Offshore Renewable Energy Bill
Offshore Renewable Energy Bill
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Offshore Renewable Energy Bill
Offshore Renewable Energy Bill
Government Bill
102—1
Explanatory note
General policy statement
Renewable energy generated offshore, including from offshore wind farms, could support New Zealand to meet its long-term energy needs, including the transition to net-zero carbon emissions by 2050.
The Offshore Renewable Energy Bill (the Bill) establishes a legislative regime to govern the construction, operation, and decommissioning of offshore renewable energy developments. The regime aims to fill a gap in the current legislative environment, which does not provide potential developers with sufficient certainty to invest in offshore renewable energy projects. The Bill seeks to—
give greater certainty for developers to invest in offshore renewable energy developments; and
allow the selection of offshore renewable energy developments that best meet New Zealand’s interests; and
manage the risks to the Crown and the public from offshore renewable energy developments.
A bespoke legislative regime is considered the most efficient way to achieve these objectives. The Government has committed to the introduction of this regime as part of its Electrify NZ work programme, which has the goal of doubling renewable energy generation by 2050.
Key functions of Bill
The Bill meets the objectives by creating—
a two-stage permitting regime designed to give potential developers greater certainty and to enable the selection of developments that best meet New Zealand’s interests; and
consultation requirements to ensure relevant interests are considered, including specific requirements for consultation with Māori groups; and
decommissioning and financial security obligations to ensure the decommissioning of offshore renewable energy infrastructure occurs at the expense of permit holders and owners of related transmission infrastructure; and
the ability to have safety zones around offshore renewable energy infrastructure to protect infrastructure and people; and
provisions to enable the administration, monitoring, and enforcement of the regime and associated offences and penalties.
Feasibility and commercial permitting regime
The Bill creates the following 2 classes of permits, which will be awarded by the Minister for Energy (the Minister):
a feasibility permit will give the holder the exclusive ability to apply for a commercial permit in an area, as well as the right to apply for relevant resource or marine consents in the same area. A feasibility permit will give the holder certainty that no other offshore renewable energy developers will be approved to develop the same site while they undertake feasibility studies. Feasibility permits will be subject to use it or lose it requirements and can be revoked if certain milestones are not met:
a commercial permit must be obtained before construction begins. The Minister may impose conditions on the permit and it provides a mechanism for imposing, monitoring, and enforcing key obligations on the permit holder for the operational life of the development.
The Bill provides for permits to be varied, transferred, surrendered, and revoked, and for a change in significant influence over a permit holder to occur, provided the relevant approvals are obtained.
The Bill does not replace or duplicate existing regulatory requirements. For example, the consenting requirements under the Resource Management Act 1991 and the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012 will still apply.
Assessment of permit applications
The assessment of permit applications is intended to ensure that permits are awarded to the projects that are likely to deliver benefits for New Zealand and that risks are identified and managed.
Feasibility permits
Feasibility permits may be awarded following an application round. Proposed projects must be likely to deliver benefits for New Zealand. Applicants will need to meet a minimum eligibility threshold and establish that they have the technical and financial capability to install, operate, maintain, and decommission the proposed infrastructure.
In considering feasibility permit applications, the Minister will be required to, among other things, have regard to—
any significant risks to national security or public order posed by the applicant; and
the impact on Treaty settlements; and
the applicant’s approach to managing existing rights and interests in the area.
The Minister may launch an application round by giving public notice specifying the relevant geographic area (or areas) and any limitations that apply.
Where there are competing feasibility permit applications, the Minister may award a feasibility permit to the application or applicant with the most merit. Where there are applications for overlapping permit areas, the Minister may also invite 1 or more applicants to revise their application(s).
Commercial permits
Only the feasibility permit holder may apply for a commercial permit for the permit area covered by the feasibility permit.
When considering commercial permit applications, the Minister must be satisfied, among other things, that the applicant—
has the technical and financial capability to install, operate, maintain, and decommission the proposed infrastructure, and is ready to carry out the proposed development plan; and
is highly likely to comply with the requirements of the regime; and
has, or will be able to, put in place an acceptable financial security arrangement for decommissioning.
The Minister will also consider whether there are any changes to the proposed development that are material to the benefits that were assessed at the feasibility stage and whether the applicant poses any significant risks to national security or public order.
Consultation requirements to ensure relevant interests are considered
The Bill includes consultation requirements, including requirements relating to consultation with relevant Māori groups.
Applicants for feasibility and commercial permits must consult with relevant Māori groups ahead of submitting their applications. The Minister must also consult those Māori groups before granting any permit.
The Minister must give public notice of all feasibility permit applications that are being considered and provide a reasonable opportunity for any person who wishes to make a submission on a feasibility permit application to do so. The Minister must also give public notice after accepting a commercial permit application but (beyond consultation with specific Māori groups) need not otherwise consult.
Decommissioning and financial security obligations
The Bill creates obligations on permit holders and owners of related transmission infrastructure to decommission their offshore renewable energy infrastructure at the end of its life. The Bill creates a related requirement to put in place and maintain financial securities, which cover the cost to the Crown of decommissioning the infrastructure in the event that the person with the obligation to decommission fails to do so.
Safety zones to protect infrastructure and people
The Bill will enable safety zones of up to 500 metres to be established around generation infrastructure and substations, which will prohibit unauthorised people or vessels from entering or undertaking certain activities in the area. Applicants for safety zones must have consulted Maritime New Zealand and anyone likely to be affected by the proposed safety zone.
Provisions to enable administration, monitoring, and enforcement of regime and associated offences and penalties
The Bill enables the administration, monitoring, and enforcement of the regime by the Ministry of Business, Innovation, and Employment. It also provides for recovery of the costs of administering the regime through fees and levies.
The Bill provides for enforcement officers and safety zone officers who are empowered to undertake a wide range of compliance and enforcement actions. The Bill includes a range of offences and penalties for various breaches of the regime. Penalties include fines ranging from $3,000 to $10 million, pecuniary penalties, imprisonment for a term not exceeding 2 years, or the revocation of a permit.
Departmental disclosure statement
The Ministry of Business, Innovation, and Employment is required to prepare a disclosure statement to assist with the scrutiny of this Bill. The disclosure statement provides access to information about the policy development of the Bill and identifies any significant or unusual legislative features of the Bill.
A copy of the statement can be found at http://legislation.govt.nz/disclosure.aspx?type=bill&subtype=government&year=2024&no=102
Regulatory impact statement
The Ministry of Business, Innovation, and Employment produced a regulatory impact statement on 16 April 2024 to help inform the main policy decisions taken by the Government relating to the contents of this Bill.
A copy of this regulatory impact statement can be found at—
Clause by clause analysis
Clause 1 is the Title clause.
Clause 2 provides that the Bill commences on the day after Royal assent.
Part 1Preliminary provisions
Part 1 contains preliminary provisions.
It sets out the purpose of the Bill and defines various key terms used in the Bill, including several terms involving offshore renewable energy (ORE), such as ORE development, ORE infrastructure, ORE generation infrastructure activities, and ORE transmission infrastructure activities.
It also—
creates obligations on persons exercising functions, duties, and powers under the Bill to act consistently with Treaty settlements and recognised customary rights; and
provides for the Bill to bind the Crown; and
defines the area that the Bill applies to as New Zealand’s territorial sea and exclusive economic zone; and
sets out how the geodetic position (co-ordinates) of any point, line, or area are described for the purposes of the Bill.
Part 2Regime for offshore renewable energy permits and infrastructure protection
In summary, Part 2 deals with—
the purpose of feasibility permits and commercial permits (subpart 1); and
the granting of permits (subparts 2 and 3); and
various matters relating to the life of those permits (subpart 4); and
the ability to create safety zones around relevant ORE infrastructure (subpart 5).
Part 2 creates a permitting regime to enable the 2 kinds of permits to be awarded, namely, feasibility permits, followed by commercial permits. The permitting regime does not supersede or replace any other legislative requirement, including requirements under the Resource Management Act 1991 (the RMA) and the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012 (the EEZA), for a person to obtain a resource consent or marine consent (or both) for relevant ORE-related activities. This means a person wishing to construct and operate ORE infrastructure must obtain a feasibility permit, a commercial permit, and all other necessary consents and regulatory approvals.
Subpart 1—Preliminary provisions
This subpart provides an outline of Part 2. It describes the purpose of feasibility permits and commercial permits and establishes the core prohibition on undertaking ORE generation infrastructure activities under a resource consent or marine consent without a commercial permit.
Subpart 2—Feasibility permits
Subpart 2 provides for the granting of feasibility permits. A feasibility permit enables the holder to—
apply for a resource consent or marine consent (or both) under the RMA and EEZA for ORE generation infrastructure activities in the permit area (or part of the permit area); and
have an exclusive right to apply for a commercial permit in the permit area (or part of the permit area) if the permit holder chooses to do so.
A feasibility permit gives the holder certainty that no other ORE developers will be awarded a feasibility permit or consents for the construction and operation of ORE infrastructure for the same area while their permit is valid, but does not prevent other non-ORE-related authorised activities from being undertaken within the relevant permit area.
Subpart 2 contains provisions relating to—
the launch of a publicly notified application round for feasibility permits; and
the requirements and criteria for applications; and
how the Minister will determine applications, including mandatory considerations for those decisions relating to matters such as the nature of the development and the suitability of the permit holder; and
the contents, duration, and conditions of feasibility permits.
Subpart 3—Commercial permits
Subpart 3 provides for the granting of commercial permits. A commercial permit enables the permit holder to exercise or give effect to their resource or marine consent to undertake ORE generation infrastructure activities as authorised by those consents.
Subpart 3 contains similar procedural and administrative provisions in relation to applications for commercial permits as subpart 2 contains in relation to feasibility permits.
Subpart 4—Provisions relating to both feasibility permits and commercial permits
Subpart 4 covers matters relating to the life of both feasibility permits and commercial permits. These include—
requirements that apply to every permit holder; and
a permit holder’s obligation to comply with permit conditions at all times; and
permit variations (including changes to a permit area, duration, and conditions); and
transfers of permits and changes in significant influence over a permit holder; and
revocation and surrender of permits.
Subpart 5—Protection of infrastructure
Subpart 5 provides the Minister with a power to declare a safety zone in relation to an ORE development by issuing a notice. The notices will be secondary legislation, must be presented to the House of Representatives, and will be disallowable.
A safety zone is an area around ORE generation infrastructure or an ORE substation in which prohibitions or restrictions on access and activity apply in order to protect that infrastructure and activities occurring there. This subpart sets out the type of restrictions that may be declared, eligibility criteria for applications for safety zones, and the process for granting an application.
Part 3Decommissioning of ORE infrastructure
Subpart 1—Preliminary provisions
This subpart provides an outline of Part 3. Part 3 imposes dual obligations on commercial permit holders to decommission ORE generation infrastructure and to put in place and maintain financial security that is sufficient to cover the estimated cost to the Crown of decommissioning the infrastructure in the event that the permit holder (or another person obliged to decommission the infrastructure) is unable to do so.
Subpart 2—Decommissioning obligation
Subpart 2 sets out the details of the decommissioning obligation. A person who holds a commercial permit has an obligation to decommission all of the ORE generation infrastructure that is attributable to the ORE infrastructure generation activities under the permit. Unless otherwise required, decommissioning will generally involve removing the infrastructure and restoring the site of the infrastructure. The obligation must be completed before the commercial permit has expired or is surrendered (or at an earlier time required by regulations made under the Bill). A person who owns ORE transmission infrastructure connected with an ORE development has a similar obligation. In the case of a permit transfer, there will be a limited trailing liability on former permit holders that continues until the Minister is satisfied the new permit holder’s financial security has accrued to the total amount required, or the Minister agrees before this point to release former permit holders from the obligation (see clause 72).
This subpart also includes requirements for persons who have decommissioning obligations to submit a decommissioning proposal to the Minister when applying for a commercial permit, and sets out information that must be included in the proposal. Those persons must also submit to the Minister cost estimates for all anticipated decommissioning work, completion reports when the decommissioning work has occurred, and information to enable the Minister to monitor the persons’ financial positions.
Subpart 3—Obligation to provide Crown with financial security
This subpart provides for an obligation on persons who have an obligation to decommission to put in place and maintain financial security for the performance of the decommissioning obligation. That financial security will be available to the Crown in the event the permit holder fails to decommission. Those persons must put in place and maintain an acceptable financial security arrangement. These obligations may continue after the permit is no longer current or the person ceases to be the commercial permit holder or an ORE transmission infrastructure owner. A person’s financial security obligation ceases when the person’s decommissioning obligation ceases (unless released earlier by the Minister).
This subpart also sets out the process for reaching an acceptable financial security arrangement and for how it may be altered. It also provides for financial assessments of the obliged person.
Subpart 4—Miscellaneous provisions about decommissioning
Subpart 4 includes provisions relating to decommissioning of ORE transmission infrastructure, the continued application of relevant obligations under other enactments, and joint and several liability.
Part 4Administration and enforcement
Subpart 1—Administration
Subpart 1 provides for various elements of the administration of the regime. It includes provisions relating to—
certain functions of the chief executive, and the Minister’s power to delegate functions, duties, or powers to the chief executive; and
the role and powers of enforcement officers, who are employees of a government department, Crown entity, or local authority who are appointed by the chief executive to carry out enforcement functions under the Bill; and
the role of safety zone officers, who include constables and those in charge of a New Zealand Defence Force ship, and the powers of those officers, which relate to enforcing restrictions applying in safety zones; and
the requirement for the chief executive to maintain a register of permits; and
record-keeping requirements for permit holders; and
provisions about the use, disclosure, publication, and sharing of information related to the regime; and
general provisions applying to any application under the Bill; and
the service of documents.
Subpart 2—Enforcement
Subpart 2 provides for various compliance and enforcement mechanisms. These include compliance notices, enforceable undertakings, and civil pecuniary penalties.
This subpart also sets out criminal offences that apply under the Bill, including for—
giving effect to a resource or marine consent by undertaking ORE generation infrastructure activities without a commercial permit; and
a person making a change in who has a significant influence over a permit holder without the Minister’s approval; and
a person failing to notify the Minister of a change in circumstance or a person’s significant influence over a permit holder; and
a person entering a safety zone or carrying out an activity in a safety zone in contravention of the restrictions declared in relation to the safety zone; and
knowingly failing to meet a decommissioning obligation or a financial security obligation.
Subpart 3—Appeals and regulations
Subpart 3 provides a right of appeal to the High Court on a question of law against certain decisions under the Bill.
This subpart also provides for regulations to be made for the purposes of the Bill, including—
providing for anything that the Bill says must or may be provided for by regulations made under the Bill:
prescribing matters relating to the granting of permits (such as, requirements for permits, matters for the Minister or chief executive to have regard to, persons to be consulted, and conditions for permits):
prescribing the manner in which things may be done (such as, the manner and form of doing things, information that must be provided in connection with doing things, and fees that must be paid in connection with doing things):
prescribing information that must be included or provided for the purposes of the Bill:
imposing a levy on permit holders and ORE transmission infrastructure owners for the purpose of recovering all or part of the reasonable direct and indirect costs of administering the Bill:
prescribing matters relating to levies (such as, specifying permit holders or ORE transmission infrastructure owners, or classes of them, who are liable to pay a levy, specifying the amount or method of calculation of a levy, and specifying how and when a levy is to be paid):
requiring payment of fees in connection with an application or request under the Bill:
prescribing matters relating to fees (such as the amount or manner of ascertaining the amount of fees).
The Minister must not recommend that regulations for the purpose of prescribing matters relating to the granting of permits be made unless the Minister has consulted persons the Minister considers likely to be significantly affected by the regulations and the Minister is satisfied the regulations are necessary or desirable.
The regulations are secondary legislation and will be published on the legislation website, presented to the House of Representatives, and disallowable.
Part 5Amendments to other Acts
Part 5 includes subparts amending the EEZA and RMA.
The EEZA and RMA are amended to require applicants for resource or marine consents related to ORE generation infrastructure activities to hold a current feasibility permit or commercial permit for the relevant area. The amendments also provide for the automatic cancellation of a consent if and when the holder of the consent ceases to be the permit holder of a current commercial permit by reason of the expiry or revocation or surrender in full of the commercial permit.
Further amendments to the EEZA require that if an application for a marine consent under that Act relates to an activity to decommission ORE infrastructure, the application must include a decommissioning plan that has been accepted by the Environmental Protection Authority. The amendments set out what must be included in the decommissioning plan, how the plan will be assessed, how plans may be amended, and public consultation requirements.
Hon Simeon Brown
Offshore Renewable Energy Bill
Government Bill
102—1
Contents
The Parliament of New Zealand enacts as follows:
1 Title
This Act is the Offshore Renewable Energy Act 2024.
2 Commencement
This Act comes into force on the day after Royal assent.
Part 1 Preliminary provisions
3 Purpose
The purpose of this Act is to—
(a)
give greater certainty for developers to invest in ORE developments; and
(b)
allow the selection of ORE developments that best meet New Zealand’s national interests; and
(c)
manage the risks to the Crown and the public from ORE developments.
