(1A) In section 3(8), after “standard process for applying for a marine consent”, insert “for a non-notified activity, the standard process for applying for a marine consent for a publicly notifiable activity,”.

Clause 90

In clause 90(1), before the new definition of discharge (before line 9 on page 99), insert:

“customary marine title group has the meaning given in section 9(1) of the Marine and Coastal Area (Takutai Moana) Act 2011

In clause 90(1), after the definition of dumping (after line 28 on page 99), insert:

“emergency dumping consent means a marine consent granted under section 24FA

In clause 90(1), after the new definition of New Zealand structure (after line 32 on page 100), insert:

“non-notified activity means a discretionary activity that—

“(a) is described in regulations as non-notified; or

“(b) is an activity for which regulations provide that an application for a marine consent is not to be publicly notified

In clause 90(1), after the new definition of offshore installation (after line 3 on page 101), insert:

“protected customary rights group has the meaning given in section 9(1) of the Marine and Coastal Area (Takutai Moana) Act 2011

“publicly notifiable activity means a discretionary activity other than a non-notified activity

In clause 90(1), after the new definition of toxic or hazardous waste (after line 11 on page 101), insert:

“working day means a day of the week other than—

“(a) a Saturday, a Sunday, Waitangi Day, Good Friday, Easter Monday, Anzac Day, the Sovereign's birthday, and Labour Day; and

“(b) if Waitangi Day or Anzac Day falls on a Saturday or a Sunday, the following Monday; and

“(c) a day in the period commencing on 20 December in any year and ending with 10 January in the following year.”

In clause 90(4), replace the new definition of marine consent (lines 24 to 27 on page 101) with:

“marine consent or consent means—

“(a) a marine consent granted under section 62; or

“(b) an emergency dumping consent, a marine discharge consent, or a marine dumping consent”.

In clause 90(5), new definition of waste or other matter, replace “description.” (line 35 on page 101) with “description”.

Clause 95

Replace clause 95 (lines 1 to 3 on page 103) with:

95 Section 16 amended (Restriction on Environmental Protection Authority's power to delegate)

In section 16, replace “or make a decision on a review of a consent under section 62, 81, or 82 (as appropriate),” with “under section 62 or to make a decision under section 81 or 82 on a review of a consent granted under section 62,”

Clause 96

In clause 96, new Part 2, replace new section 24C(3) (lines 14 to 20 on page 110) with:

“(3) The Maritime Transport Act 1994 regulates the dumping of waste or other matter into the waters beyond the continental shelf.

In clause 96, new Part 2, replace new section 24F(3)(b) (lines 24 to 26 on page 111) with:

“(b) the dumping is authorised by an emergency dumping consent and complies with any regulations for emergency dumping made under section 29AB; or

“(c) the dumping is in accordance with section 248 or 249 of the Maritime Transport Act 1994.

In clause 96, new Part 2, after new section 24F (after line 26 on page 111), insert:

“24FA Emergency dumping

“(1) Any person may apply to the Environmental Protection Authority for an emergency dumping consent to dump waste or other matter in an emergency—

“(a) into the waters of the exclusive economic zone:

“(b) into waters beyond the outer limits of the exclusive economic zone but over the continental shelf.

“(2) The EPA may issue an emergency dumping consent, in accordance with this section and regulations under section 29AB, if it is satisfied that—

“(a) an emergency exists; and

“(b) the emergency poses an unacceptable risk to human health, safety, or the marine environment; and

“(c) the dumping of the waste or other matter is necessary to remove or reduce the risk; and

“(d) there is no feasible alternative to the dumping of the waste or other matter.

“(3) Before the EPA grants an emergency dumping consent, it must—

“(a) consult Maritime New Zealand and the appropriate competent authority of any country that is likely to be affected by the dumping of the waste or other matter; and

“(b) notify the International Maritime Organization that it has received an application for an emergency dumping consent.

“(4) The EPA may grant an emergency dumping consent subject to conditions.

“(5) The EPA may impose any conditions that it considers appropriate to deal with the effects of the dumping of waste or other matter on the environment or on human health or safety, including conditions that require the person issued with the consent to—

“(a) monitor, and report to the EPA on, the exercise of the permit and the effects of the dumping on the environment and human health and safety:

“(b) keep and maintain records of the waste or other matter dumped and the location of the dumping:

“(c) provide the EPA with any specified information that relates to the permit or its exercise.

