By Grace Goodwin

Seabed mining has never occurred commercially in New Zealand, and with the release of a recent Court of Appeal decision, it remains uncharted territory.  The Taranaki Iron Sands appeals have been hard-fought, setting down interesting precedent and giving greater insight into the shifting views of the courts on environmental policy. The issues raised concerns around safeguarding the environment and iwi rights.  As such, an understanding of the policy and legal reasoning behind the Court of Appeal case is vital, especially in light of the recent appeal lodged with the Supreme Court.[1]

Background:

Trans-Tasman Resources (TTR), a company founded to explore the viability of seabed mining in New Zealand, has applied twice for consents to mine the seabed off Pātea for iron sand. The first of these applications was declined by the Environmental Protection Authority (EPA) in 2014. The proposed mining would occur in New Zealand’s Exclusive Economic Zone (EEZ) which means that the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012 is the primary piece of legislation governing if mining can occur. The application failed on the primary grounds that the impact on the environment was uncertain, and that the proposed plan to mitigate environmental impact was therefore insufficient.[2]

Their second application, however, proved more fruitful and was approved by the EPA in August 2017. The granting of the consents was still contentious, reflected by the fact that the vote was split, leaving the chairperson of the decision-making committee to decide the outcome.[3] TTR alleged that the second application ameliorated the issues of uncertainty that their first application was plagued with.[4] However, it was relatively similar in contents to the first application. The application and subsequent approval of the consents was met with widespread opposition from iwi, environmental organisations and commercial fishing operations.[5] Better understanding of this opposition calls for a closer look at the process of seabed mining itself.

Onshore mining of iron sands has occurred since 1985,[6] but the large offshore supply has never been mined. The process of seabed mining entails extracting large portions of the seabed, approximately 10% of which is retained for the extraction of ore. The remaining 90% is discharged back into the ocean.[7]

There are considerable environmental issues tied to seabed mining.[8] Mining of the sand itself creates disturbances to the habitat of benthic organisms, which range in vulnerability. The process of discharging sediment back into the ocean is what has the greatest environmental impact, as it can cause large sediment plumes. These plumes can disturb and smother fish as well as benthic organisms, which are organisms that dwell on or in the seabed. In addition, it can interfere with the migratory and feeding patterns of endangered animals that live and pass through the affected area, in this case Māui’s Dolphins and Blue Whales.[9] The disturbances to already threatened species would likely further endanger them. The overall environmental impact of discharge is uncertain, due largely to a lack of study and changeability, but the general consensus is that the impact will be significant and negative.[10]  

There are also several issues centring around the protection of pre-existing interests in the EEZ. There are two primary interests, commercial fisheries and those of tangata whenua. The allowance of seabed mining would likely infringe upon commercial fisheries’ existing interests due to decreases or changes in location of fish stock.[11] The interests of tangata whenua are more nuanced. Māori have a kaitiaki relationship with the ocean and marine life, which for specific tangata whenua constitutes an existing interest in the area.[12] Kaitiakitanga is, broadly, a style of environmental management based on a traditional Māori worldview.[13] Seabed mining stands in direct opposition to many of the principles of kaitiakitanga and therefore infringes on this interest. At many points in the appeal process explained below, the extent of Māori interests were disagreed upon.

The High Court Case

Several opposing parties appealed the granting of the consents, which were consolidated and heard as one case. The overreaching legal issue was if the consents granted conformed to the regulations set out in the EEZ Act, in addition to meeting legal obligations arising from other domestic Acts and International Conventions.[14] Under the EEZ an adaptive management approach cannot be taken when applying for a marine discharge consent. An adaptive management approach is defined under the Act as allowing small scale activity, and then gauging the impact on the environment.[15]

Churchman J found that the DMC had applied a narrow interpretation of the “adaptive management approach”, which conflicted with the meaning of the term in s 64 of the EEZ Act. The definition used was inconsistent with the purpose of the Act, which is “protecting the environment from pollution by regulating or prohibiting the discharge of harmful substances”.[16] Based on this it was found that the EPA had adopted an adaptive management approach. On these grounds the decision of the EPA was overturned and referred back to them to correctly determine if the consents should be granted.

