New Zealand Subsoil Using Legal Regime

Manin Iaroslav PhD in Law Associate Professor, Department of Legal Studies and Practical Jurisprudence, Institute for Social Sciences of The Russian Presidential Academy of National Economy and Public Administration 119571, Russia, Moscow, Vernadsky Prospekt, 82, building 2 manin-yv@ranepa.ru Other publications by this author

To the Europeans in 1642, thanks to the navigator from Groningen – Abel Janszon Tasman (nieder. Abel Janszoon Tasman), it became known about another new island, whose inhabitants – Maori, who inhabited it since the XI century, gave a decisive rebuff to the colonizers of the Republic of the Seven United Lower Lands (Nieder. Republiek der Zeven Verenigde Nederlanden), which became the predecessor of the modern Kingdom of the Netherlands. By the name of one of these seven republican lands – Zealand (nider. Zeeland) was given the geographical name of the territories discovered by the navigator – New Zealand.^[1] Captain James Cook of the British Royal Navy in 1769 drew up a map of the coastline of the New Zealand Islands, which became the basis for the military, economic and ideological expansion of the Kingdom of Great Britain.^[2] In 1788, the British Crown incorporated the islands of New Zealand into the colony of New South Wales (Eng. New South Wales),^[3] which is now a state of the Australian Union, separated into a separate colony only in 1841, self-governing since 1856. ^[4]In 1907, the state received the status of a dominion of the British Empire (British Empire Dominion of New Zealand),^[5] and in 1947 ^[6] entered the Westminster system of government ^[7], based on the Statute of Westminster of 1931 (English Statute of Westminster, 1931).

^[8] The state of New Zealand with a monarchical form of government is de facto part of the Kingdom of New Zealand, unrecognized in international law, together with Tokelau, the Cook Islands, Niue and the Ross Territory.^[9] De jure New Zealand is a unitary state and consists of seventeen administrative territorial units – regions (English region), sixteen of them are located on the New Zealand islands of North (English North Island) and South (English South Island) and one of them – Chatham is located about 680 kilometers from these islands on the archipelago of the same name Chatham (English Chatham Islands), on which the "unitary authority" is established.

The Regions of New Zealand (English Regions of New Zealand) are the second level of administrative–territorial division and local self-government, where regional councils operate. The first level of administrative territorial division and local self–government - local authority (English Local authority) includes the districts of New Zealand (Districts of New Zealand), in which local self-government is carried out by local councils (district and city) and equivalent bodies of "unitary authority". Thus, on the basis of the New Zealand Law "On Local Self-Government", adopted in 2012, as amended in 2022, (English Local Government Act 2002)^[10] in this state, local self-government is carried out by regional and local councils, as well as bodies of "unitary authority", while local self-government bodies do not have horizontal and vertical subordination, they act independently within their legal powers in their territorial unit. Some districts are sometimes located within the borders of several regions, and their local councils function regardless of how many regional councils (up to four) cover the territory of a cross-border area with their powers, because local self-government is not always carried out in strict relation to the geographical boundaries of districts and regions, but in relation to extraterritorial electoral districts that include the population of the respective localities, in which the elected bodies of local and regional authorities operate with separate non-overlapping powers. Thus, local self-government in New Zealand is not built within administrative territorial units, but within electoral districts that do not always correspond to districts, while there is no administrative inclusion of districts into regions, subordination and hierarchy of local government. "Unitary authority" is carried out by a unitary territorial body to which its functions and powers are transferred by law or delegated by the regional council, they can be combined with the functions and powers of the first-level local government, as, for example, in Chatham, where there is neither a regional nor a local council, they are replaced by a unitary authority – Chatham's advice. In other cases, territorial bodies of unitary authority are created for the period of reorganization of regional and local authorities. It should be noted that in some cases, district and city councils are given part of the powers of the regional council by delegation, but the regional council continues to exist, exercising the remaining powers. Local authorities exercising delegated powers of the existing regional councils also belong to the "unitary authority". The combination of two or more powers in one body, even with partial transfer of powers, is commonly called "autocracy" in New Zealand. The Regional Council manages natural resources within the relevant territory</span>, including the management of rivers and other fresh waters, coastal waters, including the organization of environmental safety, prevention of oil spills and other pollution of the marine environment, the organization of transport infrastructure.

Territorial bodies (district and city councils) are responsible for environmental safety, nature reserves, control the construction of real estate and roads, control the use of the environment, land use, including pollution of soils, lakes and rivers. Consequently, certain functions in the field of ecology and nature management in New Zealand are carried out by regional and territorial local governments. Thus, 78 local self–government bodies have the functions and powers to manage natural resources: 11 regional (despite the fact that there are 17 regions, not every region has its own council, as mentioned earlier, sometimes an electoral district of one regional council includes territories of different regions, and in other cases unitary authorities are created - their 6) and 67 territorial authorities (54 district councils, 12 city councils, bodies of "autocracy" - Auckland Council, 1 city and 4 district councils). The list of administrative territorial units of New Zealand, the corresponding regional councils and local authorities (territorial bodies) of the two-tier system of local self-government is published on the official website on the Internet.^[11] This information is of practical importance for those who are engaged in the exploitation of natural resources, it allows determining the jurisdiction for official appeals of subsoil users.

Effective interaction between local authorities, including on environmental management issues, is ensured by the conclusion of three-year agreements between them (English Triennial agreements), especially if it concerns natural objects located in the jurisdiction of several local governments. Such agreements are similar to interstate compacts – constitutional agreements applied in environmental Law The United States of America and have a common English "root", since the states belong to the same legal system, and were previously members of the same legal family. For example, a three-year agreement was concluded with respect to the Bay of Plenty (English Bay of Plenty Mayoral Forum Triennial Agreement)^[12], it is valid until October of the current year.