4 Interpretation
In this Act, unless the context otherwise requires,—
acceptable financial security arrangement means a financial security arrangement that the Minister is satisfied operates in an acceptable way, and provides an acceptable level of security to the Crown, in accordance with subpart 3 of Part 3
application round means an application round for feasibility permits of which public notice has been given under subpart 2 of Part 2
cable has the meaning set out in section 2 of the Submarine Cables and Pipelines Protection Act 1996
change in significant influence has the meaning set out in section 44
chief executive means the chief executive of the Ministry
commercial permit means a permit granted under subpart 3 of Part 2
compliance notice means a notice issued under section 128(2)
compliance period means the period stated in the compliance notice under section 129
consent authority has the meaning set out in section 2(1) of the Resource Management Act 1991
current, in relation to a permit and a permit area or a part of a permit area, means that the permit applies to that area or part and has not expired, or been surrendered or revoked, in respect of that area or part, as the case may be
customary marine title area means a customary marine title area as defined in—
(a)
section 9(1) of the Marine and Coastal Area (Takutai Moana) Act 2011; or
(b)
section 9 of the Ngā Rohe Moana o Ngā Hapū o Ngāti Porou Act 2019
customary marine title group means—
(a)
a customary marine title group as defined in section 9(1) of the Marine and Coastal Area (Takutai Moana) Act 2011; or
(b)
a customary marine title hapū as defined in section 9 of the Ngā Rohe Moana o Ngā Hapū o Ngāti Porou Act 2019
decommissioning has the meaning set out in section 73 and decommission has a corresponding meaning
decommissioning obligation means the obligation in subpart 2 of Part 3 to carry out, and meet the costs of, decommissioning any infrastructure
decommissioning proposal means a proposal that complies with subpart 2 of Part 3
development plan means a programme of work—
(a)
that, in the case of a permit application, is proposed to be undertaken by the applicant for the permit; and
(b)
that, in the case of a permit, is required to be undertaken by the permit holder in accordance with the permit
end date or permit end date means the last day on which a permit is current
enforcement officer means an officer appointed by the chief executive under section 101 who may perform or exercise the functions, duties, and powers of an enforcement officer as set out in subpart 1 of Part 4
evidential material has the meaning set out in section 3(1) of the Search and Surveillance Act 2012
exclusive economic zone means New Zealand’s exclusive economic zone as defined in section 9 of the Territorial Sea, Contiguous Zone, and Exclusive Economic Zone Act 1977
feasibility permit means a permit granted under subpart 2 of Part 2
financial security arrangement means 1 or more financial securities that secure the performance of a person’s decommissioning obligation and may—
(a)
include financial securities of the same kind or different kinds:
(b)
relate to 1 or more permits:
(c)
be held by the permit holder or other persons:
(d)
include any other matters relating to the securities that comprise the arrangement or how the arrangement must operate
financial security obligation means the obligation to provide security to the Crown in subpart 3 of Part 3
foreign ship has the meaning set out in section 2(1) of the Maritime Transport Act 1994
issuing officer has the meaning set out in section 3(1) of the Search and Surveillance Act 2012
marine consent has the meaning set out in section 4(1) of the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012
marine consent authority has the meaning set out in section 4(1) of the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012
master has the meaning set out in section 2(1) of the Maritime Transport Act 1994
minimum eligibility criteria,—
(a)
in respect of a feasibility permit, means the eligibility criteria in section 15; and
(b)
in respect of a commercial permit, means the eligibility criteria in section 25
official geodetic datum means the New Zealand Geodetic Datum 2000 (NZGD2000) as defined in LINZS25000: Standard for New Zealand Geodetic Datum 2000
ORE means offshore renewable energy
ORE development or development—
(a)
means—
(i)
the ORE generation infrastructure that is, or is proposed to be, constructed, installed, operated, maintained, or decommissioned under a permit; and
(ii)
the ORE generation infrastructure activities that are, or are proposed to be, carried out under a permit in the permit area by or on behalf of the permit holder; and
(b)
includes the ORE transmission infrastructure that is connected to that ORE generation infrastructure and the related ORE transmission infrastructure activities
ORE feasibility activities means activities that are for the purpose of assessing the feasibility of ORE infrastructure activities
ORE generation infrastructure—
(a)
means any infrastructure, structure, or installation—
(i)
that is built or used (or is proposed to be built or used) in the territorial sea or exclusive economic zone for the purpose of generating energy from a renewable energy resource in that sea or zone; and
(ii)
that is (or is proposed to be) for commercial use (in accordance with a meaning of commercial use prescribed in the regulations (if any)); but
(b)
does not include ORE transmission infrastructure
ORE generation infrastructure activities—
(a)
means—
(i)
the construction, installation, operation, maintenance, or decommissioning of ORE generation infrastructure; and
(ii)
all related or supporting activities related to those activities; but
(b)
does not include ORE transmission infrastructure activities or ORE feasibility activities
ORE infrastructure means ORE generation infrastructure and ORE transmission infrastructure
ORE infrastructure activities means ORE generation infrastructure activities and ORE transmission infrastructure activities
ORE substation means a structure connected to ORE generation infrastructure that is built or used for the purpose of storing, transmitting, transforming, or conveying energy from or through the territorial sea or exclusive economic zone
ORE transmission infrastructure—
(a)
means any infrastructure, structure, or installation (including a cable, pipeline, or ORE substation) that—
(i)
is built or used (or is proposed to be built or used) for the purpose of storing, transmitting, transforming, or conveying energy from or though the territorial sea or exclusive economic zone; and
(ii)
is (or is proposed to be) for commercial use (in accordance with a meaning of commercial use prescribed in the regulations (if any)); and
(iii)
is (or is proposed to be) connected to ORE generation infrastructure; but
(b)
does not include—
(i)
ORE generation infrastructure; and
(ii)
electricity lines services within the meaning of section 54C(1) of the Commerce Act 1986
ORE transmission infrastructure activities means the construction, installation, operation, maintenance, or decommissioning of ORE transmission infrastructure
owner, in relation to ORE transmission infrastructure, means the person or persons who own that infrastructure (which must be determined in accordance with the regulations (if any))
pecuniary penalty means a penalty imposed under section 158
pecuniary penalty order means an order made under section 158
permit means a feasibility permit or a commercial permit, as the case may be
permit application means an application for a feasibility permit or a commercial permit, as the case may be
permit area means the area of the exclusive economic zone or the territorial sea (or both) to which a permit application or a permit applies
permit holder means the holder of a feasibility permit or a commercial permit, as the case may be
person who has a decommissioning obligation, in respect of any ORE infrastructure, means a person required by section 70 or 71 to carry out, and meet the costs of, the decommissioning of that infrastructure
pipeline has the meaning set out in section 2 of the Submarine Cables and Pipelines Protection Act 1996
post-settlement governance entity—
(a)
means a body corporate or the trustees of a trust established, for the purpose of receiving redress in the Treaty settlement of a claimant group,—
(i)
by that group; or
(ii)
by or under an enactment or order of a court; and
(b)
includes—
(i)
an entity established to represent a collective or combination of claimant groups; and
(ii)
an entity controlled by an entity referred to in paragraph (a); and
(iii)
an entity controlled by a hapū to which redress has been transferred by an entity referred to in paragraph (a)
protected customary rights area means—
(a)
a protected customary rights area as defined in section 9(1) of the Marine and Coastal Area (Takutai Moana) Act 2011; or
(b)
an area in which a protected customary activity, as defined in section 9 of the Ngā Rohe Moana o Ngā Hapū o Ngāti Porou Act 2019, is recognised under that Act
protected customary rights group means—
(a)
a protected customary rights group as defined in section 9(1) of the Marine and Coastal Area (Takutai Moana) Act 2011; or
(b)
a protected customary activity hapū as defined in section 9 of the Ngā Rohe Moana o Ngā Hapū o Ngāti Porou Act 2019
register means the register of permits maintained under section 113
regulations means regulations made under this Act
renewable energy resource means any one of the following resources from which energy may be obtained:
(a)
wind:
(b)
waves:
(c)
tides:
(d)
ocean currents:
(e)
light or heat from the sun:
(f)
rain:
(g)
geothermal heat:
(h)
a resource prescribed by the regulations
resource consent has the meaning set out in section 87 of the Resource Management Act 1991 and includes all conditions to which the consent is subject under that Act
safety zone means an area declared as a safety zone by the Minister in accordance with section 63
safety zone officer means a person specified in section 109 who may exercise the powers of a safety zone officer as set out in section 110
ship has the meaning set out in section 2(1) of the Maritime Transport Act 1994
start date or permit start date means the first day on which a permit is current
territorial sea means the territorial sea of New Zealand as defined in section 3 of the Territorial Sea, Contiguous Zone, and Exclusive Economic Zone Act 1977
Treaty settlement means—
(a)
a Treaty settlement Act; or
(b)
a Treaty settlement deed
Treaty settlement Act means—
(a)
an Act listed in Schedule 3 of the Treaty of Waitangi Act 1975; or
(b)
any other Act that provides redress for Treaty of Waitangi claims, including Acts that provide collective redress or participation arrangements for claimant groups whose claims are, or are to be, settled by another Act, including—
(i)
the Maori Commercial Aquaculture Claims Settlement Act 2004:
(ii)
the Ngā Mana Whenua o Tāmaki Makaurau Collective Redress Act 2014:
(iii)
the Nga Wai o Maniapoto (Waipa River) Act 2012:
(iv)
the Ngati Tuwharetoa, Raukawa, and Te Arawa River Iwi Waikato River Act 2010:
(v)
the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 and secondary legislation that gives effect to section 10 of that Act
Treaty settlement deed—
(a)
means a deed or other agreement that—
(i)
has been signed by or on behalf of a Minister of the Crown and representatives of a group of Māori; and
(ii)
is in settlement of the claims of that group or in express anticipation, or on account, of that settlement; and
(b)
to avoid doubt, includes a deed or other agreement of the kind described in paragraph (a) that relates to the claims of a collective or combination of Māori groups; but
(c)
does not include an agreement in principle or any document that is preliminary to a signed and ratified deed
Treaty settlement entity means any of the following:
(a)
a post-settlement governance entity:
(b)
a board, trust, committee, authority, or other body, incorporated or unincorporated, that is recognised in or established under any Treaty settlement Act:
(c)
an entity or a person that is authorised by a Treaty settlement Act to act for a natural feature with legal personhood:
(d)
Te Ohu Kai Moana or a mandated iwi organisation (as those terms are defined in section 5(1) of the Maori Fisheries Act 2004):
(e)
an iwi aquaculture organisation (as defined in section 4 of the Maori Commercial Aquaculture Claims Settlement Act 2004).
5 Transitional, savings, and related provisions
The transitional, savings, and related provisions (if any) set out in Schedule 1 have effect according to their terms.
6 Obligation relating to Treaty settlements and recognised customary rights
(1)
All persons performing and exercising functions, duties, and powers under this Act must act in a manner that is consistent with—
(a)
the obligations arising under existing Treaty settlements; and
(b)
customary rights recognised under—
(i)
the Marine and Coastal Area (Takutai Moana) Act 2011:
(ii)
the Ngā Rohe Moana o Ngā Hapū o Ngāti Porou Act 2019.
(2)
To avoid doubt, subsection (1) does not apply to a court or a person exercising a judicial power or performing a judicial function or duty.
(3)
In this section, existing Treaty settlements means Treaty settlements that exist at the time the relevant function, duty, or power is performed or exercised (rather than only those that exist at the commencement of this Act).
7 Act binds the Crown
This Act binds the Crown.
8 Area of application
This Act applies to ORE developments in—
(a)
the territorial sea; and
(b)
the exclusive economic zone.
9 Describing geodetic position
For the purposes of this Act, a permit area, safety zone, or other relevant point, line, or area must be described—
(a)
using geographical co-ordinates in accordance with the official geodetic datum; or
(b)
in accordance with any requirements prescribed by the regulations.
Part 2 Regime for offshore renewable energy permits and infrastructure protection
Subpart 1—Preliminary provisions
10 Outline of this Part
(1)
Subparts 2 and 3 provide for the granting of feasibility permits and commercial permits in respect of ORE developments.
(2)
Subpart 4 provides for various matters relating to those permits.
(3)
Subpart 5 provides a system to enable the protection of ORE infrastructure in those developments.
(4)
This Part does not limit requirements under other Acts (including under the Resource Management Act 1991, the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012, or a Treaty settlement Act).
11 Purpose of feasibility permits and commercial permits
(1)
The purpose of a feasibility permit is to provide for the permit holder to—
(a)
assess the feasibility of an ORE development that the permit holder proposes to carry out in the permit area; and
(b)
have an exclusive ability to apply for a commercial permit in relation to that proposed development in the permit area if the permit holder chooses to do so.
Guidance note
A person must have a feasibility permit before they can apply for—
a resource consent for ORE generation infrastructure activities (see section 88AA of the Resource Management Act 1991):
a marine consent for ORE generation infrastructure activities (see section 38A of the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012):
a commercial permit (see section 25(b)).
(2)
The purpose of a commercial permit is to enable the permit holder to give effect to a resource consent or marine consent that authorises ORE generation infrastructure activities.
12 Prohibition on undertaking ORE generation infrastructure activities unless person is holder of commercial permit
A person must not give effect to a resource consent or marine consent by undertaking any ORE generation infrastructure activities in respect of a proposed ORE development unless they are a commercial permit holder in respect of the development.
Guidance note
See section 144, which provides that a person who is not a commercial permit holder commits an offence against this Act if they contravene this section.
See also section 38B of the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012 and section 88AB of the Resource Management Act 1991, which provide that consents are automatically cancelled if the commercial permit expires or is revoked or surrendered in full.
Subpart 2—Feasibility permits
13 Application round for feasibility permits
(1)
An application for a feasibility permit may be made only during an application round.
(2)
The Minister may launch an application round by giving public notice that specifies—
(a)
the geographic area or areas in respect of which applications are invited (which may be in the territorial sea and the exclusive economic zone around the whole of New Zealand); and
(b)
if applicable, any limitations to which applications are subject (for example, as to the type of technology and generation capacity).
(3)
The public notice, or any guidance issued by the Minister, may specify any terms of the application round, including—
(a)
how applications may be made:
(b)
how public notice will be given, and consultation will be carried out, under section 17:
(c)
how applications will be considered under sections 18 to 20.
(4)
The public notice must specify any matters prescribed by the regulations and must be given in accordance with any requirements under the regulations.
(5)
The Minister may amend or revoke the notice, or any guidance, before the time by which applications must be received expires.
14 Pre-application consultation requirements for feasibility permit applications
(1)
The person who intends to make an application for a feasibility permit must consult the following groups before making the application:
(a)
any relevant iwi authorities, hapū, and Treaty settlement entities, including—
(i)
iwi authorities and groups that represent hapū that are parties to relevant Mana Whakahono ā Rohe or joint management agreements; and
(ii)
the tangata whenua of any area within the permit area that is a taiāpure-local fishery, a mātaitai reserve, or an area that is subject to bylaws made under Part 9 of the Fisheries Act 1996; and
(b)
any relevant protected customary rights groups, customary marine title groups, and applicant groups with applications for customary marine title under the Marine and Coastal Area (Takutai Moana) Act 2011; and
(c)
ngā hapū o Ngāti Porou, if the permit area is within or adjacent to, or the development would directly affect, ngā rohe moana o ngā hapū o Ngāti Porou.
(2)
An applicant must include in their application a record of the consultation and a statement explaining how it has informed the proposed development.
15 Minimum eligibility criteria for applicants for feasibility permits
A person is eligible to apply to the Minister for a feasibility permit during an application round if—
(a)
the person has undertaken the consultation required by section 14 (which relates to consultation with Māori groups); and
(b)
the person is a single entity that is either a body corporate that is incorporated in New Zealand or an overseas company that is registered under Part 18 of the Companies Act 1993; and
(c)
the person is not an applicant for another permit for the same type of technology in respect of the same region (where region has the same meaning as in section 2(1) of the Local Government Act 1974 and includes the adjacent area of the exclusive economic zone).
Guidance note
See section 121 (which relates to rejection of non-complying applications).
16 Requirements for applications for feasibility permits
Every application for a feasibility permit must—
(a)
be in respect of a permit area—
(i)
that is wholly within the geographic area to which the application round applies; and
(ii)
that is a reasonable size for the proposed ORE generation infrastructure; and
(b)
contain, or be accompanied by, the information required by the terms of the application round as specified in section 13(3); and
(c)
include a development plan, which must contain the relevant information prescribed in the regulations to enable the application to be considered and measurable permit conditions to be applied; and
(d)
otherwise be made in the manner prescribed by the regulations.
17 Minister’s process before feasibility permits can be granted
Before granting any application for a feasibility permit in an application round, the Minister must—
(a)
give public notice of a summary of the proposed developments being considered, including the permit areas to which those applications relate; and
(b)
allow any person who wishes to make a submission about a proposed development a reasonable opportunity to do so; and
(c)
consult the persons referred to in section 14 (which relates to consultation with Māori groups).
18 Determining applications for feasibility permits
(1)
The Minister may—
(a)
grant an application for a feasibility permit, in whole or in part, and issue a permit; or
(b)
reject the application.
(2)
The Minister may reject an application if the Minister considers that the grant of a permit would or could pose a significant risk to national security or public order and that risk cannot be adequately avoided, mitigated, or managed.
(3)
This section does not limit the grounds on which the Minister may reject an application.
(4)
This section is subject to sections 17 and 19.
19 Mandatory considerations for granting application for feasibility permits
(1)
The Minister may grant an application for a feasibility permit if the Minister is satisfied that—
Development requirements
(a)
the proposed development is likely to deliver benefits for New Zealand; and
(b)
no other feasibility permit or commercial permit is current in respect of the proposed permit area; and
(c)
the proposed development plan is consistent with the purpose of the proposed permit, the purpose of this Act, and good industry practice in respect of the proposed ORE generation activities; and
Permit holder suitability requirements
(d)
the applicant has, or is likely to have, the technical and financial capability to install, operate, maintain, and decommission the proposed ORE generation infrastructure; and
(e)
the applicant is highly likely to comply, on an ongoing basis, with the requirements under this Act and the regulations.
(2)
In determining an application, the Minister must have regard to the following additional considerations:
(a)
whether the applicant poses any significant risks to national security or public order; and
(b)
the applicant’s compliance record in New Zealand and internationally; and
(c)
the applicant’s consultation with the persons referred to in section 14 (which relates to consultation with Māori groups); and
(d)
the impact of granting the permit on Treaty settlements, protected customary rights areas, and any other Māori groups with relevant interests; and
(e)
the applicant’s approach to identifying, engaging with, and managing existing rights and interests in the proposed permit area; and
(f)
any submissions made in relation to the application; and
(g)
any other considerations that are prescribed by the regulations or specified in the terms of the application round.
