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PNG/NZ Licensing & Participation: a comparative legal analysis

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mona matepi

on 23 September 2015

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Transcript of PNG/NZ Licensing & Participation: a comparative legal analysis

Licensing and public participation in NZ and PNG seabed mining regimes: a comparative legal analysis
Overview
Detail 4

1. Offshore mining laws in NZ/PNG
- Permitting process
- Participatory mechanisms

2. Potential threats and impacts
- Hypothesis & Research Qs

3. Comparative analysis
- Conclusion

KEY FEATURES
NZ: licensing requirements

Proposed seabed mining sites

NZ - South Taranaki Basin, North Island
PNG - Solwara 1 - Bismarck Solomon Sea
Rationale:
Both jurisdictions are at advanced stages of seabed mining development

Legal issue
Potential damage to species/habitats (violation of national/international laws)


Relevant Statutes

PNG Mining Act 1992
PNG Environment Act 2000
NZ - EEZ-CS (Env. Effects) Act 2012
Crown Minerals Act 2013
Resource Management Act 1991





PNG -

Mining Act 1992
- 2 permits for offshore mining
* Exploration License -2yrs (renewable 2yr terms)
* Special Mining License - 40yrs (renewable 20yr(terms)
* EIA required - Environment Act 2000

Applications lodged with Mining Registrar
MR confers with Warden, sets dates/venues for hearings
MR notifies applicant, Minister, provincial government/s, general public re:
- proposal advertised via media
- placed at ministry HQ for public viewing
- 3 to 4mths process for non-controversial proposals
- 6mths for SML (depends on several factors)

Permitting...

Permitting procedures - PNG
Permitting procedures
Solwara 1 project
Development Forum
- by invitation only - applicant reps, provincial govts and others the Minister believes will likely be affected. Discussions on key points for negotiation of Mining Development Contract between state and mining company.

Warden's Hearing
- general public - warden must be satisfied that those attending represent the interest of affected community/ies
Participatory mechanisms
South Taranaki Basin
Location and special features ...
Mining Permit - CMA 2013 (issued to TTR early May)
Marine Consent - NZ EEZ-CS (Env.Effects) Act 2012
Resource consent -cross-boundary activities - RMA
Impact Statement required

Public participation
Hearings (for notifiable activities only)
EIA stakeholder consultations
Anyone can make written/oral submission-En/Maori







Potential Threats & Impacts
Participatory mechanisms can significantly improve decision
making if, in soliciting public opinion, there was to be an overarching principle brought to
bear on all participants. This is the principle of
consultation -
redefined, and given legal form.

Hypothesis
1. Perceived distrust in government-industry partnerships as shown in hearing submissions (99% rejected TTR) >24,000 petitioned Nautilus in 2012; new petition to date: 8,000 signatures (ref:ActNow). KASM to date 7,000 signatures...Are these "appropriate levels of public interest" and pass for democratic legitimacy?

3. Seabed mining laws have superceded science; to some extent surpassed social license. "National and int'l policies for conservation have not kept pace with mineral exploration and plans for extraction." (van Dover,C.2011)



Assumptions
Rationale:

Consultation - (debatable) best for public input to permitting procedures. But there are limits in its current application. (ref. previous slides).
* Neglects deep structural factors e.g economic pressures leading to rushed legislation, tokenism in public involvement, compromises
focus on "particular ways of 'talking' about a problem and particular policy responses determine which issues are discussed and which are not." (Bacchi,C.1999).
"there are deficits in how government obtains and uses knowledge and evidence which affects the quality of policy formation." (Gluckman, 2011).
"legislation should give guidance about
when
and
who
to consult in the preparation of an application for consent." (MoE Summary of submissions on EEZ-CS Act, p.27)
How
are people to talk about issues in a consultative framework? What form, manner, or procedure is conducive to maximising public potential for deliberating and contributing to the consensus of opinion.



Research Questions:

1. Do permitting procedures address threats to the seabed - is it adequate?

2. Has public participation so far contributed effectively to meaningful outcomes for safeguarding the seafloor?

3. In the light of a redefined consultation framework - how might its implementation impact on current participatory mechanisms across different jurisdictions? (future work?)

Legal problem
Potential threats to seafloor
- habitat destruction
- species extinction
- other associated effects of sediment
- potential discharge of waste from
operations vessels





Legal response
Tighten regulations on deep sea mining through (2yr deadline!)
* craft & enforce procedures for
consultation as overarching guiding principle for participatory mechanisms
* increase/strengthen marine
reserves - esp.VMEs (vents)
* adopt EU approach (Habitat
Directive).
Purpose of consultation:
The object must be to establish the facts and build consensus. Opinions should be given as contributions to the pool of views/ideas to be deliberated upon in a distinctively non-coercive, non-adversarial process.

Prime requisites for participation - purity of motive, frank & honest discussions, spirit of service and detachment.
Comparative analysis
NZ features: project site -
South Taranaki Basin
Species/habitat loss

Tighten seabed mining regulations -by strengthening participatory mechanisms
- consultation framework procedures (beyond current technical approach to engender attitudinal change).

TANK YU TUMAS!




Conclusion
Full transcript