Three-year agreements on joint management in relation to natural objects are concluded not only on the basis of the New Zealand Law "On Local Self-Government", but also the New Zealand Law "On Resource Management" (Eng. Resource Management Act 1991).^[13] The right to conclude an agreement on joint management of natural resources is exercised only by those local authorities that have the necessary human and material resources, as well as technical capabilities. The intention to conclude a three–year agreement is notified to the Minister of the Environment (Minister of the Environment, here and further in the text in brackets is the text in English - author's note). The agreement, as follows from the context, is concluded for three years and can be extended an unlimited number of times. Part 3 of the New Zealand Law "On Local Self-Government" indicates that the described system of local self-government, including in terms of natural resource management, does not apply to any relations in the territorial sea of New Zealand, on the island of Kermadec (Kermadec Islands), sub-Antarctic Islands (Sub-Antarctic Islands), to which include the Antipodes Islands, Auckland Islands, The Bounty Islands, Campbell Island and the islands adjacent to Campbell Island, and The Snares Islands; do not apply to the Three Kings Islands (Three Kings Islands), which include a Large Island (Great Island), a Southwestern Island (South West Island), a Western Island (West Island), a Northeastern Island (North East Island), as well as several islets and rocks (several islets and rock stacks). The functions and powers of local authorities in these territories are carried out by the Minister of the Crown, to whom the relevant duties are assigned by New Zealand law or the Prime Minister. Within the State borders in the territories that make up the exception, except for the territorial sea, The Ministry of Internal Affairs of New Zealand (The Department of Internal Affairs), being a unitary authority by virtue of the law, and the corresponding minister together with other authorized ministers, exercise "sovereignty" instead of local self-government bodies. The Minister of Internal Affairs together with the Secretary of Internal Affairs (Secretary for Internal Affairs) are obliged to assist the local government, but it is not subordinate to them. The presented management model corresponds to the Australian one, when several union ministers head one ministry or do not have a ministry subordinate to them, but are empowered in a certain area of public relations.

Local councils have the right to control any legal entities, including industry, including subsoil users and electric power organizations, unless the Governor-General of New Zealand excludes this or that person from the list of companies controlled by local authorities. The decision on the construction of any infrastructure facilities is made by the local government: at the request of a person wishing to develop the economy within the powers of the local council, the latter makes a decision on the construction of any object or on the use of land for subsoil use purposes. At the same time, the local self-government body has the right to transfer for development purposes such a nature protection area as a park and a non-status protected area, nature reserves and other protected natural objects are not provided for the purposes of nature management. Drilling and development of mineral deposits in an open way in protected natural areas, with the exception of parks and non–status protected areas, is not possible by decision of the district council. Inclined drilling for protected natural areas, with the exception of non-status protected areas and parks, as in the United States of America, is not allowed. I would like to note that the territorial body of local self-government has the right, at its discretion, to promptly intervene in the economic activities of legal entities that cause harm to the natural environment, eliminate violations of environmental legislation, environmental and other damage at the expense of the local budget, and compensate the costs of relevant environmental protection operations in court, collecting them from the offender.^[14] The given authority of the local government provides real municipal control of economic entities.

The Minister of the Interior of New Zealand may request information on an environmental or other problem from a regional or territorial local government body, which, although they elect leaders – chairmen, mayors, executive directors of councils and so on, but only for the organization of local government activities. The Councils act collectively and make decisions if there is a quorum. Failure to provide information to the specified Minister by one or another council without a valid reason entails sending a ministerial audit of this council with the possible appointment of a representative of the New Zealand Ministry of the Interior to it.

The Minister of the Interior of New Zealand, in case of dishonesty of the municipal council and its abandonment, as well as in case of good faith of the council, but if local forces and means are unable to solve an environmental, environmental or other problem, may introduce external management in the relevant territory and appoint a Crown Manager for the required period. In case of inefficiency of external management or sabotage of the orders of the manager appointed by the minister, a ministerial commission leaves to solve the problem. In this case, members of local bodies are removed from decision-making, but formally retain their status until the end of the term of office of the elected body, the next elections to which may be postponed by the Minister until the resolution of an environmental or other problem, or another emergency situation, the elimination of the consequences of natural disasters, the elimination of man-made disasters, the elimination of damage to nature, and so on.

It follows from the above that not only local self-government bodies, but also executive authorities of New Zealand take part in environmental management, which implies clarifying the constitutional and administrative nature of the state apparatus in the field of natural resources management, identifying their modern system and structure, as well as their genesis.  The New Zealand Constitutional Act of 1852 (The New Zealand Constitution Act)^[15] established the system and structure of public authorities and local authorities, carried out by superintendents elected by the population at the ballot of the constituency, the result of which was approved by the Governor-General.

The latter represented the ruler of New Zealand – the Queen of England, who actually led the state, and not the government or the tricameral Parliament – the General Assembly (consisting of the Governor-General, the Legislative Council and the House of Representatives), created to promptly solve state and local problems, "release political steam" and "divert the eyes" as a "transmission link". On the basis of subparagraph 10 of paragraph 19 of the Act in question, the lands of New Zealand could be owned by the Crown or by indigenous peoples, which had never been terminated before. Legal regulation on the issue of ownership of these lands could not be carried out by elected provincial councils, their decisions were approved by superintendents, and bills adopted by local councils, after coordination with the superintendent, were approved by the Governor-General. At the same time, the General Assembly was to receive reports on the purchase of land of the local population on the basis of paragraph 62 of the New Zealand Constitutional Act of 1852. The Crown lands were managed by the Governor-General (head of the New Zealand Government). Thus, there was the property of the monarch, indigenous peoples and private ownership of land by individuals and legal entities. It is significant that the communal property of American Indians of the United States of America, Australian Aborigines, Canadian Eskimos or Inuit Aborigines, as well as New Zealand Maori, was not and is not the private common joint or shared property of tribal members. Communal property in Anglo-American law is a special kind of collective property of the living indigenous people and their descendants (the lands belong not only to the living, but also to an indefinite circle of unborn individuals), as we have written about in other works. Thanks to this method, the Crown reserved part of the lands of indigenous small peoples for their use in the future as local tribes were included in the civilization. For one thing, this method of reservation made it possible to preserve the ecology, reserve the natural resources located on these lands, as well as the subsoil located under these lands, in addition, increase the prices of land and other natural resources that were in civil circulation (due to artificial supply restrictions), monopolize the purchase of native lands by the monarch at a fixed price (redemption tariff below the market value of real estate) in case the Crown needs new lands. The property of the New Zealand natives, if necessary, could be annulled by the General Assembly, the lands seized from the indigenous population became the property of the Crown – patrimonial lands or vacant lots, which were leased by the Governor-General and superintendents under the control of Parliament for the Crown to receive income from their use, or commercialized in other ways, including by alienation to private individuals at the request of market value.

