Trans Tasman Resources’ fight to mine South Taranaki Bight back in NZ court

Whanganui doctor Athol Steward was joined by supporters in the last stretch of his walk from Raglan to Whanganui in 2017 to protest seabed mining. Photo / File

New Zealand Herald | 25 September, 2019

A mining company’s fight to dig for ironsands off the coast of Taranaki began again on Tuesday in court.

Trans Tasman Resources (TTR) was granted consent in 2017 to dig up to 50 million tonnes of sand off the South Taranaki Bight seabed each year, extract the iron ore from it, and dump the residue on the sea floor.

That consent was overturned by the High Court last year, after it was fiercely opposed by environmental groups including Kiwis Against Seabed Mining, Greenpeace, and Forest and Bird.

The crux of the argument in the Court of Appeal on Tuesday centred on whether a raft of conditions that were issued with the marine discharge consent, amounted to an “adaptive management approach”.

Adaptive management is a provision that allows for an activity to still go ahead, even if the information about its effects is unknown, or incomplete.

It can also be described as learning by doing, and adjusting the way something is done once more information becomes available.

Under the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act (EEZ) an adaptive management approach cannot be considered for a marine discharge consent.

The High Court found the conditions imposed alongside the consent, did amount to adaptive management, which is what TTR’s lawyers argued against on Tuesday.

Justin Smith QC told the court the conditions were no different to conditions imposed on other consents, in that if they were breached “you’re out”.

He said if it was adaptive management, the Environmental Protection Authority’s (EPA) Decision Making Committee (DMC), which approved the application, would have known.

“The DMC was more than conscious of what adaptive management is and the [EEZ’s] prescription of its use for the purposes of discharge consents.”

“This matter was considered and considered quite carefully.”

But the respondents disagreed.

Lawyer Richard Fowler said the combination of the 109 conditions did amount to adaptive management because it required TTR to make changes once more information was gathered.

He also said some of the conditions did not have “hard limits” meaning there was no clear way to know if they had been breached or not, so was different to a regular consent.

Lawyer for Forest and Bird Martin Smith told the court the DMC was provided with information that contained significant uncertainties about the state of the current environment and the effects of the proposed activity.

“The conditions allowing adaptation were imposed in response to [a lack of information] so that info could be gathered and the activity adapted accordingly. That is the kernel of adaptive management.”

The appeal this week is the latest in a long string of litigation for the parties.

TTR initially applied for consent to mine in 2013, the Environmental Protection Authority refused the consent in 2014, but granted it when TTR re-applied in 2017.

Last year a number of environmental groups, including Kiwis Against Seabed Mining, Greenpeace and Forest and Bird fought the consent in the High Court and won.

In September last year the company sought leave for this week’s appeal, which will continue to be heard on Wednesday and Thursday.

Doctor protesting proposed seabed mining with ocean swim

The Stewards plan to swim 26kms in total – the mine’s distance off shore – by swimming along the coast from Pātea to Whanganui too.

Jane Matthews | Stuff NZ | March 15 2019

Despite the risk of falling victim to the sea he’s trying to save, a 61-year-old doctor is preparing to swim across a proposed-seabed mining site more than 20 kilometres off shore.

Athol Steward is campaigning against the planned seabed mine off the coast of South Taranaki by swimming 15 kilometres in the shape of an X across the area.

“The depiction of a cross is a ‘no-go zone’ or ‘no entry’ – that is the graphic or symbolic message,” Steward said.

Trans-Tasman Resources (TTR) has been trying to get consent to mine 50 million tonnes of ironsand from a 66-square kilometre area off the South Taranaki Bight for years.

Its consent has been denied, accepted, and then overturned in the Court or Appeal late last year and is currently sitting before the High Court. TTR has appealed the Court of Appeal’s decision against it. 

Steward said he has been against seabed mining from the start. 

“My concern is that it will disturb the marine environment in the way that there will be long term and permanent damage to the environment.”

