The Chatham Rise Rock Phosphate Decision: a Regulator’s Perspective by Ross Carter
I was intrigued when I arrived in New Zealand in February 2015 (to study aspects of regulatory decision-making), to media reports of the NZ EPA’s decision to refuse the Chatham Rise Rock Phosphate proposal. NZ has a reputation of very progressive resource and environmental management approaches, commensurate with a small trading nation that capitalises on its international reputation as clean and green.
Weighing up competing interests and issues in any sphere of environmental management is complex. Consequently we have seen the development of many processes to illuminate the issues and interests, to provide for stakeholder input, and to weigh these considerations in arriving at decisions. The diverse field of Environmental Impact Assessment and associated derivatives has occurred in response to this complexity. We’ve also seen the evolution of the key concepts of sustainable development, the precautionary principle and adaptive management, in the face of uncertainty.
As a professional regulatory decision maker I undertook a quick review based on five elements: Governance; Principles; Process; Technical Veracity; and Coherence. Best practice regulation points to decision making independent of politics and sectoral interests. This is critical to retain public confidence and trust in contentious decision making across complex issues and interests. The NZ EPA is established as the decision maker under the legislation and has a clear independence and mandate to do this. A Decision Making Committee (DMC) independent of the NZ EPA itself was delegated to consider the matter. In terms of Governance this appears to meet best practice.
The second dimension I looked at was Principles: that is, the objectives of the decision maker and what had to be considered in making the decision. Parliaments set this at the highest level in western democracies when they enact legislation. Clarity is the Holy Grail; we would have little need for lawyers and Courts if this was easy.
Section 10 of The Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012 (the EEZ Act), sets out the purpose of the legislation in plain English, with the deliberate and elaborated use of the term 'sustainable development'. The decision report incorporates a quote from the Minister for the Environment’s third reading speech that provides further context. Clarity at this level appears sound. Section 59 of the EEZ Act once again provides very clear direction from parliament on the matters which the EPA must consider and weigh in making its decisions, including the ability to use adaptive management approaches where appropriate (Section 64). From a decision maker’s perspective the intent and requirements of the legislation appear well crafted and are set out coherently in the decision.
The Process also appeared to meet best practice elements well providing for: fairness; transparency; exploration of technical expert information and opinion (independent as well as applicant or stakeholder); Maori traditional custodian input; and community and interest group input. Given the comprehensiveness of the process and the timeframes involved I consider this admirable practice.
The final two elements I considered were Technical Veracity, and Coherence of the decision. From a practitioner’s perspective the decision was clearly set out. The technical dimensions of each issue were coherently presented, including competing information. The weighing of this information against the legal framework provided sufficient detail to understand the rationale and finding of the DMC. This included the veracity of the decision to apply, or not to apply, adaptive management approaches.
While uncertainty was a key element of the DMC’s consideration in a number of areas the crux of the decision was that the proposal would destroy substrata (phosphorite nodules) that support an important benthic ecosystem with little, if any, prospect of mitigation. Ultimately the coherence of the decision report supported the decision in a compelling way.
Community and industry responses to the decision are as diverse as the interests involved. Ultimately it is the sphere of elected governments to determine the policy framework and legislation in which decisions of this nature are made. I’ll leave it to others to judge whether the balance is the right one.
In conclusion this decision was competent best practice and demonstrates that NZ deserves its strong reputation in environmental and resource management practice. The one element that may benefit future proposals would be consideration of a strategic planning framework. Broader strategic approaches can save time, cost and effort in directing potential project proposals to the areas of least constraint. Unfortunately such approaches are generally strongly supported at a conceptual level, but inevitably fail in the politics as soon as ink hits paper. It would be good to see NZ succeed where others have not.
Weighing up competing interests and issues in any sphere of environmental management is complex. Consequently we have seen the development of many processes to illuminate the issues and interests, to provide for stakeholder input, and to weigh these considerations in arriving at decisions. The diverse field of Environmental Impact Assessment and associated derivatives has occurred in response to this complexity. We’ve also seen the evolution of the key concepts of sustainable development, the precautionary principle and adaptive management, in the face of uncertainty.
As a professional regulatory decision maker I undertook a quick review based on five elements: Governance; Principles; Process; Technical Veracity; and Coherence. Best practice regulation points to decision making independent of politics and sectoral interests. This is critical to retain public confidence and trust in contentious decision making across complex issues and interests. The NZ EPA is established as the decision maker under the legislation and has a clear independence and mandate to do this. A Decision Making Committee (DMC) independent of the NZ EPA itself was delegated to consider the matter. In terms of Governance this appears to meet best practice.
The second dimension I looked at was Principles: that is, the objectives of the decision maker and what had to be considered in making the decision. Parliaments set this at the highest level in western democracies when they enact legislation. Clarity is the Holy Grail; we would have little need for lawyers and Courts if this was easy.
Section 10 of The Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012 (the EEZ Act), sets out the purpose of the legislation in plain English, with the deliberate and elaborated use of the term 'sustainable development'. The decision report incorporates a quote from the Minister for the Environment’s third reading speech that provides further context. Clarity at this level appears sound. Section 59 of the EEZ Act once again provides very clear direction from parliament on the matters which the EPA must consider and weigh in making its decisions, including the ability to use adaptive management approaches where appropriate (Section 64). From a decision maker’s perspective the intent and requirements of the legislation appear well crafted and are set out coherently in the decision.
The Process also appeared to meet best practice elements well providing for: fairness; transparency; exploration of technical expert information and opinion (independent as well as applicant or stakeholder); Maori traditional custodian input; and community and interest group input. Given the comprehensiveness of the process and the timeframes involved I consider this admirable practice.
The final two elements I considered were Technical Veracity, and Coherence of the decision. From a practitioner’s perspective the decision was clearly set out. The technical dimensions of each issue were coherently presented, including competing information. The weighing of this information against the legal framework provided sufficient detail to understand the rationale and finding of the DMC. This included the veracity of the decision to apply, or not to apply, adaptive management approaches.
While uncertainty was a key element of the DMC’s consideration in a number of areas the crux of the decision was that the proposal would destroy substrata (phosphorite nodules) that support an important benthic ecosystem with little, if any, prospect of mitigation. Ultimately the coherence of the decision report supported the decision in a compelling way.
Community and industry responses to the decision are as diverse as the interests involved. Ultimately it is the sphere of elected governments to determine the policy framework and legislation in which decisions of this nature are made. I’ll leave it to others to judge whether the balance is the right one.
In conclusion this decision was competent best practice and demonstrates that NZ deserves its strong reputation in environmental and resource management practice. The one element that may benefit future proposals would be consideration of a strategic planning framework. Broader strategic approaches can save time, cost and effort in directing potential project proposals to the areas of least constraint. Unfortunately such approaches are generally strongly supported at a conceptual level, but inevitably fail in the politics as soon as ink hits paper. It would be good to see NZ succeed where others have not.