the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012

Transcription

1 Before a Decision-making Committee of the Environmental Protection Authority Under In the matter of the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012 an application for marine consent to undertake rock phosphate mining on the Chatham Rise by Chatham Rock Phosphate Limited Memorandum of Counsel to assist the Decision-making Committee 12 November 2014 mjs240.docx

2 May it please the Committee 1. This memorandum has been prepared at the request of the Decision-making Committee ( DMC ), to address 3 issues: (a) (b) (c) What is the relevance (to the decision) of New Zealand s obligations under international instruments? Can cultural values be taken into account as an interest in lawfully established existing activities? What are the health and safety implications if the mining vessel is foreign flagged? 2. In accordance with the DMC s instructions, the memorandum has been produced in advance of closing submissions, to enable the applicant and others to respond in closing. Applicability of International Instruments The arguments 3. A number of submitters have contended that the DMC should have regard to New Zealand s obligations arising under various international conventions in the marine environment CRP contends that the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012 ( the Act ) has internalised those obligations, such that the DMC need only comply with the Act s requirements, and have no further regard to New Zealand s international commitments. Relevant principles 5. Relevant to this issue, s 11 of the Act states: This Act continues or enables the implementation of New Zealand s obligations under various international conventions relating to the marine environment, including (a) the United Nations Convention on the Law of the Sea 1982: 1 For example, in the Opening Submissions for KASM, Greenpeace and DSCC, 26 September 2014 at [29] [46]. 2

3 (b) the Convention on Biological Diversity Also, common law principles provide guidance on the applicability of international obligations within a domestic context. The traditional position that a state s international obligations have no part in its domestic law unless incorporated by statute is now recognised as too rigid. 2 The courts are willing to have regard to international instruments in the development of the common law, and there is said to be a presumption of statutory interpretation that so far as its wording allows legislation should be read in a way which is consistent with New Zealand s international obligations. 3 Analysis 7. We agree with CRP that s 11 of the Act generally evinces a parliamentary intent not to require decision-makers to do anything more than apply the decision-making criteria in order to implement New Zealand s international obligations. We consider s 11 is intended to indicate that in formulating the Act, Parliament has turned its mind to New Zealand s relevant international obligations and fashioned the legislation to enable those obligations to be met. 8. That is supported by the evolution of s 11 as referred to by CRP, 4 and in addition is supported by the content of the Supplementary Order Paper describing the final changes to the section: 5 New clause 11 records that the Act continues or enables the implementation of New Zealand s international obligations so that a decision-maker under the Act does not need to look beyond the Act to be sure that he or she is complying with those obligations. 9. However, for two reasons that is not a complete answer. First, while the Act does not require decision-makers to look beyond the Act towards New Zealand s international obligations, section 11 does not expressly exclude 2 Hosking v Runting [2005] 1 NZLR 1 (CA) at [6]. 3 Takamore v Clarke [2012] 21 NZLR 573 at [241]. 4 Referred to, in part, in CRP s Opening Legal Submissions, 25 September 2014 at [238]. 5 Explanatory Note, House of Representative, Supplementary Order Paper No. 100, Tuesday 14 August

4 decision-makers from having regard to international instruments. 10. Second, one of the provisions that enables New Zealand s obligations to be met is s 59, which does not set strict assessment criteria, but rather lists subject matter to be taken into account. If there is evidence before the decision-maker that relevant and authoritative guidance on one or more of the s 59 subjects can be taken from an international instrument, then having regard to that material seems consistent with the enabling function referred to in s That is particularly so, where the international content might fit within the best practice description in s 59(2)(i), 6 or where the international content can assist the decision maker to evaluate the scale and significance of the relevant subject, such as by providing more prescriptive performance standards than are contained within section However, as another of the assessment matters is applicable law, 7 some consideration must be given to whether Parliament has provided direction through other legislation that takes precedence over the guidance available from an international instrument. 13. To demonstrate the application of these principles, we address two specific matters raised by submitters: the relevance of New Zealand s obligations under the Noumea Convention for the Protection of the Natural Resources and Environment of the South Pacific Region ( the Noumea Convention ), and the relevance of the precautionary principle/approach. The Noumea Convention 14. It has been asserted in submissions and evidence that New Zealand s obligations under the Noumea Convention in relation to assessment of risks associated with release of uranium should be followed by the DMC; and in particular that this involves seeking confirmation 6 Examples might include the ECORYS 2014 interim report on the state of knowledge in deep-sea mining, or the IMMC s Marine Mining Code, referred to in the Statement of Evidence of Tara Ross-Watt, 11 September 2014 at [59] and [65]. 7 Section 59(2)(l). 4

