The Court of Appeal decision: the end of seabed mining?
Updated: Dec 15, 2021
By Cindy Baxter, KASM Chairperson
Last Friday, six months after a three-day hearing in Wellington, the Court of Appeal released a landmark decision that, we believe, could stop the destructive and highly experimental seabed mining industry from being unleashed in New Zealand waters.
It’s been a long road since September 2016 when the Environmental Protection Authority (EPA) first called for submissions on Trans Tasman Resources’ (TTR) second application to dig up 50 million tonnes of the South Taranaki seabed every year for 35 years, to extract ironsand to sell into Asian markets.
The South Taranaki Bight is thought to be home to our own population of pygmy blue whales – and the krill they feed on – many seabirds, little blue penguins, and dolphins, including the maui dolphin. It is fringed by reef systems teaming with life that we’re only just finding out about.
Read the full legal analysis here.
After two failed applications, one by TTR and one by Chatham Rock Phosphate, the then National Government had had enough, and leaned on the EPA to get something over the line. And it did: by changing the makeup of the Decision Making Committee (DMC) to four instead of five people, that, from the outset, appeared to favour the company, and by changing the rules to give the chair the casting vote. The DMC’s first step was to accept an obviously incomplete application. Then it agreed to the company blacking out part of its application – until we got the Environment Court to force it to release the full document. We were on the back foot from the get-go.
So many people – more than 13,700 – submitted against it, and many struggled to be heard as the DMC cut back the number of hearings around the country from the first application. Many who made it to the Taranaki hearings in New Plymouth are still smarting from the rudeness of the Chair as they bravely stood giving their views to the Committee.
This time, the Committee didn’t even bother to hold hearings on the marae to hear Maori concerns, and didn’t bother to meet with Ngati Ruanui to get a cultural impact assessment. The DMC appeared to be hellbent on squashing as much public participation as possible, and this didn’t go unnoticed by the Court.
After protracted hearings, and a huge amount of work for submitters like KASM, in August 2017 the EPA gave TTR the green light, in a 2-2 split decision but where committee rules gave the Chair the casting vote, a rule it hadn’t advertised. The consent came with a list of 109 conditions – many of which were designed to let TTR gain the information over a two-year period that it should have got before it made its application (and indeed which the first EPA decision had instructed the company to complete before it made another attempt at getting consent).
Still no seabed mining, three years after the EPA gave it the green light
Today, nearly three years later, there’s still been no seabed mining as we have continued the fight in the courts, first by successfully appealing the EPA decision to the High Court, which ruled in August 2018 that those 109 conditions amounted to “adaptive management” – a “try it and see” approach that it agreed was unlawful.
The company appealed that decision to the Court of Appeal, giving us the opportunity to “cross appeal” on the other points the High Court had ruled out. And now we have that decision. What are the main points? Our fantastic legal team has gone through the decision forensically, in this document.
I’ll try and sum it up below. A quick note here to say that the company says it “won” its appeal, but we find that difficult to understand when the judgment awarded the company to pay costs. The decision Firstly, we have to note that this is an extremely strong decision that, if it’s not overturned by a Supreme Court ruling, is likely to make it very difficult for the EPA to give any green light to seabed mining in New Zealand any time soon, not without a lot more research and minimising the impacts. It’s time the government banned seabed mining altogether, to stop wasting everyone’s time and money. This decision sets out very clear reasons why it should not go ahead.
Protecting the environment is a “bottom line” for the EPA First, and very importantly, the Court ruled that section 10 – the purpose – of the EEZ legislation means that protecting the environment is a “bottom line.” And, contrary to what the company argued, environmental harm cannot be traded off against the promise of remediation at a later date, nor against any economic benefits.
The EPA cannot grant a consent for a marine discharge or marine dumping unless it is satisfied that the relevant activity is not likely to cause harm to the environment. If there is a real prospect of environmental pollution, then the EPA should not grant a marine discharge or dumping consent. And we all know that there was a very real prospect of material pollution to the South Taranaki Bight. You cannot dig up 50 million tonnes a year for 35 years, discharge many millions of tonnes of sediment into the water and not harm the environment.
The Court of Appeal disagreed with the High Court that the conditions amounted to adaptive management but said that adaptive management couldn’t be used in this case, as such an approach would risk causing harm to the environment of the kind that the Act requires the EPA to avoid.
The lack of baseline data One of the issues we had throughout the application process was the lack of knowledge about the potential effects of seabed mining – how far the “plume” of sediment would spread throughout the Bight, and what effect it would have on the marine environment and its inhabitants, such as the pygmy blue whale population that is believed to be unique to Aotearoa. Importantly, the company had not done the baseline work to even find out and map what lived in this 66 square kilometre area of the seabed and the area that would be affected.
It ruled that the lack of the “baseline” work was another level of uncertainty upon which the EPA should have declined the application – indeed in declining the first application back in 2014, the EPA had directed TTR to go away and do its homework, and get that work done. But of course spending two years gathering data would have been too expensive for the company – instead, it worked on successfully lobbying the government to change the rules and lean on the EPA.
In the case of the lack of such information, we argued – and the Court of Appeal agreed with us – that the precautionary principle applied. If there was a lack of information and any degree of uncertainty about the effects of a proposed activity, then the EPA must decline the application, the court said.
Treaty of Waitangi Another key part of the decision was around the Treaty of Waitangi, an area the High Court had completely – and wrongly – rejected. In considering a marine discharge, the EPA must squarely engage with the full range of customary rights, interests and activities identified by Māori as affected by the TTR proposal, and to consider the effect of the proposal on those existing interests.
In particular, the EPA must address the impact of the TTR proposal on the kaitiakitanga relationship between the relevant iwi and the marine environment, as kaitiakitanga was an integral component of the customary rights and interests of Māori in relation to the taonga referred to in the Treaty. This was a huge win for the local Iwi, including Ngati Ruanui and Nga Rauru, whose arguments had been ignored by the EPA in its decision.
Impact on the Coastal Marine Area Another of the key decisions was that the proposed mine, while just outside the 12 mile limit government by the Resource Management Act, would have had a major impact on the area inside that area – which is governed by the RMA. The Court of Appeal said in particular the EPA had disregarded its responsibilities to take any notice of environmental bottom lines established by the NZ Coastal Policy Statement.
Mammals and seabirds There were other wins in the decision, especially the Court of Appeal’s acknowledgement that the EPA’s decision and conditions on marine mammals and seabirds would have left out the important process of public participation. There was little information around the impact on seabirds and marine mammals, and the EPA’s condition was that TTR would have to come up with a plan, submit it to the EPA, which would then sign it off. This process left out any room for public participation.
It’s time the government banned seabed mining altogether, to stop wasting everyone’s time and money.
The bond – and public participation The Court also ruled in our favour in an argument we with Greenpeace alone brought: that the Court had wrongly confused the financial bond with insurance. In fact the Court said we would have won on that point on its own.
It was heartening to see the Court of Appeal acknowledge the importance of public participation, because throughout the whole application, submissions and hearing process, it felt to many of us that the EPA was doing its best to shut us all out as much as possible.
But it’s thrilling and redemptive to have the Court reinforce all the arguments we have been making for the last seven years, with your support.
The company now has 20 working days to seek leave to appeal to the Supreme Court. Otherwise Trans Tasman Resources will have to give up its plans or else take its application back to the EPA to re-evaluate on the basis of the Court of Appeal’s ruling. We think they should just give up.