The redemption of the lands of the natives was provided for in paragraph 73 of the constitutional act and could only be carried out by the monarch or the heirs to the throne. The Constitutional Act of New Zealand of 1852 indicates that the monarch, the heirs to the throne, corporations under the protection of the Crown, indigenous tribes have secured ownership of land for the purpose of seizing their lands in favor of the English monarch free of charge or for a ransom fee established by the Parliament of New Zealand. The lands contained other natural resources that are not directly mentioned in the constitutional norms, but based on the right of succession, it can be concluded that the fate of other resources followed the fate of the earth.

Constitutional Act of 1986 (Constitution Act 1986)^[16] replaced its predecessor of 1852, it entered into force on January 1, 1987.    

The head of state in New Zealand today is The sovereign (The Sovereign), this title is transferred in the order of succession to the English throne. As already mentioned, the Kingdom of New Zealand, which includes the internationally recognized State of New Zealand, is not a subject of international law, but the State of New Zealand itself is a kingdom, although it does not contain this concept in its name, unlike, for example, the Kingdom of Canada, which is led by the same monarch as New Zealand New Zealand – Elizabeth Alexandra Mary Windsor.^[17] The Queen of New Zealand is represented by the Governor-General of New Zealand (General-Governor)^[18] – the head of the executive power of this state, during the period of his persistent inability to perform his official duties and exercise his powers, or during the periods of the vacant post of Governor-General, the functions of the governor-General are performed by the Administrator of the Government. The Sovereign Elizabeth II appointed Dame Cindy Kiro as Governor-General of New Zealand on October 21, 2021. The Monarch and his representative act on the recommendation of the Executive Council, the de facto Government of New Zealand, consisting of Ministers of the Crown and members of the executive Council (members of the government who do not have the status of a royal minister – "ministers without portfolio"), each of whom must be a member of parliament. Any member of the Executive Council, if circumstances so require, may perform any function, duty or authority of the Royal Minister. The Deputy Royal Ministers are appointed by the Governor-General from among the members of the Parliament of New Zealand. The Government of New Zealand^[19], headed since October 26, 2017 by the Prime Minister - Jacinda Kate Laurell Ardern (Jacinda Kate Laurell Ardern) – the leader of the Labor Party, the Cabinet of New Zealand as part (department) There is no de jure Privy Council of Her Majesty (compared to other states of the Westminster system of government), but de facto they traditionally function on the basis of the executive council of the state. Based on political custom, the Prime Minister is appointed by the Governor-General and acts on the principle of primus inter pares, without having constitutional powers. Legally, the head of the Government as part of the executive Council is the Governor-General, and in fact – the First Minister of the Crown (Prime Minister). This is how the executive power is arranged, regulating the relations of nature use and making decisions (exercising public administration) in the field of subsurface use within its competence. Legal regulation and administration in this area is implemented by the executive branch with the participation of the Solicitor General (Solicitor-General) – the chief lawyer of the State, who may be entrusted with the powers of the Attorney General (Attorney-General) – the Minister of the Crown. The latter manages the system of bodies of the New Zealand Prosecutor's Office overseeing compliance with environmental legislation.

The laws of New Zealand in the field of ecology and subsoil use, as well as other legislative acts, are adopted only by a bicameral parliament. It consists of the Sovereign of New Zealand, represented by the Governor-General, and the House of Representatives, formed on an elective basis by New Zealand subjects. A bill in New Zealand becomes law from the moment it is signed by the Sovereign or the Governor-General. Despite the declaration of the principle: "The Queen reigns, but does not rule," this is not so. Such a declaration is a "political anesthesia" that serves as "green glasses" for the residents of the "emerald city" – New Zealand and other states headed by the Queen of the United Kingdom of Great Britain and Northern Ireland, that is, the "Potemkin village" to create the illusion of a pseudo-democratic society. New Zealand has some explaining the role of the monarchy stable expression: "The sovereign rules, but the government rules, as long as the monarch rules," or another interpretation of "The sovereign rules, but the government rules, as long as it is loyal to the monarch (as long as it works in the interests of the monarch)." The conclusion that can be drawn from the analysis of the constitutional legislation of New Zealand: in fact, this state is an absolute monarchy, hiding behind the form – the "screen of democratic values and freedoms" of the constitutional autocracy. Thus, the management of natural resources is carried out in the interests of the Crown, while the state authorities of New Zealand are delegated not strategic management of the country, but operational. The solution of local issues by regional and territorial councils is designed to shift political responsibility for the well-being of subjects to them and create democratic institutions for solving problems by local authorities, the range of which is determined by parliament with the highest permission. Strategic management of New Zealand is carried out by the sovereign, including in the field of subsoil use, his decisions are implemented both directly and through other constitutional institutions: the Governor-General, Parliament, executive Council. New Zealand has established a State management mechanism in the field of environment and subsoil use. The executive authorities that manage subsurface use and carry out regulatory regulation in this area, as a rule, are royal ministries with the status of departments of the Executive Council of New Zealand, and other organizations.

^[20] Let's consider the mechanism of state management of subsoil use in more detail, it includes the executive authorities listed below.

Firstly, it is the Ministry of Primary (Raw Materials) Industry (Ministry for Primary Industries)^[21], headed simultaneously by three ministers Stuart Nash (Stuart Nash) – Minister of Forestry (Minister of Forestry); Damien O'Connor (Damien O'Connor), who has three "ministerial portfolios" - Minister of Agriculture Minister of Agriculture (Minister of Agriculture), Minister of Biosecurity (Minister for Biosecurity), Minister of Rural Communities (Minister for Rural Communities); Ayesha Verrall (Ayesha Verrall) - Minister of Food Safety; as well as managing the affairs of this Ministry. The named state authority controls export-import relations, biological security of trade turnover, efficient use of natural resources, rational exploitation of land, reservoirs, soils and forests, prevents environmental and biological risks. The exploitation of forests and lands for the purposes of subsurface use is under the jurisdiction of the Ministry of Primary Industry, which includes the Forestry Services.^[22]

Secondly, the National Emergency Management Agency (The National Emergency Management Agency)^[23], headed by Kieran McAnulty, the Minister for Emergency Management, and having a case manager, is under the jurisdiction of the Department of the Prime Minister and Cabinet (Department of the Prime Minister and Cabinet).^[24] The National Agency prevents emergencies, manages during their onset, eliminates and minimizes their consequences for the economy and the environment. It was created on December 1, 2019 to replace the Ministry of Civil Defense and Emergency Management, including to ensure industrial and environmental safety during subsurface use, elimination of oil and petroleum product spills, environmental pollution with harmful substances during the operation of subsurface resources and other natural objects.^[25] The Department of the Prime Minister, in turn, directs and coordinates the activities of the public sector, plans national security, including civil defense, and deals with economic security, including in the fuel and energy sector, in the field of foreign investment. The First Minister not only manages his department with the help of the Executive Director (Chief Executive), but also the Ministry of National Security and Intelligence (Minister for National Security and Intelligence). This makes it possible to select subsoil users and foreign investors who meet the interests of New Zealand, monitor their activities, and effectively manage economic processes.

