The legislative framework
The path to mining
To mine minerals in New Zealand, you need to go through a prescriptive, 3 stage process: Prospecting, Exploration and Mining. NZPAM (formerly Crown Minerals) control and manage the first 2 steps (prospecting and exploration), through a process of selling permits to interested parties. Often no resource consents are required for these first two stages of the process, due to the nature of the work involved.
Once permit holders have a firm idea of their proposals and plans, with all the supporting evidence to back up environmental and other claims, they apply for resource consent to mine. In theory, seabed mining consents will be processed by regional council, under the terms of the Resource Management Act.
The Resource Management Act 1991 is the Principle legislation for environmental management in Aotearoa New Zealand. Part 2 of the Act form the hub with section 5, 6, 7, 8. All applications must have an assessment of effects. The RMA is “effects based” legislation and every person has a duty to avoid, remedy or mitigate those effects. Publically notified applications can be submitted to.
Regional Councils have jurisdiction out to the 12 nautical miles and the EPA will have responsibilities from 12 nautical miles into the Exclusive Economic Zone and extended continental shelf, once the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Bill has been passed into law; with the detailed set of regulations that will establish the legislation’s rules and standards. This is currently evolving and a decision is imminent.
The resource management act (RMA)
The Resource Management Act (RMA) was enacted in 1991. The RMA promotes sustainable management of natural and physical resources such as land, air and water as a cornerstone.
Part 2 sets out the principles of the Act. Section 5 defines sustainable management as managing the use, development, and protection of natural and physical resources in a way, or at a rate, which enables people and communities to provide for their social, economic, and cultural wellbeing and for their health and safety.
Section 6 sets out several matters of national importance which decision makers must “recognise and provide for” which include:
- preservation of natural character in coastal areas, rivers and lakes
- protection of outstanding natural features and landscapes
- protection of areas of significant indigenous habitat values
- protecting and improving public access to the coast, lakes and rivers
- provide for and recognise traditional Maori relationships with natural resources.
Section 7 lists certain other matters that decision makers “shall have particular regard to”. While the list is broad; it includes amenity values, kaitiakitanga, stewardship, heritage and intrinsic values, as well as efficient use and consideration of any finite characteristics of resources.
Section 8 directs that consenting authorities “shall take into account” the principles of the Te Tiriti o Waitangi (Treaty of Waitangi).
Part 2 is the hub of the RMA and the principles form the basis for any consideration. Each section allows for applicable principles to be applied to the various consent applications. Section 5 has primacy over s6, 7, and 8, although decisions are weighed on all principles in Part 2 as a matter of judgement.
There are 62 territorial authorities (city and district councils), 12 Regional councils and six unitary authorities who carry out the role of both regional council and a territorial authority. Territorial authorities key function under the RMA relates to land use management. Regional councils function in water, air quality, soil, and beds of lakes and rivers along with geothermal resources and controlling pollution. Regional Councils regulate activities out from Mean High Water Springs to the limit of the Territorial Sea (12 nautical miles or 22.2 km)
The RMA also sets in place the duties and functions of Councils to provide for District and Regional plans, Regional policy statements and Coastal plans. A key part of the RMA is that it allows for local decision making to take place and therefore Councils act as consenting authorities for resource consent applications. The type of resource consents are:
- Land Use Consent
- Subdivision Consent
- Coastal Permit
- Water Permit
- Discharge Permit
The environmental protection authority (EPA)
The Resource Management (Simplifying and Streamlining) Amendment Act (RMAA2009) provided for the establishment of the Environment Protection Authority (EPA). The Environmental Protection Authority Act 2011 established the EPA. The functions of the EPA are set out in Part 2 Section 13. Section 42C of the RMA provides that the functions of the EPA are to:
- receive matters lodged under section 145
- present recommendations to the Minister in respect of a matter, application or notice of requirement that has been lodged
- render decisions under section 139 on applications for certificates of compliance for proposals or activities that are related to proposals of national significance
- provide secretarial and support services to boards of inquiry
- exercise any powers or perform any functions or duties delegated by the Minister for the Environment to the EPA.
The Statutory EPA process allows for Nationally Significant applications to be called in or requested to be “called in”. Those applications may be referred to the Environment Court or Board of Inquiry.
The EPA has jurisdiction over several Acts including the RMA and will be the consenting authority for activities taking place within New Zealand’s EEZ; such as mineral exploration.
The Exclusive Economic Zone and Continental Shelf (Environmental Effects) Bill was introduced August 2011. The Bill will potentially be passed into law by September 2012. The proposed legislation will set up the general framework for the EEZ regulatory system. The legislation will not come into effect until a complete set of regulations is developed, probably in 2012 or early 2013. A detailed set of regulations will establish the legislation’s management system of rules and standards. Legislation will allow the classification of activities or effects as permitted, discretionary or prohibited.
The Marine Consent process is a similar to the RMA were an assessment of effects will form the basis of any application. Submissions will be made on publically notified consents. The submission process will also be similar to the RMA process above. Currently there have not been any applications for seabed mining out past the 12 nautical miles into the EEZ.