“(6) The EPA may impose as a condition a requirement that the person granted the emergency dumping consent complies with—

“(a) any procedures for dumping recommended by the International Maritime Organization:

“(b) any procedures for dumping specified in the consent.

“(7) Before imposing a condition under subsection (6), the EPA must consider whether the condition is feasible in the circumstances after taking into account the urgency of the situation.

“(8) The EPA must make its decision on an application for an emergency dumping consent as soon as is reasonably practicable after the EPA is satisfied that the application is complete.

“(9) The EPA must notify the International Maritime Organization of every decision it makes under subsection (8) to grant or refuse an application for an emergency dumping consent.

In clause 96, new Part 2, new section 24J(9)(a), replace “section 107” (line 36 on page 114) with “clause 12 of Schedule 1”.

Clause 98

In clause 98, before subclause (1) (after line 2 on page 117), insert:

(1AA) In section 27(1), replace “technical standards, methods, or requirements” with “requirements, methods, or technical standards”.

New clause 99A

After clause 99 (after line 16 on page 117), insert:

99A Section 29 amended (Regulations classifying activities)

(1) After section 29(1)(c), insert:

“(ca) describe a discretionary activity as non-notified or provide that an application for a marine consent for an activity is not to be publicly notified; or”.

(2) After section 29(4), insert:

“(5) Regulations must only provide that a discretionary activity is to be non-notified if, in the Minister’s opinion,—

“(a) the activity has a low probability of significant adverse effects on the environment or existing interests; and

“(b) the activity is—

“(i) routine or exploratory in nature; or

“(ii) an activity of brief duration; or

“(iii) a dumping activity.”

Clause 100

In clause 100, new section 29A(2)(a), replace “technical standards, methods, or requirements” (line 26 on page 117) with “requirements, methods, or technical standards”.

In clause 100, new section 29A(2)(c), after “matter” (line 2 on page 118), insert “(other than emergency dumping)”.

In clause 100, after new section 29A(2) (after line 5 on page 118), insert:

“(2A) However, the Minister must not recommend the making of regulations unless he or she is satisfied that the requirements of sections 32 and 34A have been met.

In clause 100, delete new section 29A(7) (lines 12 to 15 on page 119).

In clause 100, after new section 29A (after line 17 on page 119), insert:

“29AB Regulations for emergency dumping

“(1) This section applies to the exclusive economic zone, continental shelf, and the waters above the continental shelf beyond the outer limits of the exclusive economic zone.

“(2) The Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations that prescribe requirements, methods, or technical standards for emergency dumping of waste or other matter.

New clause 102A

After clause 102 (after line 15 on page 120), insert:

102A Section 33 amended (Matters to be considered for regulations)

In section 33(3)(k), replace “permitted or discretionary” with “permitted, discretionary, non-notified, or publicly notifiable”.

New clauses 106A to 106I

After clause 106 (after line 13 on page 121), insert:

106A Section 38 amended (Application for marine consent)

After section 38(2), insert:

“(3) This section does not apply to the following activities:

“(a) the discharge of harmful substances:

“(b) the dumping of waste or other matter.”

106B New section 42A inserted (Joint processing and decision-making on related applications)

After section 42, insert:

“42A Joint processing and decision-making on related applications

“(1) This section applies if the Environmental Protection Authority receives more than 1 application for a marine consent in relation to the same proposal (related applications) and at least 1 of the applications must be publicly notified under section 45(2).

“(2) The EPA may extend a time period that applies to the processing of an application for a non-notified activity in order to ensure that—

“(a) the application and a related application are heard (if both are to be heard) at the same time and place:

“(b) the EPA makes its decisions on the related applications on the same date.”

106C Section 44 amended (Environmental Protection Authority may obtain advice)

(1) In the heading to section 44, after “advice”, insert “or information”.

(2) In section 44(1)(d), after “advice”, insert “or information”.