Third, The Climate Change Commission^[26], headed by James Shaw, Minister of Climate Change, as well as managers: Chief Executive Joe Hendy and Chairman of the Commission Dr. Rod Carr. The Commission is an institution of the Crown, not the public sector. This means that the commission is subordinate to the sovereign, and not to the leadership of the executive branch. The Commission controls emissions into the atmosphere, including industrial enterprises, including electric power companies, subsurface users (coal and oil and gas industry).

Fourth, the Ministry of Business, Innovation and Employment (Ministry of Business, Innovation and Employment), ^[27] which includes the direction "Energy, Oil and Minerals" in its competence.^[28] The Ministry oversees investments in subsurface use, advises on public policy in this area, is responsible for the investment attractiveness of the fuel and energy complex, improving the efficiency of the use of New Zealand's natural resources, rational attraction of internal and external labor resources. The Ministry is led by five ministers with the help of the Business Manager: Megan Woods – Minister of Energy and Resources, and, at the same time, Minister of Research, Science and Innovation; Michael Wood – Minister of Labor Relations and Security (Minister for Workplace Relations and Safety); Poto Williams – Minister of Construction and Construction (Minister for Building and Construction); Stuart Nash – Minister of Small Business (Minister for Small Business) and Minister of Tourism (Minister of Tourism); David Clark – Minister of Trade and Affairs Minister of Commerce and Consumer Affairs.^[29] The Ministry in question administers the New Zealand Electricity Act No. 122 of December 17, 1992, as amended on April 12, 2022 (Energy Act 1992)^[30], Part 6 A of which regulates the generation of electricity from the combustion of New Zealand minerals, affecting plans for the extraction of coal and other hydrocarbons. The Ministry of Business, Innovation and Employment acts as a regulator in the field of energy.

Fifth, the Ministry (Department) of Internal Affairs (Department of Internal Affairs), ^[31] which is a law enforcement agency, unlike a similar body in the United States of America. The Ministry is governed by five ministers: Jan Tinetti (Hon Jan Tinetti) - Minister of Internal Affairs (Minister of Internal Affairs); Jacinda Ardern (Jacinda Ardern) - Minister Responsible for Ministerial Services (Minister Responsible for Ministerial Services); Nanaia Mahuta (Nanaia Mahuta) - Minister of Local Government (Minister of Local Government); Priyanka Radhakrishnan - Minister of Public and Voluntary Sector (Minister for the Community and Voluntary Sector); Kieran McAnulty - Minister of Travel (Minister for Racing); with the participation of Paul James – CEO and Secretary (Chief Executive and Secretary), State Director on digital technologies (Government Chief Digital Officer), Secretary of Local Government (Secretary for Local Government). The Ministry provides assistance to regional and territorial councils – local authorities in solving problems of local importance, including in the field of ecology and nature management, including the search, exploration and extraction of minerals caused by man-made problems caused by subsurface use, accidents and catastrophes, environmental pollution, and so on. The Ministry of the Interior exercises "sovereignty" in the field of environmental management in the territories designated in the New Zealand Law "On Local Self-Government".

Sixth, the Ministry (Department) of Nature Protection (Department of Conservation) ^[32], headed by the Minister of Nature Protection (Minister of Conservation) – Poto Williams (Poto Williams). The Ministry is responsible for the involvement of New Zealanders in environmental protection activities; their rehabilitation in recreational protected areas; protection of local plants and animals, other human habitat of New Zealand, from negative impact factors; use of nature reserves; coordination of volunteers for nature protection; issuance of permits for hunters, fishermen, legal entities, including subsoil users, to conduct activities in conservation areas; land reclamation, restoration of natural objects; promotion of ecological culture.

Seventh, the Ministry (Department) of Land Information (Land Information of New Zealand) ^[33], headed by Damien O'Connor (Damien O'Connor) – Minister of Land Information (Minister for Land Information). This public authority is responsible for geodesy and cartography; management of rivers and lakes, lease of high-altitude pasture lands of the Crown; research of water areas and compilation of nautical charts; responsible for geonavigation and surveying; ensures the binding of property rights to immovable property; monitors the balance of interests of foreign investors and the New Zealand state in the field of nature management; promotes the geographical council of the New Zealand New Zealand, including in the assignment of names of objects on the territory of the state, in dependent territories, as well as on the continental shelf.

Eighth, the Energy Efficiency and Conservation Authority^[34], which is under the authority of the Minister of Energy and Resources - Megan Woods, designed to intensify activities in the field of energy conservation and conservation, lean manufacturing, reasonable use of energy by legal entities and individuals; as well as stimulating the use of renewable energy sources. The Department carries out work on energy conservation and energy efficiency, gives methodological recommendations to local authorities on the rational use of energy resources in the field.

Ninth, the Energy Safety Authority^[35], whose activities are carried out by Crown agents for the purpose of safe energy supply, including gas supply, safe transmission of natural gas and electricity in New Zealand.

Tenth, the Ministry (formerly the Department, then the Department) of Environmental Protection (Ministry for the Environment / Environmental Protection Authority)^[36], headed by the Minister of Environment (Minister for the Environment) By David Parker. The Ministry administers environmental laws, carries out basic management in the field of subsurface use, including seismic exploration and scientific research, and controls environmental impacts.

Eleventh, the Ministry of Foreign Affairs and Trade (The Ministry of Foreign Affairs and Trade)^[37], it is headed by three ministers: the Minister of Foreign Affairs (Minister of Foreign Affairs) Nanaia Mahuta; Minister for Trade and Export Growth Damien O'Connor; Minister for Disarmament and Arms Control – Phil Twyford. The Ministry controls the turnover of minerals, foreign investments in the resource sector of the economy, manages natural objects in the Antarctic and dependent territories.