5 that discharged material would not exceed the radioactivity limits set by the International Atomic Energy Agency Clearly the risks associated with release of uranium fall squarely within the assessment required under s 59, due to the potential for such releases to either affect the environment within the meaning of s 59(2)(a), or affect human health within the meaning of s 59(2)(c). 16. If the DMC were satisfied that the Noumea Convention provides authoritative guidance on appropriate radioactivity limits, then it might seem that such guidance could be taken into account. 17. However, that position must be modified to reflect other domestic legislation. 18. The Maritime Transport Act 1994 deals with the dumping and storage of radioactive waste or other radioactive matter. 9 Radioactive waste or other radioactive matter are defined 10 as any waste or other matter containing any radioactive material within the meaning of the Radiation Protection Act The Radiation Protection Act defines radioactive material as any article containing a radioactive substance giving it a specific radioactivity exceeding 100 kilobecquerels per kilogram and a total radioactivity exceeding 3 kilobecquerels. 20. In short, there is clear statutory language with respect to what constitutes a radioactive material under the Radiation Protection Act and therefore what constitutes radioactive waste under the Maritime Transport Act. Those definitions were not amended when other amendments were made to the Maritime Transport Act in 1999 to implement another related convention, the London Protocol Statement of Evidence of Tara Ross-Watt, 11 September 2014 at [35] and [37], and Opening Submissions of Te Runanga o Ngai Tahu, 25 September 2014 at [88]. 9 Sections 258 and 259. Section 258 is to be amended and section 259 is to be repealed when the relevant section of the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Amendment Act 2013 comes into force. 10 Section The London Protocol deals with radioactivity in Annex 1 at paragraph 3, but it is in similar, broad and cautious, terms to that of the Noumea Convention. 5

6 21. In our view it is not possible to read the provisions of the Radiation Protection Act so as to be consistent with the standards referred to in the Noumea Convention. Accordingly the statutory language in the Radiation Protection Act should prevail. Parliament has set clear levels as to what will constitute radioactive material and what will not. There is therefore no need, nor authority, to seek external scientific advice as to what is radioactive and what is not as the Noumea Convention contemplates. 22. If the process in the Noumea Convention was followed and the external advice stated that the material was radioactive despite the fact that it was not considered radioactive under the definition in the Radiation Protection Act then the DMC would still, in our view, have to properly defer to Parliament s statement on what is radioactive and what is not under the Radiation Protection Act. The Precautionary Principle/Approach 23. KASM, Greenpeace and DSCC, and perhaps others, contend that the precationary principle or approach 12 applies in addition to the requirements set out in s 61 of the Act. 24. We disagree. There are a considerable range of views about what the precautionary principle or approach actually requires. While it seems reasonably uncontroversial that the principle was first authoritatively expressed in the 1992 Rio Declaration, it has since been applied internationally 13 and domestically 14 in a variety of forms, some weak, some moderate and some strong. There is no singular authoritative approach. 12 They use the term principle and approach seemingly interchangeably, though some contend they are not the same thing. See, for example, Alexander Gillespie Precautionary New Zealand [2013] RM Theory & Practice For examples see Linda Cameron Environmental Risk Management in New Zealand Is There Scope to Apply A More Generic Framework? (New Zealand Treasury, Policy Perspectives Paper, July 2006) < 14 For examples see Gillespie, above n 12 at Domestic examples include the Resource Management Act and/or subordinate instruments under that Act, such as the New Zealand Coastal Policy Statement. However, domestic legislation does not apply beyond the territorial sea unless expressly stated; so has no direct application here. 6