In September, Steward and his Christchurch-based son Lloyd, 30, came up with the campaign ‘Making Waves’.

“We were very keen on a swim at the mine site, just because of that symbolism it carries.

“I expect it’s going to be done in fairly rough conditions, I don’t think you get the bahamas out there.”

Steward plans to swim 26km all up – the mine’s distance off shore – by swimming along the coast from Pātea to Whanganui too.

The pair, who have very little ocean-swimming experience, and their crew are ready for action but have to wait for the right weather conditions – but have seen nothing but rough days so far.

“You would have ended up a victim of the sea you’re trying to protect.”

In 2017, Steward walked from Raglan to Pātea to raise money and awareness about the proposed seabed mine.

He raised $10,600 for the anti-mining parties’ court costs. He’s hoping to reach $100,000 with this Givealittle campaign to cover the costs to come.

South Taranaki Coastguard life member John Linn said the waters the Stewards were planning to swim were dangerous.

“The thing with the South Taranaki Bight is it can change quite quickly, like the conditions on the mountain,” Linn said.

“He should be looking at it as if he’s swimming Cook Strait.”

South Taranaki iwi Ngāti Ruanui angry at spying by Thompson & Clark during Trans-Tasman Resources mining application

Anti seabed mining protesters were spied on by agents acting for the Ministry of Business, Innovation and Employment

Laurie Stowell | New Zealand Herald | 27 December, 2018

Revelations that the Government used private investigators to spy on protesters opposing Trans-Tasman Resources’ (TTR) seabed mining application have provoked outrage.

And one the groups targeted, South Taranaki iwi Ngāti Ruanui, is calling for a review of New Zealand Petroleum and Minerals, the government body that manages oil, gas and minerals and issues permits for exploration.

A bombshell report last week, following an inquiry by the State Services Commission, laid bare Government monitoring of groups seen as “security threats”, often through the use of private investigation firm Thompson & Clark.

The security company was given the profiles and newsletters of groups opposing oil and gas exploration and ironsand mining, such as that sought by TTR – and Ngāti Ruanui was one of the main opponents.

“The report says we were monitored and the only other word for that is spying,” Te Rūnanga o Ngāti Ruanui chief executive Debbie Ngarewa-Packer said.

The iwi is making an Official Information Act request for more information and may make a formal complaint, referring to the spying as “corrupt practices”.

Ngarewa-Packer said the iwi was “outraged but unsurprised” to discover the Government had used private investigators to spy on them.

The 150-page State Services Commission report shows “issue-motivated groups” such as the Ngāti Ruanui iwi were treated as security threats by several government departments.

It says the Ministry of Business, Innovation and Employment (MBIE), which is responsible for NZ Petroleum and Minerals, breached its code of conduct by failing to maintain an appropriate level of objectivity and impartiality.

“MBIE’s management of its regulatory responsibilities in the petroleum and minerals area … showed evidence of poor regulatory practice.”

Ngāti Ruanui chief executive Debbie Ngarewa-Packer

The inquiry uncovered system-wide failings across the public service, including a pattern of behaviour where public servants developed inappropriately close relationships with Thompson & Clark.

The monitoring started during Helen Clark’s Labour Government, with one instance in 2002, but Ngarewa-Packer said it ramped up during the last National-led Government when Simon Bridges was Energy and Resources Minister.

In 2015 he put up the “largest ever” block offer for oil and gas exploration. New Zealand Petroleum and Minerals was making “a huge effort” to bring business into the country.

Asking for opposing groups to be “monitored” called into question every decision it has made during that period, Ngarewa-Packer said.

“It makes the Crown Minerals process look corrupt.”

She said MBIE’s poor regulatory practice and bias toward iwi and stakeholders meant the ironsands exploration process “was undermined from the start”.

“What we suspected for years has sadly been confirmed – not only have we been fighting poor practising industry but we’ve also been fighting the officials charged with providing an impartial process. New Zealanders need to trust that those at the forefront of our democratic process will have a neutral view, instead of lobbying for private industry interests.”