20 Position if 2 or more competing applications
(1)
If there are competing applications in an application round in respect of which the Minister may grant a feasibility permit, the Minister may do either or both of the following:
(a)
grant 1 or more permits on the basis of which applications have the most merit and which applicants are most suitable to hold a permit:
(b)
if there are 2 or more applications in an application round that relate to the same permit area, invite any of the applicants to revise their application to the extent needed to resolve the competition for the same permit area (subject to section 16(a)).
(2)
The Minister must determine an application—
(a)
in accordance with the ranking, priorities, or weighting of factors that are contained in the regulations or the terms of the application round as specified under section 13(3); and
(b)
in the manner, and within any time frame, prescribed by the regulations or those terms.
21 What feasibility permits must specify
A feasibility permit must specify all of the following:
(a)
the name of the permit holder:
(b)
the proposed amount of power to be generated under a commercial permit, if granted:
(c)
the permit area:
(d)
the start date and end date of the permit:
(e)
the conditions of the permit:
(f)
any other matters prescribed by the regulations.
22 Duration of feasibility permits
(1)
A feasibility permit has a duration of 7 years starting on the start date.
(2)
However,—
(a)
see section 39 for the power of the Minister to extend the duration of a feasibility permit; and
(b)
a feasibility permit that is the subject of an application for a commercial permit continues in force until the Minister determines the application; and
(c)
if a commercial permit is granted in relation to a feasibility permit, then the feasibility permit ends and the start date of the commercial permit is the day after the end date of the feasibility permit.
23 Minister may impose conditions of feasibility permits
The Minister may impose any conditions of a feasibility permit that the Minister considers are appropriate to give effect to the purpose of this Act or to enable effective administration of this Act.
Subpart 3—Commercial permits
24 Pre-application consultation requirements for commercial permit applications
(1)
The person who intends to make an application for a commercial permit must consult the following groups before making the application:
(a)
any relevant iwi authorities, hapū, and Treaty settlement entities, including—
(i)
iwi authorities and groups that represent hapū that are parties to relevant Mana Whakahono ā Rohe or joint management agreements; and
(ii)
the tangata whenua of any area within the permit area that is a taiāpure-local fishery, a mātaitai reserve, or an area that is subject to bylaws made under Part 9 of the Fisheries Act 1996; and
(b)
any relevant protected customary rights groups, customary marine title groups, and applicant groups with applications for customary marine title under the Marine and Coastal Area (Takutai Moana) Act 2011; and
(c)
ngā hapū o Ngāti Porou, if the permit area is within or adjacent to, or the development would directly affect, ngā rohe moana o ngā hapū o Ngāti Porou.
(2)
An applicant must include in their application a record of the consultation and a statement explaining how it has informed the proposed development.
25 Minimum eligibility criteria for applicants for commercial permits
A person is eligible to apply to the Minister for a commercial permit if—
(a)
the person has undertaken consultation as required by section 24 (which relates to consultation with Māori groups); and
(b)
the person is the permit holder of a current feasibility permit that applies in respect of the whole permit area for which the commercial permit application is made.
Guidance note
See section 121 (which relates to rejection of non-complying applications).
26 Requirements for applications for commercial permits
Every application for a commercial permit must—
(a)
be in respect of a permit area that is a reasonable size for the proposed development; and
(b)
include a development plan, which must contain the relevant information prescribed in the regulations to enable the application to be considered and measurable permit conditions to be applied; and
(c)
include a decommissioning proposal and a decommissioning cost estimate in respect of the ORE generation infrastructure that will be attributable to ORE generation infrastructure activities under the permit (see subpart 2 of Part 3); and
(d)
include proposals for a financial security arrangement (see subpart 3 of Part 3); and
(e)
contain, or be accompanied by, any information prescribed by the regulations; and
(f)
otherwise be made in the manner prescribed by the regulations.
27 Minister’s process before commercial permits can be granted
(1)
After accepting an application for a commercial permit, the Minister must—
(a)
consult the persons referred to in section 24 (which relates to consultation with Māori groups); and
(b)
give public notice of the application.
(2)
The Minister may, but need not otherwise, consult before granting a commercial permit.
28 Determining applications for commercial permits
(1)
The Minister may—
(a)
grant an application for a commercial permit, in whole or in part, and issue a permit; or
(b)
reject the application.
(2)
The Minister may reject an application if the Minister considers that the grant of a permit would or could pose a significant risk to national security or public order and that risk cannot be adequately avoided, mitigated, or managed.
(3)
This section does not limit the grounds on which the Minister may reject an application.
(4)
This section is subject to section 27 and 29.
29 Mandatory considerations for granting application for commercial permit
(1)
The Minister may grant an application for a commercial permit if the Minister is satisfied that—
Development requirements
(a)
the proposed development plan is consistent with the purpose of the proposed permit, the purpose of this Act, and good industry practice in respect of the proposed ORE generation infrastructure activities; and
Permit holder suitability considerations
(b)
the applicant has the technical and financial capability to install, operate, maintain, and decommission the proposed ORE generation infrastructure; and
(c)
the applicant is ready to carry out the proposed development plan; and
(d)
the applicant has complied with the requirements under this Act and the regulations and the conditions of their feasibility permit; and
(e)
the applicant is highly likely to comply, on an ongoing basis, with—
(i)
their decommissioning obligation and financial security obligation; and
(ii)
the other requirements under this Act and the regulations; and
(f)
the applicant has, or will be able to, put in place an acceptable financial security arrangement that complies with subpart 3 of Part 3.
(2)
In determining an application, the Minister must have regard to the following additional considerations:
Development requirements
(a)
whether there are changes to the proposed development that are material to the benefits that were assessed as part of the applicant’s feasibility permit application; and
Permit holder suitability considerations
(b)
whether the applicant poses any significant risks to national security or public order; and
Other considerations
(c)
the applicant’s consultation with the persons referred to in section 24 (which relates to consultation with Māori groups); and
(d)
the impact of granting the permit on Treaty settlements, protected customary rights areas, and any other Māori groups with relevant interests; and
(e)
any other considerations that are prescribed by the regulations.
30 What commercial permits must specify
A commercial permit must specify all of the following:
(a)
the name of the permit holder:
(b)
the proposed development to which the permit applies:
(c)
the permit area:
(d)
the start date and end date of the permit:
(e)
the conditions of the permit:
(f)
any other matters prescribed by the regulations.
31 Duration of commercial permits
(1)
A commercial permit has a duration of 40 years starting on the start date.
(2)
However, see section 40 for the power of the Minister to extend the duration of a commercial permit.
32 Minister may impose conditions of commercial permits
The Minister may impose any conditions of a commercial permit that the Minister considers are appropriate to give effect to the purpose of this Act or enable the effective administration of this Act.
Subpart 4—Provisions relating to both feasibility permits and commercial permits
Requirements of permit holders
33 Requirements of permit holders
Every permit holder, whether or not it is stated in their permit, must—
Feasibility permits
(a)
commence ORE feasibility activities within 12 months of the permit’s start date; and
(b)
disclose the data that is obtained from their ORE feasibility activities to the chief executive by the end date of their feasibility permit; and
Commercial permits
(c)
inform the chief executive within 30 working days of entering into any contract with another person to build or operate any ORE transmission infrastructure or to transfer ownership of any ORE transmission infrastructure, including details about the proposed transfer, transferee, and any other information the chief executive may require; and
(d)
not transfer ownership of any ORE transmission infrastructure otherwise than to a single entity that is either a body corporate that is incorporated in New Zealand or an overseas company that is registered under Part 18 of the Companies Act 1993; and
All permits
(e)
comply with any milestones in the applicable development plan, unless compliance should reasonably be excused; and
(f)
pay any fees or levies prescribed by the regulations; and
(g)
provide reports or any information requested by the Minister, the chief executive, or an enforcement officer; and
(h)
provide to the chief executive a copy of any application for a marine consent or a resource consent for ORE infrastructure activities in respect of the development, as soon as reasonably practicable after lodging the application.
34 Permit holder must comply with permit conditions
A permit holder must at all times comply with the conditions of their permit.
Other legislative requirements unaffected
35 Minister’s assessment has no bearing on other legislative requirements
To avoid doubt, the Minister’s determination on a permit application under subpart 2 or 3 does not limit or have any effect on—
(a)
whether the applicant is required to obtain any permit, consent, or other permission under any other legislation:
(b)
the granting to the applicant of any permit, consent, or other permission necessary under any other legislation by any government agency, consent authority, or Minister responsible for the administration of that legislation.
Compare: 1991 No 70 s 29A(4)
Permit variations
36 Minister may vary permit
(1)
The Minister may, at any time, vary a permit—
(a)
on the initiative of the Minister in accordance with subsection (3); or
(b)
on the application of the permit holder.
(2)
A variation to a permit may do any 1 or more of the following:
(a)
make a minor extension to the permit area:
(b)
extend the duration of the permit:
(c)
amend the conditions of the permit.
(3)
The Minister may vary a permit on the Minister’s initiative only—
(a)
with the prior written consent of the permit holder; and
(b)
if the Minister is satisfied that the variation is consistent with the purpose of this Act; and
(c)
in the case of a minor extension to a permit area, if—
(i)
the Minister is satisfied that it is a minor extension having regard to the matters set out in section 37(3); and
(ii)
no other permit is current in respect of the extension area; and
(iii)
the Minister has consulted in accordance with section 38; and
(d)
in the case of an extension to the duration of a feasibility permit, if the extension would not cause the permit to exceed 14 years total duration; and
(e)
in the case of an extension to the duration of a commercial permit, if the extension would not cause the permit to exceed 80 years total duration.
37 Application for minor extension to permit area
(1)
A permit holder may apply to the Minister for a minor extension to the permit area.
(2)
The Minister may grant the application, in whole or in part, if—
(a)
the Minister is satisfied that it is a minor extension, having regard to the matters set out in subsection (3); and
(b)
no other permit is current in respect of the extension area; and
(c)
the Minister has consulted in accordance with section 38; and
(d)
the Minister has no cause to believe that the permit holder or the development no longer meets the requirements in section 19(1) (in the case of a feasibility permit) or section 29(1) (in the case of a commercial permit).
(3)
The matters the Minister must have regard to when deciding whether a proposed extension is a minor extension are—
(a)
whether the extension could materially alter—
(i)
the amount of power that was proposed to be generated; or
(ii)
the benefits for New Zealand that were assessed under section 19(1)(a); and
(b)
whether the extension could adversely impact any existing rights or interests; and
(c)
whether, given the extension, the permit area would continue to be a reasonable size for the development; and
(d)
whether the extension involves an area that is or has been the subject of a feasibility permit application by another person; and
(e)
whether the extension is necessary for the permit holder to undertake activities in accordance with a resource consent or marine consent; and
(f)
any other matters the Minister considers relevant.
Guidance note
For a more than minor extension, see instead subparts 2 and 3 (which relate to applications for new permits).
For a reduction in permit area, see section 57 (which relates to applications for full or partial surrender of permits).
38 Consultation requirements for minor extension to permit area
Before making a minor extension to a permit area, the Minister must consult with the following groups:
(a)
any relevant iwi authorities, hapū, and Treaty settlement entities, including—
(i)
iwi authorities and groups that represent hapū that are parties to relevant Mana Whakahono ā Rohe or joint management agreements; and
(ii)
the tangata whenua of any area within the permit area that is a taiāpure-local fishery, a mātaitai reserve, or an area that is subject to bylaws made under Part 9 of the Fisheries Act 1996; and
(b)
any relevant protected customary rights groups, customary marine title groups, and applicant groups with applications for customary marine title under the Marine and Coastal Area (Takutai Moana) Act 2011; and
(c)
ngā hapū o Ngāti Porou, if the extension is within or adjacent to, or the extension would directly affect, ngā rohe moana o ngā hapū o Ngāti Porou; and
(d)
any permit holder who the Minister considers may be affected by the proposed extension to the permit area.
39 Application to extend duration of feasibility permit
(1)
A permit holder may apply to the Minister to extend the duration of a feasibility permit.
(2)
The application must—
(a)
be made at least 90 working days before the permit ceases to be current (but see section 59); and
(b)
specify the proposed new end date; and
(c)
include a revised development plan; and
(d)
set out how the permit holder considers the requirements in subsection (3)(b) are met.
(3)
The Minister may grant the application, in whole or in part, if—
(a)
the extension would not cause the permit to exceed 14 years total duration; and
(b)
the Minister is satisfied that—
(i)
1 or both of the following applies:
(A)
events outside of the permit holder’s control are highly likely to prevent the permit holder from applying for a commercial permit before the feasibility permit ceases to be current:
(B)
a circumstance prescribed by the regulations; and
(ii)
the extension is necessary to enable the permit holder to obtain a commercial permit; and
(c)
the Minister has no cause to believe that the permit holder or the development no longer meets the requirements in section 19(1).
40 Application to extend duration of commercial permit
(1)
A permit holder may apply to the Minister to extend the duration of a commercial permit.
(2)
The application must—
(a)
be made at least 5 years before the permit ceases to be current (but see section 59); and
(b)
specify the proposed new end date; and
(c)
include a revised development plan; and
(d)
set out how the permit holder considers that subsection (3)(b) applies.
(3)
The Minister may grant the application, in whole or in part, if—
(a)
the extension would not cause the permit to exceed 80 years total duration; and
(b)
the Minister is satisfied that 1 or more of the following applies:
(i)
the operational life of the ORE infrastructure is likely to extend beyond the permit end date and the development is likely to continue to deliver benefits for New Zealand beyond the permit end date:
(ii)
due to events outside of the permit holder’s control, the extension is necessary to enable the permit holder to comply with their decommissioning obligation:
(iii)
a circumstance prescribed by the regulations; and
(c)
the Minister has no cause to believe that the permit holder or the development no longer meets the requirements in section 29(1).
41 Application to amend permit conditions
(1)
A permit holder may apply to the Minister to amend the conditions of the permit.
(2)
The application must be made at least 90 working days before the relevant date for meeting the condition that is proposed to be amended (but see section 59).
(3)
The Minister may grant the application if the Minister has no cause to believe that the permit holder or the development no longer meet the requirements in section 19(1) (in the case of a feasibility permit) or section 29(1) (in the case of a commercial permit).
Permit transfers and changes in significant influence
42 Transfer of permit requires Minister’s approval
(1)
The transfer of a permit requires the prior approval of the Minister under this section.
(2)
An application for approval must—
(a)
be made jointly by the permit holder and the proposed transferee; and
(b)
be made within 90 working days after the date of the agreement that contains the transfer (but see section 59); and
(c)
be accompanied by a copy of the agreement that contains the transfer; and
(d)
in the case of a commercial permit, include proposals for a financial security arrangement (see subpart 3 of Part 3).
(3)
The Minister may give approval for a transfer if—
(a)
the proposed transferee is a single entity that is either a body corporate that is incorporated in New Zealand or an overseas company that is registered under Part 18 of the Companies Act 1993; and
(b)
in the case of a feasibility permit, the Minister is satisfied that the proposed transferee meets the permit holder suitability requirements in section 19(1)(d) and (e); and
(c)
in the case of a commercial permit,—
(i)
the Minister is satisfied that the proposed transferee meets the permit holder suitability requirements in section 29(1)(b) and (c) (in respect of the remaining life of the permit) and section 29(1)(e); and
(ii)
the Minister has, in accordance with subpart 3 of Part 3, determined an acceptable financial security arrangement to be put in place by the proposed transferee; and
(iii)
the Minister is satisfied that the proposed transferee will be able to put that acceptable financial security arrangement in place before the transfer takes effect; and
(d)
any other requirements under the regulations are met.
(4)
Before giving approval for a transfer the Minister must have regard to—
(a)
whether the proposed transferee poses any significant risks to national security or public order; and
(b)
the proposed transferee’s compliance record in New Zealand and internationally.
Guidance note
A person who transfers their permit will also need to transfer any marine consent under the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012 or resource consent under the Resource Management Act 1991 that relates to the same ORE infrastructure activities.
43 When transfer takes effect
(1)
A transfer takes effect on the date specified by the Minister by written notice to the applicant, provided that the proposed transferee has put in place the acceptable financial security arrangement referred to in section 42(3)(c)(ii).
(2)
The transferor is released from their financial security obligation once the transfer takes effect.
44 Meaning of change in significant influence
(1)
A change in significant influence over a permit holder means that, after the permit is granted, a person (person A)—
(a)
obtains significant influence over the permit holder; or
(b)
ceases to have significant influence over the permit holder.
(2)
Person A has significant influence over a permit holder if—
(a)
person A has the power (whether directly or indirectly) to—
(i)
control the composition of more than 25% of the governing body of the permit holder; or
(ii)
exercise, or control the exercise of, more than 25% of the voting rights in the permit holder:
(b)
person A has, together with 1 or more specified persons, the power (whether directly or indirectly) to—
(i)
control the composition of more than 25% of the governing body of the permit holder; or
(ii)
exercise, or control the exercise of, more than 25% of the voting rights in the permit holder.
(3)
In this section, specified person, in relation to person A, means—
(a)
a person who is acting or will act jointly or in concert with person A in respect of exercising, or controlling the exercise of, a power referred to in subsection (2); or
(b)
a person who acts, or is accustomed to acting, in accordance with the wishes of person A.
45 Meaning of approval period
Approval period, for a change in significant influence over a permit holder, means the period—
(a)
starting on the day the Minister gives written notice of approval; and
(b)
ending at the earliest of the following:
(i)
immediately after the change in significant influence takes effect:
(ii)
if approval is revoked, when notice of revocation is given:
(iii)
9 months after the day notice of approval is given.
46 Approval required for change in significant influence over permit holder
(1)
A person (person A) contravenes this section if—
(a)
person A—
(i)
obtains significant influence over a permit holder; or
(ii)
ceases to have significant influence over a permit holder; and
(b)
either—
(i)
the Minister has not given approval for the change in significant influence over the permit holder; or
(ii)
the Minister has given approval, but the change takes effect outside of the approval period.