Twelfth, the Maritime Administration of New Zealand (Maritime New Zealand) ^[38], headed by Michael Wood (Michael Wood) – Minister of Transport (Minister of Transport). He is responsible for industrial safety at sea, investigation of marine accidents, response to marine pollution, including oil spills. The Department is responsible for certification of offshore platforms used in subsurface use, minimization of environmental damage from ships and platforms of subsurface users, manages the New Zealand Oil Pollution Fund ^[39]. The Fund accumulates funds to combat pollution of the marine environment with hydrocarbones.

Thirteenth, the Office of Foreign Investment (Overseas Investment Office)^[40], designed to realize the benefits of foreign investment and protect the national interests of New Zealand. The Office is responsible for foreign investments in all sectors of the economy, including energy and natural resources, land, construction, fishing, animal husbandry, forestry and agriculture, business assets and so on. This executive authority is under the jurisdiction of the Minister of Land Information, is an analogue of the Government Commission on Foreign Investment in the Russian Federation and the United States of America.

Fourteenth, the Geographical Council of New Zealand (New Zealand Geographic Board), which can review the status of protected natural areas for their transfer to subsoil users, is supervised by the Minister of Land Information.

   In addition, other state institutions (government agency) are also involved in the management of subsoil use. These include the Antarctic Agency of New Zealand (Antarctica New Zealand),^[41] it is responsible for scientific research of Antarctic territories and waters, environmental protection of the New Zealand zone of interest in Antarctica and the Southern Ocean, implementing the New Zealand Antarctic (Environmental Protection) Act of 1994 (Antarctica (Environmental Protection) Act 1994), administered by the Ministry of Foreign Affairs and Trade (Ministry of Foreign Affairs and Trade)^[42]. Argentina, Australia, Chile, France, New Zealand, Norway, the United Kingdom, the Republic of South Africa (until 1961 - the Union of South Africa – the dominion of the British Empire), the United States of America and Japan claim Antarctic territories. Since 1923, New Zealand has exercised sovereignty over the Ross Dependent Territory, to which the State sovereignty of the United Kingdom of Great Britain and Northern Ireland was previously declared. (The replacement of the operator State exercising sovereignty in the territory under consideration did not change the situation in essence, since sovereignty still belongs to the English Crown, as, for example, in Australia). The Ross territory includes the Ross Ice Shelf, the Balleny Islands, Scott Island and other adjacent islands. Activities in Antarctica are regulated by the Antarctic Treaty of 1959.^[43] Based on article 7 of the Madrid Protocol – the Protocol on Environmental Protection to the Antarctic Treaty of 1991, ^[44] subsoil use in Antarctica is prohibited, except for scientific research. The study of Antarctica in New Zealand is carried out by the forces and means of the Scott Base, founded in 1957 by Sir Edmund Hillary. Antarctic territories and water areas, natural resources associated with them, are preserved for strategic purposes of the future development of New Zealand (more about this – New Zealand Statement of Strategic Interest in Antarctica Revised 2002)^[45], and are only partially used for the exploitation of wildlife in the area under consideration, including within the framework of the Convention on the Conservation of Marine Living Antarctic Resources (The Convention for the Conservation of Antarctic Marine Living Resources).^[46]New Zealand has joined the UN Convention on the Law of the Sea (United Nations Convention on the Law of the Sea)

^[47] in 1996. The continental shelf of New Zealand corresponds to the boundaries of the exclusive economic zone of this state, that is, it completely selects the maximum permissible convention area. Meanwhile, the New Zealand government claims rights to 1.7 million square kilometers of the continental shelf beyond the one hundred and eighty-eight mile zone located outside the territorial sea. The country under study has submitted an application to expand the boundaries of its continental shelf to the relevant UN Commission (UN Commission for the Limits of the Continental Shelf) ^[48]. In 2004, New Zealand agreed on a new continental shelf boundary with Australia, is negotiating with the States of Fiji and Tonga regarding the continental shelf along the Colville and Kermadec ridge complex, which extends from the north of the North Island to the waters of Fiji and Tonga. The procedures for increasing the New Zealand continental shelf did not affect only one neighboring state – France, or rather the French overseas territories. France is not negotiating with New Zealand on the delimitation of the continental shelf due to the latter's claims to expand it.^[49]

The New Zealand Antarctic (Environmental Protection) Act of 1994, mentioned by us, makes it an offence to exploit (search, exploration and extraction) of minerals in Antarctica, Antarctic islands south of the sixtieth degree of south latitude, as well as on the continental shelf adjacent to the listed geographical areas. A special ban on subsurface use in the Ross dependent zone is imposed by the thirteenth section of the said law. Every person exploiting the subsoil within the boundaries indicated above is criminally liable under New Zealand law.  The sanction for the deed is a prison term of up to 2 years or a fine of no more than 200,000 US dollars, and if the crime is ongoing, an additional fine of no more than 10,000 US dollars is applied for each day or part of the day during which the crime continues. Therefore, legal subsurface use in Antarctica, the Antarctic shelf, on the territory of Ross, New Zealand Subantarctic islands is not possible. Section seventeen of the Act under consideration provides for an environmental impact assessment – an environmental assessment for any activity in Antarctica, any activity in this area is carried out only with the permission of the Minister of Foreign Affairs and Trade of New Zealand. But it should not be forgotten that such permits can be issued by other ministers of the Crown or members of the executive council, if they have the necessary powers for this, defined by laws or the executive council. At the same time, the flora and fauna of the Antarctic region is covered by the New Zealand Animal Protection Act of 1999, as last amended on April 12, 2022 (Animal Welfare Act 1999)^[50], which is administered by the Ministry of Primary Industries (Ministry for Primary Industries) together with the New Zealand Biosafety Act of 1993 in the latest version of July 1, 2022 (Biosecurity Act 1993)^[51]. In addition, the Ministry of Foreign Affairs and Trade administers the New Zealand Antarctic Marine Living Resources Act of 1981, as last amended on July 1, 2013 (Antarctic Marine Living Resources Act 1981)^[52]. The exploitation of biological organisms of the marine environment of this region is carried out on the basis of the permission of the relevant Minister. It should be noted that in addition to these executive authorities, the Ministry of the Environment administers the New Zealand Law "On Hazardous Substances and New Organisms" of 1996, as last amended on July 1, 2022 (Hazardous Substances And New Organizations Act 1996)^[53], as well as the New Zealand Law "On Trade in Endangered Species" of 1989, as last amended on October 28, 2021 (Trade in Endangered Species Act 1989)^[54], the New Zealand Marine Mammals Protection Act of 1978, as last amended on October 28, 2021 (Marine Mammals Protection Act 1978)^[55], protecting the environment from subsurface users during the exploitation of natural objects: in the halos of the habitat of protected animals, the exploitation of subsurface resources is not allowed, unless a special permit is provided for this. The listed New Zealand regulatory legal acts operate in the Arctic zone^[56], which corresponds to the official position of the Ministry of Foreign Affairs and Trade of New Zealand.^[57]