The South Taranaki tribe was one of a number of groups opposing the ironsand mining application by TTR. During the mining proposal hearings, its people felt their concerns were ignored and officials were biased.

“We feel like we are up against not just TTR, but the officials as well.”

It seemed paranoid at the time, but Ngarewa-Packer now believes that treatment was part of a prevailing behaviour and culture.

She called for a full review of NZ Petroleum and Minerals and full disclosure. “Taxpayers and iwi need assurance the Government can be trusted.”

State Services Commissioner Peter Hughes said last week that new standards would strengthen transparency and consistency across government agencies.

“Any decision to use surveillance requires careful judgment,” Hughes said. “It must be lawful, it must be proportionate, and it must be ethical.

“It is never acceptable for an agency to undertake targeted surveillance of a person just because they are lawfully exercising their democratic rights – including their right to freedom of expression, association and right to protest.

“That is an affront to democracy.”

Trans-Tasman Resources given leave to appeal quashing of seabed mining consent

Trans-Tasman resources want to mine ironsand off the coast of Patea.

New Zealand Herald | 24 December, 2018

Trans-Tasman Resources has been given leave to appeal the overturning of its seabed mining consent.

Leave was granted by the Court of Appeal last week, following an application by the mining company in September.

TTR is seeking to mine ironsand in the South Taranaki Bight, and it applied to the Environmental Protection Agency to take 50 million tonnes of ironsand a year from the seafloor between 22 kilometres and 36km off Patea to export to Asia.

The agency gave its consent in 2017, but opposition groups of environmentalists and iwi appealed that decision to the High Court which quashed the consents in August this year.

This week TTR said its appeal would be based on the view that the agency followed a legally correct approach in granting the consent to TTR, including conditions specifically designed to protect the marine environment and existing interests, particularly iwi.

NZ groups opposed to seabed mining plan prepare to go back to court

Debbie Ngarewa-Packer has been leading the fight against seabed mining. SIMON O’CONNOR/STUFF

Catherine Groenestein | Stuff NZ | October 9 2018

Opponents of a plan to mine ironsand off the Taranaki coast are hoping the Court of Appeal will set a precedent to discourage other companies with similar aspirations.

Kiwis Against Seabed Mining (KASM), Greenpeace, Te Runanga o Ngati Ruanui Trust, Te Kaahui o Rauru, Te Ohu Kaimoana (the Maori Fisheries Trust) and the Taranaki-Whanganui Conservation Board have all sought leave to cross-appeal on the High Court judgment that quashed Trans-Tasman Resources Ltd’s (TTRL) consent to mine the South Taranaki Bight seabed for ironsand.  

The court ruled that the Environmental Protection Agency’s decision to grant it a consent was unlawful. 

Two weeks ago, TTRL sought leave to take its case to the Court of Appeal.

“There were a number of points we raised that the High Court decision did not uphold, and the Trans-Tasman Resources’ appeal has given us the opportunity to challenge those decisions,” KASM chairperson Cindy Baxter said.

“This is obviously a precedent-setting case, it’s the first application for consent, and it’s important to have this precedent as strong as possible.”

She said there were other companies interested in seabed mining along the country’s West Coast.

In May, Offshore Ironsands Mining Ltd was granted permission for mining exploration inside a marine sanctuary set up to protect the endangered Māui’s dolphins off the coast of New Plymouth.

“Our cross-appeal is a logical step to take in this precedent-setting decision, as there are other seabed mining companies waiting in the wings. There are enough pressures on our oceans already without having to deal with the impacts of seabed mining,” Emily Hunter of Greenpeace said.

Te Runanga o Ngati Ruanui Trust is cross appealing on points including its mana whenua interest and rights and the EPA’s failure to take the cautionary approach required by the Act.

“We want to make sure that anyone else that comes in has to reach this extremely high benchmark, they’re not able to just bowl in without doing the research they’re required to do,” Kaiarataki Debbie Ngarewa-Packer said.