The Court of Appeal Case

After being unsuccessful in the High Court Case TTR appealed the decision in the New Zealand Court of Appeal. Interestingly, the Court of Appeal upheld the High Court’s decision to refer the consents back to the EPA, but on different grounds.[17] The Court of Appeal found that the methodology proposed by TTR was not in line adaptive management approach, contrary to the High Court decision. Goddard JJ found that the DMC made multiple errors and the High Court failed to identify these errors. Four main errors were identified as:[18]

1. Failure to address whether the granting of the consents would be consistent with the objective set out in the EEZ Act, to protect the environment from pollution.

2. Failure to err on the side of caution and protection when presented with inadequate information, contrary to the EEZ.

3. A failure to regard pre-existing interests, by not acknowledging the kaitiakitanga relationship in a broader sense, which is inconsistent with Treaty principles.

4. A failure to consider whether the impacts of granting of consents would be consistent with the RMA and the NZCPS objectives, specifically environmental bottom lines. 

Based on these flaws the Court of Appeal referred TTR’s consent application back to the EPA. Notably, they did not completely dismiss the application, saying that in a more limited or different capacity the TTR application could be approved.[19]

Implications

The Court of Appeal outlined in its judgement how the EPA should have approached the decision about consents and took a stricter approach, limiting the approval of discharge consents. They went further than the High Court and ruled that the EPA did not just have to check the consents complied with sustainable management, but that they upheld the purpose of protecting the environment which is set out in s 10(1) of the EEZ Act. This in a way is an adoption of the bottom-line approach, which views protecting the environment as the foundation on which all other decisions must be made.[20] In this example, sustainable management would have to operate within the bounds of protecting the environment. This is a much more stringent approach than that initially taken by the EPA. The bottom-line approach means that actions taken under the EEZ may not substitute economic benefit for environmental benefit or other types of benefit, contrary to reasoning in some older cases, such as Ngāti Ruahine in 2012.[21]

The court went on to affirm further environmental protection measures, with the decision that the EPA must err on the side of caution when there is uncertainty about environmental impact. Due to the nature of the environment and limitations of study, most information on discharge into the ocean is uncertain.[22] As such, this decision places severe limits on discharge in the EEZ.

The court’s reasoning sends a strong message that without practicable measures to better ascertain impact and protect the environment New Zealand would not welcome investment into the development of the EEZ. Kevin Hague, the Chief Executive of Forest and Bird, considers this decision especially important in light of Covid-19.[23] The pandemic has had unforeseen and devastating impacts on New Zealand’s economy, and this decision highlights the need to rebuild the economy in a way that protects the environment.

The court also takes an affirmative approach to iwi rights and interests. This is first done through the highlighting of the submissions process, confirming the importance of proper consultation with tangata whenua. Despite this submissions process, however, the 2017 EPA decision largely ignored the concerns of Māori respondents. All of the respondents who had manawhenua over the affected area were in favour of the consents being denied.[24] The Court of Appeal decision, for the first time in the process, properly acknowledged the importance of iwi interests. They took the line of reasoning that treaty principles had to be upheld under the EEZ Act, principles which recognise customary rights. They departed from the EPA and High Court decision and qualified these customary rights as existing interests.[25] The court specifically condemned the failure to recognise these rights just because they are not in line with Western legal concepts.[26] Ngāti Ruanui kaiarataki Debbie Ngarewa-Packer was excited by this recognition:

“That’s a huge part of the win today. One, we were able to stop this type of activity, but also we were able to have validated by the second highest court in the country how important our kaitiakitanga is and how important our environment is.” [27]

The decision has confirmed the intrinsic relevance of tangata whenua engagement in environmental issues, due to their kaitiaki relationship to the environment.