It should be noted that in order to resolve disputes within the framework of the New Zealand Law "On Resource Management", an Environmental Court of Appeal has been established^[58], considering cases on the merits repeatedly in the field of energy, land use, urban development plans, land surveying and zoning; as well as prospecting, exploration, and mining; cases related to applications for subsoil use, environmental declarations and other environmental management issues; other cases and disputes in the field of environmental protection and its use. Cases of subsurface users related to the exploitation of subsurface resources are considered in the Environmental Court. There is also another specialized court – the Maori Land Court^[59], which considers land cases in relation to indigenous land plots at first instance. His decisions are appealed to the Maori Court of Appeal (Maori Appellate Court), and not to the Environmental Court.

In addition to the prosecutor's office in New Zealand, there is also parliamentary control over the environment in the person of the Commissioner (Commissioner) for the Environment (Parliamentary Commissioner for the Environment) ^[60], which is not related to the Ministry of the Environment. The parliamentary and municipal control bodies have the right to apply to the New Zealand courts for environmental protection and compensation for damage to nature. Taking into account the above, the key management bodies of subsoil use are territorial bodies, and at the level of the executive power of the state, four ministries play a leading role in the field of subsoil use: the Ministry of Environment; the Ministry of Business, Innovation and Employment; the Ministry of Internal Affairs and the Ministry of Foreign Affairs; other ministries and other organizations perform a supporting function. However, the basic powers in this area belong to one of them – the Ministry of the Environment.^[61] The Ministry of the Environment of New Zealand is an executive authority that develops state policy in the field of the environment, geology and subsoil use, implements environmental and economic development strategies adopted by Parliament and the executive cabinet, and is responsible for the exploitation of nature.

The Ministry is the operator of six fundamental acts in the field of environmental management.^[62] These include: 1) The Law of New Zealand "On Resource Management" (Recourse Management Act 1991); 2) The Law of New Zealand "On Waste Minimization" (Waste Minimization Act 2008); 3) The Law of New Zealand "On Environmental Reporting" (Environmental Reporting Act 2015); 4) The Law of New Zealand (amendment to the law) "On Responding to Climate Change (Zero Carbon)" (Climate Change Response (Zero Carbon) Amendment Act 2019); 5) New Zealand Law (amendment to the Law) "On Resource Management" (Resource Management Amendment Act 2020); 6) New Zealand Law "On Recovery after COVID-19 (accelerated Approval)" (COVID-19 Recovery (Fact-track Consenting Act 2020).

The Ministry of the Environment also administers auxiliary regulatory legal acts: 1) The Law of New Zealand "On Soil Conservation and River Control" (Soil Conservation and Rivers Control Act 1941); 2) The Law of New Zealand "On the Environment" (Environment Act 1986); 3) The Law of New Zealand "On the Protection of the Ozone Layer" (Ozone Layer Protection Act 1996);  4) The New Zealand Hazardous Substances and Organisms Act 1996;  5) The New Zealand Climate Change Response Act 2002;  6) The Law of New Zealand "On the Fiordland Marine Management Act 2005"; 7) The Law of New Zealand "On Environmental Protection Authorities" (Environmental protection Authority Act 2011);  8) The Law of New Zealand "On the Exclusive Economic Zone and Continental Shelf (Environmental Effects)" (Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012);  9) The New Zealand Bill "On the Kermadec Ocean Sanctuary Bill 2016"; 10) The New Zealand Law "On Amendments to the Legislation on Natural Resources" (Resource Legislation Amendment Act 2017).

The Law of New Zealand "On Nature Protection" (Conservation Act 1987), as last amended on April 12, 2022, administered by the Ministry of the Environment as the successor to the Department of Nature Protection, contains the concept of "concession" ("concession" or "concession document"), that is, lease, license or other permit, or easement for land provided to the concessionaire for temporary use. The purpose of the law is to preserve the natural environment in order to preserve it, for which protected areas are introduced: a coastal strip (a natural protection strip along inland reservoirs and seas adjacent to islands), a section of a watercourse, lands under reservoirs, conservation lands (protected areas, reserves, protected parks (on land and at sea), nature conservation recreational areas. The protected area may change its status by the decision of the Minister. Any prospecting, exploration and mining activity provided for by the Crown Minerals Act of New Zealand (Crown Minerals Act 1991) cannot be carried out in a protected area, as well as in any other protected natural area, unless it is provided for by a concession. The Minister of the Environment grants the right to use the subsoil and other concession rights based on the application of any person, or rejects the application of a potential subsoil user. The content of the application, the procedure for contacting the Minister and making a decision is set out in section 17 of the New Zealand Nature Conservation Act. The Minister has the right to reject the application if the activities proposed by the applicant can be carried out in other places that do not affect the nature protection area. Thus, obtaining for use for the exploitation of the subsoil of a protected area that does not have the status of a reserve, or an environmental park, is possible only if there is an acute economic need and it is impossible to exploit the subsoil elsewhere, as well as importing minerals. If the consequences of environmental impact and environmental restoration are such that the damage from this is commensurate with the costs of purchasing minerals abroad, then the Minister decides to reject the application. At the same time, it is not allowed to lower the status of a nature protection zone to one that allows you to apply for economic activity. However, the status of a particular protected area or water area may be increased in order to preserve and prevent the exploitation of the subsoil, as well as other natural resources outlined by its contour, including land.

