The devil and the deep blue sea

What the Ministerial amendments proposed to the EEZ Bill tell us about RMA reform plans - or, how a few lines on a page could change New Zealand's natural world

In the world blissfully inhabited by Phil Heatley, as described to an appreciative Straterra audience (including me) last week, some people always say “no”: “no” to that mine or this road, irrigation here, the subdivision over there.

This is why so many of the other people don’t want to live here any more! It’s not the short-sightedness of successive governments. It’s this relentless negativity. In Aus they say YES! ... to mining.

Kiwi nature lovers, in Heatley’s world, have the ears of more people than we ever knew; influence on their life decisions beyond our wildest dreams.

And yet, I persist. Because, although Heatley’s colleague Environment Minister Amy Adams has made a real backdown on previous EEZ Bill drafting proposals - accepting that the “balance” in the Bill wasn’t right, and there needed to be provision in the purpose clause for sustainable management - although it’s a much-needed environmental law, to which we would like to say “yes”, I persist in saying no, quite loudly, for two excellent reasons.

  1. A Bill like this is needed to manage our ocean environment, but it has to do the job that it was designed for. That job is environmental protection, consistent with overriding obligations in international law: the United Nations Convention on the Law of the Sea. The Bill is still too weak to meet that standard.
  2. Amy Adams’ announcement about proposed changes to the Bill is less positive than it first appears, because of what it signals for wider resource management reform.

The purpose clause, in the Bill as introduced, had said that the Act “seeks to achieve a balance between the protection of the environment and economic development”.

It also had a list of factors for decision-makers to “take into account”, some pro-environment, some pro-development. So, for example, the importance of protecting the biological diversity and integrity of marine species, ecosystems, and processes was a factor. So were economic benefit to New Zealand, the efficient use and development of natural resources, and industry best practice.

It still has these same factors, to which no change is proposed.

The new purpose clause will copy section 5 of the Resource Management Act. “The purpose of this Act is to promote the sustainable management of the natural resources of the exclusive economic zone,” it says, with “sustainable management” then defined.

There are slight differences, but for present purposes, they aren’t differences that matter. So: The Minister has accepted that the balance in the Bill as introduced wasn’t right. Her decision to change the purpose clause marks an important return to resource management principles, and she’s made the right decision.

But in the Resource Management Act, the purpose clause is also supported by a list of matters of environmental importance about protection and preservation, which decision makers must “recognise and provide for”. A recommendation to do the same in the EEZ Bill has not been picked up, and is needed for the purpose clause changes to be effective.

Without that, we - Forest & Bird, and a number of others - don’t believe that the Bill is UNCLOS compliant. Or at the very least - knowing, as we do, that among reasonable lawyers views will reasonably differ, all the time - Mrs Adams said she wanted certainty, and to minimise litigation risk. She said she wanted to align with the RMA. And in that, she has failed.

Her government’s deliberate decision not to put in the supporting language about “recognise and provide for the protection of” - rather than “take into account the importance of protecting” - must be regarded by a court as significant.

So it goes.

Much more alarming is the bigger picture presented by the new form of the EEZ Bill. Because, coincidentally or otherwise, it seems to have been brought into line with government advisory group recommendations on Resource Management Act reform last month, to retain the Act’s section 5 purpose but rewrite its principles in sections 6 and 7 - stripping out some pro-environmental things, and adding some pro-development things, in pursuit of the ever-elusive “balance”.

These have not yet been agreed to by the government; nor should they be.

The government heard a number of submissions about the importance of EEZ and RMA alignment, because the RMA applies out to 12 nautical miles offshore. I think alignment, more or less, is what we’re heading for.

In coming months we’ll see a proposal to recast the RMA in new terms, similar to those in the EEZ - although, the Minister says she’s still considering the advisory group’s recommendations.

That would knock out one of our most fundamental environmental cornerstones, laid together by Hon Simon Upton and his predecessor Sir Geoffrey Palmer. It would take the most progressive thing that the RMA did, and rewrite it in a way that harks back to failed law from the 1970s.

I’ve written about it before, sort of, here. I’m going to be saying “no” to that one as well. I think that it touches the heart of the same 50,000 (and counting) Kiwis who love NZ, want to live in a green land, and marched down Queen St to prove it.


Claire Browning is a Forest & Bird Conservation Advocate.