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OCEAN LAW Aquaculture OVER THE HORIZON? BY JUSTINE INNS O ver the last few years a handful of marine farms have been approved that are sited much further from shore than has traditionally been the case, though these seem to still be in the developmental phase, rather than a full commercial operation. Some have suggested that the aquaculture legislation reforms passed last year might take the pressure off further development of such offshore sites by facilitating the opening up of new sites closer to shore. Imagine if the legal hurdles were lowered still further: • no Resource Management Act to navigate • approvals given by central rather than local government • little or no NIMBY (not in my backyard) reaction to overcome. Does that sound like a marine farmers' heaven? Well, it might not be that far from reach. There's just one minor obstacle. Your marine farm would have to be established outside New Zealand's 12-mile territorial limit. Okay, maybe that's a fairly major obstacle for any number of engineering, environmental and cost reasons, but this is a column about the law - not boring technical details like that! The Exclusive Economic Zone and Continental Shelf (Environmental Effects) Bill 2011(the EEZ Bill) was introduced into parliament shortly before the election. It is now being considered by the Local Government and Environment Select Committee, which is due to report back by the end of February. The bill is described as setting up an environmental management regime for New Zealand's EEZ and continental shelf, but it actually only fi lls gaps in the existing regime. Laws such as the Fisheries Act 1996 and the Maritime Transport Act 1994 will continue to operate largely as at present. While the bill focuses largely on seabed mining and drilling, it also covers a number of other activities, including marine farming. The proposed regime has much in common with the RMA in that it establishes a framework for having activities designated as permitted, discretionary or prohibited, with discretionary activities requiring a "marine consent". The EEZ regime would differ from the RMA in some key respects, however. Perhaps the most important of these lies in the purpose of the two pieces of legislation. The over- arching purpose of the RMA is to "promote the sustainable management of natural and physical resources", ie, managing the use of resources so as to provide for social, economic and cultural wellbeing, while sustaining their potential to meet the needs of future generations; safeguarding the "life-supporting capacity of air, water, soil and ecosystems", and avoiding, remedying or mitigating adverse effects on the environment. Similarly, the purpose of the Fisheries Act is to "provide for the utilisation of fi sheries resources while ensuring sustainability", ie, using fi sheries resources to provide for social, economic and cultural wellbeing, while maintaining their potential to meet the needs of future generations; and avoiding, remedying or mitigating adverse effects on the aquatic environment. Both these statements are regarded as providing and establishing an environmental bottom line for any use of resources. The EEZ Bill takes a somewhat different approach and has been criticised for moving away from such a bottom line. The purpose of the bill is expressed as being "to achieve a balance between the protection of the environment and economic development ..." While the bill also uses the familiar formula of requiring adverse effects on the environment to be avoided, remedied or mitigated, the concept of achieving a balance between environmental protection and economic development is a novel one for New Zealand law. The implication is that there may be cases in which the economic benefi ts of a proposed activity might be adjudged to outweigh the adverse environmental effects or risks presented by the activity. If this over-riding purpose survives the select committee process and becomes law, expect litigation over its meaning and impact. The other key difference between the proposed EEZ regime and the RMA is that, in the case of the EEZ, the Minister for the Environment and the Environmental Protection Authority will share functions similar to those of regional councils within the territorial sea. The minister will establish regulations which may, among other things, establish standards, classify areas of the EEZ for particular management and designate activities as permitted, discretionary or prohibited. These regulations could be seen as being equivalent to the regional coastal plans developed by councils under the RMA. A marine consent will need to be obtained in order to undertake an activity designated as discretionary. The EPA will be the decision-maker for all marine consents and applicants will need to prepare an impact assessment as the basis of their consent application. Justine Inns is a partner at Oceanlaw. She spent more than a decade as an advisor to various iwi (tribes), including several years with Ngai Tahu. 14 New St, Nelson. PO Box 921, Nelson 7040. T +64 3 548 4136. F +64 3 548 4195. Freephone 0800 Oceanlaw. Email justine.inns@oceanlaw.co.nz www.oceanlaw.co.nz 10 ■ NZ AQUACULTURE ■ MARCH/APRIL 2012