7 25. In that context, the language used in s 61 can be taken to embody the precautionary principle/approach. 26. That is supported by the advice provided to the Select Committee during the Act s formulation. The Select Committee requested an explanation of the decision to use the phrase favour caution 15 rather than a reference to the precautionary approach and was advised: 16 The policy intent of the Bill is to take a cautious approach to risk management in situations of scientific uncertainty such as when information is uncertain, unreliable or inadequate. Rather than merely noting the term precautionary principle or precautionary approach, the EEZ Bill aims to provide more meaning as to what the concept entails for regulators, the EPA and those applying for, and objecting to, marine consent applications. Similar to s 10 of the Fisheries Act the EEZ bill requires caution where information is uncertain or inadequate. This is just one method of allowing for care and a cautious approach when information about an activity and its effects is uncertain. The EEZ Bill also provides for other ways in which caution can be exercised. Thus, like other New Zealand environmental management regimes governing the ocean, the EEZ Bill is consistent with the precautionary approach without explicitly stating it. 27. In those circumstances, there appears to be no compelling reason to complement s 61(2) with an extraneous precautionary ideal, and nor is it clear from the submissions of KASM, Greenpeace and DSCC in what way that exercise would alter the express requirements in the statutory provisions. Can cultural values be taken into account as interests in lawfully established existing activities? Identifying the extent of this issue 28. There are some effects on cultural values 17 that submitters such as Te Runanga o Ngai Tahu 18 and Hokotehi Moriori 15 The Bill at first reading contained materially the same directives to favour caution and environmental protection when facing uncertain or inadequate information, in clause 13. The amendments made by the Select Committee moved that text, but retained materially the same wording, into what is now s Ministry for the Environment advice to the Local Government and Environment Select Committee on the EEZ Bill (12 February 2012) < 17 We use the term cultural values broadly, in an attempt to cover interests, beliefs, rights, obligations and responsibilities. 18 Opening Submissions for Te Runanga o Ngai Tahu, 25 September 2014 at [31] [39]. 7

8 Trust ( HMT ) 19 say are required to be taken into account, while CRP contends they cannot It is not easy to unravel the extent of this disagreement, as: (a) (b) The submissions and evidence of submitters provide a complex picture of cultural values without always clearly (or consistently) identifying in what ways they constitute existing interests, in what ways they are said to be affected, or whether those effects are independent of, or part of, effects on other types of existing interests; and It appears CRP may not dispute the relevance of some cultural values, particularly those manifested in a Treaty claim or settlement, or in commercial fishing activity though we note that CRP s apparent concessions on these matters may not extend to accepting that the cultural values are an existing interest in their own right It seems undisputed that relevant cultural values may in principle be taken into account under paragraphs (d) or (e) of the definition of existing interests. Under those paragraphs, a person with an interest in a cultural value that has been recognised or manifested in a Treaty settlement is treated as having an existing interest. 31. Ngai Tahu, for example, derives existing interests through the Ngai Tahu Claims Settlement Act, 22 and such interest includes rights that have cultural as well as commercial value. 32. The more difficult questions relate to the scope for cultural values to be treated as an existing interest under paragraph (a) of the definition. It defines an existing interest as: The interest a person has in any lawfully established existing activity, whether or not authorised by or under any Act or regulations, including rights of access, navigation and fishing. 19 Opening Submissions for Hokotehi Moriori Trust, 10 November 2014 at [78] [85]. 20 Opening Submissions for CRP, 25 September 2014 at [69] to [89]. 21 Opening Submissions for CRP, 25 September 2014 at [75] [76]. 22 Opening Submissions for CRP, 25 September 2014 at [76(c)]. 8

