Stuff | April 19 2018
The finely balanced decision to consent to seabed mining of iron sand might have swung the other way if the decision makers had properly considered some factors, a lawyer says.
Eleven parties have appealed against the consents that were granted last August to Trans-Tasman Resources Ltd.
The appeal hearing in the High Court at Wellington wrapped up on Thursday with Justice Peter Churchman reserving his decision.
The final speaker was Davey Salmon, a lawyer for Greenpeace and Kiwis Against Seabed Mining, who said the consent decision had been as finally balanced as it was possible to be.
The Environmental Protection Authority had appointed a four-person decision making committee.
When the committee was deadlocked the chairman had the deciding vote, so even though members of the committee were split two against two, the outcome was that the consents were granted.
Salmon said the committee did not have enough information on which to make its decision, and did not give proper weight to issues that counted against allowing seabed mining.
The committee chairman had a legal obligation to exercise the casting vote favouring caution, and exercise caution where information was lacking, he said.
Trans-Tasman Resources’ lawyer, Justin Smith, QC, said it was unlikely the chairman was meant to change his vote because another committee member disagreed with him.
Even if the judge found against Trans-Tasman Resources on one or more points, it did not mean the decision had to be quashed, Smith said. He asked for a further hearing to discuss the consequences, if the judge intended to allow the appeal.
The lawyer for Māori and fishing interests, Francis Cooke, QC, said the two members who granted the consents had not grappled with a key problem.
The seabed that was to be mined was in the exclusive economic zone off the south Taranaki coast, up to the boundary of the coastal marine area, closer to shore, which came under resource management rules.
Mining would create a significant sediment plume that would spread into the coastal marine area where it was prohibited, Cooke said.
Trans-Tasman Resources said the marine consent and marine discharge consent it was granted were enough to allow mining to proceed, but the opponents said resource consent was also needed.
Regardless of that issue, it was already signalled that whichever way the judge decided, the outcome was likely to be appealed.
The committee granted the 35-year consents subject to conditions, including that two years of monitoring had to take place before Trans-Tasman Resources was allowed to begin mining up to 50 million tonnes of seabed material a year to extract iron ore for export.
A remote-controlled dredge would vacuum sand from the sea bed in depths between about 20 metres and 42m, to a processing ship. The dredging was planned in an area 22 kilometres to 36km offshore from Patea.
It was planned that about 90 per cent of the material would be returned to the sea. Opponents said the noise and sediment plume would cause fish to avoid the area, and would result in long term, if not permanent, damage to the environment and cultural concerns of Māori.
The company said the area was already intensively fished, had gas and oil installations, and was a rugged environment subject to naturally occurring sediment flows from rivers.
Taranaki iwi Ngāti Ruanui, and Trustees of Te Kaahui o Rauru, along with Greenpeace, Kiwis Against Seabed Mining, the Royal Forest and Bird Protection Society, the Taranaki-Whanganui Conservation Board, Cloudy Bay Clams, the Federation of Commercial Fishermen, Southern Inshore Fisheries Management Company, Talleys Group, and Te Ohu Kai Moana Trustee Ltd, appealed against the consents.