The iwi was disappointed the Labour Government had not included the mining programme in its move towards stopping oil and gas prospecting.

“We’re putting a lot of effort into fighting this sunset industry with absolutely shocking environmental practices, when we should be focusing on developing a progressive economy and energy sector we can all be proud of.”

Te Kaahui o Rauru and Te Ohu Kaimoana (the Maori Fisheries Trust) have jointly lodged a cross appeal.

Kaiwhakahaere (CEO) Anne-Marie Broughton said the process had been exhausting and expensive, but Te Kaahui o Rauru likened the protection of the sea to the protection of the marae.

“The ocean is a fragile and largely unknown ecosystem and the problem is that if we damage it, we don’t know how to fix it up again. We must stand up for our environment. There are other ways to grow a healthy and sustainable economy – seabed mining is not the answer.”

The Taranaki-Whanganui Conservation Board has also resolved to defend the High Court’s decision, as well as to seek leave to cross-appeal in order to have the High Court’s decision confirmed on other grounds.

“It’s disappointing that we have to continue to fight to protect our environment,” chairperson Brendon Te Tiwha Puketapu said.

A spokesperson from the Court of Appeal said Forest and Bird and the Fisheries Interests had also filed cross appeals.

No date had yet been set for a hearing.

NZ Seabed mining battle continues

Ngati Ruanui protested against Trans-Tasman Resources’ bid for marine consent to mine the seabed for iron sand. More than 6000 people signed the petition calling for a moratorium on seabed mining. (File photo: Monique)

TTR plans to appeal seabed mining decision

Jane Matthews | Stuff NZ | September 21 2018

Trans Tasman Rescorses have decided to appeal the High Court decision that quashed their consent to mine up to 50 million tonnes of ironsand from a 66 square kilometre area off the South Taranaki Bight for 35 years. (File photo)

A mining company who has had their controversial consent to mine the seabed off South Taranaki denied for the second time has decided to appeal the High Court decision to stop them.

Trans Tasman Resources (TTR) has been trying to gain access to mine the South Taranaki seabed for years and was granted it in August 2017 by the Environmental Protection Agency (EPA). However, about three weeks ago the High Court quashed their consent on the grounds that the company’s method of environmental management was illegal.

TTR executive chairman Alan Eggers announced on Friday the company intended to lodge an appeal against the High Court’s decision, but first had to gain the permission of the court to do so. 

“Today TTR has lodged a notice to the Court of Appeal to seek leave to appeal the High Court judgment of August 28, 2018 regarding our marine consents for the South Taranaki Bright iron sands project,” Eggers said.

“It’s before the court and we’ll respect that and we’ll now have to see if the court will accept an appeal.”

Eggers would not answer any of Stuff‘s questions but said the basis of TTR’s appeal would be that they believe the EPA did follow a “legally correct approach in granting a marine discharge consent”.

The High Court decision to quash TTR’s contract, which granted consent from the EPA to mine up to 50 million tonnes of ironsand from a 66 square kilometre area off the South Taranaki Bight for 35 years, was because they’d planned to use an “adaptive management approach”.

Adaptive management is allowing an activity with uncertain effects and continually assessing it – essentially trying it out, seeing what happens and adapting the conditions accordingly, which was argued to be illegal under New Zealand law applying to the Exclusive Economic Zone and continental shelf.

Kiwis Against Seabed Mining chairperson Cindy Baxter wished TTR would just ‘go away’ after years of battling. TOM PULLAR-STRECKER/STUFF

Cindy Baxter is the chairperson of Kiwis Against Seabed Mining (Kasm), who were one of the parties who appealed the granting of consent, and said she was “unsurprised” with TTR’s desire to appeal the decision.

This is TTR’s second application to mine. It first applied and was denied in 2014, and Baxter was sick of them continuing to push despite denial and vocal opposition.

“I really wish that they would just go away – there’s a huge opposition,” she said.

“We’re standing on the shoulders of tens of thousands of people.”