106D New sections 44A to 44C and cross-headings inserted

After section 44, insert:

“Disclosure and hearings of applications for marine consents for non-notified activities

“44A Copy of consent applications for non-notified activities

If the Environmental Protection Authority is satisfied that an application for a marine consent for a non-notified activity is complete, the EPA—

“(a) must serve a copy of the application on any of the following that the EPA considers may be affected by the application:

“(i) iwi authorities:

“(ii) customary marine title groups:

“(iii) protected customary rights groups:

“(b) may serve a copy of the application on the following if the EPA considers it appropriate in the circumstances:

“(i) Ministers with responsibilities that may be affected by the activity for which consent is sought:

“(ii) Maritime New Zealand:

“(iii) other persons that the EPA considers have existing interests that may be affected by the application:

“(iv) regional councils whose regions may be affected by the application.

“44B Hearings in respect of consent applications for non-notified applications

“(1) The Environmental Protection Authority may conduct a hearing on an application for a marine consent for a non-notified activity if the EPA considers it necessary or desirable.

“(2) Despite subsection (1), the EPA must conduct a hearing if the applicant requests a hearing.

“(3) The Schedule applies to hearings of applications for marine consents for non-notified activities.

“Public notification and hearings of applications for marine consents for publicly notifiable activities

“44C Application of sections 45 to 58

Sections 45 to 58 apply to applications for marine consents for publicly notifiable activities.”

106E Section 68 amended (Time limits for Environmental Protection Authority's decision)

(1) In section 68, after “an application for a marine consent”, insert “for a publicly notifiable activity”.

(2) In section 68, insert as subsection (2):

“(2) The EPA must make its decision on an application for a marine consent for a non-notified activity as soon as is reasonably practicable and no later than 50 working days after the date on which the EPA is satisfied that the application is complete.”

106F Section 76 amended (Environmental Protection Authority may review duration and conditions)

(1) In section 76(2), delete “, in accordance with section 78,”.

(2) After section 76(2), insert:

“(3) A notice of review must comply with section 77.”

106G Section 78 amended (Notice of review to consent holder and public notice)

(1) Replace the heading to section 78 with “Public notice of review”.

(2) In section 78(1), after “a notice of review”, insert “of a publicly notifiable activity”.

106H New section 78A inserted (Copy of notice of review of non-notified activity)

After section 78, insert:

“78A Copy of notice of review of non-notified activity

If the Environmental Protection Authority serves a notice of review of a non-notified activity on a consent holder, the EPA must serve a copy of the notice on the persons specified in section 44A(a) as if the reference in that paragraph to an application for a marine consent were a reference to a notice of review.”

106I Section 79 amended (Further information, advice, submissions, and hearing)

(1) In section 79(1), replace “Sections 42 to 58 apply, with all necessary modifications, to a review of a marine consent” with “Sections 42 to 44 and 45 to 58 apply, with all necessary modifications, to a review of a marine consent for a publicly notifiable activity”.

(2) After section 79(1), insert:

“(1A) Sections 42 to 44B (and the Schedule) apply, with all necessary modifications, to a review of a marine consent for a non-notified activity as if the notice of review were an application for a marine consent.”

New clauses 107A to 107E

After clause 107 (after line 22 on page 125), insert:

107A Section 93 amended (Environmental Protection Authority may require joint application)

(1) In section 93(3)(a), replace “proceed with the notification” with “continue with the processing”.

(2) In section 93(3)(b), before “return”, insert “to”.

107B Section 94 amended (Decision to separate joint application for consent)

Replace section 94(2)(b) with:

“(b) one application must be publicly notified, but not the other; or”.

107C Section 96 amended (Environmental Protection Authority to administer process)

(1) In section 96(2)(b), replace “the application is” with “if both applications must be publicly notified, they are”.

(2) In section 96(2)(c), after “submissions”, insert “(if applicable)”.

(3) In section 96(2)(e), replace “and notify” with “and (if applicable) notify”.

(4) In section 96(3), after “ensure that”, insert “(where applicable)”.

107D Section 99 amended (Application for consent for nationally significant cross-boundary activity referred to board of inquiry)

(1) Replace section 99(3) and (4) with:

“(3) If the EPA delegates its functions under subsection (2), sections 44B, 50 to 58, and 68 of this Act do not apply to the application for a marine consent and, instead,—

“(a) the EPA must process the application for a marine consent together with the associated application for a resource consent; and

“(b) the provisions of the Resource Management Act 1991 specified in subsection (5) apply to the processing of the application for a marine consent as if the application were part of the associated application for a resource consent.