Conclusion

There are calls to ban seabed mining outright in New Zealand. Opponents of seabed mining believe that the government needs to step in and ban seabed mining altogether, instead of leaving it to environmental organisations and iwi groups to battle it out in court.[28] Despite hopes that TTR would accept the CoA decision, on the 22nd of April they submitted a notice of appeal to the Supreme Court.[29] It will be another battle in a hard-fought war for the protection of the environment and proper recognition of Māori interests.

The views expressed in the posts and comments of this blog do not necessarily reflect those of the Equal Justice Project. They should be understood as the personal opinions of the author. No information on this blog will be understood as official. The Equal Justice Project makes no representations as to the accuracy or completeness of any information on this site or found by following any link on this site. The Equal Justice Project will not be liable for any errors or omissions in this information nor for the availability of this information.

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[1] Mike Watson Trans Tasman Resource off to Supreme Court to fight for right to mine iron sand off Taranaki Coast (23 April 2020) Stuff <https://www.stuff.co.nz/national/121209688/trans-tasman-resource-off-to-supreme-court-to-fight-for-right-to-mine-iron-sand-off-taranaki-coast>.

[2] Environmental Protection Authority Trans-Tasman Resources Ltd Marine Consent Decision (June 2014) <https://www.epa.govt.nz/assets/FileAPI/proposal/EEZ000004/Boards-Decision/ff4e630f5d/EEZ000004-Trans-Tasman-Resources-decision-17June2014.pdf> at [853].

[3] Environmental Protection Authority Trans-Tasman Resources Ltd Marine Consent Decision (EEZ000011, 3 August 2017) at [189].

[4] EPA, above n 2, at [65].

[5] Watson, above n 1.

[6] Environment Guide Case Study – South Taranaki Bight iron sand extraction (January 2018) <http://www.environmentguide.org.nz/activities/minerals/case-study-south-taranaki-bight-iron-sand-1/>.

[7] New Zealand Petroleum and Minerals Seabed Mining  <https://www.nzpam.govt.nz/assets/Uploads/our-industry/factsheets/seabed-mining.pdf> at 4.

[8] NZPAM, above n 7, at 9.

[9] Environment Guide, above n 6.

[10] Raul Sharma Environmental Issues of Deep-Sea Mining (2015) 11 Procedia Earth and Planetary Science 204.

[11] Environment Guide, above n 6.

[12] Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board CA573/2018, 3 April 2020 at [2].

[13] Te Ahukaramū Charles Royal Kaitiakitanga – guardianship and conservation – Understanding Kaitiakitanga (2007) Te Ara <https://teara.govt.nz/en/kaitiakitanga-guardianship-and-conservation/page-1>.

[14] Taranaki-Whanganui Conservation Board v Environmental Protection Authority [2018] NZHC 2217, [2019] NZRMA 64 at [3].

[15] Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012, s 64(2).

[16] EEZ Act, above n 15, s 10.

[17] Trans-Tasman Resources Ltd, above n 12, at [14].

[18] Trans-Tasman Resources Ltd, above n 12, at [12].

[19] Trans-Tasman Resources Limited, above n 12, at [15].

[20] Trans-Tasman Resources Limited, above n 12, at [89].

[21] Ngati Ruahine v Bay of Plenty Regional Council [2012] NZHC 2407 [55].

[22] Environment Guide, above n 6.

[23]Robin Martin Mining company loses appeal to mine ironsands off Taranaki coast (3 April 2020) Radio New Zealand <https://www.rnz.co.nz/news/business/413392/mining-company-loses-appeal-to-mine-ironsands-off-taranaki-coast>.

[24] EPA, above n 3, at [623]-[626].

[25] Trans-Tasman Resources Ltd, above n 11, at [168].

[26] Trans-Tasman Resources Ltd, above n 11, at [169].

[27] Martin, above n 23.

[28] Martin, above n 23.

[29] Watson, above n 1.