(2)
However, if an application for approval has been properly made but the application is still being considered by the Minister when the change in significant influence takes effect,—
(a)
subsection (1) is not contravened while the application is being considered by the Minister; and
(b)
if the Minister gives approval, subsection (1) is not contravened; but
(c)
if the Minister declines to give approval, subsection (1) must be treated as being contravened from the date the Minister gives notice of the decision.
47 Application for approval
A person who proposes to obtain, or cease to have, significant influence over a permit holder may apply to the Minister for approval to the change in significant influence.
48 Minister’s decision on approval
(1)
The Minister may give approval for a change in significant influence over a permit holder if the Minister is satisfied that, given the change, the permit holder would continue to meet the permit holder suitability requirements in section 19(1)(d) and (e) or 29(1)(b), (c), (e), and (f) (as applicable depending on the permit type).
(2)
Before giving approval, the Minister must have regard to—
(a)
whether, given the change, the permit holder would pose any significant risks to national security or public order; and
(b)
any other considerations that are prescribed by the regulations.
49 Change in circumstances during approval period
(1)
A person given approval for a change of significant influence must notify the Minister as soon as reasonably practicable if, during the approval period, the person becomes aware of any change in their circumstances that may materially affect the Minister’s consideration of any of the matters referred to in section 48.
(2)
The Minister may revoke an approval at any time during the approval period if, after giving the approval, the Minister becomes aware of any circumstances that affect the Minister’s consideration of the matters referred to in section 48.
50 Notification of change in significant influence
(1)
A person who obtains, or ceases to hold, significant influence over a permit holder in accordance with an approval must notify the Minister no later than 20 working days after the change in significant influence takes effect.
(2)
A person who obtains, or ceases to hold, significant influence over a permit holder without an approval or outside the approval period must notify the Minister as soon as practicable after the change in significant influence takes effect.
51 Requirement for approval is in addition to other requirements
Section 46 does not limit any other legislation that must be complied with in order to give effect to a proposed change in significant influence.
52 General provisions relating to transfers and changes in significant influence
(1)
The Minister may give approval to a transfer under section 42 or to a change in significant influence under section 46 subject to any further conditions that the Minister thinks fit.
(2)
All conditions of the Minister’s approval are, for the purposes of this Act, to be treated as conditions of the relevant permit.
(3)
All conditions of the Minister’s approval take effect on the date the transfer or change in significant influence takes effect.
(4)
If, as a result of the transfer of a permit in accordance with section 42, a person ceases to be a permit holder, that person ceases to have any rights or obligations under the permit except in respect of any contravention of the conditions of the permit, or of a requirement under this Act or the regulations, that occurred before the date of the transfer.
(5)
Subsection (4) is subject to—
(a)
the conditions of the permit; and
(b)
the conditions of the Minister’s approval to the transfer of the permit; and
(c)
subparts 2 and 3 of Part 3.
Compare: 1991 No 70 s 41D
Revocation of permits
53 When permit may be revoked
The Minister may revoke a permit if the Minister is satisfied that 1 or more of the following apply:
(a)
the permit holder has failed to comply with a requirement under this Act or the regulations or a condition of the permit:
(b)
in the case of a feasibility permit, the permit holder has failed to begin ORE feasibility activities within 12 months of the permit start date:
(c)
in the case of a commercial permit, the permit holder has failed to begin ORE generation infrastructure activities within a reasonable time following the permit start date:
(d)
a person has failed to comply with section 46(1) or 50(2):
(e)
the permit holder or the development no longer meet the requirements of section 19(1) (in the case of a feasibility permit) or section 29(1) (in the case of a commercial permit):
(f)
the permit holder is no longer suitable to hold the permit for any other reason.
54 Notice of intention to revoke permit
(1)
Before revoking a permit, the Minister must give written notice to the permit holder of the Minister’s intention to revoke the permit.
(2)
The notice must—
(a)
set out the reasons why the Minister intends to revoke the permit; and
(b)
invite the permit holder to make a written submission to the Minister about the proposed revocation; and
(c)
specify the date by which the permit holder must deliver any submission to the Minister (which must be not less than 40 working days after the date of the notice).
55 Decision to revoke permit
(1)
The Minister must have regard to the matters set out in subsection (2) in deciding—
(a)
whether to revoke a permit; and
(b)
what date a revocation will have effect.
(2)
The matters are—
(a)
any submission made by the permit holder under section 54; and
(b)
the surrounding circumstances that have led, or contributed, to the ground for revocation; and
(c)
any action taken by the permit holder to remedy, or prevent recurrence of, the circumstances giving rise to the ground for revocation; and
(d)
the potential impact revoking the permit may have on—
(i)
the permit holder; and
(ii)
New Zealand’s energy system; and
(e)
any other matters that are prescribed by the regulations.
56 Notice of revocation
If the Minister decides to revoke a permit, the Minister must give written notice to the permit holder of the decision and the date the revocation takes effect.
Surrender of permits
57 Application for full or partial surrender of permit
(1)
A permit holder may apply to the Minister to surrender all or any part of a permit.
(2)
The application must set out—
(a)
the proposed surrender area, which may be the whole permit area or a clearly identified part of the permit area; and
(b)
the proposed date of surrender and, if that date is within 90 working days of the date of the application, an explanation as to why surrender on that date is needed; and
(c)
how each of the requirements in section 58 has been met or will be met before the proposed date of surrender.
58 Minister’s decision on surrender
(1)
The Minister must grant a surrender application if—
(a)
the permit holder is in compliance with all requirements under this Act and the regulations and the conditions of the permit in respect of the surrender area; and
(b)
in the case of partial surrender, the remaining permit area would still be a reasonable size for the development; and
(c)
in the case of a commercial permit, the decommissioning obligation in respect of the surrender area is complete; and
(d)
any other requirements prescribed by the regulations are met.
(2)
The Minister may provisionally grant a surrender application if the Minister is satisfied that the requirements in subsection (1) will be met by the permit holder before the proposed surrender date, in which case the Minister must give written notice to the permit holder of what requirements under subsection (1) are outstanding.
(3)
The Minister must reject a surrender application if the permit holder has not completed their decommissioning obligation, or has not submitted a decommissioning completion report, in respect of all ORE generation infrastructure in the relevant permit area.
(4)
Subsection (3) does not limit the grounds on which the Minister may reject a surrender application.
(5)
A surrender takes effect on the date specified by the Minister by written notice to the permit holder.
(6)
However, a surrender under a provisional grant cannot take effect before the permit holder has given written notice to the Minister that the outstanding requirements have been met.
Miscellaneous provisions
59 Minister may receive late applications
If the Minister is satisfied that there are compelling reasons why a permit holder could not comply with a deadline for submitting an application under sections 39 to 42, the Minister may accept an application by a later date agreed by the Minister.
60 Effect of expiry, revocation, or surrender
The expiry, revocation, or surrender of a permit does not release the permit holder from any liability incurred in respect of—
(a)
the permit while it was current; and
(b)
any act under the permit while it was current giving rise to a cause of action; and
(c)
obligations that this Act specifies as continuing in force after the permit ceases to be current.
Guidance note
See section 70(2) under which the decommissioning obligation continues in force after a person ceases to be a permit holder.
61 Permits are not real or personal property
A permit is neither real nor personal property.
62 Effect of liquidation or loss of registration
(1)
On the liquidation of a permit holder, the permit vests in the liquidator as if it were personal property, and the liquidator may deal with the permit to the same extent as the permit holder would have been able to.
(2)
On the removal of a permit holder from the New Zealand register or the overseas register (within the meaning of those terms in section 2(1) of the Companies Act 1993), the permit vests in the Crown as if it were personal property.
Compare: 1991 No 70 s 92A
Subpart 5—Protection of infrastructure
63 Minister may declare safety zones
(1)
The Minister may, by notice, declare a safety zone in relation to an ORE development.
(2)
A notice must set out—
(a)
the ORE infrastructure activity to which the safety zone relates; and
(b)
the location of the ORE infrastructure activity; and
(c)
the area of the safety zone (which may be up to 500 metres from any point on the outer edge of the ORE infrastructure to which the ORE infrastructure activity relates); and
(d)
the period for which the notice has effect; and
(e)
1 or more specified restrictions that apply in the safety zone and the following details in relation to each of those restrictions; and
(i)
the type of restriction:
(ii)
the area of the safety zone (whether the whole or a specified part) in which the restriction applies (the restricted area):
(iii)
the time period (whether the whole or a specified part of the duration of the safety zone) during which the restriction applies (the restricted time period).
(3)
The type of restriction set out under subsection (2)(e)(i) may include, without limitation,—
(a)
a prohibition on ships (whether all ships or classes of ships, with or without specified exemptions) from entering the restricted area during the restricted time period, or otherwise limiting ships’ access:
(b)
a prohibition or limit on activities (whether all activities or specified activities, with or without specified exemptions) in the restricted area during the restricted time period.
(4)
In addition to complying with the Legislation Act 2019, the Minister must publish the notice in a fortnightly edition of New Zealand Notices to Mariners (under Part 25 of the Maritime Rules).
(5)
A notice under subsection (1) is secondary legislation (see Part 3 of the Legislation Act 2019 for publication requirements).
64 Eligibility criteria for applications for safety zones for ORE developments
(1)
A permit holder in respect of an ORE development may apply to the Minister for an area to be declared a safety zone in relation to that development if—
(a)
they hold any relevant marine consent or resource consent required for the development; and
(b)
they have consulted Maritime New Zealand and any persons, or representatives of persons, likely to be affected by the proposed safety zone.
(2)
The permit holder must include in their application a record of the consultation and a statement explaining how it has informed the application.
(3)
The permit holder may apply for a safety zone at the time that they apply for a commercial permit in respect of the development or after that date.
(4)
For the purposes of this section and section 65, persons likely to be affected by a safety zone include, but are not limited to, the following:
(a)
persons with an interest in a lawfully established existing activity, whether or not authorised under any legislation, involving rights of access, navigation, and fishing (for example, fishing operators and members of the freight and shipping industries); and
(b)
persons who hold a current marine consent or resource consent, or another relevant permit or consent, in relation to the area; and
(c)
relevant local authorities; and
(d)
any relevant iwi authorities, hapū, and Treaty settlement entities, including—
(i)
iwi authorities and groups that represent hapū that are parties to relevant Mana Whakahono ā Rohe or joint management agreements; and
(ii)
the tangata whenua of any area within the permit area that is a taiāpure-local fishery, a mātaitai reserve, or an area that is subject to bylaws made under Part 9 of the Fisheries Act 1996; and
(e)
any relevant protected customary rights groups, customary marine title groups, and applicant groups with applications for customary marine title under the Marine and Coastal Area (Takutai Moana) Act 2011; and
(f)
ngā hapū o Ngāti Porou, if the proposed safety zone is within or adjacent to, or would directly affect, ngā rohe moana o ngā hapū o Ngāti Porou.
65 Eligibility criteria for applications for safety zones for ORE substations
(1)
A person who builds, owns, or operates an ORE substation may apply to the Minister for an area to be declared a safety zone in relation to the substation if—
(a)
they hold any relevant marine consent or resource consent required for the substation; and
(b)
they have consulted Maritime New Zealand and any persons, or representatives of persons, likely to be affected by the proposed safety zone.
(2)
The person must include in their application a record of the consultation and a statement explaining how it has informed the application.
(3)
The person may make the application for a safety zone at any time.
66 Consultation about applications for safety zones
Before determining an application for the declaration of a safety zone, the Minister must consult with Maritime New Zealand, the relevant consent authority, and any other relevant agencies.
67 Determining applications for safety zones
(1)
The Minister may—
(a)
grant an application (whether by approving the details of the safety zone proposed by the applicant or by determining alternative arrangements) and declare a safety zone in accordance with section 63; or
(b)
reject the application.
(2)
The Minister may grant an application if the Minister is satisfied that a safety zone is necessary for the safety of—
(a)
ORE infrastructure or ORE infrastructure activities, or both; or
(b)
any other infrastructure, structure, or installation in the vicinity of the ORE infrastructure; or
(c)
ships; or
(d)
persons.
(3)
In determining an application, the Minister must take into account the following:
(a)
the nature of the ORE infrastructure activities:
(b)
the size and layout of the ORE infrastructure:
(c)
the impact of the development on existing activities in the area of the proposed safety zone.
(4)
Before declaring a safety zone that differs in location, size, or duration from that proposed by the applicant, the Minister must—
(a)
notify the applicant of the details of the proposed safety zone that the Minister intends to declare; and
(b)
invite the applicant to submit further information if the applicant disagrees with the proposed safety zone.
68 Minister may vary or cancel safety zone notice
The Minister may, at any time, vary or cancel a notice declaring a safety zone—
(a)
on the initiative of the Minister; or
(b)
at the request of the permit holder or the person who builds, owns, or operates an ORE substation.
Part 3 Decommissioning of ORE infrastructure
Subpart 1—Preliminary provisions
69 Outline of this Part
(1)
This Part imposes obligations to—
(a)
decommission ORE infrastructure (see subpart 2); and
(b)
ensure that an acceptable financial security arrangement is put in place and maintained that is sufficient to cover the estimated cost to the Crown of decommissioning that infrastructure in the event that the permit holder or other obliged person fails to decommission (see subpart 3).
(2)
This Part does not limit requirements under other Acts (including under the Resource Management Act 1991 or the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012).
Guidance note
A person must also submit decommissioning plans to the Environmental Protection Authority when they apply for an application for a marine consent under the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012 to decommission certain infrastructure.
Subpart 2—Decommissioning obligation
Who has decommissioning obligation
70 Commercial permit holders have decommissioning obligation for ORE generation infrastructure
(1)
A person who holds a commercial permit must carry out, and meet the costs of, the decommissioning of all ORE generation infrastructure that is attributable to ORE infrastructure generation activities under the permit (regardless of when the activities to which the infrastructure is attributable took place under the permit).
(2)
A person’s decommissioning obligation continues in force even if—
(a)
the relevant person has ceased to hold the permit; or
(b)
the relevant permit has ceased to be current.
(3)
This section is subject to section 72 (which requires the Minister to remove a decommissioning obligation in some circumstances).
(4)
A person may carry out their decommissioning obligation even if their permit has expired, or has been revoked or surrendered.
Compare: 1991 No 70 ss 89J, 89K
71 Owners have decommissioning obligation for ORE transmission infrastructure
(1)
A person who owns ORE transmission infrastructure in connection with an ORE development must carry out, and meet the costs of, the decommissioning of all of that ORE transmission infrastructure.
(2)
A person’s decommissioning obligation continues in force even if the relevant person ceases to own the infrastructure.
(3)
This section is subject to section 72 (which requires the Minister to remove decommissioning obligations in some circumstances).
72 Minister must remove decommissioning obligation in some circumstances
(1)
This section applies if—
(a)
a commercial permit holder (the transferor) has transferred their permit under section 42 to a transferee and applies to the Minister to have their decommissioning obligation in respect of ORE generation infrastructure removed; or
(b)
an owner of ORE transmission infrastructure (the transferor) has transferred ownership of that infrastructure to a transferee and applies to the Minister to have their decommissioning obligation in respect of that ORE transmission infrastructure removed.
(2)
The Minister must remove that obligation—
(a)
if the Minister is satisfied that the transferee has put in place an acceptable financial security arrangement with an amount secured of no less than 100% of the amount determined in accordance with the regulations, based on the decommissioning cost estimate; or
(b)
if the transferee is the State enterprise known as Transpower New Zealand Limited.
(3)
The Minister may remove that obligation earlier, in whole or in part, if the Minister is satisfied that the transferor should no longer continue to be liable to carry out, and meet the costs of, decommissioning the relevant infrastructure under this Part, after taking into account factors such as the details of the existing financial security arrangements and the financial capability of the transferee.
What does decommissioning obligation require
73 Standard of decommissioning required
(1)
In this Act, unless the context otherwise requires, decommissioning, in relation to any ORE infrastructure,—
(a)
means an activity undertaken under any enactment (for example, the Resource Management Act 1991, the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012, or the Health and Safety at Work Act 2015), and in accordance with any requirements or standards set by or under that enactment or imposed by a regulatory agency, to take infrastructure out of service permanently; and
(b)
includes undertaking site restoration when ORE infrastructure activities cease (for whatever reason); and
(c)
includes any other activity prescribed by the regulations in relation to the infrastructure.
(2)
However, if in relation to ORE infrastructure, no other enactment, relevant standard, or requirement by a regulatory agency contains any requirements or standards relating to the method of decommissioning a particular item of ORE infrastructure, that ORE infrastructure must be decommissioned by totally removing it.
(3)
Despite subsection (2), an item of infrastructure left in place in accordance with a marine consent, or a coastal permit under the Resource Management Act 1991, must be treated as having been decommissioned.
Guidance note
A person must carry out the decommissioning in accordance with the decommissioning plans accepted under the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012.
The standard of decommissioning in this section applies for the purposes of determining an acceptable financial security arrangement and whether a person contravenes their decommissioning obligation under this Act.
Compare: 1991 No 70 s 89E
74 When decommissioning obligation must be carried out
(1)
Any person who is liable to carry out, or meet the costs of, decommissioning ORE infrastructure, or both, under this Part must carry out their decommissioning obligation before the earliest of the following:
ORE generation infrastructure
(a)
in a case where ORE generation infrastructure permanently ceases to be used for the purpose of generating energy in a permit area before the commercial permit expires, by a time agreed with the Minister:
(b)
by a time required by the regulations:
(c)
by the expiry or surrender of the commercial permit under which the ORE generation infrastructure activities were carried out:
ORE transmission infrastructure
(d)
in a case where ORE transmission infrastructure permanently ceases to be used for the purpose of storing, transmitting, or conveying energy, by a time agreed with the Minister:
(e)
by a time required by the regulations.
