Murky Waters: Adaptive Management, Uncertainty and Seabed Mining in the Exclusive Economic Zone

Abstract

In 2012 the Exclusive Economic Zone and Continental Shelf (Environmental Affairs) Act (EEZ Act) established a discretionary consenting regime for resource activities and development in New Zealand waters beyond the territorial sea – the exclusive economic zone. The Act sought to strike a balance between economic development and environmental protection by obliging the Environmental Protection Authority (EPA) to consider adaptive management when deciding whether to grant consent to applications with uncertain effects. Adaptive management was seen as a way to temper a precautionary approach to environmental management and to allow for flexible decision making; it was initially welcomed by industry submitters, who have since reversed their views.

This article explores the reversal in industry attitudes towards the use of adaptive management in EEZ seabed mining applications. It discusses the concept of adaptive management and its application in New Zealand, before examining the different provisions in the EEZ Act that both encourage and proscribe the use of adaptive management in different situations. It will use the most recent application by Trans-Tasman Resources Limited (TTRL) to mine ironsands from the seabed in Taranaki to illustrate the difficulties of applying adaptive management in the EEZ. This article argues that the current legislative provisions have caused adaptive management an identity crisis, and left applicants and decision makers navigating murky waters.

Keywords: precautionary principle, adaptive management, environment, EEZ, exclusive economic zone, trans-tasman, environmental protection authority, seabed mining

JEL Classification: K00, K32