“(4) If subsection (3) applies,—

“(a) the EPA must, if the application must be publicly notified under section 45(2) of this Act,—

“(i) notify the application, if it has not already been notified; and

“(ii) receive submissions made under section 46; and

“(b) the board of inquiry must apply sections 59 to 67 in making its decision on the application as if the board were the EPA.”

(2) Replace section 99(5)(c) and (d) with:

“(c) section 149R (which requires the board to produce a final report), but not subsections (3)(e) and (f) and (4)(b) and (c):

“(d) section 149S (which allows the Minister to extend the time by which the board must report), but not subsection (4)(b):”.

(3) After section 99(5), insert:

“(6) An application for a resource consent is associated with an application for a marine consent if the applications relate to the same cross-boundary activity.”

107E Section 105 amended (Appeals on question of law)

In section 105(2)(c), replace “section 81(2)” with “section 81(3)”.

Clause 110B

In the heading to clause 110B, replace “section 158A inserted (EPA and Maritime New Zealand to share information)” (lines 17 and 18 on page 134) with “sections 158A and 158B inserted”.

In clause 110B, after new section 158A (after line 33 on page 134), insert:

“158B EPA may provide information to other regulatory agencies for purposes of this Act

“(1) A regulatory agency may provide to the EPA any information or a copy of any document that the agency believes would assist the EPA in the performance or exercise of the EPA's functions, duties, or powers under this Act.

“(2) The EPA may provide to a regulatory agency any information or a copy of any document that the EPA believes would assist the agency in the performance or exercise of its functions, duties, or powers under a specified Act.

“(3) A person or an agency that receives information provided under this section must not disclose the information to any other person or organisation unless—

“(a) the disclosure is made for the purposes of, or in connection with, the performance or exercise of any function, power, or duty conferred or imposed by this Act or a specified Act on the person or agency; or

“(b) the information is publicly available; or

“(c) the disclosure is made with the consent of the person to whom the information relates or to whom the information is confidential; or

“(d) the disclosure is made in connection with proceedings, or any investigation or inquiry for proceedings, for an offence against this Act or any other enactment; or

“(e) the disclosure is required by another enactment; or

“(f) the disclosure is required by a court of competent jurisdiction.

“(4) In this section,—

“regulatory agency means—

“(a) a consent authority as that term is defined in section 2(1) of the Resource Management Act 1991:

“(b) a department of State that, with the authority of the Prime Minister, is for the time being responsible for the administration of any specified Act

“specified Act means any Act specified in section 7(2) other than the Crown Minerals Act 1991.”

New clauses 111A and 111B

After clause 111 (after line 25 page 137), insert:

111A New section 167A and cross-heading inserted

After section 167, insert:

“Transitional and savings provision relating to regulations

“167A Transitional and savings provision relating to regulations

Any consultation undertaken before the commencement of this section by the Minister on proposals as to whether certain discretionary activities should be classified as non-notified activities may be taken to be consultation for the purposes of section 32(2) for the first non-notified activities regulations made after this section comes into force.

“Compare: 2000 No 91 s 114”.

111B New Schedule inserted

After section 177, insert the Schedule set out in Schedule 4 of this Act.

Schedule 3

In Schedule 3, Part 1, item relating to Part 21, replace new section 257A(2) (line 33 on page 182 to line 6 on page 183) with:

“(2) This Part regulates the dumping of waste or other matter into the waters beyond the continental shelf.

In Schedule 3, Part 1, item relating to Part 21, replace new section 262A(2) (lines 20 to 29 on page 186) with:

“(2) Any person may apply to the Director, in an emergency, for an emergency dumping permit to dump waste or other matter into the sea beyond New Zealand continental waters (which would otherwise contravene section 261).

New Schedule 4

After Schedule 3 (after page 194), insert:

Schedule 4
New Schedule inserted

s 111B

Schedule
Hearings of applications for marine consents for non-notified activities

s 44B

1 Hearing date and notice

(1) If a hearing of an application for a marine consent for a non-notified activity is to be held, the Environmental Protection Authority must fix a commencement date and time and the place of the hearing.

(2) The EPA—

(a) must give the applicant reasonable notice of the commencement date and time and the place of a hearing:

(b) may give the applicant directions as to evidence and the general conduct of the hearing.