(2)
However, if a commercial permit is revoked, the person who held the permit immediately before it was revoked must carry out their decommissioning obligation of the ORE generation infrastructure by a time agreed with, or specified by, the Minister.
(3)
The regulations may specify further requirements for when decommissioning must be carried out, including the criteria for agreeing or setting time frames for decommissioning for the purpose of subsection (1).
Compare: 1991 No 70 s 89N(1), (2)
Requirements connected to decommissioning obligation
75 Decommissioning proposals
(1)
A person who has a decommissioning obligation in respect of any ORE infrastructure must submit a decommissioning proposal to the Minister,—
(a)
if they are the applicant for a commercial permit, as part of the application (see section 26(c)); and
(b)
at the times, or within a period after the occurrence of any events, that are prescribed by the regulations (if any); and
(c)
on request from the Minister, within any reasonable time specified in the request.
(2)
A decommissioning proposal must—
(a)
describe the proposed decommissioning activities and the processes to be used to carry out those activities, and set out a proposed schedule for those activities; and
(b)
be accurate as at the date of submission to the Minister; and
(c)
contain the information prescribed by the regulations (if any); and
(d)
meet any further requirements prescribed by the regulations.
Compare: 1991 No 70 s 89ZB
76 Decommissioning cost estimates
(1)
A person who has a decommissioning obligation in respect of any infrastructure must submit a cost estimate of all proposed decommissioning activities (the decommissioning cost estimate) to the Minister—
(a)
if they are the applicant for a commercial permit, as part of the application (see section 26(c)); and
(b)
at the times, or within a period after the occurrence of any events, that are prescribed by the regulations (if any); and
(c)
on request from the Minister, within any reasonable time specified in the request.
(2)
The decommissioning cost estimate must—
(a)
estimate what the cost to the Crown would be if the Crown were to carry out all proposed decommissioning activities that are specified in the decommissioning proposal; and
(b)
be based on totally removing the infrastructure, except to the extent that section 73(2) will not apply (that is, because another enactment, relevant standard, or requirement by a regulatory agency contains requirements or standards relating to the method of decommissioning a particular item of infrastructure); and
(c)
comply with the standards prescribed by the regulations (if any) for developing that estimate; and
(d)
meet any further requirements prescribed by the regulations (if any).
(3)
The Minister may require any person who submits a decommissioning cost estimate to supply further information relating to the cost estimate, in which case, see section 116 (which relates to the use and disclosure of information).
Compare: 1991 No 70 s 89ZC
77 Decommissioning completion reports
(1)
A person who has completed their decommissioning obligation in respect of any ORE infrastructure must submit a decommissioning completion report to the chief executive—
(a)
at the times, or within a period after the occurrence of any events, that are prescribed by the regulations (if any); and
(b)
on request from the Minister, within any reasonable time specified in the request.
(2)
The decommissioning completion report must—
(a)
contain the information prescribed by the regulations (if any); and
(b)
meet any further requirements prescribed by the regulations.
Compare: 1991 No 70 s 89ZE
78 Information needed to monitor financial position
(1)
A person who has, or will have, a decommissioning obligation in respect of any ORE infrastructure (person A) must keep a record of any information prescribed by the regulations as relevant and reasonably necessary to enable the Minister to monitor person A’s financial position (including in relation to financial securities).
(2)
Person A must submit a copy of the information to the Minister—
(a)
at the times, or within a period after the occurrence of any events, that are prescribed by the regulations (if any); and
(b)
on request from the Minister, within any reasonable time specified in the request.
(3)
Person A must provide a copy of the information to the Minister—
(a)
in the form and in the manner set out in the request; and
(b)
within any reasonable time specified in the request.
(4)
See section 116 (which relates to the use and disclosure of information).
Compare: 1991 No 70 s 89ZF
Subpart 3—Obligation to provide Crown with financial security
Obligation to ensure that acceptable financial security arrangement is put in place and maintained
79 Obligation to ensure that acceptable financial security arrangement is put in place and maintained
(1)
A person who has a decommissioning obligation in respect of any ORE infrastructure (person A) must ensure that an acceptable financial security arrangement is put in place and maintained as security for the Crown for the performance of that decommissioning obligation (see sections 80 to 83).
(2)
Person A must put in place the acceptable financial security arrangement by the time specified by the Minister under section 83(3)(c).
(3)
Person A, if they are a permit holder, must maintain the acceptable financial security arrangement—
(a)
at all times while that permit is in force; and
(b)
at all times while their financial security obligation continues in force under subsection (5).
(4)
Person A, if they are owner of ORE transmission infrastructure, must maintain the acceptable financial security arrangement—
(a)
at all times while they are the owner of that infrastructure; and
(b)
at all times while their financial security obligation continues in force under subsection (5).
(5)
Person A’s financial security obligation continues in force, and the financial security continues to be available to the Crown, even if,—
(a)
in the case of ORE generation infrastructure, the relevant permit ceases to be current or person A ceases to be a commercial permit holder; and
(b)
in the case of ORE transmission infrastructure, person A ceases to own the infrastructure.
(6)
However,—
(a)
subsections (3) to (5) are subject to the provisions of this Act that provide for the release or other ending of person A’s decommissioning or financial security obligations (see, for example, sections 43(2) and 72); and
(b)
despite subsections (3) to (5), the Minister may give consent,—
(i)
in the case of a bond or cash or a cash deposit, for the person to use all or part of that amount to carry out the decommissioning to which that security relates; or
(ii)
for the security to be released and built up again over the life of the development under section 83(1)(a)(iv) (which allows the Minister to specify the times by which different securities that comprise the financial security arrangement must or may be put in place and maintained); or
(iii)
for particular securities that comprise the financial security arrangement to be released (for example, to allow for particular securities to relate to specific pieces of infrastructure and to be released when that piece of infrastructure is decommissioned); or
(iv)
for a person who is or was an owner of ORE transmission infrastructure to be released from the obligation to maintain an acceptable financial security arrangement.
(7)
This section does not apply to the State enterprise known as Transpower New Zealand Limited to the extent that the decommissioning obligation is in respect of any ORE transmission infrastructure.
Compare: 1991 No 70 s 89ZL(1)
80 Purpose of acceptable financial security arrangement
The purpose of an acceptable financial security arrangement is to ensure that financial security is available to the Crown to pay any costs, expenses, and liabilities that the Crown may incur in connection with, or as a result of, a failure of the relevant commercial permit holder or other person to carry out, or meet the costs of, the decommissioning of the relevant ORE infrastructure as follows:
(a)
it must be put in place and maintained on behalf of the Crown; and
(b)
it must be of an amount determined in accordance with the regulations, based on the decommissioning cost estimate; and
(c)
it must meet any other criteria specified in the regulations.
Process for reaching acceptable financial security arrangement
81 Proposal for financial security arrangement
(1)
A person who has a financial security obligation must—
(a)
propose how they will provide financial security to the Crown, including—
(i)
the kind of financial security arrangement that the person considers appropriate; and
(ii)
the proposed time by which the financial security arrangement will be in place; and
(iii)
who the financial security arrangement will be held by; and
(iv)
how the financial security arrangement will operate; and
(v)
any proposed conditions of the financial security arrangement; and
(b)
provide any information reasonably required by the Minister to enable the Minister to determine the acceptable financial security arrangement in accordance with section 83.
(2)
The person must provide the information referred to in subsection (1)—
(a)
if they are an applicant for a commercial permit, as part of the application (see section 26(d)); and
(b)
if they are a proposed transferee of a commercial permit, as part of the application for approval of the transfer (see section 42(2)(d)); and
(c)
if they are any other person, at the time specified by the Minister; and
(d)
in the form and manner prescribed by the regulations.
(3)
See section 116 (which relates to the use and disclosure of information).
Compare: 1991 No 70 s 89ZL(2), (4), (6)
82 Matters to be taken into account in determining acceptable financial security arrangement
(1)
When making a determination under section 83, the Minister must take into account—
(a)
the information provided under section 81 about—
(i)
the kind of financial security arrangement that the person considers appropriate; and
(ii)
the proposed time by which the financial security arrangement will be in place; and
(b)
the decommissioning proposal; and
(c)
the decommissioning cost estimate; and
(d)
any other matters prescribed by the regulations.
(2)
When deciding whether a proposal under section 81 may be determined to be an acceptable financial security arrangement, the Minister may take into account any information relating to current or emerging risks to the person’s ability to comply with their decommissioning obligation.
Compare: 1991 No 70 s 89ZM
83 Minister’s determination on acceptable financial security arrangement
(1)
After following the process in sections 81 and 82, the Minister must—
(a)
determine the acceptable financial security arrangement that must be put in place and maintained by or on behalf of the relevant person, including—
(i)
the total amount that must be secured by the financial security arrangement:
(ii)
the amount secured by each security that comprises the financial security arrangement:
(iii)
the kind or kinds of securities that comprise the acceptable financial security arrangement:
(iv)
the time by which the financial security arrangement must be in place (including, if applicable, the times when different securities that comprise the financial security arrangement must or may be in place):
(v)
if applicable, how the securities that comprise the financial security arrangement must be held:
(vi)
the circumstances in which the person may be released from their obligation to maintain all or any of the securities that comprise the acceptable financial security arrangement; and
(b)
impose any conditions of the financial security arrangement that the Minister considers appropriate.
(2)
The Minister may also direct how the financial security arrangement must operate, in accordance with the requirements prescribed by the regulations (if any).
(3)
The Minister must give the relevant person a notice of the Minister’s determination specifying—
(a)
the matters determined under subsections (1)(a) and (b) and (2); and
(b)
a summary of the reasons for the Minister’s decision.
(4)
The Minister must comply with this section before the commercial permit is granted if the financial security arrangement relates to ORE generation infrastructure and the relevant person is an applicant for a commercial permit.
(5)
The Minister must comply with this section before giving approval for a transfer of a commercial permit if the financial security arrangement relates to ORE generation infrastructure and the relevant person is the proposed transferee.
Compare: 1991 No 70 s 89ZN
Alteration of acceptable financial security arrangements
84 Alteration of acceptable financial security arrangement
(1)
The Minister may, at any time, do any 1 or more of the following:
(a)
require a person that has a financial security obligation (person A) to increase the total amount secured by the acceptable financial security arrangement:
(b)
allow person A to reduce the total amount secured by the acceptable financial security arrangement:
(c)
require or permit person A to otherwise alter the acceptable financial security arrangement (for example, by changing the kind of securities) that is put in place and maintained:
(d)
allow person A to vary the conditions of the acceptable financial security arrangement (for example, vary the rate at which financial securities must build up over time).
(2)
Sections 80 to 82 apply to the Minister when exercising a power in subsection (1).
(3)
In addition to the matters listed in section 82, the Minister may take into account the results of the most recent financial capability assessment (if any).
Compare: 1991 No 70 s 89ZO
85 Minister must notify alterations to acceptable financial security arrangement
(1)
The Minister must, after exercising a power in section 84(1), give the affected person written notice of—
(a)
the required or permitted changes to the acceptable financial security arrangement to be put in place and maintained or the total amount secured by that arrangement; and
(b)
in a case where changes are required, the time by which the affected person must do this.
(2)
The notice must be accompanied by reasons for the required change.
Compare: 1991 No 70 s 89ZP
86 Affected person may object to alterations to acceptable financial security arrangement
(1)
A person who receives written notice under section 85(1) may, within 30 working days of receiving that notice, object to the required change by notice in writing to the Minister.
(2)
The notice of objection must be accompanied by reasons for, and evidence or other information supporting, the objection and refer to the criteria in this subpart that the objector considers relevant.
(3)
A person who has made an objection cannot make any subsequent objection to the required acceptable financial security arrangement or required change described in the notice unless there is a change in circumstances.
Compare: 1991 No 70 s 89ZQ
87 What happens if affected person makes objection
(1)
If a person makes an objection under section 86, the Minister must—
(a)
give the objector an opportunity to be heard; and
(b)
consider and determine the objection within a reasonable time after its receipt.
(2)
The Minister must—
(a)
dismiss the objection; or
(b)
uphold the objection in whole or in part.
(3)
Not later than 30 working days after deciding whether to dismiss or uphold an objection, the Minister must send to the objector—
(a)
a copy of the decision, which must include the reasons for the decision; and
(b)
written notice of any required or permitted changes to the kind of security to be obtained and maintained or the amount secured, as the case requires; and
(c)
if paragraph (b) applies, and the changes are required changes, the time by which the objector must comply with the changes.
Compare: 1991 No 70 s 89ZR
Financial capability assessments
88 Minister may assess financial capability to meet decommissioning obligation
(1)
This section and sections 89 to 91 apply to a person (person A) who has a decommissioning obligation in respect of any infrastructure and who is—
(a)
a permit holder of the relevant commercial permit; or
(b)
an owner of ORE transmission infrastructure.
(2)
The Minister may carry out an assessment to determine whether person A is highly likely to have the financial capability to carry out and meet the costs of decommissioning (a financial capability assessment).
(3)
The Minister may carry out a financial capability assessment of a commercial permit holder at any time while the relevant permit is in force.
(4)
The Minister may appoint any suitably qualified person to carry out a financial capability assessment on the Minister’s behalf.
Compare: 1991 No 70 s 89ZG
89 Criteria for considering whether to carry out financial capability assessment
When considering whether to carry out a financial capability assessment under section 88, the Minister may take into account—
(a)
information received under the following:
(i)
section 75 (which relates to decommissioning proposals):
(ii)
section 76 (which relates to decommissioning cost estimates):
(iii)
section 78 (which relates to information needed to monitor person A’s financial position); and
(b)
the circumstances of person A; and
(c)
any information relating to current or emerging risks to person A’s ability to comply with their obligations under this Part; and
(d)
any other matters the Minister considers relevant.
Compare: 1991 No 70 s 89ZH
90 Process for carrying out financial capability assessment
When carrying out a financial capability assessment under section 88, the Minister—
(a)
may take into account information received under the following:
(i)
section 75 (which relates to decommissioning proposals):
(ii)
section 76 (which relates to decommissioning cost estimates):
(iii)
section 78 (which relates to information needed to monitor person A’s financial position); and
(b)
may take into account any other matters the Minister considers relevant; and
(c)
must meet the requirements prescribed by the regulations (if any).
Compare: 1991 No 70 s 89ZI
91 Minister must notify outcome of financial capability assessment
As soon as practicable after a financial capability assessment under section 88 is completed, the Minister must notify person A of—
(a)
the Minister’s conclusion as to whether they are highly likely to have the financial capability to carry out and meet the costs of decommissioning; and
(b)
the reasons for that conclusion.
Guidance note
The results of the most recent financial capability assessment (if any) will be a relevant consideration when the Minister is considering whether to alter the acceptable financial security arrangement.
Compare: 1991 No 70 s 89ZJ
92 Relevant persons must provide supporting information
(1)
This section applies to—
(a)
a person who may be subject to a financial capability assessment under section 88; and
(b)
any other person who the Minister considers is likely to hold information that is relevant and reasonably necessary to carry out a financial capability assessment (for example, parent companies, banks, or auditors).
(2)
The person must keep a record of any information prescribed by the regulations as relevant and reasonably necessary to enable the Minister to carry out a financial capability assessment.
(3)
The person must provide a copy of the information to the Minister—
(a)
at the times, or within a period after the occurrence of any events, that are prescribed by the regulations (if any); and
(b)
on request from the Minister, within any reasonable time specified in the request.
(4)
The Minister may, by written notice, require the person to provide any further information that the Minister considers relevant and reasonably necessary to carry out the financial capability assessment.
(5)
The person must provide a copy of the information to the Minister—
(a)
in the form and in the manner set out in the notice; and
(b)
within any reasonable time specified in the notice requiring the information.
(6)
See section 116 (which relates to the use and disclosure of information).
Compare: 1991 No 70 s 89ZF
Subpart 4—Miscellaneous provisions about decommissioning
Provisions relating to decommissioning of ORE transmission infrastructure
93 Ownership requirements for transmission infrastructure
(1)
The owner of ORE transmission infrastructure must be a single entity that is either a body corporate that is incorporated in New Zealand or an overseas company that is registered under Part 18 of the Companies Act 1993.
(2)
The owner of ORE transmission infrastructure must inform the chief executive within 30 working days of entering into any contract with another person to build or operate any ORE transmission infrastructure or to transfer ownership of any ORE transmission infrastructure, including details about the proposed transfer, transferee, and any other information the chief executive may require.
94 Reports about transmission infrastructure
The owner of ORE transmission infrastructure must provide reports about that infrastructure and related activities to the chief executive as required by the regulations (if any) or by the chief executive.
Miscellaneous provisions
95 Minister’s assessment has no bearing on other legislative requirements
(1)
This Part does not limit or affect any person’s obligations under another enactment (for example, the Resource Management Act 1991, the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012, or the Health and Safety at Work Act 2015).
(2)
Any requirement under this Part for a person to supply information does not replace or limit any requirement for that person to supply information under other provisions in this Act or another enactment.
Compare: 1991 No 70 s 89B
96 Joint and several liability
(1)
Subsection (2) applies if there is more than 1 person that, under this Part, must carry out, or meet the costs of, the decommissioning of any infrastructure.
(2)
Each person to whom this subsection applies is jointly and severally liable to perform that decommissioning obligation under this Part.
Compare: 1991 No 70 s 89P
97 Relationship with other provisions
A former permit holder is not prevented from carrying out their decommissioning obligation under this Act by section 12.
Guidance notes
See also section 38C of the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012, which requires a commercial permit holder to submit an accepted decommissioning plan under that Act when they make an application for a marine consent under that Act to decommission ORE infrastructure.
See also sections 100E to 100H of that Act, which relate to decommissioning plans required under that Act in respect of ORE infrastructure.
Part 4 Administration and enforcement
Subpart 1—Administration
Chief executive
98 Delegation of functions by Minister
(1)
The Minister may, either generally or particularly, delegate to the chief executive, in accordance with clause 5 of Schedule 6 of the Public Service Act 2020, any of the Minister’s functions, duties, or powers under this Act other than—
(a)
a decision under section 18(2) or 28(2) to reject an application for a permit on the grounds that the grant of a permit would or could pose a significant risk to national security or public order; and
(b)
this power of delegation.
