The only specialised marine publication in Oceania that focuses on the maritime industry, from super yachts to small craft to large commercial ships, including coastal shipping, tugs, tow boats, barges, ferries, tourist, sport-fishing craft
Issue link: https://viewer.e-digitaleditions.com/i/63646
OCEAN LAW Is the EPA a higher AUTHORITY? BY JUSTINE INNS T he application by New Zealand King Salmon for changes to the Marlborough Sounds Resource Management Plan, and resource consents to allow salmon farming at nine new sites in the sounds was publically notifi ed on March 31. Anyone who reads newspapers in the top of the South could be forgiven for thinking the application has already been subjected to trial by media, but it is, in fact, still early in the statutory process. With allegations being made that NZKS has bypassed the standard process for approval by the relevant local authority, in this case the Marlborough District Council, we thought it timely to have a closer look at the Environmental Protection Authority and its processes. As we described in our previous column, the EPA is almost certain to receive responsibilities for management of some activities in the exclusive economic zone within the next few months, when the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Bill becomes law. But the authority already has some signifi cant responsibilities under the Resource Management Act 1991 and other legislation, of which the call-in power under which the NZKS application will be heard, is perhaps the most signifi cant. The RMA has always included a call-in power, allowing the Minister for the Environment to become involved in decision- making in respect of proposals of national signifi cance. The RMA does not defi ne what is nationally signifi cant, but lists a number of factors that the minister may consider, including whether the proposal: • has aroused widespread public concern or interest • involves signifi cant use of natural and physical resources • affects a structure, feature, place, or area of national signifi cance • is relevant to New Zealand's international obligations to the global environment • is likely to contribute to signifi cant or irreversible changes to the environment • involves technology, processes, or methods that are new to New Zealand • is signifi cant in terms of the Treaty of Waitangi • will assist the Crown in fulfi lling public health, welfare, security, or safety functions • affects more than one region or district, and • relates to a network utility (such as a power or telecommunications line) that extends across more than one district or region. Once the minister has determined that an application is of national signifi cance, he can appoint a Board of Inquiry to determine it. The initial role of the EPA when it was created in 2009 was to administer the process by which such called- in applications are determined. Given that was essentially its only function at the time, it seemed a somewhat oddly named agency. By virtue of the Environmental Protection Authority Act 2011, the EPA became the government agency primarily responsible for regulatory functions concerning environmental management. These include responsibility for management of the New Zealand Emissions Trading Scheme and New Zealand Emission Unit Register, regulation of hazardous substances, new organisms, ozone-depleting chemicals, hazardous waste exports and imports, and assessment of environmental effects of activities in Antarctica. But back to called-in applications. Once the EPA is satisfi ed that the application includes all the necessary information, it calls for public submissions. It is at this point that a feature of the process that will be new to most participants kicks in: the EPA provides a "friend of the submitter". This is a resource management planner who is independent, but funded by the applicant, and who is available during the four-week submission period to give advice to those making submissions. There are two features of the call-in process that make it particularly appealing to applicants: • The Board of Inquiry appointed to determine an application must, unless an extension of time is granted by the minister, do so within nine months of the public notifi cation of that application, and • The decision of the board can be appealed, but only to the High Court, not the Environment Court, and only on points of law, with any subsequent appeal to the Court of Appeal or Supreme Court requiring the leave of the Supreme Court. Any past applicant for new water space who has had to endure local authority and court processes dragging over several years will fi nd the idea of a tightly time-limited process and restricted avenues for appeal immediately appealing ... assuming the application is granted, of course. Restricted appeal rights can be a double-edged sword where an application is declined. Even then, it could be said that there is value for applicants in the relative certainty that comes with a constrained process. On the other hand, NZKS has been very open about the cost of the process, with its last public estimate for the whole process being in the vicinity of $6 million. 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 ■ MAY/JUNE 2012