In New Zealand, there are 18 sedimentary hydrocarbon basins located both on the territory of the state and on the continental shelf, the most studied basins are: Taranaki Basin, located on land and on the sea of the North Island, and Reinga-Northland.^[63] Other basins require more detailed research, geological information about them is open and presented on the official website of the government.^[64] All oil in New Zealand is owned by the Crown, as well as gold (hard rock mines in Waihi, Coromandel and Macraes Flat, Central Otago and alluvial (river or glacial gravel), gold mines on the West Coast and in Otago), silver and uranium. The Crown, on the basis of national New Zealand law, owns, despite the UN Convention on the International Law of the Sea, all minerals in the exclusive economic zone – at a distance of 12 to 200 nautical miles from the border of the territorial sea, as well as on the extended continental shelf if it extends beyond the exclusive economic zone to a distance of 350 nautical miles. The Crown owns all the minerals in the Crown lands – half of the underground coal, metallic and non-metallic minerals, industrial rocks, building stone and so on. Outside of its land holdings, the Crown also owns minerals by virtue of the law. Consequently, the minerals in New Zealand and within its continental shelf belong to the sovereign. Land ownership, as before, belongs to the Crown, Maori (collective), private individuals and legal entities (may be general and individual). Limestone, clays, including bentonite, pumice, quartz sand, molding sand, ferruginous sand are mined in New Zealand. The continental shelf is rich in ferruginous sands (off the west coast of the North Island); phosphates of the Chatham Rise; gold, silver, copper, lead, zinc of underwater vents – massive sulfides of the seabed (Kermadec Arc, Colville Ridge)).

New Zealand has significant coal reserves (Waikato (Waikato) and Taranaki (Taranaki) on the North Island, as well as in the regions of the West Coast (West Coast), Otago (Otago) and Southland (Southland) on the South Island (South Island). The national underground coal resources amount to about 15 billion tons, of which 80 percent are lignites of the South Island.  Brown coal is the main fossil energy source of New Zealand, its recoverable reserves in 10 deposits are more than six billion tons. There are 22 coal mines in the state, 17 of which are currently operating, 5 are temporarily not being developed. In the last two decades, new oil and gas-bearing areas have been discovered^[65], the role of oil and natural gas^[66] in the economy of New Zealand has become leading since 2004.^[67]The main regulatory legal acts in the field of subsoil use are the New Zealand Law "On Resource Management" No. 69 of July 22, 1991 (Resource Management Act 1991), as well as the New Zealand Law "On Crown Minerals" No. 70 of July 22, 1991 (Crown Minerals Act 1991),^[68] the list of proposed amendments, developing and supplementing documents to which is officially published on the website of the Ministry of Business, Innovation and Employment (Ministry of Business.

Innovation and Employment)^[69], and on other government websites^[70]. Subsurface use in the marine environment is additionally regulated by the New Zealand Law "On the Exclusive Economic Zone and Continental Shelf (Environmental Effects)" dated September 3, 2012 No. 72 (Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012 as amended on September 8, 2018.^[71]

Within the meaning of the last of these laws, mining is an activity carried out for or in connection with the identification of areas of the seabed that may contain mineral deposits; or the identification of mineral deposits; or the extraction or extraction of minerals from the sea or the seabed and the associated processing of these minerals. Section 20 of the New Zealand Law "On the Exclusive Economic Zone and the Continental Shelf (Environmental Impact)" specifies the permissive procedure for any economic activity in the waters of New Zealand, including subsurface use on the continental shelf, including the use of seabed resources. Before issuing a permit for marine subsoil use, a study of the environment of the area of the proposed exploitation of the subsoil should be carried out, after assessing the impact of man-made factors on the environment and obtaining a marine permit (marine consent), in the absence of objections from the Maori, an application for the right to use the subsoil of the continental shelf can be submitted to the Ministry of Environment. Subsurface use in inland sea waters, as well as on land within the State borders of New Zealand, without the consent of the Maori and without the permission of the territorial authority is not possible.

The marine permit specifies the types of subsurface use that a subsurface user can carry out, as well as other types of activities aimed at ensuring the implementation of subsurface exploitation.

On the continental shelf, the principle applies: "Everything that is not allowed is prohibited." Permitted activities are indicated in the marine permit issued by the Ministry of Environment. The requirements for candidates (applicants), the conditions for issuing and refusing to issue marine permits are exhaustively specified in the law. Refusal to issue a maritime permit may be appealed by the applicant to the court. The maritime consent is issued for the period specified in it – no more than 35 years, and in the absence of the specified period, it is recognized as equal to 5 years from the date of entry into force of the corresponding maritime permit, which can be transferred to another person in cases established by law. The conditions of a maritime permit are changed by the Ministry at the request of its holder in cases defined by law, and the term is extended, but cannot be more than 35 years.

The owner of the consent may apply to the Ministry of the Environment for revocation of the consent, and in case of violation of the conditions for the implementation of marine activities carried out on the basis of a marine permit, the Ministry itself may revoke the permit issued by it, as well as it may unilaterally change the conditions of a marine permit on the basis of section 87 of the New Zealand Law under consideration.

A marine permit for cross-border activities may be issued in a special order upon the application of a candidate for subsoil users. Joint application of persons for cross-border activities is allowed. Marine permits in such cases are issued by the same Ministry. Applications for transboundary maritime activities of national importance are considered by the Commission of Ministers of the Crown, established on occasion. Termination of marine activities is carried out in sections 100 A – D of the applicable law after consultation with the public in compliance with environmental standards and regulations. Persons engaged in marine activities - subsoil users have the right to appeal decisions and actions of the Ministry of the Environment to the Supreme Court of New Zealand, which hears appeals against its own judicial acts.

Acts and decisions of the Ministry of the Environment adopted within the framework of the administration of the New Zealand Law "On Resource Management" are considered in the first instance by the Environmental Court, and are appealed on appeal to the Supreme Court of New Zealand.

Thus, the refusal of a subsoil user to grant the right to use the subsoil of the territorial sea and the continental shelf is appealed to the Supreme Court of New Zealand, and on land within the state border of New Zealand – to the Environmental Court. At the same time, the Environmental Court acts as an appellate instance for appealing decisions of territorial courts adopted on environmental issues. For example, decisions of the local government on environmental management are appealed to the territorial court, and its judicial act is appealed to the Environmental Court^[72].    Section 162 of the New Zealand Exclusive Economic Zone and Continental Shelf (Environmental Impact) Act regulates hydrocarbon production activities involving structures, including offshore platforms, as well as pipelines.