9 33. Submitters including Ngai Tahu and HMT contend that in addition to cultural values that may be captured elsewhere in the definition, they have cultural values that fall under paragraph (a). An example is the cultural values that may be manifested in fishing activity, such as undertaken by Greg Summerton / Okains Bay Longlining, 23 though in other examples the submitters contend that exercises of tchiekitanga/kaitiakitanga unrelated to commercial fishing constitute existing interests For the purposes of legal analysis, these two types of examples seem reasonably representative; such that analysis of them should provide sufficient guidance on the approach to be taken across the range of cultural interests raised by submitters. We address each example in turn below. Cultural values that arise in relation to fishing activity 35. It is claimed that Mr Summerton s fishing activity is based on tikanga and on principles of kaitiakitanga, 25 and we infer that Ngai Tahu would contend that effects on his ability to continue and grow his fishing activity is as much an effect on those cultural values as it is an effect on his commercial interests. 36. It appears CRP would accept that Mr Summerton has an existing interest on account of his commercial interest in lawfully established fishing activity, but that his alleged cultural interest is less easily accounted for. 26 CRP asks whether such interests might in fact be the same thing; and suggests if they are not, then their distinction must be clearly understood to avoid a risk of double counting or giving too much weight to the cultural interest We consider the natural meaning of the words in paragraph (a) do not support a hard line as CRP promotes between cultural or other types of interests. The questions CRP poses about what weight to give to respective interests requires a careful evaluation, but the 23 As described in the evidence of Greg Summerton. 24 For examples, see Opening Submissions for Te Runanga o Ngai Tahu, 25 September 2014 at [33]; and Opening Submissions for Hokotehi Moriori Trust, 10 November 2014 at [88]. 25 Opening Submissions for Te Runanga o Ngai Tahu, 25 September 2014 at [46]. 26 Opening Submissions for CRP, 25 September 2014 at [76a] and [84] - [85]. 27 Opening Submissions for CRP, 25 September 2014 at [85]. 9

10 word interests does not itself convey a need for a stakeholding of a particular type. Indeed, given the term interests is used to describe stakeholdings that include those secured by Treaty settlements, and given those settlements can and do expressly recognise specific cultural values, we submit interests ought to be read broadly. 38. For present purposes, the more determinative wording is that the interest must be in a lawfully established existing activity. 39. Being lawfully established does not require being authorised under a statute, as the section expressly states whether or not authorised by or under any Act or regulations. 40. Clearly, fishing activity like Mr Summerton s is a lawfully established existing activity. In his example, it might be argued that there is only one activity namely the fishing and accordingly, to take account of a commercial interest and a cultural interest in the same activity is to double-count the effect. There is no express guidance in the provisions as to whether this type of approach is supported or not. However, we think it is implicit that both interests are to be considered, rather than one effectively treated as representative of the other. That is because s 59(2) requires the effects on the existing interests to be taken into account, not the effects on the existing activity. That would suggest that where there is more than one interest held in an activity, then all the interests are to be taken into account. 41. In our view, that is also consistent with the Act s definition of effect, which includes any cumulative effect that arises in combination with other effects We acknowledge that in an example like Mr Summerton s there is some overlap between commercial and cultural interests (indeed, his evidence is that his commercial success derives in part from the implementation of cultural values in his business); but we do not think that an overlap should in principle preclude consideration being given to both interests. An overlap complicates the 28 Section 6. 10

