Conservation Board welcomes latest decision in case to protect Taranaki sea floor

The Taranaki Whanganui Conservation Board (TWCB) has welcomed a Supreme Court decision in its longrunning case against Trans-Tasman Resources Ltd (TTRL), and the company’s proposal to mine iron sand from the seafloor of the Taranaki Bight.

In the latest development in the case taken by TWCB and other parties, the Supreme Court has today dismissed TTRL’s appeal against an earlier Court of Appeal judgement in favour of TWCB and other parties opposed to the marine consent granted to TTRL by the Environmental Protection Agency’s (EPA) Decision-Making Committee (DMC).

The EPA’s DMC originally granted TTRL a marine consent to extract up to 12.5 million tonnes of seabed material during any three-month period and up to 50 million tonnes per annum - and to process that material on an integrated mining vessel.

TWCB Chair Vicky Dombroski says “the Supreme Court’s Decision to dismiss the TTRL appeal is the latest legal victory for the groups fighting to prevent potentially damaging mining activity and associated pollution. We wanted to protect the environment and ocean wildlife we viewed would be at risk if TTRL was able to mine for the iron sand, under the Exclusive Economic Zone (EEZ) Act."

“We are encouraged and pleased to find the Supreme Court has ruled in our favour,” says Vicky Dombroski.

The Supreme Court decision includes important legal precedents and rulings – and confirms the EPA DMC’s original consent decision was legally flawed. The decision provides important legal precedent, or guidance, for all future applications for marine consents in the EEZ. This includes findings that:

• To meet the “protect from pollution” purpose of the EEZ Act, the decision-maker must be satisfied that there will be no material harm from the discharge or dumping (including through conditions). If not, then the consent must be declined.
• The requirement to respect the principles of Te Tiriti should not be constrained unless the relevant Act clearly intends to do so (and the EEZ Act does not). Tikanga-based customary rights and interests, including kaitiakitanga, and claimed customary rights, had to be taken into account as “existing interests”. Tikanga was also an “other applicable law” that had to be considered.
• The DMC adopted too narrow an approach to what constituted “adaptive management” (which is not allowed for discharge and dumping consents), by requiring such an approach to include discontinuance of the activity.
• The “environmental bottom lines” of the New Zealand Coastal Policy Statement, which applies to the coastal marine area where the majority of the effects were to be felt, had to be confronted, and could not be outweighed by economic or other considerations in favour of the applicant.
• A decision maker must, because it is required under the Act to favour caution and environmental protection where there is incomplete information, only grant consent in those circumstances when satisfied that the bottom line “protect from pollution” purpose is met.

“A key finding in the Supreme Court decision is that the original EPA consent should not have been granted – one of the key aspects of our ongoing opposition to what TTRL has proposed.

“Throughout this case we have held firm to our views that seabed iron ore mining is a dangerous and damaging activity to be occurring in New Zealand’s oceans, and within its Exclusive Economic Zone.

“This case is now into its fifth year and the board wishes to acknowledge the commitment and contribution of Board members past and present along with the various other groups which have stood alongside us in pursuing legal avenues to prevent TTRL mining our seabed.”

Vicki Dombroski says TWCB is now waiting to see if TTRL pursues other legal avenues available to it – including an option to ask the EPA to reconsider its application, potentially with modifications in light of the Supreme Court’s findings.