NZ fishing industry celebrates win over deep-sea mining proposal

Intrafish via Fishing Hacks

New Zealand’s fishing industry successfully appealed against the Environmental Protection Authority’s (EPA) decision to allow Trans-Tasman Resources (TTR) to mine 50 million metric tons of seabed annually, and discharge 45 million metric tons of waste sediment into the waters off the coast of Taranaki for 35 years.

The appeals were lodged by Cloudy Bay Clams, New Zealand Federation of Commercial Fishermen, Fisheries Inshore New Zealand, Southern Inshore Fisheries Management, Te Ohu Kaimoana, Talley’s Group, Greenpeace, Kiwis Against Seabed Mining, Te Runanga O Ngati Ruanui Trust, Forest and Bird, Taranaki-Whanganui Conservation Board, and the Trustees of Te Kahui O Rauru.

TTR’s first application was refused in June 2014 after a Decision Making Committee (DMC) appointed by the EPA found the application was premature and more time should have been taken to understand the proposed operation, its effects on the receiving environment and existing interests.

Fisheries Inshore New Zealand (FINZ) Chief Executive Jeremy Helson, said TTR’s most recent application was almost identical to the first, and did not address the EPA’s key reasons for refusing TTR’s application in 2014.

“By allowing the appeal, the High Court has today confirmed our view that the application, and the DMC’s decision, were deficient,” he said. “The court quashed the decision saying the narrow interpretation of the adaptive management approach was inconsistent with the law.

“This is a good decision by the High Court and we are pleased this matter has again been rejected,” said Helson. “It is clear from these failed attempts that a significant re-think is required on seabed mining.”

Environmentalists win appeal against seabed mining decision

KASM chairwoman Cindy Baxter said the news was a victory for those who fought against the seabed mining consent. TOM PULLAR-STRECKER/STUFF

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.”

Another NZ seabed mining permit lapses

Another seabed mining permit lapses: industry future is in question

KASM | Scoop NZ | 1 August 2018

The news that seabed mining company Trans Tasman Resources Ltd (TTR) has let yet another New Zealand mining permit lapse was heralded today by Kiwis Against Seabed Mining.

On Thursday last week, the TTR prospecting permit for a 4435 square kilometre section of the seabed off the West Coast quietly lapsed, and is not being renewed. This is the second such permit the company has allowed to lapse in the last six months, the first being near Kawhia off the North Island’s West Coast just south of Raglan.

The company has confirmed that it has let the permit lapse as it waits for the result of a High Court appeal (heard in April) brought by KASM and a number of other interests against the EPA’s consent for mining a 66sqkm area of the South Taranaki Bight seabed. Whatever the outcome of the appeal, there will be a long process before it’s resolved, with the possibility of more court action, or another EPA hearing.

“This gives the Government an opportunity to re-think the logic of these seabed mining bids off our coastlines, not least because of the threat to endangered species like Māui and Hector’s dolphins, fisheries, seabirds and our surf breaks,” said KASM chairperson, Cindy Baxter.

“After years of effort, where are we? Two seabed mining applications have been refused, a third is under appeal, permits are dropping like flies, the companies are struggling financially, there are still huge concerns around the environmental impact, and opposition is growing stronger by the day. It’s time for the government to put a stop to this madness.” 

Seabed mining concerns taken to United Nations

Kataraina Graham, 2, was part of the Ngati Ruanui seabed mining protest at Castlecliff in September 2017. Photo Bevan Conley.

Simon Waters | Wanganui Chronicle | 27 June 2018

Ngā Rauru is taking its concerns about proposed seabed mining in the South Taranaki Bight to the United Nations.

Te Kaahui o Rauru board member Te Huia Bill Hamilton will present them to the United Nations’ Expert Mechanism on the Rights of Indigenous Peoples.

He heads to Geneva for the five-day conference this month and will be representing the National Iwi Chairs’ Forum.

Consent given for the mining breaches International Human Rights Law and marginalises the iwi’s views, he said.