(2)
The chief executive may, in accordance with clauses 2 and 3 of Schedule 6 of the Public Service Act 2020, subdelegate any function, duty, or power delegated to the chief executive by the Minister in accordance with subsection (1).
(3)
Any delegation or subdelegation made under this section may be revoked in accordance with clause 4 or 6 of Schedule 6 of the Public Service Act 2020, as the case may be.
Compare: 1991 No 70 s 6
99 Chief executive may approve forms
(1)
The chief executive may approve forms of applications, notices, and other documents required for the purposes of this Act that are not otherwise prescribed by the regulations.
(2)
If the chief executive approves a form,—
(a)
the chief executive must publish the form on an internet site maintained by or on behalf of the chief executive; and
(b)
a person must provide the application, notice, or other document in the approved form.
100 Minor corrections to permits
The chief executive may amend a permit to correct any minor omissions, errors, or other defects in the permit.
Enforcement officers
101 Appointment, and termination of appointment, of enforcement officers
(1)
The chief executive may appoint persons who are employees of a government department, a Crown entity, or a local authority to perform or exercise 1 or more of the functions or powers conferred on enforcement officers under this Act.
(2)
The chief executive must issue a warrant of authorisation to each enforcement officer that states the functions and powers of the officer.
(3)
An enforcement officer who exercises, or purports to exercise, a power conferred by this Act must carry and, if required to do so, produce—
(a)
the enforcement officer’s warrant of authorisation; and
(b)
evidence of the enforcement officer’s identity.
(4)
An enforcement officer’s appointment may be terminated by—
(a)
the chief executive revoking the appointment by written notice; or
(b)
the enforcement officer resigning the appointment.
(5)
An enforcement officer must, on the termination or ending of the appointment, surrender their warrant to the chief executive.
Compare: 1991 No 70 s 99A
102 Persons assisting enforcement officer
An enforcement officer who exercises a power under this Act may be accompanied by any person or persons reasonably necessary to assist the enforcement officer to exercise that power.
Compare: 1991 No 70 s 99B(4)
103 Functions, duties, and powers of enforcement officers may be exercised by chief executive
The chief executive may perform or exercise the functions, duties, and powers of an enforcement officer under this Act.
Enforcement powers
104 Power to require information
(1)
The Minister or an enforcement officer may, by written notice, require any person to provide any information that the person giving the notice considers is necessary for any purpose relating to that person’s functions, duties, or powers under this Act or for the administration or enforcement of this Act.
(2)
The information specified in the notice may relate to—
(a)
any aspect of the operation of a permit; and
(b)
any commercial agreements or arrangements—
(i)
that relate to a permit or to an ORE development in respect of which a permit is held; and
(ii)
in which a person who holds an interest in the permit is a party; and
(c)
any ORE transmission infrastructure activities.
(3)
Information may be disclosed to the Minister or an enforcement officer in confidence if—
(a)
a person who is required to provide information under subsection (1) so requests; and
(b)
the Minister or enforcement officer agrees to that request in writing.
(4)
A person required to provide any information under this section must provide the information—
(a)
in the form and in the manner set out in the notice; and
(b)
within any reasonable time specified in the notice requiring the information; and
(c)
free of charge; and
(d)
regardless of whether the Minister or enforcement officer agrees to the information being disclosed in confidence.
Compare: 1991 No 70 s 99F
105 Power of entry for inspection
(1)
An enforcement officer who is specifically authorised by the chief executive in accordance with section 101(2) to do so may, at all reasonable times, for the purpose specified in subsection (2), enter and inspect a premises, place (except a dwelling house or marae), structure, vehicle, or ship in which—
(a)
ORE infrastructure activities are being carried out; or
(b)
equipment, data, or information is held in connection with ORE infrastructure activities.
(2)
The purpose for which the power to enter and inspect may be exercised is to determine whether the requirements of this Act or the regulations or the conditions of a permit are being complied with.
(3)
The power to enter and inspect includes the power to make copies of documents and to require a person to make, or assist in the making of, copies of documents.
(4)
If the owner or occupier of the premises, place, structure, vehicle, or ship is not present at the time of the inspection, the enforcement officer must leave in a prominent position at, or attached to, the premises, place, structure, vehicle, or ship a written notice showing—
(a)
the date and time the inspection was carried out; and
(b)
the name of the officer carrying out the inspection.
(5)
An enforcement officer must not enter a dwelling house or marae except—
(a)
with the consent of an occupier, owner, or person in charge of that dwelling house or marae; or
(b)
in accordance with a search warrant issued under section 98 of the Search and Surveillance Act 2012.
106 Application for warrant for entry to search
(1)
An application for a search warrant in respect of a premises, place, structure, vehicle, or ship may be made by—
(a)
a constable; or
(b)
an enforcement officer specifically authorised in writing by the chief executive in accordance with section 101(2) to apply for search warrants.
(2)
The application must be made in the manner provided in subpart 3 of Part 4 of the Search and Surveillance Act 2012.
(3)
An issuing officer may issue a search warrant in respect of the premises, place, structure, vehicle, or ship if satisfied that there are reasonable grounds—
(a)
to suspect that an offence has been, is being, or will be committed against the Act; and
(b)
to believe that there is evidential material at the premises, place, structure, vehicle, or ship.
107 Application of Part 4 of Search and Surveillance Act 2012
Part 4 of the Search and Surveillance Act 2012 (other than sections 118 and 119) applies, with any necessary modifications, in respect of inspections or searches undertaken under this Act by enforcement officers.
Compare: 1991 No 70 s 99D
108 Power to audit records
(1)
A person referred to in subsection (2) may carry out an audit of records, kept by or on behalf of a permit holder, for the purpose specified in subsection (3).
(2)
The following persons may carry out an audit if directed by the chief executive:
(a)
an enforcement officer:
(b)
an independent auditor appointed by the chief executive.
(3)
The purpose for which the power to carry out an audit of records may be exercised is to obtain information about the following matters and to report that information to the chief executive:
(a)
the calculation and payment of any money payable to the Crown:
(b)
compliance with any requirement under this Act or the regulations or a condition of a permit relating to keeping or providing records or other information.
(4)
If the chief executive appoints an independent auditor, the chief executive may require the permit holder to pay the costs of the independent auditor for the audit.
Compare: 1991 No 70 s 99E
Safety zone officers
109 Safety zone officers
(1)
The following persons are safety zone officers:
(a)
every constable:
(b)
every person in charge of a ship of the New Zealand Defence Force:
(c)
every person acting under the command of a person described in paragraph (b).
(2)
For the purposes of this section, ship includes a warship as defined in section 2(1) of the Maritime Transport Act 1994.
110 Powers of safety zone officers
(1)
This section applies if a safety zone officer has reasonable cause to suspect that a master of a ship or any other person is committing, has committed, or is attempting to commit an offence under section 148 or 153.
(2)
The safety zone officer may require the master of the ship—
(a)
to remove the ship from a safety zone; or
(b)
not to enter a safety zone.
(3)
The safety zone officer may require a person—
(a)
to leave a safety zone; or
(b)
not to enter a safety zone; or
(c)
not to carry out activities in the safety zone that contravene the restrictions declared under section 63 in relation to the safety zone.
(4)
A safety zone officer who exercises a power under this section may be accompanied by any person or persons reasonably necessary to assist the safety zone officer to exercise the power.
(5)
A person who provides assistance under subsection (4) may exercise the powers provided to a safety zone officer under subsections (2) and (3).
Protection of enforcement officers and safety zone officers
111 Protection of officers acting under authority of this Act
(1)
The following persons are not liable in any criminal or civil proceedings for any act done or omitted to be done in good faith in the performance or exercise, or intended performance or exercise, of their functions, duties, or powers under this Act (other than when exercising powers of inspection or to search under sections 105 and 106):
(a)
an enforcement officer:
(b)
a safety zone officer:
(c)
a person called upon to assist an enforcement officer or safety zone officer.
(2)
Sections 166 and 167 of the Search and Surveillance Act 2012 apply in relation to persons exercising powers of inspection or to search under sections 105 and 106.
Compare: 1991 No 70 s 99G
Obligation of office holders
112 Office holders not to have pecuniary interest
Except as otherwise provided in this Act or the regulations, a person holding any office under, or employed by, the Crown in any capacity in the administration of this Act must not have a direct or indirect pecuniary interest in any permit or any ORE development.
Compare: 1991 No 70 s 94
Registers, records, and use of information
113 Chief executive to maintain register of permits
(1)
The chief executive must maintain a register of permits.
(2)
The register must include the following information for each permit (whether the permit is current or has ceased to be current):
(a)
the name and contact details of the permit holder:
(b)
a copy of the permit:
(c)
a record of any variation, transfer, change of significant influence, and partial surrender approved in relation to the permit:
(d)
any other information prescribed by the regulations.
(3)
The register may include any other information that the chief executive thinks is appropriate.
(4)
The chief executive must make the information on the register publicly available unless the information is commercially sensitive or disclosure is prohibited under the Privacy Act 2020.
(5)
The chief executive must update the register if the chief executive becomes aware that there is a change or error in the information on the register.
114 Minister must notify chief executive of decisions affecting information on register
The Minister must notify the chief executive if the Minister makes a decision under this Act that affects any information kept on the register.
115 Permit holder must keep records
(1)
A permit holder must keep the following records in relation to ORE infrastructure activities conducted by or on behalf of the permit holder under the permit:
(a)
financial records, including any financial records required to be kept and retained under the Tax Administration Act 1994:
(b)
commercial records, including any feasibility studies:
(c)
scientific and technical records:
(d)
any calculations made in support of the above records:
(e)
records, reports, statements, or any other documentation or information required under other legislation, if regulations made under this Act prescribe that they must be retained for the purposes of this Act:
(f)
any other records prescribed by the regulations.
(2)
The records must be kept—
(a)
for at least 7 years after the year to which they relate or for at least 2 years after the permit to which they relate ceases to be current, whichever is the later; and
(b)
in a form that ensures that they can be readily provided in accordance with this section; and
(c)
in the manner prescribed by the regulations.
(3)
A permit holder must provide copies of the records to the chief executive—
(a)
at any time if requested to do so by the chief executive; and
(b)
as required by a condition of the permit; and
(c)
as may be prescribed by the regulations.
(4)
In addition, a permit holder must provide copies of all records kept under this section before the date that a permit is transferred, surrendered in full, revoked, or otherwise ceases to be current.
116 Use and disclosure of information
(1)
The Minister, the chief executive, or any enforcement officer may use any information supplied under this Act for the purpose of performing or exercising any function, duty, or power conferred on a person under this Act.
(2)
However, if the Minister, the chief executive, or any enforcement officer considers that any information, in relation to any person, is commercially sensitive information or personal information, the Minister, chief executive, or enforcement officer must not disclose that information unless—
(a)
the disclosure is for the purposes of, or in connection with, the performance or exercise of any function, duty, or power conferred or imposed by or under this Act on the Minister, the chief executive, or any enforcement officer; or
(b)
the information is publicly available; or
(c)
the disclosure is with the consent of the person to whom the information relates, or to whom the information is confidential; or
(d)
the disclosure is in connection with proceedings, or any investigation or inquiry for proceedings, for an offence against this Act or any other legislation; or
(e)
disclosure is required by other legislation; or
(f)
disclosure is authorised under this Act; or
(g)
disclosure is required by a court of competent jurisdiction; or
(h)
the information is disclosed to an agency under section 118.
(3)
In this section,—
commercially sensitive information means information to which section 9(2)(b)(ii) of the Official Information Act 1982 refers
personal information has the meaning set out in section 7(1) of the Privacy Act 2020.
117 Chief executive may publish certain feasibility data
(1)
This section applies to information provided by a permit holder in accordance with section 33(b) that is of 1 or more of the following kinds:
(a)
geological surveys:
(b)
environmental monitoring:
(c)
climate and weather patterns:
(d)
other data obtained by the permit holder during ORE feasibility activities that is prescribed by the regulations for the purposes of this section.
(2)
The chief executive may publish the information on an internet site maintained by the chief executive at any time on or after the earlier of—
(a)
the start date of a commercial permit granted in relation to a feasibility permit:
(b)
the date that is 1 year after the date a feasibility permit ceases to be current.
(3)
However, the chief executive must not publish information under this section that is commercially sensitive, unless the publication is with the consent of the person to whom the information relates, or to whom the information is confidential.
118 Sharing of information with agencies
(1)
Subject to any legislation,—
(a)
the Minister or the chief executive may provide an agency referred to in subsection (2) with any information, or a copy of any document, that the Minister or chief executive—
(i)
holds in relation to the performance or exercise of the Minister’s or chief executive’s functions, duties, or powers under this Act; and
(ii)
considers may assist the agency in the performance or exercise of the agency’s functions, duties, or powers under any legislation; and
(b)
an agency referred to in subsection (2) may provide the Minister or chief executive with any information, or a copy of any document, that it—
(i)
holds in relation to the performance or exercise of its functions, duties, or powers under or in relation to any legislation; and
(ii)
considers may assist the Minister or the chief executive in the performance or exercise of its functions, duties, or powers under this Act.
(2)
The agencies for the purpose of subsection (1) are the following:
(a)
WorkSafe New Zealand:
(b)
the Environmental Protection Authority:
(c)
Maritime New Zealand:
(d)
the Department of Conservation:
(e)
the Ministry for the Environment:
(f)
the Government Communications Security Bureau:
(g)
the New Zealand Police:
(h)
the New Zealand Security Intelligence Service:
(i)
a consent authority:
(j)
the Electricity Authority:
(k)
the New Zealand Defence Force:
(l)
any other agency in New Zealand that holds information that relates to activities to which this Act applies.
(3)
If subsection (1) applies, the Minister, chief executive, or agency (as the case may be) may impose conditions relating to the provision of any information or document, including conditions relating to—
(a)
the storage and use of, or access to, anything provided:
(b)
the copying, returning, or disposing of copies of any documents provided.
(4)
Nothing in this section limits the Privacy Act 2020.
(5)
This section applies despite anything to the contrary in any contract, deed, or document.
Compare: 2017 No 29 s 85
Applications
119 Applications to Minister
(1)
This section and sections 120 to 124 apply to an application to the Minister for the purposes of this Act.
(2)
The application must—
(a)
contain, or be accompanied by, any information prescribed by the regulations; and
(b)
be accompanied by any fee prescribed by the regulations (if any); and
(c)
otherwise be made in the manner prescribed by the regulations.
120 Minister may request further information
(1)
The Minister may request an applicant to provide any further information the Minister considers will assist the Minister in assessing the application.
(2)
The Minister’s request must—
(a)
be made in writing; and
(b)
set out the date by which it must be complied with (which must allow the applicant a reasonable time to comply).
(3)
After making a request, the Minister may defer consideration of the application until the request is complied with.
121 Rejection of non-complying application
The Minister may reject an application without considering its merits if the application does not comply with the requirements of this Act.
122 Applicant must notify of change in circumstances
An applicant must notify the Minister as soon as reasonably practicable if, before an application is decided, the applicant becomes aware of any change in their circumstance that may materially affect the Minister’s consideration of the application.
123 Time frame and manner for considering applications
The Minister must decide an application under this Act in the manner, and within any time frame, prescribed by the regulations.
124 Minister must notify applicant of decision
(1)
As soon as practicable after making a decision on an application, the Minister must give written notice to the applicant of the decision.
(2)
The notice must include reasons for the decision if the decision is to reject an application.
(3)
If the Minister grants an application for a variation to the permit under section 37 or sections 39 to 41, the notice must state the date the variation takes effect.
(4)
If the Minister gives approval for a transfer under section 42, the notice must state the date the transfer takes effect.
Serving notices and other documents
125 Permit holder’s address for service and contact
(1)
A permit holder must give written notice to the chief executive of its address for service, which may be its physical address in New Zealand or its email address.
(2)
A permit holder must give written notice to the chief executive of—
(a)
an address (which may be an email address) and telephone number at which the permit holder can be contacted; and
(b)
any change to the address or telephone number provided under paragraph (a) as soon as reasonably practicable, but no later than 10 working days after the change takes effect.
126 Service of notices and other documents
(1)
A notice or any other document required or authorised to be served on or given to a person for the purposes of this Act—
(a)
must, if the person has specified an address for service, be served or given by sending it by post or delivering it to that address:
(b)
may, if paragraph (a) does not apply, be served or given by—
(i)
delivering it personally to the person (other than to a Minister of the Crown); or
(ii)
delivering it at the usual or last known place of residence or business of the person; or
(iii)
sending it by post addressed to the person at the usual or last known place of residence or business of the person; or
(iv)
sending it to the usual or last known email address of the person; or
(v)
leaving it at a document exchange for direction to the document exchange box number used by the person.
(2)
If a notice or other document is to be served on or given to a body (whether incorporated or not) for the purposes of this Act, service on an officer of the body, or on the registered office of the body, in accordance with subsection (1) is to be treated as service on the body.
(3)
If a notice or other document is to be served on a partnership for the purposes of this Act, service on any one of the partners in accordance with subsections (1) and (2) is to be treated as service on the partnership.
(4)
This section does not apply to notices or other documents served or given in any proceeding in any court or to the extent that a different or particular delivery method is specified by this Act or the regulations.
127 Receipt of notices and other documents
(1)
A notice or other document is treated as received,—
(a)
if it is delivered to a natural person,—
(i)
when it is handed to that person; or
(ii)
if the person refuses to accept the document, when it is brought to the attention of, and left in a place accessible to, that person:
(b)
if it is emailed, on the first working day following the day on which it is sent:
(c)
if it is posted, 5 working days after it is posted or any shorter period determined by the court in a particular case:
(d)
if it is delivered to a document exchange, 5 working days after it is delivered or any shorter period determined by the court in a particular case.
