WP 03/02
PROPERTY RIGHTS AND ENVIRONMENTAL POLICY:
A NEW ZEALAND PERSPECTIVE
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The high seas are the water column, including the surface, beyond the EEZ. The area is
the seabed and subsoil beyond continental shelves and is administered by the
International Seabed Authority (ISA).
The RMA does not apply outside territorial waters, so there is no basis for authorising
aquaculture or for considering the impact of seabed mining on the environment and other
users. The Continental Shelf Act 1964 deals with prospecting and mining of petroleum
(through the Crown Minerals Act) and minerals, and with sedentary species (through the
Fisheries Act), but does not provide for processes for issuing licences, or for public
participation, environmental assessment or monitoring.
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6.6 Other natural resources
Specific property regimes in New Zealand are strongly focused on natural resources, as
evidenced by the discussions above on water, fisheries, land and land use. This is
presumably because other forms of property are adequately covered by general law or
intellectual property law and because of the common or open access nature of many
natural resources. Two other forms of natural resources where specific regimes exist are
minerals (where deposits often cross surface property boundaries) and radio frequencies
(in limited supply and subject to interference).
In New Zealand, the Crown owns by statute a significant proportion of minerals, and
issues prospecting, exploration and mining permits for them, based on first application.
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Mining permits give exclusive rights to the permit holder, with their consent required
before another permit for a different mineral (except petroleum) can be granted over the
same area, but royalties to the Crown apply.
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Non-Crown owned minerals are normally
owned by the surface land owner. Much land is open to exploration without consent
(Johnson, 1992), thereby limiting property rights in land, although access for mining is
subject to general law.
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The RMA controls use of land for prospecting, exploration and
mining, with resource consents normally required other than for prospecting.
Use of radio spectrum for transmission is excludable but rival; ie, access to transmission
rights can be legally controlled, but use of a particular piece of spectrum can affect other
uses of the same or neighbouring spectrum. Use of spectrum for reception on the other
hand is excludable, through encoding, but can be non-rival; ie, reception of a signal by
one person does not necessarily affect reception by another person (eg, broadcasts are
non-rival) Spectrum is generally non-homogenous, finite, non-depletable and non-
storable.
Radio frequency rights are used for a range of services, including TV, radio, mobile
phones, cordless phones, remote controls etc. The purpose of regulation is presumably
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There is also the Territorial Sea, Contiguous Zone and Exclusive Economic Zone Act 1977 but no regulations have been made
under it.
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Crown owned minerals in New Zealand include all petroleum, gold, silver, and uranium existing in its natural condition in land and
any other mineral existing in its natural condition in land alienated from the Crown after passage of the Crown Minerals Act 1991
(except pounamu [greenstone], see Ngai Tahu (Pounamu Vesting) Act 1997), and every mineral reserved in favour of the Crown by
any enactment notwithstanding the repeal of that enactment.
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For mineral permits where production is valued at more than $100,000 per year there is a requirement to pay a royalty to the
Government of either 1% of sales revenue (ad valorem royalty or AVR) or 5% of profits (accounting profit royalty or APR), whichever is
the greater in any given year. Where revenues are less than $1 million per year, the APR royalty does not need to be paid as only the
AVR royalty applies. <http://www.med.govt.nz/crown_minerals/index.html>
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Mining in New Zealand includes greenstone, (pounamu), petroleum, gold, silver, coal, ironsand, aggregate, limestone, clay,
dolomite, marble, pumice, salt, serpentinite, and zeolite.