Seabed mining decision

The Taranaki-Whanganui Conservation Board is thrilled with the High Court’s decision of 28 August 2018 that quashes the Environmental Protection Authority’s (EPA) approval of an application by Trans-Tasman Resources Limited to undertake seabed mining off the South Taranaki Bight.

The Board is an independent statutory body constituted under the Conservation Act. Its functions include conservation management and the Board was concerned to ensure that the EPA’s decision was made in accordance with the statutory tests established under the Exclusive Economic Zone (EEZ) legislation. The Board had submitted against the application, raising concerns about the risk to the environment (including on marine mammals) as well as uncertainty in the information put forward to support the application.

The Board, at its meeting on Wednesday 29 August 2018, the day after the High Court Decision was released (28 August 2018), expressed their collective delight at the outcome.

Board chairperson Brendon Te Tiwha Puketapu said: ‘The Board is very pleased with the High Court’s decision to quash the original decision, which approved consent to undertake seabed mining in South Taranaki Bight.’

‘As an independent statutory body, it was important for the Board to seek the Court’s finding on whether the EPA had made its decision correctly, as well as to seek clarification on relevant points of law, as this will influence future applications.’

The appeal by the Taranaki-Whanganui Conservation Board focused on questions of law relating to whether the EPA understood and applied the purpose of the EEZ Act, which includes protecting the environment from pollution, as well as whether the EPA met its statutory requirements to base its decision on the best available information, apply the precautionary principle, and whether the EPA applied a prohibited adaptive management approach. It also sought to clarify how the EPA should have taken into account the Resource Management Act and in particular the strong directives of the New Zealand Coastal Policy Statement.

‘It’s great to have the High Court clarify the expectations in relation to the concept of adaptive management approaches under the EEZ Act.’ In making that decision, the High Court also emphasised the importance of the “protect from pollution purpose” in respect of the discharge of harmful substances and the requirement to “favour caution and environmental protection”.

The High Court did not, however, find the EPA’s approach to those additional matters to have been errors in themselves, or in favour of other concerns raised by the Board. The Board is disappointed in that regard and is reflecting carefully on those parts of the High Court decision.

By way of background, Trans-Tasman Resources lodged this (second) application for marine consents with the EPA in August 2016. The EPA’s decision to grant the application was made in August 2017 and required a casting vote from the chairperson of the EPA’s four-member Decision Making Committee.

Following that decision, the Taranaki-Whanganui Conservation Board, along with other appellants including Ngati Ruanui, Te Kahui O Rauru, Kiwis Against Seabed Mining (KASM), Greenpeace, Forest & Bird and Fisheries Interest Groups, lodged appeals opposing the granting of consent. These appeals were heard in the High Court, over 4 days earlier in the year (16 – 19 April 2018).

These recent proceedings also followed an earlier application by Trans-Tasman Resources for the same activity, lodged in November 2013 and declined by the EPA in June 2014. The Board had also opposed that earlier application.

The Board is hopeful that the High Court’s decision will bring an end to Trans-Tasman Resources’ seabed mining proposal. The community has had to fight against it to protect the environment for far too long. An appeal by Trans-Tasman Resources to the Court of Appeal against the High Court’s decision cannot be discounted, however. Trans-Tasman Resources may also pursue a reconsideration of the decision by the EPA, applying the correct legal test in relation to the concept of adaptive management approach.

Contact

Adrienne Corfe, Board Support Officer
Email: acorfe@doc.govt.nz
Mobile: +64 27 357 0822