Tribunal Analysis, Findings, and R ecommendations
8.4.4
coverage. As he put it, the arrangements are ‘not so much agreements’ as ‘the formulation
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and construction of a voluntary environmental impact assessment’.73 What is involved, he told us, is ‘self regulation that is certified by the government’, the implementation of which is dependent ‘on the integrity of the operator’.74
We are unsure exactly why permits in the EEZ/continental shelf area are not granted on clear, enforceable conditions about standards of work and mitigating environmental risks and accidents. The factors involved seem to include the Minister of Energy’s unfamiliarity with managing environmental effects, the lack of authority of the Ministry for the Environment and Department of Conservation beyond the territorial seas, and an official view, at least in the past, that the risk of serious incidents is not sufficiently high to justify the difficulty and cost involved in devising, imposing, and enforcing such standards on permit holders. For Māori, the precise origin of threats to the environmental safety of their rohe – whether they emanate onshore or from five or 15 nautical miles offshore – is immaterial. The experiences of Māori, plus those of Crown agencies other than Crown Minerals (including
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the Department of Conservation which administers New Zealand’s national coastal policy, effective to the outer limit of New Zealand’s territorial waters) must be relevant if the best possible solution to this situation is to be devised. As we discussed in chapter 7), the Ministry for the Environment is leading policy work for a proposal to establish a regulatory body, a stand-alone Environmental Protection Authority, to take responsibility for these matters. The Ministry of Economic Development has commissioned a study of how the proposed policy would relate to the regulation of petroleum. We were not told of any consideration of Māori interests or involvement of Māori in this process. In our view, any new arrangements for managing petroleum in the EEZ must take full and proper account of Māori interests. This includes the issue of Māori rights in this zone, about which, as Crown counsel pointed out, we received little in the way of evidence or submissions. On this particular issue, we note simply that most of the return the Crown obtains from petroleum is from mining activity outside New Zealand, in the EEZ/continen-
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tal shelf area, where the Crown does not own petroleum. That said, it is acknowledged that the ownership issue regarding minerals and the continental shelf has not been conclusively determined. Those arguments remain extant and in due course the relevant fora will consider such claims. Beyond this acknowledgement, in the absence of both jurisdiction on the one hand and comprehensive evidence and submissions on the other, we cannot comment further on that matter.
73. Ibid, p 303 74. Ibid, p 304
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