A number of restrictions on the economic activities of marine subsoil users are established by the Maritime Transport Act of New Zealand (Maritime Transport Act 1994),^[73] the implementation of prohibited activities is possible on the basis of the permission of the Director of Maritime Transport – the Minister of the Crown, as specified in the law. Currently, this position has been renamed "Minister of Transport".

An application for maritime activities can be submitted through the official website on the Internet, which contains practical information.^[74] The Ministry of the Environment accepts electronic applications for the exploitation of the natural environment, including applications for subsurface use, both through the websites of this body and on paper in the expedition.  The Law of New Zealand "On Crown Minerals" (Crown Minerals Act 1991) has its development in the following regulatory legal acts:·       

Regulation on Crown Minerals (Minerals other than petroleum) – Regulations (Crown Minerals (Minerals Other than Petroleum) Regulations 2007);^[75]·       

Regulation on Crown Minerals (Hydrocarbons) – Regulations (Crown Minerals (Petroleum) Regulations 2007);^[76]·       

Regulation on Crown Minerals (Payments for the use of Subsoil, except for hydrocarbon subsurface areas) – regulations (Crown Minerals (Minerals Fees) Regulations 2016);^[77]·       

Regulation on Crown Minerals (Payments for the Use of Hydrocarbon Deposits) – Regulations (Crown Minerals (Petroleum Fees) Regulations 2016);^[78]·       

Regulation on Crown Minerals (Royalties for Minerals Other than Hydrocarbons) – Regulations (Crown Minerals (Royalties for Minerals Other than Petroleum) Regulations 2013);^[79]·       

Regulation on Crown Minerals (Royalties for Oil) – Regulations (Crown Minerals (Royalties for Petroleum) Regulations 2013).^[80]

The Crown Minerals Act of New Zealand regulates the subsurface use of minerals – compounds of aluminum, chromium, copper, gold, iron, lead, manganese, mercury, molybdenum, nickel, platinum, silver, tin, titanium, tungsten, uranium, vanadium and zinc; as well as industrial rocks and building stones: basalt, diatomite, dunite, granite, limestone, marble, perlite, pumice, sandstone, serpentine, slate, sand and gravel. In addition, subsurface use is carried out in relation to natural gas, crude oil (hydrocarbons, except coal), coal of various types. The law designates by the term "oil" any oil and gas resources of the earth's interior in their various combinations within the field (hydrocarbons, except coal). Subsurface use is carried out on the basis of the permission of the Minister of the Environment (permit) in relation to various types of subsurface use: mining, exploration, mining, mining of special purpose minerals. The applicant for the right to use the subsoil may be any person or group of persons capable of ensuring subsurface use in the requested subsurface area. The owner of the permit for the right to use the subsoil is either one person (natural or legal) who received it, or each of the persons named in it (with a group application). Subsurface use may be carried out not by the license holder, but by an operator agreed with the Ministry of Environment. The Minister of the Crown may delegate the authority to issue permits to employees of the Ministry of the Environment, which divides marine waters into blocks, planning their development. The land is being developed in the same way – according to a ministerial plan or a program for the development of natural resources.

A permit for the right to use land and subsoil is issued to ministers both by application and on the basis of an open tender. The personal composition of license holders may be changed by the Ministry of the Environment if new participants meet the established requirements. The operator of mineral deposits can also be replaced with the permission of the Minister of the Environment. The permission of the Ministry of the Environment for mining, exploration and extraction of minerals does not give the right to use the locks. Land plots for the purposes of subsurface use are provided to holders of permits for the right to use the subsoil by the Minister of Land Information. The Ministry of the Environment controls the operator during subsurface use, appoints inspections provided for by law, and controls subsurface use programs.

Subsurface use may be terminated prematurely and the permit revoked by the Ministry of Environment if the conditions of such a permit are violated. The license holders and the operator may voluntarily stop subsurface use, if it is technologically possible. Upon completion of subsoil exploitation voluntarily or by decision of the Ministry of the Environment, it is necessary to restore the ecology, and if it is technologically impossible to stop subsurface use, violators should be replaced by bona fide owners of a permit to use the subsoil, a proper operator in accordance with the procedure provided for in the law.

The terms of subsurface use are determined in the permit within the framework of the program for the development of a specific field, they can be changed by the Ministry of the Environment at the request of the permit holder.

Foreign investments^[81] in subsurface use are subject to approval by the Minister of Land Information and the Treasury on the basis of the New Zealand Foreign Investment Act No. 82 of June 21, 2005, as last amended on August 16, 2022 (Overseas Investment Act 2005).^[82]Subsurface use in the Cook Islands, Tokelau and Niue is carried out according to the legislation of these States, headed according to their constitutions by the sovereign of New Zealand.

The study of the legislation of New Zealand on subsoil use, doctrinal sources, allows us to draw the following conclusions:

firstly, the granting of the right to use subsurface resources on New Zealand land is carried out exclusively with the consent of indigenous peoples living within the relevant municipality – a district or several districts (for intra–state transboundary deposits), as well as with the permission of local authorities - territorial bodies (district and city councils) implementing local self-government; similar approvals with indigenous residents and local self-government bodies are required in order to obtain a permit for the exploitation of the natural resources of the territorial sea.

secondly, the right to use the subsoil and minerals of the seabed within the exclusive economic zone and the continental shelf is granted after an environmental impact assessment of the proposed man-made activities in the absence of objections from indigenous Maori peoples, if a marine permit has been issued to the candidate for the right to use the subsoil; thirdly, the right to use the subsoil is granted by the Ministry of Environment environment to the winner of an open tender or to the applicant (without holding a tender at the request of any person), if the candidates for the right to use the subsoil and the operator of the subsoil site meet the requirements imposed on them by law; fourth, New Zealand natural resources are the property of the Crown, which exercises state sovereignty and proclaims ownership of the natural resources of the seabed, the subsoil of the exclusive economic zone and the continental shelf of New Zealand, despite the provisions of international maritime law;

Fifthly, New Zealand has proclaimed the sovereignty of the Crown over the Antarctic and sub-Antarctic territories controlled by this State and their natural resources, which are reserved for strategic purposes of the country's future development; in addition, conservation territories have been allocated within the state borders and the borders of the continental shelf to preserve natural resources and protect the environment; similar goals are also achieved by introducing the institute of collective ownership of Maori peoples on land, coordination with them of man-made activities using the environment.