LAW OF THE SEA AND FISHERIES

I. Environmental Protection of the Exclusive Economic Zone and Continental Shelf

The Exclusive  Economic Zone and Continental Shelf (Environmental Effects)  Bill was  introduced to Parliament on 24 August 2011.1  The Bill is intended to fill a regulatory gap in New Zealand’s oceans management framework. Although New Zealand has  legislation  addressing  particular activities such as fishing and licensing of mining operations, the legislation has tended to be ad hoc and poorly integrated. Several problems have been identified, including the lack of a framework to assess the environmental impact of new activities and no consenting regime for projects planned beyond 12 nautical miles. Some activities or interests  such  as energy generation, carbon capture and storage and management of biodiversity were not able to be dealt with under the existing legislative framework.2  In 2002 and 2005 New Zealand received applications from companies interested in exploring for minerals  on the continental shelf.  No  existing  regulatory framework stipulated how environmental assessment of these activities should proceed.

The Bill deliberately takes a “gap filling” approach. Existing legislation relating to activities such as fishing and navigation remains largely untouched. The purpose of the Bill is “to achieve a balance between the protection of the environment and economic development in relation to activities in the exclusive economic zone and on the continental shelf ” by setting out decision making criteria when proposed  activities may affect  the environment or existing interests. These criteria include considering the adverse effects on the environment, the economic well-being of New Zealand, the efficient use and development of natural resources, the effects of activities on existing interests, the protection of biological diversity and the protection of rare and vulnerable ecosystems  and  the  habitats  of  threatened  species.3    The  precautionary approach is included in the requirement that decision makers must “take a cautious approach … if information available is uncertain or inadequate”.4  

The Bill anticipates that detailed regulations will be introduced in relation to activities, identifying prohibited, permitted and discretionary activities. If an activity is  not governed by another Act and the activity is  neither permitted nor prohibited, the entity concerned must apply for a marine consent for permission to undertake the activity. A government agency, the Environmental Protection Agency is  given responsibility  to consider  and decide on applications for marine consents. Regulations may also be passed in order to prescribe technical standards or methods for activities, and to classify areas of the exclusive economic zone (EEZ) or continental shelf as important, especially vulnerable or required to be carefully managed due to conflicting activities. The Bill also establishes procedural matters such as making submissions, the conduct of hearings and making of objections and appeals.

The Bill passed its first reading on 13 September 2011. The Bill was sent to the Local Government and Environment Committee for consideration.

II. Fishing

A. South Pacific Regional Fisheries Management Organisation

Following its  signature  in  February 2010,  New  Zealand deposited its instrument  of ratification of the Convention on the Conservation and Management of High Seas Fishery Resources in the South Pacific Ocean on 1 June 2011. New Zealand joined four others in ratifying the Convention in 2011 – the others were Belize, the Cook Islands, the Republic of Cuba and the European Union. In addition, Chinese Taipei deposited an Instrument for the Participation of Fishing Entities in January 2011. In order to enter into force, the Convention requires eight ratifications including three coastal state ratifications and three ratifications from foreign fishing states. This is expected to occur in 2012. New Zealand  sees its involvement in the Convention as part of its international obligation to cooperate in the management of high seas fish stocks.5

The Parties to the Convention held a second PrepCon in Cali, Columbia in January 2011. Notably, the Parties agreed to substantial  interim measures limiting effort by fishing states.6  There is concern that the catch of jack mackerel needs to be limited in order to ensure the sustainability of the stock. The interim measures included specified catch limits for each fishing state and detailed provisions for monitoring and enforcement of the measures including allowing port state inspections of foreign vessels. The Parties to the Convention continue to set new precedents for interim measures – which are voluntary and non-binding – prior to the entry into force of the Convention.

B. Western and Central Pacific Fisheries Commission (WCPFC)

In  July and August  2011  New Zealand fishery  officers  onboard the HMNZ Wellington boarded and inspected  foreign flagged vessels on the high seas pursuant  to the procedures established by the WCPFC. Eighteen foreign flagged tuna long-liner were boarded and inspected in the vicinity of New Zealand’s northern EEZ. No breaches of the WCPFC compliance measures were detected.