11 question of how to weigh those effects, but does not signify that an attempt to weigh them both should not be made. 43. In terms of weighting, the Act provides limited guidance. There is no clear differentiation within section 59(2): effects on existing interests of a commercial nature, and effects on existing interests of a cultural nature are both simply matters to be taken into account. 44. The purpose provision, s 10, is of little assistance. While the meaning of the Act must be ascertained from its text and in the light of its purpose, 29 the purpose here does not play the same directive role as the purpose provision in the RMA. 30 A purpose provision of the sort found in s 10 attempts to explain what Parliament is seeking to achieve from the legislation, 31 but the machinery provisions (in this instance ss 59 61) are in much more specific terms and provide the means by which Parliament s goal is to be achieved. 45. Some guidance on how to approach the assessment of effects on existing interests is provided in section 60, which states: In considering the effects of an activity on existing interests under section 59(2)(a), the Environmental Protection Authority must have regard to (a) the area that the activity would have in common with the existing interest; and (b) the degree to which both the activity and the existing interest must be carried out to the exclusion of other activities; and (c) whether the existing interest can be exercised only in the area to which the application relates; and (d) any other relevant matter. 46. Paragraphs (a) (c) have an obvious focus on the potential displacement effect of a proposed marine consent, which may be principally apparent in a physical dimension; but that does not preclude taking into 29 Interpretation Act 1999, Section 5(1). 30 The s 59 equivalent in the RMA, s 104 of that Act, is expressly stated to be subject to Part 2, which contains the purpose section and other key principles for the promotion of sustainable management. 31 Burrows & Carter Statute Law in New Zealand (4 ed 2009) at

12 account effects sustained in a cultural dimension. Paragraph (d) plainly indicates that there may be more to the effect than is captured under (a) (c). 47. In conclusion, where an effect on a cultural value is asserted in association with a lawfully established existing activity (such as Mr Summerton s commercial fishing), we submit that effect is required to be taken into account, in addition to or alongside effects on other interests (such as commercial interests) associated with the same lawfully established existing activity. In that type of situation the cultural value is an interest in an existing lawful activity within the meaning of s 59(2)(a). 48. The degree of effect will be a matter of fact for the DMC to assess; as will be the weight to be accorded to that effect alongside all other matters to be taken into account under s 59. While the Act does not provide much guidance on how to weigh the effect, it is fundamentally sound that the weight given to effects on multiple interests in an activity, should be greater than the weight that would be given to any one effect on one of the interests in the activity on its own. Cultural interests in other exercises of Kaitiakitanga 49. CRP asserts that the expression of purely cultural interests, separate from fishing interests, does not fall within paragraph (a) because there is no related lawfully established existing activity. 32 It appears CRP would put in this category a range of cultural interests, examples of which include interests in the mauri of the Chatham Rise, or interests in whales and seabirds and their habitat Ngai Tahu says the Act implies that the relevant interest need be more than that of an uninvolved bystander, 34 but does not seem to suggest quite what level of engagement is necessary. 51. The crux of this issue appears to therefore depend on what level of engagement or involvement is required in 32 Opening Submissions for CRP, 25 September2014 at [73] and [78]. 33 These, and other examples, are set out in the Opening Submissions for CRP, 25 September 2014 at [188] 34 Opening Submissions for Te Runanga o Ngai Tahu, 25 September 2014 at [33]. 12

13 order for there to be an existing activity within the meaning of paragraph (a). 52. The Act itself does not define what is meant by existing activity. Nor does the Act s definition of activity assist: 35 it says the term means an activity restricted by s 20 unless the context otherwise requires. Here, the context plainly requires a different meaning it would be a nonsense if the effects of a proposal were to be measured only on other activities regulated under the Act As the meaning of the Act is to be ascertained in light of its purpose, it is valid to consider whether s 10 provides any clear guidance. The question that might be posed is whether any of the potential meanings of existing activity would create an inconsistency with the Act s purpose Section10 and the related definition of environment are notably less broad than their counterparts in the RMA. They reveal that the Act is fundamentally less concerned than the RMA is with social and cultural effects; and far more focussed on the management of natural resources. While that provides some general guidance, it would not be inconsistent with the purpose provision to allow effects on purely cultural interests to be taken into account. We consider sub-setion 10(3) supports that position, by expressly stating that the purpose will be achieved by decision-makers applying the machinery provisions. 55. Stronger guidance as to the meaning of existing activity might be taken from the ordinary meaning of the words, and the context provided in the machinery provisions themselvs. Ordinary meaning (a) Common dictionary definitions suggest activity in the present usage means the state or quality of being active, an activity being an occupation or a 35 Contrary to the assertion in Opening Submissions for CRP, 25 September 2014 at [80]. 36 Further, examination of the use of the term activity throughout the Act clearly discloses that the term is not uniformly used to mean an activity regulated under s This differs from an examination of whether the provisions uphold or promote the purpose, which is not an appropriate approach here, for the reasons discussed at [45]. 13

