out to the edge of the territorial sea, which is 12 nautical miles from New Zealand’s coast, including the coast of all islands.

While the EEZ, which extends seawards from the outer edge of the territorial sea to 200 nautical miles, is not strictly speaking part of New Zealand’s sovereign territory, UNCLOS provides New Zealand with a range of sovereign rights over the EEZ for the purpose of exploring and exploiting, conserving and managing natural resources (including marine life, oil, gas and minerals) and economic exploitation and exploration of the zone (such as for energy production from water, currents and winds). Other countries retain the freedom of navigation and over-flight within New Zealand’s EEZ and can lay submarine cables and pipelines within it. UNCLOS also provides rights over the continental shelf, being the seabed and subsoil beyond its territorial sea to the outer edge of the continental margin or a distance of 200 nautical miles from the baselines where the outer edge of the continental margin does not extend out to that distance. New Zealand as a coastal State, has sovereign rights for the purpose of exploring the continental shelf and exploiting its natural resources. These encompass the exploitation of minerals, gas, and other non-living resources within the seabed and subsoil as well as sedentary species on the seabed, but exclude harvesting mobile fish. 

New Zealand has more limited rights with respect to the extended continental shelf (“ECS”) (i.e. those parts of the continental shelf that extend beyond the EEZ).The boundaries of New Zealand’s ECS were confirmed in 2008 by the United Nations Commission for the Limits of the Continental Shelf.

In exercising its jurisdiction within these various marine areas, New Zealand has a general obligation under UNCLOS to ‘protect and preserve the marine environment’. This includes taking all measures necessary to ‘prevent, reduce and control pollution of the marine environment …’ and ‘to protect and preserve rare or fragile ecosystems as well as the habitat of depleted, threatened or endangered species and other forms of marine life’. New Zealand has other obligations, such as to carry out an environmental impact assessment when activities under its jurisdiction or control may cause substantial pollution of, or significant and harmful changes to, the marine environment. New Zealand also has the obligation to prevent, reduce and control pollution arising from or in connection with seabed activities subject to its jurisdiction. 

Lastly, New Zealand also has an obligation under UNCLOS to promote the ‘optimum utilisation’ of living resources within the EEZ such as through harvesting. However, this obligation is subject to the requirement to ‘ensure through proper conservation and management measures that the maintenance of the living resources in the exclusive economic zone is not endangered by over-exploitation’.

Convention on Biological Diversity 1992 (CBD)

New Zealand ratified the CBD in 1993. Amongst other things, the CBD requires New Zealand to establish a system of protected areas; to regulate where necessary for the protection of threatened species and populations; to require environmental impact assessment of proposed projects that are likely to have significant adverse effects on biological diversity; and to monitor components of biodiversity. The government is also required to promote the protection of ecosystems and natural habitats and the maintenance of viable populations of species in natural surroundings.

International Convention for the Prevention of Pollution from Ships 1973 (MARPOL)

MARPOL was adopted in 1973 and modified in 1978. It seeks to prevent pollution from ships, such as accidental oil spills from tankers, and also pollution caused by the discharge of chemicals, harmful substances, sewage and garbage. The convention includes standards which apply to the design and construction of ships, their equipment and operating procedures. It also contains a complete ban on disposal into the sea of all forms of plastic. 

Convention on the Prevention of Marine Pollution by Dumping Wastes and Other Matter 1972 (the London Convention)

The London Convention was adopted in 1972, with a Protocol adopted in 1996. It prohibits the dumping of waste at sea except for a restricted group of materials. For materials that are exempted from the prohibition, dumping is only permitted if there are no practical opportunities for reuse or recycling and the effects of dumping on the marine environment will be minor. The London protocol adopts a "reverse list" approach: rather than prohibiting the dumping of listed materials, Parties must prohibit the dumping of any waste or other matter that is not listed in Annex 1 of the Protocol. 

Section 11 is not an exclusive list. In addition there is the Convention for the Protection of Natural Resources and Environment of the South Pacific Region 1986, or Noumea Convention, which requires environmental impact assessments and also specifically for public participation to prevent any substantial pollution of, or significant and harmful changes within, the Convention Area. 

Treaty of Waitangi principle

Unlike the RMA, ⁵⁰  the EEZ Act does not contain a general Treaty of Waitangi principles provision. Instead, section 12 identifies aspects of the EEZ Act which “recognise and respect the Crown's responsibility to give effect to the principles of the Treaty of Waitangi”, including provision for a Māori advisory committee, ⁵¹  iwi feedback on regulations, ⁵²  consideration of existing interests, ⁵³  and notification of iwi about consent applications. ⁵⁴   

It is clear from section 12 of the EEZ Act that the Crown’s responsibility to give effect to the principles of the Treaty of Waitangi has both procedural (i.e. the way decisions are made) and substantive (i.e. the interests of Māori in the outcome of the decisions made) dimensions. ⁵⁵

The first Trans-Tasman Resources Decision-Making Committee noted that the EEZ Act does not expressly require marine consent applicants to consult with iwi however “in understanding and addressing existing interests, some level of consultation appears to be not just good practice but an important element in compiling a robust proposal. Further, a failure to consult adequately with tangata whenua/tangata moana may be seen as culturally offensive and disrespectful. ⁵⁶ . The second Trans-Tasman Decision-Making Committee said that there is no statutory obligation for obligations to consult with interested parties or with anyone else. However, consultation is good practice. Consultation must be a genuine effort to exchange information and points of view. ⁴⁴⁷⁸

Last updated at 1:46PM on December 22, 2017