Catherine Groenestein and Christina Persico | Stuff NZ | August 28 2018
The South Taranaki Bight seabed mining decision was overturned because its method of environmental management was illegal, the High Court ruled.
In August last year, Trans Tasman Resources was granted consent to mine up to 50 million tonnes of ironsand from a 66sqkm area off the South Taranaki Bight for 35 years by the Environmental Protection Authority. Following a split decision a casting vote was used in favour of TTR’s consent.
However, the decision was appealed in the High Court by 11 parties and a hearing was carried out in the Wellington High Court in April, but Justice Peter Churchman reserved his decision. The decision was released on Tuesday and ruled in favour of the environmentalists.
The judge ruled incorrect interpretation of legal terms around protecting the ocean environment “may well have influenced” the outcome of the seabed mining consent.
It was found the decision-making committee’s (DMC) conditions either was or contributed to an “adaptive management approach”, which was not permitted in an area governed by the EEZ Act, and labelled a “suck it and see” method by appellants.
Adaptive management is allowing an activity with uncertain effects and continually assessing it – any unanticipated effects must be able to be managed by changing or stopping the activity.
The judge ruled that the interpretation was “inconsistent with the purpose of the Act” in protecting the environment from pollution and with the obligation to favour caution and environmental protection if the information available was inadequate.
The error “may well have” influenced the outcome of the consent application, it was ruled.
“The appeal is allowed and the decision of the DMC [decision making committee] is quashed. The matter is referred back to the DMC for reconsideration, applying the correct legal test in relation to the concept of adaptive management approach,” the decision outcome said.
The appellents argued it was illegal under New Zealand law applying to the EEZ and continental shelf, and the judge agreed.
Kiwis Against Seabed Mining (Kasm) and Greenpeace issued a joint press release saying the overturning was a “victory for the oceans”.
“This is a victory for the thousands of people who have protested and the 13,000 who made submissions against this awful proposal, a victory for the South Taranaki Bight, the blue whales and the entire New Zealand marine ecosystem,” Kasm chair Cindy Baxter said.
The main part of the decision by Justice Churchman focused on what the appellants all argued was “adaptive management” – a practice of essentially “trying it out and seeing what happens, and adapting the conditions accordingly”. That, they argued, was illegal under New Zealand law applying to the Exclusive Economic Zone and continental shelf.
The judge agreed with these arguments, and has sent the decision back to the EPA “for reconsideration, applying the correct legal test in relation to the concept of adaptive management approach”.
“This is a huge win for the oceans, and for people power. Oceans are the life support system of our planet,” Greenpeace NZ executive director Russel Norman said in the statement.
“I certainly hope this will be the last we’ll see of these wannabe miners.”
In overturning the EPA’s decision, the High Court had prevented “vandalism” of the ocean and a habitat for blue whales, Norman said.
Chris Wilkes, who was with Kiwis Against Seabed Mining (Kasm) at the appeal hearing but has since resigned from his post, was heading out to sea just minutes after hearing the news.
“The whole idea of the ocean being desecrated is a personal thing for me, I’ll be sitting at Stent Rd knowing it’s safe, that’s such a relief.”
Hopefully this is the last we see of TTR, he said.
“On a personal level it took a lot of my life, its great to see that has paid off.”
Ngati Ruanui said the High Court win proved voices and actions counted.
“We have fought this battle twice and won each time,” Te Runanga o Ngati Ruanui Trust Kaiarataki Debbie Ngarewa-Packer said.
“This is a clear sign that the EPA did not get things right to start with so we hope they’re actually listening this time.”
Ngati Ruanui will keep up the pressure to decline this archaic form of economic development should TTR appeal this decision, Ngarewa-Packer said.
She said the iwi led the appeal because it “goes to the heart of who we are as tangata whenua, ensuring generations can enjoy our shoreline”.
Fisheries Inshore New Zealand said the High Court decision “confirmed our view that the application, and the DMC’s decision, were deficient”.
Forest & Bird chief executive Kevin Hague said the news would give the country’s only known population of blue whale a reprieve from the imminent threat of experimental seabed mining.
“This area is habitat for 34 species of marine mammals, including Hector’s and Māui dolphins, humpback whales, and New Zealand’s own population of blue whale,” Hague said in a statement.
“This activity would likely kill everything on the seafloor, and severely disrupt the habitat of blue whales and other sound sensitive creatures.”
The Green Party’s Gareth Hughes said:
“Risking the habitat of threatened Blue Whales and the world’s smallest and most endangered dolphin, the Maui’s for a quick buck went against New Zealanders values and now, also against our law.
“The Green Party has long been opposed to seabed mining and is urging New Zealand adopt a seabed mining moratorium as other states have.”