14 Context pursuit. 38 Such ordinary meanings support Ngai Tahu s suggestion that the Act requires an existing interest claimant to be more than an uninvolved bystander. (b) (c) (d) We submit there are two contextual factors that ought to be addressed: the final phrase in paragraph (a), which refers to rights apparently as a category of existing activities, and the role of the assessment required under s 60. The final phrase of paragraph (a) casts doubt on the suggestion that an uninvolved bystander cannot be the holder of an existing interest. It refers to rights, and it is axiomatic that a right may subsist whether physically manifested or not. Indeed, the final phrase of paragraph (a) incorporates at least the rights of access, navigation and fishing that arise within the territorial sea under the Marine and Coastal Area (Takutai Moana) Act As far as we are aware, no submitter is claiming rights under that particular category but the existence of the category is significant: in that category it seems an uninvolved bystander with an entitlement would suffice to give rise to an existing interest. We do not consider, however, that the reference to rights of access, navigation and fishing signifies that existing activities ought to be interpreted to capture rights any more broadly than the express reference allows. Rights of access, navigation and fishing share a common trait that they are all rights to undertake a type of physical activity in the marine environment. The value of the right seems to lie in the possibility of the right being physically exercised. There is nothing in the wording of paragraph (a) to suggest that rights of other sorts fall within the concept of interests in lawfully established existing activity. 38 Concise Oxford Dictionary (7 ed); Shorter Oxford English Dictionary (6 ed 2007). 39 Marine and Coastal Area (Takutai Moana) Act 2011, ss The phrase may also be intended to capture other rights of access, navigation and fishing that arise beyond the territorial sea. 14

15 (e) Further, an inference might be drawn from section 60 that one can distinguish an entitlement to undertake a physical activity in the marine environment, from a cultural value that does not have that same degree of association with a physical activity (or potential physical activity). An entitlement of the former sought will be able to be assessed against the criteria in s 60(a) to (c) even if the entitlement is not being exercised at the present time; 40 whereas a value of the latter sort cannot meaningfully be assessed against those criteria, as they relate to the actual or possible physical manifestation of the interest. As noted previously, s 60(d) adds breadth by allowing an assessment to take in any other relevant matter but there is no clear guidance on how relevance might be determined. While we do not think s 60 is determinative, we submit it does support a distinction of the sort described above. 56. Drawing on all of the above, we conclude that the best supported interpretation of paragraph (a) includes the following elements. 57. First, an existing activity generally requires a physical manifestation, some discernible lawful action that is being undertaken. The action being undertaken need not be constant, as there is nothing in the ordinary meaning of the words to suggest that a regular but intermittent activity should be excluded; but a party claiming an existing interest based on an intermittent activity would need to satisfy the decision maker that the nature of the activity is such that its occasional manifestations should not be seen as isolated events, but as part of a larger connected sequence of events that collectively are the manifestation of the interest. 58. Second, a right of the sort identified in the paragraph may be an interest in an existing activity, even though there may be no physical manifestation of it; because exercising the right would involve physical activity in the 40 Within that evaluation the proposed marine consent activity might be favoured by the fact that the rights are not being exercised, but that is not significant. What is significant is the ability to undertake the assessment. 15