(2)
In proving the serving on or giving of a notice or other document—
(a)
by email, it is sufficient to prove that—
(i)
the document was properly addressed; and
(ii)
the document was properly sent to the email address:
(b)
by post or by delivery to a document exchange, it is sufficient to prove that—
(i)
the document was properly addressed; and
(ii)
all postal or delivery charges were paid; and
(iii)
the document was posted or was delivered to the document exchange.
(3)
A notice or other document is not to be treated as having been given to a person if the person proves that, through no fault on their part, the document was not received within the time specified or at all.
Subpart 2—Enforcement
Compliance notices
128 Power to issue compliance notices
(1)
This section applies if an enforcement officer reasonably believes that a person—
(a)
is contravening a provision of this Act or the regulations or a condition of a permit; or
(b)
is likely to contravene a provision of this Act or the regulations or a condition of a permit.
(2)
The enforcement officer may issue a written compliance notice requiring the person to—
(a)
remedy the contravention; or
(b)
prevent a likely contravention from occurring or reoccurring; or
(c)
remedy the things or activities causing the contravention or likely to cause a contravention.
(3)
The enforcement officer may issue a compliance notice only if, in the opinion of the enforcement officer,—
(a)
the contravention or likely contravention is or would be sufficiently serious to justify the issue of a compliance notice; or
(b)
there has been a repeated contravention or a repetition of behaviour that is likely to lead to a contravention occurring or reoccurring; or
(c)
the contravention or behaviour likely to lead to a contravention has been committed intentionally or recklessly or involves negligence on the person’s part.
(4)
However, each of the criteria specified in subsection (3) may be considered on the basis of the information readily available to the enforcement officer, and the enforcement officer need not make further enquiries before applying those criteria.
Compare: 1991 No 70 s 89ZZK
129 Form and content of compliance notices
(1)
A compliance notice must be in writing.
(2)
A compliance notice must state—
(a)
that an enforcement officer believes, on reasonable grounds, that the person—
(i)
is contravening a provision of this Act or the regulations or a condition of a permit; or
(ii)
is likely to contravene a provision of this Act or the regulations or a condition of a permit; and
(b)
the provision or condition the enforcement officer believes, on reasonable grounds, is being, or is likely to be, contravened; and
(c)
briefly, how the provision or condition is being, or is likely to be, contravened; and
(d)
a period within which the person is required to remedy—
(i)
the contravention or likely contravention; or
(ii)
the things or activities causing the contravention or likely to cause a contravention.
(3)
A compliance notice may include recommendations concerning—
(a)
the measures that could be taken to remedy the contravention, or prevent the likely contravention, to which the notice relates; and
(b)
the things or activities causing the contravention, or likely to cause a contravention, to which the notice relates.
(4)
A compliance notice may be addressed to any person under the person’s legal name or usual business name.
Compare: 1991 No 70 s 89ZZL
130 Compliance with compliance notice
A person who has been issued with a compliance notice must comply with the notice within the compliance period (or within any extension granted under section 131).
Compare: 1991 No 70 s 89ZZM(1)
131 Extension of time for compliance with compliance notices
(1)
This section applies if a person has been issued with a compliance notice.
(2)
The enforcement officer may, on their own initiative or on the application of the person, by written notice given to the person, extend the compliance period for the compliance notice.
(3)
However, the enforcement officer may extend the compliance period only if the period has not ended.
(4)
If a person applies for an extension 2 weeks or more before the end of the compliance period, but a decision on that application has not been reached before the compliance period ends, the compliance period is to be treated as having been extended by an additional 2 weeks to enable the decision to be made.
Compare: 1991 No 70 s 89ZZN
132 Enforcement officer may vary or cancel compliance notice
(1)
An enforcement officer may, at any time, vary or cancel a compliance notice issued to a person by written notice to that person.
(2)
A variation or cancellation of a compliance notice takes effect on the date specified in the notice of variation or cancellation or, if no date is specified, on the day on which that notice is issued.
133 Formal irregularities or defects in compliance notice
A compliance notice is not invalid merely because of—
(a)
any defect, irregularity, omission, or want of form in the notice unless the defect, irregularity, omission, or want of form causes or is likely to cause a miscarriage of justice; or
(b)
a failure to use the correct name of the person to whom the notice is issued if the notice sufficiently identifies the person.
Compare: 1991 No 70 s 89ZZR
134 Changes to compliance notice by enforcement officer
An enforcement officer may make minor changes to a compliance notice—
(a)
for clarification; or
(b)
to correct errors or references; or
(c)
to reflect changes of address or other circumstances.
Compare: 1991 No 70 s 89ZZP
135 How compliance notice is issued
(1)
A compliance notice may be issued to a person by—
(a)
delivering it to the person or, if the person refuses to accept it, bringing it to the person’s notice; or
(b)
leaving it for the person at the person’s last known place of residence with another person who appears to be of or over the age of 16 years; or
(c)
leaving it for the person at the person’s place of business or work with another person; or
(d)
sending it to the person by prepaid post addressed to the person’s last known place of residence or place of business or work; or
(e)
sending it to an electronic address of the person in any case where the person does not have a known place of residence or business in New Zealand.
(2)
Regulations may prescribe the steps a person to whom a compliance notice is issued must take to bring it to the attention of other persons.
(3)
A compliance notice—
(a)
posted under subsection (1)(d) is to be treated as having been received by the person 5 working days after the day on which it was posted:
(b)
sent electronically under subsection (1)(e) is to be treated as having been received at the time the electronic communication first entered an information system that is outside the control of the chief executive or an enforcement officer.
Compare: 1991 No 70 s 89ZZS
136 Civil proceedings relating to non-compliance with compliance notice
(1)
On an application by an enforcement officer, the District Court may make an order—
(a)
compelling a person to comply with a compliance notice; or
(b)
restraining a person from contravening a compliance notice.
(2)
The court may make an order—
(a)
under subsection (1)(a) if it is satisfied that the person has refused or failed to comply with a compliance notice:
(b)
under subsection (1)(b) if it is satisfied that the person has contravened, is contravening, or is likely to contravene a compliance notice.
(3)
The court may make an order under subsection (1) whether or not proceedings have been brought for an offence against this Act or regulations in connection with any matter in relation to which the compliance notice was issued.
Compare: 1991 No 70 s 89ZZT
Enforceable undertakings
137 Enforcement officer may accept enforceable undertakings
(1)
An enforcement officer may, on application by a person, accept an undertaking given by the person in connection with a contravention or an alleged contravention of a provision of this Act or the regulations.
(2)
The giving of an enforceable undertaking does not constitute an admission of guilt by the person giving it in relation to the contravention or alleged contravention to which the undertaking relates.
138 Notice of decision and reasons for decision
The enforcement officer must give the person seeking to make an enforceable undertaking written notice of—
(a)
their decision to accept or reject the undertaking; and
(b)
the reasons for that decision.
139 When undertaking is enforceable
An enforceable undertaking takes effect and becomes enforceable when the enforcement officer’s decision to accept the undertaking is given to the person who made the undertaking, or at any later date specified by the enforcement officer.
140 Withdrawal or variation of enforceable undertaking
(1)
A person who has given an enforceable undertaking may, with the written consent of the chief executive,—
(a)
withdraw the undertaking; or
(b)
vary the undertaking.
(2)
However, the undertaking cannot be varied to provide for a different alleged contravention of this Act or the regulations.
141 Compliance with enforceable undertaking
A person must not contravene an enforceable undertaking given by that person that is in force.
142 Contravention of enforceable undertaking
(1)
An enforcement officer may apply to the District Court for an order referred to in subsection (2) if a person contravenes an enforceable undertaking.
(2)
If the court is satisfied that the person who made the enforceable undertaking has contravened the undertaking, the court may make 1 or more of the following orders:
(a)
an order directing the person to comply with the undertaking:
(b)
an order discharging the undertaking.
(3)
In addition to the orders referred to in subsection (2), the court may make any other order that the court considers appropriate in the circumstances, including orders directing the person to pay the chief executive—
(a)
the costs of the proceedings; and
(b)
the reasonable costs of the enforcement officer in monitoring compliance with the enforceable undertaking in the future.
(4)
This section does not prevent proceedings being brought for the contravention or alleged contravention of this Act or the regulations to which the enforceable undertaking relates.
143 Proceedings for alleged contravention
(1)
If a person has given an enforceable undertaking in relation to a contravention or an alleged contravention of this Act or the regulations, no proceedings (whether civil or criminal) may be brought against them in relation to that contravention—
(a)
while the undertaking is in effect; and
(b)
at any later time, if they have completely discharged the undertaking.
(2)
An enforcement officer may accept an enforceable undertaking in relation to a contravention or an alleged contravention of this Act or the regulations before proceedings in relation to that contravention have been completed.
(3)
If an enforcement officer accepts an enforceable undertaking before the proceedings are completed, the enforcement officer must take all reasonable steps to have the proceedings discontinued as soon as practicable (to the extent that the proceedings relate to the contravention or alleged contravention).
Offences
144 Offence for undertaking ORE generation infrastructure activities under consent without commercial permit
(1)
A person commits an offence if they contravene, or permit a contravention of, section 12 (which prohibits a person from giving effect to a resource consent or marine consent by undertaking ORE generation infrastructure activities unless the person is a holder of a commercial permit under this Act).
(2)
A person who commits an offence against this section is liable on conviction,—
(a)
if they are an individual, to imprisonment for a term not exceeding 2 years or to a fine not exceeding $1 million, or both; or
(b)
in any other case, to a fine not exceeding $10 million.
145 Offence for change in significant influence over permit holder without approval
(1)
A person commits an offence if they contravene, or permit a contravention of, section 46 (which relates to the requirement not to make a change in significant influence over a permit holder without the Minister’s approval).
(2)
A person who commits an offence against this section is liable on conviction to a fine not exceeding $800,000.
(3)
In a prosecution of a person for an offence against this section, it is a defence if the defendant proves that they did not know, and could not reasonably be expected to have known, that they obtained, or ceased to hold, significant influence over the permit holder.
146 Offence for failing to notify Minister of change in circumstance
(1)
A person commits an offence if they contravene, or permit a contravention of,—
(a)
section 49 (which relates to the requirement to notify the Minister of a change in circumstances that may materially affect the Minister’s decision on an approval for a change in significant influence over a permit holder); or
(b)
section 122 (which relates to the requirement to notify the Minister of a change in circumstances that may materially affect the Minister’s consideration of an application).
(2)
A person who commits an offence against this section is liable on conviction to a fine not exceeding $200,000.
147 Offence for failing to notify Minister of change in significant influence over permit holder
(1)
A person commits an offence if they contravene, or permit a contravention of, section 50 (which relates to the requirement to notify the Minister of a change in significant influence over a permit holder).
(2)
A person who commits an offence against this section is liable on conviction to a fine not exceeding $200,000.
(3)
In a prosecution of a person for an offence against this section, it is a defence if the defendant proves that they did not know, and could not reasonably be expected to have known, that they obtained, or ceased to hold, significant influence over the permit holder.
148 Offence for entering or carrying out activity in safety zone
(1)
A person commits an offence if—
(a)
they are the master of a ship; and
(b)
the ship enters or is present in a safety zone; and
(c)
the ship’s presence, or the activity carried out by or on the ship, in the safety zone contravenes the restrictions declared in a notice made under section 62 in relation to the safety zone.
(2)
A person commits an offence if—
(a)
they enter a safety zone; and
(b)
the person’s presence, or the activity carried out by the person, in the safety zone contravenes the restrictions declared in a notice made under section 62 in relation to the safety zone.
(3)
A person who commits an offence against subsection (1) or (2) is liable on conviction to a fine not exceeding $10,000.
(4)
No proceedings for an offence against this section may be brought in a New Zealand court without the consent of the Attorney-General in respect of an offence under this section committed by a person on board, or by a person leaving, a foreign ship.
(5)
In a prosecution of a person for an offence against this section, it is a defence if the defendant proves that they had a reasonable excuse for the contravention.
(6)
For the purposes of subsection (5), a reasonable excuse for a contravention includes, but is not limited to, the following:
(a)
it was necessary in order to save a person’s life or save a ship:
(b)
it was necessary to secure the safety of ORE infrastructure or other structures or equipment:
(c)
the person took all reasonable steps to avoid the contravention.
149 Offence for knowingly failing to meet decommissioning obligation or financial security obligation
(1)
A person commits an offence if—
(a)
they do any of the following:
(i)
contravene, or permit a contravention of, section 70 or 71 by failing to carry out or meet the costs of (or both) the decommissioning of any ORE infrastructure as required by subpart 2 of Part 3:
(ii)
act, fail to act, or engage in a course of conduct that results in the person not being able to meet all or part of their decommissioning obligation by the time the person is required to do so under section 74:
(iii)
contravene, or permit a contravention of, section 79 by failing to put in place, or maintain (or both), an acceptable security arrangement as required by subpart 3 of Part 3; and
(b)
they do so knowing that the failure, act, or course of conduct will have that result.
Guidance note
See also section 157, which provides that a person may be liable for a pecuniary penalty for contravening their decommissioning obligation or their financial security obligation.
(2)
If a body corporate commits an offence under this section, a person who is a director of that body corporate at the time the offence was committed also commits the offence.
(3)
A person who commits an offence under this section is liable on conviction,—
(a)
if they are an individual (including an individual director), to imprisonment for a term not exceeding 2 years or to a fine not exceeding $1 million, or both; or
(b)
in any other case, the greater of—
(i)
a fine not exceeding $10 million; and
(ii)
a fine not exceeding 3 times the cost of decommissioning or, in the case of a contravention of the financial security obligation, 3 times the amount by which the contravention reduced the required amount of the security (see section 80(2)(a) for how that amount is to be determined).
(4)
In a prosecution of a director for an offence against this section, it is a defence if the director proves that—
(a)
the person liable for carrying out the decommissioning obligation or financial security obligation (person A) took all reasonable steps to ensure that person A would meet person A’s obligation; or
(b)
the director took all reasonable steps to ensure that person A would meet person A’s obligation; or
(c)
in the circumstances, the director could not reasonably have been expected to take steps to ensure that person A would meet person A’s decommissioning obligation or financial security obligation.
(5)
Proceedings under this section may be commenced within 3 years after the matter giving rise to the offence was discovered or ought reasonably to have been discovered.
150 Offence for wilfully obstructing, hindering, resisting, or deceiving person executing powers
(1)
A person commits an offence if they wilfully obstruct, hinder, resist, or deceive any person in the execution of any powers conferred on that person by or under this Act.
(2)
A person who commits an offence against this section is liable on conviction to a fine not exceeding $3,000.
151 Offence for failing to provide information
(1)
A person commits an offence if they contravene, or permit the contravention of, section 104 (which relates to the requirement to provide information to the Minister or an enforcement officer).
(2)
A person who commits an offence against this section is liable on conviction to a fine not exceeding $20,000.
152 Offence for knowingly providing false information
(1)
A person commits an offence if—
(a)
they provide, or permit the provision of, false, altered, incomplete, or misleading information to a person performing functions or exercising powers under this Act or the regulations; and
(b)
they know that the information is false, altered, incomplete, or misleading.
(2)
A person who commits an offence against this section is liable on conviction to a fine not exceeding $800,000.
153 Offence for failing to comply with requirement of safety zone officer
(1)
A person commits an offence if they fail to comply with a requirement of a safety zone officer under section 110.
(2)
A person who commits an offence against this section is liable on conviction,—
(a)
if they are an individual, to imprisonment for a term not exceeding 12 months or to a fine not exceeding $15,000, or both; or
(b)
in any other case, to a fine not exceeding $150,000.
(3)
No proceedings for an offence against this section may be brought in a New Zealand court without the consent of the Attorney-General in respect of an offence under this section committed by a person on board, or by a person leaving, a foreign ship.
154 Offence for office holder having pecuniary interest
(1)
A person commits an offence if they contravene, or permit the contravention of, section 112 (which relates to the requirement for an office holder not to have a pecuniary interest in a permit).
(2)
A person who commits an offence against this section is liable on conviction to a fine not exceeding $20,000.
(3)
In a prosecution of a person for an offence against this section, it is a defence if the defendant proves that they did not know, and could not reasonably be expected to have known, that they held a pecuniary interest in a permit.
155 Offence for contravening compliance notice
(1)
A person commits an offence if they contravene, or permit the contravention of, section 130 (which relates to the requirement to comply with a compliance notice).
(2)
A person who commits an offence against this section is liable on conviction to a fine not exceeding $200,000.
(3)
In a prosecution of a person for an offence against this section, it is a defence if the defendant proves that they had a reasonable excuse for the contravention.
(4)
It is not an offence to fail to comply with recommendations in a compliance notice.
156 Offence for contravening enforceable undertaking
(1)
A person commits an offence if they contravene, or permit the contravention of, section 141 (which relates to the requirement not to contravene an enforceable undertaking).
(2)
A person who commits an offence against this section is liable on conviction to a fine not exceeding $200,000.
(3)
If an enforceable undertaking has been given, criminal proceedings may be taken for an offence within 6 months after—
(a)
the enforceable undertaking is contravened; or
(b)
it comes to the notice of the chief executive that the undertaking has been contravened; or
(c)
the chief executive agreed to the withdrawal of the undertaking.
Pecuniary penalties
157 Pecuniary penalty contravention
(1)
A person commits a pecuniary penalty contravention if they do any of the following:
(a)
contravene, or permit a contravention of, section 70 or 71 by failing to carry out or meet the costs of (or both) the decommissioning of any infrastructure as required by subpart 2 of Part 3:
(b)
act, fail to act, or engage in a course of conduct that results in the person not being able to meet all or part of their decommissioning obligation by the time the person is required to do so under section 74:
(c)
contravene, or permit a contravention of, section 79 by failing to put in place, or maintain (or both), an acceptable security arrangement as required by subpart 3 of Part 3.