C. Te Vaka Toa Arrangement

Te Vaka Toa Arrangement7 is  a subsidiary  arrangement to the 1992 Niue Treaty that facilitates cooperation in fisheries monitoring control and surveillance  among the six  Pacific participants.  New Zealand signed  the arrangement in July 2011. The Arrangement is  the result of negotiations by the countries participating in Te Vaka Moana Arrangement, which is a political cooperative mechanism  aimed at improving Polynesian  fisheries management capacity.

Te Vaka Toa Arrangement  applies to the internal waters, territorial sea and EEZ of each participant as well as the high seas adjacent to those EEZs. Participants will cooperate in the use of “resources”  including personnel, vessels, aircraft and systems to monitor illegal fishing in the area. Provision is made for the sharing of information among the participants on a secure footing, and the use of that information. The possibility of cooperating in a hot pursuit  is mentioned, although this must be done in accordance with international law. Cooperation relating to port state measures is permitted including inspections of vessels that have fished, transported fish or supported fishing operations within or, significantly, adjacent to the fisheries waters of the participants. New Zealand is to act as the Central Contact Point for the Arrangement, while each participant must identify a National Authority that will be responsible for the implementation of the Arrangement.

D. Commission for the Conservation of Southern Bluefin Tuna

The Eighteenth Annual Meeting of the Parties was held in Bali, Indonesia in October 2011.8  This  was a significant  meeting as  it finally adopted a management procedure following ten years of negotiations. Many of the parties to the Commission, including New Zealand, stressed the need for a precautionary approach to future catch limits as the current stock of Southern Bluefin Tuna is estimated  to be between 3 and 7% of biomass. This call for precaution was endorsed  by the Commission. The TAC was set at 10,449

tonnes for 2012, amounting to an increase of 1000 tonnes on the previous TAC. The TAC is set to increase further in the following two years. New Zealand’s TAC ranges between 800 tonnes for 2012 to 909 tonnes for 2014. In addition, the Commission agreed on a procedure that allows parties to carry forward unused TAC to later years, as long as it is used within three years.

E. Pacific Islands Forum

New Zealand hosted the 2011 meeting of the Pacific Islands Forum in Auckland in September. The Forum meeting issued the Waiheke Declaration which is aimed at ensuring sustainable development.9  Oceans issues, including ensuring sustainable fisheries and protection of the marine environment, took a central role in the Declaration. Pacific states pledged to improve sustainable returns to Pacific Island economies from natural resources including fisheries. This included commitments to enhance monitoring control and surveillance activities to address illegal, unregulated  and unreported fishing.

II. Marine Safety and Environmental Protection

A. Polar Code

Negotiations at the International Maritime Organisation to develop a mandatory Code for the operation of vessels in polar regions progressed slowly in 2011. The timeline for finalisation of the Code text for vessels covered under the Convention on the Safety of Life at Sea (SOLAS) is now likely to be in 2014/15. Work on the Code text for non-SOLAS vessels will commence in 2013 with an ambitious projected completion date by 2016. New Zealand, as an Antarctic Treaty Party with search and rescue coordination responsibilities which extend to the Ross Sea region has been actively engaged since 2009 when the negotiations began, to ensure that the Code adequately provides for the requirements of the Antarctic polar region.

B. Rena Incident

On 5 October 2011, the cargo ship Rena ran aground on Astrolabe reef, located within New Zealand territorial waters off the coast of Tauranga. The Liberian flagged  vessel was carrying 1,368 containers and 1,733 tonnes of heavy fuel oil. The grounded vessel broke up over a period of weeks. Although 1,300 tonnes of the vessel’s fuel oil was recovered  in a salvage operation, a considerable amount of oil escaped, causing environmental damage to a wide area of the shoreline and affecting marine species including seabirds.

At the time of the accident, New Zealand was a party to the 1976 Convention on the Limits on Liability for Maritime Claims (LLMC), under which liability for the Rena incident was approximately  US$9 million (NZ$12.1 million). Under the 1996 Protocol to the LLMC, limitation would have been raised to approximately US$18 million (NZ$27 million). Unfortunately, although Parliament’s Transport and Industrial Relations Committee had recommended ratifying this Protocol in 2008, no action had been taken to do so.10  In any event, the cleanup costs and financial impacts on local businesses are expected to exceed both of the limitation amounts.