2 Hearings to be without unnecessary formality

(1) The EPA may hold a hearing of an application for a marine consent for a non-notified activity in public or in private.

(2) The EPA must establish a procedure for a hearing that is appropriate and fair in the circumstances.

(3) In determining an appropriate and fair procedure for a hearing, the EPA must—

(a) avoid unnecessary formality; and

(b) recognise tikanga Māori where appropriate, and receive evidence written or spoken in Māori, and the Maori Language Act 1987 applies accordingly.

(4) The applicant may question a party or witness if the EPA gives permission.

3 Persons who may be heard at hearings

(1) At a hearing, the applicant may speak (either personally or through a representative) and call evidence.

(2) The Environmental Protection Authority may proceed with a hearing even if the applicant fails to appear at the hearing if the EPA considers it fair and reasonable to do so.

4 Provisions relating to hearings

(1) The following provisions of the Commissions of Inquiry Act 1908 apply to every hearing:

(a) section 4 (which gives powers to maintain order):

(b) section 4B (which relates to evidence):

(c) section 4D (which gives power to summon witnesses):

(d) section 5 (which relates to the service of a summons):

(e) section 6 (which relates to the protection of persons appearing before the Commission):

(f) section 7 (which relates to allowances for witnesses).

(2) Every summons to a witness to appear at a hearing must be in the prescribed form and be signed on behalf of the Environmental Protection Authority or by the chairperson of the committee that is to conduct the hearing.

(3) All allowances for a witness must be paid by the party on whose behalf the witness is called.

(4) At a hearing, the following persons must give to the EPA any information and advice that is relevant and reasonably necessary to decide the application if the EPA asks for it:

(a) a person who reviewed the impact assessment or provided advice under [section 44]:

(b) a person who is heard or represented at the hearing.

5 Control of hearings

The Environmental Protection Authority may exercise a power under clause 6 or 7 after considering whether the scale and significance of the hearing makes the exercise of the power appropriate.

6 Directions to provide evidence within time limits

(1) The Environmental Protection Authority may direct the applicant to provide briefs of evidence to the EPA before the hearing.

(2) The EPA must set a reasonable time within which the applicant must provide the briefs of evidence.

(3) The applicant must provide its briefs of evidence as required by the EPA under subclauses (1) and (2).

7 Directions before or at hearings

(1) Before or at the hearing, the Environmental Protection Authority may do 1 or more of the following:

(a) specify the order of business at the hearing, including the order in which evidence is presented:

(b) direct that evidence be—

(i) recorded; or

(ii) taken as read; or

(iii) limited to matters in dispute:

(c) direct the applicant, when presenting evidence or his or her own submission, to present it within a time limit.

(2) At the hearing, the EPA may seek advice under section 44(1) on an application or the activity to which the application relates, if the applicant agrees.

(3) The EPA must provide copies of the advice to the applicant.

Explanatory note

This Supplementary Order Paper (SOP) amends the Marine Legislation Bill. It makes a number of changes to Part 2 of the Bill, which amends the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012 (the principal Act). The changes are primarily to provide for some discretionary activities to be prescribed as non-notified activities for which an application for a marine consent is not publicly notifiable.

Clause 89 amends section 3 of the principal Act, which provides an outline of the provisions of the Act. This SOP amends clause 89 to make consequential amendments to section 3(8) as a result of the introduction of non-notified activities.

Clause 90 amends section 4 of the principal Act, which is the interpretation section. This SOP inserts new definitions as a consequence of other amendments in this SOP and makes a minor editorial change.

Clause 95 amends section 16 of the principal Act, which restricts the Environmental Protection Authority (the EPA) from delegating its powers to decide an application for a marine consent or a review of a consent, so that it applies to new section 87F. The amendment removes the application to new section 87F.

Clause 96 replaces Part 2 of the principal Act. This SOP—

amends new sections 24C and 24F and inserts new section 24FA, to provide for the regulation of emergency dumping in the exclusive economic zone and on the continental shelf; and
amends new section 24J to update a cross-reference to the Crown Minerals Act 1991 that is required as a result of the recent amendment of that Act.

