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Company challenges appeal against seabed mining – 50m tonnes a year

BusinessDesk report by Rebecca Howard
Trans-Tasman Resources is defending the Environmental Protection Authority-appointed committee’s decision to grant a marine consent for its offshore iron mining project in a hearing underway in the High Court in Wellington this week.

The company sought permission to extract 50 million tonnes of seabed material a year to export up to 5 million tonnes of iron sand per year from the ocean floor in the South Taranaki Bight, generating an annual $400 million in export revenue. Consent was granted last August, under a series of conditions. However, iwi, conservation and fishing interests have argued the consent should never have been granted at the four-day hearing this week.

In its submission today, TTR said appellants have raised more than 80 alleged errors of law, with some overlap between them, and “the majority of these ‘errors’ are questions of fact, or involve applying settled law to the facts, which are not questions of law.”

While the appellants allege the impacts of sand mining are “largely unknown” and “potentially devastating,” that claim “ignores the extensive evidence that the Decision Making Committee had in relation to effects,” TTR said.

Regarding the appellants’ emphasis on the precautionary principle, the information gathering powers, natural justice and adaptive management arguments, the submission said “none of these arguments bear scrutiny.” TTR argues the committee made full use of its information gathering powers, all natural justice principles were followed, with all parties given the opportunity to comment on new information, evidence extensions were granted on request and hearing procedures were made available to all parties.

The company also submits that none of the conditions imposed amounted or contributed to an adaptive management approach and in relation to all the other grounds the “EPA interpreted and applied the law correctly.”

The submission said whether the court might prefer or even reach a different factual founding is not a question of law.

“The appeals should be dismissed.”

Kiwis Against Seabed Mining – one of the appellants – said the case will set a precedent and it’s ready to go all the way to the Supreme Court if necessary.

BusinessDesk report by Rebecca Howard – April 17
A four-day hearing kicked off in the Wellington High Court yesterday, challenging the Environmental Protection Authority-appointed committee’s decision to grant a marine consent to Trans-Tasman Resources’ offshore iron mining project with the first appellant arguing it misunderstood and misapplied the statute.

TTR has sought permission to extract 50 million tonnes of seabed material a year to export up to 5 million tonnes of iron sand per year from the ocean floor in the South Taranaki Bight. It was initially rejected in 2014 when a committee ruled the environmental impacts of the proposal were too difficult to gauge on the evidence available. The company went back to the drawing board and a second hearing was held between February and May last year. Consent was granted last August, under a series of conditions.

Francis Cooke, QC, who represents Maori and fishing interests in the hearing, said the EPA’s decision-making committee committed a series of errors and consent should never have been granted.

According to Cooke, among other issues, the committee never identified the statutory requirements it was applying to evaluate the project. He underscored that while people can have personal views about the issue at hand the “members of the DMC have to apply the statute” and it failed to identify the standard by which the application would be judged.

For example, he presented evidence that would indicate the committee was aware the mining project would have adverse effects but said it expects those to be “temporary, albeit of considerable duration.” According to Cooke, the DMC “appears to be applying a standard that allows the environment to be harmed, provided it ultimately recovers,” but never identified the corresponding standard that was based on.

He also argued that it should have taken into account the prior decision, something he said it failed to so. He said the DMC failed to get baseline information about the environment and said it did not properly address the impact of the project on the coastal marine area, which is outside of the project’s direct area but nonetheless is impacted, he said.

The decision is being appealed by several other applicants, including Kiwis Against Seabed Mining with Greenpeace, and Forest & Bird.

KASM and Greenpeace are appealing on 12 points of law. Among these is the issue of what is called “adaptive management” whereby an activity like seabed mining is allowed to go ahead, adapting the conditions on which it occurs along the way.

Forest & Bird’s legal team will be arguing that the panel misunderstood their obligation to protect the environment, confusing it with an obligation to avoid, remedy, or mitigate adverse effects on the environment.

If the appeal is successful, the court could instruct the committee to reconsider its decision or the decision could be thrown out, which is what KASM is lobbying for, said KASM chair Cindy Baxter. She noted, however, if the ruling goes against them they would likely be an appeal.

Joint Press Release – Kiwis Against Seabed Mining + Greenpeace – April 16
The future of the South Taranaki Bight lies in the hands of the High Court in Wellington this week. It is hearing appeals against the Envionmental Protection Authority’s decision to grant a marine consent to Trans-Tasman Resources’ bid to dig up the seabed for its iron ore.

Kiwis Against Seabed Mining (KASM), with Greenpeace, is appealing the decision, alongside six other appellants.

The EPA decision was released in August 2017, a year after Trans-Tasman Resources submitted its application to dig up 50 million tonnes of the seabed a year in a 66 square kilometre section of the South Taranaki Bight – for 35 years. A total of 95% will be discharged, resulting in a large sediment plume, to get five million tonnes a year of iron ore. Of the 13,733 submissions (a record) received by the EPA, all but 147 – one percent – were either opposed to the consent or neutral.

“This is a fight for the future of our precious oceans,” said KASM chair Cindy Baxter. “The outcome of this case will set a precedent for a number of other companies waiting in the wings to mine our seabed, in the South Taranaki Bight and beyond. Trans-Tasman has prospecting permits for at least two more in the Bight, and two others around the country.”

“Our Oceans are in distress, and are facing a crisis of marine biodiversity loss. Our oceans provide us vital services, food and livelihoods, as well as oxygen and carbon sequestration when we have healthy ecosystems,” said Michael Smith, a campaigner with Greenpeace New Zealand.

“The South Taranaki Bight is one such vital ecosystem, home to a population of endangered blue whales and Maui dolphins. Protecting its biodiversity is why this case is so important..”

KASM and Greenpeace are appealing on 12 points of law. Among these is the issue of what is called “adaptive management” whereby an activity like seabed mining is allowed to go ahead, adapting the conditions on which it occurs along the way.

“The EPA has set down 109 conditions, but many are still to be developed, such as the effect of seabed mining on marine mammals and seabirds,” said Cindy Baxter. “We are also raising other issues, such as natural justice, the way economic benefits have been calculated, and the role of the precautionary approach.”

The hearing begins at the High Court in Wellington at 10 am today and will last for four days.

Forest and Birdappeal against seabed mining
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