(2)
A person commits a pecuniary penalty contravention against this section if the person—
(a)
actually commits a contravention set out in subsection (1); or
(b)
is involved in the contravention by—
(i)
aiding, abetting, counselling, or procuring the contravention; or
(ii)
inducing (by threats, promises, or otherwise) a person to commit the contravention; or
(iii)
conspiring with others to commit the contravention; or
(c)
attempts to actually commit or attempts to induce another person to actually commit the contravention; or
(d)
has been in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by another person.
158 Pecuniary penalty order
(1)
A court of competent jurisdiction may, on the application of an enforcement officer, make a pecuniary penalty order against a person if satisfied that the person has committed a pecuniary penalty contravention against section 156.
(2)
Proceedings under this section may be commenced within 3 years after the matter giving rise to the contravention was discovered or ought reasonably to have been discovered.
(3)
A pecuniary penalty order is an order that a person must pay to the Crown a pecuniary penalty that the court determines to be appropriate (a pecuniary penalty).
159 Reasonable mistake defence in pecuniary penalty proceedings
(1)
It is a defence to a proceeding for a pecuniary penalty order under section 157, in connection with a contravention of this Act, if the person proves that—
(a)
the contravention was due to a reasonable mistake or due to events outside of the person’s control; and
(b)
the contravention was remedied (to the extent that it could be remedied) as soon as practicable after the contravention was discovered by the person or brought to the person’s notice; and
(c)
the person has compensated or offered to compensate any person who has suffered loss or damage by that contravention.
(2)
For the avoidance of doubt, a mistake does not include a mistake of law or a mistake in the interpretation of any enactment or of any document.
160 Maximum pecuniary penalty
(1)
The maximum pecuniary penalty that a person can be ordered to pay is,—
(a)
in the case of an individual, $500,000; or
(b)
in the case of a body corporate, the greater of—
(i)
$10 million; and
(ii)
if the court is satisfied that the contravention resulted in a remedial cost, 3 times the remedial cost (if it can be readily ascertained); and
(iii)
if the remedial cost cannot be readily ascertained, 10% of the turnover of the person and all its interconnected bodies corporate (if any) in each accounting period during which the contravention occurred.
(2)
In this section, remedial cost means a cost to the Crown or another person in order to remedy the effects of the contravention.
161 Considerations for court in determining amount of pecuniary penalty
In determining an appropriate pecuniary penalty, the court must take into account all relevant matters, including the following:
(a)
the nature and extent of the contravention:
(b)
the nature and extent of any loss or damage suffered by any person because of the contravention:
(c)
any gains made or losses avoided by the person in contravention:
(d)
the circumstances in which the contravention took place (including whether the contravention was intentional, inadvertent, or caused by negligence).
162 Rules of civil procedure and civil standard of proof apply
A proceeding under this subpart for a pecuniary penalty order is a civil proceeding and—
(a)
the rules of court and rules of evidence and procedure for civil proceedings apply; and
(b)
the standard of proof is the standard of proof that applies in civil proceedings; and
(c)
the chief executive may, by order of the court, obtain discovery and administer interrogatories.
163 Two or more civil penalty contraventions
(1)
This section applies if the same, or substantially the same, conduct of a person constitutes a pecuniary penalty contravention against section 157 for a contravention of 2 or more provisions of this Act.
(2)
Proceedings may be brought against the person in relation to 2 or more contraventions, but only one civil penalty order may be made against the person in relation to the conduct.
164 Relationship between pecuniary penalties and criminal liability
(1)
A criminal proceeding for an offence may be commenced against a person in relation to particular conduct whether or not a proceeding for a pecuniary penalty order under section 157 has been commenced against the person in relation to the same conduct.
(2)
A proceeding under section 158 against the person in relation to particular conduct is stayed if a criminal proceeding against the person for an offence in relation to the same conduct results in conviction.
Subpart 3—Appeals and regulations
Appeals
165 Right of appeal to High Court on question of law
(1)
A person may appeal to the High Court against the following decisions of the Minister if the person is a person in respect of whom the decision was made:
(a)
rejecting an application for a commercial permit under section 28:
(b)
rejecting an application to make a minor extension to the permit area under section 37:
(c)
rejecting an application to extend the duration of a permit under section 39 or 40:
(d)
declining to give approval for a transfer under section 42:
(e)
declining to give approval for a change in significant influence under section 48:
(f)
revoking an approval for a change in significant influence under section 49:
(g)
revoking a permit under section 55.
(2)
An appeal under this section may only be on a question of law.
(3)
An appeal must be made within 20 working days after the date on which notice of the decision was communicated to the appellant or any further time that the High Court may allow.
(4)
The High Court may confirm, reverse, or modify the decision.
(5)
Nothing in this section affects the right of any person to apply for judicial review.
166 Consequences of appeal to High Court
If an appeal to the High Court is lodged under section 165, pending the determination of the appeal,—
(a)
every decision of the Minister appealed against continues in force; and
(b)
no person is excused from complying with any of the provisions of this Act on the ground that an appeal is pending.
Regulations and cost recovery
167 Regulations
(1)
The Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations for all or any of the following purposes:
Regulations contemplated by Act
(a)
providing for anything this Act says may or must be provided for by regulations:
Permits
(b)
prescribing matters relating to the granting of permits, including—
(i)
requirements for permits (including requirements relating to an applicant):
(ii)
matters that the Minister or chief executive must have regard to:
(iii)
persons or classes of persons whom the Minister or chief executive must consult:
(iv)
conditions that permits are subject to, the kinds of conditions that the Minister may impose on those permits, or matters to which conditions imposed by the Minister may relate:
Prescribed manner
(c)
prescribing the manner in which things may be done, including—
(i)
by whom, when, where, and how the thing must be done:
(ii)
the form that must be used in connection with doing the thing:
(iii)
what information or other evidence or documents must be provided in connection with the thing:
(iv)
requirements with which information, evidence, or documents that are provided in connection with the thing must comply:
(v)
that fees must be paid in connection with doing the thing:
Other regulations
(d)
prescribing information that must be included or provided for the purposes of this Act:
(e)
providing for anything incidental that is necessary for carrying out, or giving full effect to, this Act.
(2)
The Minister may recommend regulations under subsection (1)(b) only if—
(a)
the Minister has consulted any persons that the Minister considers are likely to be significantly affected by the regulations; and
(b)
the Minister is satisfied that the regulations are necessary or desirable after having regard to the purpose of this Act and to the relevant costs and benefits.
(3)
Regulations made under this section are secondary legislation (see Part 3 of the Legislation Act 2019 for publication requirements).
168 Regulations relating to fees and levies
(1)
The Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations—
(a)
imposing a levy on permit holders under this Act for the purpose of recovering all or part of the reasonable direct and indirect costs of administering this Act:
(b)
specifying the permit holders, or classes of permit holders, who are liable to pay the levy:
(c)
imposing a levy on ORE transmission infrastructure owners for the purpose of recovering all or part of the reasonable direct and indirect costs of administering this Act as it relates to decommissioning of ORE transmission infrastructure:
(d)
specifying the ORE transmission infrastructure owners, or classes of ORE transmission infrastructure owners, who are liable to pay the levy:
(e)
specifying the levy, or how the levy or rates of levy are calculated:
(f)
specifying when and how the levy is to be paid:
(g)
including in the levy, or providing for the inclusion in the levy, any shortfall in recovering the actual costs:
(h)
to refund, or provide for refunds of, any over-recovery of the actual costs:
(i)
requiring the payment to the chief executive of fees in connection with—
(i)
an application or request to the Minister or chief executive to perform or exercise any function, duty, or power under this Act:
(ii)
the performance or exercise of any other function, duty, or power under this Act:
(j)
prescribing the amounts of the fees referred to in paragraph (i) or the manner in which those fees are to be ascertained:
(k)
providing for waivers, discounts, or refunds of the whole or any part of a levy or fee for any case or class of cases.
(2)
Regulations made under this section are secondary legislation (see Part 3 of the Legislation Act 2019 for publication requirements).
169 Chief executive or Minister may refuse to act if fee not paid
The chief executive or the Minister (as applicable) may refuse to perform or exercise a function, duty, or power under this Act until the fee prescribed by the regulations is paid.
170 Fees and levies recoverable as debt due
An unpaid fee or levy may be recovered by the chief executive in a court of competent jurisdiction as a debt due to the Crown.
171 Interest on unpaid levy
(1)
If a person does not fully pay, by the due date, any levy payable under this Act (the original amount), the chief executive may make a written demand for the payment of interest on the part of the original amount that remains unpaid.
(2)
The person is liable for the interest payable and the interest must be calculated for every month or part of a month after the due date during which the original amount remains unpaid in full.
(3)
Interest must be calculated in accordance with the following formula:
a = (b × c) ÷ 12
where—
- a
is the interest payable
- b
is any part of the original amount that remains unpaid at the end of the month for which the interest is calculated
- c
is the taxpayer’s paying rate, as defined in section 120C of the Tax Administration Act 1994.
(4)
Any payment the chief executive receives or applies on account of the person’s liability to pay an original amount must first be applied towards payment of the interest.
Compare: 1991 No 70 s 99J
Part 5 Amendments to other Acts
Subpart 1—Amendments to Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012
172 Principal Act
This subpart amends the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012.
173 Section 4 amended (Interpretation)
(1)
In section 4(1), definition of accepted decommissioning plan, after “section 100B”
, insert “or 100F”
.
(2)
In section 4(1), definition of non-notified activity, paragraph (c), after “section 38(3)”
, insert “or 38C”
.
174 Section 29E amended (Decommissioning plans)
(1)
In section 29E(1)(a), after “section 100A(2)”
, insert “or 100E(2)”
.
(2)
In section 29E(1)(b), after “section 100B(1)(a)”
, insert “or 100F(1)(a)”
.
(3)
In section 29E(1)(c), after “section 100B(1)(b)”
, insert “or 100F(1)(b)”
.
175 New sections 38A to 38C inserted
After section 38, insert:
38A Applicants for marine consents related to ORE generation infrastructure activities must hold permit under Offshore Renewable Energy Act 2024
(1)
This section applies to an applicant for a marine consent for any ORE generation infrastructure activities within the meaning of the Offshore Renewable Energy Act 2024.
(2)
The applicant must be the permit holder of a current feasibility permit or commercial permit granted under the Offshore Renewable Energy Act 2024 that applies to the area to which the consent applies, and the details of the feasibility or commercial permit must be provided in the application.
(3)
A consent authority may, at any time, determine that the application is incomplete if the applicant does not comply with subsection (2).
Guidance note
See also sections 12 and 144 of the Offshore Renewable Energy Act 2024, which prohibit a person from giving effect to a marine consent by undertaking ORE generation infrastructure activities unless the person is a holder of a commercial permit under that Act.
38B Marine consents related to ORE generation infrastructure activities cancelled if commercial permit under Offshore Renewable Energy Act 2024 expires or is revoked or surrendered in full
(1)
This section applies to a marine consent for any ORE generation infrastructure activities within the meaning of the Offshore Renewable Energy Act 2024.
(2)
The consent is automatically cancelled if and when the holder of the consent ceases to be the permit holder of a current commercial permit granted under the Offshore Renewable Energy Act 2024 that relates to the area subject to the consent by reason of the expiry or revocation or surrender in full of the commercial permit.
38C Application for decommissioning of offshore renewable energy infrastructure
(1)
If an application for a marine consent relates to an activity to decommission ORE infrastructure within the meaning of that term in the Offshore Renewable Energy Act 2024,—
(a)
the application must include an accepted decommissioning plan that covers the activity for the purposes of this Act; and
(b)
the proposed carrying out of the activity must be in accordance with that plan.
(2)
See sections 100E to 100H (which relate to assessment, acceptance, and amendment of the decommissioning plan).
176 New sections 100E to 100H inserted
After section 100D, insert:
100E Submitting decommissioning plan for offshore renewable energy infrastructure
(1)
The owner or operator of any ORE infrastructure within the meaning of the Offshore Renewable Energy Act 2024 may submit a decommissioning plan to the Environmental Protection Authority for acceptance.
(2)
The decommissioning plan must—
(a)
identify the infrastructure that is to be decommissioned; and
(b)
fully describe how it is to be decommissioned; and
(c)
if it is a revised decommissioning plan referred to in section 100G, identify the changes from the accepted decommissioning plan that it is intended to replace; and
(d)
include any other information required by the regulations.
(3)
The regulations may elaborate on what information is required to be included in the plan under subsection (2)(a) to (c).
100F Assessment and acceptance of decommissioning plan for offshore renewable energy infrastructure
(1)
When a decommissioning plan is submitted under section 100E, the Environmental Protection Authority must—
(a)
deal with the plan in accordance with the process prescribed by the regulations; and
(b)
assess the plan against the criteria prescribed by the regulations.
(2)
Having assessed the plan, the EPA must,—
(a)
if it is satisfied that the plan meets those criteria, accept the plan as the accepted decommissioning plan for the infrastructure to which it relates; or
(b)
otherwise refuse to accept the plan.
(3)
To avoid doubt, the EPA may refuse to accept a plan if it considers that it does not have adequate information to determine whether it meets the criteria.
(4)
The EPA must give to the owner or operator of the infrastructure—
(a)
written notice of its decision under subsection (2); and
(b)
if it refuses to accept the plan, written reasons for that decision.
100G Amendment of accepted decommissioning plan for offshore renewable energy infrastructure
(1)
If the owner or operator of any ORE infrastructure wishes to amend the decommissioning plan accepted under section 100F (the current plan), it may submit a revised decommissioning plan to the Environmental Protection Authority under section 100E.
(2)
If the EPA accepts the revised plan under section 100F(2)(a),—
(a)
the current plan ceases to be the accepted decommissioning plan; and
(b)
the revised plan becomes the accepted decommissioning plan in its place.
100H Requirement for public consultation on decommissioning plan for offshore renewable energy infrastructure
(1)
Regulations made for the purposes of section 100F must provide for public consultation in relation to a decommissioning plan that has been submitted for acceptance.
(2)
However, in relation to a revised decommissioning plan referred to in section 100G, the regulations may provide for either of the following:
(a)
that public consultation is required only in relation to the changes from the current plan (as defined in section 100G) to the revised plan; or
(b)
that public consultation is not required if the EPA is satisfied that the effect on the environment and existing interests of implementing the revised decommissioning plan would not be materially different from, or would be less than, the effect of implementing the current plan.
(3)
Regulations are to be regarded as providing for public consultation in relation to a plan if the regulations—
(a)
require the EPA to publicly notify the plan; and
(b)
allow any person who wishes to make a submission about the plan a reasonable opportunity to do so; and
(c)
require the owner or operator of the infrastructure to consider each submission and—
(i)
amend the plan in response to the submission; or
(ii)
explain to the EPA why it does not propose to amend the plan in response to the submission.
177 Schedule 1 amended
In Schedule 1,—
(a)
insert the Part set out in Schedule 2 of this Act as the last Part; and
(b)
make all necessary consequential amendments.
Subpart 2—Amendments to Resource Management Act 1991
178 Principal Act
This subpart amends the Resource Management Act 1991.
179 New sections 88AA and 88AB inserted
After section 88, insert:
88AA Applicants for resource consents related to ORE generation infrastructure activities must hold permit under Offshore Renewable Energy Act 2024
(1)
This section applies to an applicant for a resource consent for any ORE generation infrastructure activities within the meaning of the Offshore Renewable Energy Act 2024.
(2)
The applicant must be the permit holder of a current feasibility permit or commercial permit Act granted under the Offshore Renewable Energy Act 2024 that applies to the area to which the consent applies, and the details of the feasibility or commercial permit must be provided in the application.
(3)
A consent authority may, at any time, determine that the application is incomplete if the applicant does not comply with subsection (2).
Guidance note
See also sections 12 and 144 of the Offshore Renewable Energy Act 2024, which prohibit a person from giving effect to a resource consent by undertaking ORE generation infrastructure activities unless the person is a holder of a commercial permit under that Act.
88AB Resource consents related to ORE generation infrastructure activities cancelled if commercial permit under Offshore Renewable Energy Act 2024 expires or is revoked or surrendered in full
(1)
This section applies to a resource consent for any ORE generation infrastructure activities within the meaning of the Offshore Renewable Energy Act 2024.
(2)
The consent is automatically cancelled if and when the holder of the consent ceases to be the permit holder of a current commercial permit granted under the Offshore Renewable Energy Act 2024 that relates to the area subject to the consent by reason of the expiry or revocation or surrender in full of the commercial permit.
180 Schedule 12 amended
In Schedule 12,—
(a)
insert the Part set out in Schedule 3 of this Act as the last Part; and
(b)
make all necessary consequential amendments.
Schedule 1 Transitional, savings, and related provisions
s 5
Part 1 Provisions relating to this Act as enacted
There are no transitional, savings, or related provisions in this Act as enacted.
Schedule 2 New Part 3 inserted into Schedule 1 of Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012
s 177
Part 3 Provisions relating to Offshore Renewable Energy Act 2024
4 Stay on applications made before permit granted under Offshore Renewable Energy Act 2024
(1)
This clause applies to an application for a marine consent in respect of any offshore renewable energy generation infrastructure activities, within the meaning of the Offshore Renewable Energy Act 2024, that is made before the commencement of that Act.
(2)
The application is stayed, and cannot be granted, until the applicant is the holder of a current feasibility permit or commercial permit that has been granted under that Act in respect of those activities.
Schedule 3 New Part 8 inserted into Schedule 12 of Resource Management Act 1991
s 180
Part 8 Provisions relating to Offshore Renewable Energy Act 2024
48 Stay on applications made before permit granted under Offshore Renewable Energy Act 2024
(1)
This clause applies to an application for a resource consent in respect of any offshore renewable energy generation infrastructure activities, within the meaning of the Offshore Renewable Energy Act 2024, that is made before the commencement of that Act.
(2)
The application is stayed, and cannot be granted, until the applicant is the holder of a current feasibility permit or commercial permit that has been granted under that Act in respect of those activities.
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Offshore Renewable Energy Bill
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