Clause 98 amends section 27 of the principal Act. This SOP amends clause 98 to insert a new subsection (1AA) into section 27 to clarify matters for which regulations may be made under that section.

New clause 99A is inserted to amend section 29 to allow regulations to prescribe certain discretionary activities as non-notified activities, being activities for which an application for a marine consent is not publicly notifiable.

Clause 100 inserts new sections 29A and 29B. This SOP—

amends new section 29A(1) to clarify the matters for which regulations may be made under new section 29A; and
inserts new section 29A(2A) to provide that the Minister cannot recommend the making of regulations under new section 29A unless he or she is satisfied that the procedural requirements of section 32 and the substantive requirements of new section 34A have been met; and
deletes new section 29A(7); and
inserts new section 29AB to introduce powers to make regulations in relation to emergency dumping.

New clause 102A is inserted to amend section 33, which sets out the matters that the Minister must consider when he or she is developing regulations for the purposes of section 27. The amendment requires the Minister, when recommending whether regulations should provide for a discretionary activity to be a non-notified activity, to take into account the desirability of allowing the public to be heard in relation to the application for a consent.

New clauses 106A to 106I are inserted:

new clause 106A inserts a new subsection (3) in section 38 to clarify that section 38 does not apply to emergency dumping or other discharge and dumping activities for which an application for a marine consent would be made under new section 24FA or 87B:
new clause 106B inserts new section 42A to allow the EPA to extend time periods that apply to the processing of an application that is not notified so that they align with the time periods applicable to a related notifiable application:
new clause 106C amends section 44 to clarify that the EPA may seek information as well as advice:
new clause 106D inserts new sections 44A to 44C to prescribe a notification and hearing process for non-notified activities, and to state that the existing notification and hearing process is the process for publicly notifiable activities:
new clause 106E amends section 68. Section 68 prescribes a time limit for the EPA to make a decision on an application for a marine consent. This SOP amends section 68 to prescribe a time limit for non-notified activities of 50 working days after the date on which the EPA is satisfied that the application is complete:
new clause 106F amends section 76(2) to correct a cross-reference:
new clause 106G amends section 78, which requires reviews of marine consents to be publicly notified. This SOP amends section 78 to reflect the introduction of non-notified activities and to clarify that only the reviews of marine consents for publicly notifable activities are to be publicly notified:
new clause 106H inserts a new section 78A to provide for iwi notification of a review of a marine consent for a non-notified activity:
new section 106I amends section 79 to make consequential amendments as a result of the introduction of non-notified activities.

New clauses 107A to 107E are inserted:

new clause 107A makes minor corrections to section 93:
new clauses 107B and 107C amend sections 94 and 96 respectively to make consequential amendments as a result of the introduction of non-notified activities:
new clause 107D amends section 99, which deals with cross-boundary activities (activities that straddle the boundary between the territorial sea and the exclusive economic zone) to provide for a situation in which the part of an activity that is to take place in the territorial sea is a nationally significant activity and the application for a resource consent is referred to a board of inquiry under the Resource Management Act 1991. Section 99 is amended to make consequential amendments as a result of the introduction of non-notified activities and to align the timing of processes under the principal Act with the timing of processes under the Resource Management Act 1991:
new clause 107E corrects a cross-reference in section 105.

Clause 110B inserts a new section 158A, which allows the EPA and Maritime New Zealand to share information to assist in the performance of duties under the principal Act and the Maritime Transport Act 1994. This SOP inserts a new section 158B, which allows greater information sharing between the EPA and other government departments and consent authorities to assist in the performance of duties under specified marine management Acts (including the principal Act).

New clauses 111A and 111B are inserted. New clause 111A inserts new section 167A which prescribes a transitional and savings provision to allow the Minister to rely on anticipatory consultation to meet the consultation requirements for making the first non-notified activities regulations. New clause 111B inserts a new Schedule 4, which inserts a new Schedule in the principal Act. The new Schedule prescribes hearing provisions for applications for non-notified activities.

Schedule 3 prescribes amendments to maritime transport legislation that are consequential to amendments to the principal Act. This SOP amends Schedule 3 to replace new sections 257A(2) and 262A(2) to reflect the transfer of the regulation of emergency dumping in the exclusive economic zone and on the continental shelf to the EPA.

Marine Legislation Bill - Amendment paper No 340