C. Investigation Into the 2010 Collision Between the Ady Gil and the Shonan Maru 2

On 6 January 2010 there was a high profile collision between the Sea Shepherd vessel Ady  Gil and the Japanese  security  vessel Shonan  Maru 2 operated by the Institute for Cetacean Research. The New Zealand flagged Ady Gil lost 3.5 metres from its bow in the incident which occurred in the high seas  of the Southern Ocean. One crew member was  injured in the collision, and the vessel later sank while under tow. As flag state of the Ady Gil, New Zealand instituted an investigation into the event, conducted by Maritime New Zealand.

The investigators interviewed the master and crew of the Ady Gil and a cameraman that was on board the vessel at the time of the collision as well as crew members of another Sea Shpeherd vessel that had been in the area. Video and photographic  evidence was obtained from the Sea Shepherd Conservation Society and the Japanese Coastguard. Some information was obtained from ship equipment. However, no statements were able to be provided from the crew of the Shonan Maru 2.
The report of the investigation  found no evidence that indicated that either master had intended to collide with the other, a significant finding in light of the accusations of fault from each party after the collision.11  Instead, the investigators concluded that both vessels had contributed to the event by departing from the International Regulations for the Provision of Collisions at Sea 1972. As the overtaking vessel, Shonan Maru No. 2 failed to take early and substantial action to keep well clear of Ady Gil. In the close quarters situation that developed, Shonan Maru No. 2 failed to take positive and sufficient action to avoid colliding with the Ady Gil. The crew of the Ady Gil contributed by failing to maintain an effective lookout and to take early and substantial action when the risk of collision became apparent.12

III. Other Developments

In December 2011, the Minister of Foreign Affairs and Trade, Murray McCully, notified the International Maritime Organisation that, pursuant to art XII(1)(a)(ix) of the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers, New Zealand exempted itself from giving effect to the Manila Amendments to the annex to the Convention on Standards of Training, Certification and Watchkeeping for Seafarers for a period of one year. Therefore, the Manila Amendments  will come into force for New Zealand from 1 January 2013.

In October 2011, New Zealand deposited its Instrument of Acceptance for the Protocol of Amendments  to the Convention on the Internaional Hydrographic Convention.

Joanna Mossop
Victoria University of Wellington

1     Exclusive Economic Zone and Continental Shelf (Environmental  Effects) Bill [“EEZ and CS (Environmental Effects) Bill”].
2     The regulatory gaps  are explained in  Ministry  for the Environment Regulatory  Impact Statement:  Exclusive  Economic Zone  and Extended Continental  Shelf Environmental  Effects Legislation (New Zealand Government, Wellington, 20 April 2011).
3     EEZ and CS (Environmental  Effects) Bill, cl 12.
4     EEZ and CS (Environmental  Effects) Bill, cl 10.
5     Foreign Affairs, Defence and Trade Committee National Interest Analysis: Convention on the Conservation and Management of High Seas Fishery Resources in the South Pacific Ocean (New Zealand Government, Wellington, 2011).
6     Report  of  the  Preparatory  Conference  for  the  Commission  of  the  South  Pacific  Regional Fisheries Management Organisation (Second Session, Cali, Colombia, 24-28 January 2011) at Annex C.
7      Arrangement between the Cook Islands, New Zealand, Niue, Samoa, Tonga and Tokelau on Cooperation in Fisheries Surveillance and Law Enforcement Subsidiary to the Niue Treaty on Cooperation in Fisheries Surveillence and Law Enforcement  in the South Pacific Region (signed 9 July 1992, entered into force 20 May 1993) [“Te Vaka Toa Arrangement”].
8     See Commission for the Conservation of Southern Bluefin Tuna Report of the Eighteenth Annual Meeting of the Commission (Bali, Indonesia, 10-13 October 2011).
9     Waiheke  Declaration  on  Sustainable  Economic Development  (Forum  Communiqué),  Forty- Second Pacific Islands Forum, Auckland, New Zealand, 7-8 September 2011.
10    Transport and Industrial Relations Committee International treaty examination of the Protocol of 1996 to Amend the Convention on Limitation  of Liability for Maritime Claims 1976 Report (New Zealand Government, Wellington, 29 August 2008).
11    Maritime New Zealand Investigation Report: Ady Gil and Shonan Maru No. 2 (New Zealand Government, Wellington, November 2010).
12    Ibid, at 1.