16 marine environment of the sort that could potentially be displaced by a marine consent project. 59. Third, an interest in something that is neither physically manifested, nor if exercised would result in a physical activity in the marine environment, does not fall within the meaning of paragraph (a). So, a cultural interest that does not rely upon conversion into a physical activity in the natural environment, would not be an existing interest under paragraph (a). 41 Conclusion 60. We have evaluated two types of situations in which a cultural value may be claimed to be affected by CRP s proposal: first, where the value is a cultural dimension of an extant physical activity in the marine environment (i.e commercial fishing), and second, where the cultural value is not manifested in a physical activity in the marine environment, or reliant on the possibility of undertaking such a physical activity. 61. In our view the cultural value in the first example constitutes an existing interest within the meaning of paragraph (a) of the existing interest definition. The cultural value in the second example is not an existing interest within the meaning of paragraph (a). In order to come within that part of the definition, the interest must either manifest in a physical activity in the marine environment, or the interest must be of a sort that will manifest in a physical activity in the mearine environment if it is exercised. 62. Put another way, if the interest may be exercised without any physical manifestation in the marine environment, then we do not think the words, context or purpose of the Act support treating that interest as one of the interests that come within paragraph (a) of the definition. 63. That may not be of great significance to the assessment of this particular application, as it appears that many of the values asserted by submitters are able to be reflected in other parts of the assessment, either because they 41 But may well be an existing interest if it is within paragraph (d) or (e), such as where the cultural value has been acknowledged as a component of a settlement. 16

17 (a) (b) (c) give rise to adverse effects on the natural environment, or are in fact associated with physical activity in the marine environemt, or are interests in the settlement of historical or contemporary claims under the Treaty of Waitangi. 64. The significance of excluding some cultural values from paragraph (a) of the existing interests definition might also be lessened if irrespective of that position CRP is offering some relevant mitigation of effects on those values. We note CRP states that it has sought to make provision for cultural interests through the proposed Chatham Islands Trust and Environmental Compensation Trust. 42 Health and safety implications if the mining vessel is foreign flagged 65. The Environment and Conservation Organisations of NZ Inc has submitted that a potential issue of a radiological and toxic threat to workers may be further complicated if the vessel is flagged to another country At the request of the DMC, we have considered whether the Health and Safety in Employment Act 1992 will apply to CRP s mining operations should the mining vessel be flagged to another country and consider that the answer is not straight forward. 67. Maritime New Zealand s response to the EPA in accordance with s 44 of the EEZ Act states that Maritime NZ are responsible for administering the Health and Safety in Employment Act 1992 for work on board ships and for ships as a place of work. 44 Maritime NZ refer to s 3B of the Health and Safety in Employment Act 1992 which provides: (1) This Act applies (a) to a person 42 Opening Submissions for CRP, 25 September 2014 at [89]. 43 Submissions by Environment and Conservation Organisations of NZ Inc, 6 November 2014, at [5.7.5] 44 Maritime NZ report provided in accordance with s 44 of the EEZ Act, 18 July

18 (i) employed or engaged under an employment agreement or contract for services governed by New Zealand law to work on board a New Zealand ship or on board a foreign ship carrying coastal cargo while the foreign ship is on demise charter to a New Zealand-based operator; or (ii) performing work on a foreign ship while it is carrying out petroleum operations in New Zealand continental waters (as defined in section 222(1) of the Maritime Transport Act 1994); and (b) to the person who employs or engages the person described in paragraph (a); and (c) to the ship as a place of work. (2) Where this Act applies in respect of a New Zealand ship, it applies whether the ship is operating inside or outside New Zealand.. (4) To avoid doubt, where this Act applies outside New Zealand, the provisions relating to offences apply even though an act or omission that constitutes an offence occurred in respect of a ship outside New Zealand. 68. Whether or not CRP s mining operations would fall within the scope of the Health and Safety in Employment Act 1992 would therefore be dependent on a number of facts such as whether the contractual arrangements are governed by NZ law or whether the vessel can be required to be registered in NZ. We expect CRP would be best placed to comment on those possibilities. 69. We note that the provisions in the Health and Safety and Reform Bill suggest that, if enacted in its current form, CRP s mining operation with respect to the mining vessel would be regulated The Bill is expected to come into force in April Myregel Carambas / Morgan Slyfield Counsel to assist the Decision-making Committee 45 Health and Safety Reform Bill 2014 (192-1), clauses 8 and Hon Simon Bridges Health and Safety Reform Bill introduced (press release 10 March 2014) 18